ABSTRACT
The point of consumer contract law is to ensure most of life remains legally boring. This law succeeds when we can enjoy a cup of coffee or secure a mortgage without focusing on any of the contracting tasks. By protecting our time and attention, the law turns both mundane and constitutive consumer transactions into errands we can complete with minimal risk.
This Essay shows how to achieve genuinely liberal consumer contract law. As a start, judges should adopt, with tweaks we recommend, three doctrinal advances in the new Restatement of Consumer Contracts (‘RCC’), including revisions to procedural unconscionability, substantive unconscionability, and reasonable expectations doctrines.
But courts can and should do more to implement an errands conception of consumer contracting. The key steps include (1) applying reasonable expectations doctrine normatively, consistent with its legacy, rather than empirically, per the RCC; (2) adapting public policy and good faith doctrines in an autonomy-enhancing direction; and (3) replacing the ‘opportunity to read’ doctrine with an expanded, modern § 2-207(3) formation technique. The RCC invites this last reform by candidly acknowledging the inherent ineffectiveness of its traditional formation technique. The doctrinal tools for reform exist already in the case law; we provide the normative basis for implementing them. In short, we show how consumer contract law can live up to its animating liberal principles.
Dagan, Hanoch and Gergen, Mark P and Heller, Michael, Liberal Consumer Contract Law (January 7, 2026), UC Berkeley Public Law Research Paper No 6038555; Columbia Public Law Research Paper No 6038555.
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