Sessions of Interest at the AALS Annual Meeting This Week

Contract theorists have offered a number of different rationales to explain the central doctrines of contract law.  Contract law does not, however, operate in isolation: it interacts with other areas of the law (both public and private) to underwrite modern market activity, and thereby shapes larger economic relations and patterns of economic growth and decay.  Theorizing about contract thus inevitably invites deeper reflection on the place of public regulation in the private sphere.  

This session will discuss different approaches to contract theory, with special attention to their capacity to explain not only the simplest cases of classical contracting (i.e., where two parties of relatively equal bargaining power explicitly discuss and reach agreement on the complete terms of a bargain) but also the way modern contracting has developed in practice (i.e., where phenomena like form contracts, contracts of adhesion and boilerplate often dominate).  It will also discuss some of the outstanding problems for contract theory, including the declining role of voluntariness in modern contracting. What challenges do facts like these present for contract theory, and how might contract theory begin to address these challenges in a more holistic way?  Some new theories and emerging ideas will be discussed. 

Consumer law is in the midst of rapid and probably substantial change, both in the U.S. and abroad. Stateside, we see change at every level of contract and commercial law, both in areas governed by thecommon law and in areas occupied by statutes and regulations. For the former, the largest recentdevelopment is the just-underway Restatement (Third) of Consumer Contracts, though to some degree other ALI projects have addressed particular aspects of consumer law (for example, the Principles of Software Contracts). NCCUSL similarly has taken up consumer contracting in the last decade or two, mainly with rather focused projects, but at time with broad-based ones (such as the attempts to revise and then amend Article Two of the UCC).  Federal law has likewise gone through upheaval in the aftermath of Dodd-Frank, in large part through the creation of the Consumer Financial Protection Bureau and the new activities of the Federal Trade Commission. Nor has the Supreme Court been silent, as its recent decisions on class arbitration attest. Outside the U.S., there have been many substantial attempts to rethink consumer contracting, of which recent European Union Directives on Consumer Rights and on

Alternative Dispute Resolution for Consumer Contracts are prominent examples.

In this joint session, a broad range of participants will discuss these developments from many perspectives—law reformers, academics (both legal and non-legal), regulators, the regulated, the courts. We anticipate many opportunities for give-and-take among panelists and between panelists and theaudience.

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