The University of New Hampshire Law Review The University of New Hampshire Law Review
Volume 19 Number 1 Article 5
11-15-2020
Pervasive Infancy: Reassessing the Contract Capacity of Adults in Pervasive Infancy: Reassessing the Contract Capacity of Adults in
Modern America Modern America
Michael S. Lewis
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Michael S. Lewis,
Pervasive Infancy: Reassessing the Contract Capacity of Adults in Modern America
, 19
U.N.H. L. Rev. 69 (2020).
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69
Michael S. Lewis
Pervasive Infancy: Reassessing the Contract Capacity of
Adults in Modern America
19 U.N.H. L. Rev. 69 (2020)
ABSTRACT. This article argues that the law of consumer contracts should permit adults to access
the same protections available to children where data about adult performance indicates that the
two categories of people are similarly situated within the domain of consumer contracts. In
making this claim, this article relies upon a description of capacity articulated by Professor
Martha Nussbaum in her important work on the subject. Professor Nussbaum explains that
capacity is a function, not only of a person’s innate capabilities, but of a person’s opportunity or
ability to deploy those capabilities within environmental limitations. Capacity to contract in a
free society has demanded sufficient internal self-control to direct action and make decisions we
would expect of a free person vested with a set of important personal rights. Nussbaum’s
standard raises the possibility that even people with substantial internal capabilities may not have
capacity if the environment in which they are seeking to express their capabilities negates them.
This article argues that the law of consumer contracts is one such domain. It therefore argues
that this domain should reassign risks between consumers and sellers in the consumer
contracting market, where data about adult decision-making in the domain suggests that adults
do not have the power to protect their contract rights through reasoned decision-making. It does
so as a means of saving the very institution of contract law itself, which is a central mechanism
for securing freedom of choice for Americans.
AUTHOR.
Michael S. Lewis is a shareholder at Rath, Young and Pignatelli, P.C., and serves as
an adjunct professor of law at the University of New Hampshire Franklin Pierce School of Law as
well as at Vermont Law School. Thank you to Professor Michael McCann of the University of
New Hampshire Franklin Pierce School of Law for his encouragement and support and for the
opportunity to teach in this area of law. Thank you, also, to my students in the University of
New Hampshire Franklin Pierce School of Law, the inaugural hybrid class of 2022, for their
engagement with this material. Thank you also to William Ardinger, Fred Baumann, Elliott
Berry, Holly Brewer, Sarah Mattson Dustin, Jean Galbraith, Martha Fineman, Charles Fried,
Sarah Haskins, Jordan Klepper, John Lewis, Steve Lauwers, David Plunkett, Adam Plunkett, Leah
Plunkett, Marcy Plunkett, William Magnuson, Chris Sullivan, Jake Sullivan, John Tobin, and
Ryan Vacca for their feedback and questions. Thank you to Chelsea Begin and Anna Carrigan
for providing me with the opportunity to focus on legal rights pertaining to children in my work.
®
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
70
I. INTRODUCTION ........................................................................................ 71
II. THE CONTRACT LAW PROFESSOR’S PERENNIAL CONUNDRUM ....... 85
III.THE GENEALOGICAL POISON OF JUSTICE HOLMES’
JURISPRUDENCE OF CRUELTY ............................................................... 92
IV. INFANCY AS THE PATH TO CAPABILITY, EMPOWERMENT AND
AUTONOMY. ........................................................................................... 105
A. Refining notions of capacity to even the contracting playing field ................. 105
B. “Adulthood” Challenged ............................................................................... 107
C. Acknowledging infancy as a more realistic baseline ...................................... 117
D. “Extended Infancy” Meets the Theoretical Demands of Contract Law .......... 123
V. CONCLUSION ......................................................................................... 130
PERVASIVE INFANCY
71
Klepper: Did you read the transcript?
Citizen: I don’t have to. I can read it if I need to.
Klepper: But it’s important that everybody reads the transcript?
Citizen: It is. Very important. Pay attention and think for yourself.
Klepper: But to be clear, you haven’t read it . . . . You just trusted somebody else who
has.
Citizen: Correct . . . . Don’t be a sheep . . . . Think for yourself . . . . Do your own
research.
—Jordan Klepper
I. INTRODUCTION
I experienced a sort of shock a few years ago when I walked into a local
sandwich shop to order a late lunch. The two men who owned the shop and who
had never demonstrated the slightest interest in law or politics over the time I’d
known them were engaged in a heated debate. The debate subject: the authority of
a court to reverse an arbitration order. The victim of the adverse arbitration order:
New England Patriots quarterback Tom Brady, who had been suspended for four
NFL games for his role in Deflategate.
2
As I waited for my sandwich, it became clear that the two sandwich shop owners
had taken a deep dive into the law of arbitration. Their goal was to determine
whether a federal court decision would deprive Brady of his initial court victory
upon appellate review.
3
They’d read the federal district court’s decision reversing
1
Jordan Klepper Fingers the Pulse of Trump Supporters on Impeachment,The Daily Show(Dec.
16, 2019) (clip at 4:50), https://www.youtube.com/watch?v=X-ZFoco_1gQ.
[https://perma.cc/85SK-Q5PV] (last visted Oct. 28, 2020).
2
See David Berger, Deflategate: Tom Brady’s Battle Against the NFL and Arbitration, 50Loy. L.A. L.
Rev. 483, 483 (2017) (outlining the matter and stating: “Deflategate started in January of 2015,
when [NFL Commissioner Roger Goodell] and the NFL hired Theodore Wells Jr. (‘Wells’) and his
New York powerhouse law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP to conduct an
investigation into Brady’s alleged misconduct, and ended in July of 2016 when Brady ultimately
decided not to appeal to the United States Supreme Court after the Second Circuit ruled to uphold
the suspension ordered by Goodell.”); see alsoavid Michaels, The Triumph of Doubt: Dark
Money and the Science of Deception
1 (2020) (describing the controversy as relating to
“someone in the Patriots locker room tamper[ing] with the footballs during halftime . . . perhaps
at the direction of the team’s famed quarterback Tom Brady, who reportedly prefers underinflated
footballs.”).
3
See Berger, supra note 2, at 484–85 (“Following the conclusion of a three-month investigation
. . . Goodell . . . suspended Brady . . . . Brady appealed his suspension by requesting arbitration . . .
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
72
the arbitration result. They’d examined some of the underlying law. But they
disagreed with each other over the question of whether the federal court’s decision
would stand on appeal.
The two men knew me as a lawyer because I’d been going to their sandwich
shop for years. They saw that I was listening to their conversation, so they asked me
a few questions about the case and my predictions about the likely result on appeal.
I gave them some qualified answers and referred them to my colleague, Michael
McCann, who is a national specialist in the area.
4
But their heightened engagement
with a sophisticated area of the law in a specific context of interest for them (and
many others) sparked for me some broader curiosity about their general interest
and experiences with the law.
I pressed the subject of their engagement further. I asked if they’d ever read a
court decision before Deflategate. They said no. I asked if they’d ever heard of
arbitration as a procedure before. They said no. I asked how often they read the
fine print of the many consumer contracts they execute in the course of their
business and personal lives. They said not often.
The sum of this conversation revealed that these businessmen seemed much
more engaged with the legal rights of the well-represented and extremely wealthy
quarterback for the New England Patriots than their own. Such is the mark of a true
New England sports fan.
5
To be clear, this story is not conveyed as an effort to single out these two
businessmen or any other American who would give the same or similar answers.
All indications are that there is nothing abnormal about the responses of these two
fully-grown, adult, male, American entrepreneurs.
6
They stand with millions and
. Goodell . . . served as the arbitrator . . . [and] affirmed his previous order . . . . Brady . . . filed a
motion to vacate the arbitration award . . . . Judge Richard Berman . . . vacated Goodell’s ruling . .
. . [T]he Second Circuit overturned the lower court, which thereby re-enforced Goodell’s
arbitration decision.”) (footnotes and citations omitted).
4
See, e.g., Michael McCann, Tom Brady faces long odds after NFL wins Deflategate appeal,Sports
Illustrated (Apr. 25, 2016), https://www.si.com/nfl/2016/04/25/tom-brady-deflategate-
suspension-nfl-appeal-roger-goodell [http://perma.cc/3MXN-9F8S] (last visited Oct. 28, 2020).
5
See Consumer Behavior Knowledge for Effective Sports and Event Marketingxiv
(Lynn R. Kahle & Angeline G. Close eds., 2011) (“Sports have become a secular religion . . . . Like
religion…sports and sporting events provide a social fabric that knits people together into brand
communities . . . . This phenomenon of community enthusiasm . . .” using as an example the
Boston Red Sox quest for a 2004 World Championship.”).
6
See Tess Wilkinson-Ryan, A Psychological Account of Consent to Fine Print, 99Iowa L. Rev.1745,
1747 (2014) (“The proposition that most people do not read the small print, heed the warning labels,
or review the ‘Terms and Conditions’ links, is no longer controversial.”).
PERVASIVE INFANCY
73
millions of American adults.
We the people do not read or understand the overwhelming majority of the
consumer contracts we execute.
7
We do not pay attention to fundamental legal
rights implicated by these contracts.
8
We do not and could not protect ourselves,
our dependents, or third parties who may be injured by the transactions arising
from these devices.
9
Scholars acknowledge that our lack of engagement with contracts, contract law,
and our contract rights, has to do with our limitations in the modern world.
10
American law is not a topic most Americans understand.
11
It would be
unimaginable, for instance, that any survey of the American public would yield
answers demonstrating comprehension about core baseline legal constructs like
“consideration,” “detriment,” “disclaimer,” or “warranty.”
12
Consider that, as
7
This paper adopts the definition of consumer contracts relied upon by the American Law
Institute in its Restatement of the Law, Consumer Contracts. “Consumer contracts” are contracts
other than employment contracts that individuals enter into with businesses when individuals
are acting primarily for personal, family and household purposes. See Restatement of the Law,
Consumer Contracts § 1 (Am. Law Inst., Tentative Draft, 2019).
8
Yannis Bakos et al., Does Anyone Read the Fine Print? Consumer Attention to Standard-Form
Contracts, 43 J. Legal Stud. 1, 1 (“We track the Internet browsing behavior of 48,154 monthly
visitors to the Web sites of 90 online software companies to study the extent to which potential
buyers access the end-user license agreement. We find that only one or two out of every 1,000
retail software shoppers access the license agreement and most of those who do access it read no
more than a small portion.”).
9
See Sarah Conly,Against Autonomy: Justifying Coercive Paternalism1 (2013) (“We are
too fat, we are too much in debt, and we save too little for the future. This is no news – it is
something Americans that hear almost every day . . . . The truth is that we don’t reason very well,
and in many cases there is no justification for leaving us to struggle with our own inabilities and
to suffer the consequences.”).
10
See, e.g.,Tom Baker and Kyle D. Logue,Insurance Law and Policy 1 (3d ed. 2013) (“For most
people most of the time, insurance operates in the background of everyday life, a dimly
understood part of the social infrastructure that is often taken for granted. We have limited
attention spans and cannot focus on the inner workings of more than a small fraction of the
institutions that we come across. We are content to ignore them until they are called into use.
Insurance is one such institution.”).
11
See, e.g.,Leonard D. DuBoff and Amanda Bryan, The Law (in Plain English) for Small
Business, at xvii (5th ed. 2019) (“The law is quite complex and rapidly evolving.”).
Cf. J.H. Verkerke, Legal Ignorance and Information-Forcing Rules, 56Wm. & Mary L. Rev. 899,
902 (2015) (“People are often ignorant about the legal rules that govern the most common
transactions in their lives. Whether purchasing products and services, leasing real estate,
obtaining insurance, borrowing money, or finding employment, many laypeople have a
surprisingly poor grasp of basic legal principles.”); see also Jonathan Koehler, Train Our Jurors 304
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
74
recently as this summer, students at the university that publishes this law review
received a so-called “informed consent” form before returning to campus in the fall,
in which their school asked them to “assume the risk of exposure to COVID-19.”
13
One student, a graduate student in American law, training in the subject matter at
a level well beyond the average person, asked the commonsense but unanswered
question: “[W]hat does it mean to quote-unquote ‘assume the risk of coronavirus?’”
14
This predicament with regard to our engagement with contracts thus is not a
product of a rational choice not to choose.
15
We do not have the bandwidth; time;
or the cognitive, intellectual, and psychological capacity to engage in these
subjects.
16
In addition to our ignorance, we suffer from serious conditions that
inhibit our ability to choose, such as substance and behavior addiction. These
conditions are exacerbated by the ever-more-sophisticated strategies of large
businesses to limit our free agency as a conscious business strategy. These
strategies are designed to capture our attention and get us hooked on their platform
(Northwestern University School of Law Scholarly Commons, Faculty Working Paper No. 141,
2006) (“Jurors misunderstand rules of law, legal presumptions, and applicable standards of proof.
They rely on information that they are told not to use, ignore crucial evidentiary points, and make
inappropriate inferences.”).
13
See Daniela Allee, Some UNH Students Uneasy About ‘Consent Agreement’ Assuming Risks Around
Coronavirus on Campus, NHPR (Jul. 20, 2020), https://www.nhpr.org/post/some-unh-students-
uneasy-about-consent-agreement-assuming-risks-around-coronavirus-campus#stream/0
[https://perma.cc/6YVN-GW45].
14
Id.; see also Teddy Rosenbluth, UNH students still unclear on waiver to return to classes,Concord
Monitor (Jul. 29, 2020, 5:07:23 PM), https://www.sentinelsource.com/unh-students-still-
unclear-on-waiver-to-return-to-classes/article_db61ff26-9cc6-5de1-94a0-0bddfe11f372.html
[https://perma.cc/JA8H-GA7S] (“In a six-page document, students listed 122 questions on topics
like housing, exiting and entering buildings, testing, and university communication” about the
informed consent document proposed by the University of New Hampshire).
15
See, e.g., Cass Sunstein, How Change Happens69 (2019) (describing a series of biases, fears
and states of ignorance as leading to confusion and a desire to avoid responsibility).
16
See Ian Ayres & Alan Schwartz, The No-Reading Problem in Consumer Contract Law, 66Stan. L.
Rev.545, 546-47 (2014) (“People rarely read the forest of trees that are harvested and mailed in the
form of credit card and cell phone contracts, insurance policies, gym membership agreements, or
mutual fund prospectuses. The data also suggest that people do not read important parts of one-
time contracts such as home mortgage agreements. More recently, evidence suggests that
consumers seldom read Internet contracts, which contain many controversial provisions.”); see
also Tim Wu, The Attention Merchants: The Epic Scramble to Get Inside Our Heads 6
(2016) (“It is no coincidence that ours is a time afflicted by a widespread sense of attentional crisis
. . . one captured by the phrase ‘homo distractus,’ a species of ever shorter attention span known
for compulsively checking his devices.”).
PERVASIVE INFANCY
75
for selling us goods on terms they devise.
17
Together, all of these forces have altered the status of American adults with
regard to the law of consumer contracts. American adults are now no differently
positioned from American children in regard to their capacity to enter most, if not
all, of the consumer contracts they execute.
18
This is true even if adults are more
capable than children in many ways. This article, therefore, argues that the law
should reassign the risks between consumers and sellers in the consumer
contracting market to reflect commercial reality. It does so as a means of saving the
very institution of contract law itself, which is a central mechanism for securing
freedom of choice for Americans.
19
To do so, this article challenges the standard story about adult capacity as that
standard story becomes less plausible by the day.
20
It is a story about a
17
See, e.g., Adam Alter, Irresistible: The Rise of Addictive Technology and the
Business of Keeping us Hooked 18–19 (2017) (“Intrusive tech has also made shopping, work,
and porn harder to escape. It was once almost impossible to shop and work between the late
evening and early morning, but now you can shop online and connect to your workplace any time
of the day.”);see alsoBenjamin Kessler & Steven Sweldens, Think You’re Immune to Advertising? Think
Again, Knowledge (Jan. 30, 2018), https://knowledge.insead.edu/marketing/think-youre-
immune-to-advertising-think-again-8286 [https://perma.cc/SW36-ZXBU] (“Consumers may
need more than a caveat emptor approach to withstand the daily advertising barrage, especially
in sensitive domains such as food advertising, pharmaceutical advertising and advertising
targeting children. For example, a 2016 article in the Journal of Bioethical Inquiryfound that
pleasing imagery of the sort commonly used in American prescription drug advertisements
strongly affected consumer opinions of pharmaceutical brands. The authors saw reason for
federal regulators to mull more serious involvement.”).
18
SeeJonathan Herring, Vulnerability, Childhood and the Law 33 (2018) (“In respect of
any complex decision[,] [a]dults are rarely familiar with the key facts. That is why we seek the
advice of professionals and others.”);Margaret Jane Radin, Boilerplate8 (2013) (“In short, if
you are like most US consumers, you enter into ‘contracts’ daily without knowing it, or at least
without being able to do anything about it.”).
19
See Shoshana Zuboff, The Age of Surveillance Capitalism 220 (2019) (describing
evolving arrangements between consumers and dominant businesses as giving rise to
“uncontracts.” “The uncontract is not a space of contractual relations but rather a unilateral
execution that makes those relations unnecessary . . . . The uncontract bypasses all that social work
in favor of compulsion, and it does so for the sake of more-lucrative prediction products that
approximate observation and therefore guarantee outcomes.”).
20
See Emily Buss, What the Law Should (and Should Not) Learn from Child Development Research, 38
Hofstra L. Rev.13, 14 (2009) (“[W]hen social-science accounts of children’s capacities are offered
to distinguish the law’s treatment of children from that of adults, these accounts tend to produce
an increasingly subtle depiction of children that is contrasted with a static and idealized
caricature of adults. The contrast is particularly jarring because the social science inevitably calls
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
76
presumptively rational adult capable of rationally taking in information about the
world to forecast risk and bargain through the device of the contract in a manner
consistent with his/her/their rational interest.
21
Nothing about the American
experience of consumer contracting confirms this proposition.
This article does not, however, rest on observations about the chasm that has
opened between what the law assumes about our intellectual and cognitive
capabilities and what our capabilities have proven themselves to be, alone. The
nature of modern commerce is such that we would not be able to alter the dynamics
of the terms of consumer contracts in any given contract, even if any of us were free
of these inhibiting features of our cognition.
22
The terms come to us on a take-it-
or-leave-it basis.
23
Under these circumstances, we have no power to put our
intelligence and negotiating capabilities to the test.
The law itself, moreover, has played a powerful role in disempowering and
subverting the American consumer in this regard.
24
Because of how courts have
developed and applied the law between consumers and the drafters of terms and
conditions, the separation between the capacity of Americans to understand and
influence the content of these contracts has only widened as the volume of
attention to the gap between adult ideal and actual adult functioning.”); see also Anna Grear,
Vulnerability, Advanced Global Capitalism and Co-symptomatic Injustice: Locating the Vulnerable Subject,
in Vulnerability: Reflections on a New Ethical Foundation for Law and Politics 48
(Martha Albertson Fineman & Anna Grear eds., 2016) (“Liberal legal justice is thus constructed as
being fundamentally abstract, general, universal and relatively blind to embodied and concrete
particularities.”).
21
See, e.g., Robin Kar, Contract as Empowerment, 83 U. Chi. L. Rev. 759, 764 (2016)
(“Empowerment should also be understood as a type of capability, as Professors Amartya Sen and
Martha Nussbaum have defined that term.”) (footnote omitted).
22
See, e.g., Tess Wilkinson-Ryan, The Perverse Consequences of Disclosing Standard Terms, 103
Cornell L. Rev. 117, 118 (2017) (“Most people interact with contract law almost exclusively via
contracts of adhesion—take-it-or-leave it deals between firms and individuals.”).
23
See C & J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 173–74 (Iowa 1975) (“With
respect to those interested in buying insurance, it has been observed that . . . ‘[h]is chances of
successfully negotiating with the company for any substantial change in the proposed contract
are just about zero.’”) (citing 7 Williston on Contracts § 900, at 29–30 (3d ed. 1963)).
24
See Verkerke, supra note 12, at 903–906 (“[T]he law encourages sophisticated parties to
provide legal information to the comparatively poorly informed individuals with whom they do
business,” which these individuals then ignore to the benefit of the sophisticated parties);see also
Max N. Helveston, Judicial Deregulation of Consumer Markets, 36Cardozo L. Rev.1739, 1740 (2015)
(“Whereas the rights of consumers expanded drastically in the mid- to late twentieth century, the
last twenty years have seen many of these protections clawed back. One of the agents responsible
for this change is the judiciary, where a strongly anti-consumer jurisprudence has taken root.”).
PERVASIVE INFANCY
77
commerce has increased and taken flight over the internet.
25
To ensure that readers
understand this dynamic, this article therefore spends a substantial amount of
space discussing how the decisions responsible for the current state of modern
commercial law rest on false theories regarding human decision-making. These
theories embrace the standard story about human decision-making.
26
By adopting this perspective so robustly into the modern law of commercial
contracts, the law has provided incentives for large firms to magnify the effect of
the law’s error by drafting terms and conditions we cannot and do not understand
and cannot alter.
27
In a self-reinforcing loop, these incomprehensible “contracts,”
having been deemed “contracts” by courts, have proliferated in a market comprised
of an uncomprehending consumer public.
28
25
See Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis,
132Harv. L. Rev.1135, 1141 (2019) (“With the rise of the internet and online contracting beginning
in the mid-1990s, it finally became possible to deliver massive amounts of pre-stored boilerplate
text to multiple parties via mere hyperlinks or in other digital forms. All of these technological
developments have changed how parties typically contract. The most recent developments are
exceptional, however, in that they have generated an unprecedented explosion in the amount of
boilerplate text that is often conveyed during contract formation and in the methods and forms
in which it is conveyed.”).
26
See, e.g., Nicholas Mercuro & Steven G. Medema,Economics and the Law102–103 (2d ed.
2006) (“The assumption that economic agents are rational maximizers—that is, they make
purposeful choices so as to pursue consistent ends using efficient means—stands as a
cornerstone of modern economic theory. Under this view, individuals are assumed to have a set
of preferences that are complete, reflexive, transitive, and continuous.”);but see Stephen Macedo,
Introduction to Elizabeth Anderson, Private Government, at vii-viii (2017) (“Today’s free
market thinking—among scholars, intellectuals, and politicians—radically misconstrues the
condition of most private sector workers and is blind to the degree of arbitrary and unaccountable
power to which private sector workers are subject.”). Cf. Beverley Clough, Disability and
Vulnerability: Challenging the Capacity/Incapacity Binary, 16 Soc. Pol’y & Soc’y469, 470 (2017) (“[T]he
dominant political and legal subject presents an impoverished view of humanity, presented as
being a competent, capable, self-sufficient and self-actualising agent who ‘seeks liberty or
autonomy as a primary value.’”);but see Nicolas Cornell, A Third Theory of Paternalism,Mich. L.
Rev. 1295, 1321 (2015) (“One of the powerful elements of Thaler and Sunstein’s argument is the use
of behavior economics to convincingly cast aside John Stuart Mill’s bizarre libertarian premise
that we are always the best judges of our own well-being.”) (footnote omitted).
27
See Verkerke, supra note 12, at 904 (“Unfavorable default rules encourage legally sophisticated
parties to contract expressly for their preferred terms.”).
28
See id. at 929 (“[C]ourts routinely give effect to prospective waivers of liability for ordinary
negligence. The barrage of exculpatory clause that greet participants . . . is the predictable
consequence of these rules. The ubiquity and enforceability of these waivers transforms at least
part of the ostensibly mandatory tort rule into a legal-information-forcing default.”).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
78
The alternative portrait of the American adult in contemporary commercial life
this article thus paints challenges the core assumptions about adult capacity in the
domain of consumer contracting, where the absence of capacity is so obvious.
29
In
making this claim, this article relies upon a description of capacity articulated by
Professor Martha Nussbaum in her important work on the subject, Creating
Capabilities.
30
Professor Nussbaum explains that capacity is a function, not only of
a person’s innate capabilities, but of a person’s opportunity or ability to deploy those
capabilities within environmental limitations.
31
Capacity to contract in a free society has demanded sufficient internal self-
control to direct action and make decisions we would expect of a free person vested
with a set of important personal rights.
32
Nussbaum’s standard raises the possibility
that people with substantial internal capabilities may not have the capacity to
contract if the environment in which they are seeking to express their capacities
negates or suppresses them. Under this perspective, categories that distinguish
adults from children cease to make sense if people within each category are
similarly situated with regard to their respective capacities, so defined. This article
therefore proposes that the protections available to children be made available to
29
See Conly, supra note 9, at 63 (“Not everyone needs paternalistic interference all the time.”).
30
Martha C. Nussbaum, Creating Capabilities: The Human Development Approach25
(2011).
31
See id.at 20. Referencing the work of economist and Nobel laureate Amartya Sen, she uses
as an example the difference between a person who fasts and a person who is starving. A person
who fasts has the freedom to choose and has capability to obtain nourishment. A person who is
starving does not have the same freedom and so does not have the same capability under the
definition of the term she and Sen adopt. Id. at 25; see also Amartya Sen, Development as
Freedom75 (1999) (“A person’s ‘capability’ refers to the alternative combinations of functionings
that are feasible for her to achieve. Capability is thus a kind of freedom: the substantive freedom
to achieve alternative functioning combinations.”).
32
See, e.g., Michael Sandel, Liberalism and the Limits of Justice107 (2d ed. 2005) (“From
the standpoint of autonomy, a contract’s moral force derives from the fact of its voluntary
agreement; when I enter freely into an agreement, I am bound by its terms, whatever they may
be. Whether its provisions are fair or inequitable, favorable or harsh, I have ‘brought them on
myself’, and the fact that they are self-imposed provides one reason at least why I am obligated to
fulfill them.”); see alsoDaniel C. Pope, New Hampshire Civil Jury Instructions32.31 (2018–
2019 ed.) (“The parties to a contract must be competent. A person is competent if he or she is
capable of understanding the nature and the effect of the contract.”); Charles L. Knapp, et al.,
Problems in Contract Law: Cases and Materials586–87 (9th ed. 2019) (describing capacity
as a function of cognitive abilities and volitional activity); Nancy S. Kim, Relative Consent and
Contract Law, Nev. L.J. 165, 169 (2017) (Positing intention, knowledge and voluntariness as
indicators of consent).
PERVASIVE INFANCY
79
similarly situated adult.
The approach this article takes may seem discombobulating. Afterall, the
standard law review article addressing the relationship between “adult law” and “the
law of children” has made claims about whether children should be governed by the
laws of adulthood.
33
This article, again, reverses the standard perspective adopted
in the area of the law and children. It claims that adults should be protected as
children under circumstances arising in contract law, where no meaningful
distinction may be made between the capacities of adults and children.
34
It
maintains that this must be the conclusion we draw if capacity is to be taken
seriously as a concept with any true content.
35
This article thus seeks to expand the sympathies of the law beyond one of
society’s most beloved human archetypes: the child.
36
It maintains that if we agree
33
See, e.g., Emily Buss, What the Law Should (and Should Not) Learn from Child Development
Research, 38Hofstra L. Rev.13, 15 (2009) (“My criticism is more narrowly pointed at attempts in
the law, primarily through its courts, to justify the granting or denying of specific adult rights or
responsibilities to children.”).
34
Cf. David Bjorklund, Children’s Thinking: Cognitive Development and Individual
Differences
18 (4th ed. 2005) (describing the concept of “domain-specific abilities” as examining
capacity with reference to specific functions or tasks).
35
Cf. David P. Weber,Restricting the Freedom of Contract, 16 Yale Hum. Rts. & Dev. L.J. 51, 56
(2013) (“Under current law, contractual incapacity generally focuses on the age of the contracting
party (whether the party is a minor), or potential impairment of one’s mental capacity to
contract.”) (footnote omitted); see also Clough, supra note 26, at 476 (“The richer understanding of
vulnerability as a universal condition of our ontological experience as human beings calls into
question this division between those with cognitive impairments and those without. It sees us all
as vulnerable to relationships of domination, to structures that discriminate and allow the
unequal distribution of resources necessary to enable meaningful choice, and to cultural and
political norms which disavow and devalue.”); William Magnuson, Blockchain Democracyat
vii (2020) (“Online shopping is Amazon. Apple and Netflix have competitors, but they still manage
to exert unrivaled control over their industries. These companies rule technology and,
consequently, our lives. One cannot partake in the wonders of modern technology without going
through them.”).
36
Cf. Fyodor Dostoevsky, The Brothers Karamazov 237 (Richard Pevear & Larissa
Volokhonsky trans., 2002) (“I meant to talk about the suffering of mankind in general, but better
let us dwell only on the suffering of children. That will reduce the scope of my argument about
ten times, but even so it’s better if we keep to children. The more unprofitable for me, of course.
But, first, one can love children even up close, even dirty or homely children (it seems to me,
however, that children are never homely). Second, I will not speak of grown-ups because, apart
from the fact that they are disgusting and do not deserve love, they also have retribution: they ate
the apple, and knew good and evil, and became ‘as gods.’”).
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80
that a child is worthy of our utmost concern and sympathy generally,
37
and we
cannot draw any distinction between children and adults in a specific forum, then
the laws and policies pertaining to our treatment of children provide a useful
psychological and conceptual basis for expanding our sympathies to humans whose
capacities are no greater.
38
In the process, this article offers a new perspective on the commercial
contracting dynamic in the aftermath of an unresolved debate among contract law
authorities around draft proposals for the Restatement of Law, Third, Consumer
Contracts.
39
Central to the debate was a dispute about the continued status of
assent as an element that distinguishes contracts as a defensibly separate area of
law.
40
The Restatement drafters would remove traditional assent as an element,
replacing it with a new concept, “blanket assent,” which does not share features with
traditional conceptions of assent.
41
They claim that their proposal is a description
of the state of the law and evidence suggests that they are correct.
42
Authorities who critique the reforms the Restatement proposed have twisted
themselves in a series of contradictory theoretical knots while failing to provide
doctrinally sound solutions. They argue, on the one hand, that adults are rational
and act with agency when they “decide” to contract, and, on the other, that these
same adults rationally toss away legal rights without having any sense of the effect
37
Cf.Douglas E. Abrams, et al., Children and the Law: Doctrine, Policy, and Practice17–
18 (6th ed.) (“The status of ‘child’ is . . . complex in our society. An older adolescent may be a child
for some purposes but an adult for others. The law views children as vulnerable, incapable, and
needing protection in some circumstances, but as persons with rights, decisionmaking capacity,
and personal responsibility in others. A fifteen-year-old, for example, may not be competent to
sign a binding contract but may be prosecuted as an adult and sentenced to a lengthy prison
term.”).
38
Cf.Herring, supra note 18, at 27 (arguing that “childhood is a social construction created to
disguise the vulnerability of adults.”).
39
David Dayen, Controversial Change to Consumer Rights Postponed, The American Prospect
(May 22, 2019), https://prospect.org/economy/controversial-change-consumer-rights-postponed
[http://perma.cc/858Q-48PK] (“Such a drastic reinterpretation of law was always going to inspire
debate. Civil rights groups and consumer organizations almost unanimously opposed the
Restatement, as did a bipartisan group of 24 state attorneys general.”).
40
See, e.g., Melvin Eisenberg, The Proposed Restatement of Contracts, if Adopted, Would Drive a
Dagger Through Consumers’ Rights, Yale J. on Regul.
(Mar. 20, 2019), https://www.yalejreg
.com/nc/the-proposed-restatement-of-consumer-contracts-if-adopted-would-drive-a-dagger-
through-consumers-rights-by-melvin-eisenberg/ [https://perma.cc/XCW2-7V3Y] (arguing that
the Restatement imposes only “notice and opportunity-to-review” standard).
41
Id.
42
See infra pp. 22–24.
PERVASIVE INFANCY
81
this conduct will have on their personal legal status or upon the status of consumers
as a whole.
43
The knot needs to be untied. To do so requires honest self-reflection. This
article engages in that sort of reflection and concludes that adults do not become
meaningfully more capable in the area of consumer contracting when they cross the
threshold from age of minority to age of majority legal status. Instead, this article
concludes that the threshold is a mirage when one considers the commercial
circumstances of adult consumers. It argues that the law should treat it as such. In
doing so, it seeks doctrinal refuge within a preexisting legal category: infancy.
The "infancy" defense provides that “a natural person has the capacity to incur
only voidable contractual duties until the beginning of the day before the person’s
eighteenth birthday.”
44
The infancy defense protects “persons under the legally
designated age of adulthood from both ‘crafty adults’ and their own bad judgment.
The doctrine is based on the presumption that minors are generally easily
exploitable and less capable of understanding the nature of legal obligations that
come with contracts.”
45
This article maintains that adults are similarly situated and
so should be permitted access to the same protections.
46
43
See Eisenberg, supra note 40 (“Faced with terms that a consumer knows she will find difficult
or impossible to understand and that typically aren’t subject to revision in any event, consumers
will almost invariably decide to remain rationally ignorant of the terms.”); see also Roseanna
Sommers & Vanessa K. Bohns, The Voluntariness of Voluntary Consent: Consent Searches and the
Psychology of Compliance, 128Yale L.J.
1962, 1967 (2019) (“The most prominent critique of consent
search jurisprudence is that police searches cannot be truly voluntary if citizens do not know they
have the option of withholding consent.”) (citation omitted).
44
Restatement(Second) of Contracts § 14 (Am. Law Inst. 1981). The age of capacity was once
twenty-one under the common law. See id. at Comment a.
45
Cheryl B. Preston and Brandon T. Crowther, Infancy Doctrine Inquiries, 52Santa Clara L. Rev.
47, 52 (2012) (footnotes omitted); Melvin Aron Eisenberg, The Limits of Cognition and the Limits of
Contract, 47Stan. L. Rev.
211, 212 (1995) (“Lack of capacity exists when a party is not competent to
understand the nature and consequences of his acts, is an infant, or is under guardianship. If a
party is not competent to understand the nature and consequences of his acts, he cannot make
adequate judgements concerning his utility. If a party is an infant or under guardianship, the
law conclusively presumes that he cannot make such judgements.”). But seeConly, supra note 9,
at 40 (“When someone accurately assesses my abilities, though, and finds me lacking in some
respects, it is very hard for me to argue that I have been degraded, and thus disrespected.”);
46
See, e.g.,Martha Albertson Fineman, The Autonomy Myth 8 (2004) (“At the beginning of
the twenty-first century we find an American society that, at least in its political rhetoric and
imagination, is seriously incapacitated in dealing with some of the most important social welfare
problems facing its citizens today.”).
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Some may view this proposal as insulting or humiliating.
47
That view fails to
provide proper respect for the capacities of children. It also implies that human
vulnerability corresponds with lesser standing under the law.
48
Such a view denies
the accomplishments and standing of many remarkable, yet vulnerable, adults,
ranging from Stephen Hawking to Judy Garland to Martin Luther King, Jr., to
Hellen Keller.
49
It is also inconsistent with laws that demand the removal of
systemic barriers to equal status and dignity for the disabled population, for those
with pre-existing conditions, and for groups subject to historical discrimination,
including “poor people.”
50
Law so conceived rejects the notion that cruelty is the
response law should adopt when interfacing with vulnerability. That notion
animates this article.
Nothing about such an approach is a slight against children either.
51
Brain
development in children is a staggeringly remarkable process.
52
Many children are
47
Cf.Charles Fried, Contract as Promise20–21 (2015) (“If we decline to take seriously the
assumption of an obligation because we do not take seriously the promisor’s prior conception of
the good that led him to assume it, to that extent we do not take him seriously as a person. We
infantilize him, as we do quite properly when we release the very young from the consequences of
their choices.”); see Cornell, supra note 26, at 1297 (describing and responding to claims that
paternalism is an insult.).
48
Cf. Herring, supra note 18, at 65 (“Vulnerability is often seen in public discourse as an
undesirable state to be in. It implies weakness and an inability to look after yourself . . . . This
chapter will claim the opposite. We should rejoice in our vulnerability. It [is] our pretence that it
is only children who are vulnerable and we adults who need to grow out of vulnerability, that is a
tragedy.”).
49
Each of these individuals were world leaders who were vulnerable by virtue of illness or
prejudice or both.
50
Adam Cohen, Supreme Inequality xxii (2020) (Prior to the Warren Court era, “[p]oor
people had always been seen through demeaning stereotypes—as lazy, immoral, dangerous, or
biologically deficient—and they had often been victims of severe discrimination.”).
51
Cf. Anne C. Dailey & Laura A. Rosenbury, The New Law of the Child, 127 Yale L.J. 1448, 1451
(2018) (“[The] new law of the child situates children’s interests within a normative universe that
values the extraordinary richness and variety of children’s lives.”); John M. Lewis & Stephen E.
Borofsky, Claremont I and II—Were They Rightly Decided, and Where Have They Left Us?, 14U.N.H. L.
Rev.1, 2 (2016) (“Our children embody the enduring wonder of life. They hold our hopes for the
future. We want them to be happy, to succeed in whatever they do both in work and in play. We
want them to contribute to our country and the world in constructive ways.”).
52
See Erin Clabough, Second Nature: How Parents Can Use Neuroscience to Help
Kids Develop Empathy, Creativity, and Self-Control27 (2019) (“Your child’s brain is not a
blank slate at birth. Fetal behavior begins as reflex movements and it gradually expands into
behavior that is distinct and responsive as the birth date nears. Even during the birth process, he
is already collecting sensory information, evaluating his environment, using sophisticated neural
PERVASIVE INFANCY
83
more capable than adults when capacity is linked to specific tasks or specific
virtues.
53
I’m less capable than my nine-year-old son when it comes to bouncing
around in a trampoline gym. And my imagination is inferior. And my ability to
learn languages is inferior. And I’ve suffered hits to idealism that he hasn’t.
54
But
when it comes to fixing a broken lawnmower, we are equally inept.
55
The question
is how we will be treated from venue-to-venue based upon a realistic assessment of
capacities, incorporating external and internal limitations.
56
In what follows, Part I presents the long-standing dilemma facing contract law:
the uncomfortable status of consumer contracts as legal arrangements worthy of
enforcement before our courts under theories of contract that demand mutual
assent.
57
It draws an uncontroversial conclusion: contract law and contract law
machinery, and—perhaps more impressive—constantly remodeling his brain in response to what
he senses.”).
53
Heidi Priebe, 10 Things That Children Do Better Than Adults,Thought Catalog(May 27, 2014),
https://thoughtcatalog.com/heidi-priebe/2014/05/10-things-that-children-do-better-than-
adults/ [https://perma.cc/NWB3-VBVC] (listing ten ways in which children have greater capacity
than adults, including: “Children, much more so than adults, understand that interdependence is
a natural part of what it means to be human.”); see also Lexi Becker Austin,Five Reasons Why Kids
Are Better Than Adults, Odyssey (Nov. 11, 2015), https://www.theodysseyonline.com/5-reasons-
why-kids-are-better-than-adults [https://perma.cc/4DTS-2THR] (observing that their hearts are
bigger than ours).
54
Cf. Jack Hodgson, Belittling activists like Greta Thunberg because they are young is a mistake,Wash.
Post (Feb. 19, 2020), https://www.washingtonpost.com/outlook/2020/02/19/belittling-activists-
like-greta-thunberg-because-they-are-young-is-mistake/ [https://perma.cc/H582-SCAV] (“Greta
Thunberg and other young activists have become inspiring leaders for a generation because of
their climate activism, but their youthfulness has been used by politicians who wish to ignore their
message.”).
55
Some scholars denigrate childhood and its qualities without demonstrating true
engagement with the stage of life. SeeConly, supra note 9, at 41 (making undifferentiated claims
about adult superiority to children and about the capabilities of children).
56
Cf. Kay Schriner & Richard K. Scotch, The ADA and the Meaning of Disability, in Backlash
Against the ADA 165 (Linda Hamilton Krieger ed., 2006) (“In the sociopolitical model, disability
is viewed not as a physical or mental impairment, but as a social construction shaped by
environmental factors, including physical characteristics built into the environment, cultural
attitudes and social behaviors, and the institutionalized rules, procedures, and practices of private
entities and public organizations.”).
57
See Friedrich Kessler, Contracts of Adhesion—Some Thoughts about Freedom of Contract, 43
Colum. L. Rev. 629, 631 (1943) (“The development of large scale enterprise with its mass
production and mass distribution made a new type of contract inevitable—the standardized mass
contract. A standardized contract, once its contents have been formulated by a business firm, is
used in every bargain dealing with the same product or service. The individuality of the parties
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84
foundations have diverged to an indefensible extent.
58
Part II argues that the true source of this divergence is the law’s denial about
the pervasive reality of adult vulnerability and incapacity. It traces the law’s failure
to account for this reality to Justice Oliver Wendell Holmes’ perspective on the law,
one that permits law to be a mechanism for the perpetuation of human cruelty.
59
It
argues that decisions by modern adherents of Holmes share a perspective on
human frailty that Holmes exhibited in the decision that stains Holmes’ legacy.
60
That decision, Buck v. Bell, has been described as “the dark legal landmark” in which
the United States Supreme Court “upheld eugenic sterilization and allowed the
state to sterilize Carrie Buck, a young woman wrongly labeled ‘feebleminded.’”
61
It
was premised on a dehumanized view of the law, one that reveled in the power of
the law to crush people. This article argues that humans deserve greater kindness
from their laws than this tradition provides.
62
It takes a position toward humans
engaged in consumer contracting that is consistent with the liberal perspective.
63
It
which so frequently gave color to the old type contract has disappeared.”).
58
See id. at 632 (“The weaker party, in need of the goods or services, is frequently not in a
position to shop around for better terms, either because the author of the standard contract has a
monopoly . . . or because all competitors use the same clauses. His contractual intention is but a
subjection more or less voluntary to terms dictated by the stronger party, terms whose
consequences are often understood only in a vague way, if at all. Thus, standardized contracts are
frequently contracts of adhesion; they are à prendre ou à liasser.”) (footnote omitted).
59
Cf. Lina M. Khan, The Ideological Roots of America’s Market Power Problem, 127Yale L.J. F.960,
964 (2018) (exploring the genealogy of ideological failures with American antitrust law).
60
See Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice
Holmes2 (2000) (“Champions of both the mild brand of skepticism (utilitarian pragmatism) and
the piquant (law as power) are the heirs of Holmes.”).
61
Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the
Sterilization of Carrie Buck 1 (2017) (“On May 2, 2002, the governor of Virginia offered a
‘sincere apology’ for his state’s ‘participation in eugenics.’ In an effort to improve the genetic
quality of its population, Virginia forcibly sterilized at least 7,450 ‘unfit’ people between 1927 and
1979.”).
62
See, e.g., id. at 4 (proposing that “libertarian benevolence” be “enlisted in the interest of
vulnerable third parties”); cf. Buck v. Bell, 274 U.S. 200, 207 (1927) (arguing that law may be
deployed to cause further harm to vulnerable populations); Stephen A. Siegel,Justice Holmes, Buck
v. Bell, and the History of Equal Protection, 90 Minn. L. Rev.106, 107–08 (2005) (collecting critiques
of the cruelty of the law in regard to vulnerable populations).
63
Cf. John Locke, Some Thoughts Concerning Education 27 (Ruth W. Grant & Nathan
Tarcov eds., 1996) (“Before they can go, they principle them with violence, revenge, and cruelty.
Give me a blow that I may beat him, is a lesson which most children every day hear: and it is thought
nothing because their hands have not strength to do any mischief . . . . And if they have been taught
when little to strike and hurt others by proxy, and encouraged to rejoice in the harm they have
PERVASIVE INFANCY
85
would seek to limit the illiberal and cruel influence of Holmes’ perspective.
64
Part III then proposes that contract law may be saved through a reframing of
our notion of the capacities of parties to commercial contracts. It does so by
drawing upon the infancy defense.
65
It outlines the contours and principles
underlying the law of infancy. It places the adult and the child side-by-side and
demonstrates that adults and children are similarly situated in terms of their
capacity to contract as consumers when adulthood is viewed with a greater level of
care and sophistication than the law now permits. It then defends the solution this
article proposes: the removal of a presumption of adult capacity, with reference to
the standard explanations of contract law theory. It maintains that this solution
would provide a systemic, doctrinal solution necessary to save consumer contract
law from its current predicament.
II. THE CONTRACT LAW PROFESSOR’S PERENNIAL CONUNDRUM
Each year, law professors stand at lecterns in large lecture halls and begin the
process of teaching law students a course called Contracts.
66
As with many courses,
the law professor must convince students that their value as lawyers will be
connected, in part, to their ability to navigate a field where a principal source of
authority, the decisions of judges, consistently defy principled, logical
explanation.
67
They must do so where “one can learn contract law only if one can
brought upon them and see them suffer, are they not prepared to do it when they are strong
enough to be felt themselves and can strike to some purpose?”); see alsoJohn Stuart Mill, On
Liberty, in On Liberty, Utilitarianism, and Other Essays 61 (Mark Philp & Frederick Rosen
eds., 2015) (“In some such insidious form there is at present a strong tendency to this narrow
theory of life, and to the pinched and hidebound type of human character which it patronizes.”).
64
Cf. Jerome Frank, Why Not a Clinical Lawyer-School?, 81U. Pa. L. Rev.907, 918 (1933) (proposing
that the law student “be made to see, among other things, the human side of the administration
of justice,” including problems caused by human error and frailty).
65
See supra note 44 (defining the infancy defense).
66
See Development in the Law—Unjust Enrichment, 133 Harv. L. Rev. 2062, 2062 (2020) (“In
American law schools, first-year students learn about the basic obligations of private law through
two required classes: contracts and torts.”). I must now acknowledge that COVID-19 will change
the physical description of this experience in many ways, in the hope that some of the older ways
will return sometime in the future.
67
See Stephen A. Smith, Contract Theory 11 (2007) (defining the intelligibility of any
contract law theory in terms of “[c]onsistency in the sense of non-contradictoriness”.); seeEric A.
Posner, Contract Law and Theory 7 (2011) (“Contract law is part of the common law, which
was, and continues to be, created by judges rather than by legislatures.”); but seeRadin, supra note
18, at 19 (“The notion that a coerced or deceptive or completely covert divestment of an entitlement
might qualify as a ‘contract’ is paradoxical.”); Randy E. Barnett, A Consent Theory of Contract, 86
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
86
understand the theoretical considerations that inform it.”
68
Among other things, law students learn that contract law is different from torts
or property or criminal law because it addresses what makes contract behavior
unique: contract law governs the voluntary, consensual series of acts and decisions
that cause people to engage with each other for a specific, mutually beneficial
purpose.
69
This distinguishing feature can only exist if both parties to a contract (or
all parties) are able to act with volition and provide assent.
70
These elements of
contract law have remained fundamental to theoretical defenses of contract law,
even while explanations regarding why contracts are worthy of legal recognition
have varied over time.
71
Students will confront these elements, even if they rewind to the earliest stages
of Western thought. Aristotle sought to ground all worthy human action, including
his understanding of the purpose of contracts, in notions of virtue.
72
Under this
conception, “[m]aking a contract . . . . was an exercise of the virtue of liberality by
Colum. L. Rev. 269, 269 (1986) (“The five best known theories or principles of contractual
obligation—the will theory, the reliance theory, the efficiency theory and the bargain theory—
each have very basic shortcomings.”).
68
Posner, supra note 67, at 2; see also Barnett, supra note 67, at 269 (“We look to legal theory to
tell us when the use of legal force against an individual is morally justified. We look to contract
theory, in particular, to tell us which interpersonal commitments the law ought to enforce.”).
69
See, e.g.,Smith, supra note 67, at 103 (defending promissory theories of contract law on the
ground that it is best suited to explain contract law as “an autonomous body of law, distinct from
tort law and other branches of private law.”);Posner, supra note 67, at 1 (“Contract law is a set of
rules related to the social practice of promising. Promises are important because they are the
devices that people use to commit themselves to take actions in the future.”);Radin, supra note
18, at 19 (“Our legal system adheres to an ideal of private ordering and its importance to individual
freedom. Within this system, freedom of contract is a core value, and ‘involuntary’ or ‘unfree’
contract is a contradiction in terms.”).
70
See Posner, supra note 67, at 1 (“All of commerce and much else depends on this capacity to
commit.”); see Radin, supra note 18, at 19–24 (arguing that contract law requires voluntary consent,
a state of being inconsistent with, inter alia, sheer ignorance).
71
See, e.g., Smith, supra note 67, at 178 (arguing that simultaneous exchanges in which one
cannot identify an offer and acceptance are not contracts and so should not be deemed contracts);
see also Sommers and Bohns, supra note 43, at 2239–41 (describing the philosophical and historical
foundations of “consent” and its relationship to “autonomy.”).
72
Aristotle, Nicomachean Ethics1 (Terrence Irwin trans., 2d ed. 1999) (“Suppose, then, that
the things achievable by action have some end that we wish for . . . . Clearly, this end will be the
good, that is to say, the best good.”); id. at 9 (“Now each function is completed well by being
completed in accord with the virtue proper [to that kind of thing]. And so the human good proves
to be activity of the soul in accord with virtue, and indeed with the best and most complete virtue,
if there are more virtues than one.”).
PERVASIVE INFANCY
87
which one enriched another, or of the virtue of commutative justice by which one
exchanged things of equal value.”
73
Aristotle tied the capacity to engage in this
manner to maturity, which he deemed essential to the capacity of a person to
become a rational decision-maker.
74
This idea remained true even as John Locke, Jean-Jacques Rousseau, and John
Stuart Mill reframed the relationship between contract theory and freedom for
modernity. In differing degrees, they set the capacity to contract at the foundation
of their defense of the principles of freedom and equality, the pillars of liberal
democracy.
75
For these foundational thinkers, all justified government action relied
on an adult’s standing as a free-thinker, capable of rationally bargaining one’s
natural freedom away to society in exchange for the benefits of a cooperative life in
73
See James Gordley, The Philosophical Origins of Modern Contract Doctrine 7
(1991).
74
See Aristotle, supra note 72, at 3–4. The notion that contracts carry moral obligations that
are worthy of legal recognition persist to this day and explain a substantial degree of behavior
within the area of contract law.Gordley, supra note 73, at 9 (“It is indeed surprising that our
modern legal doctrines were founded originally on philosophical ideas discarded long ago.”);see
also Matthew A. Seligman, Moral Diversity and Efficient Breach, 117 Mich. L. Rev. 885, 887 (2019)
(“And because people also tend to think that breaking a promise is wrong, they think they are
subject to a corresponding moral obligation to perform the contract.”); Elizabeth Anderson,
supra note 26, at 5 (2019) (arguing that Adam Smith envisioned a free market system as one that
rests on the proposition that “a successful bargain requires each to consider how they could bring
some advantage to the other.”) (emphasis in the original).
John Locke, Second Treatise of Government 42 (1980 ed.) (“GOD, having made man
such a creature, that in his own judgment, it was not good for him to be alone, put him under
strong obligations of necessity, convenience, and inclination to drive him intosociety as well as
fitted him with the understanding and language to continue to enjoy it.”);see alsoJohn Stuart
Mill On Liberty inOn Liberty, Utilitarianism and Other Essaysat 15 (2015 ed.) (“But there is
a sphere of action in which society as distinguished from the individual, has, if any, only indirect
interest; comprehending all that portion of a person’s life and conduct which affects only himself,
or it also affects others, only with their free, voluntary, and undeceived consent and
participation.”);see alsoHolly Brewer, By Birth or Consent
8 (2005) (“The concept of an ‘age
of reason’ became critical for determining who could give meaningful consent. . . . The changing
status of childhood was a consequence of this emphasis on an age of reason, which arose as part
of the new basis for political legitimacy.”);but seeH.L.A. Hart, Law, Liberty and Morality32-
33 (1963) (“No doubt if we no longer sympathize with [Mill’s criticism of paternalism] this is due,
in part, to a general decline in the belief that individuals know their own interests best, and to an
increased awareness of a great range of factors which diminish the significance to be attached to
an apparently free choice or to consent. … Underlying Mill’s extreme fear of paternalism there
perhaps is a conception of what a normal human being is like which now seems not to correspond
to the facts.”).
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88
society.
76
The conceptual design of our government rose from this perspective. In the
State of New Hampshire, for instance, the state’s eighteenth and nineteenth
century founders framed the basis of constitutional government in overtly
contractual terms.
77
More recently, Professor Charles Fried reprised this
perspective for contemporary times, stating, “It is the first principle of liberal
political morality that we be secure in what is ours—so that our persons and
property not be open to exploitation by others, and that from a sure foundation we
may express our will and expend our powers in the world.”
78
For Fried, Locke, and
Mill (and to a lesser degree Rousseau), freedom rests upon a system that permits a
person to be left alone to accomplish what his capacities permit and to suffer the
76
See Locke, supra note 75, at 52 (“M[en] being, as has been said, by nature, all free, equal, and
independent; no one can be put out of this estate, and subjected to the political power of another,
without his own consent. The only way whereby anyone divests himself of his natural liberty, and
puts on the bonds of civil society, is by agreeing with other men to join and unite into a community
for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of
their properties, and a greater security against any, that are not of it.”); see also Willi Paul Adams,
The First American Constitutions 24 (1973) (“It is certain, in theory,” John Adams wrote in May
1776, “that the only moral foundation of government is, the consent of the people. But to what an
extent shall we carry this principle?”) (quotations and citation omitted); Jean-Jacques Rousseau,
On the Social Contract 110 (Roger D. Masters ed., Judith R. Masters trans., 1978) (“There is only
one law that, by its nature, requires unanimous consent. That is the social compact. For civil
association is the most voluntary act in the world. Since every man is born free and master of
himself, no one, under any pretext whatever, can subject him without his consent. To decide that
the son of a slave is born a slave is to decide that he is not born a man.”).
77
See .H. Const.pt. I, art. III; pt. I, art. I (“All men are born equally free and independent:
Therefore, all government, of right, originates from the people, is founded in consent, and
instituted for the general good.”); see also Lawrence Friedman, The New Hampshire
Constitution41 (2d ed. 2015) (“The remainder of this article reflects a Lockean conception of the
social contract, the notion that the people consent to be governed and that they have established
government to promote the common good.”). “Consent” as a constitutive imperative is present
throughout our constitutional governments. See Akhil Reed Amar, The Consent of the Governed:
Constitutional Amendment Outside Article V, 94 Colum. L. Rev.457, 473 (1994) (noting the demand of
popular “consent” at the root of arguments supporting the United States Constitution and the
Declaration of Independence); see also Donald S. Lutz, The Theory of Consent in the Early State
Constitutions, 9Publius11, 13 (1979) (“My purpose in this article is to illustrate the extent to which
the early state constitutions were built upon a relentless pursuit of direct consent by the majority.
. . .” and tracking the use of contract language in the early state constitutions).
78
Charles Fried, Contract as Promise: A Theory of Contractual Obligation7 (2d ed.
2015).
PERVASIVE INFANCY
89
responsibility of failures arising from free, active, and personal choice.
79
Fried
describes this as the “liberal ideal.”
80
This ideal is also shared by theorists who assess
law from a more consequentialist perspective, including proponents of the Law and
Economics school.
81
Perhaps the clearest description of the contract ideal is supplied by Professor
Martha Albertson Fineman, who writes: “The underlying and essential elements in
a contractual relationship are [1] that two or more autonomous individuals with
capacity [2] voluntarily agree (consent) to be bound by [3] some mutually bargained
for benefit or trade (exchange).”
82
The closer the law adheres to these requirements,
the likelier the law of contracts assures those agreements limiting agency are
accomplished at a level of agency and rational understanding, consistent with a
strong commitment to individual liberty.
83
As Justice Cardozo once wrote in regard
to the proper application of contract law and its demands: “We are not to suppose
that one party was to be placed at the mercy of the other.”
84
79
Id. at 8.
80
Id. at 7. Professor Barnett’s “consent theory” is a modification of this principle but is no less
committed to the notion that evidence of capable individual agreement stands at the heart of a
workable system of contract law.See Randy E. Barnett, A Consent Theory of Contract, 86Colum. L.
Rev. 269, 304 (1986) (arguing that “consent” rather than “intent” or “will” provides the best
theoretical basis for a justifiable theory of contract law).
81
See Posner, supra note 67, at 1 (“Moral philosophers have pondered the basic questions about
private and social cooperation for centuries, but the modern way of thinking about contract law
is heavily influenced by economics. According to this approach, people are rational and enter into
contracts in order to cooperate with each other. In a cooperative relationship, both sides of the
transaction expect to do better than if each acted alone.”).
82
Fineman, supra note 46, at 219-20; see also id. at 225 (“In private contract theory, one is
legitimately bound because one has agreed to be bound by the terms of the contract. Content to
terms usually is expressed, but may be implied from one’s actions.”) (citation omitted); see also
Milena Popova, Sexual Consent at 18 (2019) (“Both the “yes means yes” and “no means no”
approaches to consent place significant emphasis on individual agency in consent negotiations.
At their core, they assume that we are all free individuals who at all times are able to exercise our
agency without others exercising power over us; know and understand our own desires, and
express them clearly; make ourselves understood to others, and in turn understand them, thereby
reaching a mutual agreement through negotiation.”).
83
See Popova, supra note 82, at 18; see alsoRobert Nozick, Anarchy, State and Utopia 50
(2013 ed. 1974) (“A person’s shaping of his life in accordance with some overall plan is his way of
giving meaning to his life; only a being with the capacity so to shape his life can have or strive for
a meaningful life.”).
84
Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91 (1917); see also Morin Bldg. Products Co. v.
Baystone Const. Inc., 717 F.2d 413, 415 (7th Cir. 1983) (Posner, J.) (acknowledging that “paternalism”
may be appropriate “to protect the weaker party” to a contract); see also Philip Pettit,
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
90
But then one opens a casebook (the principle mechanism within the American
legal academy for teaching students the law) and discovers how far these powerful
contract law principles have withered in practice before courts in recent times.
85
Meyer v. Uber Technologies, Inc., which students confront early in one prominent
Contracts casebook, provides such an example.
86
Meyer is a provocative decision by
an important federal appellate court examining litigation between a consumer and
a well-known technology firm, Uber. The case involved an allegation by a consumer
that Uber engaged in price-fixing.
87
Uber moved to send the case to arbitration,
noting that its Terms of Service included a mandatory arbitration clause.
88
The
Terms of Service were included in a hyperlink on the website where a user registers
for an Uber account.
89
The registration page stated, “by creating an Uber account,
you agree to the TERMS OF SERVICE & PRIVACY POLICY.”
90
A depiction of this
microscopic demand is included in an addendum demonstrating how the
statement is depicted to the registrant.
91
The process of registering did not require
the registrant to click through the Terms of Service before finalizing registration.
92
The plaintiff in the case, a consumer, testified that he never saw or read the
Terms of Service.
93
These Terms of Service ran seventeen single-spaced lines long
and included references to “binding arbitration,” “equitable relief,” “competent
jurisdiction,” “infringement,” “misappropriation,” “intellectual property,” “right to
trial by jury,” and “consolidate.”
94
The question Uber raised was whether the
plaintiff’s registration resulted in his agreement to accept the Terms of Service as a
matter of contract law, and so the terms requiring that he submit any dispute to
mandatory, binding arbitration.
95
Republicanism: A Theory of Freedom and Government 52-54 (1997) (describing freedom
dependent upon a state’s capacity to eliminate power imbalances that permit one party to
dominate another).
85
See, e.g., Charles L. Knapp, Nathan M. Crystal & Harry G. Prince, Problems in
Contract Law: Cases and Materials(9th ed. 2019) (hereinafter “Knapp”).
86
Id. at 21 (excerpting Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017)).
See id.
88
Id. at 21-22.
89
Id. at 22.
90
Id. (herein and elsewhere, "Terms of Service").
91
Id. at 31.
92
See id. at 22-23.
93
Id. at 23.
94
Id.
95
See id. at 23-24.
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91
No party litigated the comprehensibility of the Terms of Service in a manner
that caused the issue to be raised by the Second Circuit Court of Appeals in its
decision. Instead, the case, for the Court, turned on whether the law of contracts
bound the plaintiff to the Terms of Service. In resolving the question, the Court
wrote: “before an agreement … can be enforced, the district court must first
determine whether such agreement exists between the parties.”
96
“To form a
contract, there must be mutual manifestation of assent, whether written or spoken
word or by conduct.”
97
As an extension, the Court added that a party is not bound
by “inconspicuous contractual provisions of which he is unaware, contained in a
document whose contractual nature is not obvious.”
98
The Court proclaimed that
these rules persist whether a contract is online or not.
99
In applying these principles, the Court surveyed examples of electronic
contracts that required a party to take some physically recordable step and/or steps
to demonstrate engagement with the contractual provision at issue.
100
Despite a
description of available alternative technology which required a greater level of
demonstrated interface between the consumer and form terms, the Court reversed
the District Court’s ruling, finding that the Terms of Service were sufficiently
conspicuous so as to put the plaintiff on notice of them, whether there was any
evidence that the plaintiff was on actual notice or not.
101
And so, the Court drew
from this conclusion a decision that the facts of the case sufficiently demonstrated
a “manifestation of mutual assent” to bind the plaintiff to a waiver of a right. That
right, the right to a jury trial, by the way, was of sufficient importance that James
Madison and company inserted it into the United States Constitution under the
Seventh Amendment.
102
None of the Court’s analysis explains how “mere awareness” is a substitute for
“the manifestation of mutual asset at the core of traditional contract doctrine.”
103
One can be aware of many proposals and choose, through silence, to reject them.
Indeed, true respect for freedom and the rights that define freedom and autonomy
96
Id. at 25 (citation omitted).
97
Id. (quotations and citation omitted).
98
Id. (quotations and citation omitted).
99
See id. at 25-26 (quotations and citation omitted).
100
See id. at 26 (citations omitted) (describing “clickwrap” and “browsewrap” provisions).
101
See id. (“Clickwrap” agreements require a user to click agreement to the terms presented as
such).
102
See id. at 28-30; see also U.S Const amend. VII (the right to a civil trial by jury shall be
preserved in suits at common law).
103
See Verkerke, supra note 12, at 936 (arguing that it is not).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
92
under our laws would leave the promisee as free as possible from enforceable
restrictions imposed by others, demanding consent before permitting contract law
to narrow those freedoms. The Court’s decision to the contrary instead assumes
consent by presuming actual notice. Beyond conflating materially distinct states of
mind, the Court's analysis thus rests on the dubious proposition that the presence
of terms on a website implies that a consumer will ever pay attention to them at any
level of engagement. It is an analysis that does not square with the elevated prose
of Charles Fried and other liberal theorists who place the act of contracting at the
very foundation of notions of self-determination in a free society.
104
As they get deeper into the subject matter of contracts, reflective students will
look back at the Meyer decision and ask: Why would the Second Circuit Court of
Appeals reverse the factual determination of a federal district court that tiny print
in a non-clickthrough, electronic registration software gives rise to the
manifestation of mutual assent? They may remark on how the Court’s decision does
very little to connect its theoretical notion of “notice” with the concept of a
“manifestation of mutual assent,” the central traditional contract law doctrine it
claims remains in place regardless of the electronic forum in which so many
contracts are now conducted. They may then see how history provides disturbing
news about the source of Meyer's strange analysis.
III. THE GENEALOGICAL POISON OF JUSTICE HOLMES’ JURISPRUDENCE
OF CRUELTY
As students read on, they will discover that the Second Circuit's approach has
roots.
105
In the late 19
th
century, Oliver Wendell Holmes led a movement that sought
to shut the intentions of the parties out of contract questions altogether.
106
This
movement was grounded in a general rejection of a system that attended to the
subjective desires of the contracting parties.
107
It also caused the law to develop
104
See Fried, supra note 78.
105
Cf.F.A. Hayek, The Road to Serfdom57 (Bruce Caldwell ed. 2007) (1944) (“Few discoveries
are more irritating than those which expose the pedigree of ideas—Lord Acton.”) (citation and
footnote omitted).
106
SeeKnapp, supra note 85, at 44 (“At one point the law may have looked for a true, or ‘subjective’
intention on the part of the promisor. In any event, at least since Oliver Wendell Holmes’s lectures
and writings in the 1880s began to have their effect, both the rhetoric and the actions of courts
and writers have stressed an ‘objective theory’ of contract obligation, by which one is ordinarily
bound, not by her ‘secret intent’ to that effect, but by the reasonable interpretation of her words
and actions.”).
107
See id. (“In his famous 1881 set of lectures, Holmes stated, The Law has nothing to do with the
actual state of mind of the parties’ minds.”) (quotations and citation omitted); see also id. (“. . .
PERVASIVE INFANCY
93
such that a contract could be interpreted to create obligations that neither party to
a contract intended or desired.
108
Holmes is, of course, presented as a pivotal figure in the life of the common law
of contracts. First-year law students will have little reason to challenge his standing
and the legitimacy of his influence over American law in a contract law course,
without more.
109
As one scholar commented, “[t]o bring his work into question in a
basic way is simultaneously to question to some degree much of what American law
has almost explicitly accepted as its model and dominant image and much of what
it has incorporated into its tradition.”
110
Given characterizations such as these, it should not be surprising, and, indeed,
it is provable, that results in cases like the Meyer decision are traceable to Holmes’
perspective on the common law. That perspective is a reflection of Holmes’ view of
the intrinsic value of human life and freedom. Holmes’ view was brutal and unkind.
William James, Holmes’ contemporary,
111
noted about his friend:
The more I live in the world, the more cold-blooded, conscious egotism and conceit of
Inquiry into the subjective intentions of the parties would greatly enhance the difficulty of
enforcing contracts”) (quoting Oliver Wendell Holmes, The Theory of Interpretation, 12 Harv. L.
Rev. 417, 419 (1899) (quotations omitted); Daniel P. O’Gorman, Learned Hand and the Objective Theory
of Contract Interpretation, 18 U.N.H. L. Rev. 63, 78 (2019) (“Holmes was a particularly strong advocate
of the objective theory of contracts.”); Grant Gilmore, The Death of Contracts 39 (describing how
“Holmes and his successors substituted an ‘objective’ approach to the theory of contract for
‘subjectivist’ approach which the courts had--almost instinctively…been following’) (footnote
omitted).
108
See Knapp, supra note 85, at 397 (Noting that to hold parties to interpretations of contracts
neither held is to “hold justice up to ridicule.”) (quoting 3 Corbin on Contracts § 539 (1960).
109
Cf. Yosal Rogat, Mr. Justice Holmes: A Dissenting Opinion, 15 Stan. L. Rev.3, 4-5 (1962) (“Holmes’
name is uniquely weighty. To describe his commanding stature and influence apparently requires
language both oracular and portentous.”) (footnotes omitted); see alsoJed Lewinsohn,Paid on Both
Sides: Quid Pro Quo Exchange and the Doctrine of Consideration, 129 Yale L. J. 690, 695 (2020)
(describing Holmes as one of “two giants” in the law of contracts).
110
Rogat, supra note 109, at 5. Questioning authority is important when assessing the law with
reference to its monumental sources.See, e.g., Michael S. Lewis,Confronting a Monument: The Great
Chief Justice in an Age of Historical Reckoning, 17U.N.H. L. Rev.315, 326 (2019) (“We . . . are a legal
culture that gives credence and authority to great decisions by great judicial figures.”).
111
See Louis Menand, The Metaphysical Club1 (2001) (“…Oliver Wendell Holmes, William
James, Charles S. Pierce, and John Dewey. These people had highly distinctive personalities, and
they did not always agree with one another, but their careers intersected at many points”); id. at
88 (“…James often spoken of pragmatism, the philosophy he largely created, as the equivalent of
the Protestant Reformation.”);Bertrand Russell, The History of Western Philosophy
811
(1972 ed. 1944) (Writing of James: “His religious feelings were very Protestant, very democratic,
and very full of a warmth of human kindness.”).
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94
people afflict me. . . . All the noble qualities of Wendell Holmes, for instance, are
poisoned by them, and friendly as I want to be towards him, as yet the good he has done
me is more in presenting me something to kick away from or react against than to
follow and embrace.
112
Holmes had contempt for charity, embraced a caste system view of human
society, and viewed human life as a power struggle in which winners and losers arise
from operation of this struggle and whose results are self-justifying.
113
His attitude
of repulsion toward the common experiences of humankind bled into his attitude
toward his own profession. He had a withering distaste for attorneys and the facts
and practicalities of the disputes that they presented in court.
114
Holmes’ decisions
reflected an unwillingness to listen to their arguments and to justify his decisions
against a record developed through the judicial process.
115
112
See Cohen, supra note 61, at 224.
113
See id. at 223-26; see also id. at 229 (“He generally sided with the most powerful organizations
or individuals, on the theory that they should be allowed to use their power as they saw fit.”). For
one definition of “caste,”see Isabel Wilkerson, Caste: The Origins of Our Discontents 17
(2020) (“A caste system is an artificial construction, a fixed and embedded ranking of human value
that sets the presumed supremacy of one group against the presumed inferiority of other groups
on the basis of ancestry and often immutable traits, traits that would be neutral in the abstract
but are ascribed life-and-death meaning in a hierarchy favoring the dominant caste whose
forebears designed it.”).
See, Cohen, supra note 61, at 228 (Holmes described the legal profession as requiring “a
greedy watch for clients and practice of shopkeepers’ arts” mixed with mannerless conflicts over
often sordid interests.”) (quotations omitted); id. at 231 (“As we don’t shut up bores, one has to
listen to discourses dragging slowly along after one has seen the point and made upon one’s
mind…”). As I will demonstrate, this sort of contempt has been inherited by judges like Frank
Easterbrook of the Seventh Circuit Court of Appeals. Compare A Dialogue with Federal Judges on the
Role of History in Interpretation, 80G.W. L. Rev. 1889, 1890 (2011) (“JUDGE EASTERBROOK:Law
office history is an oxymoron. I don’t pay much attention to purported history in legal briefs
because people are always taking things out of context. Not that the lawyers generally know
enough to understand original context. They may not even know which particular kind of mistake
they’re making when they take statements out of context…. Real historians may have something
useful to say even though lawyers don’t.”), with id. at 1897 (“JUDGE SUTTON: Just as cross
examination works as a truth-divining device in a trial, so the adversarial process ought to work
when it comes to understanding history. Yes, as Chief Judge Easterbrook points out, there is
plenty of (unreliable) law office history, but there is no reason to doubt that most lawyers have the
capacity to show courts when that is so.”).
115
See Rogat, supra note 109, at 9 (“A number of important articles have recently inaugurated a
widespread and salutary discussion of the necessity of stating reasons for results. This dialogue
may result in clarifying jurisprudential issues of the widest significance. To point to the intimate
connection in the law between reason and reasons is to raise valuable questions about the nature
of legality itself. It is submitted that Holmes failed to meet the standards emerging from this
PERVASIVE INFANCY
95
Buck v. Bell is perhaps the most destructive exa
mple of Holmes’ views and
approach. In Buck v. Bell, Holmes affirmed the forced sterilization of Carrie
Buck, a Virginia woman, against claims that her constitutional rights prohibited
this state-sponsored attack on her body. As one critic has characterized it:
There will always be differences of opinion over which rulings should be on a list of
worst decisions … [b]ut there can be no doubt that Buck v. Bell must have a prominent
place. In its aftermath, not only was Carrie Buck sterilized against her will, but states
across the country sterilized another sixty to seventy thousand Americans. Many of the
victims were, like Carrie, perfectly normal mentally and physically—and they
desperately wanted to have children. The reach of Buck v. Bell extended beyond the
United States. . . . Nazis who carried out 375,000 forced eugenic sterilizations cited Buck
v. Bell in defense of their actions.
116
Holmes’ opinion in the case epitomizes his dehumanizing approach to the
rights of his vulnerable contemporaries.
117
The language of the decision’s first lines
reads as if authored by Margaret Atwood as part of a dystopian science fiction:
This writ of error to review a judgment . . . affirming a judgment . . . by which the
defendant in error, the superintendent of the State Colony for Epileptics and the Feeble
Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck . . .
for the purpose of making her sterile.
118
The Virginia law under which the challenged judgment was rendered provided
that the “health of the patient and the welfare of society may be promoted in certain
cases by the sterilization of mental defectives . . . .”
119
To the litigation challenging
the operation of that law to Carrie Buck, Holmes wrote:
We have seen more than once that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already sap the
strength of the State for these lesser sacrifices, often not felt to be such by those
concerned, in order to prevent our being swamped with incompetence. It is better for
all the world if, instead of waiting to execute degenerate offspring for crime or to let
them starve for their imbecility, society can prevent those who are manifestly unfit from
continuing their kind. The principle that sustains compulsory vaccination is broad
enough to cover cutting the Fallopian tubes. . . . . Three generations of imbeciles are
discussion. That is, he characteristically wrote, as has been said of more recent courts, ‘opinions
that do not opine.’”) (footnotes omitted).
116
274 U.S. 200 (1927); seeCohen, supra note 61, at 10-11; see also Neil M. Gorsuch, The Future
of Assisted Suicide And Euthanasia 36 (2006) (describing the public reaction to the eugenics
movement as information about Nazi practices became public).
117
SeeConly, supra note 9, at 2 (“the principle that those who fail deserve to fail isn’t one that is
geared to support equality and mutual respect” but rather is a “justification for inhumanity.”).
118
274 U.S. at 205.
119
Id.
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96
enough.
120
Does any contemporary reader of this brutality believe that any modern jurist
could have written those words and still be confirmed to any seat on any court in
the United States?
121
Yet the author is lionized by his profession even as the rawest
expression of his philosophy is among the most dehumanizing in the annals of
United States Supreme Court law.
122
The decision is so void of empathy
123
as to draw
the criticism that it is psychopathic.
124
Notwithstanding the stakes for Carrie Buck
120
Id. at 207.
121
Even conceding the reality of the current nomination situation. See, e.g., Mark Joseph
Stern, Senate Confirms Controversial Judicial Nominee, Flipping Court that Will Decide Trump Subpoena
Cases,
Slate.com (Nov. 14, 2019) https://slate.com/news-and-politics/2019/11/steven-menashi-
second-circuit-senate-trump.html [https://perma.cc/CTR3-TYFS] (discussing background and
qualifications of nominee described as having authored writings that included “inflammatory
and offensive remarks about women, Muslims, LGBTQ people, and racial minorities.”).
122
See Noah Feldman, The Many Contradictions of Oliver Wendell Holmes, N.Y. Times(May 28,
2019), https://www.nytimes.com/2019/05/28/books/review/oliver-wendell-holmes-stephen-
budiansky.html [https://perma.cc/LAN4-5EF5] (“Holmes is the second most influential justice
ever to have graced the bench, after Chief Justice John Marshall, who first got the court to
overturn laws and set the body on its long path to constitutional supremacy.”); Haynes Johnson,
Does Souter Have Heart?, Wash. Post.(July 27, 1990), https://www.washingtonpost.com/archive
/politics/1990/07/27/does-souter-have-heart/28e2794c-0981-4859-b260-c2853c82a4ed/
[https://perma.cc/LAN4-5EF5] (“Yet—and here is the mystery—while Holmes was a great
intellectual force he was also a great human being of passion and conviction, tempered by a
range of life experiences that shaped his thinking and responses from the bench.”); but see
Ronald Dworkin,Justice in Robes(2006) (“When Oliver Wendell Holmes was an Associate
Justice of the Supreme Court he gave the young Learned Hand a lift in his carriage…Hand got
out at his destination . . . and called out merrily, ‘Do justice, Justice!’. . . . ‘That’s not my job!’
[Holmes] said. . . . Then the carriage turned and departed, taking Holmes back top his job of
allegedly not doing justice.”).
123
See Rebecca K. Lee, Judging Judges: Empathy as the Litmus Test for Impartiality, 82 U. Cin. L. Rev.
145, 152 (2014) (“[E]mpathy . . . refers to our capacity to better comprehend—through both
knowledge and feeling—another’s perspective by trying to view the world from that person’s
position, rather than simply observing another’s position from where we stand.”); Thomas B.
Colby, In Defense of Empathy, 96 Minn. L. Rev. 1945, 1958 (2012) (“Empathy is the action of
understanding, being aware of, being sensitive to, and vicariously experiencing the feelings,
thoughts, and experience of another of either the past or present without having the feelings,
thoughts, and experience fully communicated in an objectively explicitly matter; also the capacity
for this.”) (quotations and citation omitted).
124
See Martha C. Nussbaum, The Monarchy of Fear 32 (2018) (“Robert Hare’s study of
psychopaths concludes that the absence of mind reading and of genuine reciprocal concern are
hallmarks of these deeply maimed individuals, who are probably born, not made.”) (footnote and
internal quotations omitted); cf.Stephen Budiansky, Oliver Wendell Holmes: A Life in War,
PERVASIVE INFANCY
97
and for hundreds of thousands of others, one searches the opinion in vain for any
reference to any record supporting the sociological, political, and economic
conclusions Holmes draws in it. This is true whether they relate to the “cost benefit
analysis” he proposes about the value of the human life and interests adjudged by
him, or to Holmes’ assessments of causation with regard to public ills such as crime
and poverty, or to the binary manner in which he devises death or starvation as the
only fate for the “manifestly unfit.”
125
In Holmes’ decision, Carrie Buck is an abstraction whose identity he reduces to
the barest combination of adjectives and nouns: “a feeble minded white woman.”
126
Like the “reasonable man,” this “feeble minded white woman” remains a concept
without a story and with no facts that Holmes is moved to recite to support the
characterization.
127
Carrie Buck is a disembodied victim of Holmes’ bloodless and
unkind jurisprudence, a jurisprudence that placed judicial imprimatur on laws that
forced a woman to submit to a medical procedure that prevented her from bringing
human life into the world.
128
Holmes’ approach maps across domains and is reflected in his theory of
contract law. Just as he reduced Carrie Buck to the barest conceptual shadow of true
personhood, he sought to banish the subjective intent and desires of any given party
from questions regarding contract formation and interpretation.
129
His stated
justifications are consequentialist – that any other alternative would result in unfair
results and produce a system of judicial resolution difficult to administer.
Law, and Ideas 431 (2019) (“Likewise, [Holmes’] decisions in tort cases implicitly, and sometimes
explicitly, embraced the view that a certain amount of maiming and death was just the price to be
paid for the smooth functioning of society.”).
125
See 274 U.S. at 207.
126
Cohen, supra note 61, at 205.
127
See id.; see alsoBudiansky, supra note 124, at 430 (Holmes reflected on his decision as follows:
“I purposely used short and rather brutal words for an antithesis, polysyllables that made them
mad. . . .” when referring to his contempt for the editorial advice of his Supreme Court colleagues).
128
Cf.Mathias W. Reimann, Holmes’s Common Law and German Legal Science, inThe Legacy of
Oliver Wendell Holmes, Jr. at 75-76 (Robert W. Gordon ed. 1992) (“Thus it was easy for Holmes
to apply his views of the war to society at large and gradually to come to see life and the world in
general as a struggle for power, driven by harsh self-preference. . . . Holmes’s Darwinism” had
“little sympathy for the losers. . . .”).
129
Patrick J. Kelley, Objective Interpretation and Objective Meaning in Holmes and Dickerson:
Interpretive Practice and Interpretive Theory, 1Nev. L. J.112, 115 (2001) (“The subjective motives and
the subjective intentions of the parties are . . . banished from Holmes’s theory” of contract
interpretation); Cf. R. George Wright, Objective and Subjective Tests in the Law, 16 U.N.H. L. Rev.
122 (2017) (exploring how external manifestations are used by courts as a means of applying
objective standards to resolve interpretative disputes).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
98
Holmes’ successors have adopted his view that parties are dispensable to
contract law.
130
Law and Economics proponents, the most powerful actors in the
field, “sought to reduce interest balancing to a science, one replete with
mathematical formulas. These scholars treated all desires as exogenous (that is as
coming from ‘outside,’ as ‘given,’ or as the starting point for analysis.).”
131
The
notion has been embraced by jurists and scholars who embrace Holmes.
132
This has resulted in a substantial move away from requiring assent from a party
before legally binding that party to a contract. Holmes was explicit with regard to
this notion, stating, with reference to how contract law performed in operation, that
the “law has nothing to do with the actual state of the parties’ minds.”
133
A slippery slope ensues. If we give such little weight to the subjective state of
mind of the parties as they bargain around rights they would otherwise retain as
free agents, why demand that parties to a contract assent at all? For the machinery
to work, why not remove the individual and her eccentricities and quirks from the
law altogether? In her stead, why not imagine a reasonable person and ask what
that person would interpret the human thoughts, statements, and actions to have
meant? And why not let us repose responsibility for that task in someone elevated
and smart, like a judge? This train of thinking has produced decisions that imagine
that normal adults are equipped to “inure” themselves against the “rough tumble of
the world of commerce.”
134
That notion rests on the conclusion that humans should
be judged against an incorporeal, rational ideal; one that bears no resemblance to
how humans are in our lesser, earthly form, the corporeal reality, pervasive
vulnerabilities and all.
135
130
Scholars have addressed other mistakes by Holmes that infect the law of contracts to this
day. See, e.g., Lewinsohn, supra note 109, at 695 (“Thus, in its boldest formulation, my claim is that
two giants of the common law, Langdell and Holmes, mangled a central doctrine of contract law
by severing the link between the doctrine of consideration and the proper conception of a
bargain.”).
131
Alschuler, supra note 60, at 3.
132
See Verkerke, supra note 12, at 937-38 (“[C]ourts have shown little sympathy for litigants who
claim not to have read or understood provisions of the legal documents they have signed.”)
(citation omitted).
133
Oliver Wendell Holmes Jr., The Common Law309 (1991).
134
Cf. Hair Excitement, Inc. v. L’Oreal U.S.A., Inc., 158 N.H. 363, 368 (2009) (drawing a
distinction between deceptive business practices and rough business practices under New
Hampshire’s consumer protection act) (citations omitted).
135
But see Lucy Jewel, Does the Reasonable Man Have Obsessive Compulsive Disorder?, 54 Wake
Forest L. Rev.1049, 1053 (2019) (“I am interested in answers to the following questions: When we
emulate the reasonable man’s strict, patrimonial, no-nonsense approach to legal reasoning, what
PERVASIVE INFANCY
99
Two modern decisions authored by Judge Frank Easterbrook of the Seventh
Circuit Court of Appeals, ProCD, Inc. v. Zeidenberg,
136
and Hill v. Gateway 2000,
137
adopt the Holmesian perspective. They have had substantial influence over modern
contract law. Going even further than the Second Circuit in Meyers, ProCD and Hill
bind consumers to contract terms they could never have seen when they agreed to
the contract. By subtracting the consumer's state of mind from the contracting
equation, they are the natural outcome of Holmes’ dehumanized perspective on the
law into our commercial life and into contract law.
138
Indeed, their author, Judge Easterbrook has all but confirmed this genealogy.
Judge Easterbrook is, of course, a somewhat famous appellate court judge. He was
famous enough, at least at one point, to merit a television interview conducted by
C-SPAN in the late 1980s.
139
The interview is revealing to the extent that it discloses
the thinking of a jurist whose decisions are central to the critique this article levels.
Easterbrook, in Holmesian fashion, characterizes the obligations of a judge as
requiring that one decide cases “dispassionately” and “without regard to the merits
of the parties and the right state of the world.”
140
According to Judge Easterbrook,
this is a “process of abstraction, a process of distancing the case from your own self
and your own druthers.”
141
Easterbrook draws a distinction between the function
of the judge in this regard and others who might view the project as “an opportunity
to sit around and do what’s just.”
142
According to him: “[T]he more personal the
process, the less justice there can be because the less equal treatment there can be.”
Easterbrook claims that “having a philosophical cast of mind” was one
prerequisite to his approach.
143
Indeed, he reveals his own. He says: “My
philosophical cast of mind . . . I suppose I am a skeptic in the tradition of Oliver
Wendell Holmes and Learned Hand.”
144
Expanding on the notion, he continues:
kind of monster are we emulating?”) (footnote omitted).
136
86 F.3d 1447 (7th Cir. 1996).
137
105 F.3d 1147 (7th Cir. 1997).
138
See DeFontes v. Dell, Inc., 984 A.2d 1061, 1068 (R.I. 2009) (“The eminent Judge Frank
Easterbrook has authored what are widely considered to be the two leading cases on so-called
‘shrinkwrap’ agreements.”).
139
Life & Career of Frank Easterbrook, C-SPAN (Mar. 20, 1989), https://www.c-
span.org/video/?7038-1/life-career-frank-easterbrook [https://perma.cc/TEH3-XWSW].
140
Id. at 1:25-30.
141
Id. at 1:30-1:50.
142
Id. at 2:10-2:15.
143
Id. at 2:30-3:00.
144
Id. at 3:24-4:15.
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100
I suppose you will hear me quote Holmes and Hand from time to time because they’re
my judicial heroes. They were people who were never taken in too easily by the
platitudes of the day, always wondered whether what they were being told was true, and
that carried over, not only to about whether what the parties told them was true,
something every judge has to have, but skepticism about general statement, about the
meaning of law, about the relation between legal rules and people . . . they were just
thorough going skeptics.
145
Pro-CD and Hill reflect Holmes’ influence. They reflect Easterbrook’s skepticism
about what consumers might say about their agreements to construct a rule that
deletes consumers from the offer-acceptance equation.
ProCD, presented the question: “Must buyers of computer software obey the
terms of shrinkwrap licenses?”
146
According to Judge Easterbrook, the sort of
transaction at issue in Pro-CD proceeded as follows: a customer walks into the store,
finds the Pro-CD software packaged in a box on the shelf, takes the box off of the
shelf, goes to the counter, purchases the software for the price, leaves the store and
goes home.
147
Every box containing [Pro-CD’s] consumer product declares that the software comes
with restrictions stated in an enclosed license. This license, which is encoded on the
CD-ROM disks as well as printed in the manual, and which appears on a user’s screen
every time the software runs, limits use of the application program and listings to non-
commercial purposes.
148
At the time of purchase, the customer did not and could not see the terms of the
license and did not see them until he exchanged money for the product. In deciding
the case, Judge Easterbrook pays lips service to the notion that hidden terms are not
part of an enforceable contract. He writes,
In Wisconsin, as elsewhere, a contract includes only the terms on which the parties
agree. One cannot agree to hidden terms, the judge concluded. So far, so good—but
one of the terms to which Zeidenberg agreed by purchasing the software is that the
transaction was subject to a license.
149
This approach, of course, presages the Second Circuit’s statements in Meyers v. Uber,
as analyzed earlier in this article.
In a succession of statements that include no citations to the record or to any
facts or data, Easterbrook nevertheless concluded that the license must be enforced
145
Id.
146
86 F.3d at 1448.
147
Id. at 1449-50.
148
Id. at 1450.
149
Id.
PERVASIVE INFANCY
101
under contract law.
150
According to Easterbrook, any alternative perspective would
require a business to include a lengthy series of written terms in microscopic print
on the box and would interfere with the goals of modern commerce and render
transactions in the area too costly and impractical. Thus, the consumer, a one-time
participant in this transaction, must be bound by terms he did not see and so could
not have even considered when he purchased the software. The terms contained in
the software identifying a right of return were sufficient to provide relief.
The decision was subject to substantial critique in regard to its application of
contract law and its interpretation of the applicable provisions of the Uniform
Commercial Code.
151
The Seventh Circuit ignored this criticism and extended Pro-
CD’s influence in another decision authored by Judge Easterbrook, Hill. That case
involved the following transaction: “A customer picks up the phone, orders a
computer, and gives a credit card number. Presently, the box arrives, containing
the computer and a list of terms, said to govern unless the customer returns the
computer within 30 days.”
152
Easterbrook disposed of the claim that this transaction did not permit the
consumer to agree to the terms of the transaction at the time of the exchange, as
follows:
If the staff at the other end of the phone for direct-sales operations such as Gateway’s
had to read the four-page statement of terms before taking the buyer’s credit card
number, the droning voice would anesthetize rather than enlighten many potential
buyers. Others would hang up in a rage over the waste of their time. And oral recitation
would not avoid customers’ assertions (whether true or feigned) that the clerk did not
read term X to them, or that they did not remember or understand it. Customers as a
group are better off when vendors skip costly and ineffectual steps such as telephone
recitation, and use instead a simple approve-or-return device. Competent adults are
bound by such documents, read or unread.
153
There is a copy-cattish cadence to this paragraph that moves apace with Buck v.
Bell. As in that decision, after making a series of unsupported declarations about
150
Id. at 1451.
151
See, e.g., John E. Murray, Jr., The Dubious Status of the Rolling Contract Formation Theory
(Duquesne University School of Law 2011); Eric Posner, ProCD v. Zeidenberg and Cognitive Overload
in Contractual Bargaining, 77 U. Chi. L. Rev. 1181, 1193 (2010) (“ProCD precipitated a typhoon of
academic hostility.”); Roger C. Bern, “Terms Later” Contracting: Bad Economics, Bad Morals, and a Bad
Idea for Uniform Law, Judge Easterbrook Notwithstanding, 12J. L. & Pol’y
641 (2004) (criticizing the
decision); Robert A. Hillman, Rolling Contracts, 71Fordham L. Rev.744, 753 (2002) (“Easterbrook
was plainly wrong about section 2-207’s applicability.”).
152
105 F.3d at 1148.
153
Id. at 1149.
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102
the state of the world as perceived by the judge, statements that disparage the
capacities of the parties to the contract and their bandwidth for negotiations, the
decision reaches a coda with a broader, unsupported declaration about the law’s
application to capable adults, generally.
154
As a result, under Judge Easterbrook’s interpretation of law, a contract is
formed at the point of purchase over the telephone when the parties reach a deal.
And notwithstanding that fact, a party is bound by terms the promisor did not
disclose at the time of the deal if they sent, unilaterally, after-the-fact. The party is
bound regardless of whether he/she/they read these terms. Easterbrook, again in
Holmesian fashion, removes the human consumer from the transaction,
155
and
injects into the law of consumer contracts Holmes’ much-celebrated perspective of
the law as the product of might makes right.
156
His analysis makes no effort to
reconcile itself with other areas of contract law in which courts consign to the
category of fraud bait-and-switch disclosures that prejudice a counterparty.
157
Scholars have described Judge Easterbrook’s formulation in these cases as
“subverting. . . what is natural and traditional in contract law” and rendering a
decision that is contrary to governing law.
158
The controversy Easterbrook’s
perspective has ignited became an even more public dispute as a result of the
proposals set forth within the proposed Draft Restatement (Third) of Consumer
154
In the aftermath of the 2008 housing crisis, many of the views that drove the interpretive
approaches of Holmes, Easterbrook and others have been subject to a series of challenges,
including those aimed at the consequences of the policies underlying their jurisprudence. See,
e.g.,Binyamin Appelbaum, The Economists’ Hour7 (2019) (“The medicine [of unconstrained
free-market capitalism initiated in the late 1970s focused on wealth maximization] did not work.
In the United States, growth slowed in each successive decade during the half century described
in this book, from an annual average of 3.13 percent in the 1960s to 0.94 percent in the 200s,
adjusting for inflation and population.”).
155
Cf. Jewel, supra note 135, at 1080 (describing how “the reasonable man” in this tradition
“fulfill[s]” a compulsion for “order and control” “through state sanctioned coercion . . . couched in
the progressive rhetoric of science and progress.”).
156
See Jewel, supra note 135, at 1064 (describing the “reasonable man” as a puritan devoted to the
use of law to engage in punitive sanctions).
157
Cf. Park 100 Investors, Inc. v. Kartes, 650 N.E.2d 347, 350 (1995) (failure of party to disclose
that contents included a personal guarantee to sophisticated counterparties constituted fraud);
Hill v. Jones, 151 725 P.2d 1115, 1117 (1986) (Ariz. 1986) (Finding fraud due to nondisclosure where:
“Sellers did not mention any of this information prior to close of escrow. They did not mention
the past terminate infestation and treatment to the realtor or to the termite inspector.”).
158
Shubha Ghosh, Where’s the Sense in Hill v. Gateway 2000?: Reflections on the Visible Hand of Norm
Creation, 16Touro L. Rev.1125, 1135 (2015); see also id. at 1131-32 (noting divergence from applicable
provisions of the Uniform Commercial Code).
PERVASIVE INFANCY
103
Contracts.
159
Like Easterbrook, the authors of the proposed draft withdrew the
requirement of formal assent as a feature of consumer contract formation. The
drafters proposed replacing it with a series of notice requirements they equate with
a notion they describe as “blanket assent.”
160
In effect, the ALI drafters concluded that if a company can prove that a
consumer was on notice of terms, even in the absence of proof that the consumer
agreed to those terms, notice would be sufficient to permit a finding that a contract
has been formed.
161
The drafters did so despite observing that:
Because the imbalance between businesses and consumers is so great, the application
of contract law’s general rules of mutual assent alone are not likely to level the playing
field. In a world of lengthy standard forms, which consumers are unlikely to read, more
restrictive assent rules that demand more disclosures, more notifications and alerts,
and more structured templates for manifesting assent are unlikely to produce
substantial benefits.
162
The drafters also drew this conclusion despite noting, at another point, that
“[t]he proliferation of lengthy-standard term contracts, mostly in digital form,
makes it practically impossible for consumers to scrutinize the terms and evaluate
them prior to manifesting assent.”
163
Like Easterbrook, the drafters did not address
these circumstances in terms of capacity. Instead, the drafters characterize the
problem as demonstrating the impracticality of requiring agreement in contracts.
Their solution is to remove what they have identified as the barrier, the legal
requirement of the co-equal participation of the consumer in the contracting
process. In doing so, they do not question whether the seller truly values the terms
and incorporates the terms into the price of the goods or services subject to the
contract. They follow Judge Easterbrook in this regard.
As a consequence, Judge Easterbrook and the ALI drafters do not address the
obvious question contract theorists raise in response to the conclusions he draws:
Why place the risk of the attentional and intellectual limitations on the consumer
as a matter of contract law?
164
Is it justified to believe the consumer could or would
159
Restatement of the Consumer Contracts 5 (ALI Tentative Draft April 18, 2019).
160
Id. (“This Restatement reflects the common-law “blanket-assent” principle, whereby courts
allow businesses to draft and affix standard contract terms to the transaction, as long as they
provide consumers with adequate notices and opportunity to review the terms, as a meaningful
opportunity to avoid the transaction.”).
161
Id.
162
Id. at 3.
163
Id. at 2
164
See Posner, supra note 67, at 50.
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104
ever be able to understand such terms even if they took the time to read them?
165
After all, as Professor Randy Barnett has noted:
Most people fail to read most terms most of the time and no person can credibly claim
to read all of the terms in form contracts all of the time. Every contracts professor and
law student knows this from personal experience. Everyone reading these words,
including yours truly, has at one time clicked the “I agree” box of a software license
agreement without reading the terms in the scroll-down box.
166
Given this broad agreement about consumer capacities as reflected in their
behavior, why would courts permit sophisticated parties to end-run traditional
contract theory and shift legal risk to the average consumer?
167
Does anyone believe,
for instance, that Amazon or Google or Facebook (or any other significant firm) will
stop doing business in the market because they cannot get each and every one of the
terms they demand in the form contracts they use with consumers? There is simply
no data to support that conclusion, which defies all common sense. Yet that is the
fiction Easterbrook and the ALI advanced.
The purveyors of this view do not provide solutions that address the fact that
this fiction about what we now call “contracts” empower large businesses to use the
law to control, without check, the terrain upon which individuals enter transactions
with terms the law will require them to accept under almost all circumstances. This
is the very opposite of a law that empowers the individual American consistent, with
the narrative of contract freedom. It is based on a flawed assessment of adult
capacity that persists within the law despite proof that it is flawed and evidence that
it has had catastrophic effects on the lives of Americans and upon the strength of
the nation as a whole.
168
In the aftermath of the 2008 financial crisis, those who take the ALI view can no
longer lay claim to arguments implicit (if not explicit) within defenses provided by
Easterbrook and company that we all benefit when commerce is conducted between
large firms and the consumer public through form contracts that consumers do not
understand and cannot negotiate.
169
Mass contracting in this manner crushed the
165
See id.
166
SeeRandy Barnett,Consenting to Form Contracts, 71Fordham L. Rev.627, 628-29 (2002).
167
See Verkerke, supra note 12, at 931 (“The common thread that runs through all of these
examples is that sophisticated contracting parties respond to legal rules favoring their contractual
partners by adopting express terms that shift the balance of legal rights in their own favor.”).
168
See, e.g.,Richard Thaler, Misbehaving7 (W.W. Norton & Company 2015) (“It is harder to
dismiss studies that document poor choices in large-stakes domains such as saving for
retirement, choosing a mortgage, or investing in the stock market. And it is impossible to dismiss
the series of booms, bubbles and crashes we have observed in the financial markets ….”).
169
See Joseph William Singer, Foreclosure and the Failures of Formality, or Subprime Mortgage
PERVASIVE INFANCY
105
world economy and few can claim they were not harmed by the “contracting”
practices our current legal regime upholds despite the ways in which they deform
our notions of what it means to engage in contracts with capacity.
170
IV. INFANCY AS THE PATH TO CAPABILITY, EMPOWERMENT AND
AUTONOMY.
A. Refining notions of capacity to even the contracting playing field
A central and unaddressed flaw in the reasoning exhibited by Easterbrook and
the ALI is that each assumes that consumers are capable because they are adults. A
true assessment of capacity reveals that it has never been a question that properly
resolved with reference to age alone, without considering the domain in which one’s
capacity is tested. At four-years-old, Tiger Woods was a better golfer than I will ever
be.
171
If I was to play a four-year-old Tiger Woods at golf, I would not be a capable
(or even remotely respectable) adversary. How would I become capable? I would
want access to a tried and true institution of the sport, handicapping. This
institution is designed to secure that participants of differing abilities will be able
to play the sport together in a competitive fashion. As one news source explains:
“One of the reasons golf is such a popular sport is that a system of handicapping
means players of all abilities can play against each other.”
172
Golf is a sport in which the player attempts to complete a course, defined as a
Conundrums and How to Fix Them, 46 Conn. L. Rev. 497, 502 (2013) (“By selling adjustable-rate
mortgages to millions of people who could not afford to pay them back, the banks inflicted novel
individual and systemic risks” which ultimately led to a financial crash that shattered the world
economy); see also Tomasz Piskorski and Amit Seru,Mortgage Market Design: Lessons from the Great
Recession, inBrookings Paper on EconomicActivity 430 (Spring 2018) (“A series of papers have
argued that a number of factors related to the rigidity of contract terms. . . hindered efforts to
restructure or refinance household debt, exacerbating the foreclosure crisis.”); Alan S. Blinder,
After the Music Stopped at 71 (2014 ed.) (describing banking practices presented to
“unsophisticated” home purchasers who could not afford the financial risks mortgage devices
entailed as “disgraceful”).
170
Id. at 68 (“It is no secret that subprime mortgages led us into this mess. Many of them were
inherently crazy, and they became the basis for even greater zaniness in the world worlds of
mortgage-backed securities and derivatives. . . . The tragedy begins . . . with the huge volume of
risky mortgages that should never have been created in the first place.”).
171
See David Epstein, Range 2 (Riverhead Books 2019) (“When the boy was four, his father
could drop him off at a golf course at nine in the morning and pick him up eight hours later,
sometimes with money he’d won from those foolish enough to doubt.”).
172
See BBC Sport, Handicapping, Golf, http://news.bbc.co.uk/sport2/hi/golf/rules_and_
equipment/4748865.stm https://perma.cc/2TA2-ZS5H
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106
series of “holes” with the fewest number of shots. To even the field among players
of different skills and abilities, a “handicap” permits a player of lesser ability to
remove a set number of strokes from his or her score at the outset of the
competition.
173
“In a competition involving handicaps, the stronger or lower player,
‘gives’ strokes to the weaker or higher handicap player based on the difference in
their handicap.”
174
Ultimately, under a system of handicapping, the capacity of the golfer is judged
against the performance of the golfer, and the competition among golfers is
adjusted accordingly.
175
The overwhelming focus of the system is “fairness.” It seeks
to promote fairness for its own sake and to make the game of golf more popular and
so increasing its attraction to a wider population of potential consumers.
Handicapping in golf provides a way to introduce a better notion of “capacity.”
A golfer’s performance within the environment in which his/her/their capacities
is/are judged, the game of golf, provides the measure of golfing capacity. A
handicap does not turn on a golfer’s age, height, weight, gender, race, education
level, or IQ. Capacity is a function of real-world performance when measured
against the goals of fairness and utility.
This is another version of Martha Nussbaum’s definition of capabilities. She
asks, “What are capabilities? They are the answer to the question, ‘What is this
person able to do and to be?’ … [T]hey are not just abilities residing inside a person
but also the freedoms or opportunities created by a combination of personal
abilities and political, social and economic environment.”
176
She distinguishes this concept from a person’s “innate equipment” which she
describes as “trained or developed traits and abilities, developed, in most cases, in
interaction with the social, economic, and political environment.”
177
“A society
might do quite well at producing internal capabilities but might cut off the avenues
through which people actually have the opportunity to function in accordance with
those capabilities.”
178
Thus, people may have very different “internal equipment,” but the
environment in which that equipment must act may negate the effect of the
capabilities the equipment enables. This would render those same people
173
Id.; see alsoTimothy C. Y. Chan, David Madras, Martin Puterman, Improving fairness in match
play golf through enhanced handicap allocation, 4Journal of Sports Analytics 251 (2018).
174
Id. at 252.
175
See id.
176
Nussbaum, supra note 30, at 20.
177
See id. at 21.
178
See id.
PERVASIVE INFANCY
107
ineffective at capably influencing the external world notwithstanding their
capabilities. Thus, even those with “strong” equipment could see the merits of their
equipment rendered a nullity.
179
Capacity thus defined has two variables. The first variable is one’s internal
capabilities. The second is the degree to which the external factors permit or
prevent those internal capabilities from exerting any influence upon measurable
outcomes. Capacity, under the status quo in American law, focuses on one variable,
internal capability, and relies on views about that variable that are false.
180
The
perspective this article takes views capacity through both variables.
Ultimately, the solution this article proposes is meant to disrupt the law on
contracting capacity as a means of creating an environment in which the entities
most responsible for creating the legal landscape for consumer contractors, sellers
of consumer goods and services, must draft contracts that are understandable and
accessible to the consumer public. If they fail, they should take the risk of failing to
do so. This approach adopts a handicapping view within the arena of consumer
contracts. It proposes a solution that would require the drafters of consumer
contracts to ensure that they are made understandable to consumers or face the
consequence of having contracts or their terms rendered void. It does so by
adjusting rules to fit the capacities of the participants. It does that by adjusting the
incentives facing those in control of the contours of the game to encourage them to
draft contours that make the game’s end, a contract derived from mutual assent, a
far greater possibility. If the drafters fail to do so, they will not be able to gain the
benefits that contracts provide, an enforceable agreement they can rely upon to
protect rights they bargained for with a counterparty. In this respect, it thus seeks
to makes the game fairer and there is no reason to believe it will make the game less
popular.
B. “Adulthood” Challenged
Evidence about adult performance in the domain of consumer contracting
more than justifies the solution this article proposes. That evidence challenges the
traditional view of adulthood, which persists in the face of so much data suggesting
179
See also, Fineman, supra note 49, at 15 (“Altered social realities may require the explication of
a more nuanced understanding of a cherished national characteristic or value.”).
180
See, e.g.,Conly, supra note 9, at 19 (“The second general condition under which we typically
allow coercive paternalism is that of incompetence. There are people we think aren’t capable of
dealing with facts, even if they are informed of them. Their reasoning is impeded by any of a
number of causes – youth, which may entail a whole host of factors that lead to poor decisions. . .
. and so forth.”).
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108
its falsehood.
181
That view sits at the foundations of central legal doctrines that
harm consumers.
That view fails to consider whether internal capabilities exert any influence
when interacting with the world. It thus adopts the mistaken position that modern
free-market proponents make when they fail to take account of changes in the
market environment in attempting to apply abstract principles from prior errors to
modern commercial life.
182
As Jonathan Herring of the University of Oxford, has
written
Of course, we adults prefer not to think of ourselves in this way. We highlight our
independence, capacity for rational thought, maturity and autonomy. However, we
puff ourselves up with such talk. The reality is very different. In fact, we are deeply
dependent on others for our most basic needs; we are rarely in a position to make an
informed decision and even when we do we are hardly rational; and though we like to
imagine ourselves having autonomy and being author of our own lives, we have little
control over ourselves.
183
He supports his claim about the actual state of affairs for adults with reference
to statistics about internal capabilities as measured in terms of IQ, long-term
illness, addiction, and obesity.
184
In essence, he argues that these statistics
eliminate claims that adults as a group are distinctively stronger and more
responsible than children. Instead, he argues that adults are just as vulnerable and
so adults should therefore be able to access protections available to children.
185
181
See Thaler, supra note 168, at 5 (“The core premise of economic theory is that people choose
by optimizing. Of all of the goods and services a family could buy, the family chooses the best one
that it can afford. Furthermore, the beliefs upon which Econs make choices are assumed to be
unbiased.”).
182
See Anderson, supra note 26, at 6 (“Images of free market society that made sense prior to
the Industrial Revolution continue to circulate today as ideals, blind to the gross mismatch
between the background social assumptions reigning in the seventeenth and eighteenth
centuries, and today’s institutional realities.”).
183
Herring, supra note 18, at 27-28.
184
See id. at 30.
185
See id. at 48. There is more than enough evidence to suggest that adults are susceptible to the
terrible consequences of defects in their decision-making that one might impute to irrationality.
See Theresa Waldrop and Stephanie Gallman, A group of young adults held a coronavirus party in
Kentucky to defy orders to socially distance. Now one of them has coronavirus, CNN Health (Mar. 25,
2020) (“The partygoers intentionally got together ‘thinking they were invincible’ and purposely
defying state guidance to practice social distancing, [Gov Andy] Bashear said.”),
https://www.cnn.com/2020/03/24/health/kentucky-coronavirus-party-infection/index.html//
https://perma.cc/AL7K-P9HZ). Even libertarians have begun to cede ground on these issues even
if they continue to appeal to solutions grounded in appeals to reasoned decision-making that the
PERVASIVE INFANCY
109
Advances in cognitive psychology provide even greater support for this
proposition. These advances have challenged the proposition, central to the law,
that adults are rational, their thinking normally sound, and that emotions such as
“fear, affection and hatred explain the occasions on which people depart from
rationality.”
186
Instead, cognitive science has demonstrated “systemic errors in the thinking of
normal people” traceable to “the design of the machinery of cognition rather than
to the corruption of thought by emotion.”
187
Specifically, these studies demonstrate
that adults are particularly bad at identifying relevant data and analyzing it for the
purpose of forecasting outcomes for themselves, even under circumstances where
they have a stake in the outcome.
This has to do with a series of biases that cause us to gather and weigh
information poorly.
188
These studies demonstrate that claims that a twenty-five-
year-old, forty-five-year-old, sixty-five-year-old, or seventy-five-year-old will be
better at assessing the world than a seventeen-year-old are so overstated as to
render the distinction indefensible inside the area of consumer contracts. These
deficits demonstrate that Americans lack the relevant cognitive capacity to defend
their interests in the consumer contract domain.
189
Contributing to these deficits, few Americans have anything close to baseline
facts they now acknowledge as reality demonstrate most people avoid pandemically. See Kristin
Tate, Coronavirus reveals financial irresponsibility of Americans, The Hill (Mar. 22, 2020)
(acknowledging the irrational personal spending decisions of Americans while lecturing that we
all need to be more reasonable), https://thehill.com/opinion/finance/488906-coronavirus-reveals-
financial-irresponsibility-of-americans https://perma.cc/4A65-LSBS.
186
SeeDaniel Kahneman, Thinking Fast and Slow8 (2011).
187
Id.
188
See Richard H. Thaler and Cass R. Sunstein, Nudge7 (Penguin Books 2009) (“Hundreds
of studies confirm that human forecasts are flawed and biased. Human decision making is not
so great either.”); id. at 9 (“The false assumption is that almost all people, almost all of the time,
make choices that are in their best interest or at the very least are better than the choices that
would be made by someone else. We claim that this assumption is false—indeed, obviously false.
In fact, we do not think that anyone believes it on reflection.”). Some of the greatest and most
sensitive writers have described this phenomenon to us in literature. See Albert Camus, The
Plague 36-37 (Stuart Gilbert trans., Vintage Books 1991) (“Everybody knows that pestilences have
a way of recurring in the world; yet somehow we find it hard to believe in ones that crash down
on our heads from a blue sky. There have been as many plagues as wars in history; yet always
plagues and wars take people equally by surprise.”).
189
Kathleen M. Galotti, Cognitive Development, Infancy through Adolescence 406
(2017 ed.) (“Cognition” includes the “processes by which an individual acquires, stores,
manipulates, retrieves, and uses information.”).
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110
literacy when it comes to rights conferred upon them under the state and federal
constitutions.
190
Very few Americans can describe how our state and federal courts
work,
191
who populates them,
192
what happens inside our courts, what a jury trial
consists of, where the jury trial right arises from and what purposes it serves, and
what alternative dispute resolution processes such as binding arbitration entail for
them.
193
Very few Americans are aware of their non-constitutional rights as
consumers under state and federal statutory law. No studies indicate that they
understand the effects of warranties, disclaimers, waivers, or what the law demands
of sellers and purchasers of a wide range of consumer goods and services.
194
190
See, e.g., ABA Survey of Civic Literacy, American Bar Association (2020),
https://www.americanbar.org/groups/public_education/resources/civic-literacy/
https://perma.cc/4RL9-4ATL (“Less than 1 in 10 Americans can answer all 15 questions adopted
from the U.S. Citizenship Test.”); see also Executive Summary, ABA Survey of Civic Literacy,
American Bar Association
2 (2020), https://www.americanbar.org/content/dam/aba/
administrative/public_education/ABASurveyOfCivicLiteracy-summary.pdf [https://perma.cc/
4RL9-4ATL] (describing basic confusion in the United States about core public law principles);
Americans Are Poorly Informed About Basic Constitutional Provisions, Annenberg Public Policy
Center
(Sept. 12, 2017), https://www.annenbergpublicpolicycenter.org/americans-are-poorly-
informed-about-basic-constitutional-provisions/ https://perma.cc/PD4Y-WWVG (“More than
half of Americans . . . . incorrectly think it is accurate to say that immigrants who are here
illegally do not have any rights under the U.S. Constitution” and “More than a third of those
surveyed . . . can’t name any of the rights guaranteed under the First Amendment.”); Ryan
Lessard, Former Justice Souter Warns About the State of Civics Education, NHPR.org
(Sep. 14, 2012) (“I
don’t believe there is any problem of American politics in American life which is more
significant today than the pervasive civic ignorance of the Constitution of the United States and
the structure of government.”) available at https://www.nhpr.org/post/former-justice-souter-
warns-about-state-civics-education#stream/0 [https://perma.cc/SJM4-DD5Q] (last visited Sep.
13, 2020).
191
GBA Strategies, 2018 State of the State Courts – Survey Analysis5 (2018) (“Voters feel
ill-equipped to navigate the court system without an attorney and lack confidence in their ability
to represent themselves.”).
192
See, e.g., Scott Bomboy, Surveys: Many Americans know little about the Supreme Court,
Constitution Daily (Feb. 17, 2016), https://constitutioncenter.org/blog/surveys-many-
americans-know-little-about-the-supreme-court/ https://perma.cc/6PT3-QUNG) (citing
statistics demonstrating general absence of knowledge about U.S. courts).
193
See, e.g., Jonathan Koehler, Train Our Jurors, in Faculty Working Papers 303, 304
(Northwestern University School of Law Scholarly Commons 2006) (“Jurors misunderstand rules
of law, legal presumptions, and applicable standards of proof. They rely on information that they
are told not to use, ignore crucial evidentiary points, and make inappropriate inferences.”).
194
Other scholars express, through assessments of the state of the law, the extent to which the
law downplays the profound illiteracy of the American public in regard to legal terms used in
consumer contracts. See, e.g., Omri Ben-Shahar, Fixing Unfair Contracts, 63Stan. L. Rev.869, 874
PERVASIVE INFANCY
111
In other words, most Americans are perpetually ignorant of, or deeply mistaken
about, the state of the law. Americans are worlds apart from what Holmes would
have demanded of us when he wrote that mistake of law cannot be an excuse.
195
The
rights that we consumers are said to waive, such as the right to trial by jury, are
rights we could not value in any true sense because of our impoverished
understanding of our legal rights, generally. These deficits demonstrate that
Americans lack the relevant knowledge base to defend their interests in the
consumer contract domain.
196
Addictions and mental health crises at all levels of adulthood, afflicting all ages
of adults, weaken the standard paradigm of the strong, autonomous, accountable
adult even further. Millions and millions of adult Americans suffer from a serious
mental illness.
197
These mental illnesses relate to all-manner of cognitive and
behavioral deficits and so undermine the broad-brush depiction of the adult human
as rational in the traditional sense that law has connected the notion to
accountability justifications.
Modern environmental factors weaken the paradigm of adult capacity further.
For instance, a pervasive array of serious substance abuse disorders undermine
notions that adults are able to engage in unconstrained, free choice at a general
level.
198
“Half of all Americans report knowing someone who has struggled with an
opioid addiction” and the opioid crisis in the United States is so severe that it has
been compared to the most severe pandemics humanity has faced in recorded
(2011) (“Intervention is more likely to occur when the excessive terms are less conspicuous than
the price and are less well understood by the weak party, suggesting that flaws existed in the
manner in which assent was reached.”).
195
Cf. Dan M. Kahan, Ignorance of Law is an Excuse – but Only for the Virtuous, 96Mich. L. Rev.127,
127-130 (1997) (discussing Holmes’ of this axiom as a feature of amoral access to the law without
reference to the knowability of the law); see also Sommers and Bohns, supra note 43, at 1982
(conducting studies indicating that “a large gulf exists between what most people do and what
most people think is reasonable” when it comes to assessing circumstances used to determine
consent).
196
Galotti, supra note 189, at 412 (“Knowledge base” is “Stored information, including all
knowledge possessed by an individual…”).
197
See Kenneth Paul Rosenberg, Bedlam: An Intimate Journey into America’s Mental
Health Crisis XIII (Avery 2019) (“In this country, one in five adults . . . lives with a mental illness,
according to the National Institute of Mental Health (NIMH). Of that total, an estimated 11.2
million people age eighteen or older have a serious mental illness (SMI), leading to some degree
of functional impairment.”).
198
See id. at XIII-XIV.
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112
history.
199
Drugs of addiction “hijack” the brain and rewire it to further undermine
the infrastructure of the brain that assists us in rational risk assessment.
200
An
addict in need of an addictive substance does not and will not exercise judgment
consistent with the picture of the rational actor in many, if not most, venues.
Repeat actors have sought to harness our susceptibility to addiction by making
addiction a feature of a primary commercial forum in which we transact business.
201
Because of the emergence of social media delivered through smartphones, “[w]hat
might once have been called advertising must now be understood as continuous
behavior modification on a titanic scale.”
202
According to one provocative
commentator, we “might be turning, just a little, into a well-trained dog, or
something less pleasant, like a lab rat or a robot.”
203
Something “remote-controlled
. . . by clients of big corporations.”
204
The same commentator described our engagement with social media, and the
way in which we supply companies with the data used to program us to consume
their goods, as akin to a “relentless, robotic, ultimately meaningless” behavioral
modification “in the service of unseen manipulators and uncaring algorithms.”
205
The designers of these programs aimed to make us addicted consumers of the
internet.
206
Their platform and access to us have no precedent in human
199
See Timothy McMahan King, Addiction Nation17 (Herald Press 2019).
200
See id. at 118 (quoting Addiction Researcher Neil Levy).
201
Jaron Lanier, Ten Arguments for Deleting Your Social Media Accounts Right Now
21 (Henry Holt and Company 2018); see also Franklin Foer, World Without Mind: The
Existential Threat of Big Tech1-2 (Penguin Press 2017) (“The most ambitious tech companies
. . . are in a race to become our ‘personal assistant.’ They want to wake us in the morning, have
their artificial intelligence software guide us through the day, and never quite leave our sides.
They aspire to become the repository for precious and private items, our calendar and contracts,
our photos and documents. They intend for us to unthinkingly turn to them for information and
entertainment, while they build unabridged catalogs of our intentions and aversions. Google
Glass and the Apple Watch prefigure the day when these companies implant their artificial
intelligence within our bodies.”)
202
Lanier, supra note 201, at 6.
203
Id. at 7.
204
Id.
205
Id. at 23.
206
Id. at 8; see Tim Wu,The Attention Merchants6 (2016) (“Now, however, most of us carry
devices on our bodies that constantly find ways to commercialize the smallest particles of our time
and attention. Thus, bit by bit, what was once shocking became normal, until the shape of our
lives yielded further and further to the logic of commerce—but gradually enough that we should
find nothing strange about it.”); see also Roger McNamee, Zucked 2 (Penguing Books 2020)
PERVASIVE INFANCY
113
existence.
207
We are so addicted that we engage in commercial transactions that
put the welfare of our children at risk at epidemic levels and without any sense that
we are doing so.
208
This development has implicated another area related to adult self-control:
consumer credit-rating. In many areas of commercial life, a person’s ability to
contract will be dictated by their credit-worthiness. Credit-worthiness is assessed
in terms of a person’s credit-rating or credit-score. In the modern era, a credit score
has become a function of undisclosed, obscure, and opaque calculations drawn, in
part, from data generated by consumers over the internet, that government
regulators do not understand, and individual consumers cannot assess.
209
The effect of hits to credit-worthiness arising from damages alleged against a
couple was depicted in a news report aired by National Public Radio in early March
2020.
210
The story depicts the plight of two educated, married adults who purchased
a figurine, commented about the deficiencies of the product the seller conveyed and
received notice from the seller that they were being fined for disparaging the
company online.
211
The basis for the seller’s claim was a non-disparagement clause the seller
maintained existed in a detailed form contract which the seller argued imposed
(“Technology platforms, including Facebook and Google, are the beneficiaries of trust and
goodwill accumulated over fifty years by early generations of technology companies. They have
taken advantage of our trust, using sophisticated techniques to prey on the weakest aspects of
human psychology, to gather and exploit private data, and to craft business models that do not
protect users from harm.”).
207
See David Perlmutter and Austin Perlmutter, Brain Wash 14 (Little, Brown Spark
2020) (“Our society has experienced a fundamental shift since the beginning of the twenty-first
century, largely because of an explosion in the availability of personal technology that keeps us
locked on the grid. It’s estimated that 70 percent of humans on the planet now own a smartphone.
Data shows that the average internet user spends more than two hours a day on social networking.
One survey found that 42 percent of the time Americans are awake, their eyes are fixated on a
television, smartphone, computer, tablet, or other device.”) (footnotes omitted).
208
See Leah Plunkett, Sharenthood21 (Massachusetts Institute of Technology 2019) (noting
how data parents post about children online can facilitate “criminal, illegal, or hostile adult
activities” including child pornography, identify theft, stalking, trolling, and cyber bullying).
209
See Frank Pasquale, The Black Box Society24 (Harvard University Press 2015) (“In the
Heisenberg-meets-Kafka world of credit scoring, merely trying to figure out possible effects on
one’s score can reduce it.”).
210
See Planet Money, Terms of Service,National Public Radio (Mar. 4, 2020), https://www.npr.
org/transcripts/812264543 https://perma.cc/R8VT-77PJ .
211
Id.
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114
obligations on the couple.
212
The seller’s position affected the couple’s credit
standing, which, in turn, obstructed their ability to engage in consumer activity like
purchasing a car and a heating system in their home.
213
In the story, one of the
members of this couple describes the quandary she found herself in as a result of
the contract law position taken by the seller:
We tried to get emergency financing [to get a new furnace when her hot water heater
died]. Every company I tried to go through turned us down. So finally, I’m at my wit’s
end. It’s October in Utah. My house has no furnace. I have a 3-year-old and thinking to
myself, oh, my God, we’re going to end up in–with a frozen house. And CPS is going to
come and take my child away because I can’t keep the heat on because of this stupid
mark on John’s credit and there’s nothing we can do. So finally, I mean, I am almost
crying. I’m at work, and I have no idea what to do.
214
When considering that the root of this situation was a demand arising from
an online form contract, the NPR reporter observed: “It feels like we’ve gotten to a
place where, in order to be an informed consumer, you have to be a contract
lawyer with an absurd amount of free time on your hands.”
215
There is only the
smallest fraction of society that would meet this definition.
216
Another specialist in the area has noted that this phenomenon breeds greater
levels of bargaining inequality under circumstances where “[d]ata is becoming
staggering in its breadth and depth, yet often the information most important to
212
Id.
213
Id.
214
Id.
215
Id.
216
See Appelbaum, supra note 154, at 305-306 (“A half century of experience ‘self-policing’ has
amply demonstrated that even the most sophisticated customers are frequently victimized by
financial industry professionals. . . . The average adult obtains a few mortgage loans in a lifetime,
from bankers who make more loans before lunchtime. The paperwork is overwhelming; the
language is impenetrable. And the most vulnerable borrowers often are least equipped to parse
the details.”). The problem of problematic contracts has even reached the doorstep of the very
institution that sponsors this law review, demanding that students engage in the review of
contracts proposing “informed consent” before returning to school in the fall of 2020 amid the
Covid-19 pandemic.See Jonathan Phelps, UNH Students worry about ‘consent agreement’ to return
amid pandemic, Union Leader(July 19, 2020) (“University of New Hampshire students are worried
about a mandatory ‘informed consent agreement’ they must sign to return to campus in the fall,
which they fear could prevent them from holding the school accountable during the pandemic.”)
available at https://www.unionleader.com/news/education/unh-students-worry-about-consent-
agreement-to-return-amid-pandemic/article_8d6370da-274a-5f0d-bf04-cfb990c21017.html
https://perma.cc/5ZMY-S9WQ.
PERVASIVE INFANCY
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us is out of our reach, available only to insiders.”
217
When discussing the extent to
which the American public has bargained away any semblance of privacy without
any understanding of the transactions they have engaged in with commercial
giants like Google and Facebook, another has commented:
Our digital century was to have been democracy’s Golden Age. Instead, we enter its
third decade marked by a stark new form of social inequality best understood as
‘epistemic inequality.’ It recalls a pre-Gutenberg era of extreme asymmetries of
knowledge and the power that accrues to such knowledge, as the tech giants seize
control of information and learning itself.
218
The extreme imbalances in negotiating power in most consumer contracts
render their contracting capacities a nullity. Across mass consumer domains,
sellers exercise overwhelming power to draft uniform terms for contracting that
consumers could not alter through negotiation, even if they wanted to engage the
negotiation process. It is not surprising, then, that consumers pay little attention
to the fine print in most of their consumer contracts.
219
There is no mechanism by which consumers may alter this fine print, which is
pervasive and beyond their grasp to comprehend. Consumers approach these terms
as a fait di accompli. They do so without any ability, predisposition, or incentive to
assess the risk of doing so. Indeed, they even punish themselves through harsh self-
assessments when they face the consequences of having accepted these terms,
adopting an Aristotelian view of contract honor though they face negotiating
partners who deliberately take advantage of their weaknesses to coax them into a
series of self-nullifying bargains.
220
The problem raises the probability that we have experienced private
217
Pasquale, supra note, at 209. In another venue, some argue that new, endorsed forms of
private investment have rendered investors in the private equity firm irrelevant by cutting off the
flow of information and trapping investors in arrangements they cannot exist. See William
Magnuson, The Public Cost of Private Equity, 102Minn. L. Rev. 1848, 1882-84 (2018).
218
Shoshanna Zuboff, You Are Now Remotely Controlled, NY Times (Jan. 24, 2020),
https://www.nytimes.com/2020/01/24/opinion/sunday/surveillance-
capitalism.html#click=https://t.co/RKUJMJZ6ZB https://perma.cc/B2DF-3KXR.
219
See Joseph Blocher, Free Speech and Justified True Belief,Harv. L. Rev. 439, 467 (2019) (“With
unimaginable amounts of information at our literal fingertips . . . there is nonetheless a pervasive
sense of disquiet that we, as individuals and as collective, are facing something like an epistemic
crisis. The sheer volume of information may overwhelm our ability to categorize, process, sort,
and remember. . . . .The degradation of our attention spans makes it hard to engage in deep
thinking and learning. And so on.”) (footnotes omitted).
220
See Matthew A. Seligman, Moral Diversity and Efficient Breach, 117Mich. L. Rev.885, 887 (2019)
(“And because people also tend to think that breaking a promise is wrong, they think they are
subject to a corresponding moral obligation to perform the contract.”) (footnotes omitted).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
116
governmental amendments to the United States Constitution, and its state
constitutional analogs, through mass enforcement of controversial terms within
contracts of adhesion.
221
Perhaps the most salient threats come from terms that
enforce private arbitration awards or disclaim the full gamut of remedies ordinarily
available to Americans injured in the marketplace.
222
Because Americans do not
have a baseline understanding of the importance of their legal rights, they are
generally not aware that they are facilitating a mass, de facto, repeal of
constitutional protections conferred on those among us who are injured by
counterparties responsible for these self-serving changes to our constitution.
223
The standard explanation for this phenomenon avoids the elephant in the
room. By couching the barriers between adults and full agency in terms of
impracticability, for instance, ALI’s proposal soft-pedals the innate and
environmental barriers that face consumers. The proposal does so even as the view
acknowledges that standard remedies that rely on disclosure of terms to render
those terms as salient as possible will not result in “more prudent contracting
decisions.”
224
The future does not suggest that things will get better for consumers. Advances
in technology threaten to create a greater chasm between the abilities of humans
and those of future robotic counterparties that will be able to negotiate with a far
greater capacity to assess risk. The information and information processing
approaches of these counterparties likely will be inaccessible, or unknowable, to
consumers and regulators, even as these new technologies continue the process of
221
See Lina M. Khan, The End of Antitrust History Revisited, 133 Harv. L. Rev. 1655, 1659–61 (2020)
(describing threats concentrated economic power poses to liberty and self-determination).
222
See Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96Harv. L. Rev.1173, 1179
(1983) (“There is one additional aspect of the situation that is not included in the model but still
forms part of the popular conception of the contract of adhesion: the adhering party is in practice
unlikely to have read the standard terms before signing the document and is unlikely to have
understood them if he has read them. Virtually every scholar who has written about contracts of
adhesion has accepted the truth of this assertion, and the few empirical studies that have been
done have agreed.”) (footnotes omitted)
223
See, e.g., Matthew Shaw, Civic Illiteracy in America,Harvard Political Review (May 25, 2017)
https://harvardpolitics.com/culture/civic-illiteracy-in-america/ [https://perma.cc/N9SA-R88D]
(last visited Nov. 16, 2019) (“[T]he American public simply lacks basic knowledge about the
Constitution and the Supreme Court. In fact, a Newsweek survey from 2011 found that 70 percent
of Americans didn’t even know that the Constitution is supreme law of the land. . . . [A] 2016 survey
by Annenberg Public Policy Center of the University of Pennsylvania found that only 26 percent
of respondents could name all three branches of government . . . .”).
224
ALI, Restatement of the Consumer Contracts (Tentative Draft) (April 18, 2019) at 3.
PERVASIVE INFANCY
117
harnessing our cognitive deficits against us to bind us to unfavorable terms.
225
C. Acknowledging infancy as a more realistic baseline
When using categories to define people for the purpose of assessing their legal
rights and responsibilities, courts go through the process of determining whether
the members of a category fit facts established about those subject to the rights and
obligations the category confers or imposes, respectively. Age as a proxy for the
capacity to contract is susceptible to such an assessment.
226
Vastly overinclusive categories, that is, categories that are a bad fit because they
include the intended subjects as well as many more unintended subjects,
demonstrate the deficits of a law.
227
Vastly underinclusive categories, that is,
categories that are a bad fit because they fail to include many intended subjects the
law seeks to regulate, also demonstrate deficits in the law.
228
Nothing about the picture of adult capacities and performance demonstrates
that adulthood, in reality, fits adulthood as a category defined by law.
229
In other
words, nothing about this picture signals that American adults are, in fact, “adults”
possessing those qualities that define what it is to be an adult “under” the law as it
relates to consumer contracts of the sort Judge Easterbrook and others would
enforce against adults. The question is whether the law has access to a category that
constitutes a better fit. This article proposes extended infancy as a better fit, where
other, less encompassing conditions, such as mental illness, old-age, addiction, or
any other status of vulnerability, would minimize facts that demonstrate,
ubiquitous adult vulnerability and incapacity within the domain of consumer
225
Carl T. Bergstrom & Jevin D. West, Calling Bullshit 29 (2020) (“Riffing on Allen
Ginsburg, tech entrepreneur Jeff Hammerbacher complained in 2011 that ‘the best minds of my
generation are thinking about how to make people click ads. That sucks.’ . . . The problem is that
all of this intellectual firepower is devoted to hijacking our precious attention and wasting our
minds as well.”).
226
See, e.g., Howard Eglit, Of Age and the Constitution, 57 Chi.-Kent. L. Rev. 859, 860 (1981)
(“[R]eliance upon age categorizations facilitates decisionmaking. Rather than a program
administrator having to engage in the time-consuming and costly exercise of determining
whether an individual does or does not fit into a programmatic charter, he can rely upon a clear,
indisputable fact—the age of the person involved.”).
227
See Cass Sunstein, Problems with Rules, 83Cal. L. Rev. 953, 992–93 (1995) (providing examples).
228
Id.
229
See Vivian Hamilton, Adulthood in Law and Culture, 91Tulane L. Rev. 55, 59 (2016) (“Scholars
and jurists alike have critiqued the body of law affecting young people as lacking coherence. Much
of the criticism focuses on the challenges posed by attaching different legal consequences to
different ages.”).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
118
contracts.
Infancy is synonymous with minority under the law.
230
In the law of contracts,
contracts entered into with a minor are void or voidable.
231
That is, courts either
determine that no party can save the contract or that one party, the minor, can enact
the contract at his/her/their discretion. The age of minority in the area of contracts
has changed over time. At common law, a person remained an infant until the age
of twenty-one.
232
In the United States, the common law rule was changed in the
1970s, altering the law so that the age of minority ended at the age of eighteen.
233
By
some accounts, “the infant has capacity to contract coupled with an additional
power of disaffirmance.”
234
This has been the law for centuries.
235
The application of the infancy defense to contract law disputes has been highly
contingent. That is, the strength and effect of the infancy defense have depended
upon whether the contract is or was prejudicial, possibly beneficial, or certainly
beneficial to the alleged infant.
236
Similarly, in both tort and criminal law, the law
assesses responsibility based upon demonstrated capacity rather than with
reference to age classification alone.
237
A child’s capacity under the law may even
deteriorate from a prior position of greater capacity at a younger age, depending
upon the circumstances of the child’s life.
238
Explanations for why children are treated differently as a class relate to their
vulnerability and intellectual capacity, and to the interests of parents in directing
230
7 Corbin on Contracts§ 27.2 (2020) (“In everyday language we distinguish between adults
and minors. Lawyers, however, often refer to minors as ‘infants.’”).
231
Id.
232
Id.
233
Id.
234
Id.
235
See 5Williston on Contracts§ 9:2 (4th ed.) (“By the 15th century, it seems to have been
well-settled that an infant’s bargain was in general void at his election, that is voidable, and also
that the minor was liable for necessaries.”); but see Brewer, supra note 75 at 238 (“Although the age
of twenty-one in some cases defined ‘minority,’ it did so only loosely as an outside delimiter, and
only within the common law,” which Brewer describes as far more limited in medieval times).
236
See Williston, supra note 235, at § 9:5.
237
See Abrams, et al, supra note 40, at 835 (“In negligent claims, about a dozen states follow a
‘rule of sevens,’ which holds that children under seven are incapable of negligence as a matter of
law, children between seven and fourteen are presumptively incapable, and children over
fourteen are presumptively capable.”) (citations omitted).
238
Id. at 195 (an emancipated child may secure an order compelling parental support if the child
falls on hard times) (citations omitted).
PERVASIVE INFANCY
119
their activities.
239
Central to the separate status granted to children is the
observation that “children . . . lack the capacity to make sound decisions. Because
of their immature cognitive development, children are unable to employ reasoning
and understanding sufficiently to make choices on the basis of a rational-decision-
making process.”
240
The treatment of minors as requiring greater protection under the law finds
support in child psychology. In the 20
th
century, Jean Piaget, the most well-known
theorist in the area of child cognitive development, proposed “what developmental
psychologists call a stage theory of cognitive development. Stage theories . . . are
those that view development as proceeding in qualitatively different steps, each one
occurring in a set order and typically with an associated age range.”
241
Piaget proposed a theory of development in which children develop in near
uniformity through a series of cognitive stages, reaching ultimate maturation at the
end of these stages.
242
Piaget proposed that children reach their highest potential
competence in late adolescence.
243
This stage is one in which a child is able to
engage in formal operations. At this stage:
[A]dolescence, for the first time, to see reality as only one of several possibilities. This
allows the adolescent to be able to imagine other kinds of realities, ones where different
rules or expectations apply. This new liberation of thought has been described as one of
the sources of adolescent idealism and political awakening. Now that they see that the
existing rules are only one possible way of doing things, they can question the validity
of the rules and propose alternatives…Adolescents’ awareness of different possibilities
opens up for them many different possible paths to the future because they can think
beyond old limits. Thus they can . . . . question social norms, rules, and systems—
including school policies, religious teachings, and political processes.
244
239
See Bellotti v. Baird, 443 U.S. 622, 633–34 (1979) (The United States Supreme Court has
“recognized three reasons justifying the conclusion that the constitutional rights of children
cannot be equated with those of adults: the peculiar vulnerability of children; their inability to
make critical decisions in an informed, mature manner; and the importance of the parental role
in child rearing.”); see also Brewer, supra note 75, at 5–8 (describing evolution of capacity to
contract during Enlightenment).
240
Elizabeth C. Scott, The Legal Construction of Adolescence, 29Hofstra L. Rev.547, 550 (2000); see
also Anne Dailey, Children’s Constitutional Rights, 95 Minn. L. Rev. 2099, 2103 (2011) (“Under choice
theory, the quality of mind most frequently identified as missing in children is the capacity for
cognitive, rational thought.”).
241
Kathleen M. Galotti, Cognitive Development: Infancy through Adolescence 19
(2017).
242
See id.
243
See id. at 39.
244
See id.
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120
However, even according to Piaget, minors, like all people, “do not always
display their highest competence. Instead, his idea was that adolescents who
acquire formal operations have the ability to think abstractly, systematically, and
logically, even if they do not always do so.”
245
Indeed, the research of Piaget’s successors concluded that he greatly
overestimated the capacity of adolescents and adults to engage in the sort of
rational thought process he describes as the highest stage of human cognition.
246
According to one scholar, “research reflects” that “American adults do not often
reason at the formal level,” that is, they do not even reach the stages of developed
thought Piaget associated with late adolescence.
247
Lev Veygotzky, for instance, a 20
th
-century child psychology scholar of similar
standing, challenged Piaget’s lock-step approach to child development. He offered
a competing theory of child development, arguing that “all humans are inextricably
part of a matrix that surrounds them, and their behavior cannot be analyzed or
understood without simultaneously understanding and analyzing that matrix.”
248
Under this perspective, the determination of the child’s capacities requires an
assessment of the child in relation to the child’s environment as a means of
understanding how the child’s environment impacts the child’s development and
capacity.
249
At the upper end is the performance a child is capable of, either with help from an adult
or experienced older child, with the right set of props or tools, or in play. This zone
represents potential development. As the child develops more ability, the zone changes
as well. The important point is that at any given point in time, the child’s ‘true’ ability is
not one level, but actually a range, depending on the circumstances in which the child is
performing.
250
As child psychology developed further, its top researchers continued to deploy
domain-specific theories in which capacity was assessed against a specific
environment in which the actor was asked to perform tasks. They did so because of
the failure of domain-general theories “to account for the heterogeneity of cognitive
245
Id. at 39-40.
246
See David Bjorklund, Children’s Thinking105 (4th ed. 2005).
247
See id. at 85 (Describing “formal operations” as the stage in which children “are able to make
and test hypotheses” and children are “able to introspect their own thought processes and,
generally, can think abstractly.”).
248
Galotti, supra note 241, at 40.
249
Id. at 41.
250
See id.
PERVASIVE INFANCY
121
function” observed in development.
251
In other words, as our assessment of child
capacity developed, specialists focused on specific environments when determining
whether a child’s internal capabilities facilitated capacity within any given specific
environment, without generalizing capacity from one environment to another.
252
These developments challenge categorical theories regarding human
development that assess human capacity at a general level without considering
domain. They also raise questions regarding the current approach to capacity
under contract law, which imposes “a binary classification system, in which
individuals are either minors or adults,” despite the fact that development is
understood to be more fluid and context-dependent than the law acknowledges.
253
A greater level of focus on domain-specific assessments of capacity dovetails
with the most sophisticated treatment of the issue of capacity by legal scholars, who
have observed, that “individuals acquire different capabilities across the course of
their development and exercise them with varying levels of competence in different
contexts.”
254
These same scholars have noted that the capacity to engage in private
and public activities has never been linked to a stable age-cutoff and is, quite often,
linked to questions regarding the domain where capacity is to be exercised.
255
For centuries, for instance, one reached an age of capacity to contract not at the
age of eighteen but at twenty-one.
256
When life expectancies were drastically
truncated,
257
one could not serve as a knight in Medieval England until the age of
twenty-one.
258
Today, one cannot purchase alcohol until the age of twenty-one. One
cannot purchase a credit-card by oneself before that age either.
259
One cannot rent
a car until the age of twenty-five. One remains a child for the purpose of healthcare
251
See Bjorklund, supra note 246, at 18; see also id. at 107 (discussing neo-Piagetian theories,
including an approach that provides that “it is inappropriate to think of a child as ‘possessing’ a
fixed level of skill. Rather, one’s dynamic skills are always changing as a people adjust and
reorganize their skills in response to situations in the environment.”).
252
See id.
253
See Hamilton, supra note 229, at 62.
254
Id. at 59; see also id. at 87 (“Studies have confirmed adolescents’ competence to make rational
decisions, but the contexts in which adolescents make decisions can drastically affect the quality
of their decision making.”) (citations omitted).
255
Id. at 62.
256
Id. at 64.
257
See Eglit, supra note 226, at 865 (noting that ”Few people lived to see their 60s and 70s in
eighteenth century America.”).
258
Hamilton, supra note 229, at 62.
259
Id. at 71.
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
122
until the age of twenty-six.
260
One cannot serve as a member of the United States
House of Representatives until the age of twenty-five, cannot serve as a United
States Senator until the thirty, and cannot serve as President or Vice President of
the United States until the age of thirty-five.
261
One loses capacity under the law as well. One can become a commissioned
member of the United States military until the age of thirty-five with domain-
specific exceptions for service as a chaplain or medical officer up to the age of forty-
seven.
262
One loses the power to serve as a judge in state courts throughout the
nation at seventy to seventy-five.
263
Thus, our laws have a demonstrable, deep, if imperfect, tradition of modulating
standards about age and capacity, many of which are designed to fit the domains in
which capacity is demanded.
264
In other words, our law has demonstrated an ability
to change its perspective on adult capacity and render domain-specific conclusions
about adult capacity in many fundamental areas of American life.
If we take this approach to consumer contracts, we must conclude that, even
though children reach what might be characterized as general levels of intellectual
and cognitive development associated with adulthood before the age of eighteen,
there is no evidence that children ever reach a stage of capacity with regard to
consumer contracts as currently devised.
That is, children never reach an age where they will pay attention to,
understand, or affect their contract rights, given the nature of the consumer
contracts they are said to have entered into by our courts of law. This article thus
proposes that courts should permit adults to litigate the question of their own
capacity and to render void contracts or contract terms that they have entered into
with capacities that in no way differ from the capacities of minors who may seek
similar relief.
260
Id. at 58.
261
See Eglit, supra note 226, at 864 (citing U.S. Const. art. I, §§ 2–3, art. II, § 1).
262
See Stewart Smith, Maximum Age to Become an Officer in the Military, The Balance Careers (June
6, 2019), https://www.thebalancecareers.com/maximum-age-to-become-officer-in-military-3354
085 [https://perma.cc/S8AY-5GCT].
263
See Malia Reddick, Mandatory Retirement Ages for Judges: How Old is Too Old to Judge? IIALS Blog
(July 22, 2015), https://iaals.du.edu/blog/mandatory-retirement-ages-judges-how-old-too-old-
judge (last visited Jan. 26, 2020) [https://perma.cc/BX4N-D6TW] ((“According to the National
Center for State Courts, 32 states require at least some judges to retire at a certain age—usually
between 70 and 75.”).
264
See Brewer, supra note 75, at 17 (describing the passage of law in colonial Virginia “making
the elections of all those under age twenty-one void”) (footnote omitted).
PERVASIVE INFANCY
123
D. “Extended Infancy” Meets the Theoretical Demands of Contract Law
The proposal may seem radical.
265
Yet for most American adults, under our
current conceptualization of adulthood, our status as relevant contract actors is
becoming more tenuous by the day.
266
Trends suggest that marketing technology
will only continue to harness human vulnerabilities in a manner that drastically
threatens commercial free agency.
267
Capacity and agency questions will become
even more acute as large firms accelerate their reliance on AI to widen the gap
between corporate and individual capacities in the area of contract negotiations.
268
This is true even as the standard sources of strength and protection have proved
themselves insufficient to remedy the problems.
269
Recent reports indicate that
firms design communication and marketing strategies to take advantage of the
mass illiteracy of adult Americans in the digital world. Among other things, they do
so to mine information about children for their own marketing purposes and even
for the purpose of conducting surveillance upon them.
270
265
Cf. Stephen Sugarman, Doing Away with Tort Law, 73 Cal. L. Rev.555 (1985) (suggesting that
the law of torts should be replaced because it fails to achieve its stated ends).
266
See, e.g.,Peter H. Diamandis & Steven Kotler , The Future is Faster Than You Think
36–37 (2020) (describing how AI has “invaded finance, insurance, retail, entertainment,
healthcare, law, your house, car, telephone television, even politics”).
267
See Alter, supra note 16, at 39 (describing behavior addiction to technology as an
intergenerational cycle of addiction).
268
See, e.g., Beverly Rich, How AI is Changing Contracts,Harvard Bus. Rev., Feb. 12, 2018, at 2, 3
(“AI software . . . can easily extract data and clarify the content of contracts. . . . It can let
companies review contracts more rapidly, organize and locate large amounts of contract data
more easily, decrease the potential for contract disputes, and in create the volume of contracts it
is able to negotiate and execute.”); Marco Iansiti and Karim Lakhani, Competing in the Age of AI,
Harvard Bus. Rev., Jan.-Feb. 2020, at 61, 67 (“The potential for businesses that embrace digital
operating models is huge, but the capacity to inflict widespread harm needs to be explicitly
considered.”); see also Safiya Umoja Noble, Algorithms of Oppression 1 (2018) (“On the
internet and in our everyday uses of technology, discrimination is also embedded in computer
code and, increasingly, in artificial intelligence technologies that we are reliant on, by choice or
not. I believe that artificial intelligence technologies will become a major human rights issue in
the twenty-first century.”).
269
See, e.g.,Restatement (Third) of Consumer Contracts(Tentative Draft) , supra note
224, § 1, Reporters’ Notes at 14 (“Professional transactors accumulate experience and expertise,
which help them recognize the various aspects of the transaction, including the non-negotiated
standard contract terms. Consumers, in contrast, do not have the same experience and
expertise to draw on.”).
270
See, e.g., Hua Hsu, Instagram, Facebook, and the Perils of Sharenting,New Yorker(Sep. 11,
2019), https://www.newyorker.com/culture/cultural-comment/instagram-facebook-and-the-
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
124
Other reports indicate that sophisticated firms have taken advantage of the
cognitive disabilities of even the most educated and experienced professionals,
physicians prescribing opioids, to get physicians hooked on their addictive drugs as
a standard treatment method. Still other reports indicate that academics pawn
their services for the express purpose of sowing confusion and doubt in the minds
of the general public around consumer safety questions.
271
Consider, as an example, the much-publicized report disseminated by CNN, the
New York Post, Vice, and through Twitter, that, “in a survey of 737 beer-drinking
Americans, 38 percent said they ‘would not buy Corona [beer] under any
circumstances now,’” in the aftermath of the outbreak of a new, virulent form of
coronavirus.
272
Another news outlet has reported that the survey included a series
of obviously flawed and biased elements “that journalists working for outlets from
CNN to the New York Post” failed to disclose, including that “[o]f those Americans
who did report regularly drinking Corona, only 4 percent said they would not stop
drinking the beer.”
273
One credible conclusion one might draw is that:
perils-of-sharenting [https://perma.cc/9EQC-JTPA] (“The underlying problem with sharenting is
the same with many adult-world surveillance and privacy issues: the bargain we have made in
exchange for these services is that we surrender our data and choose not to imagine the worst-
case scenarios. At a time when we’re increasingly aware of data privacy and surveillance, what
unforeseen consequences might there be to maintaining what Plunkett terms a ‘digital
dossier’—especially one that stretches all the way back to the parents’ gleeful Facebook post
revealing that they are expecting;Anya Kamenetz, The Problem with ”Sharenting”,N.Y. Times
(June 5, 2019), https://www.nytimes.com/2019/06/05/opinion/children-internet-privacy.html
[https://perma.cc/F6LB-T3SX] (“Benjamin Herold detailed in Education Week how private
companies are monitoring student assignments, emails and even social media posts. Students
have become accustomed to the surveillance.”). The law appears indifferent to this state of
affairs. See, e.g., Gregory Klass, Empiricism and Privacy Policies in the Restatement of Consumer
Contract Law, 36 Yale J. on Reg.45, 48 (2019) (“There exists no . . . general law of data privacy in
the United States. Instead, a business’s use of its consumers’ information is subject to a
patchwork of federal and state laws.”).
271
SeeNaomi Oreskes & Erik M. Conway, Merchants of Doubt6 (2010) (“In case after case,
Fred Singer, Fred Seitz, and a handful of other scientists joined forces with think tanks and
private corporations to challenge scientific evidence on a host of contemporary issues. In the early
years, much of the money for this effort came from the tobacco industry; in later years, it came
from foundations, think tanks, and the fossil fuel industry. They claimed the link between
smoking and cancer remained unproven.”).
272
Yascha Mounk, What the Dubious Corona Poll Reveals: Americans Are Desperate to Believe the Worst
about One Another,The Atlantic (Mar. 6, 2020), https://www.theatlantic.com/ideas/archive/2020
/02/about-corona-poll/607240/ [https:// https://perma.cc/F37P-J555].
273
Id.
PERVASIVE INFANCY
125
The strange virality of the Corona poll demonstrates that there are ruthless PR flacks
who are willing to play fast and loose with the truth. It also shows that there are many
journalists at supposedly trustworthy news outlets who are so desperate to rush to
publication that they can wind up misinforming their public. (What else is new?).
274
The success of these efforts across professional and media sources of
information has had catastrophic consequences for vulnerable adults.
275
At least
one conclusion we should draw from this information is that even those we might
say are the strongest adults among us, strong enough to serve as proxies for other
adults where we are not competent, are not as strong as they must be to protect us
from the predatory nature of contemporary commercial life.
276
The demonstrable permeability of these traditional protections provides yet
another factor about the environment in which adults contract that challenges the
notion that adults can reliably access information through experts and specialists
274
Id.; see alsoZuboff, supra note 19, at 7 (“A detailed analysis of Nest’s policies by two University
of London scholars concluded that were one to enter into the Nest ecosystem of connected devices
and apps, each with their own equally burdensome and audacious terms, the purchase of a single
home thermostat would entail the need to review nearly a thousand so-called contracts.”).
275
See Shahram Ahari, I Was a Drug Rep. I Know How Pharma Companies Pushed OpioidsWash.
Post, Nov. 26, 2019, https://www.washingtonpost.com/outlook/i-was-a-drug-rep-i-know-how-
pharma-companies-pushed-opioids/2019/11/25/82b1da88-beb9-11e9-9b73-fd3c65ef8f9c_story
.html [https://perma.cc/QP9F-4CND] (describing how pharma marketing effected opioid
prescription practices resulting in the consequences of over-prescription); Cynthia M. Ho, A
Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection,
94 Indiana L. Rev. 773, 775 (2019) (“Is more information always better? First Amendment
jurisprudence takes this as a given. However, when information is only available from a self-
interested and market-savvy pharmaceutical company, more information may simply lead to
more misinformation. . . . Doctors are susceptible to the same largely unconscious cognitive
biases as all individuals” that render them susceptible to marketing techniques deployed by
pharmaceutical firms.).
276
This issue has been identified as one facing modern democracy more generally. SeeRussell
Muirhead & Nancy Rosenblum, A Lot of People are Saying 125–26 (2019) (“Democracy
sometimes depends on trust in communities of special knowledge because it is impossible for
every person to work up a scientifically grounded understanding of every domain of expertise that
is relevant to politics.”). At least one author suggests that software designed as benevolent
artificial intelligence is not designed to protect people in dire situations beyond their general
comprehension.See Greg Callaghan, Robo Advisers: An Argument for More Information
Solicitation and Disclosure to Satisfy Fiduciary Duties 14 (Dec. 18, 2019) (unpublished manuscript)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3506507 [https://perma.cc/2XN6-63U3]
(describing how automated investment advisors failed investors during the 2008 financial crisis
because they were not equipped to provide advice inside stressed market circumstances).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
126
in order to protect their interests in the marketplace.
277
In response, the approach this article takes in support of the individual
autonomy and freedom which the mechanism of a contract would otherwise
provide is to acknowledge our limitations in a world that imposes shifting
environmental constraints and pressures upon which our capacities are
contingent.
278
In this article, these constraints take the form of complex,
unreadable, unread, and sometimes hidden contract terms that no consumer has
the power to negotiate, regardless of their intelligence, foresight, wisdom, or other
internal capabilities.
279
The extension of the infancy doctrine protections to adults in this manner
provides a solution to the problem of the consumer contract within the larger
domain of contract law. The solution would create additional protections adults
277
Continued faith in the role of the protections professionals confer has caused some to
double-down on their faith in fiduciaries, with powerful critiques leveled at such an approach.
See Lina M. Khan & David E. Pozen, A Skeptical View of Information Fiduciaries, 133Harv. L. Rev. 497,
499-501, 516-17 (2020) (critiquing a fiduciary model that would repose obligations on companies
such as Facebook though such companies have pursued strategies that prey on human
vulnerability that suggest they may not be best positioned to serve that role).
278
See, e.g., Christine Jolls, Behavior Economics and the Law at 1 (2010) (“Rather than
focusing on how a theoretical and often highly unrealistic ‘homo economicus’ might make
decisions, economics has increasingly turned its sights to analysis based on how real people
actually behave. Such behavioral economics analysis seeks to enhance the predictive power of
economics by improving its underlying model of human behavior.”); see also Bloom, The
Republic of Plato
123 (1968) (“But in truth justice was, as it seems, something of this sort;
however, not with respect to a man’s minding his external business, but with respect to what is
within, with respect to what truly concerns him and his own. He doesn’t let each part in hm mind
other people’s business . . . but really sets his own house in good order and rules himself . . .”);The
Politics of Aristotle207 (T.A. Sinclair trans. 1992.) (“In every kind of knowledge and skill the
end which is aimed at is good. . . . In the state, the good aimed at is justice; and that means what
is for the benefit of the community. Now all men believe that justice means equality in some
sense, . . . they hold that justice is some entity which is relative to persons, and that equality must
be equal for equals.”); see also Eric Rakowski, Equal Justice 1–2 (1991) (applying ancient
philosophy to contemporary questions and asserting that a just society must endeavor to
“eliminate discrepancies that cannot be traced to individuals’ choices”).
279
Cf.Sunstein, supra note 15, at 62 (“In both rich and poor countries, complexity is a serious
problem, in part because it causes confusion . . . in part because it can increase expense . . . and in
part because it deters participation in important programs. . . . As a general rule, programs should
be easily navigable, even intuitive. In many nations, simplification of forms and regulations
should be a high priority.”); see also id.at 63–64 (“Simplicity is exceedingly important. . . . In some
settings, disclosure can operate as a check on private or public inattention, negligence,
incompetence, wrongdoing, and corruption.”).
PERVASIVE INFANCY
127
now need in commercial life. It also meets the goals of the major schools of thought
in the area of contract law in contemporary times.
280
It does not presuppose capacity, as is the case with respect to amorphous
defenses, such as unconscionability, which have been ineffective in protecting the
law of contract from the threat of unintelligibility.
281
It does not presuppose a
relevant difference between those adults who suffer from diagnosed mental
illnesses and those who do not inside the domain of consumer contracts.
282
Indeed,
it assumes that all adults require protections arising from pervasive vulnerabilities
that the law otherwise refuses to acknowledge.
283
It also rejects “empty vessel”
doctrines that courts acknowledge through lip-service while dismantling in
application. These include extra-contractual “protections” such as the doctrine that
contracts include implied good faith obligations.
284
280
See Radin, supra note 18, at 57 (“Philosophy of contract has two main branches: welfare
theories and autonomy theories. Welfare theories, stemming from Bentham, involve the
maximization of social welfare based on subjective individual choices; autonomy theories,
stemming from Kant, involve individual rights derived from the state of freedom of the will.”); see
also Nathan Oman, The Dignity of Commerce8 (2016) (“Broadly speaking, two contending
families of arguments dominate modern contract law theory.”).
281
See Edith R. Warkentine, Beyond Unconscionability: The Case for Using “Knowing Assent” as the
Basis for Analyzing Unbargained-for Terms in Standard Form Contracts, 31Seattle U. L. Rev. 471, 472
(2014) (“The unconscionability approach requires individual contracting parties to raise the
defense and prevail in litigation. However, parties who lack bargaining power will generally also
lack the knowledge that they have a legal challenge to the enforcement of terms, and the financial
means to litigate.”); see also Anne Fleming, The Rise and Fall of Unconscionability, 102 Geo. L. J.1383,
1386 (2014) (“By the dawn of the twenty-first century, unconscionability had lost much of its initial
promise as a tool for protecting poor consumers.”).
282
Cf. Sparrow v. Demonico, 960 N.E.2d296 (2012) (ruling that incapacity may be established in a
party in the absence of a diagnosed mental illness if that party cannot rationally comprehend or
understand the nature of the transaction).
283
In patchwork fashion, the law has recognized this, haltingly, in the area of noncompete
contracts. See Jamie Maggard & John Vering, Overreaching Covenants Not to Compete Under Attack
from All Sides, American Bar Assoc., (Dec. 26, 2018) at https://www.
americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice
/2018/overreaching-covenants-not-to-compete/ [https://perma.cc/67X4-9AKP] (describing
common law and statutory restrictions on the enforceability of covenant not to compete contracts
against employees). For a discussion of general philosophical limitations to notions that justice
equates with the enforcement of all so-called voluntary transactions, see G.A.
Cohen, Self-
Ownership Freedom and Equality
21 (1995) (“Perhaps the strongest counter-example of this
would be slavery. We might then say: voluntary self-enslavement is possible. But slavery is
unjust.”).
284
See Michael P. Van Alstein, Of Textualism, Party Autonomy, and Good Faith, 40Wm. & Mary L.
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
128
In so doing, this article meets the goals of theorists who have supported a
promise-focused theory of contract law. This school’s most famous exponent is
Professor Charles Fried, through his book Contract as Promise. Fried argues that the
law of contracts should enforce promises that reflect true, mature, contracting
agency through adults who take their freedom as seriously as he believes they
should.
285
This article does not contest that Professor Fried’s principles provide a strong
basis for enforcing contracts. Instead, it argues that there are fewer contexts in
which his principles should apply than he might defend given what we know about
adult capacities and the venue in which those capacities must thrive: the form-
ridden venue of consumer contracts. It maintains that an unrealistic position that
denies adult incapacity undermines rather than furthers the interests of the sort of
empowerment Fried embraces. This occurs as a result of a law of contracts that, in
effect, undermines any credible confidence that both parties to a contract will
engage in the sort of promises he describes.
286
It also answers arguments offered by the welfare or consequentialist school of
contract scholarship. It does so by sharpening the law’s focus on the costs and
benefits of the rules governing our transactions, bringing law closer to empirical
reality and so promoting greater efficiency and better social outcomes.
287
It
accomplishes that end, at least in part, by recognizing that there is often true,
Rev. 1223, 1224 (1999) (“[T]he 1990s have witnessed the rise of a new textualist approach to the
contractual duty of good faith . . . In its extreme form, this view holds that every expressly
conferred contractual power is presumptively absolute and unrestricted. Because the parties’
writing reflects the sole repository of interpretive evidence, the textualist logic runs, every such
express power renders altogether irrelevant any ‘implied’ notions of ‘good faith’ and ‘fair
dealing.’”).
285
See, e.g.,Charles Fried, Contract as Promise 7 (2d ed. 2015) (“It is a first principle of
liberal political morality that we be secure in what is ours—so that our persons and property not
be open to exploitation by others, and that from a sure foundation we may express our will and
expend our powers in the world.”).
286
See Clough, supra note 26, at 478–79 (“[I]f an individual is deemed to have mental capacity,
either because they do not have a mental disorder, or because a low threshold test of capacity is
set . . . then sources of vulnerability are ignored or obscured, and the means of addressing them
are similarly discounted in the name of respecting autonomy. This does not make vulnerability
disappear, as there is no state of invulnerable, but it does allow the systems and institutions
perpetuating disempowerment to endure.”) (internal citations omitted)
287
See, e.g., Robert Cooter &Thomas Ulen, Law and Economics 202 (5th ed. 2007) (“In
general, economic efficiency requires enforcing a promise if the promisor and promise both wanted
enforceability when it was made.”); id. at 280 (noting that “stable, well-ordered preferences” are
“violated” by “incompetency” and “incapacity”).
PERVASIVE INFANCY
129
unrecognized, value in the rights American adults sign away without
understanding them.
288
One can imagine that, as a result of a change in rulesets, incentives will arise
that will empower the market to support technology that facilitates true negotiation
and decision-making, which, in turn, could result in a series of returns to society.
In a legal environment that deemed take-it-or-leave-it contracts with
incomprehensible terms subject to the challenge that they are not contracts because
they render the counterparty incompetent, technology that facilitated negotiation,
translation, and tailored pricing could arise to restore consumer capacity. One set
of returns under this regime would be a more empowered and engaged consumer
population positioned to return greater levels of tailored choice to the marketplace
for the purpose of encouraging an ever more efficient market.
In the process, it relies upon advances in the field facilitated through findings
from the fields of cognitive psychology and behavior law and economics. Those
schools of thought have demonstrated cognitive barriers to considered decision-
making inside a world of commerce that moves at an ever-increasing pace and have
laid waste to the notion that adults should be deemed presumptively rational and
thus capable.
289
Incorporating this perspective, this article would place the risk of breach with
the competent party who may more efficiently protect the interests of an
incompetent party.
290
In this regard, it proposes that if the drafter of a consumer
contract truly wants to strike an agreement with a counterparty, then the drafter
must draft a contract that the counterparty will understand in a manner that signals
true agreement. It may be that the consequence of this is that only the most salient
288
See id. at 225 (“Dire constraints [to rationality] destroy freedom of action.”); see also Richard
Posner, Some Uses and Abuses of Economics in Law, 46 U. Chi. L. Rev. 281, 288–89 (1979) (“The
hypothesis . . . is that . . . the law brings the economic system closer to producing the results that
effective competition—a free market operating without significant externality, monopoly, or
information problems—would produce.”).But seeLiam Murphy & Thomas Nagel, The Myth of
Ownership
(2002) (noting that arguments about “efficiency” and “growth” “must provide not
only an explanation of why the favorited policy has those virtues, but also an argument of political
morality that justifies the pursuit of grown or efficiency regardless of other social values.”).
289
See Kahneman, supra note 186, at 19-20 (describing two systems of cognition, slow and fast
thinking, and the ways in which they affect and warp judgment and decision-making).
290
See id. at 281 (“Competent contractual partners are usually better situated than anyone else
to protect incompetent people from harmful contracts.”); see Herring, supra note 18, at 48 (“A
contract law based around the norm of a vulnerable contractor might impose duties on us to look
out for those we contract with, to enter into contracts in good faith, and not give effect to contracts
[which] are clearly unfair to one side or the other.”).
THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:1 (2020)
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or obvious terms will be enforced. If that is the case, the drafters of contracts will
engage in a greater level of engagement regarding the terms they value to ensure
that those terms are understood as part of the bargain.
291
The solution this article proposes also meets the demands of critical race and
feminist schools of contract law by acknowledging and adjusting to power
dynamics that have deepened an imbalance between promisors and promisees in
the contract arena.
292
It seeks to accomplish the goal by reining in the predatory (or
at least amoral) contract-drafting approaches of large companies.
293
To the extent
more powerful actors in society have reshaped contract doctrine to exert greater
control over less powerful actors, this article asserts a reform that acknowledges
that fact, and seeks to rebalance the power imbalance by granting greater legal
rights to less powerful actors.
Within this school, this article responds to the claim that it is rendering all so-
called “adults” “enfeebled” in a manner that would expose them to the treatment
Carrie Buck received from Holmes and his colleagues with following question: Do
you accept an approach that would crush the vulnerable as following from an
acknowledgement of vulnerabilities?
V. CONCLUSION
Consumer contracts are not contracts. They are one-sided expressions of a
more powerful party’s preferences drafted by attorneys working for companies and
foisted on consumers who have no idea what they mean and no ability to negotiate
as coequal parties to the deal. If contracts are to continue to be taken seriously as a
form of memorializing free choice among Americans, understanding and
incorporating into the law the true and substantial limits on what we call adult
291
See Sunstein, supra note 15, at 60 (arguing that simplicity and transparency are
fundamental to regimes based on freedom of choice).
292
See generally Duncan Kennedy, Form and Substance in Private Law Adjudication,Harv. L. Rev.
1685 (1976); see also Charles Fried, The Ambition of Contract as Promise in Philosophical
Foundations of Contract Law17, 18–21 (Gregory Klass et al. eds., 2014) (describing the critical
school as revealing how contract law doctrine is a product of power dynamics among competing
forces).
293
See Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120Harv. L. Rev. 708, 712
(2007) (“The content and normative justifications of a legal practice – at least one that is pervasive
and involves simultaneous participation in a moral relationship or practice—should be capable of
being known and accepted by a self-consciously moral agent.”); see also Seligman, supra. note 220
at 887–88 (2019) (describing a divergence in views about the morality of contract obligations and
its implications for society);Gordley, supra note 73 (tracking the history of modern contract law
to Aristotelian and Thomistic notions of virtue).
PERVASIVE INFANCY
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capacity is necessary.
Such an understanding would permit adults to put their vulnerabilities forward
within disputes to demonstrate how their business counterparts have sought to
take advantage of those vulnerabilities to obtain advantages that could not be
justified under any justified concept of contract law. As this article demonstrates,
the most straightforward way of doing this is to permit adults to argue that they do
not have adult capacity and that they should be permitted to access the defense of
infancy to render contracts or contract terms void. As this article further
demonstrates, such an approach would have theoretical and institutional benefits
that would justify the adoption of this proposal.
