I had the good fortune to attend the annual meeting of the American Council on Consumer Interests (“ACCI”) in Clearwater Beach, Florida last week. The ACCI may have assembled the nicest group of people I have ever been around; if they are not in first place for “nicest” in my experience, I cannot recall who would be.
The ACCI members as a group shied away from labels. They did not seem to want to be pinned down even as “academics” or as “regulators.” Their membership is united in its devotion to scholarship regardless of labels. They support one another’s research projects as they focus on the results of their collective research. In short, they focus on evidence.
For example, one presentation featured research which seriously challenges the legal concept of “consent.” In the Roberts Court in Washington, D.C., some five of the Justices accept the notion for example that if a provision is in a contract it only has to be understandable or understood to be legally valid. That point of view is perhaps typical of the law in the abstract, namely, from the point of view of the actor, of the defendant charged with not doing enough to make a contract provision understandable, in this case.
The presentation at the ACCI which touched upon this concept shows that from the point of view of the recipient of the information, even though the contract language may be understood it is still not believed particularly when the contract language would, if enforced by the Courts, take away Constitutional rights. In other words, simply because a contract is understood to take away Constitutional rights does not make many people believe that a contract can do that; it is just the opposite for many people. Here is the publicly available abstract of the research article underlying this presentation: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2516432. The results show the recipients’ point of view of the concept of consent, then: Even though something is understood does not make it true.
In the arena of forced arbitration clauses, five of the current Justices on the U.S. Supreme Court reach the opposite conclusion from the point of view strictly of the party writing the contract: If it is understood, there is consent regardless of whether the provision takes away even Constitutional rights.
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