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How ’bout Them Apples?: the Power of Stories of Agreement in Consumer Contracts


Contract scholars continue to grapple, perhaps today more than ever, with the challenge posed by proliferating standard terms in consumer contracts. None, however, has sufficiently explored the role of narratives of agreement in furthering inequity or exacerbating existing disparities in power. This Article reveals the ways that stories of agreement themselves can be a form of power to be leveraged by firms at the expense of consumers—especially in connection with procedural contract terms. In addition, this Article shows how the stories told by courts reveal shared norms of fairness that purport to enable the possibility of agreement. The Article thereby identifies an aspirational approach to contract that, by its own terms, seeks to further an ideal of agreement involving knowledge and deliberation. This approach is particularly manifest in courts’ insistence upon notice of terms as a baseline for enforcement. In addition, the doctrine of the duty to read, as a response to the possibility of misunderstanding the meaning of signs, makes salient the inherent function of contract law in establishing conventions of agreement and thus allocating power. This Article argues that we cannot assess proposed interventions in the area of consumer contracting unless we consider the aspirational narrative of agreement underlying contract doctrine, as well as the substantive way and the context of power in which this narrative operates. Thus, we must also examine the ways in which stories of agreement can be leveraged by powerful parties in conversation with courts to subvert this aspiration in practice. The Article thereby lends further support for the presumptive unenforceability of predispute-arbitration, forum selection, and unilateral-modification provisions in certain consumer contexts. More broadly, it highlights contract as the site at which the definitions of freedom and agency continue to be negotiated in America today.