Oren Bar-Gill, Omri Ben-Shahar & Florencia Marotta-Wurgler, Searching for the Common Law: The Quantitative Approach of the Restatement of Consumer Contracts, 84 U. Chi. L. Rev. 7 (2017).
Abstract: In 2012, the American Law Institute asked us to serve as reporters for a new Restatement of Consumer Contracts. Recognizing that many innovations in American contract law in the past generation occurred in the area of consumer transactions, the project seemed timely and challenging. We discovered that many of these innovations are controversial and seemingly subject to conflicting approaches in the case law and heated debates among commentators. We also discovered that prior attempts to devise a unified set of rules have largely failed. We therefore decided to take a new approach to our search for, and restatement of, the emerging rules. In addition to identifying the majority rules, we used an empirical approach that involved collecting, coding, and systematically analyzing the entire body of court decisions on relevant questions. We identified the degree of support that different rules garnered in courts and the rate at which they were adopted or rejected over time. We thus discovered which rulings and rationales serve as guiding precedent. We based the black-letter rules in the final draft of the Restatement of Consumer Contracts on these findings (complementing them with qualitative support). In this Essay, we present our empirical approach to searching for the law and legal precedent, discuss its conceptual and normative foundations, and describe some of the doctrinal debates it helped resolve.