Document Type

Article

Publication Date

7-2017

Abstract

The draft Restatement of the Law of Consumer Contracts includes six quantitative studies of judicial decisions, each used to support a rule or comment.

This article examines the draft’s study of privacy-policy decisions, which the draft relies on for a comment stating that business privacy policies are generally treated as contract terms. This article finds that the data for the privacy-policy study provide only limited support for their proposed comment, and much less than the draft suggests. Whereas the Reporters find forty cases in their dataset reaching a holding on the question, this study finds only fifteen. And whereas the Reporters find that courts are seven times more likely to hold that a privacy policy is a contract term than not, this study finds that the ratio is less than three to one. Given the small sample size, this weaker observed effect not enough either to predict case outcomes or to infer the rule courts are applying. Nor does this study find significant support for the draft’s claim that there is a clear trend toward enforcing privacy policies in contract. And this study finds no support for the claim that the most-cited cases are those supporting the proposed comment.

In addition to presenting these results, the article discusses why coding privacy-policy decisions can be especially difficult, and the results of that coding sometimes indeterminate. The numbers in quantitative studies of case outcomes can mask the many interpretive judgment calls needed to support them. These results suggest several common-sense methodological lessons that apply to quantitative caselaw studies generally. They also suggest that the Restatement process might be ill suited to producing large-scale quantitative studies of judicial decisions.

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