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The draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contracts. This article reports an attempt to reproduce that study’s results. Using the original study’s data, this study was unable to reproduce its numerical findings. This study found in the data fewer relevant decisions, and a lower proportion of decisions supporting the Restatement position. This study also found little support for the claim that there is a clear trend recognizing enforcing privacy policies as contracts, and none for the claim that those decisions have been more influential. A qualitative analysis of the decisions in the dataset reveals additional issues. The Restatement study’s numerical results obscure the many judgment calls needed to code the decisions, and hide factors that reduce the persuasive power of the decisions it relies on. These results point to the importance of transparency and replication in empirical caselaw studies. They also suggest that the closed nature of the Restatement process is perhaps ill suited to producing reliable large-scale quantitative caselaw studies.

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Gregory Klass, Empiricism and Privacy Policies in the Restatement of Consumer Contract Law, 36 Yale J. on Reg. (forthcoming)