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Consumer Form Contracting in the Age of Mechanical Reproduction

The Unread and the Undead

What has happened to contract since Grant Gilmore famously pronounced it dead in 1974? This Article points a way past theoretical paralysis caused by the perplexing mismatch between doctrine devised for living and breathing contracts, and behaviors of courts and contracting parties produced by what we refer to as “zombie exchange.” “Zombie contracts” are not the same as contracts produced from what we call “archetypal exchange,” but it is often hard not to acknowledge the legal form in which zombie contracts clothe themselves. Yet individuals likely feel the pre-mortem pull of a moral obligation to do as promised because the zombie contract uses the shell of archetypal exchange to create the impression of a promise that should be kept. This paper explores why contract zombification is costly: individuals trust the rule of law less, respect contracts less, are less able and less willing to consume important disclosed information, and are more likely to retaliate in asocial or illegal ways. We ultimately propose a means of reducing these costs with augmented transparency through a neutral source.

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