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Deterring Unenforceable Terms

Contract law doesn’t work the way most people—that is, most nonlawyers—think it works. People think that if they agree to a contract, they are bound by its terms—no matter if those terms are unfair or legally unenforceable. But that’s not correct. Although there is a default presumption that the law will enforce terms that parties agree to, courts can and do decline to enforce terms when they are contrary to statute, regulation, or common law.

This is a bad arrangement. Because people do not understand how enforceability works, contract drafters can include unenforceable terms and benefit from them even when they are contrary to law. Clearly unenforceable terms are used in a wide range of cases, and those terms impose costs on consumers and employees despite being formally toothless.

This Article argues for a change. The problems of unenforceable terms arise from the burden of determining whether a contractual provision is enforceable. The current law makes little effort to allocate or mitigate that burden. But in a common scenario—where a sophisticated actor drafts mass contracts for many unsophisticated counterparties—the drafter is much better positioned to determine the contract’s enforceability. The law should therefore penalize such drafters for including clearly unenforceable terms in their contracts. This Article describes the basic normative case for such a penalty, considers how it might best be designed, and assesses the opportunities and limitations in existing law for applying a penalty to deter the use of unenforceable terms in mass contracts.

Introduction

Contract law has a process problem.

The law governing contracts is full of protections for the people who are party to a contract. Over the centuries, judges at common law have determined that a variety of potential provisions are too unfair to permit. In the modern era, legislators have passed statutes that prohibit a wide range of terms. And regulators have promulgated rules to limit what companies can put in a contract.

But to enforce these protections, contract law often relies on a flawed procedure. The background norm in contract law is that a provision that is contrary to law will not be enforced in court. And that makes sense—where the terms of an agreement violate doctrine or public policy, there is a strong argument that the state should not enforce those terms. But, other than nonenforcement, there is no general default penalty for using unenforceable terms. Individual statutes or regulations may attach a penalty for using a particular term, such as when a statute creates a penalty for including contractual provisions purporting to waive the statute’s protections.1 1.See, e.g., 15 U.S.C. §§ 1693l, 1693m.Show More But absent such a specific regulation, the law does not penalize a party’s choice to include an unenforceable term in their contracts.

The problem is that this arrangement does little to prevent the use of unenforceable terms in the first place.2 2.See Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law 147 (2013).Show More Most contracts do not get litigated. Most people, meanwhile, take the terms of the contracts they sign at face value, not realizing that a term may be unenforceable and carry no legal weight.3 3.See infra Section I.B.Show More As a result, a sophisticated drafter who puts unenforceable terms in their contracts may reap the benefit of those terms by influencing their counterparties’ behavior.4 4.Radin, supra note 2.Show More An employee who thinks they are bound by an unenforceable noncompete clause may decline to look for a better job; a consumer who thinks they are bound by an unenforceable liability waiver may not file a lawsuit even when they are entitled to damages.

And if the contract does end up in litigation, the term at issue is just rendered a nullity, making the drafter no worse off than if the term had not been included. On balance, then, contract drafters often are incentivized to include unenforceable terms and try to get whatever value out of them that they can, short of relying on them in court.5 5.Id.Show More

This arrangement is the result of a legal system that typically does not recognize a particular type of burden: the burden of learning what the law is and how it applies in a given context. To the contrary, courts embrace a clear legal fiction: that parties to a contract “are presumed to know the law.”6 6.E.g., R.L. Polk Printing Co. v. Smedley, 118 N.W. 984, 984 (Mich. 1908); BPP069, LLC v. Lindfield Holdings, LLC, 816 S.E.2d 755, 761 (Ga. Ct. App. 2018) (“[A]ll persons are presumed to know the law and therefore cannot be deceived by erroneous statements of law.” (quoting Lakeside Invs. Grp., Inc. v. Allen, 559 S.E.2d 491, 493 (Ga. Ct. App. 2002))).Show More As a result, although the law puts the onus on a contract drafter to write clear and intelligible terms,7 7.See, e.g., David Horton, Flipping the Script: Contra Proferentem and Standard Form Contracts, 80 U. Colo. L. Rev. 431, 437–38 (2009) (noting that the contra proferentem doctrine “deters imprecision” and describing its deterrent effects in the context of standard form contracts).Show More it does not typically penalize a drafter for writing unenforceable terms. The burden of understanding the enforceability of a term “lies where it falls,”8 8.Cf. Filosa v. Courtois Sand & Gravel Co., 590 A.2d 100, 102 (R.I. 1991) (“[W]here there is no negligence, the aggrieved party is no longer a plaintiff but is a victim of accidental misfortune, and one of the clearest and probably most draconian principles to evolve out of centuries of tort law is that accidental harm lies where it falls.” (citing Brown v. Kendall, 60 Mass. (6 Cush.) 292, 298 (1850))).Show More and if a tenant or an employee mistakenly thinks they are bound by a term, they generally just bear the cost of compliance.

But most people do not know the law. Contracts mediate huge portions of our lives, from our employment and our housing, to our communications and correspondence, to our leisure and entertainment. And the law makes little to no effort to ensure that those contracts’ terms actually create enforceable obligations. Instead, the law leaves it up to everyone to figure out for themselves what parts of their contracts they must listen to and what parts they can ignore. And what’s more, access to those who can help figure that out—i.e., lawyers—is incredibly unequal, with marginalized groups much less able to access legal assistance than those with more resources.9 9.See infra Section II.C.Show More

This arrangement should change. This Article contends that in the contemporary world of mass contracting, the law should reallocate the burden of learning and applying the law. In many private-law contexts, the law plays a role both in the efficient allocation of costs and in the protection of less sophisticated parties. But, I argue, in the world of mass contracting, the burdens of unenforceable terms are not efficiently allocated, and the result is harm to everyday consumers and employees who sign mass contracts.

The problematic incentives posed by unenforceable terms have long been recognized.10 10.See, e.g., Radin, supra note 2; Lee A. Pizzimenti, Prohibiting Lawyers from Assisting in Unconscionable Transactions: Using an Overt Tool, 72 Marq. L. Rev. 151, 158 (1989); Bailey Kuklin, On the Knowing Inclusion of Unenforceable Contract and Lease Terms, 56 U. Cin. L. Rev. 845, 846–47 (1988); Warren Mueller, Residential Tenants and Their Leases: An Empirical Study, 69 Mich. L. Rev. 247, 248 (1970).Show More But the time is ripe for a reconsideration of this basic feature of how our legal system handles contracts. Over the last decade, new empirical research has illustrated the breadth and depth of the problem of unenforceable terms—a problem that remained mostly anecdotal until recently.11 11.See infra Part I. On the lack of robust evidence before the last decade or so, see Meirav Furth-Matzkin, On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market, 9 J. Legal Analysis 1, 5 (2017) [hereinafter Furth-Matzkin, Unexpected Use] (“[T]here has been so far very little empirical investigation into the prevalence of unenforceable terms in consumer contracts.”).Show More Unenforceable terms are widespread, with studies confirming their ubiquity across economic sectors including housing,12 12.David A. Hoffman & Anton Strezhnev, Leases as Forms, 19 J. Empirical Legal Stud. 90, 90–91 (2022); see also Furth-Matzkin, Unexpected Use, supra note 11, at 17–23 (detailing contract provisions in lease housing contracts that courts have found to be unenforceable or that are prohibited by state statutes).Show More employment,13 13.Evan P. Starr, J.J. Prescott & Norman D. Bishara, Noncompete Agreements in the US Labor Force, 64 J.L. & Econ. 53, 60, 81 (2021) [hereinafter Starr et al., Noncompete Agreements].Show More and recreation.14 14.Edward K. Cheng, Ehud Guttel & Yuval Procaccia, Unenforceable Waivers, 76 Vand. L. Rev. 571, 577 (2023).Show More And new empirical research also demonstrates the effect of those terms.15 15.See Tess Wilkinson-Ryan, The Perverse Consequences of Disclosing Standard Terms, 103 Cornell L. Rev. 117, 139–49, 139 nn.105–10 (2017) (surveying research); Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine-Print Fraud, 72 Stan. L. Rev. 503, 516 (2020) (explaining that laypeople may be discouraged from breaking a contract, even if they suspect the contract is unfair, because they assume written contracts are binding); Meirav Furth-Matzkin, The Harmful Effects of Unenforceable Contract Terms: Experimental Evidence, 70 Ala. L. Rev. 1031, 1044–51, 1053–56 (2019) [hereinafter Furth-Matzkin, Harmful Effects] (showing through experiments that unenforceable terms adversely affect tenants’ behavioral intentions and legal predictions); Evan Starr, J.J. Prescott & Norman Bishara, The Behavioral Effects of (Unenforceable) Contracts, 36 J.L. Econ. & Org. 633, 651–55, 659–66 (2020) [hereinafter Starr et al., Behavioral Effects] (suggesting that noncompetes have an effect on behavior regardless of their enforceability, and that noncompetes are associated with longer employee tenure and reduced likelihood of leaving for a competitor). For examples of older evidence in this vein, see also Dennis P. Stolle & Andrew J. Slain, Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers’ Propensity to Sue, 15 Behav. Scis. & L. 83, 91–93 (1997) (finding that consumers tend to believe that all contract terms are enforceable and that exculpatory language in form contracts appears to deter consumers’ propensity to seek compensation); Curtis J. Berger, Hard Leases Make Bad Law, 74 Colum. L. Rev. 791, 815–16 (1974) (explaining that “[u]ninformed or misinformed parties to a contract are easily terrorized or disarmed into foregoing their rights and remedies”); Mueller, supra note 10, at 248, 272–74 (suggesting that “the bulk of tenants [do] not appear to question the validity of terms found in their leases”).Show More Both consumers and employees are likely to feel bound by contract terms that they have assented to, regardless of those terms’ legality, and even if they have not read the terms before signing.16 16.See infra Part I (surveying research).Show More There is thus now an established, increasingly robust literature documenting that unenforceable terms pose a real problem, and one that is common in the contemporary economy.

Unenforceable terms have also been highlighted by the recent actions of agencies and advocates.17 17.See infra Section I.C.Show More Terms that are frequently unenforceable, like noncompete agreements and liability waivers, are at the center of recent actions by the White House,18 18.Exec. Order No. 14036, 86 Fed. Reg. 36987, 36987, 36992 (July 9, 2021) (discussing noncompete agreements).Show More Federal Trade Commission (“FTC”),19 19.Non-Compete Clause Rule, 89 Fed. Reg. 38342, 38342 (May 7, 2024) (to be codified at 16 C.F.R. pts. 910, 912). But see Ryan, LLC v. Fed. Trade Comm’n, 746 F. Supp. 3d 369, 390 (N.D. Tex. 2024) (“The [Non-Compete] Rule shall not be enforced or otherwise take effect on its effective date of September 4, 2024, or thereafter.”), appeal docketed, No. 24-10951 (5th Cir. Oct. 24, 2024).Show More National Labor Relations Board (“NLRB”),20 20.Memorandum GC 23-08 from Jennifer A. Abruzzo, Gen. Couns., Nat’l Lab. Rels. Bd., to All Reg’l Dirs., Officers-in-Charge, and Resident Officers, Nat’l Lab. Rels. Bd. (May 30, 2023), https://nlrbresearch.com/pdfs/09031d4583a87168.pdf [https://perma.cc/D6QA-2‌RPG].Show More and Consumer Financial Protection Bureau (“CFPB”).21 21.Registry of Supervised Nonbanks That Use Form Contracts to Impose Terms and Conditions That Seek to Waive or Limit Consumer Legal Protections, 88 Fed. Reg. 6906, 6906 (proposed Feb. 1, 2023) [hereinafter Registry of Supervised Nonbanks That Use Form Contracts].Show More And significantly, policymakers and advocates are beginning to focus not only on rendering bad contract terms unenforceable, but also on penalizing drafters for including those provisions in the contracts to begin with.22 22.See infra Section I.C.Show More

Between this empirical work and recent policy developments, unenforceable terms are now in the spotlight. But that spotlight’s focus has often been somewhat granular, examining one particular term or context rather than the problem of unenforceable terms writ large.23 23.The FTC’s recent policy actions, for instance, focus only on noncompetes in employment contracts, while the CFPB’s actions focus on waivers in consumer finance. CompareNon-Compete Clause Rule, 89 Fed. Reg. at 38342 (providing that it is an unfair method of competition to enter into noncompete clauses with workers after the Rule’s effective date), with Registry of Supervised Nonbanks That Use Form Contracts, supra note 21 (proposing that nonbanks be required to register with the CFPB if they use contract terms designed to waive consumers’ legal protections or limit how consumers enforce their rights).Show More The idea of a general penalty for using unenforceable terms, meanwhile, has come up before, but typically only in passing.24 24.See, e.g., Furth-Matzkin & Sommers, supra note 15, at 544–45 (suggesting “statutory damages for fine-print fraud” as part of a set of policy solutions); Radin, supra note 2, at 147–48 (mentioning the possibility of fines as a component of a public regulatory regime for boilerplate terms). A more thorough consideration of an affirmative cause of action can be found in Brady Williams’s Unconscionability as a Sword: The Case for an Affirmative Cause of Action, 107 Calif. L. Rev. 2015, 2041, 2043–45, 2047 (2019), which argues for developing an affirmative remedy in the context of unconscionable contract provisions.Show More

This Article picks up where those conversations leave off and considers the merits of a penalty for using unenforceable terms in mass contracts of adhesion. It argues for a general, affirmative prohibition on clearly unenforceable terms in contracts offered by a sophisticated drafter to large numbers of unsophisticated counterparties.

In doing so, the Article brings to bear normative concerns from both within and outside of traditional private-law theory. In particular, the problem of unenforceable terms implicates both the traditional private-law goal of cost minimization as well as the public-law goal of access to justice. That is because the question of how to approach unenforceable terms can be thought of as a question of how the law ought to distribute the costs of acquiring and applying legal knowledge. The law under the status quo makes no effort to allocate these costs, which is why there is a problem: the signers of mass adhesive contracts are unlikely to know that unenforceable terms carry no legal weight, and so may change their behavior to accommodate those terms even if doing so causes them loss or injury.

There are two basic paths that could address that problem: the signers of mass contracts can acquire and apply the legal knowledge necessary to understand terms’ enforceability, or the drafters of those contracts can acquire and apply the legal knowledge necessary to prevent unenforceable terms from being included in the first place. Comparing those options, it is clear that the party who can more cheaply manage the costs of legal knowledge is the drafter. The drafter in this scenario is both a sophisticated actor (who likely already has counsel) and one who is able to amortize the cost of legal analysis over many transactions.

Placing the burden on the drafter to issue only binding, valid terms also mitigates serious inequities under the status quo. Access to legal knowledge and legal institutions in the United States is not equally distributed.25 25.See infra Part II.Show More Marginalized groups in the United States face the double bind of higher-than-average legal needs and lower-than-average income and wealth to use to manage those needs.26 26.See infra Part II.Show More The inequities that these individuals and communities experience when it comes to the civil justice system both reflect and reinforce racial and gender inequality.27 27.See, e.g., Kathryn A. Sabbeth & Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. 1130, 1143–48, 1150–61 (2023); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1268–77 (2022).Show More These legal problems will often center around transactions and relationships that are mediated by contract and involve a power imbalance—with a landlord, employer, or health care provider, for instance—and so may implicate many substantive contract law doctrines that are designed to protect less powerful individuals.28 28.See infra Part II.Show More Restricting unenforceable terms thus avoids compounding injustice, in which a person’s existing marginalization prevents them from obtaining the assistance necessary to prevent further injury.

A general penalty for unenforceable terms is the natural development of the “contract as thing” perspective introduced by Arthur Leff more than fifty years ago.29 29.See Arthur Allen Leff, Contract as Thing, 19 Am. U. L. Rev. 131, 131–32, 147–52, 155 (1970); see also Douglas G. Baird, The Boilerplate Puzzle, 104 Mich. L. Rev. 933, 933–37 (2006) (comparing the legal treatment of boilerplate and fine print contract terms to “hidden” attributes of products).Show More Mass contracts of adhesion, ubiquitous in the modern world, are more like off-the-shelf purchased products than the bespoke negotiated instruments that contract doctrine developed around. As Leff wrote, “[i]f . . . a particular contract is a mass-produced inalterable thing, then the words that make it up are just elements of the thing, like wheels and carburetors.”30 30.Leff, supra note 29, at 153.Show More But the doctrine of unenforceability does not treat unenforceable words like wheels or carburetors, or even like other words that a company may utter about its products. A sports equipment company may face liability if its advertisement falsely touts “the highest-rated safety features on the market,” but if its contract says “the company is not liable for any damages resulting from your use of our products,” the standard approach of non-enforceability provides no penalty—even if that statement is, legally speaking, false.

In this way, the world of unenforceable contract terms is one of the last vestiges of the “caveat emptor” doctrine that has long been excised from many other areas of the law.31 31.See infra Part II.Show More Faced with unenforceable terms in a contract, consumers are simply left to their own recognizance. Affirmatively prohibiting clearly unenforceable terms in mass contracts would allow signers to rely on the bindingness of the terms they assent to without being lawyers—just as we can rely on the functionality of the cars we buy without being engineers or the safety of the medicines we purchase without being physicians.

The Article proceeds as follows. First, Part I surveys the research regarding the use of unenforceable terms and their effects on the general public. Part II then builds out the normative argument for penalizing the use of unenforceable terms in mass contracts. Part III considers questions of how such a penalty would be designed, such as how to construct a liability rule and which parties it should cover. Part IV then considers resources in existing law that could be used to combat unenforceable terms short of passing new legislation.

  1.  See, e.g., 15 U.S.C. §§ 1693l, 1693m. ↑
  2.  See Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law 147 (2013). ↑
  3.  See infra Section I.B. ↑
  4.  Radin, supra note 2. ↑
  5.  Id. ↑
  6.  E.g., R.L. Polk Printing Co. v. Smedley, 118 N.W. 984, 984 (Mich. 1908); BPP069, LLC v. Lindfield Holdings, LLC, 816 S.E.2d 755, 761 (Ga. Ct. App. 2018) (“[A]ll persons are presumed to know the law and therefore cannot be deceived by erroneous statements of law.” (quoting Lakeside Invs. Grp., Inc. v. Allen, 559 S.E.2d 491, 493 (Ga. Ct. App. 2002))). ↑
  7.  See, e.g., David Horton, Flipping the Script: Contra Proferentem and Standard Form Contracts, 80 U. Colo. L. Rev. 431, 437–38 (2009) (noting that the contra proferentem doctrine “deters imprecision” and describing its deterrent effects in the context of standard form contracts). ↑
  8.  Cf. Filosa v. Courtois Sand & Gravel Co., 590 A.2d 100, 102 (R.I. 1991) (“[W]here there is no negligence, the aggrieved party is no longer a plaintiff but is a victim of accidental misfortune, and one of the clearest and probably most draconian principles to evolve out of centuries of tort law is that accidental harm lies where it falls.” (citing Brown v. Kendall, 60 Mass. (6 Cush.) 292, 298 (1850))). ↑
  9.  See infra Section II.C. ↑
  10.  See, e.g., Radin, supra note 2; Lee A. Pizzimenti, Prohibiting Lawyers from Assisting in Unconscionable Transactions: Using an Overt Tool, 72 Marq. L. Rev. 151, 158 (1989); Bailey Kuklin, On the Knowing Inclusion of Unenforceable Contract and Lease Terms, 56 U. Cin. L. Rev. 845, 846–47 (1988); Warren Mueller, Residential Tenants and Their Leases: An Empirical Study, 69 Mich. L. Rev. 247, 248 (1970). ↑
  11.  See infra Part I. On the lack of robust evidence before the last decade or so, see Meirav Furth-Matzkin, On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market, 9 J. Legal Analysis 1, 5 (2017) [hereinafter Furth-Matzkin, Unexpected Use] (“[T]here has been so far very little empirical investigation into the prevalence of unenforceable terms in consumer contracts.”). ↑
  12.  David A. Hoffman & Anton Strezhnev, Leases as Forms, 19 J. Empirical Legal Stud. 90, 90–91 (2022); see also Furth-Matzkin, Unexpected Use, supra note 11, at 17–23 (detailing contract provisions in lease housing contracts that courts have found to be unenforceable or that are prohibited by state statutes). ↑
  13.  Evan P. Starr, J.J. Prescott & Norman D. Bishara, Noncompete Agreements in the US Labor Force, 64 J.L. & Econ. 53, 60, 81 (2021) [hereinafter Starr et al., Noncompete Agreements]. ↑
  14.  Edward K. Cheng, Ehud Guttel & Yuval Procaccia, Unenforceable Waivers, 76 Vand. L. Rev. 571, 577 (2023). ↑
  15.  See Tess Wilkinson-Ryan, The Perverse Consequences of Disclosing Standard Terms, 103 Cornell L. Rev. 117, 139–49, 139 nn.105–10 (2017) (surveying research); Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine-Print Fraud, 72 Stan. L. Rev. 503, 516 (2020) (explaining that laypeople may be discouraged from breaking a contract, even if they suspect the contract is unfair, because they assume written contracts are binding); Meirav Furth-Matzkin, The Harmful Effects of Unenforceable Contract Terms: Experimental Evidence, 70 Ala. L. Rev. 1031, 1044–51, 1053–56 (2019) [hereinafter Furth-Matzkin, Harmful Effects] (showing through experiments that unenforceable terms adversely affect tenants’ behavioral intentions and legal predictions); Evan Starr, J.J. Prescott & Norman Bishara, The Behavioral Effects of (Unenforceable) Contracts, 36 J.L. Econ. & Org. 633, 651–55, 659–66 (2020) [hereinafter Starr et al., Behavioral Effects] (suggesting that noncompetes have an effect on behavior regardless of their enforceability, and that noncompetes are associated with longer employee tenure and reduced likelihood of leaving for a competitor). For examples of older evidence in this vein, see also Dennis P. Stolle & Andrew J. Slain, Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers’ Propensity to Sue, 15 Behav. Scis. & L. 83, 91–93 (1997) (finding that consumers tend to believe that all contract terms are enforceable and that exculpatory language in form contracts appears to deter consumers’ propensity to seek compensation); Curtis J. Berger, Hard Leases Make Bad Law, 74 Colum. L. Rev. 791, 815–16 (1974) (explaining that “[u]ninformed or misinformed parties to a contract are easily terrorized or disarmed into foregoing their rights and remedies”); Mueller, supra note 10, at 248, 272–74 (suggesting that “the bulk of tenants [do] not appear to question the validity of terms found in their leases”). ↑
  16.  See infra Part I (surveying research). ↑
  17.  See infra Section I.C. ↑
  18.  Exec. Order No. 14036, 86 Fed. Reg. 36987, 36987, 36992 (July 9, 2021) (discussing noncompete agreements). ↑
  19.  Non-Compete Clause Rule, 89 Fed. Reg. 38342, 38342 (May 7, 2024) (to be codified at 16 C.F.R. pts. 910, 912). But see Ryan, LLC v. Fed. Trade Comm’n, 746 F. Supp. 3d 369, 390 (N.D. Tex. 2024) (“The [Non-Compete] Rule shall not be enforced or otherwise take effect on its effective date of September 4, 2024, or thereafter.”), appeal docketed, No. 24-10951 (5th Cir. Oct. 24, 2024). ↑
  20.  Memorandum GC 23-08 from Jennifer A. Abruzzo, Gen. Couns., Nat’l Lab. Rels. Bd., to All Reg’l Dirs., Officers-in-Charge, and Resident Officers, Nat’l Lab. Rels. Bd. (May 30, 2023), https://nlrbresearch.com/pdfs/09031d4583a87168.pdf [https://perma.cc/D6QA-2‌RPG]. ↑
  21.  Registry of Supervised Nonbanks That Use Form Contracts to Impose Terms and Conditions That Seek to Waive or Limit Consumer Legal Protections, 88 Fed. Reg. 6906, 6906 (proposed Feb. 1, 2023) [hereinafter Registry of Supervised Nonbanks That Use Form Contracts]. ↑
  22.  See infra Section I.C. ↑
  23.  The FTC’s recent policy actions, for instance, focus only on noncompetes in employment contracts, while the CFPB’s actions focus on waivers in consumer finance. Compare Non-Compete Clause Rule, 89 Fed. Reg. at 38342 (providing that it is an unfair method of competition to enter into noncompete clauses with workers after the Rule’s effective date), with Registry of Supervised Nonbanks That Use Form Contracts, supra note 21 (proposing that nonbanks be required to register with the CFPB if they use contract terms designed to waive consumers’ legal protections or limit how consumers enforce their rights). ↑
  24.  See, e.g., Furth-Matzkin & Sommers, supra note 15, at 544–45 (suggesting “statutory damages for fine-print fraud” as part of a set of policy solutions); Radin, supra note 2, at 147–48 (mentioning the possibility of fines as a component of a public regulatory regime for boilerplate terms). A more thorough consideration of an affirmative cause of action can be found in Brady Williams’s Unconscionability as a Sword: The Case for an Affirmative Cause of Action, 107 Calif. L. Rev. 2015, 2041, 2043–45, 2047 (2019), which argues for developing an affirmative remedy in the context of unconscionable contract provisions. ↑
  25.  See infra Part II. ↑
  26.  See infra Part II. ↑
  27.  See, e.g., Kathryn A. Sabbeth & Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. 1130, 1143–48, 1150–61 (2023); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1268–77 (2022). ↑
  28.  See infra Part II. ↑
  29.  See Arthur Allen Leff, Contract as Thing,
    19

    Am. U. L. Rev. 131, 131–32, 147–52, 155 (1970); see also Douglas G. Baird, The Boilerplate Puzzle, 104 Mich. L. Rev. 933, 933–37 (2006) (comparing the legal treatment of boilerplate and fine print contract terms to “hidden” attributes of products). ↑

  30.  Leff, supra note 29, at 153. ↑
  31.  See infra Part II. ↑

The Association Game: Applying Noscitur a Sociis and Ejusdem Generis

The Supreme Court has applied noscitur a sociis, often called the associated words canon, in many notable decisions—including the recent Fischer v. United States. This canon has a longstanding history in American jurisprudence, but interpreters face challenges in finding a common theme among words or phrases and supporting it with surrounding context. And some scholars argue judges can use noscitur to bring in external policy preferences and ideological beliefs. This Note proposes several steps to guide the use of noscitur and, by extension, its cousin ejusdem generis, including the clear identification of an association and multiple common themes and principles for transparent contextual analysis. These steps can shield judges from the appearance of guesswork or ideologically influenced decisions and encourage more accurate results by providing a clear roadmap of these canons’ proper application. They may also bring interpreters of all methodologies closer to their interpretive goals.

Introduction

What do the words “bud,” “mate,” “pal,” and “partner” have in common? According to the New York Times Connections puzzle on August 15, 2024, the answer is . . . nothing.1 1.Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15.Show More Connections, a fairly recent addition to the Times’s growing portfolio of games, asks readers to sort sixteen different words or phrases into four categories of four.2 2.SeeJoyann Jeffrey,Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword, N.Y. Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections. N.Y. Times Co., Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025).Show More The puzzle relies on tricking readers with a number of different possible categories. For instance, in that August 15 scenario, “PARTNER” and “MATE” actually went with “COMPLEMENT” and “MATCH” under the common theme “OTHER HALF.”3 3.See Liu, supra note 1.Show More “BUD” connected with “NATTY,” “SIERRA,” and “STELLA” under “BEERS, FAMILIARLY.” “PAL” fell into “WORDS AFTER ‘PAY’” with “DIRT,” “CHECK,” and “PHONE.”4 4.Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id.Show More

The Connections example shows that identifying a common theme among words can be a difficult process—even an impossible one—without context. Unless you knew the rules of the game, you probably would struggle to arrive at the desired common themes. And you would also find it difficult to explain your thought process to a friend without telling them that you need four categories of four.

Courts face a similar struggle in many cases of legal interpretation. They often must interpret a word or phrase as part of a list or grouping, and sometimes the meaning of that word or phrase is not immediately obvious. That is where the tool of noscitur a sociis comes in. Noscitur a sociis literally translates from Latin to “it is known by its associates.”5 5.Noscitur a sociis, Black’s Law Dictionary (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem.Show More In essence, associated words or phrases around the target word or phrase can influence its meaning.6 6.Id.Show More

Take the Connections puzzle for a simple example. If you found a list in a sentence that read “BUD, MATE, PAL, or PARTNER,” you would probably assume that “BUD” referred to “buddy.”7 7.See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025).Show More But if the list instead read “BUD, NATTY, SIERRA, or STELLA,” you would likely think that “BUD” referred to the short name for a Budweiser. In neither instance would you think that “BUD” meant the beginnings of a flower on a plant (an otherwise perfectly acceptable meaning).8 8.Id.Show More Thus, the context of associated words influences the meaning of the target word.

Legal interpreters often face much more difficult instances of association. And unlike the small stakes of winning the Connections game, judges’ decisions can affect people’s lives, freedom, and finances. Those affected by judicial opinions deserve frank, thorough, and well-reasoned decisions. So, if those decisions in part come down to the application of noscitur—to most, an unfamiliar Latin phrase—interpreters ought to explain exactly how they used it and exactly how it informed their conclusions.

In addition, to use noscitur effectively, a court must thoroughly investigate the definitions of key words and conduct enough legwork to arrive at an accurate conclusion. It might be tempting for an interpreter to look at a group of words or phrases and claim, without much explanation, to have found the common theme. The answer is often not so simple. And in some recent instances, courts have failed to explain their application of noscitur with sufficient clarity to prove that their purported common theme is the best interpretation.9 9.See, e.g., infra notes 161–67, 262–68 and accompanying text.Show More

Perhaps this stems from a lack of documentation about noscitur. Existing literature, aside from major casebooks, has not provided much help for interpreters seeking advice on applying the canon.10 10.See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024).Show More Apart from the well-known handbook Reading Law by Justice Antonin Scalia and Professor Bryan Garner, no article has yet centered on guidelines for courts using noscitur.11 11.See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J. 638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J. 485 (2023) (reflecting on attending law school during the COVID-19 pandemic).Show More Even Reading Law spends a mere four pages on noscitur as compared to fifteen on a subset of the canon, ejusdem generis.12 12.Scalia & Garner, supra note 11, at 195–98, 199–213.Show More So the general principles underlying noscitur have not received the treatment they deserve.

This Note seeks to fill that gap by presenting a model for courts planning to employ the noscitur canon—and by extension its relative ejusdem—in legal interpretation.13 13.I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout.Show More Part I highlights the history and importance of the canon and its use in the notable recent case Fischer v. United States, which concerned a law applied to defendants in the January 6 riot.14 14.144 S. Ct. 2176, 2181–82 (2024).Show More Part II dives into concerns with noscitur’s application. Several notable scholars have argued that it may open the door to the influence of policy preferences or ideology.15 15.See infra notes 68–79 and accompanying text.Show More And the principle behind noscitur naturally implies several difficulties: the presence of multiple potential common traits, an undefined trigger, and a possible deviation from dictionary meaning. Part III then answers these concerns, building a model for applying noscitur. This model strongly encourages courts to explain the canon’s use in detail, including its relationship with the ordinary meaning of each word or phrase involved. It urges interpreters to be thorough, since a more detailed explanation wards off possible accusations of ideological influence. Part IV then revisits Fischer with this model in mind, examining the majority and dissenting opinions and their relationship with the model. It concludes that Fischer did not apply the association canons in the traditional way, and that the Court missed an opportunity to do so.

  1.  Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15. ↑
  2.  See Joyann Jeffrey, Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword,
    N.Y.

    Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections.

    N.Y.

    Times Co

    .,

    Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025). ↑

  3.  See Liu, supra note 1. ↑
  4.  Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id. ↑
  5.  Noscitur a sociis, Black’s Law Dictionary

    (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem. ↑

  6.  Id. ↑
  7.  See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025). ↑
  8.  Id. ↑
  9.  See, e.g., infra notes 161–67, 262–68 and accompanying text. ↑
  10.  See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024). ↑
  11.  See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J
    .

    638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J

    .

    485 (2023) (reflecting on attending law school during the COVID-19 pandemic). ↑

  12.  Scalia & Garner, supra note 11, at 195–98, 199–213. ↑
  13.  I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout. ↑
  14.  144 S. Ct. 2176, 2181–82 (2024). ↑

  15.  See infra notes 68–79 and accompanying text. ↑

Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record

Introduction

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas.1 1.See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures).Show More At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians,2 2.Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE].Show More who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.3 3.Exec. Order No. 14,036, 3 C.F.R. 609 (2022).Show More

Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital.4 4.See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE].Show More Inquiring people want to know, and manipulative people want to manipulate.

This Essay attempts to answer the “what really happened?” question with two points. First, from an immediate perspective, the revolution did not happen. On a statistical level, the neo-Brandeisians did not increase antitrust enforcement, and in many ways were less rigorous in bringing antitrust cases than previous administrations. (The reader should wait for more full explorations below before overreacting to this claim.) On a qualitative level, the neo-Brandeisians did attempt dramatic reform in many ways—jettisoning existing policies, implementing new, interventionist ones, advancing novel or “edgy” theories in merger and non-merger cases, and, especially, testing the FTC’s rulemaking authority through an aggressive rule prohibiting employment non-compete agreements.5 5.See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More But the neo-Brandeisians leave Washington with relatively little to show for these efforts. With some important exceptions, they were not successful in advancing their “edgy” theories, they did not bring and litigate to conclusion a single civil non-merger case, and the non-compete rule has been nationally enjoined and faces grim future prospects.6 6.See infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More

Countervailing the first point, this Essay’s second point is that it is far too early to draw robust conclusions about the success or failure of the neo-Brandeisians’ attempted revolution. For one, some of the data regarding the last year or months of the Biden Administration are not yet available,7 7.See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published).Show More and several of the significant lawsuits brought by the Administration are still pending.8 8.See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss).Show More That may take many more years. But there is an even more significant point about the need for patience: the neo-Brandeisians came to political power very early in the trajectory of their movement (perhaps too early for their own good).9 9.See infra notes 203–05 and accompanying text.Show More By comparison, the last revolutionary antitrust movement—the Chicago School—spent decades building its agenda through scholarship and socialization of its ideas to law students, lawyers, and judges before it achieved success in the courts and antitrust agencies.10 10.See infra notes 200–02 and accompanying text.Show More It is far too early to say what the ultimate outcome and influence of the neo-Brandeisian challenge, including the seeds sown in the last four years, will be. So, while answers to short-term questions about what the neo-Brandeisians did in Washington are largely available, any assessment must remain provisional for several decades to come.

  1.  See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures). ↑
  2.  Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE]. ↑
  3.  Exec. Order No. 14,036, 3 C.F.R. 609 (2022). ↑
  4.  See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE]. ↑
  5.  See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  6.  See infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  7.  See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published). ↑
  8.  See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss). ↑
  9.  See infra notes 203–05 and accompanying text. ↑
  10.  See infra notes 200–02 and accompanying text. ↑
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