This Note argues that the state of a modern consumer society, when evaluated against the culture of marketing and consumerism surrounding America’s youth, calls for persisting protection of children in contract formation through retention of the infancy defense. Part II of this Note introduces the infancy defense, the philosophy behind it, the various exceptions to the defense, and how these exceptions have adapted to the modern marketplace to assure equitable results for adults. This Part also discusses other arenas of the law in which children are afforded special protection. Part III addresses the current state of the infancy doctrine as demonstrated in the 2008 Virginia case A.V. v. iParadigms, in which the United States District Court for the Eastern District of Virginia dismissed high school students’ attempts to disaffirm an online contract under the infancy defense, holding that the plaintiffs could not disaffirm because they had retained the benefits of the contract. Part IV replies to the predominant arguments against the infancy doctrine and explains why equitable concerns about the infancy defense’s impact on adults are unwarranted. Part V examines the ongoing relevancy of the infancy defense in light of technological advancements, suggesting ways in which minors continue to be vulnerable to more sophisticated adults and businesses. This includes a discussion of the commercialization of childhood and the ways in which marketing companies target children in order to further the prevalence of materialism, consumer debt, and the earn-and-spend lifestyle. This Part also discusses the types of agreements that are prevalent online, such as adhesion contracts and clickwrap agreements, and argues that young people are particularly incompetent to consent to these forms of contracts. Finally, Part VI concludes with the contention that the infancy defense is still important and should be retained with its current exceptions.
Victoria Slade, The Infancy Defense in the Modern Contract Age: A Useful Vestige, 34 SEATTLE U. L. REV. 613 (2011).