Your Mileage May Vary: A General Theory of Legal Disclaimers

Abstract

Disclaimers are a common feature of public and commercial life. While this article will be concerned with disclaimers only in legal contexts, the range of such legal contexts is broad. This article will refer below to disclaimers by governmental and non-governmental actors in various circumstances. Disclaimers arise, for example, in Establishment Clause cases in general, and of late, in cases involving public school evolution textbooks. Disclaimers may also be thought of as a remedy for compelled speech, or as themselves an instance of compelled speech. In addition, commercial speech is a fertile source of disclaimer problems, as in commercial advertising by professionals, the marketing of securities, and the making of health claims regarding dietary food supplements. For further perspective, this article will also refer to disclaimers in specific business and commercial contexts involving employment contract laws, commercial and consumer implied warranty and tort disclaimer cases, and various sorts of implied warranty of residential habitability cases.