The Perverse Consequences of Disclosing Standard Terms

103 Cornell L. Rev. 117 (2017) Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the hypothesis that when a policy is disclosed as a boilerplate contract term, it appears more legitimate, both morally and legally, than if it is disclosed elsewhere—even if the term would be plausibly subject to legal challenge in either case. Subjects from an in-person campus sample were randomly assigned to read about a consumer policy communicated either as a standard term in a form contract, or as a company policy available on the firm’s website. They were more likely to think that harsh policies were legally enforceable, and morally defensible, when the policies were in the fine print—and were more likely to object to a policy that was publicly available but not within the standard terms. Disclosing onerous terms up front does not affect consumer choice ex ante but creates a problematic assumption of enforceability when the terms turn out to be troublesome ex post. These results were also replicated using a sample of subjects from the general population. If correct, this phenomenon presents a substantial challenge to the traditional economic analysis of private bargaining in contract. The Article concludes with an analysis, in light of these findings, of doctrinal, political, and market mechanisms for policing unfair terms.