A Psychological Account of Consent to Fine Print

INTRODUCTIONThe proposition that most people do not read the small print, heed the warning labels, or review the "Terms and Conditions" links, is no longer controversial. Nonetheless, the barrage of fine-print disclosures continues unabated, and enforcement of universally unread terms is assumed. The juxtaposition of these facts of modern contracting-widespread reliance on disclosures to protect consumers and widespread agreement that disclosures do not affect consumer behavior-is somewhat puzzling. Contracts scholars have largely approached this puzzle in normative terms, attempting to reconcile the idea of meaningful assent with the core contract doctrine of implied consent to unread terms. What scholars have overlooked in this discussion is a coherent descriptive theory of modern contracting. How do ordinary consumers understand their contractual obligations when formation of most contracts is perfunctory, but the moral and legal rhetoric of contract enforcement is robust? A psychological account of consumer consent sheds new light on the costs and benefits of fine-print contracting.Consent to standard terms occupies an uneasy place in the existing research on the moral psychology of contracts. The relevant moral and social norms that bear on contracts of adhesion evince a deep cultural ambivalence. Contracts are understood to be serious moral obligations, and yet everyday commercial activity requires that consumers sign agreements that contain terms they have not read. Most people see consent to boilerplate as less meaningful than consent to negotiated terms, but nonetheless would hold consumers strictly liable for both. This is an area with unclear-if not bipolar-norms, and we do not know how individuals assimilate conflicting preferences and bodies of evidence into judgments of consumer consent.At a broad level, this Essay attempts to tease out the beliefs, preferences, assumptions, and biases that constitute our assessments of assent to boilerplate. To do this, I use methods from the psychology of judgment and decision-making. This Essay presents five short vignette studies about transacting by boilerplate in an effort to examine how consumers think about modern contracting, and how the context of modern contracting bears on judgments of transactional harms. I argue that most people are sensitive to the realities of contracting via boilerplate, and are concerned that consent to fine print is compromised consent. Nonetheless, the vignettes suggest, when it comes to explaining transactional harms,1 blaming the consumer who consented to the agreement for the harm is both psychologically attractive as well as cognitively available. Even in the face of evidence of procedural defects or wrongdoing by the drafter, participants' instincts were to hold the consumer to the boilerplate terms.My argument unfolds in two steps, focusing first on assent and then on enforcement. The first proposition is that the social practice of consumer contracting invokes powerful but conflicting norms and intuitions. Most people have strong feelings about individual autonomy in the marketplace, coupled with concerns about both the effectiveness of fine-print disclosures and the potential for drafters' strategic behavior to go unchecked. When asked to think about contract formation, the participants in the studies reported in this Essay recognized that readership of some terms is an unrealistic expectation, and expressed doubts that consent to boilerplate is meaningful. In other words, when people are asked to think about how we make contracts in the modern world, they show real ambivalence about consent to boilerplate.The puzzle is that this ambivalence seems to dissipate entirely when questions about consent come up in the context of contract enforcement. Once the framing is about how to understand a transactional harm-the enforcement of an unfavorable term-the subjects in these studies agreed that a non-reading consumer has clearly consented to be bound and ought to bear the blame for the bad outcome, no matter how cumbersome the demands of readership. …