Set in Stone? Change and Innovation in Consumer Standard-Form Contracts
New York University School of Law
Robert Brendan Taylor
Kirkland & Ellis
July 11, 2012
New York University Law Review, Vol. 88, 2013
7th Annual Conference on Empirical Legal Studies Paper
NYU Law and Economics Research Paper No. 12-40
This article studies the rate, direction, and determinants of change in consumer standard form contracting. We examine what changed between 2003 and 2010 in the terms of 264 mass-market consumer software license agreements. Thirty-nine percent of contracts materially changed at least one term, and some changed as many as fourteen terms. The average contract became more pro-seller as well as several hundred words longer. The increase in length is not due to the use of simpler language: contract readability has been constant: the average contract is as readable as an article in a scientific journal. Younger, larger, growing firms, and firms with in-house counsel were more likely to change existing terms and to introduce new terms to take advantage of technological and market developments. Contracts appeared to respond to litigation outcomes: Terms that were increasingly enforced by courts were more frequently used in contracts, and vice-versa. The results indicate that software license agreements are relatively dynamic and shaped by multiple factors over time. We discuss potential consumer protection implications as a result of the increased length and complexity of contracts over time.
Number of Pages in PDF File: 47
Keywords: contracts, commercial law, consumer law
JEL Classification: K12; K41
Date posted: July 15, 2012 ; Last revised: June 11, 2014
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