Set in Stone? Change and Innovation in Consumer Standard-Form Contracts

47 Pages Posted: 15 Jul 2012 Last revised: 31 Oct 2019

See all articles by Florencia Marotta-Wurgler

Florencia Marotta-Wurgler

New York University School of Law

Robert Taylor

affiliation not provided to SSRN

Date Written: July 11, 2012


Standard-form contracting is the engine of the mass-market economy, yet we know little about what drives it and what factors are associated with its evolution. Understanding change and innovation of the substance, length, and complexity of fine print in the consumer context can help regulators identify sources of potential intervention as well as help them evaluate the effectiveness of mandatory disclosure regimes, which are commonly used as consumer protection tools. 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. The variance of contract length has grown, as has the variance in overall pro-seller bias, resulting in reduced contract standardization over time. Firms that were younger, larger, or growing, as well as firms with inhouse counsel, were more likely to change existing terms and to introduce new terms to take advantage of technological and market developments. Contracts appear 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.

Keywords: contracts, commercial law, consumer law

JEL Classification: K12, K41

Suggested Citation

Marotta-Wurgler, Florencia and Taylor, Robert, Set in Stone? Change and Innovation in Consumer Standard-Form Contracts (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, Available at SSRN: or

Florencia Marotta-Wurgler (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States


Robert Taylor

affiliation not provided to SSRN ( email )

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