Legal Ignorance and Information-Forcing Rules

63 Pages Posted: 12 Mar 2014 Last revised: 16 Apr 2015

See all articles by J. H. Verkerke

J. H. Verkerke

University of Virginia School of Law

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Date Written: April 1, 2015


People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-information-forcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts to inform many contracting parties about complex legal rules, this Article also develops and critiques several alternative justifications for “clause-forcing” rules that encourage sophisticated parties to draft express contract terms. Such terms could facilitate the activities of avid comparison shoppers, reviewers, and consumer advocates. Comprehensive written terms also may promote ex post legal clarity and thereby reduce the costs of resolving disputes. Finally, exculpatory clauses allow parties to contract out of the comparatively expensive legal system of dispute resolution in favor of a regime governed by informal social norms. On this account, clause-forcing rules encourage sophisticated drafting parties to signal their preference for a norm-governed relationship, and lawmakers then demarcate the boundary between law and norms by deciding whether to enforce exculpatory clauses. The normative desirability of these clause-forcing rules is unclear, but my exploration of these alternative justifications shows the conceptual poverty of accounts that presume express contract terms inform the majority of unsophisticated parties.

Suggested Citation

Verkerke, J. H., Legal Ignorance and Information-Forcing Rules (April 1, 2015). William & Mary Law Review, Vol. 56, No. 899, 2015, Virginia Public Law and Legal Theory Research Paper No. 2015-23, Virginia Law and Economics Research Paper No. 11, Available at SSRN: or

J. H. Verkerke (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3463 (Phone)
434-924-7536 (Fax)


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