A Psychological Account of Consent to Fine Print

41 Pages Posted: 1 Jun 2014 Last revised: 3 Jun 2014

Tess Wilkinson‐Ryan

University of Pennsylvania Law School

Date Written: May 2014

Abstract

The moral and social norms that bear on contracts of adhesion suggest a deep ambivalence. Contracts are perceived as serious moral obligations, and yet they must be taken lightly or everyday commerce would be impossible. Most people see consent to boilerplate as less meaningful than consent to negotiated terms, but they nonetheless would hold consumers strictly liable for both. This Essay aims to unpack the beliefs, preferences, assumptions, and biases that constitute our assessments of assent to boilerplate. Research suggests that misgivings about procedural defects in consumer contracting weigh heavily on judgments of contract formation, but play almost no role in judgments of blame for transactional harms. Using experimental methods from the psychology of judgment and decision-making, I test the psychological explanations for this disjunction, including motivated reasoning and reliance on availability heuristics. Many commentators have argued that even though it is true that disclosures are probably ineffective, they “can’t hurt.” I conclude with a challenge to that proposition — I argue that the can’t-hurt attitude may lead to overuse of disclosures that do not affect consumer decision-making, but have implicit effects on the moral calculus of transactional harms.

Keywords: Law and psychology, behavioral economics, empirical legal studies, contract enforcement, contract language, consumer protection, moral judgments and intuitions, standard form contracts, informed consent, procedural justice, duty to read, opportunity to read, contract morality, attribution

JEL Classification: D12, D18, D86, K12

Suggested Citation

Wilkinson‐Ryan, Tess, A Psychological Account of Consent to Fine Print (May 2014). Iowa Law Review, Vol. 99, Pg. 1745, 2014; U of Penn, Inst for Law & Econ Research Paper No. 14-22. Available at SSRN: https://ssrn.com/abstract=2443825

Tess Wilkinson-Ryan (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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