Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship
Jerusalem Review of Legal Studies (Forthcoming)
32 Pages Posted: 10 Jan 2015 Last revised: 3 Sep 2015
Date Written: January 8, 2015
In a series of groundbreaking empirical studies, Prof. Florencia Marotta-Wurgler and her colleagues have studied the content of End-User Licensing Agreements (EULAs) of software products sold online, and the correlations between the one-sidedness of EULAs and various variables concerning those products, the software developers, and the contracting process. They have also examined the extent to which shoppers actually read EULAs before purchasing the products. This paper critically reviews this body of research as part of a symposium on Marotta-Wurgler’s scholarship. It highlights the methodological strengths and limitations of her empirical studies, and critically assesses the (modest) normative conclusions she draws from her findings. It also addresses the general questions pertaining to the regulation of standard-form contracts in the light of recent scholarship on this topic. It points to the great difficulties – both practical and normative – facing information-based solutions, and advocates regulation of contract content. Finally, the paper argues that scholars’ ideological inclinations and the fragmentation of legal scholarship may explain the legal academy’s response to Marotta-Wurgler’s findings.
Keywords: standard-form contracts, disclosure duties, empirical legal studies, end-user licensing agreements, regulation
JEL Classification: D12, K12
Suggested Citation: Suggested Citation