Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the hypothesis that when a policy is disclosed as a boilerplate contract term, it appears more legitimate, both morally and legally, than if it is disclosed elsewhere – even if the term would be plausibly subject to legal challenge in either case. Subjects from an in-person campus sample were randomly assigned to read about a consumer policy communicated either as a standard term in a form contract, or as a company policy available on the firm’s website. They were more likely to think that harsh policies were legally enforceable, and morally defensible, when the policies were in the fine print – and were more likely to object to a policy that was publicly available but not within the standard terms. Disclosing onerous terms up front does not affect consumer choice ex ante but creates a problematic assumption of enforceability when the terms turn out to be troublesome ex post. These results were also replicated using a sample of subjects from the general population. If correct, this phenomenon presents a substantial challenge to the traditional economic analysis of private bargaining in contract. The Article concludes with an analysis, in light of these findings, of doctrinal, political, and market mechanisms for policing unfair terms.
Cornell Law Review Online
Not atypically, the Supreme Court in Horne interprets the canonical Nollan narrowly as a case about developer exactions. Viewed that way, Nollan does not speak to the issue in Horne: the raisins that the government took from the owners were not surrendered in exchange for explicit permission to engage in an activity the government either […]
Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error […]
The Attorney‑Client Privilege, Client Confessions and Wrongful Convictions: Immunity as a Statutory Solution
Attorneys face a serious personal dilemma when a client confesses that he or she committed the crime for which someone else has been wrongfully convicted. If they do nothing, a wrongful conviction stands. If they come forward, their client faces the prospect of a new criminal conviction. Professional ethics require them to maintain all privileges […]
What do juries really think about lawyers? What makes jurors tick? What do lawyers do that irritates jurors? What can lawyers do better in the courtroom from the jury’s perspective? These are the questions at the heart of this article, which provides useful insight gleaned from more than 500 jurors who served in federal district court […]
FTC v. Actavis was one of the most important antitrust cases of the modern era. In one fell swoop, the Supreme Court ensconced antitrust’s role in analyzing settlements by which brand firms pay generics to delay entering the market. The Court underscored the harms presented by large and unjustified payments and rejected some of the […]
Symposium on Reassessing the Restatement of Employment Law
The Cornell Law Review hosted a Symposium on Reassessing the Restatement of Employment Law on Friday, November 21, 2014, at Cornell Law School. The Symposium offered the first commentary on Restatement of Employment Law, a twelve-year project, which the American Law Institute approved in 2014. Click for Symposium Agenda
Symposium on Extraterritorialism
The Cornell Law Review will publish its annual Symposium issue for Volume 99 with a focus on extraterritorialism in September 2014. The flurry of recent Supreme Court decisions turning on a revived door-closing territorialism is attracting the attention of legal scholars in various substantive as well as methodological fields of federal law, and the lines […]
Cornell Law Review Online
Cornell Law Review Online will start accepting submissions on Feb. 25.
Welcome to CornellLawReview.org
Welcome to CornellLawReview.org, the new online home of the Cornell Law Review. In the spirit of its mission as a student-run journal, the Law Review is launching this site to provide greater access to its top-notch legal scholarship and more publishing opportunities for legal academics. The website will host all of the content that the Law Review publishes in print […]