Yehuda Adar of the University of Haifa and Shmuel I. Becher of the Victoria University of Wellington have written Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts. Here's the abstract:
This Article calls for a conceptual shift toward the scrutiny of exploitative consumer standard form contracts. Current approaches to consumer standard form contracts assume that imbalanced and unfair terms can be adequately challenged by aggrieved consumers and effectively scrutinized by vigilant courts. Some even believe that market forces and reputational constraints can deter firms from employing exploitative terms in their form contracts or dissuade them from actually relying on such terms. Criticizing these assumptions, the Article suggests supplementing the current means of addressing opportunistic exploitation in standard consumer contracts with a dynamic preventive machinery.
Specifically, we propose a professional system of administrative oversight over the content of consumer form contracts. The Article demonstrates how such a machinery can efficiently tackle the widespread use of unfair practices as well as unconscionable and plainly illegal terms. While not a panacea, such a regime has the promise of shifting the burden of confronting exploitation in consumer contracts from a feeble and ineffective system of private enforcement to a sophisticated and robust system of public oversight.
