James P. Nehf of Indiana–Indianapolis has written The Failure of 'Notice and Consent' as Effective Consumer Policy. Here's the abstract:
Over the past several decades, the preferred model for consumer protection in most countries has emphasized a notice and consent (or choice) approach with less emphasis on normative laws that prohibit or mandate certain contract terms, acts or practices. In this essay, I argue that it is time for consumer advocates and policy makers to recognize that a notice and consent approach to standard contract terms and conditions is not likely to protect consumer interests in modern day contractual settings. Indeed, policy makers are doing more harm than good by continuing to focus on notice and consent, thereby giving a misleading impression that consumer interests are being protected when they are not. Moreover, by adhering to a notice and consent regime, they avoid discussing the more difficult yet most fundamental questions about what commercial practices should be permitted and which should be banned.
What is also important is that these contracts are take it or leave it–do you want a cell phone? to use uber? to use google maps or alexa? to have your child be able to attend the bouncy castle birthday party? You cannot alter the digital agreement–you either click agree or abandon the effort completely. Contract law assumes some ability to negotiate the terms between the parties. Not to mention that businesses often get your digital signature on a key pad, where it’s almost impossible to know what you’re signing (until a dispute arises, that is).
This may be a better example of “moral hazard” than the seatbelt example economists use… these problems might be better solved by re-unleashing class action lawyers on these problems.