Wilkinson-Ryan Article: A Psychological Account of Consent to Fine Print

Tess Wilkinson‐Ryan of Penn has written A Psychological Account of Consent to Fine Print, 99 Iowa Law Review 1745 (2014). Wilkinson-Ryan has a Ph.D in psychology as well as a law degree, and so brings to bear a different perspective in evaluating consumer reactions to fine print. I found this article useful in the research I'm doing this summer, and it seems likely that anyone looking into fine print would also find the piece valuable. Here's the 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.

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