Current approaches to consumer standard form contracts generally assume that aggrieved consumers can adequately detect and challenge exploitative terms and that vigilant courts can effectively scrutinize them. Some even believe that market forces and reputational constraints can deter firms from incorporating exploitative terms into their form contracts or dissuade them from actually relying on such terms. Criticizing these assumptions, this Article calls for a conceptual shift toward the problem of exploitative consumer contracts. This Article suggests supplementing the current means of addressing exploitation in consumer contracts with a dynamic preventive model of administrative oversight. Specifically, this Article proposes a professional system of public supervision over the content of consumer form contracts. This Article demonstrates how such a mechanism, if shrewdly designed, can cost-effectively tackle the widespread use of unfair, unconscionable, or legally invalid terms. Although not a panacea, the proposed regulatory regime has the promise of shifting the main burden of tackling exploitative boilerplate from the currently feeble and ineffective system of private enforcement to a sophisticated and robust scheme of administrative scrutiny.
Yehuda Adar & Shmuel I. Becher, Ending the License to Exploit: Administrative Oversight of Consumer Contracts, 62 B.C. L. Rev. 2405 (2021), https://lawdigitalcommons.bc.edu/bclr/vol62/iss7/6