The Failure of 'Notice and Consent' as Effective Consumer Policy

Abstract

One of the central models for consumer protection in most countries emphasizes a notice and consent (or choice) approach--so long as the merchant gives the consumer notice of standard contract terms, and the consumer manifests assent to those terms, the terms are deemed to be binding. In this essay, it is argued that consumer advocates and policy makers should recognize that a notice and consent approach to standard con- tract terms is not likely to protect consumer interests in modern day contractual settings. Technological advances allow countless standard terms to be imposed on consumers in even the simplest transactions, and manifestations of assent are questionable in many cases. The essay explains why consumers quite rationally may manifest assent to terms and conditions that are not in their interests.