Richmond Law Professor Jim Gibson: 25 Contracts, 7 hours, 74,849 words of Boilerplate to Read, on Average — to Buy a Computer
Feel like reading legal texts about as long as the first Harry Potter book to buy a computer? Can you spare a work day just to read the fine print?
If not, consumer beware. Richmond Law Professor Jim Gibson has written an article in the Washington & Lee Law Review (70 Wash. & Lee L. Rev. 161 (2013)) here discussing vertical boilerplate, using research he conducted while purchasing four computers and studying the boilerplate contracts in each phase of the purchase — vertically — of all four. His conclusion: On average each purchase involved “25 binding contracts totaling 74,897 words. To put that in perspective, it’s just a tad fewer words than in the first Harry Potter book.”
And it is much worse Gibson writes: “Of the 74,897 average words, only 7,698 were presented to me before my purchase. That’s about one in ten. The other 90 percent revealed themselves only after the computer arrived and I started it up. So if you really want to “shop” for boilerplate, you have to order multiple computers, await their arrival, start them all up, open the various programs, and then examine the boilerplate within. Only then could you register your rejection of boilerplate terms with the marketplace—e.g., by returning the rejected computers and receiving refunds. Good luck with that.”
A summary of the piece, with great illustrations by Katie McBride, can be found in the University of Richmond Law Alumni Magazine here.
The full paper discusses a variety of solutions, offering two: changing burdens of proof in the unconscionability doctrine and forcing the consumer to sit through prolonged on line agreements — getting consent to each salient boilerplate term, thus in effect forcing the consumer to read it and providing incentives to the vendor to shorten it to retain time-conscious consumers.