Running head IMPORTANCE OF INFORMED CONSENT .docx

Running head: IMPORTANCE OF INFORMED CONSENT
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IMPORTANCE OF INFORMED CONSENT
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The Importance of Informed Consent
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In the course of offering treatement, a patient might
be in dire need of serious medical attention. In such a scenario,
the patient needs to sign some documents, which say that before
undergoing the treatement, the patient was aware of all the
possible injuries or effects that could occur from this
treatement. The process of getting the patient to sign these form
of documents, is what is referred to as the process of acquiring
an informed consent (Ruth, 1986).
By definition, informed consent refers to the process of granting
permission to go through with a form of treatement, in which
the patient says that he or she is aware of all the risks that come
with the treatement procedure that is going to be administered.

Following the granting of permission to go ahead with the
medical procedure, the doctors do their best to do their work
perfectly. However, in the instance that something were to go
wrong, and the procedure doesn’t produce only the positive
effects, the doctor is by law exempted from taking any of the
blame, and the hospital is also protected by the law (Jessica,
2001).
In this case, the informed consent is important because, it acts
as proof that the patient was aware of the risks, before
undergoing the procedure and therefore, if something went
wrong, the doctors and the hospitals are not to blame. The risk
was simply part of the equation from the very beginning and
therefore that it occurred is no one’s fault.
Arguably, there have been concerns among popular groups
of people, concerning the method in which the doctor gets the
patient to sign the various documents, constitution the informed
consent documents. To some patients, especially those who
were undergoing a complicated procedure, claim that they were
not fully made aware of all the different problems that could
arise out of the procedure.
In this case, the doctors find themselves under a spotlight since,
probes will be raised over their ability to clearly inform the
patients of the procedure they are undergoing, the possible risks
involved with the current procedure, the alternative treatement
modes, and the risks and benefits of those other methods too.
There have been concerns also, over the time that the
patient is given, prior to the signing of the documents. Some
researchers have reported that, the patients need to be given
time to read through and understand the documents given, and
then, allow him or her to deliberate on the issue, before coming
to a decision. In some practices, the documents are only signed
a few minutes before surgery is administered, clearly giving the
patient no say in the matter as they have no other option but to
sign the document.
Following this therefore, the following paper will research
the attached documents, and the other two sources, to finally

come up with an outline of exactly why the informed consent is
important. This, I will analyse from the standpoint of the
doctor-patient relationship, in order to objectively look at
informed consent as a concept on its own. Then, I will
summarize the attached documents, and in the process, address
the topic question; IMPORTANCE OF INFORMED CONSENT.
The Importance of Informed Consent
Kirby, Challacombe, Hughes, Chowdhury, & Dasgupta
(2013), give us a pretty good introduction to the concept of
informed consent, by bringing in the issue with the reporting of
doctors, to the General Medical Council (GMC). In the period
between 2010 and 2011, there was an increase of 23% in the
number of doctors reported to the GMC, by the patients,
following a medical procedure that went wrong. This increase,
on top of an already overflowing number of cases, ends up
reducing the chances that GMC will investigate any particular
doctor in person.
The increase in the number of reported doctors, presents a
problem which should be addressed as soon as possible. In
addition, Kirby (2013) presents us with the harsh of the world
in which we live today. Unfortunately, the patients will have to
be put through a tedious and bulky process, when it comes to
granting their consent for the carrying out of a certain
procedure to offer them with the treatement that they need.
This is specifically important because, the doctors are
getting blamed, for doing their jobs, but apparently, for not
doing it well enough. There are concerns raised over the process
of acquiring the signed consent. The patient should be given
time to read through the legally binding documents, and make
an informed decision. Alone, the signed consent will however
not be enough to absolve the doctor of any blame in the instance
that the procedure did not go as planned.
In order to save on time carrying out various litigations
following the wrong outcome after a procedure was
administered, more time should be spent, acquiring the informed
consent. This ultimately means that, it should be done more

thoroughly, requiring the patient to maybe tick and sign off
against each and every possible outcome that may be, off of the
procedure (Kirby et al., 2013). Once this is obtained, the doctor
would be in a state of a clear mindset when carrying out the
procedure.
Once the two sets of documents are obtained as well, it would
serve as a proof of informed consent that would also be beyond
any reasonable doubt. Kirby et all., (2013), presents informed
consent as being the tool that will in a way, contribute to the
building of a stronger doctor-patient relationship. Increasing the
bureaucracies involved when it comes to the acquisition of the
informed consent, would increase the time required to
successfully get the informed consent.
This would then give the patient more time to read through the
information, and fully understand the consequences of the
procedure. In the case that the patient has questions, he or she
would be free to consult with their doctor and seek clarification.
In the end, it would enable the doctor-patient relationship to
grow, allowing the two parties to come to get a better handle on
the situation at hand.
The Report Information from ProQuest, dated October 22 2016,
at 18:55 addresses the question of what the best way is, to
approach the issue of obtaining informed consent from a
patient. This document also postulates a model, which was used
to analyse the best way for the doctors to obtain the informed
consent from the patients. The subjects of this study, were the
patients who were to be invited by the medical oncologists, to
take part in clinical trials. In this case, it was important to
obtain the consent of the patient, before going ahead with the
medical procedure.
In medicine, the best way through progressive medicine, has
always been in the carrying out of the clinical trials. Such trials
can be very risky, because there is no documentation for what
will exactly happen afterwards. This is where the informed
consent is of extreme importance. If anything goes wrong, the
patient should not sue the hospital or the doctor. Therefore, it is

important to make sure the process is as effective as possible in
the very end, by taking the best approach towards to the issue.
The researchers, as reported by this attachment, were able to
analyse the proceedings of the trials, and after rigorous
evaluation, were able to come up with four main areas of
concern. This areas are; shared decision making, the process of
going about the consultation, the type of information presented,
and finally, the factor of coercion to give some information.
The researchers are convinced that, if they invest some detailed
information about this four areas, it would best allow the doctor
to get through to the patient, and have them make informed
decisions about the future of their treatement, and clearly
understand all the risks involved with the various strategies.
From this document, one gets the impression that the informed
consent is a very important document for one reason. The
patient needs to be made fully aware of everything that could
wrong with the medical treatement that they are seeking to
undergo. From this, one gets the impression that, the informed
consent is a neutral ground, where the doctor will tell the
patient everything that might happen. If the patient is going to
undergo the procedure, it is important to make sure that he or
she is aware of what is at stake. Following this then, the
informed consent is a means for achieving that, creating a
situation whereby, the patient and the doctor are on the same
page over the possible fate of the patient.
Waller & Repko (2008) give a small account of the history of
informed consent, from the paternalistic stage, through the legal
stage, and finally, at the general therapy stage. The future of
informed consent is lies at the individual stage, to which we are
yet to get. Presently, we operate in the general therapy stage of
informed consent.
This stage of general therapy gets its name from the notion of
the therapeutic benefits of letting a patient decide on what they
want to be done about their own bodies, under the medical
practice. Currently, sound medical practice has embraced the
concept of informed consent, as being an important activity to

carry out.
In this document also, Waller & Repko (2008) have perhaps
presented the best importance of the informed consent. Giving
the patient the chance to sign the informed consent, comes
about as beign a means of giving the patient some power.
Waller & Repko (2008) write that, well informed patients, and
who are also made aware of the fact that they can exert
knowledgeable control over their own treatement and therapy
processes, end up being on a better path to recovery.
Reportedly, the informed consent boosts the immune system,
prevents depression, enhances patient cooperation and fortitude,
as well as enabling the patients to better tolerate pain they feel.
This, and other research, has led to the consideration of the
acquiring of the informed consent, as being both an ethical and
therapeutic thing to do.
The benefits of an informed consent to both the patient and the
doctor, is an invaluable resource, which the doctors can use to
make sure they offer the best practice to the patient, and the
patient can also recover quickly knowing that he or she had
control over what was to be done to their body, or the therapy
sessions they were to attend. The patient can view getting the
informed consent as being the means for taking charge of their
lives, and with the positive attitude, could end up recovering at
a much faster rate.
Wilkinson‐Ryan (2014) presents a different point of view to the
issue of informed consent, and what the right way to acquiring a
signed consent is. For starters, the patient should be made aware
of only the relevant information. Going with the can’t hurt
attitude would lead to the doctors contributing to the changing
of heart, by the patient.
The finer details of any medical procedure is bad enough that it
would not allow the patients to decide to go with it. In seeking
the informed consent, the doctors should be strictly
professional, giving the relevant information, and presenting it
in a manner that is not only factual, but in a way, considerate of
the feelings and emotions of the patient undergoing the

procedure.
Wilkinson‐Ryan was concerned about the nature of the
seriousness of the document detailing the informed consent, in a
world where the customers consent lightly to the contracts they
find themselves. Agreeably, the disclosures do not serve their
communicative purpose as much as one would expect them to.
However, the current world in which we live today, the law
requires that all disclosures be made known to the patients,
prior to their agreeing to the contact.
It was also an observation that Wilkinson‐Ryan made, in 2014
that the disclosures might not have a major impact on our
deciding to go through with a procedure or not. Understandably,
we end up being in a position whereby, we make our minds
despite knowing all the risks involved. However, the same
disclosures play a vital role in how we understand and interpret
the outcome of the procedure.
If it works in our favour, then we are okay with the disclosures.
If not, then it is definitely the doctors’ fault. The main concern
addressed by Wilkinson was whether or not there would be a
way to create a kind of an informed consent that would not
come back to put the doctor at fault later on.
From this document, I understand informed consent to be a kind
of an agreement between the doctor and the patient. It is
important because, it gives the patient the chance to give the
doctor the right to carry out their procedure on the patient. If
anything goes wrong, the patient is supposed to be
understanding of the fact that wrong things just happen.
Noel Hunter (2013) looks at informed consent, from an ethical
stand point. The article raises concerns about the ability of the
patient to make the right decisions when confronted with the
question of whether or not to give informed consent. Noel
Hunter addresses the issue, from the point of the patients’
decision being affected by the kind of information that is given
in the document that is offered to them when the doctor is
seeking informed consent.
In the offering of treatement to sensitive conditions, the

clinicians should be able to learn how to offer the right
information to the patients in order to better enhance their
risk/benefit decision making process. This is because, this
decision is about the life of a person.
Depending on the information that is availed privately to the
patient, all the relevant conditions about the illness should be
presented. In case the patient has some questions, they should
be feeling free to go and see their doctor in order to have their
case explained to them so that they understand fully what is
going on, and what needs to be done in order for their situation
to be changed.
From this analogy, one understands the informed consent to be a
kind of a document that presents a patients answer to a test. The
answer given by the patient, depends on the information given
by the doctor. Therefore, the ability of the patient to get the
answer correctly, and satisfactorily, lies upon the ability of the
doctor to provide accurate information. At the end of the day
however, an informed consent presents a kind of a road map
into the mind of the patient, seeking to explain why they made
the decision they made. The best decision is made when the
doctor provides the relevant information which would enable
the patient to make up their minds for or against a treatement
strategy.
More so, Shapiro & Smith (2011) have some brilliant ideas to
add onto what we already know about informed consent. Titled
Negligence in Professional Practice, Shapiro & Smith (2011),
have been able to give us a view at their mind, on what they
think about the issue with informed consent. Firstly, they write
that, informed consent is gaining prominence in the current
medical practices, especially the kind of practices which are
current, and not a traditional method of offering medical
services.
Application of the standard of care, is an important manner of
ensuring that the informed consent is effective (Shapiro, 2011).
For different kinds of illnesses, there are different practices
which can be considered to be the best for that particular

situation. At the end of the day, the conditions being treated
should be handled in a certain way, which will be sure to
produce the best effect in terms of the ability of the patient to
recover later on.
This system of involves pairing the standard of care with the
informed consent. From this, the informed consent is another
way of showing what the patient feels of the kind of care they
expect to receive from the doctors who are serving them. If the
patient feels that the risks are bearable and he or she is
confident that the team of doctors and nurses is going to work
with the patient, then they sign the informed consent. If they
don’t feel confident, they don not sign the consent.
Conclusion
An informed consent is a very important document in
todays’ world of medicine. An informed consent is a legally
binding document which the patients signs, following the
conduction of a medical procedure. In the consent, the patient is
expected to pledge that they are aware of the risks, and that it is
their consent to go through with the medical procedure
regardless. In this manner, if in the end they end up maybe
getting a complication, they can legally not blame anyone as the
stakes were explained to them earlier on.
From the material issued, important aspects of informed
consent were raised. This includes the aspects to do with the
ability of the doctors to clearly and simply present the relevant
information to the patient. In this case, the relevant information
is considered as being the information which affects the
decision making of the patient, at a core level. The patient
should also be given enough time, to deliberate on the issue,
and make up their minds on what they think the future should
look like for them and their medical terms. The process of
acquiring the informed consent should be the right method, not
spooking off the patient with all sorts of unnecessary
disclosures. At the end of it all however, an informed consent
acts as a good way of giving permission to the doctors to go
ahead with a medical procedure in which, the patients know

what might happen, and are on board with taking risks for the
right reasons.
References
Kirby, R., Challacombe, B., Hughes, S., Chowdhury, S., &
Dasgupta, P. (2013). Increasing importance of truly informed
consent: the role of written patient information. BJU
international, 112(6), 715-716.
Waller, B. N., & Repko, R. A. (2008). Informed consent: good
medicine, dangerous side effects. Cambridge Quarterly of
Healthcare Ethics, 17(01), 66-74.
Wilkinson‐Ryan, T. (2014). A Psychological Account of
Consent to Fine Print. Iowa Law Review, 99, 14-22.
Hunter, N. (2013). Distortion, Bias, and Ethical Informed
Consent: Presentations of Etiological and Treatment Factors in
Abnormal Psychology Textbooks. Ethical Human Psychology
and Psychiatry, 15(3), 160-179.
Shapiro, D. L., & Smith, S. R. (2011). Negligence in
professional practice.
The Report Information from ProQuest (October, 22, 2016).
18:55
Jessica W. Berg, Paul S. Appelbaum, Charles W. Lidz, Lisa S.
Parker. (2001). Informed Consent: Legal Theory and Clinical
Practice, Oxford University Press. 2nd edition. ISBN
9780199747788. Retrieved from-
https://books.google.com/books?id=b6w7V7gCkSIC&printsec=f
rontcover#v=onepage&q&f=false
Ruth R. Faden, Tom L. Beauchamp. (1986). A History and
Theory of Informed Consent, Oxford University Press. ISBN
9780199748655. Retrieved from -
https://books.google.com/books?id=jgi7OWxDT9cC&printsec=
frontcover#v=onepage&q&f=false

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Report Information from ProQuest
October 22 2016 19:04
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22 October 2016 ProQuest
Table of contents
1. Informed Consent: Good Medicine, Dangerous Side
Effects....................................................................... 1
22 October 2016 ii ProQuest
Document 1 of 1
Informed Consent: Good Medicine, Dangerous Side Effects
Author: Waller, Bruce N; Repko, Robyn A
ProQuest document link
Abstract:
Informed consent has passed through three stages. The first
paternalistic stage lasted for many centuries: The
doctor's diagnosis and healing arts were kept secret, and
informing patients was regarded as professionally and
ethically wrong. Second came the legal stage, when the right of
patients to make informed decisions concerning

their own treatment was imposed by the courts and reluctantly
tolerated by medical professionals. The third
informed consent stage emerged more recently: the general
therapy stage. The therapeutic benefits of informed
consent have been well established, and informed consent is
widely recognized as an important element in
sound medical practice. When patients are effectively informed
and can exert knowledgeable control over their
own treatment decisions and therapy processes, that enhances
recovery, strengthens the immune system,
promotes better pain tolerance, prevents depression, and
encourages patient cooperation and fortitude in
treatment, rehabilitation, and preventative procedures. As the
medical community has absorbed greater
knowledge of this research, informed consent has been
recognized as both ethically essential and
therapeutically sound: the hallmark of the current general
therapy stage of informed consent. [PUBLICATION
ABSTRACT]
Links: Check for full text in other resources
Full text:
Informed consent has passed through three stages. The first
paternalistic stage lasted for many centuries: The
doctor's diagnosis and healing arts were kept secret, and
informing patients was regarded as professionally and
ethically wrong. Second came the legal stage, when the right of
patients to make informed decisions concerning
their own treatment was imposed by the courts and reluctantly
tolerated by medical professionals. The third
informed consent stage emerged more recently: the general
therapy stage. The therapeutic benefits of informed
consent have been well established, and informed consent is
widely recognized as an important element in
sound medical practice. When patients are effectively informed
and can exert knowledgeable control over their
own treatment decisions and therapy processes, that enhances

recovery, strengthens the immune system,
promotes better pain tolerance, prevents depression, and
encourages patient cooperation and fortitude in
treatment, rehabilitation, and preventative procedures. As the
medical community has absorbed greater
knowledge of this research, informed consent has been
recognized as both ethically essential and
therapeutically sound: the hallmark of the current general
therapy stage of informed consent.
The widespread ethical and therapeutic acceptance of informed
consent is a positive development, but there
are dangers. Like many positive therapeutic processes, informed
consent can cause harm if administered
carelessly. Informed consent is a valuable element of medical
therapy, and good medical therapy is not a one-
size-fits-all procedure. The question of what a "reasonable
person" would want to know is no more helpful than
asking whether a generic "reasonable person" would benefit
from penicillin. To gain the full benefits of informed
consent and avoid potential harms, conscientious medical
professionals must move beyond the general therapy
stage of informed consent to an individual therapy level of
informed consent, in which--like other elements of
good medical therapy--informed consent is tailored to the
individual patient. Conscientious medical
professionals are already accustomed to offering information in
a vocabulary and at a level of discourse
appropriate to the patient's background and understanding. The
fourth stage of individual therapy informed
consent makes additional requirements on the informed consent
process. Those requirements entail examining
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some important psychological characteristics of individual
patients, along three distinct but related dimensions.
First, physicians must determine what coping style the patient
employs: a monitoring style, in which the patient
copes by gaining as much information as possible and trying to
anticipate and understand everything that will
happen, with no surprises, or a blunting style of coping, in
which the patient copes by trying to avoid thinking
about a painful or distressing situation. The monitoring patient
facing chemotherapy wants to know as much as
possible about the treatment, all side effects, what the treatment
process involves, what is involved in each
step, what to anticipate; the blunting patient prefers not to think
about it, giving the entire process as little
attention as possible. An early study along these lines found
that active (monitoring) patients recovered from
surgery more swiftly if they received detailed information,
whereas such information slowed recovery for
patients who coped by means of blunting. Other studies have
found similar results.
Dealing effectively with patient coping styles is an important
but challenging process. It is complicated by the
fact that the blunting style involves problems of its own.
Monitors are more likely to take positive steps toward
health promotion and disease detection, and a blunting style
may have direct negative effects on physical
health. Crisson and Keefe found that chronic pain patients who
employed a "diverting attention" or blunting style

of coping suffered greater anxiety, more obsessive-compulsive
symptoms, and increased depression, they were
more likely to catastrophize their situation, and they avoided
taking active steps to cope with their pain, and they
themselves reported that "their coping strategies were not very
effective in controlling and decreasing pain."
Patients adopting an avoidance (blunting) coping style
experience greater psychological distress and poorer
psychological adjustment to illness. Positive results for those
using the monitoring coping style are widely
confirmed. Patients who are blunters may need help in finding
more effective means of coping, and they may
well desire and request such help if they realize that other
coping styles are possible. In that case, active
intervention--by a psychotherapist--is no more a violation of
autonomy than is active intervention to assist a
smoker who expresses a desire to stop. Thus the physician
legitimately could describe the problems associated
with blunting, just as the physician might point out the
problems associated with smoking. What the patient
chooses to do with that information is, of course, up to the
patient. When patients choose not to modify their
less than optimum coping style (and such modifications are not
an easy process), the physician must consider
that important factor in providing individualized information to
the patient. Furthermore, it is very important that
physicians know which of their patients are blunters, so that
they can be alert for signs of depression (just as
knowledge of a patient's smoking habit should alert the
physician to check for various diseases associated with
smoking).
Individualized informed consent requires screening patients to
determine whether they employ a blunting style
of coping: a coping style that makes some kinds of information
potentially harmful to the patient. The best
informed consent process with a blunting patient will be very

different from the process that would occur with a
patient who is an active monitor. In particular, patients who are
blunters should have control over what
information is, and is not , provided; and physicians should
guard against reciting a standard detailed
description of the proposed therapy and the experiences
associated with it, instead prefacing each part of the
description with a question concerning whether the patient
wants this particular item of information or perhaps
giving the information in written form with clear headings so
the patient can easily skip sections she does not
wish to read. Honoring a patient's own choice to control the
flow and detail of information provided is an
enhancement, rather than a violation, of patient autonomy.
Careless use of informed consent, without adequate attention to
the individual needs of the particular patient,
may undermine a patient's preferred coping style. That is the
first problem with general therapy "one-size-fits-
all" informed consent, and the first reason to move toward a
model of individual therapy informed consent. The
second danger concerns the locus of control orientation of
patients. Is this patient strongly internal , believing
that what happens to her is largely under her own control, or
strongly external , believing that most of what
happens is outside her control and influence? For those having
an external locus of control, a further distinction
is important: between patients who believe that important
events are under the control of fate or chance and
that there is little anyone can do to control them, and patients
who believe that important events are largely
controlled by powerful others (who may exercise benevolent

control for the benefit of the patient). Research
indicates that an internal locus of control is associated with
both better psychological adjustment as well as
better general health and health behavior; but unless the patient
is experiencing severe problems from this
external locus of control and desires to change--and that would
call for specialized psychotherapy--then it is
hardly the physician's right to modify such a deep orientation,
which may well be associated with personal
convictions about fatalism or free will or God. Unsolicited
intervention to reshape a patient's locus of control
would be much more intrusive than unsolicited intervention to
prevent a patient from smoking.
It is very important that the physician recognize the locus of
control of her patient when tailoring the informed
consent process to fit the therapeutic needs of the individual
patient. If a strongly external patient feels that
medical professionals are placing the decisionmaking weight on
his shoulders, though he can't effectively exert
control, that will be very frightening. Furthermore, it is
important to go further with patients who are external, and
determine whether they believe control of events is set by fate
or chance or instead by powerful others. In the
right circumstances--when patients are confident of the
expertise and good will of their physicians--externals
who believe in control by powerful others fare almost as well as
internals. It is obviously of great importance that
such a patient regard his physician as strong, highly competent,
and committed to the patient's welfare. This
does not mean that the physician must pretend to knowledge of
nonexistent medical certainties, much less that
the physician should make false promises or cover up risks; but
with externals who believe that control is in the
hands of powerful others, the physician is justified in offering a
stronger and more confident recommendation
that "in my considered opinion, and with my many years of

experience with cases like yours," this specific
course of treatment is best.
When dealing with external patients who believe that control
rests with powerful others, Howard Brody's
transparency standard for informed consent may prove useful.
Brody proposes that physicians should make
transparent to their patients the reasoning process followed in
making a treatment recommendation: the
alternatives the physician considered and the relevant
advantages and disadvantages that led to the physician's
conclusion. Ideally, the physician's disclosure would lead to
questions by the patient, which the physician would
answer fully. For strongly internal patients, Brody's model may
be too passive: The doctor is making the
decision and deliberating about it, and my basic role as patient
is merely to acquiesce. But with externals who
believe that control primarily is exerted by powerful others,
Brody's transparency standard might be a perfect fit.
The physician is saying to the external patient: This is how I
reasoned, this is why I believe that this is the best
course for you, and I will use all my skill and resources to reach
the best possible result. The external patient
observes that the physician is offering careful and wise advice,
and the physician is obviously taking time and
effort to think through the process to the best treatment
procedure possible; and so here is a wise powerful
other who has my interests in mind and at heart. This does not
imply--as Brody himself emphasizes--that the
patient's right to make an informed final choice may be
compromised in any way. But if we are to respect the
patient's individuality and personal orientation, then it is
essential that we frame the informed consent process in
the way that works best for that patient and allows the patient to
comfortably and confidently exercise her
autonomous right to make her own decisions. Under the general
therapy model of informed consent, we might

suppose that if the transparency model is acceptable as a
standard of informed consent then it must be
optimum for all patients. On the model of individual therapy
informed consent we can recognize that the
transparency model is a good fit for some patients, but not for
all.
The first danger from the general therapy informed consent
model is the danger of undercutting the patient's
preferred coping method; second is the danger of imposing a
frightening decisionmaking burden on an external
patient who believes that he cannot control such vital decisions.
The third danger concerns strongly internal
patients, who believe that what happens is really up to them and
under their control. Patients with an internal
locus of control generally do better--in recovery, positive health
behavior, avoidance of depression--than do
externals. There are, however, some important exceptions. The
problems emerge for internal patients who have
a weak sense of perceived self-efficacy . Self-efficacy concerns
the patient's level of confidence that she can
effectively handle the tasks that confront her or understand the
material she is supposed to understand or be
successful in her efforts to follow a treatment program: in short,
that she has (or lacks) competence. Perceived
self-efficacy may be domain specific; that is, I might be highly
self-efficacious in most areas of my life yet have
low perceived self-efficacy in managing my own medical care
and making wise medical decisions. Furthermore,
my perceived self-efficacy is not the same as my actual ability.
I may have a high sense of mathematical self-
efficacy despite being lousy at mathematics or be quite

competent at mathematics while still being convinced
that "I just can't do math."
Making competent choices for myself is satisfying and healthy,
but making important choices while feeling
painfully inadequate is stressful and even terrifying. Thus the
third danger of general therapy informed consent
is the danger to an internal patient who--because of her weak
sense of self-efficacy--is wrongly characterized as
an external, and thus "chooses" not to exercise the full range of
control that (with adequate support and
information and confidence) the patient prefers to exercise and
would benefit from exercising.
The fourth danger is closely connected with the third. It is
unfortunate to be deprived of desired effective control
because of one's sense of incompetence and low self-efficacy; it
is still worse to feel that one is in control and
that what happens is unavoidably in one's own hands, but one is
incompetent to exercise that control
intelligently and effectively. Consider a patient who is strongly
internal (who believes that what happens
depends largely on her own choices and behavior) and who
normally thrives in exercising control and making
decisions. But this patient is overwhelmed by an alien hospital
environment and befuddled by information she
finds impossible to comprehend: Perhaps the vocabulary is
unfamiliar or the patient understands the words but
lacks a framework that would invest them with significance or
too many options overwhelm the patient's
capacity for intelligent comparison. The patient--feeling a very
inadequate sense of health self-efficacy--prefers
to have the physician make the decisions in this frightening
context (though the optimum situation for this
patient is adequate understanding that may strengthen the
patient's sense of health self-efficacy and enable the
patient to exercise effective control). If the physician simply
makes the decision for the patient, we have the third

problem: an internal patient who wants to exercise control and
would benefit from doing so, but who lacks the
confidence to do so effectively. But suppose the physician
refuses to make a treatment recommendation for the
patient, instead thrusting the responsibility back on the patient's
uneasy and self-efficacy challenged shoulders:
"No, this is an important decision that you must make for
yourself." The physician is striving to honor the
patient's autonomous right to make her own decisions, but the
result for the patient is the worst of all possible
worlds: This very important decision is entirely under my
control, but I cannot exercise that control effectively
and intelligently. Increased patient participation is generally
positive; but only if the patient has enough
information, in a form that the patient can actually use and
control, and the patient has a sufficiently robust
sense of self-efficacy to welcome the opportunity for active
participation.
It is essential to provide patients with sufficient information, in
a form they can understand, but it is also
important to keep in mind that even when patients have such
information they may not feel confident to make
decisions. Strengthening or restoring a patient's sense of health
self-efficacy is not always an easy task:
Anyone who has tried to tutor a bright and capable student who
lacks an adequate sense of mathematical self-
efficacy will appreciate the challenges. If the patient's
perceived self-efficacy can be strengthened, then the
patient's autonomy as well as the patient's therapeutic success is
significantly enhanced. As patients gain more
information and experience success in making decisions and
managing their own care, they may gradually gain
a stronger sense of health self-efficacy. But although
development of stronger perceived self-efficacy is a
worthy goal, it is important to recognize that not all patients
have reached that goal. If I start from a low level of

health self-efficacy, I may stay at that level even after I have
gained considerable knowledge of how to
effectively manage my own healthcare. Thus a patient low in
self-efficacy may still find it terrifying to make
medical decisions on her own, even when she is well informed
and in fact quite capable of making good
decisions. If we are to respect the autonomy of the individual
patient, with her own distinctive capacities,
concerns, and fears, then we must be prepared to help patients
who are low in health self-efficacy enhance
their sense of confident self-efficacy; but we must not treat all
patients as if they are equal in health self-efficacy.
That does not imply that we should give such patients less
information, hide things from them, or deprive them
of their opportunity to make informed choices. But it does
imply that with such patients we should not simply set
out a daunting range of options and wait for them to make their
own choices. Patients with weak self-efficacy
require more support throughout the decisionmaking process,
and physicians might well adopt something closer
to the transparency process--including the physician's own
recommendation--in helping such patients reach a
decision with which they are comfortable and confident.
Informed consent is a basic requirement for dealing ethically
with patients: a requirement mandated by the
obligation to honor the autonomous choice-making capacities of
patients. But informed consent is also a
positive element of good therapy; as such, it should be handled
with caution and tailored to the individual
patient. Individual therapy informed consent requires medical
professionals to recognize the salient

psychological characteristics that are key determinants of
appropriate informed consent practices (coping style,
locus of control, and level of self-efficacy) and shape decisions
concerning informed consent procedures to the
relevant characteristics of individual patients. None of that
justifies forgoing or compromising the patient's basic
right of informed consent. But honoring that right--and
achieving the best ethical and therapeutic results--
requires honoring the individuality of the patient.
Determining the relevant psychological characteristics of
patients is a significant task, but by no means an
impossible one. There are relatively short tests available that
can be given to patients, perhaps as part of their
admission profile. For coping style, brief available tests include
the Threatening Medical Situations Inventory
(TMSI) and the Monitor-Blunter Style Scale (MBSS). "The
feasibility of administering a brief test of coping style
before instruction and employing the results to tailor instruction
to the patient's coping style" has been
successfully tested. For locus of control, the Multidimensional
Health Locus of Control Scale is the most widely
used for determining locus of control in relation to health
issues. For self-efficacy, the generalized self-efficacy
(GSE) scale is standard, whereas specialists working with
narrower specialties might prefer one of the many
specific self-efficacy measures. No combined test is currently
available, but psychologists could devise a simple
and reasonably brief questionnaire (by combining existing tests)
that would provide an adequate profile of these
important patient characteristics. If physicians occasionally
require the aid of psychologists in interpreting such
test results, that would lead to improved therapy as well as to
opportunities for physicians to become more
knowledgeable concerning key psychological traits of their
patients. Online scoring and interpretation could
make the process swift and manageable.

Patients with an internal locus of control, a monitoring style of
coping, and a strong sense of self-efficacy are the
patients most likely to benefit from a rich, full, informative
discussion of prognosis, treatment options, and likely
outcomes. Such patients are also most likely to make good use
of the opportunity to exercise choice and control
in selecting a program of treatment and following that treatment
program as full partners with their health
professionals. At the other end of the spectrum is the patient
who favors a blunting style of coping, has an
external (even fatalistic) locus of control, and suffers from a
weak sense of self-efficacy--perhaps an especially
weak sense of health self-efficacy. We might well conclude that
the latter patient enjoys considerably less
autonomy than does the former. It would still be wrong, both
ethically and therapeutically, to treat the latter
patient paternalistically. First, paternalistic treatment violates
the patient's autonomy. A patient with a weak
sense of self-efficacy and an external locus of control has only
minimal autonomy, true enough; but respect for
autonomy is not limited to those with the richest autonomy
resources. Second, such paternalistic treatment will
solidify the problematic perspectives. Medical professionals do
not have the right to change the personalities of
people against their wishes, even for their own good; but neither
should they adopt policies that exacerbate
problematic psychological characteristics. A weak sense of
control, combined with weak self-efficacy, causes
problems: It is associated with depression, compromised
immune function, slower recovery, and poor health
behavior. Treating such patients paternalistically--not

respecting them as persons who have their own values
and are still autonomous (even if not as robustly autonomous as
some others)--is likely to entrench those
unfortunate characteristics and make a bad situation worse.
When physicians recognize the relevant
psychological characteristics of their patients, that makes it
possible for patients to gain the knowledge that is
most appropriate for their needs and interests and enables
patients to make judgments--or at the very least,
freely acquiesce in the considered judgment of a respected and
trusted physician--and thereby exercise
genuine informed consent; and respect for limited autonomy
may be one way of enlarging and strengthening
autonomy. Thus even patients with very weak psychological
resources can and should practice giving informed
consent. Third, involving the patient of limited autonomy
resources in a rudimentary and nonthreatening
exercise of autonomy may be a means of preventing that patient
from sliding into deeper learned helplessness,
with all of its severe psychological and physical consequences.
Obviously that will not be enough to transform
weak autonomy into a richer and stronger and more resourceful
autonomy; but at least it's a step in the right
direction, rather than a push in the wrong.
Informed consent is fundamentally the recognition of the
autonomous patient's right to make her own decisions
concerning medical treatment. But informed consent is also a
positive therapeutic resource when used correctly
and a significant source of potential harm when handled
carelessly. Having recognized both the ethical and
therapeutic importance of informed consent, the medical
community must now invest the care and thought
required to gain the benefits and avoid the perils of informed
consent. Those in health psychology have an
opportunity to make relevant psychological research readily
accessible to practicing physicians and to devise

tests that can be easily administered and adequately understood
by physicians who are learning to deal with the
vitally important psychological dimensions of treatment that is
therapeutically sound and ethically legitimate.
Footnote
1. As shown by Brody DS, Miller SM, Lerman CE, Smith DG,
Caputo GC. Patient perception of involvement in
medical care: Relationship to illness attitudes and outcomes.
Journal of General Internal Medicine 1989;4:506-
11; Mahler HIM, Kulik JA. Preferences for health care
involvement, perceived control and surgical recovery: A
prospective study. Social Science and Medicine 1990;31:743-
51.
2. Kamen-Siegel L, Rodin J, Seligman MEP, Dwyer J.
Explanatory style and cell-mediated immunity in elderly
men and women. Health Psychology 1991;10:229-35; Rodin J.
Aging and health: Effects of the sense of control.
Science 1986;233:1271-6.
3. Arnstein P, Caudill M, Mandle C, Norris R, Beasley R. Self-
efficacy as a mediator of the relationship between
pain intensity, disability and depression in chronic pain
patients. Pain 1999;80:483-91; Bowers KS. Pain,
anxiety, and perceived control. Journal of Consulting and
Clinical Psychology 1968;32:596-602; Hill HF, Mackie
AM, Coda BA, Iverson K, Chapman CR. Patient controlled
analgesic administration: A comparison of steady-
state morphine infusions with bolus doses. Cancer 1991;67:873-
82.
4. Joekes K, Van Elderen T, Schreurs K. Self-efficacy and
overprotection are related to quality of life,
psychological well-being and self-management in cardiac
patients. Journal of Health Psychology 2007;12:4-16;
Mirowsky J, Ross CE. Control or defense? Depression and sense
of control over good and bad outcomes.
Journal of Health and Social Behavior 1990;31:71-86; Taylor
SE. Adjustment to threatening events: A theory of

cognitive adaptation. American Psychologist 1983;38:1161-73.
5. Among the many studies are Arras RE, Ogletree RJ,
Welshimer KJ. Health-promoting behaviors in men age
45 and above. International Journal of Men's Health 2006;5:65-
79; Kaplan RM, Atkins CJ, Reinsch S. Specific
efficacy expectations mediate excerise compliance in patients
with COPD. Health Psychology 1984;3:223-42;
Wallston KA. Psychological control and its impact in the
management of rheumatological disorders. Bailliere's
Clinical Rheumatology 1993;7:281-95; Williams KE, Bond MJ.
The roles of self-efficacy, outcome expectancies
and social support in the self-care behaviours of diabetics.
Psychology, Health &Medicine 2002;7:127-41.
6. Described by Krohne HW. Individual differences in coping.
In: Zeidner M, Endler NS, eds. Handbook of
Coping: Theory, Research, Applications . Oxford: John Wiley
&Sons; 1996:391-409; Miller SM. Monitoring
versus blunting styles of coping with cancer influence the
information patients want and need about their
disease: Implications for cancer screening and management.
Cancer 2006;76:167-77.
7. Andrew JM. Recovery from surgery with and without
preparatory instruction for three coping styles. Journal of
Personality and Social Psychology 1970;15:223-6.
8. See note 6, Miller 2006; Miller SE, Mangan CE. Interaction
effects of information and coping style in adapting
to gynaecologic stress: Should the doctor tell all? Journal of
Personality and Social Psychology 1983;45:223-36.
9. Van Zuuren FJ, Dooper R. Coping style and self-reported
health promotion and disease detection behaviour.

British Journal of Health Psychology 1999;4:81-9.
10. Olff M, Brosschot JF, Godaert G. Coping styles and health.
Personality and Individual Differences
1993;15:81-90.
11. Crisson JE, Keefe FJ. The relationship of locus of control to
pain coping strategies and psychological
distress in chronic pain patients. Pain 1988;35:147-54.
12. Studies include Bombardier CH, D'Amico C, Jordan JS. The
relationship of appraisal and coping to chronic
illness adjustment. Behaviour Research and Therapy
1990;28:297-304; Carver CS, Scheier M. Vigilant and
aviodant coping in two patient groups. In: Krohne HW, ed.
Attention and Avoidance: Strategies in Coping with
Aversiveness . Seattle: Hogrefe &Huber; 1993:295-319; see
note 10, Olff et al., 1993.
13. Described in Feifel H, Strack S, Nagy VT. Coping strategies
and associated features of medically ill patients.
Psychosomatic Medicine 1987;49:616-25; Suls J, Fletcher B.
The relative efficacy of avoidant and nonavoidant
coping strategies: A meta-analysis. Health Psychology
1985;4:249-88.
14. Examples include Bar-Tal Y, Spitzer A. The effect on
coping of monitoring, blunting, and the ability to
achieve cognitive structure. Journal of Psychology
1999;133:395-412; Ben-Zur H. Monitoring/blunting and social
support: Associations with coping and affect. International
Journal of Stress Management 2002;9:357-73.
15. As noted in Miller SM, Fang CY, Diefenbach MA, Bales C.
Tailoring psychosocial intervention to the
individual's health information processing style: The influence
of monitoring versus blunting in cancer risk and
disease. In: Baum A, Andersen B, eds. Psychosocial
Interventions in Cancer . Washington, DC: APA,
2001:342-62.
16. Described in Rotter JB. Generalized expectancies for
internal versus external control of reinforcement.

Psychological Monographs 1966;80(whole no. 609); Rotter JB.
Some problems and misconceptions related to
the construct of internal vs. external control of reinforcement.
Journal of Consulting and Clinical Psychology
1975;43:56-67.
17. Brody H. Transparency: Informed consent in primary care.
Hastings Center Report 1989;19:506-11.
18. See Bandura A. Self-efficacy: Toward a unifying theory of
behavior change. Psychological Review
1977;84:191-215; Bandura A. Self-efficacy mechanism in
human agency. American Psychologist 1982;37:122-
47; Bandura A. Self-efficacy: The Exercise of Control . New
York: W.H. Freeman; 1997.
19. As noted in Pucheu S, Consoli SM, D'Auzac C, Francais P,
Issad B. Do health causal attributions and
coping strategies act as moderators of quality of life in
peritoneal dialysis patients? Journal of Psychosomatic
Research 2004;56:317-22.
20. As described by Litt MD. Cognitive mediators of stressful
experience: Self-efficacy and perceived control.
Cognitive Therapy and Research 1988;12:241-60.
21. A sample of such experimental findings are Bandura A,
Schunk DH. Cultivating competence, self-efficacy,
and intrinsic interest through proximal self-motivation. Journal
of Personality and Social Psychology
1981;41:586-98; Davis AHT, Carrieri-Kohlman V, Janson SL,
Gold WM, Stulbart MS. Effects of treatment on
two types of self-efficacy in people with chronic obstructive
pulmonary disease. Journal of Pain and Symptom
Management 2006;32:60-70; Lorig K, Holman H. Self-
management education: History, definition, outcomes and

mechanisms. Annals of Behavioral Medicine 2003;26:1-7;
Wright C, Barlow J, Turner A, Bancroft G. Self-
management training for people with chronic disease: An
exploratory study. British Journal of Health
Psychology 2003;8:465-76.
22. Van Zuuren FJ, de Groot KI, Mulder NL, Muris P. Coping
with medical threat: An evaluation of the
threatening medical situations inventory (TMSI). Personality
&Individual Differences 1996;21:21-31.
23. Miller SM. Monitoring and blunting: Validation of a
questionnaire to assess styles of information seeking
under threat. Journal of Personality &Social Psychology
1987;52:345-53; Miller SM, Combs C, Kruus L. Tuning
in and tuning out: Confronting the effects of confrontation. In:
Krohne HW, ed. Attention and Avoidance:
Strategies in Coping with Aversiveness . Seattle: Hogrefe and
Huber; 1993:51-69.
24. Watkins LO, Weaver L, Odegaard V. Preparation for cardiac
catherization: Tailoring the content of
instruction to coping style. Heart and Lung 1986;15:382-9.
25. Wallston KA, Wallston BS. Health locus of control scales.
In: Lefcourt H, ed. Research with a Locus of
Control Construct . New York: Academic Press; 1981:189-243;
Wallston KA, Wallston BS, DeVellis R.
Development of the multidimensional health locus of control
(MHLC) scales. Health Education Monographs
1978;6:160-70.
26. Sherer M, Maddux JE, Mercadante B, Prentice-Dunn S,
Jacobs B, Rogers RW. The self-efficacy scale:
Construction and validation. Psychological Reports
1982;51:663-71.
27. Seligman MEP. Helplessness: On Depression, Development,
and Death . New York: W.H. Freeman; 1975.
AuthorAffiliation
Bruce N Waller, Department of Philosophy and Religious
Studies at Youngstown State University, Youngstown,

Ohio
Robyn A Repko, Youngstown State University, Youngstown,
Ohio
Subject: Informed consent; Health psychology; Smoking;
Problems; Side effects;
MeSH: Adaptation, Psychological, Ethics, Clinical, Humans,
Personal Autonomy, Ethics, Medical (major),
Informed Consent (major), Informed Consent (major) -- ethics,
Informed Consent (major) -- legislation &
jurisprudence, Informed Consent (major) -- standards, Patients -
- psychology (major), Self Efficacy (major)
Publication title: Cambridge Quarterly of Healthcare Ethics
Volume: 17
Issue: 1
Pages: 66-74
Number of pages: 9
Publication year: 2008
Publication date: Jan 2008
Year: 2008
Publisher: Cambridge University Press
Place of publication: New York
Publication subject: Medical Sciences
ISSN: 09631801
Source type: Scholarly Journals
Language of publication: English
Document type: Journal Article
Accession number: 18462546
ProQuest document ID: 201420278
Document URL:
Copyright: Copyright Cambridge University Press Jan 2008

Last updated: 2015-08-15
Database: ProQuest Central
_____________________________________________________
__________
Contact ProQuest
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and Conditions
http://www.proquest.com/go/pqissupportcontact
http://search.proquest.com/info/termsAndConditionsInformed
Consent: Good Medicine, Dangerous Side Effects
E2_WILKINSON-RYAN.DOCX (DO NOT DELETE) 4/10/2014
11:35 AM
1745
A Psychological Account of Consent to
Fine Print
Tess Wilkinson-
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.
of Pennsylvania Law School. I am
very grateful for David Hoffman’s comments on an earlier draft,
and for feedback from

participants in the American University faculty workshop and
the University of Minnesota Law
and Economics seminar. This Essay benefitted greatly from the
able research assistance of
Liann Sun, Bonnie White, and Ryan Wolf.
11:35 AM
1746 IOWA LAW REVIEW [Vol. 99:1745
INTRODUCTION
.................................................................................... 1747
I. MODERN CONSUMER CONTRACTING
................................................... 1751
A. BOILERPLATE IS UBIQUITOUS AND UNREAD
..................................... 1751
B. CONTRACT DOCTRINE: DUTY TO READ
............................................ 1753
C. THEORETICAL PERSPECTIVES
.......................................................... 1756
II. PSYCHOLOGY OF BOILERPLATE
............................................................ 1758
A. THE PSYCHOLOGY OF IGNORING FINE PRINT
.................................... 1759
B. MORAL OBLIGATION OF CONTRACT
................................................ 1760
C. JUDGING CONSUMER CONSENT
........................................................ 1762
1. Study 1: Blame and the Reasonable Consumer .................
1762

a. Method .............................................................................
1762
b. Results .............................................................................
1764
III. MOTIVATION TO IMPUTE CONSENT
..................................................... 1767
A. CONTRACTING IN A JUST MARKETPLACE
.......................................... 1767
1. Study 2: Effect of Harm on Attributions of Consent .........
1768
a. Method .............................................................................
1768
b. Results .............................................................................
1770
B. OVERCONFIDENCE
........................................................................... 1771
1. Study 3: Overestimating One’s Own Readership...............
1772
a. Method .............................................................................
1772
b. Results .............................................................................
1773
IV. AVAILABILITY AND SALIENCE IN CAUSAL
ATTRIBUTION ....................... 1775
A. COUNTERFACTUAL REASONING
....................................................... 1775
1. Study 4: Making Firm Behavior More Salient ....................
1777
a. Method .............................................................................
1777

b. Results .............................................................................
1778
B. INATTENTION TO OVERLOAD: ITEM BRACKETING
............................. 1778
1. Study 5: Salience of Disclosure Overload ...........................
1779
a. Method .............................................................................
1779
b. Results .............................................................................
1781
V. TOWARD A PROCEDURAL JUSTICE OF CONTRACTS
............................... 1782
CONCLUSION
.......................................................................................
1784
11:35 AM
2014] A PSYCHOLOGICAL ACCOUNT OF CONSENT TO
FINE PRINT 1747
INTRODUCTION
The proposition that most people do not read the small print,
heed the
warning labels, or review the “Terms and Conditions” links, is

no longer
controversial. Nonetheless, the barrage of fine-print disclosures
continues
unabated, and enforcement of universally unread terms is
assumed. The
juxtaposition of these facts of modern contracting—widespread
reliance on
disclosures to protect consumers and widespread agreement that
disclosures
do not affect consumer behavior—is somewhat puzzling.
Contracts scholars
have largely approached this puzzle in normative terms,
attempting to
reconcile the idea of meaningful assent with the core contract
doctrine of
implied consent to unread terms. What scholars have overlooked
in this
discussion is a coherent descriptive theory of modern
contracting. How do
ordinary consumers understand their contractual obligations
when
formation of most contracts is perfunctory, but the moral and
legal rhetoric
of contract enforcement is robust? A psychological account of
consumer
consent sheds new light on the costs and benefits of fine-print
contracting.
Consent to standard terms occupies an uneasy place in the
existing
research on the moral psychology of contracts. The relevant
moral and
social norms that bear on contracts of adhesion evince a deep
cultural
ambivalence. Contracts are understood to be serious moral
obligations, and

yet everyday commercial activity requires that consumers sign
agreements
that contain terms they have not read. Most people see consent
to
boilerplate as less meaningful than consent to negotiated terms,
but
nonetheless would hold consumers strictly liable for both. This
is an area
with unclear—if not bipolar—norms, and we do not know how
individuals
assimilate conflicting preferences and bodies of evidence into
judgments of
consumer consent.
At a broad level, this Essay attempts to tease out the beliefs,
preferences,
assumptions, and biases that constitute our assessments of
assent to
boilerplate. To do this, I use methods from the psychology of
judgment and
decision-making. This Essay presents five short vignette studies
about
transacting by boilerplate in an effort to examine how
consumers think
about modern contracting, and how the context of modern
contracting
bears on judgments of transactional harms. I argue that most
people are
sensitive to the realities of contracting via boilerplate, and are
concerned
that consent to fine print is compromised consent. Nonetheless,
the
vignettes suggest, when it comes to explaining transactional
harms,1 blaming
the consumer who consented to the agreement for the harm is
both

psychologically attractive as well as cognitively available. Even
in the face of
1. In this Essay, I will use the phrase “transactional harm” to
refer loosely to a broad class
of unfavorable results in consumer transactions, principally
those that result from enforcement
of unfavorable terms.
11:35 AM
evidence of procedural defects or wrongdoing by the drafter,
participants’
instincts were to hold the consumer to the boilerplate terms.
My argument unfolds in two steps, focusing first on assent and
then on
enforcement. The first proposition is that the social practice of
consumer
contracting invokes powerful but conflicting norms and
intuitions. Most
people have strong feelings about individual autonomy in the
marketplace,
coupled with concerns about both the effectiveness of fine-print
disclosures
and the potential for drafters’ strategic behavior to go
unchecked. When
asked to think about contract formation, the participants in the
studies
reported in this Essay recognized that readership of some terms

is an
unrealistic expectation, and expressed doubts that consent to
boilerplate is
meaningful. In other words, when people are asked to think
about how we
make contracts in the modern world, they show real
ambivalence about
consent to boilerplate.
The puzzle is that this ambivalence seems to dissipate entirely
when
questions about consent come up in the context of contract
enforcement.
Once the framing is about how to understand a transactional
harm—the
enforcement of an unfavorable term—the subjects in these
studies agreed
that a non-reading consumer has clearly consented to be bound
and ought
to bear the blame for the bad outcome, no matter how
cumbersome the
demands of readership. Thus, the second step of my argument is
that when
confronted with the task of explaining a harmful event, there is
a shift in
motivation and in cognition. The motivation to assign blame
(and to assign
blame in a psychologically comfortable way) increases, and
some causal
explanations of the harm grow more salient than others, drawing
attention
to the consumer’s consent and away from other contributing
factors. These
studies suggest that we understand consent one way in the
context of
contract formation, and another in the context of enforcement.

The unread fine print has been at the center of a number of
recent
national debates, including subprime mortgage lending,2
hurricane
insurance,3 universal default clauses in credit-card contracts,4
and hidden
2. Aaron Smith, Note, A Suitability Standard for Mortgage
Brokers: Developing a Common Law
Theory, 17 GEO. J. ON POVERTY L. & POL’Y 377, 389
(2010) (“Unlike other business transactions
where the customers understand what they are buying and what
the alternatives are, mortgage
customers are unlikely to comprehend the fine print that is so
critical in modern mortgages.”).
3. Jay S. Goldbaum, Comment, Katrina and Beyond: Judicial
Treatment of Boilerplate
Language in Standardized Insurance Contracts, 2007 MICH. ST.
insurance litigation in Mississippi following Hurricane Katrina
which turned on boilerplate
“flood exclusion” language).
4. Mary Beth Matthews, The Credit CARD Act of 2009—What
Is It, and What Does It Do?,
2010 ARK. L. NOTES 65, 68 (including universal default
provisions among credit card practices
targeted by the Credit Card Accountability Responsibility and
Disclosure Act of 2009).
11:35 AM

FINE PRINT 1749
fees in banking contracts.5 These debates raise questions of
consumer
responsibility, the duties of institutional parties drafting take-it-
or-leave-it
forms, and the background realities of consumer contracting in
the modern
world. Behavioral researchers have argued for decades that it is
utterly
unrealistic to think that consumers can read and process fine-
print
disclosures.6 Not only are form contracts unread, they are
functionally
unreadable (or at least indigestible) for consumers with bounded
cognitive
capacity—i.e., everyone. The now well-trodden biases that
result from
limited attentional resources have straightforward implications
in the
boilerplate context. Distorted risk perceptions, salience biases,
and framing
effects make it very unlikely that consumers will read the terms
of form
contracts—and even if they do read the terms, it is unlikely that
they will
integrate the information into their decision-making process in a
sensible
way.7
Nevertheless, the legal response to this evidence from
behavioral
economics has been somewhat dismissive. Modern contracts
scholarship
evinces a shared sense that the primary function of fine-print

disclosure is
not consumer information at all, but rather justification of a
crucial legal
fiction. A robust doctrine of implied consent to unread or
unnoticed terms
is central to the laws governing millions of transactions a day,
including
consumer contracting, product liability, informed consent to
medical care,
real property transfers, advertising, and financial planning.
Because real
readership is understood to be a lost cause, most scholarly
support of
mandatory disclosure policies stipulates that disclosures are
unhelpful to
consumers, and the scholars justify enforcement of unread terms
on
5. Cindy Perman, Gotcha! Ways Banks Burn You with Hidden
Fees, CNBC (Feb. 15, 2011,
3:39 PM),
http://www.cnbc.com/id/41604971/Gotcha_Ways_Banks_Burn_
You_With_
Hidden_Fees (detailing different forms of banking fees that
catch consumers by surprise).
6. See, e.g., Kesten C. Green & J. Scott Armstrong, Evidence
on the Effects of Mandatory
Disclaimers in Advertising, 31 J. PUB. POL’Y & MARKETING
293, 293 (2012) (examining eighteen
experimental studies and concluding that there is “no evidence
that consumers benefit from
government-mandated disclaimers in advertising”); Florencia
Marotta-Wurgler, Does Contract
Disclosure Matter?, 168 J. INSTITUTIONAL &
THEORETICAL ECON. 94, 96 (2012) (“[I]ncreasing

contract accessibility does not result in a meaningful increase in
readership. . . . [T]hose (few)
shoppers who actually read the contract do not respond to what
they see there.”).
7. Melvin Aron Eisenberg, The Limits of Cognition and the
Limits of Contract, 47 STAN. L.
REV. 211, 240–43 (1995) (asserting that cognitive problems
such as “bounded rationality,
optimistic disposition, systematic underestimation of risks,”
undue weight on the present as
compared with the future, and rational ignorance cause
consumers “to remain ignorant of the
preprinted terms” of a form contract).
11:35 AM
normative grounds, with reference to constructs like opportunity
to read,8
blanket assent,9 or rational ignorance.10
This Essay demonstrates that psychology research has a role to
play in
the mandatory-disclosure debate that extends beyond
documenting
cognitive errors. The experimental studies reported below
explore how
consumers themselves understand consent to fine print—the
psychology of
judgment rather than the psychology of decision-making. This
analysis tries
to explore this question systematically, unpacking the

psychological
processes that bear on a commonsense morality of informed
consent. I
argue that the moral psychology of consumer contracting beliefs
can be
understood as bearing on two sets of judgments: (1) ex ante
assessments of
contract formation; and (2) ex post assessments of consumer
liability when a
warned-of harm comes to pass. Misgivings about procedural
defects in
consumer contracting weigh heavily on judgments of contract
formation,
but appear to play almost no role in judgments of blame for
transactional
harms.
The Essay proceeds as follows. In Part I, I set up the problem
with
descriptive, legal, and theoretical perspectives on consent to
fine print in
consumer contracting. Part II lays out evidence, from existing
and new
research, that consumer contracting invokes conflicting norms.
Study 1 in
this Part tests the relationship between contract procedures and
inferences
of consent, and the results show evidence that subjects may
believe that it is
unreasonable to expect consumers to read terms in some forms,
but that
they would nonetheless hold those non-reading consumers
accountable for
transactional harms that occur ex post. Parts III and IV make
the case that
there are psychological explanations—involving a particular set

of
motivations, intuitions, and cognitive processes—for these
differential
evaluations of consent at the formation and enforcement stages
of
contracting. In Part III, I present Studies 2 and 3, offering
evidence that the
mere fact of consumer harm motivates inferences of consumer
consent to
8. See Omri Ben-Shahar & Carl E. Schneider, The Failure of
Mandated Disclosure, 159 U. PA.
L. REV. 647, 734 (2011) (describing the argument that
mandatory disclosures promote the
values of “autonomy, dignity, civility, community, citizenship,
[and] economic growth” by
presenting consumers with an opportunity to read).
9. KARL N. LLEWELLYN, THE COMMON LAW
TRADITION: DECIDING APPEALS 370 (1960)
(“Instead of thinking about ‘assent’ to boiler-plate clauses, we
can recognize that so far as
concerns the specific, there is no assent at all. What has in fact
been assented to, specifically,
are the few dickered terms, and the broad type of the
transaction, and but one thing more.
That one thing more is a blanket assent (not a specific assent) to
any not unreasonable or
indecent terms the seller may have on his form, which do not
alter or eviscerate the reasonable
meaning of the dickered terms.”).
10. See, e.g., Lucian A. Bebchuk & Richard A. Posner, One-
Sided Contracts in Competitive
Consumer Markets, in BOILERPLATE: THE FOUNDATION
OF MARKET CONTRACTS 3, 8 (Omri Ben-
Shahar ed., 2007) (“The novelty of the present analysis is that

the same contract forms that are
widely assumed to be based on consumer ignorance can be
shown to be consistent with
competition under conditions of full information.”).
11:35 AM
FINE PRINT 1751
that harm. Part IV includes Studies 4 and 5, which show that
consumer
decision-making is a highly salient link in the chain of
causation that
explains a transactional harm. Part V concludes with a
discussion of these
findings in light of procedural justice research, and I argue that
the next
step in the moral psychology of contracting is the development
of a robust
body of research on procedural justice in the consumer
marketplace.
I. MODERN CONSUMER CONTRACTING
A. BOILERPLATE IS UBIQUITOUS AND UNREAD
Most user agreements, terms of credit, informed-consent forms,
and
product warranties (to name a few) are long and difficult to
understand.11
Furthermore, most disclosures arise in an already crowded field
of

boilerplate. As such, most people have no choice but to perform
a kind of
triage on their reading priorities due to the overwhelming
volume of
information that disclosees face in a given day. To make this
point, I rely
heavily on the definitive account of disclosure overload by
Omri Ben-Shahar
and Carl Schneider.12 In addition to their meticulous
chronicling of the
omnipresent fine print of modern life, they give a witty yet all-
too-real
account of a day in the world of “Chris Consumer.” Chris
confronts detailed
terms and conditions for his vitamins, his toaster, his car
mechanic, an
online news service, a web browser, his bank, a diner menu, a
flu shot, and
Monday Night Football, among others.13 Disclosures, fine
print, standard
terms—these are unavoidable facts of modern life.
Nonetheless—or perhaps, as a result—one of the truisms of
empirical
contracts research is that “nobody reads.” This is particularly
true of online
contracts, including end-user license agreements and click-
through
agreements that retail sites use. One recent study documented
the lack of
readership in painstaking detail.14 Out of 120,545 consumer
visits to online
11. See Skelton v. Gen. Motors Corp., 660 F.2d 311, 313–14
(7th Cir. 1981) (describing a

statute’s drafters’ concern that “consumer product warranties
often were too complex to be
understood”); Ben-Shahar & Schneider, supra note 8, at 671–72
(citing evidence that
“readership is effectively zero”); Michael K. Paasche-Orlow et
al., Readability Standards for
Informed-Consent Forms as Compared with Actual Readability,
348 NEW ENG. J. MED. 721, 724 (2003)
(reporting that “only 8 percent [of medical schools] . . . met
their own standards” for
readability of informed-consent forms); Chris Kaiser, Complex
Drug Labels May Be Information
Overload, MEDPAGE TODAY (May 24, 2011),
http://www.medpagetoday.com/PublicHealth
Policy/FDAGeneral/26665 (“[T]he effectiveness of labeling in
communicating adverse drug
events may be diminished by the problem of overwarning, in
which excessively long and
complex lists of potential reactions can result in information
overload . . . .” (internal quotation
marks omitted)).
12. Ben-Shahar & Schneider, supra note 8, at 704–09.
13. Id. at 705–08.
14. See Yannis Bakos et al., Does Anyone Read the Fine Print?
Testing a Law and Economics
Approach to Standard Form Contracts (N.Y. Univ. Ctr. for Law,
Econ. & Org., Working Paper No.
09-40, 2009), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1443256.
11:35 AM

retail sites, 55 of those users clicked through to see the terms
and
conditions15—this is roughly one out of 2200 users. The users
who did click
through spent a median of 29 seconds looking at the entire
multi-page
agreement.16
Even when investigators choose more elite population samples,
they still
find very low levels of readership. In a sample of University of
Georgia
undergraduates, 89% of respondents classified themselves as
“non-readers”
of click-through agreements.17 A survey of law students—a
group essentially
hand-picked for its propensity to read legal documents—found
that only
about 4% claim to read standard online form contracts.18 All
available
evidence suggests that online form contracts are consistently
unread.
Online forms are not the only contracts that consumers are
ignoring.
Although there is surprisingly little empirical evidence on non-
readership
outside of the online context, contracts scholars regard non-
readership as
“folk knowledge”: a claim so obvious that data would be
superfluous.19 In
one of the first empirical accounts of contracts behavior,
Stewart Macaulay
reported that even businessmen did not read the contracts they
regularly

signed in the course of their commercial interactions, preferring
to rely on
their background sense of the deal and the counterparty.20
Courts and
scholars alike have noticed a similar pattern in the readership of
form
contracts generally. As early as 1983, well before the advent of
EULAs (end-
user license agreements) and click-throughs, Todd Rakoff
wrote:
[T]he adhering party is in practice unlikely to have read the
standard terms before signing the document and is unlikely to
have
understood them if he has read them. Virtually every scholar
who
has written about contracts of adhesion has accepted the truth of
this assertion, and the few empirical studies that have been done
have agreed.21
15. Id. at 26.
16. Id.
17. Victoria C. Plaut & Robert P. Bartlett, III, Blind Consent?
A Social Psychological
Investigation of Non-Readership of Click-Through Agreements,
36 L. & HUM. BEHAV. 293, 297 (2012).
18. Robert A. Hillman, Online Consumer Standard Form
Contracting Practices: A Survey and
Discussion of Legal Implications, in CONSUMER
PROTECTION IN THE AGE OF THE ‘INFORMATION
ECONOMY’ 283, 289 (Jane K. Winn ed., 2006).
19. Ben-Shahar & Schneider, supra note 8, at 671 (“Empirical
work is scant, perhaps
because of the folk knowledge that no one reads boilerplate.”).
20. Stewart Macaulay, Non-Contractual Relations in Business:

A Preliminary Study, 28 AM. SOC.
REV. 55, 59 (1963).
21. Todd D. Rakoff, Contracts of Adhesion: An Essay in
Reconstruction, 96 HARV. L. REV. 1173,
1179 (1983) (footnote omitted).
11:35 AM
FINE PRINT 1753
The reality is that reading is costly, especially in a world in
which
everything comes with extensive standard terms.22 Meanwhile,
the expected
benefit of any investment in reading standard terms is low for
three reasons:
(1) the transaction itself is minor; (2) the probability of
unfavorable terms is
low;23 and (3) the probability of a given consumer being
affected by an
unfavorable term is low.24
The proposition that consumers do not read contracts of
adhesion is
increasingly uncontroversial, cited by legal scholars to support
claims that
consumers are rationally ignorant,25 that consumers are
ignorant dupes,26
and that contracts of adhesion are inefficient in any case.27 It is
now a given
that we live in a world in which boilerplate terms are ubiquitous
yet

unknown, ever present and never read. In the next two Subparts,
I consider
the relevant legal doctrines and the scholarly responses.
B. CONTRACT DOCTRINE: DUTY TO READ
The vast majority of terms no one reads are enforceable. As a
matter of
black letter law, not knowing the terms of one’s contract does
not excuse a
party from liability.28 This doctrine is often referred to as a
party’s “duty to
read,”29 and it has been at the center of a number of recent
national debates
around subprime mortgage lending,30 insurance coverage after
Hurricane
Katrina,31 universal default clauses in credit card contracts,32
and hidden
22. Eric Posner has argued that the advantage of a decision like
ProCD v. Zeidenberg, in
which Judge Easterbrook enforced terms that were not available
to the consumer until after
purchase, is that consumers cannot, in practice, handle getting
all the terms up front.
Commerce would grind to a halt while consumers wasted their
time listening to the “droning
voice” of the sales staff reading the terms aloud. Eric A.
Posner, ProCD v. Zeidenberg and
Cognitive Overload in Contractual Bargaining, 77 U. CHI. L.
REV. 1181, 1183–84 (2010).
23. See Florencia Marotta-Wurgler, Are “Pay Now, Terms
Later” Contracts Worse for Buyers?
Evidence from Software License Agreements, 38 J. LEGAL
STUD. 309 (2009).

24. See Eisenberg, supra note 7, at 243.
25. Id. at 241–43.
26. See W. David Slawson, Standard Form Contracts and
Democratic Control of Lawmaking Power,
84 HARV. L. REV. 529, 531 (1971) (“An unfair form will not
deter sales because the seller can
easily arrange his sales so that few if any buyers will read his
forms, whatever their terms, and he
risks nothing because the law will treat his forms as contracts
anyway.”).
27. See Lee Goldman, My Way and the Highway: The Law and
Economics of Choice of Forum
Clauses in Consumer Form Contracts, 86 NW. U. L. REV. 700,
716–21 (1992) (rejecting economists’
assertions that contracts of adhesion are efficient).
28. See 27 SAMUEL WILLISTON & RICHARD A. LORD, A
TREATISE ON THE LAW OF CONTRACTS
§ 70:113 (4th ed. 2003) (“A written contract speaks for itself
and, absent fraud or
mistake, ignorance of contents will not allow one to avoid its
contents.”).
29. Id.
30. Smith, supra note 2, at 389 (“Unlike other business
transactions where the customers
understand what they are buying and what the alternatives are,
mortgage customers are unlikely
to comprehend the fine print that is so critical in modern
mortgages.”).
31. Goldbaum, supra note 3, at 454–55 (discussing insurance
litigation in Mississippi
following Hurricane Katrina which turned on boilerplate “flood
exclusion” language).

11:35 AM
fees in banking contracts.33 In some cases—universal default
clauses, for
example—legislatures have stepped in to regulate terms
perceived as
unfair.34
Under the common law, though, most of these problematic
clauses are
relatively easy cases. Non-readership is no excuse, even when
the facts are
sympathetic. For example, the Fifth Circuit held that insurance
policyholders denied compensation after Hurricane Katrina were
bound to
the written terms even where the salesman had represented that
the policy’s
coverage included the denied claims; the court ruled that, “The
insured is
bound by [written] policy language that would put a reasonable
person on
notice of limitations to the agent’s authority.”35 In another
case, a party
subject to a forum-selection clause argued that the term should
be
unenforceable because of the plaintiff’s poor eyesight; the
Seventh Circuit
noted that “it is no defense to say, ‘I did not read what I was
signing.’”36 In
still another case, mortgage borrowers who discovered that their
agreement
contained an adjustable rate that they did not apprehend before
signing
were held liable; the court reasoned “[t]hat the plaintiffs did not

read any of
these documents does not place culpability on the defendant.”37
In sum,
whether or not a party has read the contract is usually irrelevant
to the
determination of mutual assent.
What is required is that parties have some notice of the terms—
an
“opportunity to read.”38 If a contract term is “hidden,” a court
may refuse to
enforce it on the grounds that the parties did not manifest their
assent.39 In
Specht v. Netscape, for example, then-Judge Sotomayor
confirmed that a party
must have actual or constructive notice of a term in order for
the term to be
enforceable.40 Parties are deemed to consent to terms they have
reason to
know exist, but firms must give parties reason to know of the
terms.41 In
(including universal
default provisions among credit card
practices targeted by the Credit Card Accountability
Responsibility and Disclosure Act of 2009).
33. See Perman, supra note 5 (detailing different forms of
banking fees that catch
consumers by surprise).
34. See Credit Card Accountability Responsibility and
Disclosure Act of 2009, Pub. L. No.
111-24, § 101(b), 123 Stat. 1734, 1736.
35. Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 439
(5th Cir. 2007).
36. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286,

1292 (7th Cir. 1989).
37. Strong v. Option One Mortg. Corp. (In re Strong), 356 B.R.
121, 144 (Bankr. E.D. Pa.
2004), aff’d, Nos. 01-35854BIF, 02-626, 04-CV-4699, 2005 WL
1463245 (E.D. Pa. June 20, 2005).
38. See Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 20
(2d Cir. 2002) (holding that
an online contract provision was unenforceable because
defendants “did not provide
reasonable notice of the license terms”).
39. Robert A. Hillman, Debunking Some Myths About
Unconscionability: A New Framework for
U.C.C. Section 2-302, 67 CORNELL L. REV. 1, 10–12 (1981).
40. Specht, 306 F.3d at 35.
41. Even this is not always clear; Judge Easterbrook argued in
Gateway that the parties had
to think more terms were coming, even if they did not have any
explicit notice from the
company that that was so. See Hill v. Gateway 2000, Inc., 105
F.3d 1147, 1150 (7th Cir. 1997).
11:35 AM
FINE PRINT 1755
general, however, courts will enforce hidden terms as long as
the party has
some means to exit the contract when the term is revealed, even
if doing so
is burdensome and unlikely.42
Scholarly acknowledgment of non-readership has had periodic

effects
on contract doctrine, although the effects have not always been
long lasting.
The main effect has been the push to expand the requirement of
notice to
include the content of the terms.43 The argument for this move
is that
consumers are generally on notice that a given contract includes
some kinds
of terms and not others. To this end, the Restatement (Second)
of Contracts
adopted section 211, affirming the general duty to read, but
carving out an
exception when “the other party has reason to believe that the
party
manifesting such assent would not do so if he knew” of the
unread provision
in question.44 The comment to the Restatement explicitly
acknowledges the
reality of standardized agreements:
Customers do not in fact ordinarily understand or even read the
standard terms. They trust to the good faith of the party using
the
form and to the tacit representation that like terms are being
accepted regularly by others similarly situated. But they
understand
that they are assenting to the terms not read or not understood,
subject to such limitations as the law may impose.45
The Restatement approach is in accord with the doctrine of
“reasonable
expectations,”46 which has also had sporadic influence since
Friedrich
Kessler’s 1943 proposal that the terms of form contracts be
ignored in favor

of the consumer’s “reasonable expectations.”47 The proposition
that courts
should attend to the contract that consumers reasonably believe
they are
signing remains viable in a few contracts contexts, insurance
most notably.48
In most contracts contexts, courts have rejected the reasonable
expectations doctrine, which means that the primary judicial
tool for
scrutiny of unfair terms is the doctrine of unconscionability.49
The
unconscionability inquiry requires both procedural and
substantive
unfairness, and the relationship between the two is commonly
understood as
a sliding scale, where “the more substantively oppressive the
contract term,
42. See Weaver v. Am. Oil Co., 276 N.E.2d 144, 148 (Ind.
1971) (holding that a hold
harmless clause, hidden and unexplained to the plaintiff, was
not enforceable).
43. See RESTATEMENT (SECOND) OF CONTRACTS § 211
(1981).
44. Id. § 211(3).
45. Id. § 211 cmt. b.
46. Robert E. Keeton, Insurance Law Rights at Variance with
Policy Provisions, 83 HARV. L.
REV. 961, 967 (1970).
47. Friedrich Kessler, Contracts of Adhesion—Some Thoughts
About Freedom of Contract, 43
COLUM. L. REV. 629, 637 (1943).
48. See, e.g., W. David Slawson, Contractual Discretionary
Power: A Law to Prevent Deceptive

Contracting by Standard Form, 2006 MICH. ST. L. REV. 853,
858–62.
49. See id. at 863.
11:35 AM
the less evidence of procedural unconscionability is required to
come to the
conclusion that the term is unenforceable, and vice versa.”50
Procedural
unconscionability asks whether a consumer has had an
opportunity to read
and understand the terms.51 Courts typically require that a
party’s duty to
read be met with an opportunity to read.52 In Williams v.
Walker-Thomas, for
example, the court ruled that the question of consent must be
resolved with
reference to each party’s “reasonable opportunity to understand
the terms
of the contract” and considering the “maze of fine print and . . .
deceptive
sales practices.”53
In modern academic debates, clearly egregious substantive
unconscionability is easier to define than procedural
unconscionability—
when a term is really shocking, it is often barred by statute54 or
subject to
heightened judicial scrutiny under the common law of contracts
(for

example, exculpatory clauses or penalty clauses). Like other
scholars
grappling with the meaning of consent to standard terms, the
focus of my
argument is on terms that may raise some fairness concerns in
the context of
contracts of adhesion—non-salient fees, arbitration clauses,
forum-selection
clauses, and limitations on firm liability—but almost certainly
do not raise a
plausible defense of unconscionability. The vast majority of
terms that
consumers receive and do not read are nonetheless enforceable.
This is the
challenge for legal scholars who want to support the continued
vitality of
consent in contract theory but nonetheless acknowledge the day-
to-day
reality of modern contracting.
C. THEORETICAL PERSPECTIVES
Contracts scholars have not been silent on the question of non-
readership and consent. There are three primary defenses that
support
enforcing consent to boilerplate.
The first defense argues that what really matters is reasonable
notice
that terms exist, and that the role of the terms themselves is
purely formal.
Robert Hillman, writing in support of the American Law
Institute’s
disclosure-of-terms strategy for standardized online contracts,
argues that
what matters is the “opportunity to read.”55 Hillman asserts

that this notion is
50. Armendariz v. Found. Health Psychcare Servs., Inc., 6 P.3d
669, 690 (Cal. 2000).
51. See generally 8 WILLISTON & LORD, supra note 28, §
18:10.
52. Sw. Adm’rs, Inc. v. Rozay’s Transfer, 791 F.2d 769, 774
(9th Cir. 1986) (“‘Fraud in the
execution’ arises when a party executes an agreement ‘with
neither knowledge nor reasonable
opportunity to obtain knowledge of its character or its essential
terms.’” (quoting U.C.C. § 3-
305(2)(c))).
53. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445,
449 (D.C. Cir. 1965).
54. See, e.g., 205 ILL. COMP. STAT. ANN. 675/8.5(e)
(LexisNexis 2013) (barring universal
default clauses in contracts for credit).
55. Robert A. Hillman & Maureen O’Rourke, Defending
Disclosure in Software Licensing, 78
U. CHI. L. REV. 95, 105 (2011).
11:35 AM
FINE PRINT 1757
consistent with justifications of enforcement in other legal
domains.56 “A
fundamental tenet of the rule of law is reasonable notice,” he
argues.57
“[W]e all know that people rarely read criminal statutes or

understand many
of the intricacies of rules governing even those wrongs of which
they are
aware, such as murder or theft. The point is that people could
gain access to
these materials, which legitimizes the rules as law.”58 On this
view,
readership is unnecessary for disclosure to serve its normative
function
within the doctrinal structure. As long as disclosure is
“inexpensive and, at
worst, harmless,”59 it is a justifiable regulatory approach
because it
legitimizes the imputation of consent.
The second defense of enforcing boilerplate contends that
consumers
do consent to boilerplate, insofar as they consent to be bound by
the terms
of the deal, knowing that they are not aware of what those terms
are.
Subjective consent to unread terms is a coherent possibility
under a broader
view of consent. Karl Llewellyn has argued for an inference of
“blanket
assent” to the non-bargained-for terms.60 Llewellyn argues that
consumers
assent “to any not unreasonable or indecent terms . . . which do
not alter or
eviscerate the reasonable meaning of the dickered terms.”61
Similarly, Randy
Barnett’s influential articulation of contractual consent argues
that consent
means a manifestation of an intention to be legally bound.62
According to
this view, all that matters is agreeing to the deal, whatever the

deal may
hold—much like we think that people ought to be free to assent
to take a
risk or to be surprised, they are free to bind themselves to
contracts that they
do not read. This view of consent has become increasingly
influential and
widely accepted, and, indeed, it is compatible with much of
contract
doctrine. For example, a broad view of consent does not require
that a
person actually read his or her contract—it requires only that he
sign it (or
otherwise objectively manifest assent).63 Barnett and Llewellyn
support this
approach, but note that it requires some kind of doctrinal
backstop—thus
56. See id.
57. Id.
58. Id. at 105−06.
59. Id. at 107.
60. LLEWELLYN, supra note 9, at 370. Wayne Barnes offers a
twist on this view, analogizing
contract formation to voting. In Barnes’s view, a contract has
known (read) and unknown
(unread) terms. He argues that in the political process, it is not
controversial at all to bind
citizens to the decisions of legislators who make choices that
were not known or even
foreseeable by voters at the time of election. Like elected
officials, firms desire to be re-elected;
like terms of office, contracts are time delimited. Like
impeachment, unconscionability
provides relief in the rare instance of truly outrageous behavior.

See Wayne Barnes, Consumer
Assent to Standard Form Contracts and the Voting Analogy, 112
W. VA. L. REV. 839, 842–43 (2010).
61. LLEWELLYN, supra note 9, at 370.
62. Randy E. Barnett, Contract Is Not Promise; Contract Is
Consent, 45 SUFFOLK U. L. REV. 647,
655 (2012).
63. See, e.g., 1 E. ALLAN FARNSWORTH, FARNSWORTH
ON CONTRACTS § 3.7 (3d ed. 2004)
(describing the doctrine of objective consent in the context of
non-readership).
11:35 AM
their visions of broad consent to the unread deal rely in part on
a
background requirement of reasonable expectations or at least a
robust
doctrine of unconscionability.64
Finally, the third view holds that the absence of meaningful
consent is
unproblematic because market forces will prevent unwanted
terms. The
economic argument in favor of enforcement is that market
forces will do
what individuals would have done, so actual consent is not the
problem we
might think it is.65 In a functioning market in which buyers are
reading and
comparing terms, sellers who offer worse terms will lose

customers to sellers
offering better terms, so sellers will offer efficient terms. Even
if only a
fraction of consumers reads and shops for terms, the non-
readers may
benefit from the minority of informed consumers, whose
choices affect the
firm’s selection of terms.66 In a competitive market, firms will
offer terms
that buyers prefer, in the sense that any requirement of more
consumer-
friendly terms will be costly for firms and, in turn, costly for
consumers.
These three arguments are essentially normative justifications
for
enforcing unread terms. These arguments assert that what
matters is the
notice of terms rather than the readership (opportunity to read),
a broad
rather than a narrow consent (blanket assent), and the efficiency
of market-
tested terms rather than the fairness of any particular term or
contract
(economic efficiency). In the next Part, I present the existing
literature on
the psychology of the fine print—why consumers do not read it,
and how
they understand their obligations under it.
II. PSYCHOLOGY OF BOILERPLATE
In this Part, I set up one of my central claims: that most
consumers are
deeply ambivalent about consent to form contracts. First, I
identify two

arguably dissonant strands of psychological research in this
area: the
cognitive psychology literature explaining why most people do
not
deliberate carefully over the fine print, and the moral
psychology literature
suggesting that most people view their contractual agreements
as serious
moral obligations. This Part concludes with the first
experimental study of
this Essay, documenting how these conflicting views play out in
a simplified
contracts scenario.
64. See Randy E. Barnett, Consenting to Form Contracts, 71
FORDHAM L. REV. 627, 630–31
(2002) (discussing a market-based justification for form
contracts); Goldman, supra note 27, at
715–16 (same).
65. See generally Alan Schwartz & Louis L. Wilde, Intervening
in Markets on the Basis of
Imperfect Information: A Legal and Economic Analysis, 127 U.
PA. L. REV. 630 (1979).
66. Id. at 637–39.
11:35 AM
FINE PRINT 1759
A. THE PSYCHOLOGY OF IGNORING FINE PRINT

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