MARKET TESTING BOILERPLATE.

Boilerplate contract terms are regularly enforced against consumers who do not like them and would not have selected them if given a choice. But there is no choice. Such terms are offered on a take-it-or-leave-it basis to consumers who are either unaware of the terms until a problem arises or hope those terms will never have to be invoked. The lack of meaningful choice is justified by arguments that consumers will avoid contracts that contain harmful terms, so market constraints will prevent businesses from offering socially inefficient terms. If consumers really had a problem with certain boilerplate terms, the theory goes, businesses would find it unprofitable to require them. Indeed, businesses claim that without some boilerplate terms, their goods and services would cost more, perhaps more than consumers would be willing to pay. This Article encourages regulators to call this bluff by requiring businesses to make some important terms optional and allowing them to price the opt-out. Only then can consumers make a meaningful choice and truly consent to the terms of ubiquitous, term-laden contracts. It also explains why market protections have thus far failed consumers. Consumers can and will make meaningful choices about boilerplate terms that address topics they find important if they are made aware of those terms and given a choice. This Article makes important contributions to the literature. It offers a realistic regulatory solution to the problem of consent in consumer contracting that honors freedom of contract. Requiring that consumers be able to opt out of some standard terms preserves meaningful choice and consent for consumers without banning conscionable terms that businesses prefer. Understanding consumer preferences about boilerplate terms and how those preferences may be expressed and manipulated is vital to designing a framework for more meaningful consent in consumer contracting. [ABSTRACT FROM AUTHOR]