Standard Form Contracts as Privately Imposed Regulatory Schemes: A Case for State Intervention

Abstract

In light of Concepcion v. AT&T, this paper questions the legitimacy of the rules imposed by large communication companies on their consumers. In doing so, it shows that, even at its best, the applicability of the unconscionability doctrine to these matters derive from a misconception that state intervention in standard form consumer contracts, that impose the same norms uniformly across the market, generates autonomy concerns. It argues that these rules should not be treated as agreements. Rather they are abstract norms imposed by a powerful entity. In that sense, they are much more similar to statutes. They are, in effect, private regulatory schemes. That being the case, they have no claim to legitimacy and they are valid only inasmuch as they are agreeable to the principles of justice and public policy. Even though this would not lead to a per se invalidation of these norms, it could open the door to stronger judicial, legislative, and administrative intervention. Recognizing form-contracts as quasi-statutes free such intervention from claims of paternalism and undue interference with private autonomies. It shows them for what they really are: necessary democratic inputs to an otherwise morally impermissible practice.