Online Boilerplate: Would Mandatory Website Disclosure of E-Standard Terms Backfire?

A law backfires when it produces results opposite from those its drafters intended. Lots of laws may have backfired. For example, people opposed to hate crimes legislation think that the laws “inflame prejudice rather than eradicate it.” The Endangered Species Act, according to some analysts, has helped destroy rather than preserve the creatures listed by the Act. Even consumer protection laws, some believe, increase prices and confuse consumers instead of protecting them. This Article analyzes whether mandatory website disclosure of standard terms, advocated by some as a potential solution to market failures when consumers contract over the Internet, is another potential legal backfire. Part I reviews why market forces may fail adequately to police standard forms on the Internet. Part II shows that mandatory website disclosure as a remedy for market failure is worthy of a focused analysis because its surface attractiveness means that lawmakers are likely to adopt it. Part III addresses whether mandatory website disclosure can succeed. I conclude that mandatory website disclosure ultimately may be the most viable alternative.