One of the prominent themes of current contract law scholarship is the concern that sellers will be able to exploit buyers, especially consumer buyers, by inserting into standard-form contracts terms that systematically favor the former. Many commentators believe that sellers insert oppressive terms and that buyers are often surprised to learn that they bear risks to which they did not explicitly assent, of which they were not aware, and to which they allegedly would not have agreed. Others, myself included, have expressed some doubt about the plausibility of these claims and the prevalence of the problem, pointing instead to market and reputation mechanisms that constrain sellers' overreaching.

However powerful market and reputation mechanisms are, there remains significant space within which seller exploitation is theoretically plausible and events in which it in fact occurs. Buyers may ignore terms that are not salient, that pose minimal risks, or about which they have insufficient information, and it is plausible that sellers could systematically exploit this oversight.