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This chapter explains why inframarginal analysis should be used to evaluate whether to enforce consumer boilerplate provisions, and then applies this approach to show that the use of pro-consumer boilerplate terms should be mandatory. Inframarginal analysis looks at how the law can allocate inframarginal resources in ways that are fairer and more efficient than unregulated outcomes. Two policy considerations are paramount when carrying out this analysis: 1) devising ways to distribute resources equitably, and 2) minimizing wasteful competition. The impact of consumer boilerplate is largely inframarginal, so inframarginal analysis is the correct way to evaluate whether to enforce these provisions. In carrying out this analysis, a graph-based approach is helpful in showing why equitable considerations point toward preferring pro-consumer terms over pro-seller terms and why wasteful competition considerations point toward making the use of these pro-consumer terms mandatory. The usefulness of this analysis is further demonstrated by applying the findings here to the more specific question of whether to enforce choice-of-forum provisions in consumer contracts.
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