Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

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Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order. Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.

Reviews

"[Radin] has given us a sophisticated and thought-provoking treatment of the boilerplate contracts that everyone signs yet few read or understand."--Robert F. Nagel, Wall Street Journal "Radin makes a compelling case that boilerplate constitutes a clear and present danger to our core values. The practical remedies she suggests ought to command the attention of anyone concerned about the imposition of non-negotiable terms on American consumers."--Glenn C. Altschuler, Huffington Post "Boilerplate is exemplary scholarship: lucid, jargon-free, and focused on solving problems as well as identifying them. It's a model of the 'process,' inside-the-system track for social change."--Michael Stern, American Lawyer

Author Bio

Margaret Jane Radin is the Henry King Ransom Professor of Law at the University of Michigan and the William Benjamin Scott and Luna M. Scott Professor of Law, emerita, at Stanford University. Radin is the author of "Reinterpreting Property" and "Contested Commodities".