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

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

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

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

Synopsis

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.

Excerpt

Agreement, the traditional basis of contract (an invented story):

Sally says to John, “I really like your bicycle. Will you sell it to me for $100?” John says, “Well, I couldn’t part with it for $100, but how about $125?” Sally says, “OK, I really do like it, so how about $120?” John says, “It’s a deal. I’ll go get the bike.” Then Sally hands over $120.

But John never delivers the bike. After John fails to perfrom his side of the bargain, Sally can bring John to court in a place convenient for her and ask that John be found in breach of contract. If the court finds that John breached a contract with Sally, John will be ordered to compensate Sally. Probably John will be ordered to pay Sally whatever amount she has lost by not receiving the bicycle, which could include not only the amount it would cost her to buy an equivalent bicycle from someone else, but whatever amounts she has lost as a consequence of the broken contract, such as being unable to deliver her packages of handmade chocolates to her customers, and having her customers go to other chocolate sellers.

Boilerplate, our nonideal “contract” in practice (stories based on real cases):

Arbitration Clause: Garrit S., age eleven, a boy who cared deeply about animals, went to Africa with his mother on a fantasy safari vacation. Before it booked the trip, the tour company had Garrit’s mother sign a form. The form waived (cancelled) the right to sue the company for injury to either the mother or the son. Instead, the form said, if there was any complaint against the company, the mother would be limited to arbitration. Such a waiver of legal . . .

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