Regulation through Boilerplate: An Apologia
Ben-Shahar, Omri, Michigan Law Review
REGULATION THROUGH BOILERPLATE: AN APOLOGIA
Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law. By Margaret Jane Radin. Princeton and Oxford: Princeton University Press. 2013. Pp. xvii, 248. $35.
You have to salute Peggy Radin. She has said what others who agree with her have for so long been hesitant to utter out loud: the fine print is not a contract.1 There is no agreement to it, no real consent, not even "blanket assent." It is nothing but paperwork and should have the legal fortune of junk mail.
Those lengthy, unreadable pages with terms and conditions that come prepacked with consumer products or that demand to be clicked ("We Accept") on computer screens-does anyone really think that they contain arrangements that people knowingly agreed to? How is it, then, that such unreadable and unread documents have become so powerful and effective in regulating the rights and obligations of contracting parties? Entire areas of law-contract default rules, sales law, privacy law, and copyright fair use (to name a few)-have been "deleted" by meticulously drafted documents that replace the pro-consumer provisions of these laws with pro-business arrangements. And if the fine print is so offensive to our legal universe of fair and balanced default rules, why is it so radical to propose that it should be invalid? Is the practice of fine print so deeply rooted in our commerce-so much of our economy relies on the fine print as the ultimate regulation of trade-that it is too big to curtail?
Let's end the pretense, says Radin, and restore a sensible conception of "agreement" to our commercial life. Because boilerplates do not represent informed consent, because they are divorced from our intuitive understanding of agreement, and because they divest people of their democratically enacted entitlements, they degrade the institution of contract that is justified by its respect for individual autonomy and private control. Therefore, boilerplates should be powerless to govern people's rights. They "should be declared invalid in toto, and recipients should instead be governed by the background legal default rules" (p. 213). And to make sure that firms stop shoving such offensive paperwork in front of people, a new tort of "intentional deprivation of basic legal rights" should operate as a deterrent (p. 211).
There are two ways to assess the phenomenon of regulation through boilerplate. The first approach is to ask how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy. Many of those adopting this perspective, and Radin prominently among them, are critical of boilerplate and find the process, as well as its consequences, intolerable. I need a term for those favoring this approach, and I will borrow the term "autonomists."2 Autonomism necessarily includes a variety of views about the role of regulation in safeguarding the autonomy of individuals, but it is a useful generalization because so many commentators share a basic commitment to it as a foundation for normative claims.
Radin's book is an autonomist manifesto, in that it identifies the normative and democratic "degradation" that boilerplates impose. It views the exercise of boilerplate contracting as anything but a dignified, autonomous agreement. Boilerplates destroy both the public aspects of private law- namely, those "placed in the care of the polity, for the benefit of the polity as a whole" (p. 212)-as well as the possibility of meaningful private ordering. Bilaterally negotiated agreements are replaced by unilaterally dictated takeit- or-leave-it corpora of legal terms.
Radin's account projects the familiar complaint against "contracts of adhesion" and "unequal bargaining power" onto a foundational, liberal political mapping. Even within the dense autonomist literature bemoaning the evils of boilerplate, which now embraces vast legal commentary and court decisions, Radin's account is a milestone because it does not shy away from raising the stakes. …