Boilerplate

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

Margaret Jane Radin
Copyright Date: 2013
Pages: 240
https://www.jstor.org/stable/j.ctt1r2g92
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  • Book Info
    Boilerplate
    Book Description:

    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.Boilerplateis 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.

    eISBN: 978-1-4008-4483-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-xii)
    Margaret Jane Radin
  4. PROLOGUE: WORLD A (AGREEMENT) AND WORLD B (BOILERPLATE)
    (pp. xiii-xviii)

    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 perform his side of the bargain, Sally can bring John to court in a place convenient for her and ask that John be...

  5. Part I. Boilerplate, Consumers’ Rights, and the Rule of Law
    • CHAPTER ONE An Overview of Worlds A and B
      (pp. 3-18)

      Once upon a time, it was thought that “contract” refers to a bargained-for exchange transaction between two parties who each consent to the exchange. This once-upon-a-time story is the ideal of contract. The story of bargained-for exchange represents contract as it is imagined to be in a world of voluntary agreement, the world I am calling World A (for Agreement). In this book I am referring to contracts, such as the one between Sally and John (in the invented story in the prologue), that actually look like the free exchanges imagined in liberal theory as contracts of World A.* This...

    • CHAPTER TWO Normative Degradation: DELETING RIGHTS WITHOUT CONSENT IN THE NAME OF CONTRACT
      (pp. 19-32)

      Our legal system adheres to an ideal of private ordering and its importance to individual freedom. Within this system, freedom of contract is a core value, and “involuntary” or “unfree” contract is a contradiction in terms. Involuntary divestment of one’s entitlement (to money, to property, or to a legal right) is simplynot what “contract” means. The notion that a coerced or deceptive or completely covert divestment of an entitlement might qualify as a “contract” is paradoxical. Thus, if the purported contracts of World B, which are widely enforced in the US, cannot be justified by the traditional justification of...

    • CHAPTER THREE Democratic Degradation: REPLACING THE LAW OF THE STATE WITH THE “LAW” OF THE FIRM
      (pp. 33-52)

      When a firm’s mass-market boilerplate withdraws a number of important recipients’ rights—such as rights of redress granted by the state, or user rights that are free of owner control under intellectual property regimes—it is displacing the legal regime enacted by the state with a governance scheme that is more favorable to the firm. It is transporting recipients to a firm’s own preferred legal universe. I am not referring here to all “contracts of adhesion.” Rather I mean to focus on mass-market boilerplate rights deletion schemes: the deployment of boilerplate to rework a system of recipients’ rights that are...

  6. Part II. Boilerplate and Contract Theory:: Rationales and Rationalizations
    • CHAPTER FOUR A Summary of the Philosophy of Contract: THE THEORIES OF WORLD A
      (pp. 55-81)

      To recapitulate the background structure upon which the philosophy of contract is built: When a court enforces a contract, it uses the power of the state to order a transfer of rights (property, money, etc.) from one party to another. Something the party breaching the contract was previously entitled to becomes an entitlement of the nonbreaching party. The use of state power must be justified, if we are to assert that we live under the rule of law (i.e., under a justifiable legal system, rather than unjustified arbitrary state power). To put this another way, because contract enforcement is a...

    • CHAPTER FIVE Can Autonomy Theory (Agreement, Consent) Justify Boilerplate Deletion of Rights?
      (pp. 82-98)

      Various commentators and scholars have accepted the challenge of trying to annex World B—the Boilerplate World—to the realms of justifiable contractual ordering by expanding the meaning of consent to cover boilerplate deployment procedures. Many of the transactions in World B use the word “agreement” because that is the traditional word used for a contract, but, as I mentioned in chapter 2, one cannot (except in Humpty-Dumpty’s world) make something into an agreement merely by using that word. At least, the term “agreement” is not used with its ordinary meaning when applied in this way.

      The gerrymandering of the...

    • CHAPTER SIX Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?
      (pp. 99-120)

      Hill v. Gateway 2000is a well-known decision in which recipients of a boilerplate rights deletion scheme tried to persuade a court to declare an arbitration clause invalid so that they could bring a class action against a computer company. (Recall that arbitration clauses eliminate the possibility of aggregative remedies, primarily class actions.¹) In holding against the recipients, dismissing them from court, and compelling arbitration, Judge Easterbrook of the US Seventh Circuit Court of Appeals said that the plaintiffs were objecting to the “bundling of hardware and legal-ware”—a practice to which the judge not only had no objection but...

  7. Part III. Boilerplate and Contract Remedies:: Current Judicial Oversight and Possible Improvements
    • CHAPTER SEVEN Evaluating Current Judicial Oversight
      (pp. 123-142)

      Before considering what is to be done about boilerplate, we should take a look at what is now being done about it. In other words, we should consider the extent to which boilerplate is regulated as contract; that is, regulated by means of the normal, traditional legal doctrines of contract law that are supposed to function to allow enforcement of those (and only those) contracts that meet the requirements for contractual validity. These oversight doctrines embody the procedures and reasoning used by courts to invalidate or revise contracts—sometimes—when they are challenged.

      What are the normal, traditional oversight doctrines...

    • CHAPTER EIGHT Can Current Oversight Be Improved?
      (pp. 143-153)

      In Fowler’sModern English Usageand in Strunk & White’sElements of Style, there is a category declared to be “sturdy indefensibles.”¹ Sturdy indefensibles are ungrammatical expressions that we nevertheless admit to English usage, such as “It’s me” instead of “It’s I.” The notion of the sturdy indefensible also makes an appearance in Irma Rombauer’sJoy of Cooking, to describe a cookie recipe that is not especially good but uses up the egg yolks that the cook has on hand after making angel food cake or meringues with the egg whites.² Shall we say that World B contracts, and in particular...

    • CHAPTER NINE Improving Evaluation of Boilerplate: A PROPOSED ANALYTICAL FRAMEWORK
      (pp. 154-186)

      Rights of individuals are granted and/or maintained by the state.* As I discussed in chapter 3, the system of private ordering relies on the notion that individuals—and also entities such as firms¹—exercise freedom of choice in trading their rights. The ideal of private ordering often assumes a universe of default rules that individuals are free to alter. Thus, one primary question for evaluating boilerplate rights deletion schemes can be framed this way: Areallof the rights granted and/or maintained by the state appropriately considered default rules? If not, then how does the analysis of whether or not...

  8. Part IV. Escaping Contract:: Other Remedial Possibilities
    • CHAPTER TEN “Private” Reform Ideas: POSSIBLE MARKET SOLUTIONS
      (pp. 189-196)

      If the market were to find its own solutions for boilerplate issues, that would be a development welcomed by many scholars and business people in the US. Market solutions would appeal not only to those who favor market solutions in general for most everything, as a matter of political principle, but also to those companies or entrepreneurs positioned to profit from such markets. As we shall see, however, market solutions tend to raise issues of their own that must be addressed.¹

      What forms might market solutions take? Here are some ideas I will sketch in this chapter. Advocacy groups such...

    • CHAPTER ELEVEN Reconceptualizing (Some) Boilerplate under Tort Law
      (pp. 197-216)

      Receipt of boilerplate is often more like an accident than a bargain. What follows from this fact for legal oversight of boilerplate? Bargains come under contract law; accidents come under tort law. Contract is basically focused on situations where two parties enter into consensual transactions of exchange, whereas tort is focused on actions (and sometimes non-actions) that injure someone in a way that is not part of a consensual undertaking. As a general matter, tort law comes into play in interactions between strangers, whereas contract law is premised on the idea that there are two parties who have bargained with...

    • CHAPTER TWELVE “Public” and Hybrid Regulatory Solutions
      (pp. 217-242)

      As i discussed in chapter3, the notion of a realm of private ordering cannot now be interpreted conceptually (if indeed it ever could), but perhaps the role of private ordering can be interpreted pragmatically. Pragmatically speaking, certain projects belong to the state and to the democratic processes of the state, and certain other projects belong to individuals and firms and to their voluntary dealings with each other. There can be borderline cases, of course, as with any pragmatic interpretation of a dichotomy. But when we see large portions of projects thought to belong to the state and democratic processes...

  9. AFTERWORD: WHAT’S NEXT FOR BOILERPLATE?
    (pp. 243-248)

    This book has gathered together many strands of thought about boilerplate. Now that these strands have been woven together, it is my hope that we can see opportunities for improvement in how we deal with boilerplate. I hope that pursuing such opportunities might enhance the rule of law, protect consumers from loss of equality before the law, foster economic activity, and protect the basis of contract law. In this endeavor there will be important roles for private sector actors—NGOs, firms that design and market software and hardware, and indeed firms that hitherto have been in the habit of deploying...

  10. NOTES
    (pp. 249-312)
  11. INDEX
    (pp. 313-340)