Boilerplate

by Radin, Margaret Jane

• ISBN13: 9780691155333
• ISBN10: 069115533X
• Format: Hardcover
• Copyright: 2012-11-05
• Publisher: Princeton Univ Pr

Summary

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.

Table of Contents

Acknowledgments	p. ix
Prologue: World A (Agreement) and World B (Boilerplate)	p. xiii
Boilerplate, Consumers' Rights, and the Rule of Law	p. 1
An Overview of Worlds A and B	p. 3
Normative Degradation: Deleting Rights without Consent in the Name of Contract	p. 19
Democratic Degradation: Replacing the Law of the State with the "Law" of the Firm	p. 33
Boilerplate and Contract Theory: Rationales and Rationalizations	p. 53
A Summary of the Philosophy of Contract: The Theories of World A	p. 55
Can Autonomy Theory (Agreement, Consent) Justify Boilerplate Deletion of Rights?	p. 82
Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?	p. 99
Boilerplate and Contract Remedies: Current Judicial Oversight and Possible Improvements	p. 121
Evaluating Current Judicial Oversight	p. 123
Can Current Oversight Be Improved?	p. 143
Improving Evaluation of Boilerplate: A Proposed Analytical Framework	p. 154
Escaping Contract: Other Remedial Possibilities	p. 187
"Private" Reform Ideas: Possible Market Solutions	p. 189
Reconceptualizing (Some) Boilerplate under Tort Law	p. 197
"Public" and Hybrid Regulatory Solutions	p. 217
Afterword: What's Next for Boilerplate?	p. 243
Notes	p. 249
Index	p. 313
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