Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law
Margaret Jane Radin
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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.
See, e.g., Symposium, Property Rights on the Frontier: The Economics of Self-Help and Self-Defense in Cyberspace, 1 J.L. ECON. & POL’Y 1 (2005). 25. With real property, one may gain rights to use another’s property—i.e., a prescriptive easement—by using the land adversely (e.g., walking across the land without permission) beyond a designated period of time. Consequently, an owner of land may attempt to prevent this result by erecting a fence or some other barrier to keep others from using her
state of nature to enter a structure of binding rules which grants to the state a monopoly on force, and insists upon the further idea that the monopoly of force must be legitimated by a juridical structure, a specifically legal regime of reciprocal rights and duties. Today the ideal of the rule of law is primarily invoked in urging the reform of property and contract in developing and nonwestern countries with the aim of facilitating the organization and functioning of free markets. So it is
has been a dissolution of this distinction from the Right. This dissolution, although it has been less explicit, has been no less effective, and indeed is probably more far-reaching. Theorists belonging to the school of thought known as political economy or public choice theory, along with numerous non-theorist followers, reason in exactly the same terms about the purchase of legislation or agency regulation by market actors as they reason about the purchase of contractual obligations or of any
difficulty or restrictions.) The classic case of debate about inalienability involves selling oneself into slavery.4 There are other rights of the person that are usually held to be fully inalienable (meaning that they cannot be divested at all, even by free choice of the holder) or at least market-inalienable (not to be divested by sale—contract—even by the free choice of the holder).5 There are not too many instances of boilerplate attempting to accomplish the waiver of a right that is fully
redress is foreclosed when it remains theoretically open but is almost completely closed in practice. My view, to which I return later in this chapter, is that this is a case in which the large number of recipients affected should matter. When a large swath of the public has no access to redress of grievances in practice, that is a democratic degradation and a serious flaw in the implementation of the rule of law. Politically Weak Rights and Interests It is important to take note of