Abstract

http://ssrn.com/abstract=2274790
 


 



An Analytical Framework for Legal Evaluation of Boilerplate


Margaret Jane Radin


University of Michigan Law School; University of Toronto Faculty of Law

May 5, 2013

Philosophical Foundations of Contract Law, edited by G. Lestas, P. Saprai, and G. Klass. Oxford University Press, 2014, Forthcoming
U of Michigan Public Law Research Paper No. 338

Abstract:     
This chapter develops an analytical framework that could help legal analysts – especially common law judges – make better decisions about boilerplate in the context of rights deletions deployed by firms against consumers. It is based on one aspect of the author’s recent work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press, 2012). A great deal of mass-market boilerplate – such as hidden lists of terms that recipients have no idea exist – should not be treated as contractual, and should be regulated by other means. But when courts insist on treating boilerplate as contractual, I encourage them to consider an improved analysis. That analysis takes into account three factors: (1) the nature of the right of recipients deleted by the boilerplate; (2) the quality of consent to the boilerplate deletion; and (3) the extent of social dissemination of the deletion. Two particular features of current doctrine should be improved. The procedural/substantive requirement in unconscionability doctrine is misapplied when a judge ignores the nature of the right once she concludes that the quality of consent is adequate, because some rights are market-inalienable, or partially market-inalienable. Market-inalienable rights tend to be rights that are constitutive of civil society, that are not salient to individual decision-makers, and/or that are important for the progress or well-being of the collective as a whole. Also, the notion of reasonable expectation should be avoided because it engenders a truly mischievous positive/normative ambiguity, and seems to license a conclusion that the more something is imposed on people, no matter what it is, the more it is permissible. The approach taken here need not be interpreted as innovative, because it can be understood as a reinvigoration of principles of equity that have been corrupted.

Number of Pages in PDF File: 41

Keywords: contract, law, legal framework, boilerplate

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Date posted: June 7, 2013 ; Last revised: August 5, 2013

Suggested Citation

Radin, Margaret Jane, An Analytical Framework for Legal Evaluation of Boilerplate (May 5, 2013). Philosophical Foundations of Contract Law, edited by G. Lestas, P. Saprai, and G. Klass. Oxford University Press, 2014, Forthcoming; U of Michigan Public Law Research Paper No. 338. Available at SSRN: http://ssrn.com/abstract=2274790 or http://dx.doi.org/10.2139/ssrn.2274790

Contact Information

Margaret Jane Radin (Contact Author)
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States
734-763-4861 (Phone)
734-763-9375 (Fax)
University of Toronto Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
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