50 Pages Posted: 12 Mar 2008 Last revised: 17 Dec 2008
Date Written: March 12, 2008
Research on standard form contracts tends to focus on five areas: (1) analyzing the contents of common form contracts; (2) determining why competition mostly does not exist among firms drafting these contracts; (3) modeling consumer responses to boilerplate; (4) exploring judicial interpretation of these forms; and (5) discussing normatively how courts and laws should handle these contracts. This Study explores empirically how individuals experience and interpret form-adhesive agreements, in the hope of further understanding how they affect exchange relationships between organizations and individuals. This Article uses a measure of perceived enforceability to analyze actors' interpretations of these ubiquitous agreements and explore the elusive yet historically important concepts of citizenship and trust in the rule of law. To do this, this Article develops a construct, called "malleable consent," as a measure of actors' perceptions of unenforceability of form agreements to which they have consented without duress, fraud or coercion.
Based on interviews with sales associates of a large national retailer and survey responses of MBA students of an elite university, this Article offers preliminary evidence that actors who regard form-adhesive agreements as binding upon them are more likely to regard their employment relationships as "relational" (imbued with trust, loyalty and a set of ethical commitments). Conversely, actors who regard such agreements as non-binding are more likely to view their employment relationships as "transactional" (merely a market exchange). Further, the construct, malleable consent, is used to reveal differences in actors' use of law as a form of coercive power across socio-economic groups. Preliminary evidence suggests that less educated, lower skilled and lower paid subjects with greater employment dependency are more likely to feel bound by the terms of form-adhesive agreements that restrict their resort to law than more educated, higher skilled, and higher paid subjects with less employment dependency.
Keywords: contract, citizenship, citizen, rule of law, enforceable, enforceability, malleable, consent, unconscionable, unconscionability, form-adhesive, form agreement, boilerplate, law and society, sociology, macaulay, empirical
JEL Classification: C12, D63, C90, C93
Suggested Citation: Suggested Citation
Eigen, Zev J., The Devil in the Details: The Interrelationship Among Citizenship, Rule of Law and Form-Adhesive Contracts (March 12, 2008). Connecticut Law Review, Vol. 41, No. 2, December 2008; 3rd Annual Conference on Empirical Legal Studies Papers. Available at SSRN: https://ssrn.com/abstract=1105424
By Zev Eigen
By Orin Kerr
By Zev Eigen