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Regulation Through Boilerplate: An Apologia

24 Pages Posted: 23 Apr 2013 Last revised: 11 May 2013

Omri Ben-Shahar

University of Chicago Law School

Date Written: April 22, 2013

Abstract

This essay reviews Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Princeton Press, 2013). It responds to two of the book’s principal complaints against boilerplate consumer contracts: that they modify people’s rights without true agreement to, or even minimal knowledge of, their terms; and that the provisions they unilaterally enact are substantively intolerable. I argue, counter-intuitively, that contracts with long fine prints are no more complex and baffling to consumers than any alternative boilerplate-free templates of contracting. Therefore, there is no alternative universe in which consumers enter simpler contracts better informed of the legal terms. In addition, I argue that any policy that mandates consumer-friendlier arrangements (such as ones that eliminate boilerplate arbitration clauses, warranty disclaimers, or data collection) would hurt consumers in an unintended but potentially costly way.

Suggested Citation

Ben-Shahar, Omri, Regulation Through Boilerplate: An Apologia (April 22, 2013). Michigan Law Review 2013, Forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 640. Available at SSRN: https://ssrn.com/abstract=2255161 or http://dx.doi.org/10.2139/ssrn.2255161

Omri Ben-Shahar (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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