The Challenge of Boilerplate
Jotwell (Sep. 3, 2013)
10 Pages Posted: 23 Aug 2013 Last revised: 24 Nov 2017
Date Written: August 22, 2013
Although Margaret Jane Radin is perhaps best known for her work in property theory, she has recently been focusing her formidable intellect on questions of contract. Boilerplate reflects her first book length treatment of these topics, and there is much to like about this book. This review focuses on one contribution that the book makes to normative jurisprudence, which is to clarify the centrality, pervasiveness (and perhaps even inescapability) of a specific problem for modern contract theory. The problem involves what I like to call a generalized lack of theory-to-world fit: if Radin’s arguments are valid, then a very broad range of modern contract theories are addressing the wrong subject matter, given the way that contracts increasingly work in the modern world.
The challenge that boilerplate thus poses to a broad range of normative contract theories -- including economic theories -- is much deeper than typically recognized.
Keywords: boilerplate, radin, contract, efficiency, consumer, protection, unconscionability, contract of adhesion, market, coase, efficiency, reliance, democracy, jurisprudence, theory, normative
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