The Fiduciary State and Private Ordering
Paul B. Miller and Andrew S. Gold, eds., Contract, Status, and Fiduciary Law, Oxford, 2016, Forthcoming
27 Pages Posted: 21 Feb 2016 Last revised: 25 May 2017
Date Written: February 19, 2016
In this chapter, I argue that by allowing firms to foreclose access to the courts and legal remedies through boilerplate rights deletions, the American legal system is failing civil society, and its legal institutions are flouting their fiduciary obligation to the polity and to the American people. In addition, I suggest that firms have an obligation not to deploy boilerplate so as to “defect” unilaterally from the legal infrastructure that makes it possible for firms to function in civil society.
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