Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

by Margaret Jane Radin
     
 

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Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a

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Overview

Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order.

Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.

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Editorial Reviews

Huffington Post
Radin makes a compelling case that boilerplate constitutes a clear and present danger to our core values. The practical remedies she suggests ought to command the attention of anyone concerned about the imposition of non-negotiable terms on American consumers.
— Glenn C. Altschuler
Wall Street Journal - Robert F. Nagel
[Radin] has given us a sophisticated and thought-provoking treatment of the boilerplate contracts that everyone signs yet few read or understand.
Huffington Post - Glenn C. Altschuler
Radin makes a compelling case that boilerplate constitutes a clear and present danger to our core values. The practical remedies she suggests ought to command the attention of anyone concerned about the imposition of non-negotiable terms on American consumers.
From the Publisher

Winner of the 2014 Scribes Book Award, The American Society of Legal Writers

"[Radin] has given us a sophisticated and thought-provoking treatment of the boilerplate contracts that everyone signs yet few read or understand."--Robert F. Nagel, Wall Street Journal

"Radin makes a compelling case that boilerplate constitutes a clear and present danger to our core values. The practical remedies she suggests ought to command the attention of anyone concerned about the imposition of non-negotiable terms on American consumers."--Glenn C. Altschuler, Huffington Post

"Boilerplate is exemplary scholarship: lucid, jargon-free, and focused on solving problems as well as identifying them. It's a model of the 'process,' inside-the-system track for social change."--Michael Stern, American Lawyer

"Boilerplate is a book from which all readers could benefit, whether or not they ultimately agree with every one of the author's analyses and conclusions."--Brian
H. Bix, Tulsa Law Review

"One of the things I like so much about Boilerplate is that it clarifies just how deep and pervasive this problem is for modern contract theory as a whole. By casting doubt on one of the most common starting points in modern contract theory, Radin in effect forces us to reflect on the basic object of the inquiry. She thereby challenges us to produce either better theories or a better world, and to do so based on the facts rather than fanciful pictures of the market."--Robin Bradley Kar Jot, Illinois Public Law and Legal Theory Research Papers Series

Library Journal
Radin (law, Univ. of Michigan; Contested Commodities: The Trouble with Trade in Sex, Children, Body Arts and Other Things) has written a trenchant and scholarly critique of boilerplate, or form, contract clauses in everyday use. The first part of the book describes actual contract clauses in which those who "agreed" gave up valuable rights, such as the right to a jury trial or to sue for personal injury. This part continues with a primer on contract law and how technology has led to technological protection measures (e.g., "agreeing" to terms presented online) that have degraded consumers' rights. Part two delves into the theory of contract law, examining whether boilerplate's deletion of rights is justifiable under different philosophies. The third part reviews current judicial and administrative oversight of boilerplate and finds it wanting. In Part 4, Radin sets forth the opinion that boilerplate should be standardized, regulated, and made safe through a tort law approach. VERDICT While well written, the book is densely argued and contains extensive notes. Recommended for specialists with a background in law or interest in consumer rights.—Harry Charles, Saint Louis, MO

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Product Details

ISBN-13:
9781400844838
Publisher:
Princeton University Press
Publication date:
12/07/2012
Sold by:
Barnes & Noble
Format:
NOOK Book
Pages:
360
File size:
2 MB

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Meet the Author

Margaret Jane Radin is the Henry King Ransom Professor of Law at the University of Michigan and the William Benjamin Scott and Luna M. Scott Professor of Law, emerita, at Stanford University. Radin is the author of Reinterpreting Property and Contested Commodities.

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