Why the increasing use of boilerplate is eroding our rights
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.
