Boilerplate (ebook)

Argumento de Boilerplate (ebook)

"The law has allowed a very basic idea--that humans might come to an agreement--to morph into an embarrassment for law and injustice for too many. This brilliant and powerful book puts the mess in context, and offers a path forward to reform."--Lawrence Lessig, Harvard University

"This important book lays out the strongest possible attack on a legal regime that allows businesses to predraft terms of agreement, modify consumers' legal rights, and privately legislate rules of play in the market. To those interested in understanding the values that such practices violate, the potential harms that widespread boilerplate may cause, and legal methods that can be harnessed to protect vanishing consumer rights, this book is a milestone."--Omri Ben-Shahar, University of Chicago

"This clear and highly readable book makes accessible to a wide audience the most comprehensive and in-depth discussion to date of a persisting challenge to the legitimacy of contract relations in modern societies. We all have to deal with boilerplate. Radin's outstanding book is indispensable to understanding its practical and theoretical significance, and to promoting justice in contractual relations."--Peter Benson, University of Toronto Faculty of Law

"When we sign or click on a form we never negotiated or even read, do we really 'agree' to all the terms its drafter wishes to impose on us--no matter how sneaky or outrageous? Radin shows how allowing boilerplate to govern our relationships can degrade our values and democracy. This elegant and lucid book is a profound meditation on contract law and the meaning of consent."--Robert W. Gordon, Stanford Law School

"This beautifully written and persuasively argued book tackles an immensely important and timely topic: the increasing use of boilerplate or standard form contracts in the provision of goods and services. It will receive much attention for its diagnosis of problems that boilerplate contracts present and for its imaginative canvassing of possible legal and regulatory responses."--Michael Trebilcock, University of Toronto Faculty of Law

"Radin critiques the mass phenomenon of boilerplate, or nonnegotiable contract terms, of which consumers are unlikely to be aware. The book introduces and elegantly combines several theoretical challenges in this area and will be an important intervention in the debate."--Aditi Bagchi, Fordham University School of Law

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

"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

"[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

"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

"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 Post0Acknowledgments ix
Prologue: World A (Agreement) and World B (Boilerplate) xiii

Part I. Boilerplate, Consumers' Rights,and the Rule of Law 1

• Chapter 1 An Overview of Worlds A and B 3
  
• Chapter 2 Normative Degradation: Deleting Rights without Consent in the Name of Contract 19
  
• Chapter 3 Democratic Degradation: Replacing the Law of the State with the "Law" of the Firm 33

Part II. Boilerplate and Contract Theory: Rationales and Rationalizations 53

• Chapter 4 A Summary of the Philosophy of Contract: The Theories of World A 55
  
• Chapter 5 Can Autonomy Theory (Agreement, Consent) Justify Boilerplate Deletion of Rights? 82
  
• Chapter 6 Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights? 99
  

Part III. Boilerplate and Contract Remedies: Current Judicial Oversight and Possible Improvements 121

• Chapter 7 Evaluating Current Judicial Oversight 123
  
• Chapter 8 Can Current Oversight Be Improved? 143
  
• Chapter 9 Improving Evaluation of Boilerplate: A Proposed Analytical Framework 154
  

Part IV. Escaping Contract: Other Remedial Possibilities 187

• Chapter 10 "Private" Reform Ideas: Possible Market Solutions 189
  
• Chapter 11 Reconceptualizing (Some) Boilerplate under Tort Law 197
  
• Chapter 12 "Public" and Hybrid Regulatory Solutions 217

Afterword: What's Next for Boilerplate? 243
Notes 249
Index 313