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Tuesday, May 14, 2013

Boilerplate Symposium III: Andrew Gold, Is Boilerplate Contractual?

This is the third in a series of posts reviewing Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Gold

Andrew Gold is a Professor of Law at the DePaul University College of Law.

Margaret Jane Radin’s new book, Boilerplate, is an outstanding contribution to the literature on contract theory and policy.  In this review, I will focus on her analysis of consent, and in particular what it means to have consent for purposes of contract theory.  For the most part, my concern will be conceptual, and not normative.  This conceptual focus has normative implications, however.  Radin argues that tort law is an appropriate means to regulate mass market boilerplate, in part because she believes that boilerplate is not properly conceptualized in contract terms.   As she concludes: “it would be better to stop referring to boilerplate as contractual, because of its lack of fit with contract theory and with the basic principles of the legal system regarding what a contract is and what a contract is for.”  (Radin, Boilerplate, at 242)  This claim appears to be grounded in the vital role consent plays in contract theory.  I share the view that consent is vital to contracts, but I am less sure that boilerplate should be seen as non-contractual.

As Radin indicates, boilerplate involves a spectrum of cases.  At one end of the spectrum are the “sheer ignorance” cases.  In these circumstances, the hapless consumer discovers after the fact that he or she is supposed to have entered a contract.  Yet the consumer has no idea that this was happening at the time the contract was supposedly entered into.  (Id. at 21-23)  A good example is a purported agreement which states, at the bottom of the page, “‘Upon reading this page, you agree to be bound by these terms and conditions.’”  (Id. at 13)  There is no ready way to square these cases with standard views of consent, and I entirely agree with Radin that they are problematic.  It is questionable whether they should properly be called contracts.  With that in mind, let’s bracket the sheer ignorance cases.

BoilerplateSuppose, instead, that we consider another case – the online consumer who has been presented with detailed terms and clicked “I agree,” thus purportedly entering into a boilerplate contract.  Very often, the consumer has not read the terms when clicking “I agree,” and would not fully understand them if they had been read.  This is apparently not a sheer ignorance case as Radin defines that category.  Can these cases be understood in terms of contractual consent?  Maybe not, if consent means informed consent.  At times, Radin seems to mean informed consent, as when she suggests that information asymmetry would render it problematic to assimilate clicking “I agree” to what she calls “the ordinary conception of consent”.  (Id. at 25)  Yet it is highly debatable whether consent means informed consent, outside of those limited areas in which the law goes out of its way to insist on informed consent (e.g., the provision of medical services).  And there is no indication that contract theory relies on the idea of informed consent as it is usually applied.

Assuming informed consent is not the standard, there are a variety of fact patterns which suggest that clicking “I agree” can implicate consent.  Randy Barnett has offered a compelling example of this type.  He describes a promise based on a sealed envelope:

Suppose I say to my dearest friend, “Whatever it is you want me to do, write it down and put it into a sealed envelope, and I will do it for you.”  Is it categorically impossible to make such a promise?  Is there something incoherent about committing oneself to perform an act the nature of which one does not know and will only learn later?

(Randy E. Barnett, Consenting to Form Contracts, 71 Fordham L. Rev. 627, 636 (2002).)  This is a quite plausible case of consent – full-fledged consent – and this would be so even if consent is understood in subjective terms.  It also has important implications for the present inquiry.  It suggests that not knowing precisely what one has consented to is not a per se bar to consent.

Barnett recognizes an important limit on the envelope example.  There are cases where a promisor could reasonably say: “‘while I did agree to be bound by terms I did not read, I did not agree to that.’”  (Id. at 637)  Radically unexpected terms would not have been consented to in a case like the envelope case.  A similar limit seems to apply in the case of clicking “I agree” with respect to unread boilerplate.

Radin raises several concerns with a focus on expectations.  She suggests that expectation-based approaches will not make for a predictable jurisprudence.  (Radin, supra, at 85)  That may be right, although this is an empirical question.  But the possibility that courts are not institutionally well-situated to assess the unexpectedness of contract terms is not an argument that addresses the conceptual question at issue.  It does not tell us whether we have consent for contract theory purposes.  Instead, it is an institutional argument regarding good legal policy.

Another response draws our attention to the distinction between empirical expectations and a separate category, normative expectations.  The argument here is that we have an ambiguity between expectations as they may exist among contracting parties (the empirical kind), and expectations in the sense of “the just practices that a citizen has a right to expect” (the normative kind).  (Id.)  There are notable and interesting differences between the two types of expectations, and the book offers important insights by drawing our attention to this issue.  In fact, I’m sympathetic to Radin’s concern that empirical and normative expectations can be mixed together in contracts jurisprudence.  Courts may look to either sense of expectations, and the jurisprudence may become unpredictable.  But again, this concern does not tell us whether we have consent for contract theory purposes.  This too is an argument regarding good legal policy.

Radin also offers a further argument concerning the different views on contractual consent.  She suggests that the meaning of clicking “I agree” is “more analogous to a contested concept.”  (Id. at 90)  This could raise doubts as to which terms parties have consented to.  It could also raise doubts that any consent exists at all.  The two situations need not coincide.  While the scope of consent could be very uncertain as a matter of objective meaning, this may not mean that people who click on “I agree” have no idea they are agreeing to anything at all.  Whether there is any recognized objective meaning to clicking “I agree” is again an empirical question, and it may vary by community.  Depending on context, I suspect that if you ask online consumers whether they have agreed to anything after clicking “I agree” when confronted by a list of terms, many would think they had agreed to something.  (Of course, it might be something far less than the content which the firm would hope to cover with their contract!)

None of this is to say that Radin is wrong in her policy prescriptions.  My concern, as noted at the outset, is conceptual.  Once we bracket sheer ignorance cases, it is far from clear that mass-market boilerplate falls outside of the consent requirement that underpins much contract theory.  Radin has many other reasons to suggest changes to our legal regime, and I am hopeful that her work will trigger further discussion of the concerns she raises.  Yet it is one thing to say that boilerplate should be regulated in various ways, and another thing altogether to say that it is not contractual.  With that caveat, this book draws our attention to a variety of important consent-related problems.  Boilerplate is a very important contribution to existing debates, and it should be read by anyone interested in understanding the current state of contract law and its potential for reform.

[Posted, on Andrew Gold's behalf, by JT]

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At the last International Conference on Contracts, I was on a panel with Lawrence Solan. He presented a very interesting paper in which he distinguished between transparent and opaque consent. You can watch the presentation here: (his is the third paper on the panel).

I think the paper he presented might have been a variation on this paper, which is available on SSRN:

In any case, I think his paper is highly relevant to Professor Gold's post, and I think the distinction he makes between opaque and transparent consent may help us sort out what one can be said to be agreeing to when one enters into a boilerplate agreement.

Posted by: Jeremy Telman | May 19, 2013 7:27:30 AM

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