Boilerplate Symposium V: Ethan Leib on the Fetishization of Consent

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

Ethan Leib s Professor of Law at Fordham Law School and is the author of What is the Relational Theory of Consumer Form Contract?, in Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical 259 (Jean Braucher, John Kidwell & William Whitford eds., Hart Publishing 2013)

People tend to begin with praise.  In this case, it isn’t just throat-clearing.  Although one could be forgiven for thinking that the subject of consumer form contracts has been mined to death, much impresses in Peggy Radin’s Boilerplate.  Although I don’t agree with all of them, here are just a few of the book’s productive interventions:

1. Radin invites us to consider whether tort law rather than contract law would make better sense of the consumer form contract gone wrong in which someone is harmed, “out of the blue, by the unexpected actions of another” (23);
2. Radin invites us to think about how complicity with certain types of boilerplate that divests important procedural and substantive rights has had the systematic effect of converting property rules to liability rules, unilaterally priced by form drafters (75);
3. Radin questions whether we should be allowing contract to undermine the value of “fair use” of intellectual property or the value of free expression, since some seemingly enforceable boilerplate purports to limit consumers’ permission to use or criticize the products they buy (172-76);
4. Radin reminds us that when consumers’ reasonable expectations are that they will be exploited by boilerplate, the judicial doctrine allowing enforcement of only consumers’ “reasonable expectations” will prove inadequate in addressing the problems with boilerplate (highlighting the ambiguity in the doctrine between positive and normative expectations) (85);
5. Radin provokes us by characterizing consumer form contracts as “sturdy indefensibles:” we might need to use them even though they don’t fit the “‘grammar’ of the legal infrastructure of contract law” (143); and
6. Radin argues that boilerplate should be judged based on the nature of the right involved, the quality of consent provided by those bound, and the dissemination of the right that is purportedly infringed (155).

And there are more pearls for readers, too.

But I had one quite basic problem with the book, which cuts to the very core of Radin’s approach. 

Most importantly, she really tries to train the reader not to consider boilerplate instruments as actually contractual.  Indeed, if her editor had allowed it, she might very well have used scare quotes throughout the whole book (rather than just the beginning) to highlight that consumer form contracts with boilerplate are not really contracts.  The reason for their exclusion from the world of contract: because of the routine absence of consent in transactions using boilerplate.  It is the lack of consent (or the severely attenuated consent) in consumer form contracting which underwrites her claim that boilerplate contributes to “normative [and] democratic degradation,” a central trope that recurs throughout the book. 

Admittedly, it seems intuitive to root contract in consent.  The liberal theory of autonomy to which many versions of contract theory owe their genesis promotes consent as a principal virtue.  So it is no surprise that Radin seeks to maintain the liberal theory of autonomy and contract with it.

But there is a whiff of fetishizing of consent in Radin’s rendering.  Absence and attenuation of consent is everywhere in the transactional world of contract: in employment, long-term corporate relationships, in franchises, in marriage.  Contract is a multifarious enterprise that ultimately governs many modalities of exchange.  Radin surely attempts to explore the fine line between the consensual and non-consensual.  But excluding a huge portion of voluntary exchange from the domain of contract seems unlikely to be true to the rich practice that has, from time immemorial, been a method of channeling and regulating complex relationships in which transactions occur.  I fear a “purer” contract – one without boilerplate and one which squeezes out all attenuated consent – will ultimately leave us with a more ideological product, one that undergirds, reinforces, and grows out of a libertarian rather than a liberal theory of autonomy.  And that may lead to more substantial normative degradation than would fighting bad contracts with some contract law.

[Posted, on behalf of Ethan Leib, by JT]