Boilerplate Symposium Conclusion (for now): Peggy Radin Responds to Week Three

Although this is the last official post in the our online symposium on Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, I have heard from a few scholars who would like to weigh in, so there will likely be a few more posts on Boilerplate appearing over the summer.

In today's post, our author, Margeret Jane Radin, responds to her reviewers from the third week of the Symposium

Response to Aditi Bagchi:

You are quite right to say that what I was trying to do in my book is bring to the fore what you label features (2) and (3): that boilerplate in effect forces consumers to give up important legal rights and that boilerplate effectively eliminates rights for large portions of the consumer population.  These features cause an inquiry into what we might label (4) in my intentions in the book:  there are background rights that are constitutive of civil society, or inherent in the social contract, and these are not within the purview of individuals to waive, one by one, even if they truly wish to, one by one.  In writing this book, I did feel it was necessary to rehearse the role of consent (the basis of justification for enforcement of contracts) in the context of how badly this rationale fits mass-market boilerplate deployment, akin to your feature (1).  Unfortunately, it appears that some readers seize on this as the book's main point, and are quick to say that this observation is old hat.  What is not old hat, at any rate, is what follows:  much that is called contract today should not be called contract, and should not be enforced as contract.

At least: We shouldn't be able to sell off certain rights, even if, as individuals, we want to.  (And it's quite possible that many of us, as individuals, want to, because we think we, as individuals, don't need them, and we don't, as individuals, find the needs of society as a whole to be salient for our decision making.)  We do need, now, to turn our attention to which rights these are, as indeed I believe you are saying.

You mention my copyright example: the purpose of rights that exist for the benefit of society as a whole is destroyed when individuals (in the millions) can waive them one by one.  The example I like to invoke is the right to be free of negligent harm inflicted by others.   As long as we believe that negligent harm-causing behavior is at least somewhat deterred by legal liability, tort law--even if flawed at present, and unless we replace it with some other legal regime--has to fill this role.  Service providers are the best party to hold responsibile for preventing harm to their customers:  they can investigate their employees, maintain their equipment, keep the premises sanitary, etc, etc, and their customers cannot.  If each of us has to be endlessly on guard against being harmed by others with whom we come into contact, we are back in the state of nature.

Response to Jean Braucher:

As a powerful and learned voice in consumer protection legislation, you should, or I certainly hope you will, expand what you have written here into a book that can be both helpful for contracts scholars and teachers and a much wider audience.  I certainly agree that contracts teachers should make consumer regulation known to students; and they should also make it known that boilerplate doesn't fit into the offer/acceptance/consideration paradigm.

In writing Boilerplate, I was trying to gather together many strands of thought and argument about it, so as to provide a platform from which further thought could commence.  As I mentioned in another of these replies, I had to go through the idea of consent (promises, agreement) because that is the basis of contract justification; that is what is supposed to justify enforcing these things.  And courts do enforce them; as contracts.  Unfortunately, some readers may think I am over-preoccupied with consent.  But rather I am preoccupied with the tragedy that deletion of important rights is routinely being enforced against citizens in the name of contract.  So, before making other suggestions, I tried to detach these things from the honorary title of contract. 

I would be great if the FTC would declare many of the clauses to be unfair methods of doing business (especially wholesale remedy avoidance or deletion).  It would be great if Dodd-Frank is not gutted, and if the CPFB manages to do away with arbitration clauses against financial consumers.  It would be great if the Supreme Court would not make it difficult for states to implement their consumer protection regulation. It would be great if insurance regulators would prevent insurers from forcing their insureds to shunt risk to the insureds' customers.  I think you are perhaps more hopeful than I am at this point, but I'd like to be more hopeful.  It's good to keep on fighting, and trying to gather support. (See the review by Theresa Amato.) 

Response to Charles Calleros:

I admire your sense of ethical obligation to educate both future lawyers and members of the general public about the features of citizenship.  Thank you.  I hope you will inspire us all.

 On the topic of reasonable expectations:  Although you clearly understand the problem caused by the normative/positive ambiguity, I am still very much concerned that many judges and other officials will just lapse into believing that the more something is prevalent the more we expect it, thus reinforcing "Everybody does it" as justification.  Whereas, of course, the more something unjust is being done, the worse is the injustice in society. 

Your solution to the "Everybody does it" justification would be comprehensive black listing of oppressive clauses on the European model.  I wish we could do this, but I'm a pragmatist, and I think we cannot (and it seems you agree).  So what might be possible for us?

You suggest that businesses should highlight potentially objectionable terms. Some businesses are already doing that. For example, there are now up-front solemn warnings about the presence of an arbitration clause. But I don't think that works either--consumers just sign or click "I agree" anyway--though we could use some empirical data on this.  And who gets to decide what is potentially objectionable?  Here you seem to come back to the idea of lying "outside the boundaries of what consumers should be held to reaonably expect," so we are back to the invitation to use the "Everybody does it" method of determing what is reasonably expectable.

Response to Peter Linzer:

Thank you for reminding us of the historical progression, and the great quote from Cardozo.  Indeed, as you say, courts, legislatures, and agencies should look not to the mechanics of contract but rather to the rights of the social system.

Indeed, in addition to fussing with the mechanics of contract, we should think more about the rights that cannot be disclaimed by individuals. There are some rights that cannot be disclaimed by individuals even with true consent:  what rights are those?  I contend that at least the right to viable legal remedy is one. 

Response to Cheryl Preston:  

I love the quote from Cole v. Goodwin! 

Is it a "stretch" to say that the democratic process has created protections that boilerplate deletes?  Copyright and class actions are examples where this is not a "stretch," I believe.  It is perhaps question-begging to say that after all, these are default rules; at least, I am trying to argue that they should not be, and that the judiciary could take some steps against too-easy waiver.

BUT it is certainly true that legislative bodies are "influenced" (i.e., bought)   "by the same business interests that control consumers by contract."  This is more true, I think, of federal than of state and local legislatures, perhaps because of the immense amount of money we allow to be spent in federal elections.  This is a sorry state for democracy.

The interesting thing about the copyright example is that the federal law was indeed written pretty much at the behest of the major business interests themselves.  So in this case it seems that what these interests "bought" was a coordination solution from which individual firms should be prevented from defecting.

To your last paragraph, I say "Hear, hear."  To your penultimate paragraph I say, let's support  Theresa Amato and her colleagues, and let's join the ALI and speak up.

Response to Guy Rub:

Thank you for engaging with me on the topic of market solutions.  I meant my chapter 10 to be suggestive, hoping it might be helpful to get thought about this going. I appreciate your having given this matter some of your time and thought, and I hope this will encourage others.

The prior posts can be found here: 

• Peter Alces on consent;
• Theresa Amato on proposed solutions to the problems posed by Boilerplate;
• Andrew Gold on the question of whether boilerplate is contractual;
• David Horton on mass arbitration and democratic degradation; 
• Ethan Leib on the fetishization of consent;
• Brian Bix on democratic degradation;
• Oren Bar-Gill on consent without reading;
• Daniel Schwarcz on a tort-based approach to standard form contracts;
• Kim Krawiec on contracts as disclosure, Part I and Part II;
• Margaret Jane Radin's responses, Part I and Part II;
• Aditi Bagchi on Boilerplate Waivers;
• Jean Braucher on the common law of contracts as residual law;
• Charles Calleros on the reasonable expectations of consumers;
• Peter Linzer, That Was No Contract, That Was My Lunch;
• Cheryl Preston on boilerplate and the role of courts; and
• Guy Rub on market solutions to the boilerplate problem

 Thanks to all of our participants.  

[JT]