Boilerplate Symposium I: Peter Alces on Consent

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

Peter A. Alces, RollinsProfessor of Law and Cabell Research Professor of Law, The College of William& Mary School of Law

 In this fine book, MargaretJane Radin concludes that “consent” lacks a reality referent in contract.  That is, somewhere between what she describesas  “World A (Agreement),” the universe of enforceable promises negotiated “at arms’ length” by parties of similar relative sophistication, and “World B (Boilerplate),” where standard and oppressiveterms effect normative and democratic degradation, consent is lost.  This conclusion is not shocking; it isdifficult to think of anyone (probably including even Randy Barnett) whohonestly believes that real consent has very much to do with most (evenvirtually all) contracting these days. So we can all agree: where there is boilerplate, there is no “meaningful” consent, which is to saythere is none of the consent that should matter to contract.  From that premise, Professor Radin concludesthat World B is not a contracts universe at all, but is instead a realm betterunderstood by reference to tort principles (and it is even worse than GrantGilmore ever imagined).

 But once we acknowledge the death of consent, how muchmore new is there to say about boilerplate? You could despair with Professor Radin that political forces make itunlikely that the American justice system will respond as would the EuropeanUnion; that consequentialist apologists rely on arm chair empirical assumptionswithout actually doing the necessary math; that by a 5-4 decision of the UnitedStates Supreme Court the Federal Arbitration Act has been contorted toundermine our justice system; that a curiously reasoned decision of the UnitedStates Court of Appeals for the Seventh Circuit has somehow become theprevailing (if not final) word on contract formation: but at the end of theday, it is difficult to identify certainly the extent of the harm or glimpse aviable cure.  (Those troubled byboilerplate need to do the same math they complain form contracts proponentsfail to do.)

While Professor Radin is right that there aredistinguishable Worlds of contract, she does not make clear enough that the twoWorlds are on a continuum; they are not so clearly dichotomous.  Further, the contours of the continuum areobscure: many very sophisticated people know quite well what they are giving upwhen they sign a form contract or click “I agree,” and yet do sowillingly.  That is generally therational thing to do.  Now Boilerplatedoes put boilerplate on a three dimensional matrix that would be sensitive todegrees of consent, alienability of the right in issue, and the size of thecohort prejudiced.  But in describingWorlds A and B in dichotomous terms, the book may obscure the reasons why itremains rational to agree to form contracts, without reading their terms.  So I think the book would have been strongerhad it described Worlds A and B along a fourth dimension. 

What Professor Radin has to say about consent is surelytrue, but what she says is really a truism: we know that consent is aconclusion rather than an analytical device, and that consent is also a term ofart, largely divorced from the important normative work it can do in WorldA.  What we do not know, though, is whenWorld A becomes World B: it is not just the case that all form contracts areWorld B contracts.  Whether a contract isWorld A or World B is a function of the very factors that contract doctrinecould take seriously, if the composition of the Supreme Court were different,and if all Federal Courts of Appealjudges knew a bit more about the common law of contract and the UCC.

[Posted, on Peter Alces’s behalf, by JT]