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.

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

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

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

Suppose, instead, that we consideranother case – the online consumer who has been presented with detailed termsand clicked “I agree,” thus purportedly entering into a boilerplate contract.  Very often, the consumer has not read theterms when clicking “I agree,” and would not fully understand them if they hadbeen read.  This is apparently not asheer ignorance case as Radin defines that category.  Can these cases be understood in terms of contractualconsent?  Maybe not, if consent meansinformed consent.  At times, Radin seemsto mean informed consent, as when she suggests that information asymmetry wouldrender it problematic to assimilate clicking “I agree” to what she calls “theordinary conception of consent”.  (Id. at25)  Yet it is highly debatable whetherconsent means informed consent, outside of those limited areas in which the lawgoes out of its way to insist on informed consent (e.g., the provision of medical services).  And there is no indication that contracttheory relies on the idea of informed consent as it is usually applied.

Assuming informed consent is not thestandard, there are a variety of fact patterns which suggest that clicking “Iagree” can implicate consent.  RandyBarnett has offered a compelling example of this type.  He describes a promise based on a sealedenvelope:

Suppose I say tomy dearest friend, “Whatever it is you want me to do, write it down and put itinto a sealed envelope, and I will do it for you.”  Is it categorically impossible to make such apromise?  Is there something incoherentabout committing oneself to perform an act the nature of which one does notknow and will only learn later?

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

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

Radin raises several concerns with afocus on expectations.  She suggests thatexpectation-based approaches will not make for a predictablejurisprudence.  (Radin, supra, at 85)  That may be right, although this is anempirical question.  But the possibilitythat courts are not institutionally well-situated to assess the unexpectednessof contract terms is not an argument that addresses the conceptual question atissue.  It does not tell us whether wehave consent for contract theory purposes. Instead, it is an institutional argument regarding good legal policy.

Another response draws our attentionto the distinction between empirical expectations and a separate category, normativeexpectations.  The argument here is thatwe have an ambiguity between expectations as they may exist among contractingparties (the empirical kind), and expectations in the sense of “the justpractices that a citizen has a right to expect” (the normative kind).  (Id.) There are notable and interesting differences between the two types ofexpectations, and the book offers important insights by drawing our attentionto this issue.  In fact, I’m sympatheticto Radin’s concern that empirical and normative expectations can be mixedtogether in contracts jurisprudence.  Courtsmay look to either sense of expectations, and the jurisprudence may becomeunpredictable.  But again, this concerndoes not tell us whether we have consent for contract theory purposes.  This too is an argument regarding good legalpolicy.

Radin also offers a further argumentconcerning the different views on contractual consent.  She suggests that the meaning of clicking “Iagree” is “more analogous to a contested concept.”  (Id. at 90) This could raise doubts as to which terms parties have consentedto.  It could also raise doubts that anyconsent exists at all.  The twosituations need not coincide.  While thescope of consent could be very uncertain as a matter of objective meaning, thismay not mean that people who click on “I agree” have no idea they are agreeingto anything at all.  Whether there is anyrecognized objective meaning to clicking “I agree” is again an empiricalquestion, and it may vary by community. Depending on context, I suspect that if you ask online consumers whetherthey have agreed to anything after clicking “I agree” when confronted by a listof terms, many would think they had agreed to something.  (Of course, itmight be something far less than the content which the firm would hope to coverwith their contract!)

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

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