This is the first part of the tenth in a series of posts reviewing Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law.
But don’t think that this is the end. We have more reviews rolling in, and they will go up next week, so stay tuned.
In today’s posts, our author, Margeret Jane Radin, responds to her reviewers. In this first half, she responds to the reviewers from last week. In the second half of this post, she responds to this week’s reviewers.
Professor Radin is the Henry King Ransom Professor of Law at the University of Michigan Law School. She teaches courses about contracts and patents, as well as those dealing with property theory, the interaction between property and contracts, and the evolution of property and contracts in the digital era. In addition to Boilerplate, she has also written two books exploring the problems of propertization:Contested Commodities (Harvard University Press, 1996) and Reinterpreting Property (University of Chicago Press, 1993), and coauthored a casebook, Internet Commerce: The Emerging Legal Framework, Second Edition (Foundation Press, 2005). Professor Radin has taught at the University of Southern California, Stanford University, Harvard University, University of California, Berkeley (Boalt Hall), and New York University. In 2006-2007, she was the inaugural Microsoft Fellow in Law and Public Affairs at Princeton University. In 2008, she became a fellow of the American Academy of Arts and Sciences.
Here are her responses to the first week’s posts:
In response to your (rhetorical?) question, “But once we acknowledge the death of consent, how much more new is there to say about boilerplate?,” please see the review posted here [next week] by Aditi Bagchi. There is plenty more to say about what types of rights are not mere default rules, for example. And if consent has become merely a “term of art,” that has deep consequences for the justification of contractual ordering; please see my reply to Andrew Gold [below].
I don’t say, of course, that all form contracts are World B contracts. I do use World B as a shorthand, an archetype, for one end of a continuum. I think –hope–Chapter 9 makes that clear: I argue for three parameters, all of which are to be understood as continua. I don’t disagree that we need more data (actual empirical facts about boilerplate occurrences and the markets in which they occur, rather than blanket arm-chair economic pronouncements). I think there may be a trend in that direction and I hope I have encouraged it.
I did not deny that it is often rational for consumers not to read the boilerplate (though perhaps “rational” is not quite the right word to describe why it is understandable, explainable, etc). Much of the boilerplate in the mass-market deployments I focus on is not an individual-by-individual matter and cannot be evaluated that way; indeed, that is a primary factor that tends to take some instances of mass-market boilerplate out of the realm of contract.
Response to Theresa Amato:
It is a pleasure to have a well-reasoned and passionate call to action. I hope many will be called. Thank you for alerting us to the problems with even obtaining copies of contracts deployed by nursing homes and by some employers. Likewise, I hope you and other activists will eventually find a way to ascertain whether insurance companies are requiring massive disclaimers as a condition of insurability, especially in certain industries.
I agree with much of what you say, particularly about the inapplicability of “duty to read” doctrine under contemporary boilerplate conditions (and that goes, too, for “reasonably communicated” or “reasonable opportunity to read,” etc). I do support focusing on an “upstream approach” for certain kinds of boilerplate; boilerplate that deletes basic remedies afforded by civil society in particular should not be treated as a pure default rule fully waivable on an individual-by-individual basis.
Response to Andrew Gold:
Thank you for recognizing the ambiguity in “expectation,” and the mischief it causes.
Contract theory supposes exchange of promises, or agreement, Consent is already a conceptual step away from either of these alternative core conceptualizations, because it does not foreground the reciprocity inherent in contract theory. Barnett’s consent theory is more radical than he lets on, because it erases this basis of reciprocity.
Coming to “consent” to unknown terms, Barnett argues that the acceptance scenario represented by the sealed envelope hypo is conceptually possible, but he admits that that has little bearing on whether people who click “I agree” are actually doing that. Thank you for saying more clearly that what we mean by clicking “I agree” is not known, and unlikely to have a general answer.
Contract theory is important because it is the justification for the state to enforce certain agreements by forcibly divesting one party of an entitlement and vesting it in someone else. On a deeper level, contract theory is important because, in the standard liberal story justifying the state, the state is necessary in order to implement and maintain a system of contract to enhance freedom of persons by means of making private ordering possible ( i.e., freedom of contract). So, I am actually a conservative about freedom of contract.
There’s
a deep question, in my view, regarding how far a practice can deviate from the assumed parameters of its justificatory theory before we must consider it unjustified. I am working in this question, which is a question of “fit” between ideal theory and nonideal practice. Meanwhile, we know that fully informed consent (itself an idealization, not something that happens in real life) fits the contract theory justification, whereas sheer ignorance (at least you and I agree) does not. The contested terrain is between these poles. How far can an allegedly “contractual” practice deviate from the consent/exchange of promises/agreement concepts undergirding the theory before such practice must be held unjustified, that is to use that theory as the basis to divest entitlements through state coercion must be held unjustified?
I am not sure that question can be classified as conceptual, and I don’t think it can be classified as empirical, but I’m sure it’s the question we need to answer when it comes to money-now-terms-later, or, indeed, clicking “I agree” (or signing something) when the recipient has no viable opportunity to do otherwise, when the recipient does not understand the terms, when the deleted rights should not be subject to relinquishment by individuals, etc. (See also reply [in the next post] to Kim Krawiec.)
Response to David Horton:
Elegantly put, and thank you.
Response to Ethan Leib:
Thank you for the list of ideas I offer. This is just what a review should do (in addition to raising questions and suggesting avenues for further research, of course).
Since consent is the core value concept of contract theory–or at least derived closely from the core concepts of exchange (promises or agreement), I don’t think consent can be “fetishized.” (Focusing on feet might be “fetish” if we believe the core value is partnership as a whole, but then partnerships as a whole can’t be “fetishized.” “Commodity fetishism'” for example, was supposed to suggest that overvaluing commodities and turning too many aspects of life into commodities is a distortion of what is valuable in humanity, but if we then insist in valuing humanity, that is not “fetishizing” humanity.)
The problem I think you allude to, however, is a real one: To what extent does a justification for a practice have to fit (accurately describe) instances of the practice? Or to put the question the other way, To what extent may a practice allegedly justified by a theory deviate from the theory before we should regard it as unjustified? (See my reply to Andrew Gold.) I don’t have a general theory to address this problem of “fit.” There might be many practices that are imperfectly related to the theory (firm-to-firm negotiated deals that are incompletely specified, for example) that on balance are still justifiable under contract theory. I think that mass-market boilerplate of certain varieties is outside the purview of the purported justification under contract. I’ll try to say more in later work about the grey area that imperfectly fits the ideal but nevertheless can be considered “close enough,” but meanwhile, I think we can say that certain kinds of boilerplate are not “close enough” without dragging the entire practice of contracting into question.
[Posted, on Margaret Jane Radin’s behalf, by JT]
Response to Peter Alces: