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 quiteright to say that what I was trying to do in my book is bring to the fore whatyou label features (2) and (3): thatboilerplate in effect forces consumers to give up important legal rights andthat boilerplate effectively eliminates rights for large portions of theconsumer population.  These featurescause an inquiry into what we might label (4) in my intentions in thebook:  there are background rights thatare constitutive of civil society, or inherent in the social contract, andthese are not within the purview of individuals to waive, one by one, even ifthey truly wish to, one by one.  Inwriting 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 howbadly this rationale fits mass-market boilerplate deployment, akin to yourfeature (1).  Unfortunately, it appearsthat some readers seize on this as the book’s main point, and are quick to saythat this observation is old hat.  Whatis not old hat, at any rate, is what follows: much that is called contract today should not be called contract, andshould not be enforced as contract.

At least: Weshouldn’t be able to sell off certain rights, even if, as individuals, we wantto.  (And it’s quite possible that manyof us, as individuals, want to, because we think we, as individuals, don’t needthem, and we don’t, as individuals, find the needs of society as a whole to besalient for our decision making.)  We doneed, now, to turn our attention to which rights these are, as indeed I believeyou are saying.

You mention mycopyright example: the purpose of rights that exist for the benefit of societyas a whole is destroyed when individuals (in the millions) can waive them oneby one.  The example I like to invoke isthe right to be free of negligent harm inflicted by others.   As long as we believe that negligentharm-causing behavior is at least somewhat deterred by legal liability, tortlaw–even if flawed at present, and unless we replace it with some other legalregime–has to fill this role.  Serviceproviders are the best party to hold responsibile for preventing harm to theircustomers:  they can investigate theiremployees, maintain their equipment, keep the premises sanitary, etc, etc, andtheir customers cannot.  If each of ushas to be endlessly on guard against being harmed by others with whom we comeinto contact, we are back in the state of nature.

Response to Jean Braucher:

As a powerfuland learned voice in consumer protection legislation, you should, or Icertainly hope you will, expand what you have written here into a book that canbe both helpful for contracts scholars and teachers and a much wideraudience.  I certainly agree thatcontracts teachers should make consumer regulation known to students; and theyshould also make it known that boilerplate doesn’t fit into theoffer/acceptance/consideration paradigm.

In writingBoilerplate, I was trying to gather together many strands of thought andargument about it, so as to provide a platform from which further thought couldcommence.  As I mentioned in another ofthese replies, I had to go through the idea of consent (promises, agreement)because that is the basis of contract justification; that is what is supposedto justify enforcing these things.  Andcourts do enforce them; as contracts. Unfortunately, some readers may think I am over-preoccupied withconsent.  But rather I am preoccupied withthe tragedy that deletion of important rights is routinely being enforcedagainst citizens in the name of contract. So, before making other suggestions, I tried to detach these things fromthe honorary title of contract. 

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

Response to Charles Calleros:

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

 On the topic ofreasonable expectations:  Although youclearly understand the problem caused by the normative/positive ambiguity, I amstill very much concerned that many judges and other officials will just lapseinto believing that the more something is prevalent the more we expect it, thusreinforcing “Everybody does it” as justification.  Whereas, of course, the more something unjustis being done, the worse is the injustice in society. 

Your solution tothe “Everybody does it” justification would be comprehensive blacklisting of oppressive clauses on the European model.  I wish we could do this, but I’m apragmatist, and I think we cannot (and it seems you agree).  So what might be possible for us?

You suggest thatbusinesses should highlight potentially objectionable terms. Some businessesare already doing that. For example, there are now up-front solemn warningsabout the presence of an arbitration clause. But I don’t think that workseither–consumers just sign or click “I agree” anyway–though wecould use some empirical data on this. And who gets to decide what is potentially objectionable?  Here you seem to come back to the idea oflying “outside the boundaries of what consumers should be held toreaonably expect,” so we are back to the invitation to use the”Everybody does it” method of determing what is reasonablyexpectable.

Response to Peter Linzer:

Thank you forreminding us of the historical progression, and the great quote fromCardozo.  Indeed, as you say, courts,legislatures, and agencies should look not to the mechanics of contract butrather to the rights of the social system.

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

Response to Cheryl Preston: 

I love the quotefrom Cole v. Goodwin! 

Is it a”stretch” to say that the democratic process has created protectionsthat boilerplate deletes?  Copyright andclass actions are examples where this is not a “stretch,” I believe.  It is perhaps question-begging to say thatafter all, these are default rules; at least, I am trying to argue that theyshould not be, and that the judiciary could take some steps against too-easywaiver.

BUT it iscertainly true that legislative bodies are “influenced” (i.e.,bought)   “by the same businessinterests that control consumers by contract.”  This is more true, I think, of federal thanof state and local legislatures, perhaps because of the immense amount of moneywe allow to be spent in federal elections. This is a sorry state for democracy.

The interestingthing about the copyright example is that the federal law was indeed writtenpretty much at the behest of the major business interests themselves.  So in this case it seems that what theseinterests “bought” was a coordination solution from which individualfirms should be prevented from defecting.

To your lastparagraph, I say “Hear, hear.” To your penultimate paragraph I say, let’s support  Theresa Amato and her colleagues, and let’s jointhe ALI and speak up.

Response to Guy Rub:

Thank you forengaging 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 yourhaving given this matter some of your time and thought, and I hope this willencourage 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
• Guy Rub on market solutions to the boilerplate problem

 Thanks to all of our participants.  

[JT]