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This chapter focuses on the democratic degradation that may be caused by the apparent replacement of the law of the state with the “law” of the firm when boilerplate is deployed in mass markets. It considers mass-market boilerplate rights deletion schemes and how the widespread use of boilerplate causes democratic degradation; for example, it threatens the distinction between public and private ordering, undermines the rule of law, and erases legal rights. The chapter also examines private law, the main legal infrastructure of the liberal notion of private ordering, and copycat boilerplate. Finally, it discusses technological protection measures (TPMs) and their implications for legal infrastructure, along with measures that might help to make TPMs less problematic from the point of view of the rule of law.

This chapter examines whether autonomy theory (agreement, consent) can justify boilerplate rights deletion schemes. It first considers strategies for assimilating World B to consent by focusing on the devolution of voluntary agreement. It then explains the difference between agreement and the notions of consent or assent before discussing the doctrine of “reasonable expectations” in insurance contracts as opposed to the notion of radical unexpectedness. It also looks at the objective theory of contract, arguing that it is not applicable to boilerplate. Furthermore, “browsewrap” and “rolling contracts” cannot be assumed to yield obligation by invoking the objective theory of contract because of the possibility of sheer ignorance. The chapter concludes by analyzing whether a firm is justified in its assertion that by clicking “I agree” the recipient actually is consenting to be bound to its terms.

This chapter examines whether boilerplate rights deletion schemes can be justified by the “contract-as-product” theory. The contract-as-product theory attempts to sidestep the issue of consent by denying that a particular set of contracted terms is an individual transaction requiring consent in the traditional sense. According to this view, whatever adhesion terms accompany the purchase of a product should actually be conceived of as part of the product. The chapter considers how choice or consent by the recipient enters into the contract-as-product view, and how information asymmetry and heuristic biases render erroneous the assumption of economic rationality. It argues that contract-as-product theory cannot suffice to validate boilerplate in general, or even presumptively.

This chapter examines current judicial oversight of contract law, and more specifically the extent to which boilerplate is regulated as contract. It first considers the three categories of the normal, traditional oversight doctrines for contracts: coercion or duress; fraud, deception, or misrepresentation; and invalid contract formation. It then explores the doctrine of unconscionability and a related wild-card doctrine that makes it possible for courts to declare a contract void because it undermines public policy. It also discusses the jurisprudential problem with “wild-card” doctrines before concluding with an analysis of how traditional oversight doctrines are faring with regard to boilerplate rights deletion schemes, with particular emphasis on arbitration clauses, choice of forum clauses, exculpatory clauses, and limitation of remedy.

This chapter examines whether the standard judicial oversight of contract law could be improved to do a better job of alleviating normative and democratic degradation. It first considers whether boilerplate rights deletion schemes are “sturdy indefensibles” and explains why it would be very difficult to enhance the ability of the standard oversight measures of traditional contract law. It then discusses possible improvements to other traditional methods of oversight, focusing in particular on the suggestions of Robert Hillman and Omri Ben-Shahar. It also explores the dilemma that arises when rights deletion is disallowed and concludes with the argument that current oversight measures might be improved by reducing the reliance on sweeping inferences based on assumptions and producing more empirical data that courts would actually take into account.

This book examines standardized form contracts, also known as boilerplate. In the past, “contract” was interpreted as a bargained-for exchange transaction between two parties who each consent to the exchange. Bargained-for exchange represents contract in a world of voluntary agreement—World A (for Agreement). Standardized form contracts, on the other hand, belong to World B (for Boilerplate). World B doesn't fit the theory, the rationale, of contract law. This book explores judicial oversight of boilerplate through the legal doctrines of unconscionability and voidness as against public policy, among others. It also considers the problem of boilerplate rights deletion schemes as well as attempts to bring such schemes under the aegis of traditional contract theories. This chapter provides an overview of worlds A and B as well as varieties of World B contracts, boilerplate as a method of contract formation, and two problems arising from boilerplate: normative degradation and democratic degradation.

This chapter examines the normative degradation caused by the apparent lack of consent to boilerplate. It first considers the varieties of nonconsent to which consent is contrasted, including coercion and its related conceptions of force and duress; fraud, with its allied notions of misrepresentation and deception; and sheer ignorance. It then discusses problematic consent, focusing on situations involving “information asymmetry” and heuristic biases. It also explores strategies of assimilating World B to consent, with particular emphasis on the devolution of voluntary agreement. The chapter shows that consent is problematic even when recipients click a box that says “I agree,” because it remains unclear what they could actually be agreeing to.

This chapter discusses the main streams of contract philosophy in order to elucidate the extent to which boilerplate is a permissible means of creating contractual obligation. In particular, it considers the deep embeddedness—the ineradicability—of the notion of voluntariness. It also compares and contrasts the economic efficiency theory of contract with the various theories based more directly on freedom of the will. The chapter first provides an overview of contract theory, focusing on autonomy (rights) and welfare theories, reliance theory, and equivalence of exchange theory. It then describes the basic premises of the economic theory of law, the role of incentives in maximizing social welfare, contract law, and property and liability rules. It shows that the existing philosophical theories of contract depend on the core notions of voluntariness, freedom of choice, or consent, thus making it difficult to incorporate boilerplate into the theories of contract.

This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, whether all of the rights granted and/or maintained by the state are appropriately considered default rules. It then describes three elements of analysis that can help illuminate how boilerplate waivers should be evaluated: the nature of the right in question and whether that right is alienable; the quality of consent by a recipient; and the extent of social dissemination of the rights deletion. It also examines the effect of nonconsent or market-inalienability on any purported contract, as well as the kinds of rights that are or should be subject to market-inalienability or partial market-inalienability in the presence of problematic consent. Finally, it explores political rights and interests, along with basic human rights and interests.

This chapter considers “private” reform ideas or market solutions for improving the normative and democratic acceptability of boilerplate terms. It begins with a discussion of one potentially important “private” incentive: reputation. Some firms are likely to be especially cognizant of the need to maintain good relationships with their users, and therefore responsive to the threat of reputational harm. This is most likely to be true for firms that have users who are reasonably savvy about issues of user rights, such as data privacy or information copying. After outlining the conditions conducive to consumer pushback, the chapter examines other private or market approaches, such as those involving rating agencies, seals of approval, and certifications. Finally, it looks at automated filtering or “machine bargaining,” and especially the implementation of filtering systems for personal computers.

This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.

This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to provide for disclosure rather than substantive regulation of boilerplate, along with state legislation and judge-made law that goes beyond disclosure to create substantive regulations of contract law in particular areas. It then discusses issues associated with industry-specific regulation; piecemeal “fixes” to current law that may be enacted through legislation, imposed by agency rulemaking, or developed by judge-made law; and hybrid regimes in which private initiatives would be supported or protected by legislation or judge-made law. It also explores regulation in form of black lists, white lists, or grey lists and the problem of piecemeal adjudication. Finally, it looks at comprehensive regulation by drawing on the case of the European Union.

Chapter Six aims to establish ways in which neuroscientific findings can and should better inform the contract doctrine; specifically, it considers challenges to the doctrine of consent. This chapter proceeds by first describing the consent calculus in contract, focusing particularly on the role of boilerplate language in both arm's length and consumer transactions. Seminal cases pertaining to form contracting are used to navigate the common law consent doctrine, especially the modern “clickwrap” nature of consumer consent. The dispositionist nature of contracts is exposed and it is argued that situationism offers a more robust model based on what neuroscience reveals about human agency. The chapter, then analyzes consent in terms of neuroeconomics, explaining the role adaptive mechanisms and emotions play in our decision-making process. The chapter concludes as the consent doctrine stands, many of its assumptions about human agency can be exploited in ways that fail to meet the doctrine’s normative goals.

Preprinted contracts offered on a take-it-or-leave-it basis and signed unread are a ubiquitous feature of modern life. The enforcement of such boilerplate agreements has been widely criticized by legal commentators because the consent offered to the terms seems extremely attenuated. Boilerplate agreements, however, help to foster commerce by allowing for mass production and transactional innovation. The market argument, rather than looking to voluntary consent as the touchstone of contractual legitimacy, argues in favor of enforcing such agreements so long as there are feedback mechanisms in place to prevent their abuse. Voluntary consent provide one such mechanism, but there are others, such as competitive markets and legal regulation. This analysis dramatically downgrades the role of consent in the normative justification of contract law, suggesting that much of the normative debate about boilerplate is wrongly focused on voluntariness and consent.

This chapter develops an analytical framework that could help legal analysts make better decisions about boilerplate in the context of rights deletions deployed by firms against consumers. A great deal of mass-market boilerplate—such as hidden lists of terms that recipients have no idea exist—should not be treated as contractual, and should be regulated by other means. But when courts treat boilerplate as contractual, this chapter encourages them to adopt a better analysis. Two particular features of current doctrine might be improved. The procedural/substantive requirement in unconscionability doctrine is misapplied when a judge ignores the nature of the right based on her conclusion that the quality of consent is adequate, because some rights are market-inalienable. Also, the notion of reasonable expectation should be avoided because it engenders a mischievous positive/normative ambiguity, and seems to license a conclusion that the more something is imposed on people, the more it is permissible.

In today’s USA, transactions between firms and consumers (or businesses in the position of consumers) routinely contain fine-print terms deleting rights to legal remedies against the firm. Remedial rights should not be treated as mere default rules routinely waivable through receipt of fine-print contracts (‘boilerplate’), because such rights deletions threaten the rule of law by undermining rights structures that are central to the state’s obligations toward the public. Boilerplate rights deletions place recipients into ‘quasi-anarchy’, a one-sided situation resembling, for recipients, the anarchy that the state is supposed to supplant. They underwrite a scheme of privatization that amounts to the exercise of arbitrary power over recipients; and they transgress the principle of equality before the law by separating people that retain legal rights from people that do not. Such rights should remain situated in the public realm.

Chapter 37 concerns form contracts. That term refers to a writing that is in the form of a contract (hence the name), some of whose terms were negotiated or at least discussed by the parties, but most of whose terms were prepared by one party without any negotiation, discussion, or even knowledge by the other party. Form contracts consist of two elements. The first element is a real contract and is comprised of terms that were negotiated, or at least discussed and agreed upon, by the parties prior to the contract’s finalization. The second element consists of terms attached to the real contract that were prepared by the form-giver prior to the transaction between the parties, without negotiation, discussion, or knowledge by the form-taker. Such terms are referred to as boilerplate. This chapter considers whether boilerplate should be enforceable.

By allowing firms to foreclose access to the courts and legal remedies through boilerplate rights deletions, the American legal system is failing civil society, and its legal institutions are flouting their fiduciary obligation to the polity and to the American people. In addition firms have an obligation not to deploy boilerplate so as to ‘defect’ unilaterally from the legal infrastructure that makes it possible for firms to function in civil society.