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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 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 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.