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Contract Law

Consent and Sensibility

Do consumers truly “consent” to contractual boilerplate?

Consumer contracts that attach to a product or service are different from negotiated contracts. But what follows from this fact? Professor Margaret Jane Radin invites us to recharacterize consumer form contracts — boilerplate — as involuntarily received “paperwork,” a “rights deletion scheme” aimed at shrinking legal redress, or in the extreme as an intentional tort. Her argument is crafted in the language of consent, but her proposed resolution, I will argue, concerns not consent but welfare. Despite this disconnect, the book is worth reading for two reasons: Radin’s novel view of contractual consent and her focus on the widespread waiver of our default rights to legal redress through boilerplate.

Radin’s target is the body of terms that affect where and how aggrieved consumers can bring a legal claim: arbitration clauses, forum selection clauses, and exculpatory clauses. Her position is that consumers do not, would not, and should not consent to these clauses. Because it is assumed that they would not and should not consent, much of the book is devoted to the argument that consumers do not consent. Radinian consent requires more than current contract doctrine requires. At a minimum it requires a form of highly informed consent; the consumer must have both specific knowledge of each clause and a sound understanding of the effect of the clause. Consent may also require a certain level of choice among alternatives.

Cover for Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

By Margaret Jane Radin. Princeton, N.J.: Princeton University Press. 2013. Pp. 339. $35.00.

When we enforce boilerplate as though it meets the standards of contractual consent, Radin argues, we degrade consent. Combined with the loss of legal redress, enforcement leads to “democratic degradation” (p. 33). Radin could have argued for the direct regulation of redress clauses as a welfare-enhancing solution to democratic degradation. Instead she argues for an autonomy-enhancing consent-based solution enforced primarily by the judiciary.

This Review will explore two primary observations. First, to the extent the widespread use of redress clauses leads to a collective harm — democratic degradation — the issue is not one of individual consent. If the rights at hand are basically inalienable, as Radin holds, the problem is not that one doesn’t consent but that one is permitted to consent. Moreover, improving the quality of individual consent would not address the harm. Radin’s goal is to eradicate or severely limit the relevant clauses. It is only because she assumes that consumers would reject such clauses if they were informed that Radin is willing to use the vehicle of consent to reach the goal of eradication. But Radin is not arguing that we in fact improve the quality of consent through notice, education, or another road; she argues that in the face of nonconsent we should feel free to forbid the clauses. Thus, Radin’s key achievement is not on consent but on the substantive effect of the limited legal redress consumers experience as the result of millions of individual transactions.

Nonetheless, the book’s second contribution is the concept of Radinian consent, which is worth reviewing in its own right. Therefore the second question I explore is how Radin confronts the challenge of presenting a conception of consent that delegitimizes boilerplate without delegitimizing “ordinary” contractual consent. The questions to keep in mind are these: Which of Radin’s objections to boilerplate apply to ordinary agreements? Which of Radin’s consent-based objections are resolved by her solutions?