- Boilerplate, the Fine Print, Vanishing Rights, and the Rule of Law by Margaret Jane Radin
margaret jane radin Princeton: Princeton University Press 2013*
In Boilerplate, the Fine Print, Vanishing Rights, and the Rule of Law, Margaret Jane Radin offers a brilliant exposé of the phenomenon of boilerplate,1 those legal terms to which we agree without doing so. Radin unravels with great perspicacity the broader and insidious effects of boilerplate terms, and why increasingly they should be of concern. Radin’s first claim is that our inability to address properly the absence, or problematic nature, of consent to boilerplate terms leads to a normative degradation. Radin’s second main argument is that the omnipresent mass-market deployment of boilerplate ‘rights deletion schemes’2 ultimately leads to a democratic degradation. Where many before have embraced boilerplate terms for their alleged efficiency, or surrendered to the status quo,3 Radin offers a [End Page 136] radical reconceptualization of boilerplate through tort law, and proposes a framework of analysis to assess the enforceability of boilerplate terms, together with various regulatory solutions.
One resonating theme in the book is our failure to grasp the proper role of the state in regulating the private sphere, which, in turn, threatens private ordering itself. Reflecting on the central role that the state needs to play to allow the private sphere to flourish, Radin challenges head-on pre-conceived views and biases against the state’s ability to regulate private transactions efficaciously.4
Radin’s first claim is that the questionable presence of voluntariness surrounding boilerplate terms, from sheer ignorance to problematic consent, leads to normative degradation. An involuntary agreement is a contradiction in terms (19), signalling the shift away from the universe of traditional agreements.5 For Radin, the erosion of voluntariness in boilerplate lets go of our commitment ‘to the moral premise that justifies our legal structure of contract enforcement . . . that people who enter contracts are voluntarily giving up something in exchange for something they value more’(15). A legal system that allows taking away the right of others without their consent (even with compensation) goes against the fundamental premise that ‘private eminent domain’ is normally not allowed (see 15, 31, 74–5).
Radin’s second main argument is that boilerplate, as a mass-market system of contracts, leads to democratic degradation by undermining the rights granted to recipients by the polity through democratic processes in [End Page 137] favour of terms that are preferable to the firm. Not all clauses in contracts of adhesion are of concern; only those widely deployed rights-deletion schemes that are implemented for the benefit of the firm (33).
One of Radin’s most compelling insights in explaining why boilerplate terms ultimately lead to democratic degradation is our lost sense of the respective roles of the private and public spheres. Radin asks, ‘How can the realm of private ordering be maintained by the public order in a way that enhances the freedom of individuals, if the public order is itself dissolved into the private?’ (45). Private actions are legitimatized within limits that are set by the state, whose role is to enforce or annul them; for example, fraud or duress will make contracts invalid, while the breach of a binding contract can give rise to remedies enforced by courts. The enforcement of boilerplate rights-deletion schemes diminishes the importance of political debate, opposing forces, procedures, and carefully crafted compromises that went into the laws that create the rights that are being erased. It makes a mockery of the apparatus of democratic governance (40).
One of the book’s valuable contributions is a framework of analysis to help determine which boilerplate clauses should be upheld and which should be non-enforceable. The framework offers a nuanced approach that does not advocate for the complete eradication of boilerplate, as some of Radin’s critics have suggested (33).6 The three parameters of the framework are (i) whether the rights are alienable, (ii) the quality of the recipient’s consent (from clear non-consent to clear consent), and (iii) the extent of social dissemination of the rights-deletion...