Robin Bradley Kar of Illinois and Margaret Jane Radin of Toronto and Michigan have written Pseudo-Contract & Shared Meaning Analysis. Here is the abstract:
Over the last several decades, courts have struggled with when to enforce boilerplate text as contract. An example is the copious digital text that consumers receive links to before clicking “I agree” to a purchase. Everyone knows that recipients rarely read this boilerplate text and would not understand it if they did. Still, given recent revolutions in digital contracting, many courts and scholars see no choice now but to absorb all boilerplate text into contract with relaxed requirements of “assent.” In a series of moves reminiscent of the ancient theory of “epicycles,” which tried to square geocentric theories of planetary motion with recalcitrant observation, contract law has been shifting away from its traditional focus on enforcing parties’ actual agreements. This shift is sufficiently well underway, and has been transforming the meanings of enough central contract law terms and concepts, to diagnose an unconscious paradigm slip from contract (or a legal regime rooted in actual agreement) into what we call “pseudo-contract” (or a system of private obligations created unilaterally without actual shared agreement).
The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, normative and doctrinal problems. The full scope and interwoven nature of these problems has not yet been sufficiently appreciated, and the problems are only building as the use of boilerplate text expands. A major intrusion into the traditional sphere of contract law and modern market activity has gone largely unrecognized; or, at least, its true nature has escaped notice. These doctrinal facts are inviting expanding forms of market deception, which are hard to discern when hidden under the false mantel of “contract.”
To resolve these problems, we develop a more nuanced and coherent method of analysis—“shared meaning analysis”—which courts can use to determine when any particular piece of boilerplate text does, and does not, contribute meaning to a contract. Shared meaning analysis draws on the well-known linguistic distinction, first treated rigorously by the philosopher of language Paul Grice, between “speaker meaning” and “sentence meaning.” Parties and courts implicitly rely on this distinction in a broad range of contract settings, and the distinction is critical for a proper identification of the scope and content of parties’ actual agreements. Indeed, closer attention to this distinction is critical to understand what contract and freedom of contract are. We develop the resources needed to prevent contract from slipping into pseudo-contract—or, put differently, to rescue a realm of private ordering from deteriorating into something different and normatively problematic.
