Michelle Boardman Reviews Margaret Radin’s Boilerplate

Michelle Boardman of George Mason has written Consent and Sensibility: A Review of Margaret Jane Radin's Book, 'Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law,' 127 Harvard Law Review  1967 (2014).  Here is the abstract:

In this book, Professor Margaret Radin offers a fresh look at the fit between boilerplate contracts and our notions of consent.  She also builds a case against allowing certain contract terms to create a "rights deletion scheme" aimed at shrinking access to legal redress. 

This review explores both rich lines of analysis but concludes they need not intertwine.  Radin's argument is crafted in the language of consent; I argue that her proposed resolution concerns not consent but welfare.  To the extent the widespread use of redress clauses leads to a collective harm, 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 does not consent but that one is permitted to do so; improving the quality of individual consent will not address the harm.

Taking Radinian consent on its own merits, the review also explores how Radin confronts the challenge of presenting a conception of consent that delegitimizes boilerplate without delegitimizing "ordinary" contractual consent. I compare Radin's approach with other conceptions of consumer consent and offer the possibility of consenting to a continuum of options, where the consumer agrees to a deal ignorant of a specific term but aware of the possible range of terms.

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