Earlier this month, Professor Margaret Jane Radin put out a new book called Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law. Publisher Princetion University Press describes Professor's Radin's argument as follows:
Margaret Jane Radin examines attempts to justify the use of boilerplate
provisions by claiming either that recipients freely consent to them or
that economic efficiency demands them, and she finds these
justifications wanting. She argues, moreover, that our courts,
legislatures, and regulatory agencies have fallen short in their
evaluation and oversight of the use of boilerplate clauses. To improve
legal evaluation of boilerplate, Radin offers a new analytical
framework, one that takes into account the nature of the rights
affected, the quality of the recipient's consent, and the extent of the
use of these terms. Radin goes on to offer possibilities for new methods
of boilerplate evaluation and control, among them the bold suggestion
that tort law rather than contract law provides a preferable analysis
for some boilerplate schemes. She concludes by discussing positive steps
that NGOs, legislators, regulators, courts, and scholars could take to
bring about better practices.
The Wall Street Journal reviewed the book yesterday and discussed some of boilerplate's implications for the legal system.
