Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, by Margaret Jane Radin (Princeton University Press, 2013) 339 pp.

• Date: 01 June 2015
• DOI: http://doi.org/10.1111/jlse.12031
• Author: Nim Razook
• Published date: 01 June 2015

Journal of Legal Studies Education

Volume 32, Issue 2, 345–362, Summer 2015

Boilerplate: The Fine Print,

Vanishing Rights, and the Rule

of Law, by Margaret Jane Radin

(Princeton University Press, 2013)

339 pp.

Nim Razook∗

I. Introduction

Few anticipated such controversy from a proposed new commercial law.

When Karl Llewellyn submitted his first draft of the Uniform Commercial

Code (or UCC) to Wall Street, the downtown commercial interests screamed

“no.”1Why? Because rather than simply greasing the wheels of commerce, the

draft contained numerous consumer protection provisions.2The downtown

crowd wanted none of this regulation from the likes of a commercial code.

The tension between these two constituencies—Llewellyn, the uptown law

professor from Columbia, and his “academic reformers”3versus the “commer-

cial world downtown”4—pitted a new Code containing numerous business

∗David Ross Boyd Professor and Zinke Chair, Price College of Business, the University of

Oklahoma.

1See Alan R. Kamp, Uptown Act: A History of the Uniform Commercial Code: 1940-1949,51S.M.U.

L. Rev. 275, 277-82 (1998) [hereinafter Uptown]; Alan R. Kamp, Downtown Code: A History of the

Uniform Commercial Code 1949-54,49Buff. L. Rev. 359, 368-78 (2001) [hereinafter Downtown]

(both tracing the history of the preparation and early adoption in the state of New York of the

Uniform Commercial Code).

2Id.

3Kamp, Uptown,supra note 1, at 371.

4Id.

C2015 The Author

Journal of Legal Studies Education C2015 Academy of Legal Studies in Business

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regulations and a significant amount of judicial oversight against libertarian

notions of commercial autonomy and freedom from oversight.5

This brief vignette reminds those who teach contracts and commercial

law of an important and often ignored point involving contracting. There is,

and likely will always be, a tension between judicial oversight and freedom

from such oversight in contract law and policy. Scholars have addressed

this tension in large and comprehensive works and in scores of law review

articles.6In the case of the UCC, the freedom from group wielded sufficient

power to force removal of most of the regulatory provisions. Bernard Broeker,

who represented Bethlehem Steel at the time of this debate, may have felt

vindicated by this decision. In the hearings preceding the Code’s adoption,

Broeker is quoted as stating, “I see no reason why I should not be allowed to

make an unreasonable contract...”7

In Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law,8

Margaret Jane Radin powerfully holds that the freedom of contract group

has prevailed and that consumers are the big losers. Boilerplate, notes Radin,

comprises those nonnegotiable terms found in most standard contracts,

typically formed between those with bargaining power and those without,

about which there is little negotiation or choice.9Those who enter into these

5Id. Kamp colorfully describes the setting this way: “By looking at the record somewhat differently,

the story changes from a long drafting process conducted by two remote, august, and expert

institutions into one characterized by a collision between the two cultures of Uptown and

Downtown. It is an epic in which a radical professor—a fan of folk music, a poet, a supporter of

the New Deal, a devotee of anthropologists and Veblen and Commons, the radical institutional

economists, a despiser of pallid intellectuals who instead preferred "action-direction thinking,"

and a decorated veteran of the German Army of World War I who was about to divorce his second

wife and marry one of his former students—sought to realize his radical, reformist programs for

sales law.” Kamp, Uptown, supra note 1, at 277–78.

6This note cannot begin to list even most of these works, but I have attempted throughout this

article to provide a good mix of sources. See, e.g,. Grant Gilmore, The Death of Contract

(1974) (suggesting that the classical theory of contract underpinned by full freedom of contract

no longer exists); Michael Trebilcock, The Limits of Freedom of Contract (1993) (tracing

the persistent problems such as information and power asymmetry that pose interpretive prob-

lems for courts and scholars); Friedrich Kessler, Contracts of Adhesion, 43 Colum. L. Rev. 629,

630 (1943) (noting the rise of and problems associated with standard contracts); Anthony T.

Kronman, Contract Law and Distributive Justice,89Yale L.J. 472 (1980) (addressing the tensions

between the application of libertarianism and distributive justice in contract law).

7Kamp, Downtown, supra note 1, at 373.

8Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of

Law (2013).

9Id. at 9. Radin labels them contracts, but states that “labeling something a ‘contract’ doesn’t

necessary make it one.” Id. at 10. The term “standard contracts” is the prevailing label for these