Contracts With and Without Degradation

• Author: Andrew S. Gold
• Position: Visiting Scholar, Harvard Law School; Professor, DePaul University College of Law
• Pages: 657-677

CONTRACTS WITH AND WITHOUT DEGRADATION

ANDREW S. GOLD∗

I. INTRODUCTION

Margaret Jane R adin’s recent Sulli van Lecture gi ves us a valuable ne w

perspective on mass-market boilerplate contracts.1 Others have noted the

law-like nature of boilerplate contracts.2 Radin gives us a different

approach, however. As she suggests, mass-market boilerplate removes

large swaths of rights, and then replaces them with different sets of rights.3

These rights are often important rights, such as the right to bring suit in a

court of law.4 And, in the world of online transactions, these agreements

are abundant.5 In Radin’s view, mass-market boilerplate thus represents a

normative degradation, and also a democratic degradation.

The alleged normative degradation stems from an absence of consent

(or an absence of the type of consent often thought present in legally

enforceable contracts).6 The democratic degradation relates to the manner

in which mass-market boilerplate supplants the outcomes of democratically

legislated rules.7 Radin contends that mass-market boilerplate deletes

rights which are provided by the democratic process, substituting the rights

Copyright © 2012, Andrew S. Gold.

∗ Visiting Scholar, Harvard Law School; Professor, DePaul University College of Law.

I wish to thank Margaret Jane Radin for very help ful comments regarding her lecture. Any

errors are my own.

1 See Margaret Jane Radin, Reconsidering Boilerplate: Confronting Normative and

Democratic Degradation, 40 CAP. U. L. REV. 617 (2012).

2 See W. David Slawson, Standard Form Contracts and Democratic Control of

Lawmaking Power, 84 HARV. L. REV. 529, 530 (1971) (“The privately made law imposed

by standard form has not only engulfed the law of contract; it has become a considerable

portion of all the law to which we are subject.”); but cf. Mark L. Movsesian, Are Statutes

Really “Legislative Bargains”? The Failure of the Contract Analogy in Statutory

Interpretation, 76 N.C. L. REV. 1145, 1149 (1998) (suggesting, in the statutory

interpretation context, that “a statute differs fro m a contract in fundamental ways”).

3 See Radin, supra note 1, at 633.

4 See id. at 618, 633.

5 See id. at 620.

6 See id. at 625–26.

7 See id. at 633.

658 CAPITAL UNIVERSITY LAW REVIEW [40:657

which private firms choose to impose.8 The products of our democratic

process are basically given short shrift.

To a degree, the concerns raised by Radin’s lecture are empirical. For

example, how do people really view the boilerplate agreements they enter

into on a regular basis? Do they see them as contracts?9 As fully binding?

As meaningless legalese? What is their thinking when they participate in

these legal relationships? Do cognitive biases severely affect consumers’

decision-making in these settings? To fully assess Radin’s arguments,

these types of questions need to be addressed.

Yet we also face important conceptual and normative questions. What

do we mean by consent when we discuss contractual consent? What type

of consent is adequate to avoid a normative degradation? Does the type of

consent allegedly present in mass-market boilerplate qualify as the same

kind of consent our legal system expects for ordinary contracts? Likewise,

is it really a degradation for our democratic system if legislatively-enacted

default rules are removed en masse by mass-market boilerplate? Is it really

a degradation for our democratic system if mass-market boilerplate

functions like a private eminent domain power?

The comments below focus on the conceptual and normative

questions. In doing so, these comments do not attempt to resolve once and

for all whether mass-market boilerplate actually does create a normative

degradation or a democratic degradation. Rather, they suggest some

potential challenges for the arguments Radin offers. Radin may well be

right in her ultimate conclusions—at least as to some mass-market

boilerplate—but there are also reasons to question whether there is

degradation in a substantial subset of cases. Even if there should be no

degradation with respect to this subset, however, Radin’s arguments make

a significant contribution. They give us reason to look much more closely

at the legitimacy of mass-market boilerplate, and that scrutiny is a very

healthy development.

8 See id.

9 The framing of this question may also matter. Cf. id. at 618 n.4 (providing an

anecdote about Radin’s class’s reaction when asked if they had entered into any contracts

during the past week). For example, if asked whether I entered any contracts last week, my

first reaction might be “No.” If asked specificall y whether the click-wrap agreement I

recently entered into is a contract, my first reaction would be “Yes.” My reacti ons may

well be anomalous, but the point is that the precise questions and their ordering could affect

the answers given.