Boilerplate Today: The Rise of Modularity and the Waning of Consent

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of contracts and the waning of consent as the normative basis of legal enforcement. (The latter is also a major theme of my fellow commentator, Todd Rakoff, whose contributions in this field have been preeminent.) In conjunction with these two themes, I will touch upon the interplay of standardization and customization; the dialectic of rules and standards; the collapse of the distinction between the contract and the product it relates to; the problem of shoring up (or replacing?) the liberal notion of freedom of the will; and the allied issue of the political status of the regime of private ordering.