Regulation Through Boilerplate: An Apologia
You have to salute Peggy Radin. She has said what others who agree with her have for so long been hesitant to utter out loud: the fine print is not a contract. There is no agreement to it, no real consent, not even “blanket assent.” It is nothing but paperwork and should have the legal fortune of junk mail. Those lengthy, unreadable pages with terms and conditions that come prepacked with consumer products or that demand to be clicked (“We Accept”) on computer screens — does anyone really think that they contain arrangements that people knowingly agreed to? How is it, then, that such unreadable and unread documents have become so powerful and effective in regulating the rights and obligations of contracting parties? Entire areas of law — contract default rules, sales law, privacy law, and copyright fair use (to name a few) — have been “deleted” by meticulously drafted documents that replace the pro-consumer provisions of these laws with pro-business arrangements. And if the fine print is so offensive to our legal universe of fair and balanced default rules, why is it so radical to propose that it should be invalid? Is the practice of fine print so deeply rooted in our commerce — so much of our economy relies on the fine print as the ultimate regulation of trade — that it is too big to curtail? Let’s end the pretense, says Radin, and restore a sensible conception of “agreement” to our commercial life. Because boilerplates do not represent informed consent, because they are divorced from our intuitive understanding of agreement, and because they divest people of their democratically enacted entitlements, they degrade the institution of contract that is justified by its respect for individual autonomy and private control. Therefore, boilerplates should be powerless to govern people’s rights. They “should be declared invalid in toto, and recipients should instead be governed by the background legal default rules” (p. 213). And to make sure that firms stop shoving such offensive paperwork in front of people, a new tort of “intentional deprivation of basic legal rights” should operate as a deterrent (p. 211).