Intensive Course: Adhesion Contracts: The Perils of Clicking "I Agree" (LAW447H1S)

Contracts of adhesion, known as boilerplate, are pervasive in contemporary life.  Yet mass-market boilerplate, which we hardly every read, is problematic from the point of view of the underlying theory of contract, which involves agreement to a bargained-for exchange between two parties.  In this seminar we examine the theories, practices, and legal status of boilerplate.  How does boilerplate square with contract theory?  Is enforcement of boilerplate justified by some version of consent by recipients?  By economic efficiency? Is widespread use of boilerplate harmful to the rule of law and democratic ordering? Can we devise better practices for protecting the rights of those who become subject to boilerplate, particularly in the online context?  Should boilerplate used between commercial parties be treated differently from boilerplate between a firm and consumers?  How does boilerplate in digital commerce fit with contract law and the normative and political justification for enforcement?  How can we tell the difference between "good" and "bad" boilerplate?  We will review current legal regulation of boilerplate, and consider possible new methods of boilerplate evaluation and oversight, including possible market and user initiatives, regulatory interventions, and improvement of adjudication.  This seminar will probably be most appropriate for students interested in contract theory and for those interested in examining the US approach to boilerplate and comparing it with other approaches, either in use elsewhere or proposed.