By Anny Vexler
On March 21, 2011, Professor Margaret Jane Radin gave the 2011 Grafstein Annual Lecture in Communications to law students and faculty and other members of the University of Toronto community. Radin discussed the problems associated with boilerplate contracts and offered solutions.
Radin is Henry King Ransom Professor of Law, University of Michigan Law School, William Benjamin Scott & Luna M. Scott Professor of Law, emerita, Stanford University and currently an Affiliate of the Centre for Innovation Law and Policy, University of Toronto Faculty of Law. The Grafstein Lecture series was established by Senator Jerry S. Grafstein, Q.C., Class of 1958. Radin’s lecture was hosted by the Centre for Innovation Law and Policy.
According to Radin, although boilerplate is a fact of contemporary life, it is problematic both from a normative and democratic perspective. Often, when we buy a product or service, we are stuck with a set of standardized terms (known as a contract of adhesion, or more colloquially, boilerplate). Boilerplate is proliferating immensely in the networked digital environment. We are clicking “I agree” to terms we do not read, and would not understand if we did. We are allegedly made subject to terms interior to websites without even realizing they exist.
Normative embarrassment
As Radin noted, courts are in the habit of considering boilerplate contracts as contractual. However, from a normative point of view, such contracts are hard to reconcile with freedom of contract. They are problematic for the traditional justification of contract enforcement, because consent by the recipient is lacking or at least dubious. People are giving up significant legal rights without realizing they are doing so. Such purported contracts cause a normative embarrassment for the ideals upon which the legal system is based.
Democratic embarrassment
Radin also discussed how boilerplate undermines principles of democratic ordering. According to Radin, mass-market adhesion contracts cause a democratic embarrassment because they replace the law of the state with the “law” of the firm. Firms use boilerplate to create for themselves an alternative legal universe which recipients must enter if they want to buy a firm’s product or service. When firms use boilerplate to divest recipients of entitlements enacted by democratic processes, those processes lose their significance.
Solutions
Radin then explored what can be done to ameliorate boilerplate’s normative and democratic embarrassments. One of her proposals involved looking to tort law for answers. Rather than go the route of asking judges to void boilerplate under contract law on the grounds of unconscionability or public policy, Radin suggested reconceptualising boilerplate under tort law. She proposed a new tort to cover the injury boilerplate creates when it deprives consumers of legal rights without their consent or, in many cases, without their knowledge.
The audience was clearly inspired by Radin’s lecture. Many asked questions, on topics ranging from her personal experience with boilerplate to competition law issues to solutions to boilerplate involving legislative change.
Radin is working on a book that will incorporate and elaborate on some of the thoughts presented in her lecture.
Anny Vexler is a lawyer and research associate at the Centre of Innovation Law and Policy at the University of Toronto Faculty of Law.
