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January 16, 2014 Articles

Book Review: Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

Don't forget to read the fine print.

By Dennis Owens

Margaret Jane Radin
Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law
Princeton University Press

We have all clicked on “I agree.” When we buy anything, from a TV to a home, we sign that printed contract without reading it. And we sign away our rights, possibly even very real potential claims. We require ourselves to bring suit in a venue far away, we waive jury trials, we relieve the seller from legal duties. Professor Radin, who teaches law at the University of Michigan, asks: “Is this fair?” Should courts enforce provisions that buyers never even knew about?

Why do we not read boilerplate? The author gives seven reasons.

One, we would not understand the terms if we did read them, so it is not worth our time. It is true that most of us would not understand the terms.

Two, we need the product or service and have no access to a supplier that does not impose onerous boilerplate clauses, so reading the terms would not make any difference. It is often true that identical boilerplate is deployed by every seller in a market.

Three, we are not even aware that we are becoming subject to these terms, so we do not know that there is anything to read. Few people know what is lurking behind “TOS” links on a website.

Four, we trust the company not to have included anything harmful. This is a trust that is often misplaced.

Five, we suppose that anything harmful would be unenforceable. This is false. Boilerplate rights deletions are routinely enforced.

Six, we think that the company has power over us, so that we are simply stuck with what it imposes on us. This is often true. Most consumers have had this experience with one or another seller.

Seven, we just do not believe that we will ever need to exercise our background legal rights. We think misfortune happens to others, not to ourselves. Failure to understand risk seems to be a stubborn psychological characteristic of humans.

The author argues that the courts’ approval and enforcement of boilerplate provisions has degraded traditional notions of consent, agreement, and contract. She examines how fine print destroys people’s expectations of rights and fair dealing. Particularly interesting is a study of the rationales for boilerplate: The buyers did freely consent to those terms, and efficient business practice demands that the seller’s expectations be enforced. The author persuasively demonstrates that these explanations do not measure up.

She presents a comprehensive study of how boilerplate has fared in the courts. Generally, the courts endorse it unless they are outraged with it, calling contracts that are too one-sided “unconscionable.” In response to this, Professor Radin proposes new analytical frameworks.

Boilerplate itself is often nearly unreadable and intentionally so. This book is highly readable. Indeed, it is beautifully written, clearly stating its cogent case. This book is imaginative, highly interesting, and very thoughtful. It is well worth your time.

Keywords: litigation, appellate practice, boilerplate, fine print, consumer rights

Dennis Owens practices appellate law in Kansas City, Missouri.

Copyright © 2014, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).