by Margaret Jane Radin. New Jersey: Princeton University Press, 2013. 233pp. $35.00 Cloth. ISBN 9780691155333.
Reviewed by Kimberley Fletcher, Department of Political Science, University at Albany, SUNY. Email: kfletch [at] albany.edu.
Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law by Margaret Jane Radin is a lucid, historical, and contemporary evaluation of boilerplate, which is defined as “the fine-print terms and conditions” that we become subject to “when we click ‘I agree’ to buy products or services on the internet,” hire a car, rent an apartment, enter an employment contract, “buy tickets for the theater or sports events,” (p.8) sign up for a cellphone carrier, or even attend an event at a public park (pp.117-119). As consumers we must enter into a legal universe devised by the firm to engage in transactions. Boilerplate is therefore understood as “standardized form contracts,” but ones that by their very nature circumvent legal protections.
Since the law deems boilerplate to be a “method of contract formation” (p.9) this analysis is a valuable, systematic, and insightful examination of an important area of contracts. From the start, Radin quickly insists that boilerplate not only affects each and every one of us but also that these kind of contract consumes all aspects of our modern lives. Most of us, Radin argues, are unaware that as consumers on a daily basis we forfeit our legal rights that we presume are guaranteed, through the legal forms prepared and widely used (Radin might even go so far as to say exploited), by businesses. These documents habitually cancel rights to a jury trial and impose arbitration, which Radin identifies as being favorable to businesses. Records are not kept of the decisions reached in these instances and class actions are not permissible. Other boilerplate state that if a consumer does decide to take the matter through the legal system, he or she must first file suit in a state of the businesses choosing that specifically prohibits class action. So for example, a resident of one state is therefore forced to go to another state to file suit or else give up his or her right to be heard by a court. Not only are these forms widespread, they are rarely read, and rarely understood by the consumer. In fact, as Radin points, we have all, at some time or another “agreed” to boilerplate that do not even require a signature, such as parking lot tickets.
If boilerplate is so pervasive, and a direct infringement on our rights, why don’t consumers read them? Radin’s answer is simple: they would not understand the terms and conditions anyway. Unfortunately, and I think Radin has a valid point here, most consumers believe the forms are unenforceable, or that consumers do no t believe they will be put in a situation where they will need to sue (p.12). These forms are favorable to how businesses operate, and further the courts have found in their favor when cases have made their way into our legal system. The bottom line, Radin notes, even the Supreme Court undermines our [*206] democratically earned rights.
Those entities demanding consumers sign boilerplate call them contracts, even though the vast majority does not read them. Moreover, businesses are cognizant that as consumers we have little choice but to accept the terms and conditions, unless we have a viable alternative to refuse their service or product. Under the rule of law we are purportedly guaranteed legal redress when aggrieved, but as Radin demonstrates throughout, boilerplate habitually denies us opportunities of legal reparation and upsets our laws creating an imbalance of power between the consumer and those supplying the goods and services. Boilerplate points out the disheartening truth about boilerplate. Not only are we not protected by our judicial system, but our legislatures, even though they have attempted at times to enact into law bills that would protect us, boilerplate can simply delete these protections through the convenience of these kinds of ever-present forms. When questions reach a judge concerning whether a boilerplate is legally overreaching, courts in many instances, and in a number of jurisdictions, have excused mere negligence in favor of the business
The book is divided into four parts and presents a thorough account of what boilerplate is and how it impacts consumers’ rights by dividing our world into two parts, which Radin labels as A and B. In world A, a “bargained-for exchange represents contract as it is imagined to be in a world of voluntary agreement” (p.3). By contrast, world B (discussed at length in chapter 11) is understood as consumers entering “into “contracts” daily without knowing it, or at least without being able to do anything about it” (p.8). World B, Radin argues is where boilerplate should be placed. Setting up our world into the ideal and non-ideal, respectively in this way, affords Radin an opportunity to distinguish between the two and demonstrate that there is democratic degradation because of how our rights are violated (covered in chapter 9). Further, because the courts lack institutional competence and will, we must, following Radin’s logic, reconceptualize world B in order to facilitate change. Radin asserts that world B should therefore be reconceptualized as tort and not contract. Quite simply, “the world of boilerplate, doesn't fit the theory, the rationale, of contract” (p.14).
Radin points out that boilerplate is a little bit more complicated than the standard “take it, or leave it” view, because boilerplate are so pervasive: we cannot simply escape them because they impact all aspects of life. However, Radin maintains there are remedies and outlines them in parts III and IV. While some of her suggestions for reform are difficult to implement, and leave us subject to the whims of Congress, Radin also notes that consumers are at fault for failing to take action and assist in overhauling the current system. One remedy however, does seem viable. Radin convincingly reconceptualizes some boilerplate as tort and not contract. And this is where dividing our world into A and B comes into play. Her reasoning for doing so is two-fold. First, is that “receipt of boilerplate is often more like an accident than a bargain” (p.197), which is the underpinning of tort law. And, second, we must recognize that many of the “recipients” of boilerplate “have had rights divested without a consensual undertaking” (p.197). Understanding [*207] boilerplate in this way gives rise to the possibility of regulating such “boilerplate rights deletions” (p.23) under tort law rather than contract law, thereby giving the consumer a stronger hand when seeking redress in the judicial system. The bottom line is that as long as courts continue to treat boilerplate as contract they cannot begin to take into account the widespread impact that boilerplate has on society. Reframing boilerplate as tort law would ultimately swing the balance of rights protections towards the consumer.
Part I is written in layperson’s terms so that anyone without a Juris Doctor can understand what boilerplate is, the significance it has on our rights and the lack of remedies. Radin uses signposts and a clear roadmap as way to help lead the novice through the thick description and legal jargon. Radin even suggests there are certain sections of the book that the layperson can skip and still not lose track of the assertions and argument. To help keep the argument clear, Radin, throughout the analysis consistently points out when particular areas she mentions are discussed in detail by directing the reader back to the chapters that discuss that point. While Radin does a good job of explaining the various aspects of boilerplate, even offering some common examples so the reader can visualize how we are all affected, there are sections of the book that without some knowledge of boilerplate and the theoretical underpinnings of contract law, the layperson can get lost in the discussion of contracts and the theory and debates surrounding its use.
Radin does a nice job leaving the reader with no doubt that this is a complicated issue and one that requires a lot more attention by scholars and citizens at large. She successfully demonstrates boilerplate cannot be avoided and, as such, more needs to be done to change the status quo.
Radin makes some useful corrections to the conventional wisdom and proffers some valuable and analytically sound ways to reconceptualize boilerplate as tort that would grant the everyday user more rights. The book is superbly written, with heavy descriptions and a thorough account of what boilerplates are and their lack of transparency, allowing the layperson a chance to engage with the material and understand the arguments. This would be a very difficult read for undergraduates, but there is value in using some of the great examples provided by Radin in an undergraduate class to facilitate some insightful discussion. It is by no means an easy read. It is complicated and consuming without some background in this area. While the book speaks to both the legislative and judicial branches and how they have hindered consumer rights, and the advantages of private versus public rights being favored by boilerplate this is a book that belongs in the legal community among scholars and in law schools. Although there are merits to this book being aimed at educating those directly affected by boilerplate, it really is intended for advanced scholars and the legal community and could be an invaluable reference for understanding boilerplate, its impact on those “clicking” yes, and how we can make changes albeit through legislation rather than through the legal system. It is the best single reference source on the topic.
Copyright 2013 by the Author, Kimberley Fletcher.