By John Masson
In her forthcoming book, Boilerplate, Michigan Law Prof. Margaret Jane Radin dares ask the question, "Would being fatally mauled by hyenas as a result of a company's negligence be enough to overcome the provisions of a standard boilerplate release from liability?"
The answer, she concludes regretfully, is "Nope." Which is all the more stunning, since the hyena anecdote is based on a true story.
Throughout the book, Radin points out that people don't have any real choice about tacitly agreeing to a sheaf of forms before completing even the most benign transaction. And don't get her started on the reams of suffocating fine print users encounter online, where most of us simply resign ourselves and click "Accept" rather than plow through page after page of largely incomprehensible verbiage.
The problem with firms' growing use of boilerplate, Radin says, is that the practice forces us to sign away huge swathes of hard-earned legal rights—important things, like jury trials, or choice of jurisdiction, or the ability to take part in a class action. The result, she concludes, is an erosion of the core rights of citizens that threatens the democratic order.
Boilerplate, due out in December and published by Princeton University Press, stems from the shock Radin felt several years ago when she began encountering multi-page End User Licensing Agreements (EULAs) that pop up automatically when new software is being installed.
"These things that came with the software called themselves contracts, and I thought, 'How can you even enforce these?' They were using things that nobody reads to take away rights," Radin said. "It started with the EULAs, which come onto your screen automatically, and you have to click through them just to be able to use what you've bought."
The more she thought about it, she said, the more worried she became that the proliferation of what amounts to no-choice boilerplate was eroding the bedrock concept underpinning all contracts—that a contract is a binding agreement, freely entered.
"Property and contracts are two things you need to actually run a market," Radin said. "And this book is really about the limits of what can be called a contract. Because they're using contract against the very idea of contracts."
Radin makes suggestions for judicial evaluation of boilerplate when it's challenged in court, and provides a series of constructive suggestions for how consumers can fight back against corporations' growing use of overreaching boilerplate. Many of the advantages companies seek—forcing plaintiffs into arbitration instead of allowing them to go to court, forcing them into judicial venues particularly friendly to the company, and severely limiting their ability to collect damages, among others—have the effect of destroying people's fundamental rights, she writes, and should be disallowed. Radin also notes dryly that the Supreme Court, at least at this point, disagrees with her.
So Radin calls on consumers to mobilize against boilerplate. Nongovernmental organizations should work to raise awareness of the potential catastrophic consequences of acquiescence. Consumers can choose companies that don't take advantage of excessively onerous boilerplate, thus encouraging the free market to nudge firms toward a more just approach.
In Boilerplate, Radin comes up with seven main reasons that many don't read the fine print when it drops on them, or when it pops up on their computer screens. Among those reasons: Some think the company they're dealing with wouldn't include a clause that harmed its customers. Others think anything harmful in the fine print would be unenforceable. Or, most insidiously, they become victims of a proven psychological bias: they blithely presume nothing bad will happen to them, so they'll never need to exercise the legal rights they're signing away.
Until hyenas drag them out of their tent, that is.
Radin, a property and contracts expert who teaches courses in Internet commerce and the evolution of property and contracts in the digital era, is the Henry King Ransom Professor of Law at the University of Michigan Law School.
Read more about Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law.
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