"An Analytical Framework for Legal Evaluation of Boilerplate"

Michigan Law Authors
Areas of Interest
Publish Date
Philosophical Foundations of Contract Law
Publication Type
Book Chapter

This chapter develops an analytical framework that could help legal analysts make better decisions about boilerplate in the context of rights deletions deployed by firms against consumers. A great deal of mass-market boilerplate—such as hidden lists of terms that recipients have no idea exist—should not be treated as contractual, and should be regulated by other means. But when courts treat boilerplate as contractual, this chapter encourages them to adopt a better analysis. Two particular features of current doctrine might be improved. The procedural/substantive requirement in unconscionability doctrine is misapplied when a judge ignores the nature of the right based on her conclusion that the quality of consent is adequate, because some rights are market-inalienable. Also, the notion of reasonable expectation should be avoided because it engenders a mischievous positive/normative ambiguity, and seems to license a conclusion that the more something is imposed on people, the more it is permissible.

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