In Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask how it affects the well being and satisfaction of consumers who buy products co-packed with boilerplate.”
According to Ben-Shahar, boilerplate apologists believe that boilerplate is welfare-enhancing because it reduces transaction costs and, presumably, prices. Therefore, he argues, boilerplate is what consumers want anyway – a generalization that Radin disputes. More importantly, it ignores the larger questions raised by Radin’s book regarding the limits of consent: Even assuming that consumers want boilerplate, how much does that matter? Or, to put it differently, Are there limits to consent? Are there some things to which we, as a civilized society, should not permit consumers to consent?
This Essay does not attempt to answer those questions. Rather, it posits that they are unanswerable without a better, more nuanced definition of consent – one that takes into account contracting realities such as contracting environment, contract presentment, the nature of rights affected, and the burdens created by boilerplate.
Nancy S. Kim, Boilerplate and Consent, 17 Green Bag 2d 293 (2014).