Book contents
- Frontmatter
- Contents
- Preface
- List of Contributors
- PART ONE WHY IS BOILERPLATE ONE-SIDED?
- PART TWO SHOULD BOILERPLATE BE REGULATED?
- PART THREE INTERPRETATION OF BOILERPLATE
- PART FOUR COMMENTARY
- 14 Boilerplate Today: The Rise of Modularity and the Waning of Consent
- 15 The Law and Sociology of Boilerplate
- Notes
- Index
15 - The Law and Sociology of Boilerplate
Published online by Cambridge University Press: 02 December 2009
- Frontmatter
- Contents
- Preface
- List of Contributors
- PART ONE WHY IS BOILERPLATE ONE-SIDED?
- PART TWO SHOULD BOILERPLATE BE REGULATED?
- PART THREE INTERPRETATION OF BOILERPLATE
- PART FOUR COMMENTARY
- 14 Boilerplate Today: The Rise of Modularity and the Waning of Consent
- 15 The Law and Sociology of Boilerplate
- Notes
- Index
Summary
Editor's Note:In this commentary on the symposium, Todd D. Rakoff concludes that a major theme confirmed by many of the articles is that boilerplate ought to be understood in the particular context in which it operates, rather than in general abstract terms. To generate proper legal results, dynamic models of the various contexts have to be developed; although, we do not think of that as an ordinary judicial task, courts should, in fact, be trusted to conduct such context-specific inquiries.
In my view, the scholarship presented at this symposium demonstrates that in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject a while back exemplified this methodological approach but rather because it took a rather strong substantive position. And so I think I ought first to say a brief word about that.
The article in question concerned contracts of adhesion in, roughly speaking, the consumer context, and the position I took was that what I called the “invisible” terms of those contracts — the large number of terms not disciplined by the actual bargaining or shopping behavior of consumers even in price-competitive markets — ought to be treated by the law as presumptively unenforceable.
- Type
- Chapter
- Information
- BoilerplateThe Foundation of Market Contracts, pp. 200 - 210Publisher: Cambridge University PressPrint publication year: 2007
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