Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law

Princeton University Press
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Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order.

Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.

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About the author

Margaret Jane Radin is the Henry King Ransom Professor of Law at the University of Michigan and the William Benjamin Scott and Luna M. Scott Professor of Law, emerita, at Stanford University. Radin is the author of Reinterpreting Property and Contested Commodities.
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Additional Information

Publisher
Princeton University Press
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Published on
Dec 7, 2012
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Pages
360
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ISBN
9781400844838
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Language
English
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Genres
Law / Consumer
Law / Contracts
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Content Protection
This content is DRM protected.
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Read Aloud
Available on Android devices
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Eligible for Family Library

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Mr. B.Vaidyanathan, a Chemical Engineer by profession, and Chief Mentor, Consumer Protection Council, Rourkela, has been associated with the Indian consumer movement, for well over 30 years and has many achievements to his credit, apart from organising a voluntary consumer organisation in the tribal belt of Odisha.
 His single handed initiative through the National Consumer Disputes Redressal Commission (NCDRC), against the short-filling of cooking gas refills, resulted in the upgradation of 184 LPG bottling plants of the three Public Sector Oil Companies, M/s IOCL, BPCL and HPCL.  Towards this upgradation, the Ministry of Petroleum & Natural Gas, Govt. of India, had to spend over Rs. 300 crores.   The mute point is that this upgradation has brought relief to crores of unsuspecting housewives from Kashmir to Kanyakumari.  Though the Supreme Court failed to deliver justice, in terms of compensation and punitive damages payable to a voluntary consumer organisation and to the Consumer Welfare Fund, as prescribed in the Consumer Protection Act, his determined zeal to pursue the matter till the filing of the Curative Petition and thereafter, should be an inspiration for all those young people, who have the nerves and the commitment to pursue social goals.
 Mr. Vaidyanathan has shared his varied experiences in this book, which is a must read not only for the interesting cases narrated therein, but a motivational story, led by an example of ‘Never Say Die’.  This narrative has been made all the more interesting by sharing informative experiences relating to important consultative bodies and how the activists need to work to ensure delivery and what the government needs to do to protect the consumers better.
How mandated disclosure took over the regulatory landscape—and why it failed

Perhaps no kind of regulation is more common or less useful than mandated disclosure—requiring one party to a transaction to give the other information. It is the iTunes terms you assent to, the doctor's consent form you sign, the pile of papers you get with your mortgage. Reading the terms, the form, and the papers is supposed to equip you to choose your purchase, your treatment, and your loan well. More Than You Wanted to Know surveys the evidence and finds that mandated disclosure rarely works. But how could it? Who reads these disclosures? Who understands them? Who uses them to make better choices?

Omri Ben-Shahar and Carl Schneider put the regulatory problem in human terms. Most people find disclosures complex, obscure, and dull. Most people make choices by stripping information away, not layering it on. Most people find they can safely ignore most disclosures and that they lack the literacy to analyze them anyway. And so many disclosures are mandated that nobody could heed them all. Nor can all this be changed by simpler forms in plainer English, since complex things cannot be made simple by better writing. Furthermore, disclosure is a lawmakers' panacea, so they keep issuing new mandates and expanding old ones, often instead of taking on the hard work of writing regulations with bite.

Timely and provocative, More Than You Wanted to Know takes on the form of regulation we encounter daily and asks why we must encounter it at all.

When you visit a website, check your email, or download music, you enter into a contract that you probably don't know exists. "Wrap contracts" - shrinkwrap, clickwrap and browsewrap agreements - are non-traditional contracts that look nothing like legal documents. Contrary to what courts have held, they are not "just like" other standard form contracts, and consumers do not perceive them the same way. Wrap contract terms are more aggressive and permit dubious business practices, such as the collection of personal information and the appropriation of user-created content. In digital form, wrap contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use wrap contracts excessively and in a wide variety of contexts. Courts impose a duty to read upon consumers but don't impose a duty upon businesses to make contracts easy to read. The result is that consumers are subjected to onerous legalese for nearly every online interaction. In Wrap Contracts: Foundations and Ramifications, Nancy Kim explains why wrap contracts were created, how they have developed, and what this means for society. She explains how businesses and existing law unfairly burden users and create a coercive contracting environment that forces users to "accept" in order to participate in modern life. Kim's central thesis is that how a contract is presented affects and reveals the intent of the parties. She proposes doctrinal solutions - such as the duty to draft reasonably, specific assent, and a reconceptualization of unconscionability - which fairly balance the burden of wrap contracts between businesses and consumers.
A proven resource for high performance, the Siegel’s series keeps you focused on the only thing that matters – the exam. The Siegel’s series relies on a powerful Q&A format, featuring multiple-choice questions at varying levels of difficulty, as well as essay questions to give you practice issue-spotting and analyzing the law. Answers to multiple-choice questions explain why one choice is correct as well as why the other choices are wrong, to ensure complete understanding. An entire chapter is devoted to teaching you how to prepare effectively for essay exams. The chapter provides instruction, advice, and exam-taking tips that help you make the most of your study time. A wonderful resource for practice in answering the types of questions your professor will ask on your exam, the Siegel’s Series will prove valuable in the days or weeks leading up to your final.

Features:

Exposing you to the types of questions your professor will ask on the exam, Siegel’s will prove valuable in the days or weeks leading up to your final.A great number of questions at the appropriate level of difficulty—20 to 30 essay Q&As and 90 to 100 multiple-choice Q&As—provide opportunity for you to practice spotting issues as you apply your knowledge of the law. Essay questions give you solid practice writing concise essay answers, and the model answers allow you to check your work. An entire chapter is devoted to preparing for essay exams.In checking your answers to multiple-choice questions, you can figure out where you may have erred: Answers explain why one choice is correct and the other choices are wrong. To help you learn to make the most of your study time, the introductory chapter gives instruction, advice, and tips for preparing for and taking essay exams .The table of contents helps you prepare for exams by clearly outlining the topics tested in each Essay question. In addition, you can locate questions covering topics you’re having difficulty with by checking the index. Revised by law school professors, the Siegel’s Series is updated on a regular basis.
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