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Mutual Assent, Normative Degradation, And Mass Market Standard Form Contracts––A Two-Part Critique Of Boilerplate: The Fine Print, Vanishing Rights And The Rule Of Law (Part I), Steven W. Feldman

Cleveland State Law Review

Although her book has achieved great renown, receiving high praise from prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that the book has problems on both doctrinal and normative grounds. In my Article, I summarize the author’s argument on normative degradation, identify my concerns, and propose an alternative formulation. My counter thesis is that both statute and court decisions properly support consumer rights in the area of voluntary consent for mass-market standard form contracts. Besides being the first full-length critique of Boilerplate, this Article also has contributed some original observations to the …

Expanded Merchant Tort Liability, Democratic Degradation, And Mass Market Standard Form Contracts—A Two-Part Critique Of Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Part Ii), Steven W. Feldman

Cleveland State Law Review

Analyzing a difficult subject that pervades contract law and which is vital to the national economy, many scholars have written about boilerplate contracts. With her 2013 book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, Professor Margaret Jane Radin weighs in on the discussion. In a complement to existing contract remedies against abusive boilerplate, she proposes a new tort that she calls “intentional deprivation of basic legal rights.” She also identifies another new tort theory that deems abusive boilerplate to be a defective “product” under the law of products liability.

Radin further contends that these merchant practices …