What Boilerplate Said: A Response to Omri Ben-Shahar (and a Diagnosis)

This essay responds to Omri Ben-Shahar’s review of my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). Ben-Shahar’s review (available at: http://ssrn.com/abstract=2255161) unfortunately does not convey the nature of this book to possible readers. His preconceptions – reflecting primarily what I call “old-school Chicago”--apparently caused him to believe that some strong version of “autonomy” was the focus of my book. Instead, the book’s purpose is to gather together a broad range of ideas relevant to boilerplate, in order to encourage readers to consider opportunities for improving our theory and practice. It makes detailed suggestions for improving our treatment of boilerplate, including chapters on how judges could improve on unconscionability and public policy decisions, how market initiatives might be harnessed to cabin boilerplate excesses, and how bad boilerplate might be regulated by tort law rather than contract law. Boilerplate does investigate the disjuncture between contract theories’ various commitments to voluntariness and the realities of contemporary practice with respect to mass-market boilerplate; but it does so as backdrop to its main purpose.