Boilerplate: The Foundation of Market Contracts

Boilerplate, the fine print of standard contracts, is more prevalent than ever in commercial trade and in electronic commerce. But what is in it, beyond legal technicalities? Why is it so hard to read and why is it often so one-sided? Who writes it, who reads it, and what effect does it have?

The studies in this volume question whether boilerplate is true contract. Does it resemble a statute? Is it a species of property? Should we think of it as a feature of the product we buy? Does competition improve boilerplate?

Looking at the empirical reality in which various boilerplates operate, leading private law experts reveal subtle and previously unrecognized ways in which boilerplate clauses encourage information flow, but also reduce it; how new boilerplate terms are produced, and how innovation in boilerplate is stifled; how negotiation happens in the shadow of boilerplate, and how it is subdued. They offer a new explanation as to why boilerplate is often so one-sided. With emphasis on empiricism and economic thinking, this volume provides a more nuanced understanding of boilerplate, the 'DNA' of market contracts.

Contents:
I. Why is Boilerplate One-Sided?
1. One-sided contracts in competitive consumer markets - Richard Posner / Lucian Bebchuk;
2. Cooperative negotiations in the shadow of boilerplate - Jason S. Johnston;
3. Boilerplate and economic power in auto manufacturing contracts. Omri Ben-Shahar / James J. White;
4. 'Unfair' dispute resolution clauses: much ado about nothing? Florencia Marotta-Wurgler;
5. Unconventional uses of transactions costs - David Gilo / Ariel Porat;
II. Should Boilerplate be Regulated?
6. Online boilerplate: would mandatory website disclosure of e-standard terms backfire? Robert Hillman;
7. Pre-approved boilerplate. Clayton Gillette;
8. 'Contracting' for credit. Ronald J. Mann;
9. Role of non profits in the production of boilerplate. Kevin E. Davis;
10. Boilerplate paradox. Douglas G. Baird;
III. Interpretation of Boilerplate:
11. Contract as Statute - Stephen J. Choi / Mitu Gulati;
12. Modularity in contracts: boilerplate & information flow. Henry E. Smith;
13. Contra Preferendum: the allure of ambiguous boilerplate. Michelle E. Boardman;
IV. Commentary;
14. Boilerplate today: rise of modularity and waning of consent. Margaret Jane Radin;
15. Law and sociology of boilerplate. Todd J. Rakoff