Boilerplate: The Foundation of Market Contracts

doi:10.1017/CBO9780511611179

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 the 'DNA' of market contracts, the boilerplate terms.

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Contents

Frontmatter
pp i-vi
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Contents
pp vii-viii
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Preface
pp ix-xiv
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School
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List of Contributors
pp xv-xviii
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PART ONE - WHY IS BOILERPLATE ONE-SIDED?
pp 1-2
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School
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1 - One-Sided Contracts in Competitive Consumer Markets
pp 3-11
- By Lucian A. Bebchuk, William J. Friedman and Alicia Townsend Friedman Professor of Law, Economics, and Finance, Harvard Law School; Director of the Program on Corporate Governance, Harvard Law School, Richard A. Posner, Judge, U.S. Court of Appeals for the Seventh Circuit
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2 - Cooperative Negotiations in the Shadow of Boilerplate
pp 12-28
- By Jason Scott Johnston, Robert G. Fuller, Jr., Professor of Law and Director, Program on Law, the Environment, and Economics, University of Pennsylvania Law School
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3 - Boilerplate and Economic Power in Auto-Manufacturing Contracts
pp 29-44
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School, James J. White, Robert A. Sullivan Professor of Law, University of Michigan Law School
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4 - “Unfair” Dispute Resolution Clauses: Much Ado About Nothing?
pp 45-65
- By Florencia Marotta-Wurgler, Assistant Professor of Law, New York University School of Law
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5 - The Unconventional Uses of Transaction Costs
pp 66-80
- By David Gilo, Associate Professor of Law, Tel Aviv University, Ariel Porat, Alain Poher Professor of Law and former Dean, Tel Aviv University
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PART TWO - SHOULD BOILERPLATE BE REGULATED?
pp 81-82
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School
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6 - Online Boilerplate: Would Mandatory Web Site Disclosure of e-Standard Terms Backfire?
pp 83-94
- By Robert A. Hillman, Edwin H. Woodruff Professor of Law, Cornell University Law School
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7 - Preapproved Boilerplate
pp 95-105
- By Clayton P. Gillette, Max E. Greenberg Professor of Contract Law and Vice Dean, New York University School of Law
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8 - “Contracting” for Credit
pp 106-119
- By Ronald J. Mann, Ben H. and Kitty King Powell Professor of Business and Commercial Law and Co-Director of the Center for Law, Business, and Economics, University of Texas at Austin School of Law
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9 - The Role of Nonprofits in the Production of Boilerplate
pp 120-130
- By Kevin E. Davis, Professor of Law, New York University
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10 - The Boilerplate Puzzle
pp 131-142
- By Douglas G. Baird, Harry A. Bigelow Distinguished Service Professor of Law and formerly the Dean, University of Chicago Law School
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PART THREE - INTERPRETATION OF BOILERPLATE
pp 143-144
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School
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11 - Contract as Statute
pp 145-162
- By Stephen J. Choi, Murray and Kathleen Bring Professor of Law, New York University, G. Mitu Gulati, Professor of Law, Duke University Law School
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12 - Modularity in Contracts: Boilerplate and Information Flow
pp 163-175
- By Henry E. Smith, Professor of Law, Yale University Law School
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13 - Contra Proferentem: The Allure of Ambiguous Boilerplate
pp 176-186
- By Michelle E. Boardman, Assistant Professor of Law, George Mason University
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PART FOUR - COMMENTARY
pp 187-188
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School
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14 - Boilerplate Today: The Rise of Modularity and the Waning of Consent
pp 189-199
- By Margaret Jane Radin, William Benjamin Scott and Luna M. Scott Professor of Law, Stanford University
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15 - The Law and Sociology of Boilerplate
pp 200-210
- By Todd D. Rakoff, Byrne Professor of Administrative Law, Harvard University Law School
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Notes
pp 211-232
- By Omri Ben-Shahar, Kirkland and Ellis Professor of Law and Economics, University of Michigan Law School
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Index
pp 233-237
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Boilerplate

The Foundation of Market Contracts

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Contents

Frontmatter
pp i-vi

Contents
pp vii-viii

Preface
pp ix-xiv

List of Contributors
pp xv-xviii

PART ONE - WHY IS BOILERPLATE ONE-SIDED?
pp 1-2

1 - One-Sided Contracts in Competitive Consumer Markets
pp 3-11

2 - Cooperative Negotiations in the Shadow of Boilerplate
pp 12-28

3 - Boilerplate and Economic Power in Auto-Manufacturing Contracts
pp 29-44

4 - “Unfair” Dispute Resolution Clauses: Much Ado About Nothing?
pp 45-65

5 - The Unconventional Uses of Transaction Costs
pp 66-80

PART TWO - SHOULD BOILERPLATE BE REGULATED?
pp 81-82

6 - Online Boilerplate: Would Mandatory Web Site Disclosure of e-Standard Terms Backfire?
pp 83-94

7 - Preapproved Boilerplate
pp 95-105

8 - “Contracting” for Credit
pp 106-119

9 - The Role of Nonprofits in the Production of Boilerplate
pp 120-130

10 - The Boilerplate Puzzle
pp 131-142

PART THREE - INTERPRETATION OF BOILERPLATE
pp 143-144

11 - Contract as Statute
pp 145-162

12 - Modularity in Contracts: Boilerplate and Information Flow
pp 163-175

13 - Contra Proferentem: The Allure of Ambiguous Boilerplate
pp 176-186

PART FOUR - COMMENTARY
pp 187-188

14 - Boilerplate Today: The Rise of Modularity and the Waning of Consent
pp 189-199

15 - The Law and Sociology of Boilerplate
pp 200-210

Notes
pp 211-232

Index
pp 233-237

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Boilerplate

The Foundation of Market Contracts

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