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)

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 with their wide scale forfeiture of citizen rights threaten the democratic order previously maintained by the state’s legal rights regime.

Radin terms this latter phenomenon “democratic degradation.” Radin’s tort reforms for alleviating this perceived degradation are the focus of this Article. Although her book has achieved great renown, receiving high praise from a number of prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that her reforms have problems on doctrinal and normative grounds. In my Article, I summarize the author’s argument, identify my concerns, and propose an alternative formulation. My counter-thesis is that expanded merchant tort liability is unnecessary and counterproductive.

Case law and statutory law already provide courts with effective remedial tools; furthermore, these doctrines take a pro-consumer perspective in key areas of mass market standard form contracting.