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)

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 secondary literature, most prominently identifying a division of authority on whether mutual assent and freedom of contract exist with adhesion contracts.

I also provide a solution for these conflicts. Because a valid normative and legal argument must reflect accurate doctrinal principles, I question the views of those commentators praising Radin’s book as a valuable contribution to contract law.