2011 Sullivan Lecture: Margaret Jane Radin

  • Reconsidering Boilerplate: Confronting Normative and Democratic Embarrassment

    Margaret Jane Radin, Henry King Ransom Professor of Law at the University of Michigan 

    Many people enter into contracts every day without knowing it, or at least without being able to do anything about it. If someone wants to buy the product or service—ranging from airline tickets to computer software to use of athletic facilities—he or she is stuck with a set of standardized terms (known as a contract of adhesion, or more colloquially, boilerplate).  Adhesion contracts have long been problematic for the traditional justification of contract enforcement based on voluntary commitment by willing parties. In addition to the normative embarrassment caused by widespread lack of actual consent, mass-market adhesion contracts also give rise to a democratic embarrassment. Mass-market form contracts promulgated by firms to govern the rights of users of products and services are “taking back” rights that are granted through democratic processes and substituting the system of rights that the firm wishes to impose.   It is time to reconsider the problems posed by boilerplate. Are these problems that the market can solve?  Is regulation necessary?  Maybe a hybrid market/regulatory approach would be effective?  (Or should we be content with the status quo?)

    About Professor Radin

    Margaret Jane Radin is the Henry King Ransom Professor of Law at the University of Michigan. Prior to joining the Michigan Law faculty, she was the William Benjamin Scott and Luna M. Scott Professor of Law at Stanford University, and director of Stanford Law School's Program in Law, Science and Technology. Professor Radin received her A.B. from Stanford, where she was elected to Phi Beta Kappa, and her J.D. from the University of Southern California, where she was elected to Order of the Coif. She also holds an honorary LL.D. from Illinois Institute of Technology/Chicago-Kent School of Law, as well as an M.F.A. in music history from Brandeis University. Professor Radin was the inaugural Microsoft Fellow in Law and Public Affairs at Princeton University (2006-7), where she developed a course in patent law and innovation policy for engineers and students of public policy. She is a Fellow of the American Academy of Arts and Sciences.

    Professor Radin is the author of Reinterpreting Property (1993) and Contested Commodities (1996), as well as co-author of a casebook, Internet Commerce: The Emerging Legal Framework (2d ed. 2005, Supp 2010).  Professor Radin’s current research focuses on contract and its role in the system of private ordering.   She is at work on a book re-examining issues related to contracts of adhesion (tentatively entitled “My Way Or The Highway in Contract Law”).  Professor Radin is an amateur flutist who performs as often as possible, and a faculty sponsor of the University of Michigan Law School's Classical Music Society.