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BoilerplateThe Fine Print, Vanishing Rights, and the Rule of Law$
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Margaret Jane Radin

Print publication date: 2012

Print ISBN-13: 9780691155333

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691155333.001.0001

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Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?

Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?

(p.99) Chapter Six Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?

Margaret Jane Radin

Princeton University Press

This chapter examines whether boilerplate rights deletion schemes can be justified by the “contract-as-product” theory. The contract-as-product theory attempts to sidestep the issue of consent by denying that a particular set of contracted terms is an individual transaction requiring consent in the traditional sense. According to this view, whatever adhesion terms accompany the purchase of a product should actually be conceived of as part of the product. The chapter considers how choice or consent by the recipient enters into the contract-as-product view, and how information asymmetry and heuristic biases render erroneous the assumption of economic rationality. It argues that contract-as-product theory cannot suffice to validate boilerplate in general, or even presumptively.

Keywords:   boilerplate rights, contract-as-product theory, consent, contract, choice, information asymmetry, heuristic biases, economic rationality, boilerplate

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