Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law
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So for example, a resident of one state is therefore forced to go to another state to file suit or else give up his or her right to be heard by a court. Not only are these forms widespread, they are rarely read, and rarely understood by the consumer. Unfortunately, and I think Radin has a valid point here, most consumers believe the forms are unenforceable, or that consumers do no t believe they will be put in a situation where they will need to sue p.
These forms are favorable to how businesses operate, and further the courts have found in their favor when cases have made their way into our legal system. Those entities demanding consumers sign boilerplate call them contracts, even though the vast majority does not read them.
Moreover, businesses are cognizant that as consumers we have little choice but to accept the terms and conditions, unless we have a viable alternative to refuse their service or product. Under the rule of law we are purportedly guaranteed legal redress when aggrieved, but as Radin demonstrates throughout, boilerplate habitually denies us opportunities of legal reparation and upsets our laws creating an imbalance of power between the consumer and those supplying the goods and services.
Boilerplate points out the disheartening truth about boilerplate. Not only are we not protected by our judicial system, but our legislatures, even though they have attempted at times to enact into law bills that would protect us, boilerplate can simply delete these protections through the convenience of these kinds of ever-present forms. World B, Radin argues is where boilerplate should be placed. Setting up our world into the ideal and non-ideal, respectively in this way, affords Radin an opportunity to distinguish between the two and demonstrate that there is democratic degradation because of how our rights are violated covered in chapter 9.
Radin asserts that world B should therefore be reconceptualized as tort and not contract.
Tort Law and Mass Deception by Fine Print
While some of her suggestions for reform are difficult to implement, and leave us subject to the whims of Congress, Radin also notes that consumers are at fault for failing to take action and assist in overhauling the current system. One remedy however, does seem viable. Radin convincingly reconceptualizes some boilerplate as tort and not contract. With fine print, it is not merely the case that the customer will make a mistake about the actual price of a product or service.
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Although we must recognize that mischievous food or drug advertising can hurt or even kill people. They may find themselves or their children negligently injured by a firm whose boilerplate clause excluding liability has diminished its response to the deterrence that the law is supposed to provide. Can mass-market deployment of boilerplate rights deletions be considered deception when the boilerplate is not even read?
Can a person be deceived by a text of which she is unaware? The deception in this situation is a mistaken belief, common to many customers, that a business would not use indecipherable boilerplate to divest core rights.
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Thus, the business is in effect charging a misleading price. The recipient will most often think she is trading only money to the company in return for her purchase, but she is really trading money plus valuable rights. It is not merely that we have better uses for our time.