March 2006 Vol. 104 No. 5 THE REVIEW

Commentary: The Law and Sociology of Boilerplate

Todd D. Rakoff

In my view, the scholarship presented at this symposium demonstrates that, in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I will call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject awhile back exemplified this methodological approach, but because it took a rather strong substantive position. And so I think I ought first to say a brief word about that.

The article in question concerned contracts of adhesion in, roughly speaking, the consumer context, and the position I took was that what I called the “invisible” terms of those contracts—the large number of terms not disciplined by the actual bargaining or shopping behavior of consumers even in price-competitive markets—ought to be treated by the law as presumptively unenforceable. The burden should be put on drafting firms to show their form terms were worth judicial enforcement rather than on adherents to the forms to show the terms were unconscionable; and if this burden were not met, the courts should apply the general, legally implied default terms instead of the drafter’s terms. This was not then, and is not now, the law, but I would not be candid if I did not say that I still think that, as regards the domain I was addressing, I was right.

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