Foundations of Market Contracts Symposium
It is tempting to open this symposium with yet another “boilerplate” salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. If I were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the “law of negotiations” and “product regulation.” The former is the body of doctrines that determine the legal consequences of bargaining behavior; the latter is the assortment of substantive limitations on terms of bargains, some general to all contracts, others industry-or area-specific. I would then have argued that the study of standard form belongs to the latter, not the former, and that this distinction can help overcome many difficulties in contract law doctrine.
Such would surely be an appropriate overture for a conference on boilerplate. Boilerplate, recall, is the building blocks of standard-form, nonnegotiated contracts. The enforceability of boilerplate is very much the legal locus where the philosophical debate over the regulation of markets hits the road. Boilerplate employment arbitration terms, for example, are the core of one of the most intriguing and fundamental debates in current contract law over the scope of the unconscionability doctrine.