March 2006 Vol. 104 No. 5 THE REVIEW

Modularity in Contracts: Boilerplate and Information Flow

Henry E. Smith

Contractual boilerplate is a little like property. Such a statement might seem like a category mistake. After all, contractual boilerplate language is part of contracts, which, unlike property, are freely customizable by the parties. Contracts create rights between those parties, not against the world at large. Nor do people who devise new boilerplate terms usually have intellectual property in the provisions themselves.

I will argue that, in an interesting and overlooked way, boilerplate is the first way station on the road from contract to property. In particular, boilerplate, like all legal communication, is the result of striking a trade-off between communicating intensively in a narrow sphere or communicating in a more stripped-down formal way in a wider variety of contexts. Contract and property form something close to corner solutions here. Contracting parties are allowed to be as idiosyncratic as they like, but the idiosyncrasies apply simply to their own dealings—usually not to those of third parties. At the other end of the spectrum, property law deals in simple stable signals with a wide currency, but the rules of property eschew a lot of contextual detail. This makes property rights easy to adapt to many contexts and allows those whose expertise is minimal to avoid running afoul of these in rem rights. The simplicity of property rights also helps potential purchasers to inform themselves about the rights in the process of acquiring them.

   //  VIEW PDF
& Other Current Events

How the Gun-Free School Zones Act Saved the Individual Mandate

  For all the drama surrounding the Commerce Clause challenge to the individual mandate provision...

Citing Orin Kerr from MLR Volume 102, the Court addresses the controversy over GPS trackers and the Fourth Amendment

The Supreme Court's opinion in United States v. Jones, on GPS trackers and the Fourth Amendment, cited...

Inside Agency Preemption

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal...

Criminal Sanctions in the Defense of the Innocent

  Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard...

On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral World

The law has long recognized a presumption against criminal strict liability. This Note situates that...
MAILING LIST
Sign Up to Join Our Mailing List