March 2006 Vol. 104 No. 5 THE REVIEW

The Boilerplate Puzzle

Douglas G. Baird

The warranty that comes with your laptop computer is one of its many product attributes. The laptop has a screen of a particular size. Its microprocessors work at a particular speed, and the battery lasts a given amount of time between recharging. The hard drive has a certain capacity and mean time to failure. There is an instruction manual, online technical support (or lack thereof), and software. Then there are the warranties that the seller makes (or does not make) that are also part of the bundle. Just as I know the size of the screen, but nothing about the speed of the microprocessor, I know about some of the warranty terms that come with the computer and remain wholly ignorant of others.

With respect to some product attributes, the seller will give buyers a choice of options. For a higher price, I can buy a computer with a bigger screen. But with respect to others, there is no choice. A seller may offer laptop computers with only one type of battery. So too with the attributes that are legal terms. A seller may give me a choice: I can buy a service contract that extends the warranty. Other times, there will be no choice, as when the seller specifies that Delaware law governs any contract dispute between us. Similarly, some product attributes are readily apparent to everyone, such as the size of the screen and the availability of an expensive service contract. Other product attributes, like the speed of the microprocessor and the forum selection clause, are apparent only to those who spend time and energy looking for them.

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