March 2006 Vol. 104 No. 5 THE REVIEW
ARTICLES

Foreword

Omri Ben-Shahar

 

"Boilerplate":
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.

 

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One-Sided Contracts in Competitive Consumer Markets

Lucian A. Bebchuk & Richard A. Posner
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Online Boilerplate: Would Mandatory Website Disclosure of E-Standard Terms Backfire?

Robert A. Hillman
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The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation between Businesses and Consumers

Jason Scott Johnston
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"Contracting" for Credit

Ronald J. Mann
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The Boilerplate Puzzle

Douglas G. Baird
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Boilerplate and Economic Power in Auto Manufacturing Contracts

Omri Ben-Shahar & James J. White
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The Hidden Roles of Boilerplate and Standard-Form Contracts: Strategic Imposition of Transaction Costs, Segmentation of Consumers, and Anticompetitive Effects

David Gilo & Ariel Porat
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The Strategy of Boilerplate

Robert B. Ahdieh
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The Role of Nonprofits in the Production of Boilerplate

Kevin E. Davis
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Contra Proferentem: The Allure of Ambiguous Boilerplate

Michelle E. Boardman
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Contract as Statute

Stephen J. Choi & G. Mitu Gulati
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Modularity in Contracts: Boilerplate and Information Flow

Henry E. Smith
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Commentary: Boilerplate Today: The Rise of Modularity and the Waning of Consent

Margaret Jane Radin
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Commentary: The Law and Sociology of Boilerplate

Todd D. Rakoff
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