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Private Law and the Rule of Law$
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Lisa M Austin and Dennis Klimchuk

Print publication date: 2014

Print ISBN-13: 9780198729327

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198729327.001.0001

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A Threat to the Rule of Law?

(p.288) 13 Boilerplate
Private Law and the Rule of Law

Margaret Jane Radin

Oxford University Press

In today’s USA, transactions between firms and consumers (or businesses in the position of consumers) routinely contain fine-print terms deleting rights to legal remedies against the firm. Remedial rights should not be treated as mere default rules routinely waivable through receipt of fine-print contracts (‘boilerplate’), because such rights deletions threaten the rule of law by undermining rights structures that are central to the state’s obligations toward the public. Boilerplate rights deletions place recipients into ‘quasi-anarchy’, a one-sided situation resembling, for recipients, the anarchy that the state is supposed to supplant. They underwrite a scheme of privatization that amounts to the exercise of arbitrary power over recipients; and they transgress the principle of equality before the law by separating people that retain legal rights from people that do not. Such rights should remain situated in the public realm.

Keywords:   contracts, boilerplate, fine print, rights deletion, rule of law, legal remedies, arbitrary power, quasi-anarchy

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