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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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Boilerplate: The Foundation of Market Contracts

Edited by: Omri Ben-Shahar

ISBN13: 9780521676380
Published: July 2007
Publisher: Cambridge University Press
Country of Publication: UK
Format: Paperback
Price: £30.99

Despatched in 7 to 9 days.

Boilerplate, the fine print of standard contracts, is more prevalent than ever in commercial trade and in electronic commerce. But what is in it, beyond legal technicalities? Why is it so hard to read and why is it often so one-sided? Who writes it, who reads it, and what effect does it have?

The studies in this volume question whether boilerplate is true contract. Does it resemble a statute? Is it a species of property? Should we think of it as a feature of the product we buy? Does competition improve boilerplate? Looking at the empirical reality in which various boilerplates operate, leading private law experts reveal subtle and previously unrecognized ways in which boilerplate clauses encourage information flow, but also reduce it; how new boilerplate terms are produced, and how innovation in boilerplate is stifled; how negotiation happens in the shadow of boilerplate, and how it is subdued.

They offer a new explanation as to why boilerplate is often so one-sided. With emphasis on empiricism and economic thinking, this volume provides a more nuanced understanding of the ‘DNA’ of market contracts, the boilerplate terms.

Contract Law
Foreword Omri Ben-Shaha
Part I. Why is Boilerplate One-Sided?:
1. One-sided contracts in competitive consumer markets Richard Posner and Lucian Bebchuk
2. Cooperative negotiations in the shadow of boilerplate Jason S. Johnston
3. Boilerplate and economic power in auto manufacturing contracts Omri Ben-Shahar and James J. White
4. 'Unfair' dispute resolution clauses: much ado about nothing? Florencia Marotta-Wurgler
5. The unconventional uses of transactions costs David Gilo and Ariel Porat
Part II. Should Boilerplate be Regulated?
6. Online boilerplate: would mandatory website disclosure of e-standard terms backfire? Robert Hillman
7. Pre-approved boilerplate Clayton Gillette
8. 'Contracting' for credit Ronald J. Mann
9. The role of non profits in the production of boilerplate Kevin E. Davis
10. The boilerplate paradox Douglas G. Baird
Part III. Interpretation of Boilerplate:
11. Contract as Statute Stephen J. Choi and Mitu Gulati
12. Modularity in contracts: boilerplate and information flow Henry E. Smith
13. Contra Preferendum: the allure of ambiguous boilerplate Michelle E. Boardman
Part IV. Commentary
14. Boilerplate today: the rise of modularity and the waning of consent Margaret Jane Radin
15. The law and sociology of boilerplate Todd J. Rakoff.