At Ralph Nader’s Breaking Through Power conference in Washington, D.C. last week, Margaret Jane Radin took to the podium to propose a new tort — deceptive deprivation of core legal rights.
Radin is a professor emeritus at Michigan Law School and author of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law.
“When a business uses boilerplate to relieve itself of its duties of due care, it damages the system of basic rights of individuals that enable civil society and that civil society is supposed to support,” Radin said.
Are companies that deploy mass-market boilerplate rights-deletion clauses engaging in a deceptive practice?
“I believe they are,” Radin said. “Consider an analogy with deceptive advertising. Businesses can be held liable in tort for unfair competition if they employ bait-and switch tactics, hide fees and surcharges, manipulate measuring units, use oversized packaging, use misleading illustrations, and anything else that deceives consumers. Consumers’ misunderstanding of an advertisement may sometimes be considered deceptive even if the business did not deploy deceptive tactics on purpose. And I believe that implicit in the idea of liability for deceptive advertising is the understanding that large numbers of people may be deceived, because advertising is often a mass-market phenomenon.”
“By analogy, there is a good case for finding businesses that deploy mass-market deceptive boilerplate to be liable in tort. With fine print, it is not merely the case that the customer will make a mistake about the actual price of a product or service. Although we must recognize that mischievous food or drug advertising can hurt or even kill people.”
“With fine print rights deletions, those who lose their right to pursue legal recourse may lose their homes or have to forego necessary medical care. They may find themselves or their children negligently injured by a firm whose boilerplate clause excluding liability has diminished its response to the deterrence that the law is supposed to provide.”
“But what if, as we know, most people do not read the fine print they receive? Can mass-market deployment of boilerplate rights deletions be considered deception when the boilerplate is not even read? Can a person be deceived by a text of which she is unaware? I think the answer to this question has to be ‘yes.’ Unlike with deceptive advertising, a primary deception with mass-market boilerplate rights deletions is the fact that rights are being erased without the customer’s knowledge. The deception in this situation is a mistaken belief, common to many customers, that a business would not use indecipherable boilerplate to divest core rights. Thus, the business is in effect charging a misleading price. The recipient will most often think she is trading only money to the company in return for her purchase, but she is really trading money plus valuable rights.”
“Even assuming we could all read and understand the boilerplate delivered to us in such profusion, we cannot spend our lives protecting ourselves from all of the self-exonerated businesses that we deal with. It is not merely that we have better uses for our time. Imagine the situation if parents must protect their children by investigating the maintenance and employment policies and employee histories of the recreation facility and the summer camp and the day care facility, if they must also protect their infirm parent from the mistakes and neglect of untrained and overworked staff at the retirement facility, if they must investigate the record of every business they deal with. There would scarcely be time for trying to lead a normal life.”
“We ought not to be required to go to such lengths to protect ourselves. We could not do this very well even if we tried. That is what civil society is for. And that is what tort law is for, among other legal protections such as due process of law.”
“Legal redress of grievances is at the core of civil society, it is how we avoid being trapped in the ‘state of nature.’ Hampered by cognitive biases and the burdens of life’s priorities, recipients of boilerplate are in the position of having their vulnerabilities catalogued and systematically exploited by businesses.”
“What is to be done? I think that US courts should recognize a remedy in tort against a business deploying mass-market boilerplate denying access to legal redress of grievances. That would apply to boilerplate that excludes all legal redress, such as the clause met by Katie when she wanted to take Audrey to a birthday party. It would also apply to boilerplate that specifies that legal action must take place in a place convenient for the business but inaccessible for the customer. We could debate about other things to include.”
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
“Tort law is one way to fight back against massive deletions of the core rights that undergird civil society. It is a better way to fight back than using contract law. An important reason is that contract is imagined as an agreement between two parties, which means that cases are considered one by one. Occasionally a court will declare a clause unconscionable. But unconscionability is a wild card, because we cannot predict when it will be an accepted defense for an individual party, and it does not much benefit other injured parties, if at all. It is unrealistic to view mass-market rights deletions as millions of separate identical contracts. It is more realistic to view them as a deceptive business practice.”