Blackmailed by the fine print
My niece, the mother of a 3-year-old, told me she felt blackmailed: In order for her child to attend a birthday party at a gymnastics facility for young children, she had to sign a form that included this:
“The undersigned agrees to defend, indemnify, and hold harmless [this facility], its officers, managers, members, employees, servants, agents and coaches/instructors and their successors and assigns from and against all legal liability, claims, suits, damages, losses, and expenses, including attorneys’ fees, threatened or incurred, and arising from the child’s participation, or from any cause whatsoever.”
Forms like this are called boilerplate because they are delivered to us on a take-it-or-leave-it basis. If my niece signed this one, she would relieve the gym of legal liability if her child were harmed at the party. And should she try to challenge the “hold harmless” form, she would be responsible for the facility’s legal expenses if she lost.
Lawyers know (but non-lawyers probably don’t) that such forms may be found to be legally overreaching if the matter ever reaches a court; no business or individual can “contract out” of reckless or grossly negligent or intentionally harmful behavior. When such questions do reach a judge, however, courts in many states will excuse mere negligence, such as a failure to screen employees or maintain equipment or premises properly.
Boilerplate forms are demanded by doctors, gym owners, software manufacturers and many other businesses. Those who demand we sign call it a contract, even though they know few of us are reading it (and most of us won’t fully understand it if we do). They also know we have little choice but to accept their terms, unless we are in a position to refuse their product or service, which often is not the case.
Boilerplate is not just an annoyance. In its contemporary mass-market proliferation, it threatens democratic order and the rule of law. We are supposedly guaranteed legal redress of grievances; that is what it means to live under the rule of law. Yet boilerplate routinely deletes our avenues of legal redress and upends our laws.
The permission form that blackmailed my niece, for example, deletes the law that deters businesses from negligently harming people. Businesses will say they fear frivolous lawsuits and the greedy lawyers who bring them. Yet it is precisely the fear of being sued that is supposed to incentivize everyone to take proper care not to harm people. Even if unmeritorious suits are being countenanced by our courts and juries, which is open to doubt, the cure cannot be to allow businesses to use boilerplate to secede from the social contract.
And what is my niece supposed to do now that she must bear the responsibility of businesses in addition to her responsibility as a parent? She can’t inspect and monitor their equipment and management, nor should she be forced to deprive her child of birthday parties, summer camps or dance lessons.
There are many clever ways boilerplate attacks our right to redress. It may direct the courts to permit a lawsuit only in a jurisdiction chosen by the business, which means that residents of Washington state can be forced to go to Florida or else give up their right to a day in court. Another strategy makes arbitration the sole remedy, deleting the right to jury trial and the right to band together in a class action.
When businesses deploy boilerplate this way, it doesn’t just undermine our individual rights; it undermines democracy. Our legislative representatives engage in political debate and work out compromises. They are supposed to listen to us, their constituents, and we can “vote ‘em out” if we don’t like what they do. But when what the legislature has enacted can be deleted by the simple expedient of boilerplate, all of that is made into playacting. Moreover, well-funded interests that participate in the legislative arena may agree to compromises with their fingers crossed, knowing their “concessions” can be rescinded with boilerplate.
What is to be done? First, it’s important to demand that legislatures, if they have granted a right to consumers, also make it explicitly non-waivable. Judges should find a way to take account of the fact that even though there is only one consumer against the firm before the court, massive numbers of people are having their rights deleted. As long as courts treat boilerplate as a contract — a single “deal” between two parties — it is hard to take account of the widespread effects.
Meanwhile, the next time you’re confronted with “terms and conditions” that seek to take away your right to redress, delete and initial the clause before you sign the form. If the business continues to serve you, a court might consider that it accepted your amendment. Besides, you will at least have lodged a protest. If enough of us do it, firms that want our patronage may change their forms. (Or their competitors may.)
Unfortunately, deleting the clause doesn’t work when you are required to click “I agree” online. But you can use and support online warning systems for lurking bad clauses (see the site Terms of Service; Didn’t Read).
Like my niece, you may still have to submit to blackmail so that your child can go to a birthday party, but you don’t have to do it silently.
Margaret Jane Radin, a professor at the University of Michigan Law School, is the author of “Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law.”
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