Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts––A Two-Part Critique of Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (Part I)

Although her book has achieved great renown, receiving high praise from prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that the book has problems on both doctrinal and normative grounds. In my Article, I summarize the author’s argument on normative degradation, identify my concerns, and propose an alternative formulation. My counter thesis is that both statute and court decisions properly support consumer rights in the area of voluntary consent for mass-market standard form contracts. Besides being the first full-length critique of Boilerplate, this Article also has contributed some original observations to the secondary literature, most prominently identifying a division of authority on whether mutual assent and freedom of contract exist with adhesion contracts. I also provide a solution for these conflicts. Because a valid normative and legal argument must reflect accurate doctrinal principles, I question the views of those commentators praising Radin’s book as a valuable contribution to contract law

Pre-Dispute Arbitration Agreements, Freedom Of Contract, And The Economic Duress Defense: A Critique Of Three Commentaries

Arbitration under the Federal Arbitration Act (FAA) is the most important topic in current contract law and commentary. The Supreme Court has issued eight merits decisions construing the FAA since 2011, the lower state and federal courts issued more than 1,000 decisions considering the FAA in 2014, and there were 81 fulllength articles, notes, and comments on arbitration in the same year. Recently, three commentators, Professor Margaret Jane Radin of the University of Michigan Law School, Professor Nancy S. Kim of the California Western School of Law, and former Lecturer in Law James P. Dawson of the Yale Law School, have proposed the use of an expanded economic duress defense to help consumers combat unfair pre-dispute arbitration agreements. This Article summarizes each commentator’s position and identifies my concerns. While such arbitration clauses can sometimes be unfair, all three proposals are flawed on numerous grounds. The primary problem is that the authors’ revised duress doctrines draw unworkable distinctions between improper coercion of offerees and legitimate bargaining techniques in a free market society. My analysis is the first in the legal literature that comprehensively discusses the connection between the economic duress defense generally and FAA arbitration specifically. As I will demonstrate, the two subject areas emphasize freedom of contract as they promote the necessary certainty and predictability of contractual relations. Thus, they accomplish the proper balance between binding the buyer to the arbitral process he agreed to in the contract and prohibiting the seller from enforcing a bargain if he procured it through unduly coercive tactics

Does Government Contracting Have a Remedies Problem? A Response to Eric M. Singer, Competitive Public Contracts

In his provocative article, Competitive Public Contracts, Eric M. Singer claims that deficient contractor performance is inherent in government contracting. Singer asserts that, “fundamentally,” public purchasing has a “contract-remedies problem”—the absence of both any “credible threat” and any “effective contract remedy to deter or correct [contractor] misbehavior.” Unlike private buyers, who have plausible threats to motivate contractors to perform properly, governments are said to “often” labor under intrinsic and extrinsic limitations that undermine remedial alternatives. Consequently, Singer argues that governments (especially state and local agencies) have no “effective contract remedy” to induce improved contractor performance. Among these “ineffective” remedies, according to Singer, are terminations for default and past performance assessments of contractors. This Response proceeds as follows: Part I disputes Singer’s charge that termination for default fails as a contractor control mechanism. Part II disagrees with Singer’s descriptive claim that agencies “underutilize[]” even “useful” past performance assessments. He contends, without empirical support, that government actors “frequently elect not to advertise” contractor performance failures for fears of both generating bid protests from the slighted firm and impugning the integrity of the procurement officer that awarded the earlier contract. Part III asserts that, besides raising efficiency issues, CDS is not legally workable because it conflicts with the principles of default terminations and contract options. Rather than being inherently problematic, current remedies in government contracting reflect the reality that “[t]he Government wields enormous powers in its contractual relations.

Expanded Merchant Tort Liability, Democratic Degradation, and Mass Market Standard Form Contracts—A Two-Part Critique of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Part II)

Analyzing a difficult subject that pervades contract law and which is vital to the national economy, many scholars have written about boilerplate contracts. With her 2013 book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, Professor Margaret Jane Radin weighs in on the discussion. In a complement to existing contract remedies against abusive boilerplate, she proposes a new tort that she calls “intentional deprivation of basic legal rights.” She also identifies another new tort theory that deems abusive boilerplate to be a defective “product” under the law of products liability. Radin further contends that these merchant practices with their wide scale forfeiture of citizen rights threaten the democratic order previously maintained by the state’s legal rights regime. Radin terms this latter phenomenon “democratic degradation.” Radin’s tort reforms for alleviating this perceived degradation are the focus of this Article. Although her book has achieved great renown, receiving high praise from a number of prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that her reforms have problems on doctrinal and normative grounds. In my Article, I summarize the author’s argument, identify my concerns, and propose an alternative formulation. My counter-thesis is that expanded merchant tort liability is unnecessary and counterproductive. Case law and statutory law already provide courts with effective remedial tools; furthermore, these doctrines take a pro-consumer perspective in key areas of mass market standard form contracting

Pre-Dispute Arbitration Agreements, Freedom Of Contract, And The Economic Duress Defense: A Critique Of Three Commentaries

Arbitration under the Federal Arbitration Act (FAA) is the most important topic in current contract law and commentary. The Supreme Court has issued eight merits decisions construing the FAA since 2011, the lower state and federal courts issued more than 1,000 decisions considering the FAA in 2014, and there were 81 fulllength articles, notes, and comments on arbitration in the same year. Recently, three commentators, Professor Margaret Jane Radin of the University of Michigan Law School, Professor Nancy S. Kim of the California Western School of Law, and former Lecturer in Law James P. Dawson of the Yale Law School, have proposed the use of an expanded economic duress defense to help consumers combat unfair pre-dispute arbitration agreements. This Article summarizes each commentator’s position and identifies my concerns. While such arbitration clauses can sometimes be unfair, all three proposals are flawed on numerous grounds. The primary problem is that the authors’ revised duress doctrines draw unworkable distinctions between improper coercion of offerees and legitimate bargaining techniques in a free market society. My analysis is the first in the legal literature that comprehensively discusses the connection between the economic duress defense generally and FAA arbitration specifically. As I will demonstrate, the two subject areas emphasize freedom of contract as they promote the necessary certainty and predictability of contractual relations. Thus, they accomplish the proper balance between binding the buyer to the arbitral process he agreed to in the contract and prohibiting the seller from enforcing a bargain if he procured it through unduly coercive tactics

Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts––A Two-Part Critique of Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (Part I)

Although her book has achieved great renown, receiving high praise from prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that the book has problems on both doctrinal and normative grounds. In my Article, I summarize the author’s argument on normative degradation, identify my concerns, and propose an alternative formulation. My counter thesis is that both statute and court decisions properly support consumer rights in the area of voluntary consent for mass-market standard form contracts. Besides being the first full-length critique of Boilerplate, this Article also has contributed some original observations to the secondary literature, most prominently identifying a division of authority on whether mutual assent and freedom of contract exist with adhesion contracts. I also provide a solution for these conflicts. Because a valid normative and legal argument must reflect accurate doctrinal principles, I question the views of those commentators praising Radin’s book as a valuable contribution to contract law

Publication rates on the topic of racial and ethnic diversity in dermatology versus other specialties

Background: The population of the U.S. is becoming more diverse every year. The field of dermatology is not following the same trend. Objective: To assess the promotion of diversity in the field of dermatology by analyzing publications focused on diversity, compared to other specialties. Methods: The PubMed database was systematically searched to identify publications focused on diversity from January 2008 to July 2019. The search criteria were as follows: dermatology/radiology/ophthalmology/ anesthesiology/orthopedic surgery/family medicine/ internal medicine/general surgery AND diversity/ diverse/racial/race/ethnic/ethnicity/cultural/culture/competency/competence. Comparisons were made using single-factor ANOVA and two-group t-tests. A qualitative analysis was performed for publications in the field of dermatology. Results: From January 2016 to July 2019, there were 25 publications focused on diversity in dermatology (Mean=6.25, SD=2.06), compared to 6 in radiology (Mean=1.50, SD=1.29, P=0.01), two in ophthalmology (Mean=0.50, SD=0.58, P=0.01), two in anesthesiology (Mean=0.50, SD=1.00, P=0.01), 12 in orthopedic surgery (Mean=3.00, SD=1.41, P=0.04), 23 in family medicine (Mean=5.75, SD=2.22, P=0.75), 9 in internal medicine (Mean=2.25, SD=1.71, P=0.02), and 7 in general surgery (Mean=1.75, SD=0.50, P=0.02). Conclusions: Although the field of dermatology has suffered from a lack of racial/ethnic diversity, efforts to promote diversity via increased publications in the last four years have been stronger in dermatology compared to many other fields