Contract and property law professor is an expert on 'boilerplate' contracts forced onto online consumers
By Andrew Stobo Sniderman, JD 2014
Margaret Jane (“Peggy”) Radin, who joins the law faculty as a full professor this fall, wanted to be a musician, so she became a lawyer. It was the 1960s, and she was a graduate student in music in California. She realized that she preferred playing music to teaching music history, but she also knew that orchestras overwhelmingly hired men, in days when orchestras saw gender better than they heard music at auditions. Her epiphany, tempered by realism, let her to a day job as an assistant at a law firm, where she mostly was expected to type fast. She decided: “I’ll go to law school and no one will ever ask me to type again.” Then she began her legal studies; she became fascinated.
Professor Radin has remained a musician—she is a regular performer on the flute and piccolo, and practices daily—but she also became a pioneering legal scholar in contract and property law with a distinguished teaching career at Stanford University, the University of Michigan, and the University of Southern California.
Her work has focused on the limits of property and contracts—from “baby-selling to boilerplate.” She has explored where contracts should not venture and why some areas should not be commodified. Most recently, she has written and lectured extensively about the dangers of boilerplate contracts that regularly vex consumers, especially online. We click “I agree” because we must, she says, but are these really contracts? And if they are, she argues that boilerplate represents an insidious method of “mass-market rights deletion.” Onerous and non-negotiable terms of boilerplate regularly purport to deny consumers the right to sue for negligence, waive rights to jury trial and class action, and narrow legal relief to a forum of the seller’s choice.
A trip to one of Toronto’s recreational axe-throwing venues, for example, requires customers to sign a waiver that indemnifies the business against any gross negligence by its employees. If tort law belongs anywhere, it is probably in a place where alcohol flows and axes are flying. But in this and many other situations, notably with many online transactions, Professor Radin argues consumers face a form of blackmail. The result is a society where “we have millions of people without effective redress of grievances,” which she views as nothing less than a threat to the rule of law and democracy.
Professor Radin, author of more than 80 academic articles and book chapters, and two award-winning books, will teach a course named “Academic Scholarship,” designed to help students publish their work in academic journals. She will also continue to teach an intensive course about boilerplate, and she aims to keep pace with developments in the rapidly shifting digital economy, where there are ever more contracts without meaningful agreement, including exchanges executed by computers.
“There are fewer situations with real deliberating human beings,” she says. “The law is way behind where it needs to be.”
And for those who do not enroll in her courses, you may also catch her this year playing Mahler’s 6th Symphony and more, in the flute section of the Hart House Orchestra.
