Vol. 106 Issue 2

The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use. This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to set boilerplate aside, then, they confront a dichotomy: either enforce boilerplate terms or wreak havoc on the consumer economy. When the choice is so presented, it is no choice at all. Living with boilerplate is better than living without mass-market commerce. We would rather be naked than dead. This Article shows that the dichotomy is false. First, the Article establishes that it is possible doctrinally to sever boilerplate from other terms of the consumer transaction, such that the transaction can still proceed. Second, it demonstrates that the resulting transaction is theoretically feasible. When default rules take boilerplate’s place, the result is either no significant economic disruption or economic disruption that shakes things up in a positive way. Finally, it shows that this approach is empirically viable. I use a case study of boilerplate contracts from a real-world consumer purchase to prove that there is a realistic third option: the boilerplate-free transaction.

The proliferation of adult criminal records and their harmful impact on people with convictions has received growing attention from scholars, the media, and legislators from both sides of the political aisle. Much less attention has been given to the far-reaching impact of juvenile delinquency records, partly because many people believe that juvenile records are not public, especially after a juvenile turns eighteen. That common notion is a myth. This Article addresses that myth and adds to both the juvenile justice and collateral consequences literature.

Since 1945, the Supreme Court has given binding respect to a federal agency’s interpretation of its own regulation unless the agency’s construal is incorrect. This principle is commonly known as either Auer or Seminole Rock deference, named after the two cases most often associated with the doctrine’s canonical formulation—that an agency’s regulatory construction is of “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Although this strong form of deference has existed for more than seventy years, it has become the subject of an intense academic debate only in the last two decades and the polemics have created practical consequences. In 2013, for example, Chief Justice John Roberts announced that the Supreme Court has “some interest in reconsidering” the doctrine. In the current 115th Congress, the House of Representatives has passed legislation that would replace Auer deference with de novo review and the Senate is considering a bipartisan companion bill that would replace Auer deference with non-binding judicial respect.

Recent incidents of police violence against unarmed African-Americans and the lead-filled water of Flint, Michigan are only the most recent reminders of what it means to live as a black person today in the United States. Being black increases the odds of living in poverty, attending failing schools, experiencing housing discrimination, being denied a job interview, being stopped by the police, receiving inferior medical care, living in substandard conditions and polluted environments, being unemployed, receiving longer prison sentences, and, ultimately, having a lower life expectancy. Although we do not think of being black in the United States as disabling, this Article argues that it may be appropriate to do so. As provocative as it might seem, understanding the black racial designation as disabling can bring new clarity to the reality that racial categories in the United States were created explicitly to serve as a caste system to benefit some and disable others. It also opens up an entirely new approach to how the law should attend to race discrimination and structural inequality: disability law.

How should courts evaluate the truth or falsity of corporate speech about science? This question is critical to antifraud actions like the ongoing state investigations into whether ExxonMobil misrepresented scientific knowledge regarding global climate change. ExxonMobil claims that these investigations chill scientific inquiry and burden speech on a matter of public concern in violation of the First Amendment. Of course, the notion that scientific progress depends on the free exchange of ideas is not controversial. But even if the free-market approach to scientific discourse has firm foundations, this Article suggests that it is a misguided approach to the question of when corporate speech about science is misleading.