Andrea Boyack’s article, Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights, examines “problematic” provisions in consumer contracts and may be viewed as a companion piece to her previous article, The Shape of Consumer Contracts1 which is more theoretical. Both articles provide a valuable contribution to the literature on boilerplate and merit attention, although I focus this review on Abuse of Contract. Professor Boyack examined the online terms and conditions of 100 companies in a variety of industries. The study aimed to answer two questions: “(A) How prevalent are boilerplate provisions that limit consumers’ legal rights? and (B) to what extent do particular companies use such boilerplate limitations?” (P. 4.) Her study is one of several in recent years taking an empirical approach to terms and conditions, including one by Samples, et.al. that I previously reviewed here.
Boyack identified four broad categories of terms: “(i) dispute resolution mandates, (ii) liability waivers, (iii) limitations on damages, and (iv) pre-authorization of unilateral modifications.” (P. 5.) For accuracy, the terms and conditions were examined twice by two different researchers during 2021-2022. The study included both public and private companies, and these 100 companies belonged to an array of sectors, including retail, financial services, social media, and travel. The study also tracked eleven types of rights-deleting provisions. According to Boyack’s study, 66% of the contracts surveyed contained a mandatory arbitration clause, and the clause was more prevalent in some industries than in others. For example, 82% of retail sector contracts contained such a clause compared to 42% of financial services sector contracts. Similarly, 94% of retail sector contracts contained a waiver of the right to jury trial compared to 42% of financial services sector contracts. The disparity among sectors is perhaps not surprising given the increased governmental scrutiny and regulation of terms, such as mandatory arbitration, in consumer financial services contracts.2
Boyack’s article is valuable not only because she examines the terms and conditions of companies in an array of industries but because of her knowledge regarding how they fit within the larger context of consumer rights law. For example, she notes that 79% of the contracts surveyed contained a choice of forum clause – of interest in itself – but then emphasizes that choice of forum is important because it can also limit the time to bring a claim, even acting as a class action waiver in some states, such as Virginia, where class actions are not permitted. (P. 14.)
Boyack argues that much of the boilerplate terms are unnecessary to the “transactional infrastructure” because they do not impact the underlying exchange itself. In other words, according to Boyack, the clauses do not have a substantive impact on the transaction but only whittle away at the default rights of the consumer. Some of the boilerplate’s defenders would likely disagree and offer up the old argument that the cost savings from boilerplate are passed along to consumers. Boyack pushes back on that argument, stating that even if cost savings are passed along to the consumer in the form of lower prices — a claim that has never been empirically proven – “our legal system does not allow private persons to force other persons to sell their rights – even for a fair price.” (P. 15.)
I might disagree with Boyack on that last point. Our legal system should not permit private persons to force other persons to sell their rights, but unfortunately, it has done so. That is essentially the entire problem with boilerplate in consumer contracts. They are contracts in name only – and only because judges have not resisted hard enough the rhetorical labeling of terms and conditions as “contract.” (Elsewhere, I have suggested a more accurate label would be “adhesive terms”).
Boilerplate defenders typically make market-based claims to justify calling adhesive terms contracts even when they lack indicia of bargaining and diminish the meaning of assent and consent. Boilerplate defenders claim that “assent deficiencies of non-negotiable standard form contracting” are “mitigated by reputation and consumer choice in the context of a competitive market.” (P. 4), but, as Boyack points out, “assurances that market forces reward consumer-friendly boilerplate requires there to be a variety of boilerplate options. If most companies have substantively identical boilerplate provisions, market choices cannot possibly reflect a choice of boilerplate content.” (P. 4.) In other words, the consumers won’t punish an individual company for abusive terms if all other companies provide those same abusive terms. As Boyack’s study indicates, the best way to protect consumers from rights-deleting terms is likely governmental regulation.
Boyack’s article is a rebuke to the fanciful market-based arguments put forth by boilerplate defenders. As her study demonstrates, the claims of boilerplate defenders are not supported by empirical evidence. Boyack’s study should lead to better-informed discussions among contract scholars about the role of boilerplate in consumer transactions and the need for more regulation of oppressive terms.
- 101 Denv. L. Rev. 1 (2023).
- See Consumer Fin. Prot. Bureau, CFPB Warns Against Deception in Contract Fine Print (2024); see also Consumer Fin. Prot. Bureau, Strengthening State-Level Consumer Protections (2025); The CFPB had previously issued a rule to ban financial companies from using arbitration clauses in contracts, which was subsequently disapproved by Congress. See also Consumer Fin. Prot. Bureau, CFPB Issues Rule to Ban Companies from Using Arbitration Clauses to Deny Groups of People Their Day in Court (2017).
