Boilerplate Indignity


Erik Encarnacion

94 Indiana Law Journal 1305


Commentators have long tried to sound the alarm about boilerplate contracts, pointing out threats ranging from the loss of privacy rights to the erosion of public law and democratic self-governance. This Article argues that this list of concerns misses something important: that imposing certain boilerplate terms on individuals is incompatible with their dignity. After explaining and defending the conception of dignity presupposed here, this Article shows how boilerplate accountability waivers—like arbitration clauses—prevent people from accessing the distinctive dignity-vindicating role of courts and degrade their status as legal persons. And because governments may legitimately protect dignity interests, proposed reforms like the Arbitration Fairness Act have an even stronger justification than previously recognized. Boilerplate indignity should, in any event, force us to take a hard look at the dignity interests jeopardized by fine print, interests routinely sacrificed at the altar of commercial expediency.

Full Citation

Erik Encarnacion, Boilerplate Indignity, 94 Indiana Law Journal 1305 (Fall 2019). View Online