By Gordon Hull
In an important recent article, Robin Kar and Margaret Radin propose a way to interpret the volumes of boilerplate that accompany pretty much any electronically-mediated consumer transaction. Rather, they propose a way to interpret the phenomenon of the deluge of such boilerplate. We all know the scenario: you decide to buy a song for $0.99 on a site called SketchyFiles.com, and at some point in the process, you click to indicate your acceptance of the “terms and conditions.” Did you read those terms and conditions? Of course you did not: if you were to print them, they’d probably run in excess of 30 pages, most of them using language that you don’t understand. It’s not rational to slog through and try to understand all of that for a 99-cent purchase!
But the flip side is that SketchyFiles is very much going to interpret this as a contract when it suits them. Say, for example, that you think that your purchase included a virus that destroyed a couple of files on your computer. You spend a few minutes online, and discover that there are 50,000 people to whom this exact thing happened! You lawyer up and file suit against SketchyFiles, including a request for class certification, since your files aren’t individually worth a lot, but the aggregate of them are, and you think SketchyFiles ought to have to own the problem and scan their songs for viruses. You will promptly discover in court that the “contract you signed” included a “mandatory arbitration clause,” which says that you agree that any and all disputes involving your purchase are to be settled out-of-court, using an arbitration procedure and a venue chosen by SketchyFiles. Not only that, you’ve probably also contractually agreed that no class certifications are possible: all users’ claims must be adjudicated one at a time.
But wait? Really? You (finally) search the Terms and Conditions for the arbitration clause. It does say you agree to arbitration, but it says nothing about “class arbitration.” Surely that ambiguity helps you at least proceed – well-established principles of contract law say that ambiguous terms ought to be interpreted against the drafter. No, sorry, said the Supreme Court last year in Lamps Plus v. Varela: the Federal Arbitration Act (FAA) says arbitration agreements are contracts, and the federal goal of promoting quick, informal arbitration is undermined by forcing people into class arbitration, which is messy and long and complicated. So unless they explicitly agree to class arbitration, ambiguity and longstanding principles of contract law are of no benefit to you because they are preempted by the FAA.
In the meantime, of course, SketchyFiles unilaterally modified their Terms and Conditions to expressly prohibit class arbitration. This is now binding on all current and former customers, because the Terms and Conditions also include a clause that says they can be unilaterally modified by SketchyFiles without notification to you.
Facing the prospect of a hostile SketchyFiles and mounting lawyers’ bills, coupled with the fact that you’re only going to recover the $10 of “actual damages” you suffered (and you may not even get that far, since what was lost was some creative writing that SketchyFiles is going to say you didn’t try to sell, so it’s got zero compensable value), you give up. Better to read Kafka than participate. Justice Ginsburg’s blistering dissent in Varela, which opens by saying that she will join Justice Kagan’s main dissent but also write separately “to emphasize once again how treacherously the Court has strayed from the principle that ‘arbitration is a matter of consent, not coercion,’” seems about right to you. Surely SketchyFiles ought to be able to be held to account for selling files that contain viruses! What happened to that basic sense of fairness?
Depending on your point of view, this is either exactly how things should work, or a nightmare. What you can probably agree on is that this a different world of contract than the one that is lodged in the image in your head, which involves people negotiating. That negotiating practice is finite, and generally involves a promise to deliver a good or service for a specific payment. Somebody says "I will pay you $10 to mow my lawn." or maybe even a marriage or a divorce. Things at that level. If prompted, you might imagine a room full of lawyers negotiating a corporate merger, poring over every word over the course of a few weeks. What you don’t imagine in either case is the profusion of boilerplate. Kar and Radin suggest that the problem’s root is technological: it is cheaper and cheaper to create text, so we create more and more of it. How might we understand this as a question of contract law?
Kar and Radin’s innovation is to invoke Grice on conversational implicature. To recall (and they provide a summary, if you haven’t read Grice in a while, which I haven’t), Grice distinguishes between the “sentence meaning” and the “speaker meaning” of an utterance. The sentence meaning is what somebody who’s generally proficient in the language would understand the utterance to mean. The speaker meaning is what is actually going on, given a conversational context where both speakers are trying to communicate using conventions that they cooperatively try follow (yes, Derrida, I see your hand up. We’ll get to you, though not yet. We’ll defer your question…). Speaker and sentence meaning often align, but not always. For example (I’m abbreviating theirs), consider a recommendation letter: “I recommend x for your department. I have had him in four of my classes, and he came to class every day. Sincerely, me.” The sentence meaning is a favorable recommendation, but the speaker meaning is negative because both the recommender and the person receiving the letter understand that if you’re talking about class attendance and nothing else, you really don’t have anything else to say, especially not something positive about the person’s work.
Kar and Radin then apply this approach to contracts. Contracts aren’t about communicating content; rather they’re about inducing the other party to commit to doing something (“Parties seek to reach an agreement with common terms that each might be willing to commit to make true — conditional on the other playing his or her part” (1151)). The key concept is “shared meaning” of the contract, which is:
“that meaning that is most consistent with the pre-supposition that both parties were using language cooperatively to contract — that is, in accordance with the four relevant Maxims of Quantity, Quality, Relation, and Manner, and any further specifications of them. The shared meaning of a contract differs from both sentence meaning and any one party’s speaker meaning. We believe that shared meaning is what courts have for centuries meant to refer to by focusing contract interpretation on a search for the common meaning of the parties.” (1154)
The rubric is an adaptation of Grice. Quantity means that you use the number of words that’s appropriate. So you don’t over-explain or under-explain. Manner means to communicate clearly. Quality is modified to “instruct[] parties to offer or agree to commit themselves only to that which they are willing and able to do.” (1152). Relation is the most complex, and it has to do with committing to a contract, rather than a promise:
“The Contractual Maxim of Relation instructs parties to commit themselves to a contract (as opposed to a merely informal promise) only when they mean to make a formal legal commitment — that is, when they mean to confer legal standing on the other party to be able demand compliance, to grant that party the power to invoke the formal power of the state in cases of noncompliance, and to submit to rather than trying to remove any other background legal rules that distinguish contracts as legally enforceable obligations from mere informal promises” (1153).
Abuse of power relations would violate this maxim, as would various categories of deception.
How does this cash out the discussion of boilerplate? Kar and Radin treat the model of contract as fundamentally oral (yes, Derrida. PUT YOUR HAND DOWN! We will get to you!), and imagine a paradigm case of an agreement to paint a house. “If you paint my house, I will pay you $1000.” “I agree.” This is a classic enforceable contract. But notice that you need more than sentence meaning to get there: the sentence meaning is indeterminate, because you can’t tell if this exchange represents a description of something that is likely to happen or a contract. However, the shared meaning is going to be the creation of a contract, unless some extenuating circumstance shows up (just to keep Derrideans agitated: if the exchange occurred in a “parasitic” form like a play, the first actor isn’t obliged to paint the other’s house).
Boilerplate can deviate from this model in a couple of broad ways, and as a result is often not so much enacting a real contract that is recognizable on that model as a “pseudo-contract” that looks like it, but does something different. The paradigmatic ideal type here functions exactly as Derrida (in the pharmakon essay) and Deleuze (in the 1968ish writings) say Platonism does: not so much to describe the ideal type as to serve the police function of allowing one to select good and bad copies of that type. The bad copies are repressed by a police function (I develop this reading in a paper here). Here the problem is pharmakoi infiltrating the law itself: the boilerplate ToS that we all agree to look like contracts, but they are bad copies of the model. And this is not something to be celebrated, because our governing models of contract allow them to pass as good copies, and thereby wreck havoc from within the system. Rather than overthrowing Platonism, ToS have rearranged it for the benefit of capital. In other words, the police function has been corrupted.
To return to Kar and Radin, I’m oversimplifying a long and complex analysis, but it seems to me that the deviations they want to talk about most fall into two categories. First, there’s text in the boilerplate that simply cannot plausibly be interpreted to be attempting to create a contract because doesn’t actually do that. All sorts of “ride-along text” gets included, such as “the program does x by default, if you want to change that you can go to Settings…” That’s an answer to an FAQ, not a contractual term. It turns out there’s a lot of verbiage of this nature in boilerplate.
Second, the boilerplate tends to violate maxims of quantity and manner. Imagine for a moment that somebody actually expressed to you the entire 32 pages of printed text that constituted the “terms and conditions” for a $0.99 iTunes purchase, as you were asking “how much to download this song?” This is absurd!
“The conceptual test of shared meaning analysis makes it easy enough to see that Apple could not, in fact, have sought to introduce all this boilerplate text into a cooperative linguistic exchange that aimed at producing a common meaning of the parties. The attempt would have violated both the Maxim of Quantity and the Maxim of Manner, thus establishing that this thirty-two pages of text was mere pseudo-contract.” (1178)
These 32 pages of text are “ride-along words.” But the exchange involved “If you let me download this mp3 file, I will pay you $0.99;” that’s the actual contract. Apple’s text dump separates from that exchange because there’s nothing cooperative about it. If we tried to imagine it in the context of the classical contract scenario, you’d walk from the deal, either because it wasn’t worth your time to sit and listen to all these terms, because Apple didn’t want to negotiate any of them, or because you understood them to be abusive. At any rate, they aren’t part of the shared meaning that is the contract. So there is a contract - $0.99 for the download – but that doesn’t encompass all of the boilerplate, just because Apple called it “contract.”
Given that these ToS often include mandatory arbitration clauses, the charge of pseudo-contract becomes clear. The ToS are not so much as invoking the legal subject position of contract as they are using that terminology to attempt to fully and enforceably describe a relationship between the company and the consumer. They can do this because both we and courts have the same paradigmatic understanding of contract in our head. The effort to treat ToS as enforceable in all of their multitudinous terms treats them as simple extensions of that model. Kar and Radin show how we might better treat them as deviations.
I’ll have more in a follow-up, including why I think iterability is an important concept here, as well as more on the oral model of contract.
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