… Fundamentally, Kar and Radin rest their argument on two propositions. First, normatively in contract law ‘the central focus of justification is on the enforcement of common terms that parties agree to when they form contracts’. Second, creation of this shared meaning in turn ‘depends on an implicit presupposition of cooperative language use to form a contract’. Much, but not all, boilerplate, they argue, cannot meet these standards. These propositions face more substantial doctrinal difficulty than the article seems to recognize … (more)
Jed S Rakoff and Todd D Rakoff, ‘Arbitration, “Pseudo-Contract”, and Objective Theory’, 133 Harvard Law Review Forum 13 (8 November, 2019).