“In their thoughtful and provocative article, Pseudo-Contract and Shared Meaning Analysis,1×1. 132 HARV. L. REV. 1135 (2019). Professors Robin Bradley Kar and Margaret Jane Radin argue that contract — that is, the presumptively enforceable agreement of the parties — should be limited to the “shared meaning” of the parties, and that the boilerplate surrounding that shared meaning in modern form contracts (such as the online “terms and conditions” to which one clicks “I agree”) should be treated as “pseudo-contract” with no direct claim to enforceability. They go on to specify how “shared meaning” is created and how it is to be identified, and they provide several examples of their theory in action. In this Response, we discuss their theory with special regard to its application to boilerplate stipulations providing for mandatory arbitration of disputes.
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.”2×2. Id. at 1138. Second, creation of this shared meaning in turn “depends on an implicit presupposition of cooperative language use to form a contract.”3×3. Id. at 1144. Much, but not all, boilerplate, they argue, cannot meet these standards.”