ABSTRACT
Contract serves as a necessary fiction of agreement to facilitate transaction and exchange. As the legal obligation resulting from the parties’ agreement, contract has long been imagined in the United States as an exercise of free will. By considering standard terms as an alternative model of contractual expression, this chapter identifies the ways in which the purported landscape of contract, including a level playing field, can serve to obscure and naturalize constraint. A reimagining of boilerplate as paradigmatic rather than a special contractual form reveals an enduring narrative of contractual freedom and makes salient the structural baselines necessary for the experience of agency. This chapter applies a deconstructive lens to highlight the expressive possibility of standardized terms and the contextual contingency of the term “boilerplate” in American case law and scholarship. As a notionally distinct form of contract language that also functions as the very medium of contract, boilerplate demonstrates the tensions inherent in contract as a vehicle of freedom. Through readings of narratives of contract and boilerplate in the law, this chapter proposes a view of contract as a weak form of boilerplate—rather than boilerplate as contract’s weak imitation—as a way to pursue the goals of contract.
