Margaret Jane Radin, ‘The Fiduciary State and Private Ordering’

In this chapter, I argue that by allowing firms to foreclose access to the courts and to make legal remedies through boilerplate rights deletions difficult or impossible in practice, the US legal system is failing civil society, and its legal institutions are flouting their fiduciary obligation to the polity and to its people. In addition, I suggest that each firm itself has an obligation not to deploy boilerplate so as to ‘defect’ unilaterally by contract from the legal infrastructure that makes it possible for firms to function in a well-ordered civil society possible for itself and all firms to exist and prosper in a civil society.

Radin, Margaret Jane, The Fiduciary State and Private Ordering (February 19, 2016). Paul B Miller and Andrew S Gold, eds, Contract, Status, and Fiduciary Law, Oxford, 2016, forthcoming.

First posted 2016-02-22 06:38:50

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