Private Law Theory

ABSTRACT
The modern economy is awash in standard form contracts filled with ‘boilerplate’ terms that are drafted by repeat players and routinely accepted by consumers, employees, and businesses without reading or understanding their content. Standard form contracts weaken but do not subvert party autonomy but they do undermine contract efficiency. While American courts attempt to counter the worst excesses of boilerplate with the ad hoc and unpredictable use of the unconscionability doctrine, this paper argues that a more expansive reading of the public policy doctrine – ‘constitutional public policy’ – can provide courts with an additional tool for restricting the enforceability of boilerplate without rejecting it entirely that is more predictable and more in keeping with the institutional competence of courts.

Korobkin, Russell B, Contract Boilerplate and Constitutional Public Policy (August 9, 2026).