Scott Greenfield commenting on Prof. Margaret Jane Radin’s book “Boilerplate”. Radin has been a law professor for 37 years….
When it comes to lawyers, however, the right to opine crazy isn’t unlimited. Railing against the “tyranny” of small print is fine. We all hate it, and there are certainly substantial arguments to be made against click-wrap terms, which nobody reads, or the terms and conditions set forth inside packaging that no one sees until after a purchase is complete, the product opened and/or unreturnable.
But we do not have the right to conflate small print with corporations sucking away our constitutional rights or creating a new legal universe. That feeds the angst, the conspiracy theorists and the disenchanted, but it’s fundamentally wrong from a legal perspective, and there is simply no viable argument to support it. That’s where the line gets drawn.
Yet Radin wrote a book. Sullivan wrote about the book. And somewhere, sometime, someone may stumble across what they wrote and challenge it from centerfield at a Yankee game. And they will never make it to the seventh inning stretch. Small print may suck, but legally, its fine print unless the law otherwise prohibits it. You are not entitled to feel otherwise.
We’re working with the thinnest thread of sanity and intelligence here. We were always subject to the lowest common denominator, but historically those people on the bottom wrung of the sanity and intelligence scale were treated officially as outliers, lunatics and morons. People who weren’t quite sure they saw what they saw, or knew what they knew, would be reluctant to say anything, no less reach out to police to close down a mall. Not anymore.
Most of us have seen a package unencumbered by a hand sitting in a public place. Watch for a few more minutes and someone comes back, maybe a nice mother with some wayward children who required collecting. They clutch the package and walk away holding hands. No terrorism here.
We wait and watch. Rarely is anything so askew as to demand immediate action. We can distinguish an umbrella from a rifle. We don’t rush to assumption of the one in a million occurrence with nothing more than a flash of a fear to push us over the edge. But then, we aren’t the ones phoning in reports to police from Nordstrom’s.
