The Fiduciary State and Private Ordering

Document Type

Article

Publication Date

2016

Abstract

In this chapter, I argue that by allowing firms to foreclose access to the courts and legal remedies through boilerplate rights deletions, the American legal system is failing civil society, and its legal institutions are flouting their fiduciary obligation to the polity and to the American people. In addition, I suggest that firms have an obligation not to deploy boilerplate so as to “defect” unilaterally from the legal infrastructure that makes it possible for firms to function in civil society.

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