In my view, the scholarship presented at this symposium demonstrates that in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject a while back exemplified this methodological approach but rather because it took a rather strong substantive position. And so I think I ought first to say a brief word about that.

The article in question concerned contracts of adhesion in, roughly speaking, the consumer context, and the position I took was that what I called the “invisible” terms of those contracts — the large number of terms not disciplined by the actual bargaining or shopping behavior of consumers even in price-competitive markets — ought to be treated by the law as presumptively unenforceable.