Volume 77, Number 2

May 2002

Standard-Form Contracting in the Electronic Age

Robert A. Hillman, Jeffrey J. Rachlinski

The development of the Internet as a medium for consumer transactions creates a new question for contract law. In this Article, Professors Robert Hillman and Jeffrey Rachlinski address whether the risks imposed on consumers by Internet boilerplate requires a new lens through which courts should view these types of contracts. Their analysis of boilerplate in paper and Internet contracts examines the social, cognitive, and rational factors that affect consumers’ comprehension of boilerplate and compares business strategies in presenting it. The authors conclude that the influence of these factors in Internet transactions is similar to that in paper transactions. Although the Internet may in fact allow companies a greater opportunity to exploit consumers, Professors Hillman and Rachlinski argue that this phenomenon does not implicate a need to create a new framework for deciding cases involving Internet transactions. The authors conclude that Professor Karl Llewellyn’s theory of blanket assent, coupled with the unconscionability and reasonable-expectations doctrines that form the traditional framework used by courts to determine the validity of boilerplate terms in the paper world, should apply equally to the Internet world. Recognizing some of the specific concerns that arise in respect to boilerplate in Internet contracts, however, they address a number of issues to which courts should apply particular scrutiny and that may require the adoption of new approaches in the future.

The Intellectual Origins of the Establishment Clause

Noah Feldman

For decades, scholars have debated the Framers’ intentions in adopting the Establishment Clause. In this Article, Professor Noah Feldman gives an account of the intellectual origins of the Establishment Clause and analyzes the ideas that drove the debates over church and state in eighteenth-century America. The literature on the history of the Establishment Clause has categorized discrete strands of eighteenth-century American thought on church-state relations, divided by distinct motives and ideologies. Feldman argues that this is a mischaracterization and proposes instead that a common, central purpose motivated the Framers to enact the Establishment Clause-the purpose of protecting the Lockean value of liberty of conscience. Feldman begins by providing an archeology of the idea of liberty of conscience, from Luther and Calvin to Locke. He then presents his account and analysis of the intellectual origins of the Establishment Clause in eighteenth-century American thought. He considers possible uses of this history, then concludes with observations on the utility of using intellectual history in constitutional analysis of cases invoking the Establishment Clause.

Beyond Abrogation of Sovereign Immunity: State Waivers, Private Contracts, and Federal Incentives

Christina Bohannan

Few judicial decisions in recent years have captured the attention of lawmakers, practitioners, and academics more than the Supreme Court’s decisions dealing with state sovereign immunity. Holding that Congress may not abrogate state sovereign immunity from federal statutory claims when acting pursuant to its Article I regulatory powers, those decisions seriously limit an individual’s ability to enforce rights against state defendants, creating a gap between right and remedy that arguably impairs the rule of law. While much of the scholarship in this area continues to dwell on abrogation as the primary means of allowing individuals to vindicate rights against the states, the Court clearly favors an approach in which states waive their immunity from suit. In this Article, Professor Christina Bohannan examines three common situations in which a state might be deemed to waive its immunity from suit: first, by failure to raise the immunity as a defense at trial; second, by private agreement; and third, by accepting federal benefits made conditional on waiver of immunity from federal claims. She determines that because the Court’s sovereign immunity and Spending Clause jurisprudence has been concerned with ensuring that a state’s waiver is voluntary and unequivocal rather than coerced, this case law precludes holding that a state waives its immunity by merely failing to raise it at trial. She concludes, however, that where a state voluntarily and unequivocally waives its immunity in a private contract or in exchange for benefits available exclusively from the federal government, its waiver should be enforced notwithstanding a subsequent attempt to revoke it at or before trial. Thus, a waiver approach to state sovereign immunity could provide a constitutional way for individuals to vindicate their rights against the states in a number of cases, thereby narrowing the rightremedy gap created by the Court’s abrogation decisions.


Our Democratic Constitution

The Honorable Stephen Breyer

Madison Lecture

In this James Madison Lecture, Justice Breyer presents an approach to constitutional interpretation that places considerable weight upon the consequences of judicial decisionmaking. Eschewing an approach that relies solely on language, history, tradition, and precedent, Justice Breyer uses five contemporary examples to demonstrate how his concept of “consequential” constitutional interpretation might work in practice. Justice Breyer argues that this approach is more faithful to the principles that animated our Founding Fathers, encourages greater public participation in our democratic government, and would create a constitutional system that better promotes governmental solutions consistent with community needs and individual dignity.


The Inapplicability of the Prison Litigation Reform Act to Prisoner Claims of Excessive Force

Ann H. Mathews

The Prison Litigation Reform Act (PLRA), enacted in 1996, creates numerous procedural requirements for prisoners who file civil claims challenging their conditions of confinement. Despite the severe burdens created by the PLRA and the questionable constitutionality of the filing provisions, many courts and commentators have applauded the PLRA. Not surprisingly, few challenges to the PLRA have met with success. In this Note, Ann Mathews argues that, at a minimum, the PLRA should be interpreted narrowly to exempt prisoners’ claims of excessive force from the statute’s requirements. As Mathews demonstrates, excessive force claims constitute a discrete and particularly serious category of prisoner claims that traditionally has been treated with heightened sensitivity by federal courts, including the Supreme Court. Mathews further argues that Congress, in drafting the PLRA, also recognized that increased deference is appropriate for prisoners’ claims of excessive force. Mathews concludes that excluding such claims from the PLRA not only comports with judicial precedent, statutory language, and congressional intent, but also represents appropriate public policy.

Resolving Outstanding Judgments Under the Terrorism Exception to the Foreign Sovereign Immunities Act

Daveed Gartenstein-Ross

While the Foreign Sovereign Immunities Act generally prevents foreign states from being the subject of lawsuits in U.S. courts, countries that have been designated as state sponsors of terrorism by the Secretary of State are exempted from this protection. Judgments entered under this “terrorism exception” already total more than three billion dollars, with a number of suits still pending. These judgments may pose difficulties for future attempts to normalize relations with the defendant countries. In this Note, Daveed Gartenstein-Ross argues that the best method for resolving these outstanding judgments is to terminate them and resubmit the claims to ad hoc international tribunals. Although successful plaintiffs whose judgments are abrogated can bring takings claims against the government, he argues that those claims should be surmountable through a sensible application of takings jurisprudence.