Fair contract activist Theresa Amato. (Courtesy of Citizens in Charge Foundation.)
Imagine you’ve clicked on your computer screen to accept a contract to purchase a good or service—a contract, you only realize later, that’s straight out of Kafka. The widget you’ve bought turns out to be a nightmare. You take to Yelp.com to complain about your experience—but lo, according to the contract you have given up your free speech rights to criticize the product. Let’s also say, in a fit of responsibility, (a bit fantastic, I know) you happened to have printed out this contract before you “signed” it, though you certainly hadn’t read through the thing, which is written, literally, on a “twenty-seventh grade” reading level. Well, you read it now (perhaps with the help of a friend who’s completed the twenty-seventh grade). And you see that there was nothing in the contract limiting your right to free speech at the moment you signed it. That part was added later. Your friend with the twenty-seventh-grade education points to the clause in the contract in which you’ve granted this vendor-from-hell the right to modify the terms of the contract, unilaterally, at any time into the vast limitless future.
Others, you realize, must have had the same problem with this lemon of a product. You begin canvassing the possibility of a class action suit. But you guessed it: the contract you agreed to waived your right to class action as well.
You study this gorgon of a text to figure out what other monstrosities lie within—and discover this: you’ve waived away your right to the privacy of certain information, too. Shocked, you resolve: never again. You realize that when you buy a product or service, you’re also buying the contract that goes with it. So you’ll comparison shop. You think about how, when you rent a car, you have to sign and initial all that contract language you have no time to read with eight people behind you in line at the airport. So you call all the big rental car companies to get copies of their standard boilerplate contracts to read at your leisure—but not one would e-mail you the contract. You’re told it just isn’t done.
The upshot of this horror story? Maybe you’ve figured it out by now. The “you” above is actually you. You, dear reader, have almost certainly signed a contract exactly like this. You may even have done so today.
“Fine print,” or “boilerplate,” contracts have been interwoven into the fabric of our modern commercial society for decades. In recent years, however, they become more and more deliberately obfuscating—and, thanks to business-friendly court decisions more and more aggressive in their intent to deprive customers of all sorts of rights of redress. Recently I sat down to talk to an activist who’s doing something about it. When Theresa Amato of Faircontracts.org, who sat with me recently for an interview, told me about this business of companies reserving—and exercising—the right to change contracts after their customers have signed them, and courts upholding that right, I paused a bit. I said I was speechless. “Yes,” she replied. “You should be speechless. And so should everyone.” She laughs—in a laughing-to-keep-from-crying kind of way: “To call this fine print ‘contracts’ is almost a misnomer.” She corrects herself: “It is a misnomer, according to contract theory, because there’s no mutual consent there.”
The Chicago-based Amato has had a busy career in twenty years as a public interest lawyer working on some of the most dramatic and important issues of our time: first at the Public Citizen Litigation Group, formed by Ralph Nader; then as director of the Freedom of Information Clearing House, fighting for access to secret government documents; forming her own nonprofit, the Citizen Advocacy Center, pioneering democracy-building “community lawyering” in the burgeoning “edge cities” of the Chicago area; managing Ralph Nader’s 2000 and 2004 presidential campaigns (she wrote a definitive book from the experience on the legal structure of the two-party duopoly). Now that she’s thrown herself into this “boilerplate” issue, I ask whether the apparently eye-glazing issue of fine print it really as significant as all that.
More so, she says. “I believe this is one of the most pressing issues today. If you take a look at all the economic problems we have, from the mortgage foreclosure crisis, to student loan debt, to credit card debt—pretty much pick your crisis—underneath everything you’re going to find a fine-print contract. That most likely people didn’t read or didn’t understand. So this is a hundreds-of-billions-of-dollars problem that faces us as a country.”
One of the biggest issues, she’s convinced, is the acquiescence of the courts. Again and again, judges admit that there’s some kind of problem—the legendary Chicago federal judge and author Richard Posner admitted he hadn’t read the fine print when he signed his own mortgage—but claim their hands are tied, and sign off on the contracts nonetheless. Amato points to a Florida appeals court opinion, not yet finalized, in which the family of an elderly woman, now deceased, felt ripped off by her nursing home and challenged the legitimacy of the fine-print contract she had signed. I read the opinion. Acknowledged the judge, “At the time, she was 92 years old and had a fourth-grade education. She could not spell well and often had to sound out words while reading. She had memory problems and was increasingly confused.” He said, “As a practical matter, a significant percentage of the people who enter nursing homes and rehabilitation centers have mental or physical limitations that make it difficult for them to understand the agreements. The same is probably true for most of the contracts that we sign for many consumer services.”
This judge continued on to make a general theoretical point: “There was a time when most contracts were individually negotiated and handwritten. In that period, perhaps the law could adequately describe a mutual agreement as a ‘meeting of the minds’ between the parties”; but not any more.
When I read that, I nodded my head. I thought he was making a sympathetic point, the same one Amato has been pressing home to me: that when our entire system of consumer commerce is based on a vast, structural imbalance of power between sellers empowered to dictate terms, and buyers all but helpless to do anything but accept them just to participate in the economy, something is badly broken—in fact, the free market, which any right-wing economist says relies on adequate information to function efficiently, is badly broken. Even though I knew how this story ended—a decision unfavorable to the family of the deceased—I figured he at least was making one of those “regrettably, my hands are tied” points.
He wasn’t. He was saying the opposite: that there was no problem with inscrutable contracts at all. “Our modern economy,” he concluded, “simply could not function if a ‘meeting of the minds’ required individualized understanding of all aspects of the typical standardized contract that is now signed without any expectation that the terms will actually be negotiated between the parties.”
Well, as has recently been pointed out, in the case of the contract to download a song for ninety-nine cents on iTunes, you have to click on a contract longer than Shakespeare’s Macbeth—and when they change a single clause in the contract, instead of showing you the individual change you’re forced to locate it within the entire fifty pages of fine print—the defeatist notion that nothing can be done to right the balance between buyer and seller becomes an absurdity. Says Amato: “These contracts have evolved into a category you cannot understand. I mean, some of them are written for a twenty-seventh grade level. And most people don’t have postdoctoral degrees, or law degrees—and even lawyers who read them don’t understand them! They’re not meant to be understood.”
Push has come to shove. Next time, I’ll describe to you what Amato thinks can be done—and how you can join her fight.
Read Rick Perlstein on Reagan-appointed surgeon general C. Everett Koop, who held principle over any party line.