
Contents
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Private Law Private Law
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Undermining the Distinction between Public and Private Ordering Undermining the Distinction between Public and Private Ordering
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Destabilizing the Public/Private Distinction Destabilizing the Public/Private Distinction
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The Rule of Law The Rule of Law
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Erasing Legal Rights Erasing Legal Rights
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Copycat Boilerplate: A Form of Tacit Collusion? Copycat Boilerplate: A Form of Tacit Collusion?
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Standardization and Privatization Standardization and Privatization
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Undermining the Public/Private Distinction from the Right Undermining the Public/Private Distinction from the Right
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Can the Ideal of Private Ordering Be Salvaged? Can the Ideal of Private Ordering Be Salvaged?
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The Threat to Legal Infrastructure Posed by the Advent of Technological Protection Measures The Threat to Legal Infrastructure Posed by the Advent of Technological Protection Measures
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The TPM as Successor to Boilerplate The TPM as Successor to Boilerplate
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Self-Help Self-Help
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TPMs vs. the Ideal of the Rule of Law TPMs vs. the Ideal of the Rule of Law
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Bringing TPMs within the Rule of Law? Bringing TPMs within the Rule of Law?
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Three Democratic Degradation: Replacing the Law of the State with the “Law” of the Firm
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Published:November 2012
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Abstract
This chapter focuses on the democratic degradation that may be caused by the apparent replacement of the law of the state with the “law” of the firm when boilerplate is deployed in mass markets. It considers mass-market boilerplate rights deletion schemes and how the widespread use of boilerplate causes democratic degradation; for example, it threatens the distinction between public and private ordering, undermines the rule of law, and erases legal rights. The chapter also examines private law, the main legal infrastructure of the liberal notion of private ordering, and copycat boilerplate. Finally, it discusses technological protection measures (TPMs) and their implications for legal infrastructure, along with measures that might help to make TPMs less problematic from the point of view of the rule of law.
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