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133 Harv. L. Rev. F. 1 (2019-2020)

handle is hein.journals/forharoc133 and id is 1 raw text is: VOLUME 133 NOVEMBER 2019 NUMBER 1 HARVARD LAW REVIEW FORUM © 2019 by The Harvard Law Review Association RESPONSES ONE-LEGGED CONTRACTINGt Ian Ayres* and Gregory Klass** Rabbi Hillel was once challenged by a gentile to teach the whole Torah while the challenger stood on one leg.1 The sage responded with his version of the Golden Rule: That which is hateful to you, do not unto another: This is the whole Torah. The rest is commentary.2 The story exemplifies both how succinctly a sagacious interlocutor can sum- marize a vast tract, and the extreme impatience of many listeners. Professors Robin Kar and Margaret Radin, in their thought-provoking article Pseudo-Contract and Shared Meaning Analysis,3 have proposed that courts ignore vast portions of contractual writings: the unread standard terms ubiquitous in modern consumer and other transactions.4 Before enforcing such boilerplate text, a court should imagine that all of the written and digital text exchanged during contract formation is converted into oral form and takes place in a face-to-face conversation between the relevant parties.5 It should then ask: Could this boiler- t Responding to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 HARV. L. REV. 1135 (2019). * William K. Townsend Professor, Yale Law School. ** Agnes N. Williams Research Professor, Professor of Law, Georgetown University Law Center. We are indebted to Joe Burson for his excellent research assistance on this Response. 1 Philologos, The Rest of The Rest Is Commentary, FORWARD (Sept. 24, 2008), https:// forward.com/culture/14250/the-rest-of-the-rest-is-commentary-02564 [https://perma.cc/F9K4- MFBP]. 2 Id. One of us implemented a version of this one-legged constraint by trying to summarize in a video everything one needs to know about retail investing while standing on one leg. Ian Ayres, Concise Advice for Investing While Standing on One Leg, FORBES (Jan. 30, 2016), https://www.forbes.com/sites/whynot/2 016/01/30/hillel-investment-advice/#2 eoe4 77 a6b55 [https://perma.cc/N98U-VUCM]. 3 Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 HARV. L. REV. 1135 (2019). 4 Id. at 1139-40 (citing Yannis Bakos, Florencia Marotta-Wurgler & David R. Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard-Form Contracts, 43 J. LEGAL STUD. 1 (2014)). 5 Id. at 1167. I

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