Is "boilerplate" a pejorative when discussing legal documents?

I have taken to referring to some legal documents (not just clauses) as boilerplate documents because they are re-used verbatim. For example, the GNU General Public License, the Creative Commons Attribution License or the Developer Certificate of Origin.

My intention is to explain the benefits of this approach (a common vocabulary), but I've received (some) feedback suggesting that boilerplate is a pejorative rather than a factual adjective. I can see that the term originally referred to copy-and-paste news in the early days of print media, but (it seems to me) it has long-since evolved to simply refer to verbatim re-use, especially in a legal context.

(I saw a reference to a "take it or leave it" attitude in a legal setting, which is not my main point, but does not detract from it.)

Is "boilerplate" in fact a pejorative when discussing legal documents?

Solution 1:

Bryan Garner, A Dictionary of Modern Legal Usage, third edition (2011) provides a useful entry for boilerplate covering its professional legal sense and its more common layperson's interpretation.

boilerplate {fr. the newspaper business, in which it originally referred to syndicated material in mat or plate form} = (1) ready-made or all-purpose language that will fit in a variety of documents; or (2) fixed or standardized language that is not subject to modification. Sense 1 expresses the lawyer's usual understanding; sense 2 expresses the lawyer's usual understanding; sense 2 expresses the nonlawyer's common understanding.

The term first entered American legal usage in the 1950s an is today commonly used either as a noun or as an adjective (in phrases such as boilerplate clause and boilerplate language). The earliest known legal example appeared in Ohio: "After what appears to be the ordinary 'boilerplate' reference to payment of debts, taxes and costs of administration, the testatrix in the case at bar gave more than usual attention to arrangements in connection with her last rites." In re Estate of Carrington, 136 N.E.2d 182, 185 (Ohio Prob. Ct. 1956).

Neither of the two legal senses of boilerplate that Garner identifies is inherently negative. Indeed, in contract law, it makes a lot of sense to use formulaic language that has passed muster in past contract adjudications.

Interestingly, the origin of boilerplate has more in common with Garner's second meaning than with his first. From Tina Stark, Negotiating and Drafting Contract Boilerplate (2003):

The term "boilerplate" has two historical sources: one from the shipbuilding industry and the other from the newspaper printing process.

The derivation of the word "boilerplate" dates back to the invention of steam boilers to power ships. However, there are rival theories. The first is that as part of the boiler manufacturing process, iron was rolled one-quarter to one-half inch thickness. Each piece of iron then became a "boiler plate" and as use to build the boiler or to cover the ships. The second theory is that each boiler had a standard size identification plate attached to it. The identification plate became known as a "boiler plate."

In the newspaper world, the term "boilerplate" had a meaning not too different from the one in the ship manufacturing process. After the Civil War, many small-town newspapers expanded their local papers by including syndicated articles. Initially, the syndicates sent the articles on newsprint so that the articles could be distributed immediately with the rest of the newspaper. Eventually, however, the syndicates instead made identical plates of the printed matter in a central office and shipped the plates, commonly known as "boiler plate" to the newspapers. The plates were then used by the local papers to print the articles. Thus, both in the shipbuilding and newspaper industries, boilerplate came to connote something standardized, formulaic.

The use of iron plate for this content makes a sharp contrast with the much softer, easily meltable lead type used for unique daily content. However, Giuditta Cordero-Moss, Boilerplate Clauses, International Commercial Contracts and the Applicable Law (2011) points out that, despite the literal implications of the term, legal boilerplate is not necessarily immutable:

The term 'boilerplate' is understood to be derived from the metal plates on which syndicated or ready-to-print copy was supplied to newspapers. The point of such plates was that they could not be modified before printing, hence the borrowing of the term to refer to clauses in a contract which are not intended to be the subject of any negotiation. In fact, in the commercial transactions which are the principal focus of this book, a 'boilerplate' clause may well be the subject of negotiation, and perhaps of modification, in the particular contract t hand. The clause is 'boilerplate' or 'standard form' in the sense that one party (or possibly both) requires a clause of that type, but there is still room for negotiation as to its precise content.

This description matches the first definition of boilerplate that Garner provides.