Wrap Contracts: Foundations and Ramifications

239 Pages·2013·1.57 MB·English

by  Nancy S. Kim

Wrap Contracts
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Wrap Contracts
FOUNDATIONS AND RAMIFICATIONS
Nancy S. Kim
3
1
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© Nancy S. Kim 2013
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Library of Congress Cataloging-in-Publication Data
Kim, Nancy S.
Wrap contracts : foundations and ramifi cations / Nancy S. Kim
pages cm
Includes bibliographical references and index.
ISBN 978-0-19-933697-5 ((hardback) : alk. paper)
1. Contracts. 2. Adhesion contracts. I. Title.
K840.K55 2013
346.02'2—dc23
2013000756
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
Note to Readers
Th is publication is designed to provide accurate and authoritative information in regard to
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Dedication
To my parents,
Yeun Soo and Mi Wha Kim,
with gratitude.
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Contents
Acknowledgments ix
1. Introduction 1
2. Why Enforce Contracts? 6
A. Individualistic/Deontic Th eories 9
B. Consequentialist Th eories 10
C. Multivalue Th eories of Contract Law 1 3
3. Contracts and Contract Law in Societal Context 1 7
A. Contract Law and Evolving Business Needs 20
B . Contracts of Adhesion 2 6
C . Function, Fluidity, and Instructive Contracts 3 0
4. Th e Rise of Wrap Contracts: Th e Early Cases 3 5
A. Shrinkwraps 36
B. Clickwraps 39
C. Browsewraps 41
5. Contract Terms as Sword, Shield, and Crook 44
A. Contract as Shield 4 4
B . Contract as Sword 4 8
C. Contract as Crook 50
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viii Contents
6. Problems of Form 53
A. Is a Wrap Contract Just Another Contract of Adhesion? 53
B. Sadistic Contracts 62
7. Problems of Substance 7 0
A. Wrap Contracts and Norm Shift ing 71
B. Getting Something for Nothing: Th e Old Bait and Switch 76
C. Th e Limits of Unconscionability and the Problem of Other Laws 87
8. Th e Sense and Nonsense of Wrap Contract Doctrine 9 3
A. Notice and Wrap Contract Formation 9 3
B. An Outline of Wrap Contract Doctrine 109
C. A New Kind of Judicial Activism 111
9. Form, Function, and Notice 1 26
A. What is a Notice? 130
B. Intent and Consent in Contracts, Torts, and Property 135
C. Contract Functionalism 140
10. Contracts in Wonderland 1 47
A. Contract Law and the Right of Publicity 155
B. Wrap Contracts and Federal Laws 162
C. Terms of Disservice 169
11. Reshaping Wrap Contract Doctrine 1 74
A. Imposing a Duty to Draft Reasonably 176
B . Tailoring Assent 1 92
C. Contract Form, Function and Doctrinal Rules 200
D. Reinvigorating the Doctrine of Unconscionability 203
12. Conclusion 2 11
t able of cases 215
index 219
Acknowledgments
This book is the culmination of years of research and writing in the area of con-
tracts and technology. Th e analysis and ideas in this book build upon and further
develop work which previously appeared in the following publications:
Th e Duty to Draft Reasonably and Online Contracts , in Commercial
Contract Law: A Transatlantic Perspective , ch. 8 (Cambridge
University Press, 2013)
Contract’s Adaptation and the Online Bargain , 79 U. Cin. L. Rev. 1327 (2011)
Wrap Contracts and Privacy (Proceedings of the Intelligent Information
Privacy Management Symposium, AAAI Press, 2010)
Bargaining Power and Background Law , 12 V and. J. Ent. & Tech. L. 93
(2009)
Website Proprietorship and Online Harassment , 2009 Utah L. Rev. 993
Th e Soft ware Licensing Dilemma , 2008 Byu L. Rev. 1103
Internet Challenges to Business Innovation , 12 J. Internet L. 3 (August 2008)
Mistakes, Changed Circumstances and Intent , 56 U. Kan. L. Rev. 473 (2008)
Clicking and Cringing , 86 Or. L. Rev. 797 (2007)
Martha Graham, Professor Miller, and the Work-for-Hire Doctrine: Undoing
the Judicial Bind Created by the Legislature , 13 J. Intell. Prop. L. 337
(2006)
Evolving Business and Social Norms and Interpretation Rules: Th e Need for a
Dynamic Approach to Contract Disputes , 84 Neb. L. Rev. 506 (2005)
Th ere are many people who have helped in diff erent ways with this book.
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