Law Commons^™

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Faculty Scholarship

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement ("DRM"), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

The Faulty Foundation Of The Draft Restatement Of Consumer Contracts, Adam J. Levitin, Nancy Kim, Christina L. Kunz, Peter Linzer, Patricia A. Mccoy, Juliet M. Moringiello, Elizabeth A. Renuart, Lauren E. Willis

Faculty Scholarship

Professor Gregory Klass's replication study of the Draft Restatement of the Law of Consumer Contract's empirical analysis of privacy policies found troubling and pervasive problems with the Reporters' coding of cases. We extended Professor Klass's study with a replication of the coding of the two largest datasets supporting the Draft Restatement, those on the enforceability of unilateral contract modifications and those on the enforceability of clickwrap assent. For the replication, we reviewed 186 cases blind to the Reporters' coding.

We found that nearly two-thirds of the cases in the unilateral modification dataset were irrelevant to the hypothesis tested by the …

In Re Marriage Of Witten: Subordinating Contract To "Public Policy", Nancy S. Kim

Faculty Scholarship

No abstract provided.

Relative Consent And Contract Law, Nancy Kim

Faculty Scholarship

What does it mean to consent? Consent is an essential component of contracts, yet its part in contract law is obscure. Despite its importance, there is no independent doctrine of consent; rather, it plays a key, but ill-defined role in assessing doctrines such as assent or duress. This Article addresses this significant omission in contract law by disassembling the meaning of contractual consent into three conditions: an intentional act or manifestation of consent, voluntariness and knowledge. This Article argues that consent can only be understood relative to these three conditions. Accordingly, consent is not merely a conclusion but a process …

Illiberty Of Contract, Donald J. Smythe

Faculty Scholarship

The term “liberty of contract” is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market transactions. But the term is ironic because a contract is only legally binding if courts will enforce it. Since courts derive their authority because they are the third branch of government, they are State actors and contractual enforcement involves the exercise of the State’s powers of …

Reasonable Standards For Contract Interpretations Under The Cisg, Donald J. Smythe

Faculty Scholarship

The United Nations ("UN") Convention on Contracts for the International Sale of Good ("CISG") offers the promise of harmonizing international sales law and facilitating international trade and global commerce. But there is a "homeward trend bias" that may encourage domestic courts to construe the gaps in the CISG broadly and fill them with non-uniform domestic legal rules. Questions about contract interpretation under the CISG raise the same concerns about a homeward trend bias as questions about the interpretation of express CISG provisions. The CISG has express provisions governing contract interpretation but their application may not provide an unambiguous interpretation. This …

Online Contracting, Nancy Kim

Faculty Scholarship

No abstract provided.

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, Nancy Kim, D.A. Jeremy Telman

Faculty Scholarship

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

Flexibility And Stability In Contracts, Thomas D. Barton, Helena Haapio, Tatiana Borisova

Faculty Scholarship

No abstract provided.

Wrap Contract Morass, Nancy Kim

Faculty Scholarship

No abstract provided.

Situational Duress And The Aberrance Of Electronic Contracts, Nancy Kim

Faculty Scholarship

This article explains how the aberrant nature of electronic contracts has unique effects. Companies take advantage of these unique effects and use electronic contracts in a coercive manner. This article proposes the new defense of “situational duress” to address the exploitative use of electronic contracts in certain situations.

Part I explains why electronic contracts are aberrant and explains how the developing law in this area deviates from traditional contract doctrine. This section also discusses how the electronic form affects consumer behavior and understanding of contract terms. Part II provides background to the traditional doctrine of duress and introduces the concept …

Boilerplate And Consent, Nancy Kim

Faculty Scholarship

In Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask …

Two Alternate Visions Of Contract Law In 2025, Nancy Kim

Faculty Scholarship

Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered …

Visualization: Seeing Contracts For What They Are, And What They Could Become, Thomas Barton, Gerlinde Berger-Walliser, Helena Haapio

Faculty Scholarship

Commercial contract users read their contract documents infrequently, and understand them inadequately. The disincentives may be several: contract language may be too technical and too long; contracts may be organized around ensuring or avoiding legal liability rather than providing guidance toward performing contractual responsibilities; or contracts may rarely include frameworks that would prompt the parties to explore new opportunities. For whatever reason, the neglect by users of contractual documents can lead not only to unpleasant surprises in the performance or enforcement of particular contractual duties, but also to chronic underuse of contracts as potential instruments for planning, innovation, commercial relationship-building …

Consideration For A Price: Using The Contract Price To Interpret Ambiguous Contract Terms, Donald J. Smythe

Faculty Scholarship

No abstract provided.

Innovating Contract Practices: Merging Contract Design With Information Design, Stefania Passera, Helena Haapio, Thomas D. Barton

Faculty Scholarship

The work and expertise of contracts professionals are vital to the operations of modern organizations and the global economy. Strategic planning as well as everyday transactions can be conceived, developed, secured, and implemented through contractual relationships. This accelerating importance and functionality of contracts is not matched, however, by their traditional format or drafting process. Indeed, their mission-critical value is not fully appreciated by decision makers. Many opportunities offered by contracts remain unexplored if contracts are seen merely as legal tools needed only in case a dispute arises. A fresh approach to contracts and contracting is called for.

Drawing on the …

Contract's Adaptation And The Online Bargain, Nancy Kim

Faculty Scholarship

The model of traditional contracts is that of two individuals negotiating terms that are to each party's advantage. This model persists even though it no longer reflects the reality of consumer contracts. This Article traces the evolution of modern day consumer contracts and explains how courts have accommodated business needs by distorting contract law. This Article argues that the doctrine of consideration should be reconceptualized in light of new technologies and changes in doctrinal application. It concludes that in order to restore contract law's legitimacy, courts must allocate the burdens of technological and doctrinal changes in a more evenhanded manner. …

Arbitration's Summer Soldiers Marching Into Fall: Another Look At Eisenberg, Miller, And Sherwin's Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Nancy Kim

Faculty Scholarship

Our empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in …

Expanding The Scope Of The Principles Of The Law Of Software Contracts To Include Digital Content, Nancy Kim

Faculty Scholarship

The Principles of the Law of Software Contracts, or the "Principles," seek to "unify and clarify" the law of software transactions. The drafters, however, excluded "digital content" from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as "classification confusion." Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to …

Reasonable Expectations In Socio-Cultural Context, Nancy Kim

Faculty Scholarship

Under the objective theory of contract, courts interpret the intent of the parties in adopting a particular contractual term according to the reasonable meaning of that term, or the meaning that a reasonable person would assign to that term. Courts adopt the objective theory to determine all aspects of the understanding between the parties-from the determination of contract formation, to an evaluation of the meaning of written or spoken terms, to an assessment of contract performance. In a series of articles, Professor Melvin Eisenberg explained how modern contract law evolved from the will theory to the classical model, and from …

Bargaining Power And Background Law, Nancy Kim

Faculty Scholarship

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …

The Software Licensing Dilemma, Nancy Kim

Faculty Scholarship

This Article makes two arguments. First, the dilemma posed by software transactions-sales or licenses?-should be answered by dynamic contract law. Dynamic contract law has as its objective effectuating the intent of the parties but weighs that objective against policy considerations. Second, the validity of a license grant should not be inextricably tied to the validity of the contract as a whole. The problem with relying on contract doctrine in the context of software licensing is that, too often, the application of that doctrine is static and formalistic. A new doctrine is not necessary to address software licensing issues; rather, the …

Mistakes, Changed Circumstances And Intent, Nancy Kim

Faculty Scholarship

The most common contract defenses are duress, unconscionability, incapacity, fraud, and the basic assumption. defenses4 of mutual mistake, unilateral mistake, impossibility, frustration of purpose and commercial impracticability. In this Article, I limit my discussion to basic assumption defenses. Several prevailing rationales explain why a party should be allowed to escape contractual liability despite the sufficiency of consideration where there has been a failure of a basic assumption material to the transaction. No single rationale or principle, however, unifies all basic assumption defenses. Several commentators have noted that similar fact patterns applying a given doctrine often yield inconsistent results. Parties’ employment …

Internet Challenges To Business Innovation, Nancy Kim

Faculty Scholarship

No abstract provided.

Clicking And Cringing, Nancy Kim

Faculty Scholarship

Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a …

Evolving Business And Social Norms And Interpretation Rules, Nancy Kim

Faculty Scholarship

Rapid societal and technological changes - such as the rise in electronic commerce, increasing diversity and globalization - create contract interpretation issues that require a dynamic approach. While many modern contractual disputes arise from a confluence of factors, contract doctrine has tended to adopt a unitary approach to problems with an emphasis on interpretation of words. This article argues that non-intuitive interpretation rules work to the disadvantage of language and cultural minorities and should only be used if their purpose is to determine the intent of the parties or to uphold a policy or legislative objective. A dynamic approach is …