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Full-Text Articles in Law
Online Disinhibited Contracts, Wayne R. Barnes
Online Disinhibited Contracts, Wayne R. Barnes
Faculty Scholarship
There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …
The New Bailments, Danielle D'Onfro
The New Bailments, Danielle D'Onfro
Scholarship@WashULaw
The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …
Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford
Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford
Scholarly Publications
No abstract provided.
Rise Of The Digital Regulator, Rory Van Loo
Rise Of The Digital Regulator, Rory Van Loo
Faculty Scholarship
The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. …
Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman
Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman
Law Faculty Publications
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 …
Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, Nancy Kim, D.A. Jeremy Telman
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 …
Chain-Link Confidentiality, Woodrow Hartzog
Chain-Link Confidentiality, Woodrow Hartzog
Faculty Scholarship
Disclosing personal information online often feels like losing control over one’s data forever; but this loss is not inevitable. This essay proposes a “chain-link confidentiality” approach to protecting online privacy. One of the most difficult challenges to guarding privacy in the digital age is the protection of information once it is exposed to other people. A chain-link confidentiality regime would contractually link the disclosure of personal information to obligations to protect that information as the information moves downstream. The system would focus on the relationships not only between the discloser of information and the initial recipient, but also between the …
Defending Disclosure In Software Licensing, Robert A. Hillman, Maureen O'Rourke
Defending Disclosure In Software Licensing, Robert A. Hillman, Maureen O'Rourke
Cornell Law Faculty Publications
This Article surveys prominent kinds of disclosures in contract law-of facts, contract terms, and performance intentions. We show why the disclosure tool, although subject to substantial criticism, promotes important social values and goals, including efficiency, autonomy, corrective justice, fairness, and the legitimacy of the contract process. Further, proposals to replace disclosure with other alternatives are unrealistic because they are too expensive or complex. Our working example is the American Law Institute's Principles of the Law of Software Contracts.
Website Design As Contract, Woodrow Hartzog
Website Design As Contract, Woodrow Hartzog
Faculty Scholarship
Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of …
A Winning Solution For Youtube And Utube? Corresponding Trademarks And Domain Name Sharing, Jacqueline D. Lipton
A Winning Solution For Youtube And Utube? Corresponding Trademarks And Domain Name Sharing, Jacqueline D. Lipton
Articles
In June of 2007, the United States District Court for the Northern District of Ohio ruled on a motion to dismiss various claims against the Youtube video-sharing service. The claimant was Universal Tube and Rollform Equipment Corp ("Universal"), a manufacturer of pipes and tubing products. Since 1996, Universal has used the domain name utube.com - phonetically the same as Youtube's domain name, youtube.com. Youtube.com was registered in 2005 and gained almost-immediate popularity as a video-sharing website. As a result, Universal experienced excessive web traffic by Internet users looking for youtube.com and mistakenly typing utube.com into their web browsers. Universal's servers …
Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher
Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher
Faculty Scholarship
This Essay explores the enforceability and presence of pro-seller contract terms in internet retail contracts. Analyzing case law on internet contract enforceability and a survey of 500 firms'websites, it demonstrates that even the enforceability of many internet contracts is questionable. It then presents new data that suggest that the prevalence of pro-seller contract terms is far less than usually assumed. It suggests that the benefit of making these terms enforceable is outweighed by the loss of user friendliness required for the necessary interface changes. Finally, it uses fresh statistical analyses to determine what relationship, if any, exists between enforceability, pro-seller …
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Faculty Scholarship
The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …
Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai
Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai
Articles in Law Reviews & Other Academic Journals
From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …