Law Commons^™

Online Disinhibited Contracts, Wayne R. Barnes

Pepperdine Law Review

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, …

Contract Creep, Tal Kastner, Ethan J. Leib

Faculty Scholarship

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …

Contract Creep, Tal Kastner, Ethan J. Leib

Scholarly Works

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …

Liberalism’S Fine Print: Boilerplate’S Allusion To Human Nature, Kenneth K. Ching

Marquette Law Review

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The Choice Of Law Clause In Contracts Between Parties Of Developing And Developed Nations, Alice M. Vickers

Georgia Journal of International & Comparative Law

No abstract provided.

Expanded Merchant Tort Liability, Democratic Degradation, And Mass Market Standard Form Contracts—A Two-Part Critique Of Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Part Ii), Steven W. Feldman

Cleveland State Law Review

Analyzing a difficult subject that pervades contract law and which is vital to the national economy, many scholars have written about boilerplate contracts. With her 2013 book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, Professor Margaret Jane Radin weighs in on the discussion. In a complement to existing contract remedies against abusive boilerplate, she proposes a new tort that she calls “intentional deprivation of basic legal rights.” She also identifies another new tort theory that deems abusive boilerplate to be a defective “product” under the law of products liability.

Radin further contends that these merchant practices …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

The Limits Of Limiting Liability In The Battle Of The Forms: U.C.C. Section 2-207 And The "Material Alteration" Inquiry, Colin P. Marks

Pepperdine Law Review

No abstract provided.

Standardization As A Solution To The Reading Costs Of Form Contracts, Abraham L. Wickelgren

Abraham L. Wickelgren

It is well-known that a monopolist cannot commit to offer a high quality contract to a consumer reading costs are postive. This paper shows that this also holds in a competitive environment with consumer heterogeneity if the contract space is unrestricted. If firms can offer standardized contracts from a finite set, however, each with a standardized name, this paper shows that, when reading costs are not too large, there exists an equilibrium in which firms offer the most efficient contracts from the set of named contracts and consumers purchase the most efficient contracts offered without incurring any reading costs.

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes

Wayne Barnes

Standard form contract are ubiquitous, whether signed in the real world or clicked in the online world. Consumers are constantly entering into standard form contracts with the merchants they transact with in order to buy goods or services. Consumers, however, are usually aware of only the basic terms in the form like price, subject matter, and quantity. Consumers otherwise rarely read the form contracts that they sign. However, traditional contract law and the duty to read provide that the consumer is bound to all the terms contained in the form contract, both the known terms and the unread and unknown …

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne R. Barnes

Wayne R. Barnes

Clicking And Cringing, Nancy Kim

Nancy Kim

Shrinkwrap, clickwrap and browsewrap licenses have complicated contract law by introducing non-traditional 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. Some commentators have argued that existing contract law doctrines – such as unconscionability and good faith – are sufficient to address digital-era contracting dilemmas. While …

Preface: Or: A Boilerplate Introduction, Omri Ben-Shahar

Book Chapters

It is tempting to open this volume with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. Ifi were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of bargaining …

Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White

Book Chapters

This chapter examines the boilerplate contracts used by auto makers to procure parts from suppliers. It identifies drafting and negotiation techniques that are used to secure advantageous terms. It also explores some prominent specific arrangements as evidence that firms with bargaining power are exploiting their position to dictate self-serving but inefficient terms. Finally, it shows how standard contractual clauses solve the problem of ex-post hold-up by suppliers.

Got Wheels? Article 2a, Standardized Rental Car Terms, Rational Inaction, And Unilateral Private Ordering, Irma S. Russell

Faculty Law Review Articles

This article considers the system of unilateral private ordering by form contracts: the presumptions of a free market and free bargaining. It questions whether the system of constrained judicial oversight that serves to insulate bargaining from governmental control should extend to standardized consumer contracts that emphatically dispense with bilateral ordering. It also questions whether the unilateral private ordering presented by standardized contracts effects a cost savings for society, a construct with apparently universal acceptance today. This article considers the application of Article 2A to standard form contracts in the most common consumer leasing transaction -- renting a car.

Part II …

Performance Risk, Form Contracts And Ucita, Leo L. Clarke

Michigan Telecommunications & Technology Law Review

No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the "information economy" would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the "Conference") has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ("UCITA")--drafted to provide the background law for many of the most significant transactions in the information …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

The Reunification Of Contract: The Objective Theory Of Consumer Form Contracts, Michael I. Meyerson

All Faculty Scholarship

Despite the ubiquitousness of standard form contracts in the world of consumer transactions, there is no consensus as to how these contracts ought to be constructed. Some courts continue to treat form contracts as if they were classically negotiated contracts. Others attempt in a variety of ways to factor in the reality that consumers entering into these contracts are not able to negotiate the terms and almost always sign these documents, which are presented on a take-it-or-leave-it basis, without reading them. This article posits that the cause of this continued confusion over form contracts is due to a basic failure …

A Critique Of The Reasonable Expectations Doctrine, Stephen Ware

Stephen Ware

This Comment argues that the doctrine should be abandoned.