August 26, 2009
The First Week: A Hypothetical
As I indicated in my last post, on the first day of class, I discuss with my students a case, Ray v. William G. Eurice Bros., in which a party is held to the terms of a contract signed by one of its principals, although another principal claims that he never saw the agreement and would never have agreed to its terms had he seen it. As expected, my student were not all that sympathetic to the Brothers Eurice, who were, after all, in the construction business and should have read the construction specifications at issue before signing the agreement to which they were attached. But when I threw out the follow-up question, "What kind of person signs a contract without reading it," my students surprised me by volunteering that they all do. This took some of the wind out of my sails, but that's alright. We proceeded nonetheless to a discussion of the Google Terms of Service, which are included in the Farnsworth (ed.) statutory supplement that I use with the course.
After we acknowledge that we all agree -- without reading or understanding them -- to the terms of license agreements by clicking the "I agree" icon that appears as we install the software that we download, I present them with the following hypothetical that requires them to look at the Google Terms of Service in some detail:
I download Google software so I can set up a gmail account, and in so doing I agree to the Terms of Service.
After I have been using the product for one month, the software interacts poorly with Microsoft software on my computer. The result is the complete and irreparable destruction of my hard drive, containing my only copy of a scholarly work in progress which would undoubtedly have brought me everlasting fame as a contracts master scholar.
I immediately use my office computer to access my gmail account and tell the world how dangerous, unreliable, odious and vile Google is, and of course I sue.
Do I have a remedy under the terms of service?
Google responds by immediately closing off my access to my gmail account and by forwarding to my wife my extensive correspondence with my mistress, all of which I composed and received on my gmail account. Google also brings suit against me seeking to enjoin me from further negative comments about its services.
Can Google do these things?
We had a good discussion of the hypothetical today. My students got the obvious point that "I" was likely without a remedy against Google, and even if I could bring a claim I would have to do so in California. Views were divided as to whether Google could distribute my e-mails without my permission. The students also recognized how unlikely it was that Google would do so for reasons that have nothing to do with its legal rights. So, believe it or not, we got into a discussion of law and social norms in the first week of law school because the students brought it up!
The rest of the discussion was more or less as I had planned. We discussed form contracts and the troubles they raise in terms of fairness to consumers who lack information and bargaining power. We also discussed the benefits that consumers enjoy because courts permit businesses to reduce transactions costs by enforcing form contracts.
Both this year and last year I have had the benefit of the perspective of students who come to us with training and experience in non-U.S. law. I have learned from these students that in both Europe and Latin America the law is less deferential to the terms of form contracts. I've found that foreign students are often astonished by the difference in approaches in the area of consumer protection law. They find it hard to believe that U.S. courts enforce, for example, the arbitration and choice of forum clauses that have become a standard component of contracts of adhesion in the U.S.
P.S. I apologize for the varying font sizes. I am having a hard time adjusting to the new Typepad.
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OK... I liked Brietzke, I really did. But where were you when I was in law school? :)
Posted by: Jeff | Aug 29, 2009 7:10:49 AM