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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Wednesday, August 7, 2013

Response to Jeremy Telman's Post about Op-Ed on Wrap Contracts

This post responds to the thoughtful comments offered by my co-blogger Jeremy Telman in his post about my op-ed.  As he hinted, an op-ed provides a great forum for raising issues to a larger, non-academic audience but it is hardly the place to be thorough. Jeremy’s post gives me an opportunity to briefly touch upon the issues that I address in my forthcoming book.  (Note:  If you use the promotion code 31998 and click here you get a 20% discount).

Danger signJeremy raised the issue of the inadequacy of doctrinal solutions.  In fact, all of my proposed solutions are doctrinal.  There are undoubtedly more effective way to achieve societal changes, but doctrine obviously matters and right now, the law of wrap contracts is a mess.  It’s in a mess in a lot of different ways, yet the courts seem to be in denial, repeating the refrain that wrap contracts are “just like” other contracts. This is simply not so.  Much of my scholarship looks at how technology shapes behavior and argues that courts should consider the role of technology when they interpret and apply the law.  With respect to wrap contracts, courts ignore the ways that digital form affects both user perception and drafter behavior (i.e. overuse).  My proposed solutions seek to make the effects of the digital form part of the court’s analysis. 

One of these solutions, briefly mentioned in the op-ed and discussed in the book and elsewhere,  is a “duty to draft reasonably” which acts to counter the burden of the “duty to read.”  The duty to draft reasonably has very little to do with getting consumers to read contracts – it’s about getting companies to ask for less by making it less palatable for them to ask for more. As I explain in great length in my book, there are plenty of reasons why I am not a big fan of the duty to read –and why I think trying to get consumers to read is an inadequate solution.  Consumers shouldn’t be expected to read online contracts, at least, not as they are now drafted.  Reading wordy online contracts is not efficient and would hurt productivity. It’s also useless, since consumers can’t negotiate most terms.  Instead, we should try to get companies to present their contracts more reasonably/effectively.  We should require them to signal the information in an effective manner, the way that road signs signal dangerous conditions.  For example, I propose using icons, such as the danger icon that accompanies this post, to draw consumers’ attention to certain information.  Currently, courts construe “reasonable notice” to mean something other than “effective notice” – and this places too heavy a burden on consumers to ferret out information.  A “duty to draft reasonably” shifts the focus from the consumer's behavior to the drafting company’s behavior.  Could the company have presented the information in a better way? And if so, why didn’t it?  This is a question that courts used to ask with paper contracts of adhesion – but for some reason, they have moved away from this with wrap contracts. 

A related doctrinal adjustment that I propose in my book is specific assent.  For terms that take away user rights (which I refer to as “sword” and “crook” provisions), the user should be forced to actively assent by, for example, clicking on an icon.  The idea here is also not to get users to read, but to hassle them!  Imagine  having to click to give away each use of your data.  What a pain – and that’s the point.  The incorporation of a transactional hurdle or burden damages the relationship between the website and the user – and the more hurdles, the more annoying it becomes to complete the transaction. 

 Both proposals try to signal the type of company to the consumer.  A website full of danger icons sends a very different message than one with only one or two danger icons.  A website which requires a user to click forty times to complete a transaction won’t be around too long. 

As for better solutions, there are ways to address specific problems by using third party tools and I am all in favor of technical solutions.  For example, you can use duckduckgo or Tor to try to cover your tracks. But technical solutions have their shortcomings or limitations because they only address one part of the larger problem and it gets to be a bit like whack-a-mole as technology shifts and improves. 

Ultimately, any comprehensive solution has to be implemented by the government – either the legislature or the judiciary.  But it’s up to us, the consumers, to raise the issue as one needing a solution and we can do this through the democratic process and by marching with our feet. I agree with Jeremy that there are problems with collective action – there are coordination and resource issues as well as cognition limits, but that doesn't mean we shouldn't do anything. I don’t want to get into the thicket of that in this already too-long post, but I address this issue at great length in my book and propose that one way to deal with this is by reconceptualizing unconscionability.

Consumer advocacy groups and the websites referred to by Jeremy in his post certainly help with the collective action problem.  They inspire us to get off the couch.  Not easy when companies make it so comfortable for us to do nothing but that’s the nature of the beast here – it’s the same in other areas where consumers face the corporate marketing machinery and its expertise in manipulation.  As Kate O'Neill notes in the comments to Jeremy's post, we contracts profs have a role which is to point out the inconsistencies and contradictions in judicial application of doctrine and propose better ways to evaluate legal issues.  Some may scoff that judges don’t read law review articles --or books written by academics-- but it’s our job to keep trying.

 

[Nancy Kim]

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