ContractsProf Blog

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

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Wednesday, April 16, 2014

New in Print

Pile of BooksKenneth A. Adams, Dysfunction in Contract Drafting: The Causes and the Cure (Reviewing Mitu Gulati & Robert E. Scott, The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design (2013)), 15 Transactions: The Tenn. J. of Bus.L. 317 (2014)

Andrea J. Boyack, Sovereign Debt and The Three and A Half Minute Transaction: What Sticky Boilerplate Reveals about Contract Law and Practice (Reviewing Mitu Gulati and Robert E. Scott, The Three and A Half Minute Transaction: Boilerplate and the Limits of Contract Design), 35 Whittier L. Rev. 1 (2013)

Senator Elizabeth Warren, Stewart Macaulay: A Few Personal Reflections, 2013 Wisc. L. Rev. 1295

Richard R.W. Brooks, On the Empirical and the Lyrical: Review of Revisiting the Contracts Scholarship of Stewart Macaulay (Edited by Jean Braucher, John Kidwell & William C. Whitford) 2013 Wis. L. Rev. 1295-1354.

Emory LJ

THE 2013 RANDOLPH W. THROWER SYMPOSIUM
Privatization: Managing Liability and Reassessing Practices in Local and International Contexts 

ARTICLES 

Alex Kozinski & Andrew Bentz, Privatization and Its Discontents 

April 16, 2014 in Books, Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, April 9, 2014

New in Print

Pile of Books Lisa  Tripp & Evan R. Hanson. AT&T v. Concepcion: The Problem of a False Majority, 23 Kan. J.L. & Pub. Pol'y 1 (2013)

Adrian Roberto Villagomez Aleman, Book note (Reviewing Margaret L. Moses, The Principles and Practice of International Arbitration, 2nd ed.) 31 Berkeley J. Int'l L. 461 (2013)

Books: 

 Jack Graves, Learning Contracts (West 2014)

Learning Contracts relies on more than appellate opinions to teach students the law. Structured presentations, detailed explanations, illustrative examples, and helpful summaries provide for more efficient learning and understanding of basic doctrine in advance of class, thus facilitating a “flipped-classroom" approach. With this approach, much more of your valuable class time can be spent on problems—both those included at the end of each lesson for preparation by students before class and others provided in teaching materials for “real time” problem solving during class. This new book provides substantial coverage of common law, UCC Article 2, and the CISG (using a “comparative” approach) and can reasonably be completed in a 4 credit hour course, or liberally supplemented with skills-building exercises for a 5 or 6 credit hour course.

David G. Epstein, Bruce Markell & Lawrence Ponoroff, Cases and Materials on Contracts: Making and Doing Deals (West 2014)

Making and Doing Deals is a book that your students will learn from long after they graduate. It is also a book that should be fun for you to teach from.  It’s a book that students will enjoy, and, therefore, a book that they will read.  Since the First Edition, students have been reading Making and Doing Deals because the cases, problems, and text not only help them learn what they need to know as first-year law students, but also address the real-world problems and situations they will encounter after their final exam.

April 9, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, April 2, 2014

New in Print

Pile of BooksFranco Ferrari, PIL and CISG: Friends or Foes? 31 J.L. & Com. 45 (2012-2013)

James D. Rendleman, Brave New World of Hosted Payloads, 39 J. Space L. 129 (2013)

 Maj. Travis P. Sommer, Getting the Job Done: Meaningfully Investigating Organizational Conflicts of Interest, Army Law. 16 (2013)

Dmytro V. Vorobey, CISG and Arbitration Clauses: Issues of Intent and Validity, 31 J.L. & Com. 135 (2012-2013)

In addition, we have this special issue on Larry Cunningham's Contracts in the Real World in the Washington Law Review

The Perspective of Law on Contract

Aditi Bagchi
88 Wash. L. Rev. 1227

View Abstract    Full Article

Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World

Brian H. Bix
88 Wash. L. Rev. 1251

View Abstract    Full Article

Real WorldReflections on Contracts in the Real World: History, Currency, Context, and Other Values

Lawrence A. Cunningham
88 Wash. L. Rev. 1265

View Abstract    Full Article

Contract Stories: Importance of the Contextual Approach to Law

Larry A. DiMatteo
88 Wash. L. Rev. 1287

View Abstract    Full Article

Contract as Pattern Language

Erik F. Gerding
88 Wash. L. Rev. 1323

View Abstract    Full Article

Cases and Controversies: Some Things to Do With Contracts Cases

Charles L. Knapp
88 Wash. L. Rev. 1357

View Abstract    Full Article

Unilateral Reordering in the Reel World

Jake Linford
88 Wash. L. Rev. 1395

View Abstract    Full Article

Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students

Jennifer S. Taub
88 Wash. L. Rev. 1427

View Abstract    Full Article

April 2, 2014 in Books, Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Wednesday, March 5, 2014

New in Print from Carolina Academic Press

Nygren & KatzCarolyn J. Nygren & Howard E. Katz, Starting Off Right in Contracts (2d Ed. 2014)

To do their best on the final exam, students need a strategy to approach the course material efficiently and to organize it in a logical manner. This book gives students that and more. In chapters on contract formation, defenses, breach and remedies, and multi-issue fact patterns, the authors show students how to answer sample questions, use a step-by-step method that will improve their ability to analyze contracts problems, and effectively demonstrate their knowledge to the professor.

Charles Calleros & Stephen Gerst, Contracts: An Electronic Text: Cases, Text & Problems (2013 ed.)

Contracts: Cases, Text, and Problems is an electronic casebook available in PDF format. The 2013 edition is updated to July 2013.

Calleros & GerstCreated initially for a four-unit Contracts course at ASU, Professor Calleros designed Contracts: Cases, Text, and Problems as an "open-source" textbook. Other professors of contract law are invited to become “co-authors” by tailoring the book to their own courses. As an open-source book, professors can add, delete, or replace material as dictated by their own teaching styles and points of emphasis. Contracts offers professors a unique and innovative way to teach students in an up-to-date way, with easily customized material, and without being forced to buy multiple books and supplements.

Most topics in the book present material in the fashion in which new associates typically address an assignment in a law office: they (1) consult a secondary source or an expert within the firm for general background information and to identify issues and authority {the book provides treatise-style background information on most topics before diving into the main cases}, (2) associates then study specific decisions on point in the relevant jurisdiction {the book presents plenty of case law, as is customary with any "casebook"}, and (3) they apply their newly synthesized knowledge of the law to the facts of a new dispute or other problem presented to them {the book provides many more exercises and practice exams than the standard casebook, including a fair number of drafting exercises}. The book thus includes the written equivalent of a combination of introductory lecture, case method, and problem method.

To combat the high cost of casebooks, the 509-page book is available at a very modest price for permanent download of any of the electronic formats. Each purchaser is permitted to download the purchased file on any computer or electronic device used exclusively by that purchaser. Purchasers agree not to transfer files to others or to allow others to use their files.

The book analyzes selected provisions of the Restatement (Second) of Contracts but does not reproduce it in its entirety, to avoid advancing the common student practice of treating the Restatement like a collection of statutes. It reproduces most of articles 1 and 2 of the UCC as enacted in Arizona, to better illustrate the nature of the UCC as a uniform code that is adopted and codified by individual state legislatures.

March 5, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

Thursday, February 27, 2014

Margaret Jane Radin responds

Readers of this blog will remember that last year we hosted a lively symposium on Margaret Jane Radin's book, Boilerplate:  The Fine Print, Vanishing Rights, and the Rule of Law.

Others entered into the discussion in different avenues, including Omri Ben-Shahar with his essay reviewing Radin's book.  Margaret Jane Radin responds to Ben-Shahar's essay here.

The debate about mass consumer form contracts is far from over....

 

February 27, 2014 in Books, Miscellaneous, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

New in Print, Including Books

Pile of BooksRandall S. Davidson & Andrew D. Martin, Mineral Lease Division Revisited-- An Old Doctrine with New Applications, 2 LSU J. Energy L. & Resources 1 (2013)

Michael A. Dorelli & Kimberly L. Cohen, Recent Developments in Indiana Business and Contract Law, 46 Ind. L. Rev. 943 (2013) [we'll be mining this for blog fodder in the weeks to come]

Robert Downey, Edward K. Gross & Stephen T. Whelan, Leases, 68 Bus. Law. 1191 (2013)

Jennifer S. Martin, Sales, 68 Bus. Law. 1173 (2013) [more mining to do here]

And new in books

 

RiceWilly E. Rice, Contract Law: Practice, Interpretation, and Enforcement teaches common-law principles regarding the formation, interpretation and enforcement of contracts and stand-alone promises. More specifically, the casebook discusses theories of recovery, and explains the practicable application of those theories in legal complaints and answers. In addition, the casebook covers Article 2 of the Uniform Commercial Code, which governs the formation and enforcement of sale-of-goods contracts.

Most legal casebooks generally focus on the theoretical. Contract Law, however, covers legal and statutory theories as well as civil procedures, and the practice of law in everyday life. Therefore, the casebook gives first-year students valuable skills that they can use throughout their legal careers.

Contract Law is literally two textbooks in one and can be used for a full year of instruction. Therefore, it is ideal for law school courses in contracts. And, to re-emphasize, the text teaches students how to construct plaintiffs’ complaints, and defendants’ answers using common-law and UCC-related theories of recovery and affirmative defenses.

Robert D. Brain, Brain's Exam Pro on Contracts, Essay

This Exam Pro consists of essay questions actually given by Contracts professors throughout the United States. Every question contains a detailed explanation, along with analytical steps explained in easy-to-understand, basic language, and a step-by-step guide on how to analyze each major issue. Both Professor “model” answers and student “actual” answers are provided to allow students to get a feel for all the issues that could have been discussed on some questions, and what is realistic for a student to actually answer under timed conditions. The Preface includes tips on how to take essay exams. A general “List of Issues” covered on each question is provided, so the student can decide whether or not to use a particular question given the course coverage in the student’s Contracts class. Similarly, an “Index of Issues” is provided so the student can easily find all the questions that deal with a particular substantive issue which allows for repetitive testing on a troublesome issue. Each answer includes cross-references to the applicable sections of the Restatement (Second) Contracts and the Uniform Commercial Code, and citations to the more important cases in Contracts law, allowing the student to easily match the subject matter of the question to his or her outline and class discussion. Cross-references are included in every answer to relevant portions of Sum & Substance: Quick Review of Contracts, allowing for easy reference if more substantive knowledge is either needed or desired.

January 22, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

Friday, January 17, 2014

A Lesson in Relational Contracts from James Joyce

JoyceThe main character of James Joyce's short story, "A Mother" (beginning on p, 103 of the link), is a naturally pale woman with  an unbending manner who made few friends at school.  She became Mrs. Kearney out of spite, Joyce tells us, when her friends began to loosen their tongues regarding her impending spinsterhood.  Hoppy Holohan had been attempting for nearly a month to arrange a series of concerts for the Eire Abu Society, but he had no success until he came across Mrs. Kearney, who then "arranged everything."  

She did so because she desired that her daughter, Kathleen, perform as accompanist at the Society's concerts.  Once Mr. Holohan approached her, Mrs. Kearney "entered heart and soul into the details of the enterprise, advised and dissuaded: and finally a contract was drawn up by which Kathleen was to receive eight guineas for her services as accompanist at the four grand concerts." 

The relationship sours as soon as the concerts begin.  Wednesday's concert is poorly attended.  Thursday's concert is better attended, but the audience "behaved indecorously, as if the concert were an informal dress rehearsal."  Moreover, as Mrs. Kearney noted, and Mr. Holohan conceded, "the artistes" were not good. But the real conflict arose over a decision by the "Cometty" of the Society to reduce the number of concerts from four to three.  Mrs. Kearney attempted to protest to Mr. Holohan that any such decision did not alter the contract, and her daughter would be paid for all four concerts.  

 We none of us can help our natures, and Mrs. Kearney's frosty and haughty disposition, coupled with Mr. Holohan's well-intentioned ineptitude combine to form the equivalent of Chekhov's gun introduced in Act I which must be fired in Act III.  When Mrs. Kearney threatens that her daughter be paid in advance or she will not perform in the final contract, Mr. Holohan attempts to disclaim all authority and refers her to the elusive Mr. Fitzpatrick.  

One Mr. O 'Madden Burke was to write a notice of the concert for The Freeman.  Joyce describes him as "a suave, elderly man who balanced his imposing body, when at rest, upon a large silk umbrella. His magniloquent western name was the moral umbrella upon which he balanced the fine problem of his finances. He was widely respected."  After a few rounds of haggling over Ms. Kearney's pay, Mr. O 'Madden Burke declared that "Ms. Kathleen Kearney's musical career was ended in Dublin."

There are dangers in insisting that contractual promises are irrevocable.  

January 17, 2014 in Books, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, January 9, 2014

New in Print, Including Books

Only one article this week:

Robert W. Emerson and Uri Benoliel, Can Franchisee Associations Serve as a Substitute for Franchisee Protection Laws? 118 Penn St. L. Rev. 99 (2013)

But also a new book:

Mitchill Book

Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation

By Catherine Mitchell

An oft-repeated assertion within contract law scholarship and cases is that a good contract law (or a good commercial contract law) will meet the needs and expectations of commercial contractors. Despite the prevalence of this statement, relatively little attention has been paid to why this should be the aim of contract law, how these 'commercial expectations' are identified and given substance, and what precise legal techniques might be adopted by courts to support the practices and expectations of business people. This book explores these neglected issues within contract law. It examines the idea of commercial expectation, identifying what expectations commercial contractors may have about the law and their business relationships (using empirical studies of contracting behaviour), and assesses the extent to which current contract law reflects these expectations. It considers whether supporting commercial expectations is a justifiable aim of the law according to three well-established theoretical approaches to contractual obligations: rights-based explanations, efficiency-based (or economic) explanations and the relational contract critique of the classical law. It explores the specific challenges presented to contract law by modern commercial relationships and the ways in which the general rules of contract law could be designed and applied in order to meet these challenges. Ultimately the book seeks to move contract law beyond a simple dichotomy between contextualist and formalist legal reasoning, to a more nuanced and responsive legal approach to the regulation of commercial agreements.

Catherine Mitchell is a Reader in Law at the University of Hull.

Please click here to view the table of contents for this book

 December 2013   308pp   Hbk   9781849461214  RSP: £50 / €65

Discount Price: £40 / €52

 Hart Publishing is delighted to offer you 20% discount.

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘CONTRACTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849461214

 Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘CONTRACTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849461214

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk   

[JT]

January 9, 2014 in Books, Recent Scholarship, Web/Tech | Permalink | TrackBack (0)

Friday, November 22, 2013

Wrap Contracts Symposium, Part VII: Theresa Amato

This is the seventh in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013). 

Amato

Our seventh guest blogger, Theresa Amato, is the executive director Citizen Works which she started with Ralph Nader in 2001. After earning her degrees from Harvard University and the New York University School of Law, where she was a Root-Tilden Scholar, Amato clerked in the Southern District of New York for the Honorable Robert W. Sweet. She was a consultant to the Lawyers Committee for Human Rights (Human Rights First) and wrote an influential human rights report on child canecutters in Haiti and the Dominican Republic. She then became the youngest litigator at Public Citizen Litigation Group, where she was the Director of the Freedom of Information Clearinghouse in Washington D.C.  In 1993, Amato founded the nationally-recognized, Illinois-based Citizen Advocacy Center and served as its executive director for eight years. She currently serves as its Board President.  Most recently, she has launched Fair Contracts.org to reform the fine print in standard form contracts.  In 2009, The New Press (New York) published her book, Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny.  She also appears prominently in the Sundance-selected and Academy Awards short-listed documentary “An Unreasonable Man.”  

Nancy Kim

“Yes,” writes Professor Nancy S. Kim. “As strange as it may seem, under contract law you can legally bind yourself without knowing it.”

Contract law experts nod in accord, some in resignation or with ennui.  Non-lawyers are instead completely shocked when I describe this reality.   They have no idea that by visiting a website, sending an email, tweeting or posting, or any of these now common, everyday acts that they are giving consent to use those services and are therefore binding themselves to the various “terms of use” – even if they may have only “constructive” and not actual notice of them. 

In her valuable book, Wrap Contracts, Foundations and Ramifications, Professor Kim does a service to all by explaining how courts enforce these online contracts “where consumers have no intent of entering into a contract.”  She points out that “[t]he requirement of manifestation of consent seems to be subsumed in wrap contract cases with the issue of notice.”  As a result, “the nondrafting party does not actually need to either receive notice or understand or intend the meaning attributed by the courts to a particular action.”

Court decisions to date have favored corporate vendors over consumers whose actual online navigating experience using these products and services covered by “wrap contracts” is given insufficient acknowledgement.  No consumer wants to fill out an online form only to be then told to click somewhere else to find buried terms of use, thereby putting at risk the time they have spent entering data to confirm the transaction.    Nonetheless, as Kim concludes:

courts have constructed consent in an entirely unreasonable fashion by twisting doctrinal rules, conjuring up notice, inferring action from inaction, and blithely ignoring the central role of intent in contracts.  They engage in this hocus pocus in order to enforce transactions that they believe provide a net benefit to society.

These “wrap contracts” consumers often unknowingly “agree” to may be buried in the hyperlinks and are not merely proprietary instructions for how to use the product or service.  As Professor Kim explains,   consumers are not only under affirmative obligations in these “wrap contracts,” they may be subject to a smorgasbord of rights-reducing language.   Exclusive jurisdiction, forced arbitration, waived class actions, and the vendor’s one-way reserved rights to change the terms whenever it wants to are aggressive consumer rights reducers, often eviscerating decades of public policy and legal decisions that have afforded consumers their rights.  In some cases, consumers are agreeing to muzzle themselves from complaining about the product or service.  Fine print contracts may not only strip mine the legal rights of consumers, but they can also take or “steal” their property and privacy. 

Wrap ContractsThank you, Professor Kim for spelling it out for all to read.  Not only do consumers not need a pen to sign on a dotted line, or in some cases even a button to click that one “agrees” to terms certainly not read, but “wrap contracts” take it even further.  Consumers don’t even need to know they are agreeing, much less to what set of terms.  Nonetheless, “wrap contracts,” now often “multi-wrap contracts,” as Professor Kim notes, “by their form, permit companies to impose more objectionable terms than paper contracts of adhesion.”

When people begin to understand how their rights are treated in the “wrap contract” rabbit hole, this offends sensibilities.  For those not attuned to the “degradation of consent,” so aptly explained in Professor Margaret Jane Radin’s book Boilerplate, The Fine Print, Vanishing Rights, and The Rule of Law, this sort of contract peonage is not only unwelcome, it runs counter to everything the non-drafting parties think of as fair play. 

Professor Kim’s use of the term “crook provisions” should not be understated and aligns with popular sentiment when consumers are fully informed of this state of affairs.  Companies now grant themselves the right to “appropriate” -- once known otherwise as “stealing” or, charitably, “taking”-- from consumers for no payment.  They then turn around and make a profit on what heretofore we would have considered the possessions of the consumer, e.g. their content, images, personal information and shopping habits. 

As Professor Kim explains:  “a crook provision anticipates no such offensive action by the consumer and has no direct relationship with the product or services offered by the company.  It is simply an attempt to sneak an entitlement from the user without payment, either in terms of money or goodwill.”     Indeed.

So where is the counteraction to this outright mugging of consumer rights and property?  The ubiquity of these contracts has masked the reality of their potential to do serious harm to consumers such that consumers are not even aware of the magnitude of the problem.   

Kim notes that “What we call something matters.” I agree, and after reading her parade of horrible online scenarios in Chapter 10, “Contracts in Wonderland,” and just how far afield these “wrap contracts” are from the fundamental principles of contract law, I started thinking of new labels for these “wrap contracts” and their innocuous, almost blasé sounding, “terms of use.”  

For lack of a better term at the moment, I think we should nonetheless stop calling them “contracts” and start treating them as the equivalent of “online asbestos.”  Like asbestos in its heyday, manufacturers and service providers use “wrap contracts” everywhere.  They have properties that facilitate commerce but that does not mean that they are not toxic and dangerous for those exposed to them. 

Moreover, like asbestos, some of the dangers will not necessarily emerge for decades when content thieves and data aggregators use consumer information to the detriment of the consumers.  Perhaps due attention will be paid when the content providers, i.e. the consumers/users, begin to realize they cannot expunge those posts from their teens or more uncensored moments that now prevent them from getting hired or getting credit.   Or perhaps regulators will begin to pay sufficient attention to the one-sided misappropriations when serious amounts of data are compromised by those with criminal intent (already it is happening) and with frequency for millions of users.

The question is, how long will it take for U.S.  regulation and the courts to catch up to the need to ban or strictly limit the use of these offensive sword and crook provisions? For asbestos it took at least half a century, while manufacturers whined the whole way about regulation even as they knew for decades of its dangers much as “wrap contract” apologists do now.  No, these “contracts” may not kill you, but they can make your life miserable and we would all breathe better if consumers were treated more fairly. 

Though “online asbestos” may sound hyperbolic in academic circles, there needs to be a massive push back on behalf of consumers – for the nomenclature does matter.  “Terms of use” and “wrap contracts” sound far too innocuous when we know that people do not realize they are being exposed to, and through buried notices alone “agreeing” to, the dangerous loss of their rights and the theft of their property.   To get organized, as we at Fair Contracts educate about and encourage, the tide will not turn until people are fully aware of what happens when they alight on a website.  Ubiquity, harmonization of users, inertia, facility, consumer biases, are all operating to the detriment of consumers and to the advantage of corporate profit seekers.

Professor Kim’s doctrinal adjustments (“a duty to draft reasonably; replacing blanket assents with specific assent; considering contract function when apply existing doctrinal rules, and reinvigorating unconscionability”) are a very solid start, though they are only a beginning.  In some cases, such as replacing blanket assent with specific assents, the proposed remedy may only devolve into the Pavlovian clicking response now exercised by consumers with routine oblivion to the consequences, believing they have little choice if they want the product or service behind the click.  

Courts should be helping consumers enforce their intent, not creating doctrinal chaos as Kim writes by reciting, “law that originates from the paper-based contracting world to this brave new digitally based world when they might be better off acknowledging the difference that contract form and function make to the reasonable expectations of the parties.”  The courts have instead largely given corporations a judicial pass thus far and Professor Kim’s rebalancing of burdens (from the nondrafting party to the drafting party) is the least that they could begin to impose to adjust the invocation of the judicial force of the state.

I think we should be asking for much more on behalf of consumers and could take cues from other countries with more advanced notions of consumer protection and data privacy.  Not only should legislators, regulators and courts protect consumers from exposure to online asbestos by outright banning, or at minimum reforming, many of these harmful provisions, but corporations who have taken rights from consumers should also be required to begin remediation efforts – immediately.  These corporations can start by returning the misappropriated property and other stolen goods to their rightful owners.      

[Posted, on Theresa Amato's behalf, by JT]

 

November 22, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 21, 2013

Wrap Contracts Symposium, Part VI: Eric Zacks on Deciphering the Function of Form in Wrap Contracts

This is the sixth in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our sixth guest blogger, Eric Zacks, is an Assistant Professor of Law at Wayne State University Law School. 

Deciphering the Function of Form in Wrap Contracts 

Zacks-webForm and function collide again and again in Professor Kim’s engaging Wrap Contracts. As Kim explains, the wrap contract’s form is deeply connected to its function, and her description and devastating critique of these varying forms illuminate the complexities of how we interact with, and are affected by, such contracts. She argues that the form ought to reflect the function of the wrap contract so that users better understand the nature of the contract. In this comment, I seek to address the ways form may already reflect function, albeit not in the manner that Kim necessarily would prefer.

As in industries utilizing paper consumer contracts, competition among businesses that employ wrap contracts demands that they develop a nuanced understanding of how the non-drafting parties and judges interact with contracts. For example, we should not be surprised by contracts that induce deference to the contract as written from the non-drafting parties. To that end, the prevalence of particular wrap contract features, such as the use of multiple hyperlinks to obtain the text of a license or lengthy and complex terms, are unsurprising because they make it more unlikely that non-drafters will try to (or actually) understand the content of the contract. Similarly, delivering the product prior to, or simultaneously with, the “execution” of the contract through the use of shrinkwrap or delaying the opportunity to review contract terms until the website user has sunk time and energy into filling out an order form, deter contract term detection or review and reflect drafters’ sophisticated understanding of individual decision-making processes.

Wrap contracts presumably also could be designed to make the adjudicator comfortable with enforcing the contract as written against the non-drafting party. The “click-through” on a website is a powerful device because it lends itself nicely to a particular counterfactual analysis that “but for” the click, the customer would not have been bound. Because the customer did click, adjudicators typically conclude that she should be held responsible for the terms of the contract. Importantly, this adjudicative response is triggered even though, as Kim notes, “adherents to these contracts to these contracts are typically oblivious to what they have done,” suggesting that the click triggers a psychological response similar to contracts with a more passive means of acceptance (such as simple disclosure of terms).  

Kim’s metaphors of the shield, sword, and crook to explain the different functions of the wrap contracts (Chapter 5) also are helpful because they can help identify the underlying motivation for certain provisions. By understanding whether the primary function of the contract is to protect the drafting party (the “shield”), obtain better transaction terms (the “shield”), or seek benefits beyond the scope of the transaction (the “crook”), we may then speculate as to which form of a wrap contract makes sense from the drafter’s perspective.

Wrap Contracts

If, however, the goal is to prevent the use of the software in a particular manner, then the form of contract as it appears to the adjudicator may be more important than a contract form that deters returns. Accordingly, the contract form may emphasize notice of the terms, if not outright acceptance. I suspect that a “click-through” box may help in this regard, although the blatancy of wrongful or inappropriate use, particularly of free software, may not require an additional volitional act on the part of the user (such as explicit assent to the contract) to convince an adjudicator to enforce the contract as written. The courts, as noted in Kim’s book, typically find notice of non-negotiated terms to be sufficient when such wrongful use has occurred.

Lastly, if the goal is to use the contract as a crook, then a contract that requires a more active acceptance of the contract terms (such as clicking “I agree”) may be preferable from the drafter’s perspective. By being able to point to the specific act of the click and a “better” assent, a drafting party may be better able to extract property rights unrelated to the transaction under adjudicative scrutiny.  The extraction of the property rights by the drafting party may appear wrongful to the adjudicator, but counterfactual analysis surrounding the “explicit” assent to the contract may point to a different result.

With respect to the metaphors described above, I do question whether the distinction between shield and sword holds up sufficiently in many cases. License agreements containing shields and license agreements containing swords essentially provide the user with a restricted license, and the difference between the two types is a bit unclear. For example, Kim describes the restrictions on copying and transferring software discussed in ProCD, Inc. v. Zeidenberg as a shield and the restriction on reverse engineering discussed in Davidson & Associates v. Jung as a sword. As each can be described as a shield protecting the licensor from unfair or undesired business practices or a sword preventing the licensee from exercising certain rights, it may be simpler to divide the world of wrap contract provisions into defensive (those that manage business risks related to the license or transaction) and offensive (those that extract rights unrelated to the license or transaction). In any event, the specific categorization does not undercut Kim’s more significant conclusion that the use of shield and sword provisions has enabled the use of crook provisions.

It also would be interesting to know whether these different contract goals and functions do, as an empirical matter, affect the form chosen by the drafting party as described above.  Of course, the judicial slide towards “notice that terms exist” as “consent” noted in Wrap Contracts could somewhat obviate the need for such planning, and the multiple goals of the drafting party also are not necessarily mutually exclusive. Wrap Contracts provides us with a welcome exploration into the connection between form and function in these ubiquitous contracts and suggests how understanding this connection can help us address problematic contracting practices in this still-developing context.  

[Posted, on Eric Zacks' behalf, by JT]

November 21, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wrap Contracts Symposium, Part V: Michael Rustad on Reforming Wrap Contracts

This is the fifth in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our fifth guest blogger, Michael Rustad, is the Thomas F. Lambert, Jr. Professor of Law and Co-Director of the Intellectual Property Law Concentration at Suffolk University Law School. 

Reforming Wrap Contracts

MrustadIn her insightful new book, Nancy Kim contends that “wrap contracts” take the form of a traditional contract but constitute a “coercive contracting environment.” (Nancy S. Kim, Wrap Contracts: Foundations and Ramifications 1-3 (Oxford University Press, 2013)). Professor Kim contends that the problem with “wrap contracts” is “their aggressive terms.” (Id. at 4.)  My Suffolk University Law School research team, focusing on contracting practices in social media websites, found strong empirical support for Professor Kim’s argument that wrap contracts are overly aggressive and in need of law reform.  My own empirical work with a team at Suffolk University Law School has uncovered a growing number of social networking sites incorporating mandatory arbitration and anti-class action waivers. (Michael L. Rustad, Richard Buckingham, Diane  D’Angelo, and Kathryn Durlacher, An Empirical Study of Predispute Mandatory Arbitration Clauses in Social Media Terms of Service Agreements, 34 University of Arkansas Law Review 1 (2012) (Symposium Issue on ADR in Cyberspace)). 

By incorporating predispute mandatory arbitration clauses into their terms of service, a growing number of social networking sites (SNSs) are divesting consumers of their rights to civil recourse against providers who violate their privacy, commit torts, or infringe their intellectual property rights. SNS users around the world are required to agree to predispute mandatory arbitration as a condition of joining social networking communities. Consumers who enter into “clickwrap” or “browsewrap” terms of service agreements waive their right to a jury trial, discovery, and appeal, without reasonable notice that they are waiving these important rights. American consumers might be surprised that they have agreed to litigate in Mumbai, Hong Kong, or the People’s Republic of China when they clicked agreement to SNS terms of use.  These mandatory arbitration agreements incorporated in terms of use are essentially an anti-remedy because the cost of arbitration will usually exceed the amount at stake.  Requiring consumers to arbitrate in a far-off forum functions is an absolute immunity from liability because the cost and inconvenience of pursuing arbitration will far exceed the damages that could be recovered if they prevail.

Wrap ContractsThe most pernicious of the waivers are those against joining class actions. In our study of predispute mandatory arbitration agreements in social media wrap contracts, we found eleven of the thirty-seven arbitration clauses preclude consumers from initiating or joining class actions. Class action waivers have the practical effect of denying justice to a large number of consumers by divesting them of the right to join with other aggrieved social media users to pursue relief under state consumer law.  Many of the first generation lawsuits against SNSs were class actions or collective proceedings because the damages for any one individual user were too small to make the lawsuit cost-justified. Immunity breeds irresponsibility in the information-age economy, where an increasing number of companies are divesting consumers of any civil recourse by including class action waivers in their terms of service.

The creators of SNS and other wrap contracts are overly aggressive about including anti-class action waivers, in large part, because the U.S. Supreme Court routinely upholds predispute mandatory arbitration clauses and anti-class action waivers.  In a 5-4 decision, AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), the U.S. Supreme Court held that the Federal Arbitration Act preempted California’s use of state unconscionability law to render class action waivers unenforceable.   Let’s be clear about what Concepcion means for ordinary consumers.  With these rulings, the Court is padlocking the courthouse door to elderly nursing home patients harmed by neglectful caretakers.  Keep in mind that the typical nursing home resident or his caretaker has probably not even read the arbitration clause buried on page 20 or deeper into an admissions contract.  What this means is that if your Mother or Grandmother suffers septic shock from decubitus ulcers caused by neglect, her estate will have no recovery because no lawyer in her right mind will take a case where mandatory arbitration and its running partner, class action waivers are in play.  Trial lawyers do not take nursing home cases to arbitration because of the perception that arbitrators will give lower awards for non-economic damages and almost never award punitive damages.  In my informal survey of attorneys specializing in nursing home neglect, I have been unable to find a single case where a trial lawyer represented a nursing home patient in arbitration.       The Court’s decisions are, in effect, a federal takeover of arbitration, preventing the states and private plaintiffs from challenging one-sided and oppressive consumer arbitration clauses on grounds of unconscionability.  When wrap contracts couple mandatory arbitration clauses with class-action waivers they essentially create a liability-free zone in cyberspace.  Class action waivers preclude Internet users from filing a class action or even joining an existing one. This de facto immunity shields social networking sites from class actions for violations of privacy, contract, tort, or intellectual property rights that would otherwise be recognized in federal and state courts.

Social networking sites that combine mandatory arbitration with anti-class action waivers ensure that these powerful entities will not be accountable for failing to secure and safeguard their users' sensitive personally identifiable information. Social media sites can use the names, likenesses, and personal information of their users with impunity. Consumer class actions are often the only practical alternative in securing legal representation under the contingency fee system in cases where actual compensatory damages are small or nominal. Class actions enable litigants with slight monetary damages claims to combine actions in a representative action.  Without class actions, social networking sites are effectively immunized from the judicial process and may continue unfair practices with impunity.

Professor Nancy Kim’s suggested law reform to police overly aggressive terms in webwraps would be to tip the doctrine of unconscionability on its head.  Her proposed reform for webwraps would presume that these standard forms are unconscionable, except if validated by legislative decree or if there were meaningful alternatives in the marketplace. (Id. at 248).  However, even a revivified unconscionability doctrine will be preempted by the U.S. Supreme Court’s current reading of the Federal Arbitration Act. (“FAA”).  Congress must act to prohibit predispute mandatory arbitration and class action waivers in all types of wrap contracts.  In the end, U.S. companies would benefit from mandatory terms constraining or cabining wrap contracts. 

The golden age of the broad enforcement of U.S. style wrap contracts will end soon because of the increasingly flattened world where U.S. companies license content to European consumers. In Germany, consumers associations have successfully challenged the terms of CompuServe, AOL, and Microsoft: the first was subject to a default judgment; the other two agreed to a binding cease-and-desist declaration. All three American companies have entered into settlements in which they agreed to change their marketing practices. When it comes to consumer rights for wrap contracts, the U.S. is like Mars—and Europe is like Venus.  Europe rejects freedom of contract in consumer transactions, recognizing that this is a legal fiction in non-negotiated standard form contracts. The European Commission takes the position that, even if a consumer assents to an abusive term, it is unenforceable as a matter of law, and European consumers, unlike their American counterparts, cannot be hauled into distant forums and be divested of mandatory consumer protection.  Professor Kim has done a superb job in identifying the problem with wrap contracts, but her solution falls short of addressing problems such as predispute mandatory arbitration and anti-class action waivers.

[Posted, on Michael Rustad's behalf, by JT]

November 21, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 20, 2013

Wrap Contract Symposium: Response to Calo and Cherry


             Wrap ContractsI’m thrilled to have the opportunity this week to engage with an outstanding line-up of scholars on the topic of wrap contracts.  In today’s post, I will respond to posts by Ryan Calo and Miriam Cherry.  

Miriam Cherry observes that wrap contracts raise much of the same issues raised by contracts of adhesion and my book canvasses those similarities.  But they also raise different issues, primarily because their digital form makes it easier for companies to abuse and for consumers to ignore and also because courts don’t adequately recognize how form affects the behavior of both parties.  The difference in form leads to a difference of degree so that it’s virtually impossible (pun intended) to engage in any online activity without agreeing to the terms of an unreadable wrap contract.  My proposals aim to respond to the ways in which form affects perception to get us closer to the underlying objective of contract law – to fulfill the reasonable expectations of the parties.  The form of wrap contracts raises issues that are unique to them and consequently, call for different solutions - solutions that respond to the problem of form. 

Ryan Calo focuses on the role of technological design in contract formation and enforcement which is not surprising given his extensive expertise and research in this area regarding effective notice.  The way that technological design of contracts affects parties’ behavior is underappreciated in the literature on contracts of adhesion.  Calo observes that the potential for mischief through the use of standard terms is even worse than the examples I give in my book  (this is a great relief since I am often accused of exaggerating the dangers of wrap contracts).  As Calo notes here and elsewhere,  the digital contracting environment has made it easier for companies to understand the consumer and so manipulate the consumer’s perceptions and behavior.  I agree and would like to respond to his wish that I had addressed the argument made by Scott Peppet and others (who I’ll call “digital solutionists”) who claim that this very environment might aid the consumer and that increased digitalization could ameliorate the limits of freedom of contract.  I agree with the first part, but disagree with the second.  Greater access to information and the digital landscape may, in many cases, aid consumers who can research products, announce their “likes” and dislikes, and tweet their dissatisfaction to attract the customer service departments of large companies.  This shouldn’t, however, influence the discussion regarding freedom of contract.  There is a distinction to be made between the product or service that is the subject of the contract and the terms of the contract itself.  The former is salient to consumers and they will often research that information before they act.  For a variety of reasons, including cognitive biases but also tricky design employed by companies, the latter is not.  Anyway, comparing terms does no good if the terms are all the same – it’s the old fiction about “shopping for terms” reincarnated in digital form.  

Even assuming that the current state of affairs changes and there is awareness and competition for contract terms, the consumer is already inundated with too much information online.  Are we really going to impose a requirement or an expectation that they read through online reviews or download an app simply in order to understand the contract terms?  Even if the reviews exist (which they may not for some products or companies) and even if they are accurate (which they may not be), they add a layer of complexity to consumer transactions which may hamper effective decision-making and aggravate cognitive biases.   How much research is a consumer expected to do simply to be able to buy a product, bank or communicate online?  And is that something we want as a society – wouldn’t this negatively impact productivity, increase transaction costs for the consumer, and muck up the wheels of commerce (and isn’t this why we tolerate standard form contracts in the first place, to improve productivity, reduce transaction costs and grease the wheels of commerce)?

Drafting companies have all the power in the digital contracting environment – they have the bargaining power of old school drafters of adhesive contracts but they also have the power to present the terms in a multitude of ways.  They decide whether and how to attract user attention.  They determine whether to use clickwraps, browsewraps, multi-wraps, graphics or sounds.  They exercise that power in a way that meets very minimal legal requirements of notice.  The onus is on the consumer to ferret out terms, chase down hyperlinks, understand dense legalese and reconcile conflicting language.   Are we going to require even more of consumers, expecting them to “go beyond” the contract by reading online contract reviews and downloading the “compare contracts” app (assuming one exists)?  Maybe digitalization or augmented reality will make it easier for consumers to compare terms  --but it will likely make it more complicated especially when those terms are constantly changing thanks to modification at will provisions.   Doesn’t it make more sense to require the company to draft the terms so they are easy to find and understand?  There’s more to say about the digital solutionist view but I will leave that for another forum.  For now, my response is that the digital solutionist view is actually part of the problem, rather than the solution because it, like wrap contract doctrine, demands nothing from drafting companies and creates more work for consumers, exacerbating the lopsided balance of burdens that currently exists.

 

 

[Nancy Kim]

 

               

November 20, 2013 in Books, Contract Profs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Wrap Contracts Symposium, Part IV: Juliet Moringiello on “Wrap” Terminology: Needlessly Confusing or Useful Analytical Tool?

This is the fourth in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our fourth guest blogger, Juliet Moringiello, is a Professor at Widener University School of Law, where she regularly teaches Property, Sales, Secured Transactions, and Bankruptcy, and has taught seminars on Cities in Crisis and Electronic Commerce. From 2004 – 2010, she was the co-author, with William L. Reynolds, of the annual survey of electronic contracting law published in The Business Lawyer.

Morigiello“Wrap” Terminology: Needlessly Confusing or Useful Analytical Tool?

Yes, we said it. As Prof. Nancy Kim notes in her terrific new book Wrap Contracts: Foundations and Ramifications, my co-author Bill Reynolds and I have argued that the use of the terms “clickwrap” and “browsewrap” to describe electronically-presented contract terms might be needlessly confusing, and that the terms themselves may even be irrelevant. Yet Nancy, whose work I admire tremendously, has not only embraced this wrap terminology, but has written an entire book about how wrap contracts are materially different from their paper standard-form predecessors. And I enthusiastically agreed to participate in this symposium so that I can sing the praises of this book and encourage ContractsProf readers to go right over to the Oxford University Press web site and buy the book. What gives?

Emerging business practices have long challenged contract doctrine. Contract rules that assumed two parties with equal bargaining power sitting down to hammer out a deal have evolved, both through statutory and case law, to adapt to a world in which parties transact by the use of non-negotiated standard-form terms. Are non-negotiated standard-form terms that are delivered electronically so different from their paper predecessors that they require a new set of rules? Nancy makes a convincing argument that they are, and her (spoiler alert!) ultimate prescriptions include the imposition of a duty to draft reasonably, a rejection of the doctrine of blanket assent in favor of a specific assent requirement, and a redefinition of the doctrine of unconscionability. Although she recognizes that contract doctrine continuously evolves to account for new business practices, Nancy convincingly argues that it is not evolving appropriately in the mass-market electronic contracting realm.

Why should the law treat electronically-presented standard-form contract terms differently from how it treats the same terms presented on paper? The main contribution of this book is its argument that form (and thus “wrap” form) matters tremendously. One of the reasons that Nancy offers to support her position is that the electronic form has altered the substance of standard-form contracts. Freed from the spatial constraints imposed by the paper form, purveyors of electronic terms can offer many more terms in a form contract than could their paper-world predecessors. As a result, consumers are being presented with voluminous and complex terms governing, among other things, data collection and property rights. As a result, according to Nancy, wrap contracts “by their form, permit companies to impose more objectionable terms than paper contracts of adhesion.” Wrap Contracts is filled with specific examples of such terms.

Wrap ContractsAlthough my co-author and I have argued in the past that courts are slowly getting electronic contracts right, most of the electronic contracting cases that result in published opinions involve challenges to choice of forum clauses. We read almost all of those opinions from 2004 through 2010, when we wrote the annual surveys of electronic contracting law for The Business Lawyer.The opinions never get to the substantive guts of the electronic standard terms; they can’t, because often their punch line is “you agreed to arbitration, so arbitration is where you are going to resolve these issues.” When one compares an electronic choice of law clause to the same clause on paper, it looks like an apples-to-apples comparison. The main difference appears to be the way the terms were transmitted, not the substance, so courts tend to analyze only whether the electronic terms are reasonably communicated to the non-drafting party. So long as the non-drafting party can access the terms via an arguably conspicuous link, the courts hold that there is sufficient notice and therefore assent. This judicial conflation of notice and assent is not unique to electronic contracting law, but Nancy argues that its application is inappropriate to wrap contracts because often individuals do not have any idea that they are entering into legally-binding agreements.

Although Nancy cites to studies that support her contention that many computer users do not know that their actions will result in legally-binding agreements, here is one area in which I find the “wrap” umbrella unhelpful. Today’s 25-year-old is probably more accustomed to clicking to agree than to signing to agree. On the other hand, few people other than those reading this post may know that the “Terms of Use” link on the bottom of a web page purports to give notice of contract terms. Therefore, the two “wrap” terms, clickwrap and browsewrap, describe two forms that send very different signals.

That said, one of Nancy’s most convincing contributions in Wrap Contracts is her discussion of how notice in the electronic context is not the same as notice in the paper world. Again, form matters. Whether terms are presented in clickwrap, browsewrap, or multiwrap form, the notice that contract terms are available often appears on a different web page from the terms themselves. As a result, she argues, even the most conspicuous “Terms of Use” hyperlink is not the same as its paper counterpart, because the latter includes a conspicuous notice of contract terms on the same sheet of paper as the terms themselves. And perhaps here is where Nancy, Bill and I don’t really disagree. Bill and I don’t like the terms clickwrap and browsewrap because pure clickwrap, which requires an affirmative act to accept terms, is very different from browsewrap, which does not. We think that courts that focus on that distinction produce questionable results. Bill and I recognize, as does Nancy, that many online contracts today are really a combination of clickwrap and browsewrap, or “multiwrap” (unlike us, she was clever enough to use the term). Nancy, on the other hand, uses the term “wrap” as convenient shorthand for the diverse electronic presentations that allow online vendors of goods, services, and computer programs to present many more, and therefore more onerous, terms, than their tangible world predecessors. Form matters, and the electronic “wrap” form is physically different from the paper form in ways that stretch the boundaries of traditional contract doctrine. Her engaging explanation of these modern contract forms illustrates that perhaps, courts are not getting electronic contracts right and that they need to be nudged to do more. Wrap Contracts can provide that nudge.

[Posted, on Juliet Moringiello's behalf, by JT]

November 19, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wrap Contracts Symposium, Part III: Woodrow Hartzog, Wrap Contracts as Mediators of Social Interaction

This is the third in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our third guest blogger is Woodrow Hartzog, an Assistant Professor at Samford University’s Cumberland School of Law and Affiliate Scholar at the Center for Internet and Society at Stanford Law School.

WhartzogWrap Contracts as Mediators of Social Interaction

Professor Kim’s book is an extremely valuable addition to the literature. Kim adeptly distinguishes wrap contracts from traditional contracts. Perhaps more importantly, Kim distinguishes wraps from boilerplate paper contracts. In this review I will argue that Kim’s case for wrap exceptionalism could be taken even further for parties in highly interactive relationships, such as the relationship between social media and their users.  

One of Kim’s most valuable contributions is her explication of how the form of wrap contracts accounts for their proliferation, content, and problematic legal treatment. The absence of any meaningful physical restraints on wrap contracts, like the available area on paper for text and the ceremony required to actually sign paper contracts, has resulted in a difference in kind from other contracts, not just a difference in magnitude.

Kim also focuses on the problematic content of wrap contracts. Kim’s thesis is that the form of wraps makes reading them so burdensome that problematic content is inevitable. Drafters can insert terms that are unfavorable to the adherent because they know that adherents will not read them. Kim develops a helpful taxonomy of shield, sword, and crook terms. These categories can be roughly described as limitations on liability for offered services (shield terms), terminations of rights held by the other party (sword terms), and appropriation of benefits unrelated to the consideration that is the subject of the transaction (crook terms).  

I agree with Kim’s observations that both the form and content of wrap contracts make them substantially different than paper contracts, including paper boilerplate. But Kim may have left out an important variable in her case that wraps deserve exceptional legal treatment. Kim could better highlight the importance of the service being offered by the drafter of the wrap contract and the form that service takes. Many of the examples used by Kim involve standard commercial transactions such as Amazon or iTunes. But commercial websites are unlike other websites, notably the social web. Social media offer tools for social interaction and self-expression, which, until the Internet, have been largely boilerplate-free activities.

Wrap ContractsSocial media wrap contracts differ from their commercial website counterparts in at least two important ways: 1) Social media are much more interactive than traditional websites. This interactivity is an opportunity for websites to obtain specific assent to terms; and 2) many social media wrap contracts include social behavior restrictions, such as community guidelines. These restrictions simultaneously cost and benefit adherents precisely because they are universally applied and non-negotiable.

Greater Interactivity Can Lead to Specific Assent

All websites are becoming more interactive, but few more so than social media. Users can utilize privacy settings, tag others, and click and drag in ways that communicate preferences to websites like never before. These user expressions and the design that enables them are ideal opportunities for meaningful assent. In many ways, website design can communicate messages to users more effectively than boilerplate ever could. For example, privacy settings often make it clear that “only friends” or authorized “followers” will have access to your information. If a website’s data access and use policy is also part of the wrap contract, should the settings or the wrap govern who can access user info?

Kim proposes that “drafting parties should receive specific assent to obtain rights belonging to the nondrafting party that are not directly created from the drafting party’s license or promise. In other words, sword and crook provisions…require specific assent but shield provisions do not.” (195) Assuming binding privacy policies generally operate to effectuate consent to a website’s collection and use of the adherent’s data, privacy settings would seem to be an effective way to obtain specific assent under Kim’s proposal.

Community Guidelines Benefit Contract Adherents Yet Also Leave Them in a Bind

Social media often require many commitments from their users. For example, Facebook requires its users to promise not to “provide any false personal information on Facebook,” “bully, intimidate, or harass any user” or “do anything unlawful, misleading, malicious, or discriminatory.” These kinds of terms make it virtually impossible to interact online without fear of breaching the required contract. Users can either hardly use the website or roll the dice and hope they don’t get caught.

Social media often require commitments in the form of “community guidelines” that are sometimes incorporated into the terms of use. For example, Facebook, Twitter, and Flikr all have community guidelines that are ostensibly provided to keep the online community civil and protect other users. Many of these rules are quite broad and vague. Professor Kim vividly illustrates the fallout from violations of broadly drafted terms when discussing Young v. Facebook, a dispute over the termination of a user’s Facebook account for violation of Facebook’s policies.

Yet there is a dichotomy that makes these terms difficult to categorize. They are a cost to the user who must refrain from certain kind of otherwise permissible conduct, yet they are also a benefit to that same user because every other user also promised to refrain from the same antisocial or illegal behavior. Here, the uniform and non-negotiable nature of wraps is precisely what makes them attractive to users. These terms can be used to combat scourges like hate speech and revenge porn.

While Kim recognized that wrap contracts are beneficial because they facilitate mass transactions and minimize risk for drafters, she overlooked the benefits that wrap contracts can have when terms set rules for how Internet users interact with each other.

Given that social behavior restrictions simultaneously cost and benefit the adherent, it is unclear if Kim would subject these terms to additional scrutiny as “sword” or “crook” terms.

These observations are meant to support Kim’s proposals, not counter them. Kim rightly criticizes the current legal approach to wrap contracts. Her solutions wisely harness the elasticity of existing contract doctrine to right the ship. Social media vividly illustrate the problematic proliferation of wraps in unprecedented areas. Yet they also represent opportunities to effectuate Kim’s proposed solutions. 

[Posted, on Woodrow Hartzog's behalf, by JT]

November 19, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

Wrap Contracts Symposium, Part II: Miriam Cherry on The Duty to Draft Reasonably

This is the second in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Our second guest blogger, Miriam A. Cherry, is a visiting professor at the University of Missouri School of Law and a tneured professor law at Saint Louis University. 

The Duty to Draft Reasonably

CherryProfessor Nancy Kim’s “Wrap Contracts” is a foundational book, one that delves deeply into recent cases surrounding online contracting.  Based on existing strands of contract theory, Prof. Kim expresses concern about the ways in which wrap contracts reinforce, and in many instances, amplify, one-sided contracting that may harm consumers in adhesion contracts.  Pointing to a recent study, Kim notes that it would cost the average American Internet user the equivalent of $3,534 a year to read the privacy policies of each website that he or she visits.” (213)  Noting that wrap contracts bear little similarity to the model of free assent that undergirds traditional contract theory, Kim sensibly argues for a more balanced model of drafting and enforcement.

Prof. Kim is not alone in calling for a more level playing field between businesses and consumers.  Indeed, Margaret Jane Radin’s recent book, Boilerplate, contains a similar approach, and earlier work by legal academics, Todd Rakoff and Fredrich Kessler, provided what is now a well-understood and well-articulated argument against contracts of adhesion.  The approach finds support in decades of writing by legal academics, ethicists, journalists, and consumer advocates, who have all voiced similar problems with the one-sided nature of adhesion contracts.  

Wrap ContractsGranted, wrap contracts are different – and perhaps even more disturbing – than the original adhesion contracts that engendered them.  But the fact remains that wrap contracts spring from  - and build on – the same set of problematic assumptions that underlie adhesion contracts.  Given that this literature is well-known, Prof. Kim faces a high hurdle to say something interesting and new. 

The piece of Prof. Kim’s solution that most resonated was her idea of imposing a “duty to draft reasonably,” (176).  Her solution would seem to be the converse of the current idea that consumers have a “duty to read.”  Right now this is a one-sided duty without a corresponding responsibility on businesses posting wrap contracts or adhesion contracts.  Some of the devices she describes in the book – how some online businesses have used wrap contracts as sword, shield, and crook (in instances where consumers are subject to overreaching behavior) reinforce the impression that Prof. Kim’s recommended intervention is needed.  As such, imposing such a reasonableness requirement to make a wrap contracts enforceable seems eminently sensible.  Prof. Kim’s book is timely, well-researched, and will play an important role in the debates about adhesion and wrap contracts that are sure to happen in years to come.   

[Posted, on Miriam Cherry's behalf, by JT]

November 18, 2013 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wrap Contracts Symposium, Part I: Ryan Calo

This is the first in a series of posts on Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Today's contributor, Ryan Calo, is an assistant professor at the University of Washington School of Law  and the Faculty Director of the Tech Policy Lab at the University of Washington.  He previously served as a director at the Stanford Law School Center for Internet and Society (CIS) where he remains an Affiliate Scholar.  

Ryan Calo

I am delighted to contribute to this online symposium around Nancy Kim’s new book, Wrap Contracts: Foundations and Recommendations.  Even if you are closely familiar, as I am, with Kim’s previous work, I recommend picking up a copy; the author both synthesizes and meaningfully extends her important thinking on the evolving role of contracts in a digital world.  The sophisticated practitioner, too, has something to gain, particularly from later parts of the book where Kim explores the origins and strategic uses of wrap contracts and makes recommendations that attorneys may one day encounter in a court opinion or Federal Trade Commission complaint. 

Indeed, Kim is one of only a handful of legal scholars (another is Woodrow Hartzog, whom Kim mentions) who engage in a sustained way with the growing importance of interface design (i.e., the very look and feel of a website or digital product) on contemporary contract formation and enforcement.  You see this, for instance, in her wonderful discussion of responsible drafting in Chapter 11.  And while I cannot show causation, as opposed to correlation, I would note that the Federal Trade Commission has in recent years brought enforcement proceedings based in part on interface design, in one case hiring a human-computer interaction specialist to act as an expert witness.

What has most amazed me in my own examination of this space is the range of possibilities the digital environment offers.  If there were one critical note I would sound about Kim’s otherwise substantively and methodologically comprehensive book, it is that she does not always countenance the full boundaries of consumer experience.  Kim cites to Oren Bar-Gill (at page 83) for the proposition that the growing complexity of contracts hides their true costs from the imperfectly rational consumer.  Kim also develops various scenarios in Chapter 10 meant to underscore the powerlessness consumers feel to address conflicts with web companies.  But the prospect for mischief is worse still: As the short title of Bar-Gill’s book, Seduction By Contract, suggests, companies may leverage what they know about consumer psychology to design purposefully disadvantageous terms.  I would (and do) go further in forthcoming work, arguing that firms increasingly control every aspect of their interaction with consumers.  We should expect this control, coupled with the firms’ meticulous knowledge of consumers and their economic incentive to maximize profit, to lead to a wider variety of digital abuses than Kim acknowledges.  Contract becomes not a just a shield against liability here but, in a few instances, a species of license for ethically questionable business practices.

Wrap ContractsSimilar criticisms could focus on Kim’s pessimistic assessment of the potential prospective advantages that a more mediated world might have for consumers. Kim explores how a better understanding of design can improve disclosure and contract in an online environment.  I certainly agree, as Kim notes, that the digital nature of contemporary commerce could result in enhanced disclosure, and maybe even drag notice beyond inscrutable prose and into the twenty-first century.  But what I expected and did not see—what I hope still to see from Kim—is a response to the work of Scott Peppet.  Peppet argues that increased digitalization could, if anything, strengthen the traditional understanding of freedom of contract by conferring on consumers radical new tools of evaluation and comparison.  I would want to understand why the dangerous ascendance of wrap contracts is not substantially offset by other digital developments that empower consumers.  (Eric Goldman recently made this comment about my work, so it is top of mind).

To summarize: Kim’s is a rich and engaging book that I would recommend to anyone who is intellectually curious about consumer contracts or whose professional life in some way depends on them.  I learned a lot and agree with many of Kim’s recommendations.  By way of critique, I would say only that Kim’s book does not answer every single fascinating question about digital contract.  Perhaps no book could, nor would I necessarily want hers to.  Then I would not so eagerly anticipate Kim’s future work. 

[Posted, on Ryan Calo's behalf, by JT]

November 18, 2013 in Books, Commentary, Recent Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

Introducing our Virtual Symposium: Nancy Kim's Wrap Contracts

KimThe symposium marks the publication of Nancy Kim's Wrap Contracts: Foundations and Ramifications (Oxford UP 2013).   Next wek, this blog will publish posts by experts from around the country commenting on Nancy's work.  Here is Oxford's bullet point summary of the book's virtues:

  • Explains why wrap contracts were created, how they have developed, and what this means for society
  • Uses hypotheticals, cases, and real world examples
  • Discusses court decisions with summary critiques
  • Provides doctrinal solutions grounded in law and policy
  • Defines and distinguishes different types of contract terms
  • Includes actual wrap contract terms, flow charts, checklists and other visual aids to explain legal concepts

The following people will be adding their own thoughts and comments on the blog next week:

CaloRyanRyan Calo is an assistant professor at the University of Washington School of Law.  He researches the intersection of law and emerging technology, with an emphasis on robotics and the Internet. His work on drones, driverless cars, privacy, and other topics has appeared in law reviews and major news outlets, including the New York Times, the Wall Street Journal, and National Public Radio. Professor Calo has also testified before the full Judiciary Committee of the United States Senate.

Professor Calo serves on numerous advisory boards, including the Electronic Privacy Information Center (EPIC), the Electronic Frontier Foundation (EFF), the Future of Privacy Forum, and National Robotics Week. Professor Calo co-chairs the Robotics and Artificial Intelligence committee of the American Bar Association and is a member of the Executive Committee of the American Association of Law Schools (AALS) Section on Internet and Computer Law. 

Professor Calo previously served as a director at the Stanford Law School Center for Internet and Society (CIS) where he remains an Affiliate Scholar. He also worked as an associate in the Washington, D.C. office of Covington & Burling LLP and clerked for the Honorable R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit. Prior to law school at the University of Michigan, Professor Calo investigated allegations of police misconduct in New York City.

You can read Professor Calo's work on SSRN and follow him on Twitter.

CherryMiriam A. Cherry is a visiting professor at the University of Missouri School of Law and a tneured professor law at Saint Louis University. Her scholarship is interdisciplinary and focuses on the intersection of technology and globalization with business, contract and employment law topics. In her recent work, Professor Cherry analyzes crowdfunding, markets for corporate social responsibility, virtual work and social entrepreneurship. Her articles will appear or have appeared in the Northwestern Law ReviewMinnesota Law ReviewWashington Law ReviewIllinois Law Review,Georgia Law ReviewAlabama Law Review, Maryland Law Review, and the Tulane Law Review, and U.C. Davis Law Review, among others. 

Professor Cherry attended Dartmouth College and Harvard Law School, where she was a research assistant to Professor Martha Minow, the present dean. After graduation from law school, she clerked for Justice Roderick Ireland of the Supreme Judicial Court of Massachusetts and then for Judge Gerald Heaney of the U. S. Court of Appeals for the Eighth Circuit. In 2001, a transition to the private sector took Professor Cherry to the Boston firm of Foley Hoag LLP, where she practiced corporate law with an emphasis on mergers and acquisitions, securities compliance filings, venture capital and private debt financing. She was also associated with the firm of Berman, DeValerio & Pease, where she was involved in litigating several accounting fraud cases including those against former telecom giant WorldCom and Symbol Technologies, which resulted in a $139 million settlement.

Professor Cherry has been on the faculty or visited at a number of law schools, including the University of Georgia, University of the Pacific-McGeorge School of Law and Cumberland School of Law. In 2008, she was elected a member of the American Law Institute.

You can read some of Professor Cherry's scholarship on SSRN.

WhartzogWoodrow Hartzog is an Assistant Professor at Samford University's Cumberland School of Law, which he has taught since 2011. Professor Hartzog writes in the area of privacy law, online communication, human-computer interaction, robotics, and contracts. His work has been or is scheduled to be published in scholarly publications such as the Columbia Law Review, California Law Review, and Michigan Law Review and popular publications such as The Atlantic and The Nation.

Before joining the faculty at Cumberland, Professor Hartzog worked as a trademark attorney at the United States Patent and Trademark Office in Alexandria, Virginia and as an associate attorney at Burr & Forman LLP in Birmingham, Alabama. He has also served as a clerk for the Electronic Privacy Information Center in Washington D.C. and was a Roy H. Park Fellow at the School of Journalism and Mass Communication at the University of North Carolina at Chapel Hill.

Professor Hartzog holds a Ph.D. in mass communication from the University of North Carolina at Chapel Hill, an LL.M. in intellectual property from the George Washington University Law School, a J.D. from the Cumberland School of Law at Samford University, and a B.A. from Samford University. He is an Affiliate Scholar at the Center for Internet and Society at Stanford Law School.

Recent and Forthcoming publications include:

The FTC and the New Common Law of Privacy, 114 COLUMBIA LAW REVIEW (forthcoming 2014) (with Daniel J. Solove).

Reviving Implied Confidentiality, 89 INDIANA LAW JOURNAL (forthcoming 2014).

Social Data, 74 OHIO STATE LAW JOURNAL (forthcoming 2013) (symposium).

Obscurity by Design, 88 WASHINGTON LAW REVIEW 385 (2013) (with Fred Stutzman) (symposium).

The Fight to Frame Privacy, 111 MICHIGAN LAW REVIEW 1021 (2013) (book review).

The Case for Online Obscurity, 101 CALIFORNIA LAW REVIEW 1 (2013) (with Fred Stutzman).

Chain-Link Confidentiality, 46 GEORGIA LAW REVIEW 657 (2012) (symposium).

Morigiello_9970 (1)Juliet Moringiello is a Professor at Widener University School of Law, where she regularly teaches Property, Sales, Secured Transactions, and Bankruptcy, and has taught seminars on Cities in Crisis and Electronic Commerce. From 2004 – 2010, she was the co-author, with William L. Reynolds, of the annual survey of electronic contracting law published in The Business Lawyer. She has recently published articles in the Maryland Law Review, the Wisconsin Law Review, the Fordham Law Review, and the Tulane Law Review. Prof. Moringiello has held several leadership positions in the American Bar Association Business Law Section, most recently in its Cyberspace Law Committee, and she is co-chair of the Uniform Commercial Code Committee of the Pennsylvania Bar Association Business Law Section. 

Recent Publications Include:

MrustadMichael Rustad is the Thomas F. Lambert, Jr. Professor of Law and Co-Director of the Intellectual Property Law Concentration at Suffolk University Law School. He has authored numerous books and articles, including In Defense of Tort Law that he coauthored with Thomas Koenig. His current books are titled Software Licensing: Principles & Practical Strategies (2013) and Global Internet Law in a Nutshell (2013).  Among his recently published articles are “Reconceptualizing Consumer Terms of Use for A Globalized Knowledge Economy” (2012) with Vittoria Onufrio, and “Reconceptualizing the BP Oil Spill as Parens Patriae Products Liability” (2012) with Thomas H. Koenig.  He is writing the first hornbook on Global Internet Law for West Publishing Company.  Professor Rustad received his PhD from Boston College, his JD from Suffolk University and his LLM from Harvard University.

Recent Publications Include:

  • SOFTWARE LICENSES: PRINCIPLES & PRACTICAL STRATEGIES (Oxford University Press, 2d ed., forthcoming 2013 ) 
  • GLOBAL INTERNET LAW (HORNBOOK SERIES) (forthcoming 2013 ) 

ZacksEric Zacks  is an assistant professor of law at Wayne State University Law School. His recent scholarship focuses on the relevance of behavioral sciences to contract formation, breach, and enforcement. His work has been published in the University of Cincinnati Law Review, the University of Pennsylvania Journal of Business Law, and the Penn State Law Review, and his forthcoming article, Shame, Regret, and Contract Design, will be published in the Marquette Law Review. 

In 2012 and 2013, Professor Zacks was voted Professor of the Year by the second- and third-year law students at Wayne. He teaches a variety of business law courses, including Corporate Finance, Mergers and Acquisitions, Securities Regulation, and Corporations, as well as a first-year Contracts course. 

Prior to joining Wayne State, Professor Zacks was a partner in the corporate and securities department of Honigman Miller Schwartz and Cohn LLP, a Detroit law firm, with a practice focus on complex acquisitions and divestitures, debt and equity financings, and other aspects of corporate transactions. He received his J.D., magna cum laude, from Harvard Law School and his B.A., with high distinction, from the University of Michigan.

Recent Publications Include:

  • "Shame, Regret, and Contract Design," 97 Marq. L. Rev. __ (forthcoming, 2013)
  • "Contracting Blame," 15 U. Pa. J. Bus. L.. 169 (2012)
  • "Unstacking the Deck? Contract Manipulation and Credit Card Accountability,"78 U. Cin. L. Rev. 1471 (2011)
  • "Dismissing the Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation," 110 Penn St. L. Rev. 1 (2005) (with Joshua D. Blank) reprinted in Class Action Litigation and Limitations (Icfai University Press, 2008).

[JT]

November 17, 2013 in About this Blog, Books, Contract Profs | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 30, 2013

Love, Death and Contracts in "The Forsyte Saga"

Galsworthy
John Galsworthy

A contract dispute powers A Man of Property, the first volume of John Galsworthy's The Forsyte Saga, to its conclusion.  Now, I admit, the synopsis that follows is not based on the novels, which I have not read.  It is based on the 2002/2003 television mini-series.  I will happily stand corrected if any Galsworthy fans want to point out discrepancies between the film and novel accounts of the contracts case.

Soames Forsyte loved his wife Irene, but he wanted to possess her, and she only consented to marry him.  Difficulties arose when Irene took an interest in a young architect, Bosinney, who was to wed Soames's second cousin (I believe), June.  

Soames, unaware at this point of the connection between Bosinney & Irene, decides to build a country home to get Irene away from the distractions of London -- in particular he means to separate her from June.  Meanwhile, Bosinney and Irene become lovers, and at the same time, rather unwisely, Bosinney keeps raising the contract price for the home he builds for Soames.

Bosinney and Irene finally push Soames beyond all endurance, and he decides to sue Bosinney for breach of contract because Bosinney has exceeded the agreed-upon, adjusted contract price for the house.  Bosinney is in a bad spot.  He can't afford to pay Soames for the extra costs -- they approach Bosinney's annual income.  Nor can he afford to have a breach of contract claim hanging over him in connection with his first major project.  Indeed, based on the success of his first project, other well-bred Englishmen are beginning to approach him as potential clients, but when they learn of his dispute with Soames, all is put on hold.

From the outset, one senses that Soames has Bosinney cornered and will destroy him.  Bosinney believes, rather absurdly, that he can win the case, but Soames is a solicitor and he can hire the best trial lawyer in London.  Bosinney hasn't a chance.  Perhaps it's all for the best then when he is run over by a carriage and killed just before the case is lost.  Soames ends up selling the house to his Uncle.  The sale price might give us a better sense of the extent of the legal injustice wrought in Forsyte v. Bosinney.

[JT]

 

October 30, 2013 in Books, Commentary, Film | Permalink | Comments (0) | TrackBack (0)

Friday, October 18, 2013

U. of Chicago Law to Host Panel on the Contracts Scholarship of Douglas Baird

Baird, Douglas 2013Lunchtime Panel: Baird's Contracts
Date: Wednesday, October 23, 2013 - 12:15pm - 1:30pm
Location: 
 Classroom II
Contact info: Marjorie Holme, mholme@uchicago.edu

Reconstructing Contracts: The Contracts Scholarship of Douglas Baird

A panel of leading scholars discuss Douglas Baird's pathbreaking work on Contract Law published in his new book "Reconstructing Contracts."

  • Avery Katz, Vice Dean and Milton Handler Professor of Law, Columbia Law School
  • Stewart Macaulay, Malcolm Pitman Sharp Professor & Theodore W. Brazeau Professor, University of Wisconsin Madison Law School
  • Ariel Porat, The Alain Poher Chair in Private Law, Faculty of Law, Tel Avivi University

Moderated by Omri Ben-Shahar, Leo and Eileen Herzel Professor of Law and Economics and Kearney Director of the Coase-Sandor Institute for Law & Economics, University of Chicago Law School

Lunch will be provided.

 

[JT]

October 18, 2013 in Books, Conferences, Contract Profs, Recent Scholarship | Permalink | TrackBack (0)

Monday, October 7, 2013

Contracts and "The Little Mermaid"

One of my students, Maison Haines (pictured) gave herself a practice exam by writing up a summary of the contracts issues in Disney's film, The Little Mermaid.  Indeed, there is much of value to be learned from the exercise, some of which relates to defenses and so was beyond Maison's contracts education at this point.  Still, I have used her essay as a point of departure for this post.  

Maison summarizes the plot as follows:

    Ariel, a hopeless romantic mermaid, defies her father by constantly going to the . She dreams of living on land and how wonderful it would be. . . . One night, she notices bright lights in the sky, so she once again wanders to the surface to investigate. She swims upon a ship with none other than Prince Eric aboard it. She notices the dapper prince right away because he is handsome and is playing the snarfflak [flute]. She falls in love immediately. . . .  Meanwhile, the wicked witch Ursula is keeping a close eye on King Triton’s youngest daughter. Ursula is looking to get revenge on King Triton, and what better way than through his curious, love-struck daughter. Ursula proposes an offer to Ariel, which is really where our story begins.

    The wicked witch offers to turn Ariel into a human for three days. Ursula tells Ariel about how she can be with her prince, fall in love, and live happily ever after. Ursula tells Ariel she can remain a human forever if she makes Eric fall in love with her. He has to prove his true love for her by kissing her before “the sun sets on the third day.” The only thing Ursula wants in payment is Ariel’s voice. . . . Next, Ariel signs on the dotted line, loses her voice to the sea witch, and makes her way to the surface of the water where she will live for the next three days.

Now, as it turns out, our blog is not the first blawg to consider the contractual issues in Disney's The Little Princess.  Findlaw's Legal Grounds blog posted on the subject back in August and The Utter Meaninglessness of Everything (Meaninglessness) blog did so back in 2008.  There is considerable overlap among the posts.

All noticed, for example that Ariel's contract with Ursula should have been voidable, because Ariel was an infant (under 18) when she signed it.  Maison expressed outrage that the whole plot of the movie is now implausible to her because the infancy doctrine precludes most of it.  Never fear!  We don't actually know whether the infancy rule applies under the sea.  

In addition, Ariel also has a strong argument that Ursula did not act in good faith.  She interfers in various ways with Ariel's attempts to get Eric to kiss her, sending her eels to interrupt a kiss and ultimately seducing Eric herself with the help of Ariel's purloined voice and a bit of magic.  Once again thought,  it may be asking a bit too much to apply these concepts to the watery realms inhabited by the parties to this agreement.  After all, can one really make a straight-faced claim that Ursula the Sea Witch did not perform her contract in good faith?  She's a sea witch.  If you want a fair deal, try Glinda. 

Legal Grounds thinks the contract may be void for vagueness, as the key term "true love's kiss" is unclear.  I'm not sure I buy that one, as the parties do not seem to be in any doubt.  It's a Disney movie, after all, so the ingredients for true love's kiss are: prince, two-legs, pulse (functioning neurons optional).  

Little MermaidMeaninglesness suggests that Ariel's father, King Triton, could have declared the contract void as contrary to public policy, which seems about right, except that I'm not entirely comfortable with empowering the executive with authority to avoid commercial contracts involving family members.  I think, under the sea, an Article Trident judge ought to make that call.

But getting back to Maison's take on all this, she points out that, after Triton's failed attempt to avoid the contract by blowing it up with his Trident, the contract was effectively modified.  Triton offers himself up in Ariel's place in Ursula's collection of unfortunate souls.  His agreement with Ursula is made in consideration of Ursula's promise to free Ariel.  But Ursula is now no mere sea witch, she is the ruler of the seas, and things don't look so great for Ariel and Eric.  Fortunately, the happy couple is able to impale Ursula, disembowel her and then ride the stream of entrails into calmer and more familiar seas.  Or that's how I remember it.  I haven't watched the movie in a while.

The Hans Christian Anderson story on which the movie is based is similar but much, much stranger.  In Anderson's version (memorialized in the statute above right), the sea witch is even more grotesque than in the movie, and here is what she offers the little mermaid:

 I will mix you a potion. Drink it tomorrow morning before the sun rises, while you are sitting on the beach. Your tail will divide and shrink, until it becomes what human beings call 'pretty legs.' It will hurt; it will feel as if a sword were going through your body. All who see you will say that you are the most beautiful human child they have ever seen. You will walk more gracefully than any dancer; but every time your foot touches the ground it will feel as though you were walking on knives so sharp that your blood must flow. If you are willing to suffer all this, then I can help you.

Some deal!  The little mermaid takes the deal because she is after an immortal soul.  If she fails to make the prince so love her "that he forgets both his father and mother, because his every thought concerns only you, and he orders the priest to take his right hand and place it in yours, so that you become man and wife" (less ambiguity about the promise here!), she will immediately become foam on the ocean.

In Anderson's version, the little mermaid fails to fulfill her end of the bargain, as the prince falls in love with a beautiful princess.  This time, it is the little mermaid's sisters (rather than her father) who offer up a modification of the contract with the sea witch.  They trade their hair for a knife that the little mermaid is to use to kill the prince, but  . . . ah, I don't want to spoil the ending for you.

[JT]

 

 

October 7, 2013 in Books, Commentary, Teaching | Permalink | Comments (1) | TrackBack (0)