Wrap Contracts

Nancy S. Kim is Professor of Law at California Western School of Law, and Visiting Professor at Rady School of Management, University of California, San Diego. She is Chair-Elect of the Contracts Section of the Association of American Law Schools, and a member of its Executive Committee of the Commercial and Related Consumer Law Section, as well as a past member of its Executive Committee of the Internet and Computer Law Section. She is a former Ford Foundation fellow and Women's Law and Public Policy fellow. Previously she was Vice President of Business and Legal Affairs of Exigen, Inc., a multinational software and services company. She has worked in business and legal capacities for several Bay Area technology companies and was an associate in the corporate law departments at Heller Ehrman White & McAuliffe in San Francisco and Gunderson Dettmer in Menlo Park.

• Chapter 1: Introduction ; Chapter 2: Why Enforce Contracts? ; A. Individualistic/Deontic Theories ; B. Consequentialist Theories ; C. Dynamic or "Multi-Value" Theories of Contract Law ; Chapter 3: Contracts and Contract Law in Societal Context ; A. Contract Law and Evolving Business Needs ; B. Contracts of Adhesion ; C. Function, Fluidity and Instructive Contracts ; Chapter 4: The Rise of 'Wrap Contracts: The Early Cases ; A. Shrinkwraps ; B. Clickwraps ; C. Browsewraps ; Chapter 5: Contract Terms as Sword, Shield and Crook ; A. Contract as Shield ; B. Contract as Sword ; C. Contract as Crook ; Chapter 6: Problems of Form ; A. Is a 'Wrap Contract Just Another Contract of Adhesion? ; B. Sadistic Contracts ; Chapter 7: Problems of Substance ; A. 'Wrap Contracts and Norm Shifting ; B. Getting Something for Nothing: The Old Bait and Switch ; C. The Limits of Unconscionability and the Problem of Other Laws ; Chapter 8: The Sense and Nonsense of 'Wrap Contract Doctrine ; A. What is Sufficient Notice? ; B. An Outline of 'Wrap Contract Doctrine ; C. A New Kind of Judicial Activism ; Chapter 9: Form, Function, and Notice ; A. What is a Notice? ; B. Intent and Consent in Contracts, Torts and Property ; C. Contract Functionalism ; Chapter 10: Contracts in Wonderland ; A. Contract Law and the Right of Publicity. ; B. 'Wrap Contracts and Federal Laws ; C. Terms of Disservice ; Chapter 11: Reshaping 'Wrap Contract Doctrine ; A. Imposing a Duty to Draft Reasonably ; B. Tailoring Assent ; C. Interpretation, Construction and Contract Form and Function ; D. Environmental Coercion ; Chapter 12: Conclusion ; Index

"How many contracts have you signed today? As Nancy Kim demonstrates in this engaging and accessible book, the answer is: 'more than you think.' She explains how we've drifted into a world in which unilateral private statements, not public laws, control our behavior, online and elsewhere. And she offers us a sensible way out of the mess in which we find ourselves. Well worth reading for anyone who cares about who controls what they do online." --Mark A. Lemley, William H. Neukom Professor, Stanford Law School Director, Stanford Program in Law, Science, and Technology Partner, Durie Tangri LLP"Professor Nancy Kim's new book, Wrap Contracts: Foundations and Ramifications, is essential reading for academics, judges, and lawyers interested in the nature, functions, and enforcement of Internet contracts. Wrap Contracts is a comprehensive, yet accessible treatment of the formation of contracts in the age of digital technology, of the behavior of businesses and consumers in this new environment, and of the limitations of current doctrine toadminister these contracts. The book also contributes useful ideas about changes in the law that could better and more fairly facilitate electronic contracting. Wrap Contracts is also valuable for its vastcollection and discussion of pertinent cases and secondary sources." --Robert A. Hillman, Edwin H. Woodruff Professor of Law, Cornell University Law School"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." --Ryan Calo on ContractsProf Blog, Assistant Professor, University of Washington School of Law, and Faculty Director, Tech Policy Lab, University of Washington"Kim does a terrific job categorizing and describing the various types of wrap contracts. Wrap Contracts forcibly describes how businesses, the courts, and technology have created a new world for contracting parties and how fundamental contract formation principles have been skewed to favor the drafting party. Reading Wrap Contracts was enjoyable because it made me re-visit some of the concepts relating to contract law that I putativelylearned during my first year of law school and for the bar exam. I highly recommend this book to anyone who either drafts or litigates contracts. It is provocative, thoroughly researched with terrific references, and verystimulating." -Frederic H. Marienthal, Partner at Kutak Rock LLP (The Colorado Lawyer)