When you visit a website, check your email, or download music, you enter into a contract that you probably don't know exists. "Wrap contracts" - shrinkwrap, clickwrap and browsewrap agreements - are non-traditional contracts that look nothing like legal documents. Contrary to what courts have held, they are not "just like" other standard form contracts, and consumers do not perceive them the same way. Wrap contract terms are more aggressive and permit dubious business practices, such as the collection of personal information and the appropriation of user-created content. In digital form, wrap contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use wrap contracts excessively and in a wide variety of contexts. Courts impose a duty to read upon consumers but don't impose a duty upon businesses to make contracts easy to read. The result is that consumers are subjected to onerous legalese for
nearly every online interaction.
In Wrap Contracts: Foundations and Ramifications, Nancy Kim explains why wrap contracts were created, how they have developed, and what this means for society. She explains how businesses and existing law unfairly burden users and create a coercive contracting environment that forces users to "accept" in order to participate in modern life. Kim's central thesis is that how a contract is presented affects and reveals the intent of the parties. She proposes doctrinal solutions - such as the duty to draft reasonably, specific assent, and a reconceptualization of unconscionability - which fairly balance the burden of wrap contracts between businesses and consumers.
Industry Reviews
"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 to
administer 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 vast
collection 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 putatively
learned 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 very
stimulating." -Frederic H. Marienthal, Partner at Kutak Rock LLP (The Colorado Lawyer)
