Law 798:  Clickwrap, Browsewrap and Shrinkwrap: Current Developments in Consumer Contracting in the Digital Age

The communication of standardized text, sometimes known as “boilerplate,” plays a critical role in numerous contemporary contracts—from on-line consumer contracts to complex transactional documents that are heavily lawyered and valued in the billions. In this seminar, we will investigate the uses and abuses of treating boilerplate text as contract. We will explore the underlying rationales for this treatment and assess those rationales against the fundamental principles of contract law. We will consider the “good” of standardization—e.g., the efficiency of uniformity and easy duplication of text across markets. We will consider the “bad”—e.g., how treatment of boilerplate text can incentivize market inefficiencies or failures of well-tailored agreement. And we will discuss the “ugly”—e.g., how treatment of boilerplate text as contract can incentivize systems of mass deception and undermine the rule of law in some contexts.

Evaluation: Your grade in this course will be based on two factors: 1) a final paper, which will be 18-22 pages in length or a take-home exam (but not both—you will get to choose); and 2) class participation.  Your grade on the final paper or exam will count no less than 90% of your grade. 

If you choose to do the final paper, it can count for Upper Level Writing Credit, but you will have to do one rewrite under my guidance after receiving your grade for the course and meet all other relevant requirements stated in the Law School’s Student Handbook.

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