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.

AcknowledgmentsChapter 1 IntroductionChapter 2 Why Enforce Contracts?A. Individualistic/Deontic TheoriesB. Consequentialist TheoriesC. Multivalue Theories of Contract LawChapter 3 Contracts and Contract Law in Societal ContextA. Contract Law and Evolving Business NeedsB. Contracts of AdhesionC. Function, Fluidity, and Instructive ContractsChapter 4 The Rise of Wrap Contracts: The Early CasesA. ShrinkwrapsB. ClickwrapsC. BrowsewrapsChapter 5 Contract Terms as Sword, Shield, and CrookA. Contract as ShieldB. Contract as SwordC. Contract as CrookChapter 6 Problems of FormA. Is a Wrap Contract Just Another Contract of Adhesion?B. Sadistic ContractsChapter 7 Problems of SubstanceA. Wrap Contracts and Norm ShiftingB. Getting Something for Nothing: The Old Bait and SwitchC. The Limits of Unconscionability and the Problem of Other LawsChapter 8 The Sense and Nonsense of Wrap Contract DoctrineA. Notice and Wrap Contract FormationB. An Outline of Wrap Contract DoctrineC. A New Kind of Judicial ActivismChapter 9 Form, Function, and NoticeA. What is a Notice?B. Intent and Consent in Contracts, Torts, and PropertyC. Contract FunctionalismChapter 10 Contracts in WonderlandA. Contract Law and the Right of PublicityB. Wrap Contracts and Federal LawsC. Terms of DisserviceChapter 11 Reshaping Wrap Contract DoctrineA. Imposing a Duty to Draft ReasonablyB. Tailoring AssentC. Contract Form, Function and Doctrinal RulesD. Reinvigorating the Doctrine of UnconscionabilityChapter 12 ConclusionTable of CasesIndex