The model upon which contract law is based is that of two roughly equal parties negotiating terms that are to each party's advantage. That model no longer reflects reality. The majority of contracts entered into today are wrap contracts, meaning they are non-negotiated form contracts presented in a variety of non-traditional formats. Technological innovation has led to changes in contracting practices, contracting form and contract law itself. New technology creates new business models which, in turn, generate new legal issues. Businesses seek to fill in legal gaps through private ordering. Technology also enables new contracting forms, such as digitization of legal terms and the proliferation of online contracts. The development of new contracting forms, in turn, generates changes in the application of traditional contract law. Wrap contracts are the product of technological and legal innovation, but that doesn't mean they are beneficial to society. This lecture explains the origins of wrap contracts, discusses their enforceability, and explores the implications, for both consumers and society, of using these contracting forms.
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About the speaker:
Nancy S. Kim is Professor of Law at California Western School of Law and Visiting Professor at the Rady School of Management at the University of California, San Diego. Kim is the author of WRAP CONTRACTS: FOUNDATIONS AND RAMIFICATIONS (Oxford University Press, 2013). Kim has A.B. and J.D. degrees from U.C. Berkeley, and an LL.M. from U.C.L.A. law school. She is a licensed California attorney. Her past experience includes working in business and legal capacities for several venture-backed or public Bay Area technology companies, including as Vice President of Business and Legal Affairs of Exigen, Inc., a multinational software and services company. She has also worked as an associate in the corporate law departments at Heller Ehrman White & McAuliffe in San Francisco and Gunderson Dettmer in Menlo Park. She has published more than twenty scholarly articles and essays, and her name has appeared in media outlets including the Boston Globe, slate.com, the San Diego Tribune, the Sacramento Bee, and the San Francisco Chronicle. Kim is currently Chair 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. Professor Kim is an elected member of the American Law Institute.
Nancy S. Kim
California Western School of Law