Category Archives: Unconscionability and Unfair Terms

Babette Boliek, ‘Upgrading Unconscionability: A Common Law Ally for a Digital World’

ABSTRACT To work, go to school, shop and even to communicate with each other, Americans live by the terms of myriad tech company contracts. Indeed, any time someone presses the ‘I agree’ button that pops up on a website – the clicking of which is required to continue on – they have entered into such […]

Orly Lobel, ‘Boilerplate Collusion: Clause Aggregation, Antitrust Law and Contract Governance’

ABSTRACT Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This article exposes the ways that a contract is larger than the sum of its separate clauses and a set of […]

Francisco de Elizalde, ‘Control of Price Related Terms in Standard Form Contracts: Spain’

ABSTRACT The purpose of this paper is to analyse whether Private law could determine the fate of the Circular Economy. The article will first assess the legal relationship that the service creates between the supplier and the consumer. This relationship establishes a contractual bond in which the quality of performance is at stake. Next, the […]

‘Recent Scholarship: Eric Goldman, “The Law of Contracts in Memes”’

“Eric Goldman has posted on SSRN ‘The Crisis of Online Contracts (As Told in 10 Memes)’. The manner of presentation is charming. I hope it catches on, and I hope I can find enough relevant memes (or figure out how to make memes) to tell the American legal academy why we need Hans Kelsen’s positivist […]

Katz and Zamir, ‘Do People Like Mandatory Rules? The Choice between Disclosures, Defaults, and Mandatory Rules in Supplier-Customer Relationships’

ABSTRACT In recent years, numerous empirical studies have examined the prevailing attitudes toward nudges, but hardly any have examined the prevailing attitudes toward mandatory rules. To fill this gap, this article describes five studies (N=3,103) – mostly preregistered studies conducted with representative samples of the US population – which tested people’s attitudes toward mandatory rules […]

Chris Hunt, ‘Unconscionability In The Supreme Court Of Canada: Uber Technologies Inc v Heller

“The Canadian doctrine of unconscionability is notoriously uncertain. Until its decision in Uber Technologies Inc v Heller, 2020 S.C.C. 16 (‘Heller’), the Supreme Court of Canada had not pronounced authoritatively on the subject, leaving lower courts to develop a variety of different framework tests that operate inconsistently across the country (see C Hunt, ‘Unconscionability Three […]

‘The impact of COVID-19 on litigation across Europe’

“COVID-19 has had a significant impact on litigation across Europe. The pandemic has disrupted the management of judicial activities, as well as most contractual relationships. As a result, since the beginning of 2020, national governments and courts have had to find creative solutions to contain the spread of the disease and avoid a devastating failure […]

‘Nancy Kim’s Annual Wrap Contracts Update’

“We’ve got all your contracts needs covered here on the blog. If you need a legal Limerick, we’ve got them here. If you need to learn about wrap contracts, Nancy Kim’s book covers the basics, and her recent article, ‘New Developments in Digital and Wrap Contracts’, forthcoming in The Business Lawyer, keeps you updated on […]

‘New Scholarship: Leases as Forms’

“David Hoffman (left) and Anton Strezhnev (below, right) have posted ‘Leases as Forms’ on SSRN. The Article makes use of a database of 170,000 residential leases filed in connection with 200,000 eviction proceedings in Philadelphia between 2005 and 2019. Unsurprisingly, the leases include unenforceable terms and have gotten more pro-landlord recently. Black tenants are more […]

‘New study on consumer protection in the digital age: should the burden of proof in the UCPD be reversed?’

“Earlier this month a very interesting report by Natali Helberger, Orla Lynskey, Hans-W Micklitz, Peter Rott, Marijn Sax and Joanna Strycharz was published by BEUC. The study entitled ‘EU consumer protection 2.0: Structural asymmetries in digital consumer markets’ addresses a number of topical issues concerning consumer protection in the digital age and consists of the following […]