Monthly Archives: November, 2013

Ian Brown, ‘The Economics of Privacy, Data Protection and Surveillance’

Abstract: This chapter first describes the standard economic analysis of privacy, data protection and surveillance, looking at the costs and benefits to different parties and the incentives each therefore has, as well as the aggregate social welfare impacts of their decisions. It then considers the market failures that can lead to non-optimal outcomes, including information […]

Eugene Volokh, ‘Tort Law vs. Privacy’

Abstract: Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to disclose sensitive information, to gather such information, and to install comprehensive surveillance. And such pressure is growing, as technology makes surveillance and other information gathering more cost-effective and thus more likely to […]

Wrap Contracts Symposium: Response to Rustad, Zacks and Amato and Closing Thoughts

“I want to thank all the experts who participated in last week’s symposium on WRAP CONTRACTS: FOUNDATIONS AND RAMIFICATIONS. They raised a variety of issues and their insights were thoughtful, varied and very much appreciated. I also want to thank Jeremy Telman for organizing the symposium and inviting the participants. Today, I’d like to respond […]

Wrap Contracts Symposium, Part VI: Eric Zacks on Deciphering the Function of Form in Wrap Contracts

“Form and function collide again and again in Professor Kim’s engaging Wrap Contracts. As Kim explains, the wrap contract’s form is deeply connected to its function, and her description and devastating critique of these varying forms illuminate the complexities of how we interact with, and are affected by, such contracts. She argues that the form […]

Tibor Tajti, ‘The Unfathomable Nature and Future of the European Private Law Project’

Abstract: The article focuses on the historically unparalleled yet already unfolding and – especially by non-Europeans – hardly fathomable multidimensional process referred to by the generic term of European Private Law Project. Two main groups of problems make its meaning blurred: its ambivalent and heterogeneous nature and the distortions caused by the lack of consensus […]

Gerald Postema, ‘Law’s System: The Necessity of System in Common Law’

Abstract: TE Holland infamously described the common law “chaos with a full index”, and critics from Bentham to Peter Birks have criticized common law for its manifest absence of system, its disorderly collection of legal categories and miscellany of odd rules. Defenders of contemporary common law celebrate its resolute anti-theoretical stance and resistance to systematization. […]

Wrap Contracts Symposium, Part VII: Theresa Amato

“‘Yes’, writes Professor Nancy S Kim. ‘As strange as it may seem, under contract law you can legally bind yourself without knowing it.’ Contract law experts nod in accord, some in resignation or with ennui. Non-lawyers are instead completely shocked when I describe this reality. They have no idea that by visiting a website, sending […]

Wrap Contracts Symposium: Response to Moringiello and Hartzog

“It’s my pleasure to respond to Tuesday’s posts from Juliet Moringiello and Woodrow Hartzog. Juliet Moringiello asks whether wrap contracts are different enough to warrant different terminology. Moringiello’s knowledge in this area of law is both wide and deep, and her article (Signals, Assent and Internet Contracting, 57 Rutgers L. Rev. 1307) greatly informed my […]

Richard Moorhead, ‘It’s the system, stupid?’

“Mitu Gulati and Robert E Scott’s new book, The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design examines the pari passu clause, a clause designed to ensure a debtor’s creditors rank against each other equally. It asks why a standard clause in cross-border financial contracts remained in sovereign debt contracts […]

Wrap Contracts Symposium, Part V: Michael Rustad on Reforming Wrap Contracts

“In her insightful new book, Nancy Kim contends that ‘wrap contracts’ take the form of a traditional contract but constitute a ‘coercive contracting environment’. (Nancy S. Kim, Wrap Contracts: Foundations and Ramifications 1-3 (Oxford University Press, 2013)). Professor Kim contends that the problem with ‘wrap contracts’ is ‘their aggressive terms’. (Id. at 4.) My Suffolk […]