Category Archives: Unconscionability and Unfair Terms
Przemysław Pałka, ‘Distributive Consequences of Regulating Boilerplate: Between Price Effects and Socialization of Risk’
ABSTRACT This chapter is about the distributive impact of boilerplate contracts. Specifically, this chapter scrutinizes the role that Consumer Unfriendly Terms (hereinafter ‘the CUTs’) play in the distribution of wealth and risk in consumer society, including e-commerce. It nuances the view dominant in some sectors of legal scholarship, according to which it is the least […]
Przemysław Pałka, ‘Terms of Injustice’
ABSTRACT Terms of Service (ToS) of online platforms often contain Consumer Unfriendly Terms (CUTs). The CUTs encompass clauses limiting consumers’ rights in dispute resolution, limitations on remedies, and corporations’ rights to unilaterally modify the service, delete users’ content, and benefit from their data. The ToS resemble the offline ‘boilerplate’, but given the context of their […]
‘Click to Agree that Terms of Use are Incomprehensible’
Tim Samples, Katherine Ireland, and Caroline Kraczon, ‘TL;DR: The Law and Linguistics of Social Platform Terms-of-Use’, Berkeley Technology Law Journal (forthcoming 2023), available at SSRN. Much has been written about ubiquitous online terms of service or terms of use (TOUs). But, as Samples et al write in their forthcoming article, ‘TL;DR: The Law and Linguistics […]
Jamie McWilliam, ‘Toward a New Generation of “Caregiver Statutes”’
ABSTRACT Probate law has long seen tension between protecting a testator’s freedom of disposition and protecting them from fraud or undue influence. A handful of states have attempted to strike this balance, at least partially, using ‘caregiver statutes’, which provide a presumption of undue influence for gifts to caregivers. Most academic critiques of these statutes […]
Mark Giancaspro, ‘“It’s Just Business” … Or Is It? When an Efficient Breach of Contract Becomes Unconscionable Conduct Under the Australian Consumer Law’
ABSTRACT In business it is sometimes more economically viable for a party to intentionally breach their contract with the other party and pay damages than it is to proceed with the agreement. The theory of efficient breach justifies this behaviour on the basis that the innocent party is adequately compensated and the party in breach […]
Jonathan Obar, ‘Unpacking “the Biggest Lie on the Internet”: Assessing the Length of Terms of Service and Privacy Policies for 70 Digital Services’
ABSTRACT … Key Findings: Overall, the privacy policies and terms of service across various digital services present individuals with a considerable amount to read. 57 of 70 services require an hour or more for the reading of both the terms of service and privacy policy materials. 34 of 70 services require two hours or more. […]
Uri Benoliel and Shmuel Becher, ‘Messy Contracts’
ABSTRACT This Article is the first to empirically examine whether firms draft well-organized online contracts that consumers can read, navigate, and analyze. ‘Messy Contracts’, as this Article dubs them, are contracts that lack organizational signals in the form of a table of contents and informative headings. Analyzing the sign-in-wrap agreements employed by the most popular […]
‘Just Kidding? The Problem of Unenforceable Waivers of Liability’
Edward Cheng, Ehud Guttel and Yuval Procaccia, ‘Unenforceable Waivers’, 76 Vanderbilt Law Review (forthcoming, 2023), available at SSRN. In their forthcoming article, ‘Unenforceable Waivers’, Edward Cheng, Ehud Guttel, and Yuval Procaccia (‘CGP’) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that […]
Adam Levitin, ‘The New Usury: The Ability-to-Repay Revolution in Consumer Finance’
ABSTRACT Consumer credit regulation is in the midst of a doctrinal revolution. Usury laws, for centuries the mainstay of consumer credit regulation, have been repealed, preempted, or otherwise undermined. At the same time, changes in the structure of the consumer credit marketplace have weakened the traditional alignment of lender and borrower interests. As a result, […]
Pałka, Pałosz, Porębski and Wiśniewska, ‘A Dataset on the Contents of 100 Terms of Service of Online Platforms, Analyzed and Evaluated Under the EU Consumer Law’
ABSTRACT The dataset contains information obtained during the analysis and evaluation of the contents of 100 Terms of Service (ToS) of online platforms from the point of view of the European Union consumer law. Each ToS has been assigned information regarding the presence and quality of remedy clauses, dispute resolution clauses, unilateral alteration clauses, rights […]