SelectedWorks @ Widener University Commonwealth Law School
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From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Internet Contracting
No full textContract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract law also must be able to handle changing social and economic circumstances, changes that occur at an ever-increasing speed. Contract law, originally designed to handle agreements reached by persons familiar with one another, evolved over time to solve the problems posed by contract formation that was done at a distance — that is, contract law had developed to handle first paper, then telegraphic, and finally telephonic communications. It has handled those changes very well.In the 1990s, however, things began to change. The rise in computer use by individuals coupled with the advent of the World Wide Web gave rise to two parallel developments, both of which challenged the law of contract formation. Increased computer use created a demand for software programs designed for the consumer market, and those programs were commonly transferred to users by way of standard-form licenses that were packaged with the software and thus unavailable before the consumer paid for the software. Also, parties in large numbers began to use electronic means — the computer — to enter into bargained-for relationships. The turn of the millennium brought two electronic contracting statutes, the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”), which removed any doubts that contracts entered into electronically could satisfy the Statute of Frauds. Encouraged by the certainty given by those statutes, internet businesses started offering contract terms on their websites, asking customers to consent to terms by clicking an icon, or by not seeking express assent at all by presenting terms of use by hyperlink.The ease of presenting terms comprised of thousands of words by an internet hyperlink makes it easy for a vendor in its terms of use and terms of service to ask us to give up privacy rights and intellectual property rights. Modern communications technologies therefore make it easier for parties to engage in risky transactions. Nevertheless, we believe that, with few exceptions, the common law of contracts is sufficiently malleable to address the problems arising out of that behavior and where it is not, regulation of contract terms is appropriate. This Article examines those developments
Thinking Outside the Box: Publication Opportunities Beyond the Traditional Law Review
No full textTraditionally, legal scholarship within the academy has been defined somewhat by its heft and placement. There is value, however, in seeking diverse audiences found in often overlooked venues. This article presents several publication opportunities organized by intended audience: practitioners, law students and professors, and the general public
A Primer on Clearing OTC Derivatives: A Buyside Blueprint for Implementation
No full textJune 10, 2013 is an important date for many large buyside firms: the date that the Dodd-Frank Act will require them to clear over-the-counter derivatives. Even firms that qualify for the end-user exception to mandatory clearing may still want to have the ability and capacity to clear for pricing or operational efficiency reasons
General Principles and Introductory Matters in Motor Vehicle Insurance Law
No full textChapter 61 provides an overview of automobile insurance law in the United States, including many matters that will be covered in greater detail in subsequent chapters. The goal in this chapter is to orient the reader to the major components of, and issues concerning, automobile insurance
A Study in Judicial Sleight of Hand: Did \u3cem\u3eGeier v. American Honda Motor Co.\u3c/em\u3e Eradicate the Presumption Against Preemption?
No full textTwo Roads Diverge for Civil Recourse Theory
No full textJohn Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates a gap between civil recourse theory and the tort law it is supposed to describe. In the trenches, insurers and plaintiffs’ lawyers are concerned about the profitability of their portfolio of cases as a whole. Insurers and many plaintiffs’ lawyers, therefore, routinize the claims system, increasing its administrability and the compensation of claimants, but reducing or eliminating the importance of wrongs in a large portion of cases. Civil recourse theory fails as a descriptive unitary theory of tort law because it does not accurately describe automobile accident claims, constituting a majority of tort claims and three-quarters of tort payments
Blogging: Reflection Spurs Students Forward
No full textBlogs are places where students can discover more about themselves as learners and future lawyers