'Nancy Kim has reset the stage in terms of how consent should be understood and governed within the law. In rich prose, she explains there are 'reasons to doubt the invincibility of consent', and with that she takes the reader on an intellectually rich journey. This is the rarest of books, because scholars across many disciplines will want to read and reference it. At a time in which consent is mired in confusion and conflict, she offers a clear and rich analysis on how we got here.' - Michele Goodwin, Chancellor's Professor of Law, University of California, Irvine
Consentability: Consent and Its Limits
Cambridge University Press
Hardback ISBN 978-1-107-16491-8
Paperback ISBN 978-1-316-61655-0
Problems regarding the nature of consent are at the heart of many of today’s most pressing issues. The #MeToo movement, for example, has underscored the need to move beyond viewing consent as a simple matter of yes or no. Consent is complex because humans and their relationships are complicated. Humans, as a result of our cognitive limitations and emotional and physical vulnerabilities, are susceptible to manipulation and mistakes. Given the potential for regret, are there some things to which one should not be permitted to consent? The consentability quandary becomes more urgent with technological advances. Should we allow body hacking? Cryonics? Consumer travel to Mars? Assisted suicide?
In Consentability: Consent and Its Limits, Nancy S. Kim proposes a bold, original framework for evaluating consentability, which considers the complexities surrounding consent. This book is intended for a general audience and should be of particular interest to policymakers, legislators, judges, lawyers, scholars, bioethicists, and students.
Introduction; Part I. The Contours of Consent: 1. What does it mean to consent? 2. The hard cases; Part II. Consentability and Contractability: 3. A consentability framework; 4. Consent and contracts; Part III. The Regret Principle and the Opportunism Corollary: Application: 5.Improving the conditions of consent; 6. Reducing opportunism; 7. Revisiting the hard cases –some final thoughts; Conclusion; List of cases; List of statutes; Bibliography; Index.
'Professor Kim's book is ideal for anyone interested in improving their contract negotiation skills. Through its blend of contract doctrine, case summaries, sample clauses and questions designed to encourage reflection, the book provides an ideal blend of contract theory and practice. The caveats on "greedy drafting" that are sprinkled throughout the book are unique and useful. These cautionary scenarios serve as a reminder that successful drafting of contract clauses requires consideration of both legal and ethical principles.' --George Siedel, University of Michigan
The Fundamentals of Contract Law and Clauses
Edward Elgar Publishing
Hardback ISBN 978 1 78347 941 2
Paperback ISBN: 978 1 78347 942 9
This accessible and innovative textbook adopts a practical, transactions-centered approach to contract law by using contract clauses to explain doctrinal concepts. While reading this book, students will gain a working knowledge of important contract provisions and learn how to use contracts to prevent problems, reduce risks and add value to transactions.
This textbook contains unique features including reflection prompts, case highlights and ‘applying what you learned’ exercises to reinforce learning and help students gain essential transactional skills. Law professor and contracts expert Nancy Kim focuses on litigation prevention with a problem-solving approach. She offers helpful tips to avoid potential pitfalls in drafting contracts and provides explanations for common contract clauses and their meanings. Access to a digital teacher’s manual is available upon adoption of the book.
The Fundamentals of Contract Law and Clauses will be an invaluable resource for both law and business students, specifically in contracts, commercial law, business law and other transactions-oriented classes.
"Professor Nancy Kim's new book, Wrap Contracts: Foundations and Ramifications, is essential reading for academics, judges, and lawyers interested in the nature, functions, and enforcement of Internet contracts. Wrap Contracts is a comprehensive, yet accessible treatment of the formation of contracts in the age of digital technology, of the behavior of businesses and consumers in this new environment, and of the limitations of current doctrine to administer these contracts. The book also contributes useful ideas about changes in the law that could better and more fairly facilitate electronic contracting. Wrap Contracts is also valuable for its vast collection and discussion of pertinent cases and secondary sources."
--Robert A. Hillman, Edwin H. Woodruff Professor of Law, Cornell University Law School
Wrap Contracts: Foundations and Ramifications
Oxford University Press
When you visit a website, check your email, or download music, you enter into a contract that you probably don't know exists. "Wrap contracts" - shrinkwrap, clickwrap and browsewrap agreements - are non-traditional contracts that look nothing like legal documents. Contrary to what courts have held, they are not "just like" other standard form contracts, and consumers do not perceive them the same way. Wrap contract terms are more aggressive and permit dubious business practices, such as the collection of personal information and the appropriation of user-created content. In digital form, wrap contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use wrap contracts excessively and in a wide variety of contexts. Courts impose a duty to read upon consumers but don't impose a duty upon businesses to make contracts easy to read. The result is that consumers are subjected to onerous legalese for nearly every online interaction.
In Wrap Contracts: Foundations and Ramifications, Nancy Kim explains why wrap contracts were created, how they have developed, and the effect they have had on society. She explains how businesses and existing law unfairly burden users and create a coercive contracting environment that forces users to "accept" in order to participate in modern life. Kim's central thesis is that how a contract is presented affects and reveals the intent of the parties. She proposes doctrinal solutions - such as the duty to draft reasonably, specific assent, and a reconceptualization of unconscionability - which fairly balance the burden of wrap contracts between businesses and consumers.