Tuesday Top Tips, Week of February 2, 2026
Apologies folks! The formatting got messed up on this post, and I don’t have time today to fix it. The links for most of the articles don’t work. Those of you interested in accessing this scholarship should be able to find it on SSRN.
Share the <strong>Woodrow Hartzog & Daniel J. Solove</strong> sectionWoodrow Hartzog & Daniel J. Solove
Share the <strong>Privacy as Contract?</strong> sectionPrivacy as Contract?
Nearly everything people buy, every service they use, every account they create, and even every website they visit involves the collection, use, and transfer of personal data—a matter that is ostensibly governed by privacy notices (also called “privacy policies”). Privacy notices are the foundation of privacy regulation; most privacy laws rely on the existence of privacy notices as a central pillar. Various statutory rights and obligations are tied or limited by what is specified in privacy notices, including the scope and nature of the collection, use, and transfer of personal data.
On the surface, privacy notices seem like contracts. They feel promissory in nature and are central to the grand bargain between consumers and companies at the heart of surveillance capitalism. When companies break the promises they make in privacy notices, contract law (through regular contract or promissory estoppel) appears to be a tool that could empower consumers to seek redress. But this has rarely been the case. Privacy notices still exist in a weird twilight between a mere description of policy and a binding agreement. They are even strangely still separate documents from companies’ terms of use agreements. Despite nearly forty years after privacy notices emerged to become the dominant mechanism to address privacy issues, the question of how contract law applies to privacy notices has been only thinly addressed by courts.
In this Article, we argue that contract law is unsuitable for governing consumer privacy. The law of consumer contracts is too oblivious to power disparities, too focused on the individual at the expense of groups and society, and too infected with bogus conceptions of consent to serve as a viable foundation to govern privacy in consumer transactions. Applying contract law more robustly and consistently to privacy notices will not better protect consumers—in fact, it will worsen protection and exacerbate the significant power imbalance between companies and consumers.
Even with reforms, applying contract law to privacy notices will not lead to a desirable balance of power between companies and consumers. Current contract law lacks the right tools to address privacy issues; it is rooted far too deeply in an individual control model similar to the one that has failed spectacularly in privacy law.
Instead of being developed to colonize privacy, contract law should be subject to an internal revolution in how it handles transactions in the Digital Age. With the internet and digital technologies, contract doctrine has lost its way and functions mainly to enable companies to wield power unilaterally against consumers. The fundamental goals, scope, and structure of consumer contract law must be rethought to better address problems with consent, fairness, and power.
Share the Carliss Chatman sectionCarliss Chatman
Share the The Contract and the Cure: Building a Private Infrastructure for Reparations sectionThe Contract and the Cure: Building a Private Infrastructure for Reparations
Share the Abstract sectionAbstract
This chapter reconceptualizes reparations for Black Americans as a contractual remedy for the breach of emancipation, reframing redress not as a moral or political gesture but as the expectation damages owed under American contract law. Against a backdrop of judicial hostility to affirmative action and the political rollback of diversity, equity, and inclusion (DEI) initiatives, it introduces the American Reparations Trust-a lineage-based, privately funded vehicle for reparative justice. Modeled after quasi-public financial entities and sustained by corporate tax incentives, the Trust bypasses constitutional and legislative barriers to offer a scalable, market-aligned path toward redress. It draws on theories of racial capitalism and structural exclusion to argue that private actors who benefited from slavery and its afterlives now bear the obligation to perform where the state has failed. In so doing, the chapter proposes a pragmatic legal infrastructure for reparations rooted in the logic of performance, not apology.
And . . . catching up with some scholarship that fell through the cracks:
Share the Miriam A. Cherry sectionMiriam A. Cherry
Share the Abuse of Contract sectionAbuse of Contract
See it performed live at KCON 2026 in two weeks!
Share the Abstract sectionAbstract
With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and condition purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick and mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued that a claim for wrongful death from food allergies was required to be heard in arbitration because the decedent’s husband had downloaded a free trial of the Disney+ streaming service five years prior to his wife’s death. Disney only walked back its argument when the news story went viral on social media and created negative publicity for the company.
This Article proposes two approaches to addressing such overreaching contracts, a contractual defense and a related tort claim. The defense is based on fraud in the inception, a contract law doctrine that protects parties from being bound to a contract in circumstances where a person manifests assent under false pretenses. Then, the Article proposes the creation of a new tort law cause of action for abuse of contract. Related to the tort of abuse of process, the abuse of contract cause of action would create a non-waivable civil cause of action for consumers where online retailers have inserted overreaching terms for in terrorem effect. Using this combination of contract defense and tort claim will remove the use of overreaching terms.
Share the Adam J. Levitin sectionAdam J. Levitin
Share the The Death of Consumer Contract sectionThe Death of Consumer Contract
Share the Abstract sectionAbstract
Fifty years ago Grant Gilmore published his famous book, The Death of Contract, which argued that modern American contract law was the creation of a handful of judges and academics, rather than a reflection of the real evolution of caselaw. Contract law was, in Gilmore’s words, an “ivory tower abstraction” that lived “in the law schools, not the law courts.” Even as Gilmore wrote, however, contract law was “dying” as it was being displaced by specialized regulatory regimes.
This Essay tells a parallel story about consumer contracts. The idea of a distinct body of consumer contract law is an academic concept that emerged with the American Law Institute’s Restatement of Consumer Contracts. Yet there is one nothing unique about consumer contract law; the law of consumer contracts is the same as for contracts generally. There is, in fact, only scant caselaw even involving consumer contracts, a situation explained by the economics of consumer contract litigation: there is seldom enough money at stake for consumers to litigate individual contract disputes. Instead, consumer contract litigation has become a one-way affair of businesses getting default judgments against consumers on contracts.
Litigation economics renders contract doctrine irrelevant for most consumer contract disputes other than enforcement of arbitration clauses, where contract doctrine has become a tool for a regressive wealth transfer from consumers to businesses, rather than a means of facilitating Pareto improving transactions. The failure of contract doctrine has resulted public regulation replacing private contract as the primary means of ordering business-to-consumer relations. Consumer contract law is dead. We now live in the age of consumer law.
Share the Victor P. Goldberg sectionVictor P. Goldberg
The paper considers the line between direct damages and consequential damages. Noting that language excluding recovery for consequential damages is common, it then asks why rational parties might choose to exclude such damages. Since the legal rule is only a default rule, it then considers a puzzle. Why, when the default rule is unclear or wrong, do parties not contract around the default. In particular, it notes that in England, for generations courts held exclusion clauses inapplicable, yet transactional lawyers kept including them without modifying them to adapt to the court’s rulings. It also considers the response to cases involving the decline in the market price of a commodity following a carrier’s wrongful delay of the goods.