Online Consumer Contracts: No One Reads, But Does Anyone Care?

Abstract

Electronic and virtual commerce is growing in size and scope. People are entering – without reading – into a greater number of contracts, which are becoming longer over time. Yet the volume, complexity and innovative nature of the electronic transactions render close inspection by courts an unattractive option. Regulators as well will have a difficult time keeping up with the novel challenges markets raise.

This essay is part of a symposium examining and celebrating the scholarship of Professor Florencia Marotta-Wurgler. Prof. Wurgler's important studies test – and at times undermine – some of the most basic assumptions of contract theory. The essay illuminates Prof. Wurgler's work by noting several insights related to the "law and technology" interface.

In Part I we set out with a preliminary look into Prof. Wurgler's methodology. Here we consider whether users' preferences and technological sophistication might have impacted the dataset used by Prof. Wurgler. In Part II we examine the possibility that alternative information flows educate users in various aspects of the standard form contract. We elaborate by considering the implications of such flows for Prof. Wurgler's findings and other aspects of her scholarship. We conclude by briefly reflecting on Prof. Wurgler's vision regarding the policy implications of her work.

Keywords: Standard form contracts, information privacy, emperical legal studies, EULA, B2B, B2C, click-wrap contracts