Contracts and Automation: Exploring the Normativity of Automation in the Context of U.S. Contract Law and E.U. Consumer Protection Directives

Yearbook of Antitrust and Regulatory Studies, Vol. 9(14), p.15-42, 2016

28 Pages Posted: 7 Aug 2017

See all articles by Daniel D. Barnhizer

Daniel D. Barnhizer

Michigan State University College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: December 31, 2016

Abstract

Given a choice between two systems of contract rules, a court or legislature may have a normative obligation to adopt the rule that is more susceptible to coding and automation. This paper explores the ramifications of that normative proposition through the lens of multiple contract doctrines that traditionally involve “messy” judgments or multiple interacting judgments regarding which human beings are – arguably – capable of making finely nuanced analyses. Using the common law doctrine of unconscionability and Polish Civil Code Article 385 on unfair terms in consumer contracts, this paper explores the differences between contract rules that require human analysis versus those that can be applied with strong reliability by automated processes. Finally, the paper analyzes some of the potential pitfalls of this normative proposition in light of technological, economic, and moral/ethical concerns.

Keywords: Contract Automation; Unconscionability; Consumer Protection; Dispute Resolution

JEL Classification: K12, K40, O33

Suggested Citation

Barnhizer, Daniel D., Contracts and Automation: Exploring the Normativity of Automation in the Context of U.S. Contract Law and E.U. Consumer Protection Directives (December 31, 2016). Yearbook of Antitrust and Regulatory Studies, Vol. 9(14), p.15-42, 2016. Available at SSRN: https://ssrn.com/abstract=3013024

Daniel D. Barnhizer (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6901 (Phone)

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