Abstract

Contract law is supposed to enable people to reach genuine agreements and cooperate. If this ideal was ever a reality, the rise of mass market contracts and boil­erplate rendered it pure fiction. Modern consumer contracts are incomprehensible to most people. No one reads them anyway.

Digital contracting involves design features that amplify traditional boilerplate harms and create others. For example, digital contracting is too cheap; low marginal costs lead to overexpansion in scale and scope. To make matters worse, the loss of autonomy from repeat engagement with digital contracting systems is pernicious. People become increasingly predictable and programmable as digital interfaces train, habituate, and nor­malize click-upon-cue scripts and behaviors. Further, digital contracting degrades human relations. Consumers are commodified, treated as fungible attention and data resources traded in hidden side-markets, and yoked into networked relations with legions of strangers, including advertisers, data brokers, and AI training systems. Though barely noticed, digital contracting is the private-ordering infrastructure for the surveillance economy.

Up to now, there has been no viable solution. Society has become reliant on the convenience of digital contracting, and it is hard to imagine change. Pining for the past and going back to paper-based contracting is a fool’s errand. The novel solution we pro­pose is to embrace digital contracting but without the efficiency logic committed to elim­inating friction and transaction costs. Software code enables prosocial friction-in-design of digital contracting systems that can better serve traditional, as well as new, normative foundations of contract law. Accordingly, we propose legal reforms to support this shift. For example, we argue that contract and privacy laws should replace the widely used and criticized concepts of assent and informed consent with demonstrably informed consent. We then describe how friction-in-design measures could support teaching, confirmation, and authentication and generate reliable evidence that consumers understand important contractual terms. Ultimately, we propose to abolish one-click contracts and other forms of digital boilerplate, and to replace them with software-enabled contracting systems that produce contracts that better respect human dignity and serve society.

Publisher

American Bar Association

Keywords

Friction-by-design, contracts

Disciplines

Computer Law | Contracts | Cybersecurity | Information Security | Internet Law | Software Engineering

Download

Share

COinS