The Boundaries of Contract Law in Cyberspace

Abstract

This article evaluates the extent to which the traditional policy of deterrence that regulators and courts historically applied to so-called adhesion contracts are extended to new classes of 21st century cyber-consumers in our consumer-centric era. Concentrating on the law of unconscionability in jurisdictions like California and New York, it considers how courts treat cyber-consumers who resell goods and services, engage in repeat order transactions, and exercise market choice. Exploring the judicial treatment of unconscionability in box-wrap, shrink-wrap, click-wrap and browse-wrap contracts, not limited to cyber-commerce, it explores judicial conceptions of bargaining naughtiness leading to procedural unconscionable, and evils lurking in wrap contracts giving rise to substantive unconscionability. It juxtaposes the view that wrap producers purposefully deny cyber-consumers the opportunity to review onerous conditions against the reality that many consumers choose not to read the fine print because it is uneconomic for them to do so.

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