Becher and Zarsky, ‘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.

Becher, Shmuel I and Zarsky, Tal, Online Consumer Contracts: No One Reads, But Does Anyone Care? (April 14, 2015). Jerusalem Review of Legal Studies, forthcoming.

First posted 2015-04-16 07:34:14

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