ABSTRACT
Much ink has been spilled over how antitrust law could address the effects of Big Tech’s market dominance. But when dominant firms include unfair terms in their agreements with business customers, contract law should be able to step in, too.
Contract law has two principles that are inherently appropriate to invoke when unfair terms persist in highly concentrated markets: unconscionability and public policy. Yet, neither is working as intended for small businesses stuck in non-negotiable online agreements with Big Tech for necessary services. This Article explains why.
This Article presents a theory of how dominant online service providers have drafted contracts and leveraged market positions to minimize the chances that any litigation challenging the enforceability of their terms will ever be initiated, creating what I call the ‘no-plaintiff problem’. As I describe, the no-plaintiff problem does not just leave small businesses without relief, but it also enables problematic contract terms to persist, constraining behavior and stagnating the development of law.
Fortunately, there are numerous ways to solve the no-plaintiff problem and open up paths to litigation for small businesses. Authorizing state attorneys general to police contracts on small businesses’ behalf or designating Big Tech companies as common carriers are good starts.
Landy, Rachel, Tech Contracts and the No-Plaintiff Problem(August 17, 2026), Cardozo Legal Studies Research Paper No 2026-17.
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