Standard-Form Contracting in the Electronic Age
Robert A. Hillman, Jeffrey J. Rachlinski
The development of the Internet as a medium for consumer transactions creates a new question for contract law. In this Article, Professors Robert Hillman and Jeffrey Rachlinski address whether the risks imposed on consumers by Internet boilerplate requires a new lens through which courts should view these types of contracts. Their analysis of boilerplate in paper and Internet contracts examines the social, cognitive, and rational factors that affect consumers’ comprehension of boilerplate and compares business strategies in presenting it. The authors conclude that the influence of these factors in Internet transactions is similar to that in paper transactions. Although the Internet may in fact allow companies a greater opportunity to exploit consumers, Professors Hillman and Rachlinski argue that this phenomenon does not implicate a need to create a new framework for deciding cases involving Internet transactions. The authors conclude that Professor Karl Llewellyn’s theory of blanket assent, coupled with the unconscionability and reasonable-expectations doctrines that form the traditional framework used by courts to determine the validity of boilerplate terms in the paper world, should apply equally to the Internet world. Recognizing some of the specific concerns that arise in respect to boilerplate in Internet contracts, however, they address a number of issues to which courts should apply particular scrutiny and that may require the adoption of new approaches in the future.