Issacharoff and Marotta-Wurgler, ‘The Hollowed Out Common Law’

Abstract
The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain of all electronic and shrinkwrap contract cases and makes four critical findings …

Issacharoff, Samuel and Marotta-Wurgler, Florencia, The Hollowed Out Common Law (October 5, 2018). NYU Law and Economics Research Paper No 18-33.

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