Babette Boliek, ‘Upgrading Unconscionability: A Common Law Ally for a Digital World’

ABSTRACT
To work, go to school, shop and even to communicate with each other, Americans live by the terms of myriad tech company contracts. Indeed, any time someone presses the ‘I agree’ button that pops up on a website – the clicking of which is required to continue on – they have entered into such a contract. Rarely read by the consumer and often objectively one-sided in the company’s favor, these contracts contain all the terms that will govern the consumer relationship to the company, including, among other things, how the company will control the use and sale of that consumer’s personal data. Given the growing consumer discontent with these non-negotiated, digital contracts – the breadth of the data collection policies, the inadequate notice about important terms, and the apparent unequal enforcement of what should be standard (equally applied) terms – it is surprising that there has been so little pushback on their enforceability. To be sure, there are calls for comprehensive privacy legislation that targets objectionable data collection terms. While such legislation is necessary and welcome, there may be an under-utilized ally for consumers already well-established in our legal system – the doctrine of unconscionability. Correctly applied, this Article argues that unconscionability can serve as an effective support to privacy legislation and can protect consumers against egregious digital, contracting practices.

This Article first sets out the historical roots of the unconscionability doctrine, including discussion of two seminal cases – Williams v Walker-Thomas and A&M Produce. This Article then highlights current contract concerns – such as privacy protections and discriminatory enforcement – and examines current digital contract problems concerning Facebook, YouTube, TikTok, and Uber and how unconscionability might apply to the benefit of consumers. To test if unconscionability is sufficiently robust to curb contractual excesses, this Article presents and analyzes a novel and unique dataset of over 7,000 unconscionability cases. As part of the extensive data analysis, 814 cases with unconscionability claims were read, analyzed, and catalogued to determine the success and contours of the courts’ decisions. Finally, this Article presents a possible legislative ‘upgrade’ to the doctrine of unconscionability to refocus, where necessary, courts’ deployment of it in cases of digital contracting.

Boliek, Babette, Upgrading Unconscionability: A Common Law Ally for a Digital World (February 1, 2021). Maryland Law Review, forthcoming.

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