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Abstract

Technology has transformed the consumer marketplace. It has radically changed the way consumers enter into contracts for goods and services. Part II of this Article provides the broader context in which online contracting occurs, describing the general electronic environment that technology has made possible, including its costs as well as its benefits. The law has failed to keep up with this transformation and Part III points out these gaps in the law. The major focus of this Article is on issues raised by the new ways in which consumers and businesses enter into online contracts. Part IV begins this inquiry by providing a brief history of the various media people have used to embody contract terms and to document the parties’ intention to enter into a contract.  Part V reviews applicable legislation.  It also analyzes the emerging case law in which courts struggle to determine whether consumers have entered into a contract when they use a mouse to click on a button labeled “I agree” or have the opportunity to click on a hyperlink that leads to an agreement but does not require any explicit indication of their consent. Part V describes the new environment in which consumers order goods by touching or tapping on small mobile device screens or by talking to virtual personal assistants. Unique legal issues relating to the formation of contracts arise when agreements are made using these devices. Part VI discusses various approaches policymakers could adopt to develop the law on contracting in cyberspace in an ever-changing consumer e-commerce marketplace.

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