Brett Frischmann and Moshe Y. Vardi’s article, Better Digital Contracts with Prosocial Friction-in-Design, wrestles with perhaps the most vexing problem facing contract law today – what to do about the proliferation of digital contracts that infest our screens. Frischmann and Vardi tackle the problem from a different angle than most contracts scholars (perhaps not surprising given their background and expertise in technology). Rather than focusing exclusively on doctrinal or legislative solutions, they propose design-based solutions that reframe and reconceptualize assent (and consent).
Their article begins with a critique of digital contracting (while they use the term “digital contracting”, they are mostly concerned with wrap contracts, such as clickwraps and browsewraps, and not DocuSign-type documents). The failure of digital contracting as an aspirational ideal has to do with digital contracting systems, which they define as “the combination of law and code-based architecture that generates boilerplate.” (P. 4.) These systems fail not simply as implementation of the traditional model of contracts (two parties bargaining and reaching mutual assent or a “meeting of the minds”), but more tragically for humanity, they “generate contracting behavior and contractual relationships that are as far from the ideal as one can imagine.” (P. 4.)
The failure is of the systems, but the fault lies with “efficiency logic.” (P. 4.) which is a term that they use to refer to the logic that prioritizes optimization of systems above other social values: “For decades, the development, design, and deployment of digital contracting systems has followed a simple logic: optimize for efficiency, which involves minimizing transaction costs, eliminating friction, and increasing the speed, scale, and scope of technologically mediated interactions.” (P. 5.) Efficiency logic appeals to contract law which contorts to accommodate it and the consequence is the “ubiquitous digital boilerplate that people almost always automatically accept by clicking upon cue.” (P. 5.)
The objection they have is only partly rooted in the substance of one-sided boilerplate terms; they are primarily concerned with the dehumanizing effects of these digital contracting systems, which “undermine human autonomy and sociality.” (This is a topic that Frischmann (with Evan Selinger) has written about in a book, Re-Engineering Humanity, that I highly recommend and that I reviewed here).
Their solution is to combat efficiency logic by introducing friction in the design of digital contracting systems, “abolishing one-click contracting and related forms of digital boilerplate.” Rather than speeding up transactions, they want to slow them down by requiring firms to teach people what their terms mean. They argue that in the digital contracting environment, the duty to read is unfair because the unreadability of these terms is engineered. Websites are designed to nudge people to click to accept without reading the terms first. Imposing a duty to teach on firms would make it more costly for them to impose more terms simply because they can. Friction-by-design would have beneficial effects on society, improve user comprehension, and enhance a sense of autonomy.
Their article joins the growing chorus of voices that understand that adhesive digital terms are not just like adhesive paper contracts. In the digital context, form is substance. Accordingly, solutions to the mass proliferation of wrap contracts must grapple with the problem of form. Frischmann and Vardi’s proposals are consistent with the trend of recent court decisions determining wrap contract formation by evaluating aspects of website design, such as website flow. They conclude with a call for an interdisciplinary solution that goes beyond doctrine. The problem of digital adhesive terms was not created solely by contract doctrine, and it won’t be solved by doctrine alone.
