A fascinating new article by Andrew Keane Woods examines contracts in the digital age. These contracts are society-wide in scope, and their scale surpasses other massive contracts we use. Moreover, they set the rules for digital society and govern the digital world. Furthermore, they determine constitutional rights such as privacy rights, speech rights and Fourth Amendment rights.
The internet, digital platforms, and social media are heavily governed by private law. However, courts generally apply contract law to enforce these contracts without due regard for their public aspects, as outlined above. Courts emphasize procedural fairness and assent rather than substantive justice and the contract’s social impact. Furthermore, courts usually allow parties to contract away their public rights, such as the right to sue in a court of law, and regularly enforce liability waivers. Moreover, courts commonly overlook the public interests, social costs, and harms these contracts entail, and only rarely invalidate contracts on grounds of public policy. Similarly, scholars and reformers mainly focus on procedural fairness and mutual assent, for example by promoting better disclosure, while neglecting the public aspects of these contracts.
The article‘s main argument is that the contracts described carry significant social and public consequences, and therefore should not be merely enforced as private deals. In other words, the article criticizes the inattention of courts, reformers and scholars to the public costs and social harms stemming from these contracts, as they are more than contracts between two parties.
To address these social harms, the article suggests three reforms: first, rather than the contractarian model of governance, public law should be less willing to defer to private contracts. Second, legislatures should use mandatory rules to place substantive limits on social contracts causing social harms. Third, judges should decline to enforce contracts inconsistent with public policy, policing the social harms caused by the contracts.
This must-read article raises interesting questions. First, the notion that contract law is not purely private law is not new. As scholars noted, contract law is a social phenomenon with public aspects and consequences. Therefore, are contracts in the digital age a new phenomenon or an old one in digital cloths? In other words, given that many contracts have always had public implications, are these contracts different only in scale, magnitude, and degree? Are contracts today simply further evidence of the public nature of contract law and the urgent need for contract law to account for it? For example, as the article notes, hush contracts – though not digital contracts – have a social impact and are of public concern. Nevertheless, Professor Woods argues that contracts in the digital age are fundamentally distinct. The characteristics described in the opening paragraph render them unique and different from any other contract. This makes the need for the law to address them as social contracts more acute.
Second, and relatedly, this article illustrates the intricate relationship between private and public law. There is no clear divide between private law and public law: Contract law is not entirely private and encompasses public and social elements. Professor Woods rejects simplistic binaries offering instead a complex, nuanced and contextual picture of contract law. Rather than strict private-public dichotomy, Professor Woods sees it as a matter of delicately balancing between private law and public law and flexibly setting their borders.
Third, the article debates the preferred reform: legislation or judicial intervention? What state actor is better suited to police the social harms caused by these contracts? As Professor Woods shows, there are advantages and disadvantages,costs, and benefits to each of the reforms. Given the profound social costs associated with digital contracts, it may be necessary for both courts and legislators to collaborate in mitigating these social harms.
This article is not only a significant contribution to the literature on the publicness of contract law but also a wake-up call for reformers, legislators, regulators, judges, and scholars to address the social harms of the new social contracts.
