New Essay: “The Crisis of Online Contracts (as Told in 10 Memes)”

I’m pleased to share my newest essay, “The Crisis of Online Contracts (as Told in 10 Memes),” which describes the “crisis” of overly formalist contract assent doctrines online in a brief, breezy, and (I hope) fun format. The essay’s key novelty is that it’s built around 10 memes I cut-and-paste from the Internet, making it an early example of meme-driven legal scholarship (though not the first–see, for example, the work of Prof. Alexandra Roberts of UNH 1, 2).

This essay has had a tortured path to today. I presented on this topic 6 years ago at an AALS annual meeting. I wrote draft blog post of my notes from that presentation. However, my plans got waylaid by my mom’s death, and the blog post languished in my drafts folder for years. Then, I presented on the issue again 2 years ago, and I wrote up a short draft essay from that session. However, I kept deferring the work to finish it until the COVID shutdown hit. Rather than dramatically rework it into a more rigorous piece, I’ve now decided to move it off my desk and share it (despite its limitations) so I can focus on other projects.

I’ve repeatedly mentioned the crisis of online contracts on this blog, so many of you already know much of what the essay says…though you still might pick up a point or two there and have a few chuckles. I also hope it will be a fun and useful entry point for those less versed in the dilemmas caused by online contract formation.

The abstract:

This essay explains the “crisis” of online contracts, the legal fiction that consumers have assented to online contract terms when we have ample empirical evidence that they didn’t really mean to assent. The essay describes the crisis, and some possible solutions, using 10 Internet memes. The essay concludes that the crisis of online contracts may be the least-worst option among the alternatives.