Bots, Babes, and the Californication of Commerce
By: Ian R. Kerr
(2004) 1 University of Ottawa Law and Technology Journal 285-324
Virtually all of the precious bits of legal attention devoted to automated electronic commerce have, until recently, focused on the issues surrounding contract formation.1 While, admittedly, it is extremely interesting to muse about the sense in which 'autonomous,' machine-based systems might be said to have the capacity to contract,2 or about whether the mere click of a mouse during the course of an automated transaction is sufficient to bind a consumer to an online service provider's Terms of Service,3 I am concerned that excessive attention to this renaissance of thought on the fundamentals of contract might inadvertently eclipse an illicit use of automation technologies. Although, as an academic, I remain grateful for the unusual opportunity that electronic commerce has afforded to legal scholars in terms of rethinking doctrines such as contractual capacity and consent, I believe that a warning flag is in order. With so much attention being paid to the enforceability of online contracts, few jurists seem to be demonstrating any interest at all in the consequences of automated electronic commerce for people.
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