The Hollowed Out Common Law


The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available  after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain of all electronic and shrinkwrap contract cases and makes four critical findings.

First, we document two shifts: One arises from a steady decline in the number of cases adjudicated in state court relative to federal courts, which by 2015 adjudicate the vast majority of cases in this area. The other stems from a rise in class actions, which is intimately tied to the migration of cases to federal court. The result is that today the vast majority of cases dealing with electronically transmitted and “terms later” contracts are class actions brought in federal court. The increase in class actions is not surprising given the relatively small stakes of most transactions and the little incentive consequently created for individual consumer  litigation. We hypothesize that the increased dominance of the federal forum is in part likely a reflection of the federalization of class action law under the Class Action Fairness Act (CAFA).

Second, the consequence of the dominance of the federal forum is that the common law is
being elaborated in federal court in suits arising under diversity jurisdiction. In turn, those
federal courts are largely bereft of any state law moorings as they develop the common law of
the electronic marketplace. Erie Railroad v. Tompkins notwithstanding, the common law is
driven by federal court decisions, building incrementally on each other rather than state law.

Third, the development of common law in federal court means that there is no apex court that can define conclusively the law of any jurisdiction. When state common law cases develop organically through the state court system, the natural progression from trial court to appellate review to final review in the state supreme court would yield a definition of the substantive law of any particular jurisdiction. When, however, the case law is being driven by federal courts anticipating what state common law should be, the same process of common law filtration does not reach conclusive resolution. Diversity jurisdiction allows federal courts to predict how they believe state common law would develop, but binds no state courts in the affected jurisdiction, and does not even bind federal courts in the same circuit putatively applying the law of another state. The law develops in fits and starts as doctrines assume persuasive influence as opposed to the command status that the ruling of a state high court would have. Rather than the law resolving hierarchically, we identify a “tournament effect” in which the law settles on one or a few influential decisions, regardless of the state law that the case may have arisen under. Th e tournament winner, usually a circuit court opinion, establishes the new standard and is followed by subsequent courts, including state high courts.

Finally, we conjecture that the use of contractual clauses compelling arbitration and forbidding claim aggregation may have affected the number of cases being adjudicated in court and, consequently, depressed the development of publicly available law in this area.

About the Author

Samuel Issacharoff is the Reiss Professor of Constitutional Law, New York University School of Law. Florencia Marotta-Wurgler is a Professor of Law, New York University School of L

By uclalaw