Adapting Contract Law to Accommodate Electronic Contracts: Overview and Suggestions
Kidd, Donnie L., Jr., Daughtrey, William H., Jr., Rutgers Computer & Technology Law Journal
Law is not a static body of inflexible rules and unyielding tradition. The dynamism of contemporary economic, cultural, and technological evolution requires the law to adapt itself to modern demands. Attempts to graft archaic legal systems onto ever-changing circumstances result in a struggle to conform novel issues into an out-dated legal framework.(1) Currently, courts and legislatures are facing issues raised by business conducted over the Internet. Failing to blanket current developments, old law leaves new problems exposed for litigation and requires attorneys and judges to explore uncharted seas of legal complexity.
Although the continued application of traditional laws that are unresponsive to changes in the underlying society may promote injustice, a judicial activism that randomly develops "new law" to remedy inadequacies is equally deficient. When confronted with modern problems left unaddressed by existing law, a "rapid solution" is to create novel law to fit the situation. The American legal system, however, relies upon precedent and a coherent, predictable body of authority. Rather than granting arbitrary discretion to create law as needed on a case-by-case basis, the American legal regime requires application of prior law by analogizing existing authority to the issues in question. This process leads to an adaptation of the law through stretched analogies that construct a bridge between prior authority and novel legal problems.
A theory of adaptation presumes that the existing legal framework can be structured to fit novel circumstances that arise. This presumption implicitly requires that new issues can be analogized to issues already addressed by the current law.(2) Further, adaptation recognizes that politics, culture, and technology are forces that shape the social environment and the law that governs it. If the political, cultural, and technological climate remains stable, the law adapts gradually over time as circumstances remain unchanged. Stability promotes only minor variations of existing legal issues that the law can address by analogy without warping the framework. If a force that shapes society and its law rapidly changes, however, new fundamental issues may arise that do not fit within the traditional legal framework that developed under much different circumstances. At this juncture, in recognition of altered circumstances, courts and legislatures must choose to apply existing law blindly, create new law, or adapt existing law by analogy.
The history of America alone contains numerous instances when rapid alterations in the social fabric forced adaptations of the law. Following the American Revolution, the democratic government developed a legal system to reflect the new political environment, but did so through adaptation of English law. During the nineteenth century, the Industrial Revolution introduced powerful technologies that rapidly precipitated economic and cultural changes.(3) Although this era witnessed several new legal theories, including the creation of corporations and the evolution of tort law, the changes arose through adaptation by analogizing existing law to new circumstances. The Great Depression of the 1930s led to expansion of the role of federal government. Cultural revolution during the 1960s emphasized racial and gender equality, promoting affirmative action programs, as well as recognition of environmental concerns.
The Information Age has introduced unprecedented technological development. Following the millennia of an agrarian-based society, the Industrial Age centralized communities and economies in local factories and cities that could support mass populations. During the first half of the twentieth century, technological innovation expanded distribution channels through the creation of transportation and communication improvements. All points of the nation became accessible directly through the use of telephones, automobiles, and airplanes, as well as indirectly through television and radio. …