Humans, Computers, and Binding Commitment

Indiana Law Journal

Volumn 75, Issue 4, 2000, Pages

  Radin, Margaret Jane ^a  

^a NONE

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EID: 0346444521     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (112)

1. See, e.g., Arthur Allen Leff, Contract as Thing, 19 AM. U. L. REV. 131 (1970).
2. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 115 (G.E.M. Anscombe trans., 1953).
3. See, e.g., infra Part IV (discussing the Uniform Electronic Transactions Act ("UETA")).
4. The history of the liberal concept of consent, with its varying interpretations and manifestations, is laid out in fascinating detail in DON HERZOG, HAPPY SLAVES (1989).
5. The property-rule vs. liability-rule terminology comes from Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). It is handy terminology in a setting where economic exchange is the issue, though it has its drawbacks otherwise. See, e.g., MARGARET JANE RADIN, CONTESTED COMMODITIES ch. 2 (1996); infra Part VI.
6. The property-rule vs. liability-rule terminology comes from Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). It is handy terminology in a setting where economic exchange is the issue, though it has its drawbacks otherwise. See, e.g., MARGARET JANE RADIN, CONTESTED COMMODITIES ch. 2 (1996); infra Part VI.
7. Disney Homepage (visited Feb. 12, 2000) 〈http://www.disney.go.com〉.
8. Id.
9. Disney Legal Conditions (visited Feb. 12, 2000) 〈http://disney.go.com/legal/conditions_of_use.html?clk=8884〉.
10. Id.
11. See Beyond.com Terms of Use (visited Feb. 12, 2000) 〈http://www.beyond.com /termsofuse.htm〉.
12. Id.
13. Id.
14. See eBay.com (visited Jan. 20, 2000) 〈http://www.ebay.com〉.
15. See John P. Fischer, Note, Computers as Agents: A Proposed Approach to Revised U.C.C. Article 2, 72 IND. L.J. 545 (1997).
16. See, e.g., Mark Stefik, Letting Loose the Light: Igniting Commerce in Electronic Publication, in INTERNET DREAMS 219, 226-28 (Mark Stefik ed., 1996); see also Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management", 97 MICH. L. REV. 462, 471 (1998).
17. See, e.g., Mark Stefik, Letting Loose the Light: Igniting Commerce in Electronic Publication, in INTERNET DREAMS 219, 226-28 (Mark Stefik ed., 1996); see also Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management", 97 MICH. L. REV. 462, 471 (1998).
18. Of the many who believe that technology, not law, will structure cyberspace, some think that technological self-enforcement will succeed in locking up property rights even more securely than fences in real space (a result that some deplore and some applaud); and some think that hackers will always stay one step ahead of technological locks, undermining property rights in information (a result that some deplore and some applaud). A particular configuration of contradictory beliefs is held by those I call "anarcho-cyberlibertarians," who are committed to anarchic nonlegal self-organization and at the same time to strong property rights, which must stem from a legal regime. See Margaret Jane Radin & R. Polk Wagner, The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace, 73 CHI.-KENT L. REV. 1295, 1297 (1998).
19. Note www.mobshop.com, whose business model involves viral marketing. The site offers an item for sale whose price goes down as you get more people to buy it (and they in turn get more people to buy it) within a set time frame.
20. See, e.g., Associate Web (visited June 8, 2000) 〈www.associateweb.com〉.
21. See The Open Source Page (visited Feb. 12, 2000) 〈http://www.opensource.org〉; see also OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION (Chris Dibona et al. eds., 1999); ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY (1999); Eben Moglen, Anarchism Triumphant (last modified Dec. 2, 1999) 〈http://emoglen.law.columbia.edu/my_pubs/anarchism.html〉.
22. See The Open Source Page (visited Feb. 12, 2000) 〈http://www.opensource.org〉; see also OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION (Chris Dibona et al. eds., 1999); ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY (1999); Eben Moglen, Anarchism Triumphant (last modified Dec. 2, 1999) 〈http://emoglen.law.columbia.edu/my_pubs/anarchism.html〉.
23. See The Open Source Page (visited Feb. 12, 2000) 〈http://www.opensource.org〉; see also OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION (Chris Dibona et al. eds., 1999); ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY (1999); Eben Moglen, Anarchism Triumphant (last modified Dec. 2, 1999) 〈http://emoglen.law.columbia.edu/my_pubs/anarchism.html〉.
24. See The Open Source Page (visited Feb. 12, 2000) 〈http://www.opensource.org〉; see also OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION (Chris Dibona et al. eds., 1999); ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY (1999); Eben Moglen, Anarchism Triumphant (last modified Dec. 2, 1999) 〈http://emoglen.law.columbia.edu/my_pubs/anarchism.html〉.
25. See, e.g., Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1996).
26. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
27. See Feist Publications, Inc. v. Rural Tel. Serv., 499 U.S. 340 (1991).
28. See ProCD, 86 F.3d at 1450.
29. See, e.g., Step-Saver Data Sys., Inc. v. Wyse Technology, 939 F.2d 91 (3d Cir. 1991).
30. See, e.g., Stanford Home Page (visited Feb. 2, 2000) 〈http://www.stanford.edu〉.
31. See ProCD, 86 F.3d at 1456.
32. The Windows license told users that if they did not like the terms when they saw them, they should return the software for a refund. A group of Linux users divested their computers of Windows and attempted to obtain a refund. Neither the store that sold them the software nor Microsoft thought it was the appropriate party to fulfill the terms. Finally, the Linux users had a demonstration outside Microsoft's office in the Bay Area. Reports said it was a civilized demonstration in which Microsoft employees came out and served them coffee and doughnuts. See, e.g., Wired News, Linux Users Shut Their Windows (visited Feb. 9, 2000) 〈http: //www.wired.com/news/technology/0,1282,17926.00.html〉.
33. The legislation attempting to deal with this situation, U.C.C. § 2-207 (1992), has been roundly criticized. It is said to be too complex, ambiguous, and readily misunderstood; it does not deal adequately with all the types of cases that arise, and in some scenarios irrationally gives one party all of the terms in its form depending on the order in which the forms were sent. See, e.g., JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE § 1-3 (4th ed. 1995) (devoting over 19 pages in hornbook analyzing problems with section 2-207, in which authors disagree with each other, but conclude they "see no way to apply 2-207 that does not sometimes give an unearned and unfair advantage to the person who happens to send the first, or in some cases the second, document").
34. See, e.g., Gary L. Monserud, The Privileges of Suretyship for Delegating Parties Under UCC Section 2-210 in Light of the New Restatement of Suretyship, 37 WM. & MARY L. REV. 1307, 1393 (1996) ("In consumer purchases, making a sale subject to a buyer's assumption of a seller's outstanding liabilities to an upstream seller is virtually unheard of.").
35. Warranties are an exception. They usually not only inure to the benefit of holders remote in the distribution chain, but also impose the duty to perform under the warranty on successors of the original distributor. There was debate about imposing liability without contractual privity about the same time there was debate about imposition of tort liability without privity, and both privity requirements fell at the same time. Running obligations, with a notice requirement, are seen in the creation of security interests under Article 9 of the UCC. There the rights of secured creditors that run with the collateral are a very limited set of rights defined by a statutory scheme, not rights that can be created just by a private contract between the creditor and the original debtor. (I owe this example to Dick Craswell.)
36. Uriel Reichman, Residential Private Governments: An Introductory Survey, 43 U. CHI. L. REV. 253 (1976).
37. See Uniform Electronic Transactions Act (visited June 9, 2000) 〈http://www. law.upenn.edu/bll/ulc/uecicta/etal299.htm〉 [hereinafter UETA Draft]; Uniform Computer Information Transactions Act (visited June 9, 2000) 〈;http://www.law.upenn.edu/bll/ulc/ ucita/ucita200.htm〉 [hereinafter UCITA Draft]. As this Article goes to press, the UETA has been enacted by California and Pennsylvania. The UCITA has been enacted in Virginia and is pending in Hawaii, Illinois, Maryland, Nebraska, Ohio, Oklahoma, and Utah. The Virginia enactment, which does not go into effect until July 1, 2001, establishes a special advisory group to evaluate impacts and possibly propose amendments. See Act of Mar. 14, 2000, ch. 101, 2000 Va. Laws 157.
38. See Symposium, Intellectual Property and Contract Law in the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Transactions in Information and Electronic Commerce, 13 BERKELEY TECH. L.J. 809 (1998). For an overview, see Pamela Samuelson, Foreword, 13 BERKELEY TECH. L.J. 809 (1998). For specific criticisms aimed primarily at UCITA's preemption of state consumer protection regimes, see Letter from 22 State Attorneys General to National Conference of Commissioners of Uniform State Laws (July 23, 1999), available in 〈http://www.arl.org/info/frn/copy/agoppltr.html〉 (opposing UCITA).
39. See Symposium, Intellectual Property and Contract Law in the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Transactions in Information and Electronic Commerce, 13 BERKELEY TECH. L.J. 809 (1998). For an overview, see Pamela Samuelson, Foreword, 13 BERKELEY TECH. L.J. 809 (1998). For specific criticisms aimed primarily at UCITA's preemption of state consumer protection regimes, see Letter from 22 State Attorneys General to National Conference of Commissioners of Uniform State Laws (July 23, 1999), available in 〈http://www.arl.org/info/frn/copy/agoppltr.html〉 (opposing UCITA).
40. UCITA Draft, supra note 32, § 103(a).
41. Id. § 102(a)(10).
42. Id. § 102(a)(11).
43. Id. § 102(a)(38).
44. Id. § 112.
45. See id. § 112(a)(2), (d) & cmts.
46. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 131 (Merriam-Webster 1993).
47. See UCITA Draft, supra note 32, § 112 cmt. 4 ("The described product defines the bargain."). Assent occurs if "objective indicia" allow the inference that a party had reason to know that his act or failure to act "will be viewed by the other party as indicating assent." UCITA Draft Official Comments § 112 cmt. 3(b) (visited June 9, 2000) available in «http:// www.law.upenn.edu/bll/ulc/ucita/ucitacom300.htm〉 [hereinafter UCITA Draft Official Comments]. (This puts the burden on the recipient to figure out the other party's propensity to infer things.) Factors showing that "a person has 'reason to know' that the conduct will lead the other party to believe that there was assent" include: "language on a display, package, or that is otherwise made available to the party." Id. This seems to say that putting on my site something like "continuing to use this site means that you've agreed to my terms" might work as "manifesting assent" to my terms, especially since another factor in the list is "the fact that the party can decline and return the information, but decides to use it." Id. So, it looks like whenever I have access to a site and look at it, I've manifested assent to its terms.
48. See UETA Draft, supra note 32, § 5(b). The drafters carefully state that UETA "does not make specific reference to usage of trade and other party conduct," and the Act "is not intended to affect the construction of the parties' agreement under the substantive law applicable to a particular transaction. Where that law takes account of usage and conduct in informing the terms of the parties' agreement, the usage or conduct would be relevant as 'other circumstances' included in the definition under this Act." Id. § 2 cmt. 1. See generally Amelia H. Boss, Searching for Security in the Law of Electronic Commerce, 23 NOVA L. REV. 585 (1999) (comparing the approaches of UCITA and UETA).
49. UETA Draft, supra note 32, § 5(b).
50. Thus, UETA's core provision is the following: "A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation." Id. § 7(b).
51. Id. § 2 cmt. 5. That comment states: While this Act proceeds on the paradigm that an electronic agent is capable of performing only within the technical strictures of its preset programming, it is conceivable that, within the useful life of this Act, electronic agents may be created with the ability to act autonomously, and not just automatically. That is, through developments in artificial intelligence, a computer may be able to "learn through experience, modify the instructions in their own programs, and even devise new instructions." Id. (quoting Tom Allen & Robin Widdison, Can Computers Make Contracts?, 9 HARV. J.L. & TECH 25 (1996)). If such developments occur, courts may construe the definition of electronic agent accordingly, in order to recognize such new capabilities.
52. Id. § 5(b).
53. "A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement." Id. § 5(c).
54. Id. § 5 cmt. 2.
55. Id. § 5 cmt. 3.
56. Id.
57. Id. § 5 cmt. 4.
58. UCITA Draft, supra note 32, § 107(d).
59. Id. § 112(b).
60. Id. § 112(d).
61. Id. § 112(a) (emphasis added).
62. "Intentionally" with respect to what? "Intending" that the key go down? "Intending" that the key have some effect on the operations of my computer? "Intending" that they key check a box that appears on my screen?
63. UCITA Draft Official Comments, supra note 41, § 206 cmt. 2.
64. 17 U.S.C.A. § 1201 (West Supp. 1999).
65. See id.
66. See, e.g., Cohen, supra note 15, at 473; Pamela Samuelson, Intellectual Property and Contract Law for the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Information and Commerce, 87 CAL. L. REV. 1, 4 (1999).
67. UCITA Draft, supra note 32, § 605(b).
68. Id.
69. Id. § 605(d).
70. The interaction between this subsection and section 816, entitled "Limitations on Electronic Self-Help," is unclear. Perhaps they are intended as alternatives, although that is not said. Section 816 seems to be a complex elaboration of procedures to follow in the event that licensor wants to turn off the system after declaring a breach. It requires separate manifestation of assent to a term authorizing electronic self-help, and sets out a complex notice procedure to be followed before using self-help. See id. § 816.
71. See id. § 605(c).
72. Id. § 503.
73. Id. § 504.
74. See, e.g., Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173 (1983).
75. See, e.g., Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982).
76. See, e.g., Lewis A. Kornhauser, Unconscionability in Standard Forms, 64 CAL. L. REV. 1151 (1976).
77. George A. Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q.J. ECON. 488, 490-91 (1970); see also Michael Spence, Consumer Misperceptions, Product Failure, and Producer Liability, 44 REV. ECON. STUD. 561 (1977).
78. George A. Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q.J. ECON. 488, 490-91 (1970); see also Michael Spence, Consumer Misperceptions, Product Failure, and Producer Liability, 44 REV. ECON. STUD. 561 (1977).
79. In the face of this difficulty, it often seems that for any given analyst the real criterion for whether something is rent-seeking is whether the analyst finds it ideologically distasteful.
80. See, e.g., John Rothchild, Protecting the Digital Consumer: The Limits of Cyberspace Utopianism, 74 IND. L.J. 893 (1999).
81. See, e.g., Sharon Nash, How Big a B2B Boom, PC MAGAZINE, Feb. 1, 2000, available in 〈http://www.zdnet.com/pcmag/stories/trends/0,7607,2431179,00.htm〉.
82. Various cost savings estimated, but widely thought to be significant. See, e.g., Kenneth Berryman et al., Current Research: Electronic Commerce: Three Emerging Strategies, 1998 THE MCKINSEY Q. 152 (between 10 and 20%)
83. Cf. Marcel Kahan & Michael Klausner, Path Dependence in Corporate Contracting: Increasing Returns, Herd Behavior and Cognitive Biases, 74 WASH. U. L.Q. 347, 350 (1996). The attractiveness of a standard contract term arises at least in part from the fact that it can offer increasing returns to users as more firms adopt it. These increasing returns can be divided into two related, but conceptually distinct, types of benefits: (i) 'learning benefits,' which arise because a firm adopts a contract term that has been commonly used in the past; and (ii) 'network benefits,' which arise because a firm adopts a term that will be commonly used in the future. Id.
84. For example, with regard to the onerous cross-collateral clause in Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), or the implied warranty of habitability in residential tenancies, or housing codes, or rent control. See, e.g., Arthur Allen Leff, Unconscionability and the Code - The Emperor's New Clause, 115 U. PENN. L. REV. 485 (1967); Bruce Ackerman, Regulating Slum Housing Markets On Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971); Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUB. AFF. 350 (1986).
85. For example, with regard to the onerous cross-collateral clause in Williams v. Walker- Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), or the implied warranty of habitability in residential tenancies, or housing codes, or rent control. See, e.g., Arthur Allen Leff, Unconscionability and the Code - The Emperor's New Clause, 115 U. PENN. L. REV. 485 (1967); Bruce Ackerman, Regulating Slum Housing Markets On Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971); Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUB. AFF. 350 (1986).
86. For example, with regard to the onerous cross-collateral clause in Williams v. Walker- Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), or the implied warranty of habitability in residential tenancies, or housing codes, or rent control. See, e.g., Arthur Allen Leff, Unconscionability and the Code - The Emperor's New Clause, 115 U. PENN. L. REV. 485 (1967); Bruce Ackerman, Regulating Slum Housing Markets On Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971); Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUB. AFF. 350 (1986).
87. In spite of incentives to standardize, of course, other incentives are still at work that have kept terms nonstandard in the past and might still keep them nonstandard. Some firms are better at giving extensive warranties and other firms are better at selling at low prices. If transaction costs caused by differing terms had been the strongest incentive operating in the offline world in most cases where firm A had one set of terms and firm B had another, firms would have had a strong incentive to arrive at standard sets of terms, and battles of the forms might have ceased without legislative intervention. I am conjecturing that the incentives may have altered in the networked digital environment, such that the balance may shift in favor of firms' being willing to seek standardization aggressively.
88. See supra text accompanying notes 8-9; cf. UCITA Draft, supra note 32, §§ 109-110. UCITA recognizes the reasonableness of choice-of-forum selection clauses in electronic commerce: "[It would] be entirely unreasonable to assume that a cruise passenger would or could negotiate the terms of a forum clause in a routine commercial cruise ticket form. Nevertheless, including a reasonable forum clause in such a form well may be permissible for several reasons. Because it is not unlikely that a mishap in a cruise could subject a cruise line to litigation in several different fora, the line has a special interest in limiting such fora. Moreover, a clause establishing [the forum] has the salutary effect of dispelling confusion as to where suits may be brought . . . . Furthermore, it is likely that passengers purchasing tickets containing a forum clause . . . benefit in the form of reduced fares reflecting the savings that the cruise line enjoys . . . ." UCITA Draft Official Comments, supra note 41, § 110 cmt. 3 (alteration and omissions added) (quoting Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 585-86 (1991)).
89. Even though UCITA is voluminous, it is minimal on the topic of impermissible terms; it just includes a version of the UCC provision on unconscionability. See UCITA Draft, supra note 32, § 111. A global standard will probably have to be more worked out on this issue.
90. See, e.g., J.H. Reichman & Jonathan A. Franklin, Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information, 147 U. PA. L. REV. 875 (1999); Pamela Samuelson & Kurt Opsahl, How Tensions Between Intellectual Property Policy and UCITA Are Likely To Be Resolved, in ECOMMERCE: STRATEGIES FOR SUCCESS IN THE DIGITAL ECONOMY 741, 753-54 (Practicing Law Inst. 1999).
91. See, e.g., J.H. Reichman & Jonathan A. Franklin, Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information, 147 U. PA. L. REV. 875 (1999); Pamela Samuelson & Kurt Opsahl, How Tensions Between Intellectual Property Policy and UCITA Are Likely To Be Resolved, in ECOMMERCE: STRATEGIES FOR SUCCESS IN THE DIGITAL ECONOMY 741, 753-54 (Practicing Law Inst. 1999).
92. In a Coasean interpretation of what happens next, this means that the trespasser must buy the portion of the neighboring land that is encroached upon; and economic theory says that plaintiffs price can come close to what defendant would otherwise lose if it had to tear down the building. Students (and some courts) tend to feel that this is extortionate. On the other hand, if defendant need only pay a "reasonable" price to keep the land, defendants like this one will not be deterred from making mistakes of this kind, since at worst they will have to pay only a "reasonable" price, which is what they would have to pay anyway if they were to negotiate ex ante.
93. See Calabresi & Melamed, supra note 5, at 1106-10. In this view, property rules are better prima facie, because liability rules cause "unascertainable resentment costs" due to coercion (lack of consent), but where there is market failure property rules can cause such resentment costs too and presumably outweigh those coercion costs. Id. at 1107-08 n.36.
94. They also mentioned that the costs of establishing a market might in some circumstances outweigh the costs of using liability rules instead of property rules. See id. 85. See id. at 1115-24.
95. See id. at 1121-24.
96. Id. at 1124-26.
97. See, e.g., BARBARA H. FRIED, ROBERT HALE AND PROGRESSIVE LAW AND ECONOMICS (1997).
98. See U.C.C. § 2-302 (1998); UCITA Draft Official Comments, supra note 41, § 111 cmt. 4.
99. See Richard Craswell, Property Rules and Liability Rules in Unconscionability and Related Doctrine, 60 U. CHI. L. REV. 1 (1993) [hereinafter Craswell, Property Rules]; Richard Craswell, Remedies When Contracts Lack Consent: Autonomy and Institutional Competence, 33 OSGOODE HALL L.J. 209 (1996) [hereinafter Craswell, Remedies].
100. See Richard Craswell, Property Rules and Liability Rules in Unconscionability and Related Doctrine, 60 U. CHI. L. REV. 1 (1993) [hereinafter Craswell, Property Rules]; Richard Craswell, Remedies When Contracts Lack Consent: Autonomy and Institutional Competence, 33 OSGOODE HALL L.J. 209 (1996) [hereinafter Craswell, Remedies].
101. "[I]f the coercion cannot practicably be corrected by the seller, a remedy which denied enforcement to all unconsented obligations would effectively make transacting impossible, thus advancing no one's autonomy." Craswell, Remedies, supra note 90, at 233.
102. See id. at 16-17.
103. See id. at 16. This case is analogous to the builder who trespasses on neighboring land. See supra note 82.
104. See Craswell, Remedies, supra note 90, at 221-29.
105. See Margaret Jane Radin, Risk-of-Error Rules and Non-Ideal Justification, in JUSTIFICATION 33, 34 (J. Roland Pennock & John W. Chapman eds., 1986) (Nomos XXVIII).
106. In his conclusion, Craswell seems to postpone this question: "[A]ny analysis of the proper remedy in cases where consent is lacking must pay some attention to questions of institutional competence. In particular, if courts are to strike down contracts whose terms are substantively unreasonable, while allowing enforcement of reasonable obligations, their ability to distinguish reasonable from unreasonable obligations must be considered." Craswell, Remedies, supra note 90, at 235. Considered by whom?
107. See Margaret Jane Radin, Presumptive Positivism in Trivial Cases, 14 HARV. J.L. & PUB. POL'Y 823 (1991).
108. See Leff, supra note 1, at 155-57; Alan Schwartz, A Reexamination of Nonsubstantive Unconscionability, 63 VA. L. REV. 1053, 1071-73 (1977).
109. See Craswell, Remedies, supra note 90, at 232.
110. See Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967).
111. See id. at 1229-34.
112. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 417 (1922) (Brandeis, J., dissenting).