Just one click: The reality of internet retail contracting

Columbia Law Review

Volumn 108, Issue 4, 2008, Pages 984-1012

  Mann, Ronald J ^a   Siebeneicher, Travis ^b  

^a Columbia Law School ^*

^b Fulbright and Jaworski LLP ^*

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EID: 45949086377     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (102)

1. E.g., Friedrich Kessler, Contracts of Adhesion - Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, 632 (1943) (arguing that standardized contracts allow manufacturers to dictate contractual terms to consumers);
2. Arthur Allen Leff, Contract as Thing, 19 Am. U. L. Rev. 131, 140-41 (1970) (claiming that process of contract negotiation "tended to lessen the possibility of monolithic one-sidedness");
3. Arthur Alan Leff, Unconscionability and the Crowd - Consumers and the Common Law Tradition, 31 U. Pitt. L. Rev. 349, 350-51 (1970) (arguing that market does not adequately protect consumer from standardized contracts due to monopolies, information asymmetry, and consumer apathy);
4. Stewart Macaulay, Private Legislation and the Duty to Read - Business Run by IBM Machine, the Law of Contracts and Credit Cards, 19 Vand. L. Rev. 1051, 1059-60 (1966) (noting that standardized contracts allow firms to avoid liability for representations from their sales agents, even in situations where consumer believes agent's representations to be binding);
5. Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173, 1225-29 (1983) (stating that standardized contracts shift risks to consumers).
6. E.g., Jeffrey Davis, Revamping Consumer-Credit Contract Law, 68 Va. L. Rev. 1333, 1333 (1982) (claiming that form contracts usually allocate most risks and burdens to consumer); Rakoff, supra note 1, at 1234 (arguing that form contracts impose risks and responsibilities on consumers that might outweigh benefits of lower prices).
7. E.g., Lucian A. Bebchuk & Richard A. Posner, One-Sided Contracts in Competitive Consumer Markets, 104 Mich. L. Rev. 827, 833-34 (2006) (arguing that firms will "dependably treat consumers much better than their contracts require them to do");
8. Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contract Terms: The Examples of Warranties and Security Interests, 69 Va. L. Rev. 1387, 1414-15 (1983) (asserting that firms will generally supply level of warranty that consumers desire).
9. See Stefano DellaVigna & Ulrike Malmendier, Contract Design and Self-Control: Theory and Evidence, 119 Q.J. Econ. 353, 393-94 (2004) (predicting that firms exploit consumer naiveté regarding contract renewal);
10. Xavier Gabaix & David Laibson, Shrouded Attributes, Consumer Myopia, and Information Suppression in Competitive Markets, 121 Q.J. Econ. 505, 505-08 (2006) (predicting that firms will rationally hide information from consumers).
11. See Michelle E. Boardman, Contra Proferentem: The Allure of Ambiguous Boilerplate, 104 Mich. L. Rev. 1105, 1114-15 (2006) (arguing that firms will retain ambiguous language so long as they can predict how courts will interpret it);
12. Clayton P. Gillette, Pre-Approved Contracts for Internet Commerce, 42 Hous. L. Rev. 975, 980-82 (2005) (arguing that "market correctives are insufficient to constrain sellers' tendencies to exploit buyers" through contracts of adhesion);
13. Clayton P. Gillette, Rolling Contracts as an Agency Problem, 2004 Wis. L. Rev. 679, 687-89 [hereinafter Gillette, Rolling Contracts] (arguing that it is unlikely that internet consumers will read electronic contracts more closely than traditional consumers read written contracts).
14. E.g., Douglas G. Baird, Boilerplate and Market Power: The Boilerplate Puzzle, 104 Mich. L. Rev. 933, 935-36 (2006) (discussing problems with relying on assumption of arms-length negotiation); Gillette, Rolling Contracts, supra note 5, at 687-89 (arguing that "sellers systematically take advantage of their position to draft terms to which informed buyers would object");
15. Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429, 478-86 (2002) (discussing rational, social, and cognitive factors that place consumers at risk from standardized internet contracts);
16. Ronald J. Mann, "Contracting" for Credit, 104 Mich. L. Rev. 899, 901-05 (2006) (describing problems with assent, readability, fragmentation, and range of choice in standardized contracts).
17. See Stephen E. Friedman, Text and Circumstance: Warranty Disclaimers in a World of Rolling Contracts, 46 Ariz. L. Rev. 677, 712-14 (2004) (arguing that consumers should be protected from hidden disclaimers by allowing enforcement "unless the circumstances indicate otherwise," with circumstances to "include anything . . . that puts the buyer off guard");
18. see also Sharon K. Sandeen, The Sense and Nonsense of Web Site Terms of Use Agreements, 26 Hamline L. Rev. 499, 547-52 (2003) (questioning use of terms of use, introduced as part of e-commerce industry).
19. See David Gilo & Ariel Porat, The Hidden Roles of Boilerplate and Standard-Form Contracts: Strategic Imposition of Transaction Costs, Segmentation of Consumers, and Anticompetitive Effects, 104 Mich. L. Rev. 983, 1005-08 (2006) (discussing how complex boilerplate may be used strategically for industry collusion, higher consumer prices, increased barriers to entry, and consumer segmentation); Hillman & Rachlinski, supra note 6, at 433-34 (addressing arguments made by lawmakers and academics about adopting new set of rules to deal with electronic contracts);
20. Robert L. Oakley, Fairness in Electronic Contracting: Minimum Standards for Non-Negotiated Contracts, 42 Hous. L. Rev. 1041, 1071-73 (2005) (outlining set of mandatory rules that would ensure fairness in electronic contracts).
21. See, e.g., Gillette, Rolling Contracts, supra note 5, at 712-22 (suggesting judicial or regulatory intervention to internalize buyers' interests); Robert A. Hillman, Online Boilerplate: Would Mandatory Website Disclosure of E-Standard Terms Backfire?, 104 Mich. L. Rev. 837, 855-56 (2006) (finding that mandatory website disclosure of terms may be best strategy); Oakley, supra note 8, at 1100-01 (discussing favorably efforts to require minimum standards for electronic contracts);
22. Margaret Jane Radin, Humans, Computers, and Binding Commitment, 75 Ind. L.J. 1125, 1125-27 (2000) (discussing problems with viewing online contracts through "traditional picture of how binding commitment is arrived at").
23. Principles of the Law of Software Contracts § 2, at 121 (Discussion Draft 2007) [hereinafter ALI Principles] (introducing still incomplete section on standard form agreements).
24. The corollary is that merchants that fail to design contracts that exploit consumer frailties will be unable to compete with those that do, and thus will be driven from the market. Cf. Oren Bar-Gill, Seduction by Plastic, 98 Nw. U. L. Rev. 1373, 1376, 1434 (2004) ("[I]ssuers have to exploit consumers' imperfect rationality in order to survive in [the credit card] market.").
25. There is an extensive academic literature, relying heavily on "clickstream data," analyzing the strategies for designing website interfaces so as to maximize positive consumer response. See, e.g., Steven Bellman et al., Designing Marketplaces of the Artificial with Consumers in Mind: Four Approaches to Understanding Consumer Behavior in Electronic Environments, J. Interactive Marketing, Winter 2006, at 21, 29 (noting effect of sorting on price sensitivity);
26. Randolph E. Bucklin et al., Choice and the Internet: From Clickstream to Research Stream, 13 Marketing Letters 245, 252 (2002) (comparing internet choice as captured by clickstream data to supermarket choice as captured by UPC scanner data);
27. Alan L. Montgomery et al., Modeling Online Browsing and Path Analysis Using Clickstream Data, 23 Marketing Sci. 579, 590-93 (2004) (using clickstream data to analyze paths through websites that are more and less likely to result in purchases);
28. Lan Xia & D. Suharshan, Effects of Interruptions on Consumer Online Decision Processes, 12 J. Consumer Psych. 265, 278-79 (2002) (providing guidance on limited negative impact of "interruptions" in online purchasing process).
29. Florencia Marotta-Wurgler's papers have analyzed whether the timing of terms disclosure or market conditions affect the one-sidedness of electronic contracts. See Florencia Marotta-Wurgler, Are "Pay Now, Terms Later" Contracts Worse for Buyers? Evidence from Software License Agreements 24-25 (N.Y. Univ. Sch. Law, Law & Econ. Research Series, Working Paper No. 05-10, 2005), available at http://ssrn.com/abstract=799282 (on file with the Columbia Law Review) (finding that terms disclosed before sale are usually more pro-seller than terms disclosed only after sale);
30. Florencia Marotta-Wurgler, Competition and the Quality of Standard Form Contracts: An Empirical Analysis of Software License Agreements 33-34 (N.Y. Univ. Sch. Law, Law & Econ. Research Series, Working Paper No. 05-11, 2005), available at http://ssrn.com/abstract=799274 (on file with the Columbia Law Review) (analyzing competitive forces in shaping standard terms). Besides looking at a broader set of internet merchants, our project has a different purpose. Rather than trying to assess whether pro-seller terms are associated with delayed presentation or competitive conditions, we try to explain why firms seek to obtain consent to their contracts.
31. The suggestion that the terms are "relatively" benign implies a baseline about the normal level of adverse terms in consumer contracts. We suggest that the terms are relatively benign primarily because our baseline expectation was that almost all of the contracts would include a large number of adverse terms. Whatever the reasons for the pattern here, it may not be unusual. Ted Eisenberg and Geoffrey Miller find a similar pattern in the terms of arbitration clauses in agreements among large publicly-traded companies. See Theodore Eisenberg & Geoffrey P. Miller, The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly-Held Companies' Contracts 51-52 (Cornell Law Sch. Legal Studies Research Paper No. 06-023, 2006), available at http://ssrn.com/abstract=927423 (on file with the Columbia Law Review) ("[L]arge corporate actors do not systematically embrace arbitration [despite reputed advantages].").
32. U.C.C. § 2-204, § 2-204 cmt. 3 (2000).
33. E.g., U.C.C. § 2-316 (describing how modifications to implied warranties of merchantability for consumers "must be in a record, be conspicuous, and state 'The seller undertakes no responsibility for the quality of the goods except as otherwise provided in this contract'"). The validation of warranties in the UCC is subject to the provisions of the Magnuson-Moss Warranty Act of 1975, 15 U.S.C. §§ 2301-2312 (2000), which, generally speaking, invalidate implied warranties in cases in which merchants provide express warranties. For a detailed discussion, see Daniel L. Keating, Sales: A Systems Approach 166-80 (2d ed. 2003).
34. For an in-depth discussion of contracts with delayed presentation of terms, see generally Robert A. Hillman, Rolling Contracts, 71 Fordham L. Rev. 743 (2002).
35. See id. at 752-56 (discussing different approaches that courts have taken in dealing with delayed presentation of terms); see also Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1150 (7th Cir. 1997) (holding that arbitration provision shipped with computer was binding on buyer); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449, 1452-53 (7th Cir. 1996) (holding shrinkwrap license binding on buyer). But see Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332, 1341-42 (D. Kan. 2000) (denying application of arbitration clause contained in form with standard terms packaged inside computer box); U.S. Surgical Corp. v. Orris, Inc., 5 F. Supp. 2d 1201, 1205-07 (D. Kan. 1998) (holding that single use restriction on product package was not binding on buyer); Ariz. Retail Sys., Inc. v. Software Link, Inc., 831 F. Supp. 759, 765 (D. Ariz. 1993) (declaring license agreement shipped with computer software was not binding on buyer).
36. For a forceful criticism of that analysis, see generally James J. White, Contracting Under Amended 2-207, 2004 Wis. L. Rev. 723, 750-51.
37. See U.C.C. § 2-201.
38. Electronic Signatures in Global and National Commerce Act § 101, 15 U.S.C. § 7001; Unif. Elec. Transactions Act § 7, 7(A) U.L.A. 252 (2002).
39. Unif. Elec. Transactions Act § 9(b).
40. See ALI Principles, supra note 10, § 2.01 & illus. 4 (codifying rule); Juliet M. Moringiello & William L. Reynolds, Survey of the Law of Cyberspace: Electronic Contracting Cases 2005-2006, 62 Bus. Law. 195, 201-03 (2006) (describing legal distinction between clickwrap and browsewrap). Although discussing shrinkwrapped terms, the same analysis of ProCD has been applied to clickwrap agreements online.
41. DeJohn v. The .TV Corp. Int'l, 245 F. Supp. 2d 913, 919 (CD. Ill. 2003); see also Treiber & Staub, Inc. v. United Parcel Serv., Inc., 474 F.3d 379, 385 (7th Cir. 2007) (holding that UPS pages provided adequate notice and enforcing its clickwrap contract).
42. 306 F.3d 17, 20 (2d Cir. 2002) (determining whether plaintiffs "agreed to be bound by the software's license terms . . . even though plaintiffs could not have learned of the existence of those terms unless . . . they had scrolled down the webpage to a screen located below").
43. Id. at 29-30.
44. Id. at 20-21 (discussing facts of case - users downloading software provided online).
45. See, e.g., Defontes v. Dell Computers Corp., No. PC 03-2636, 2004 R.I. Super. LEXIS 32, at *17 (R.I. Super. Ct. Jan. 29, 2004) (applying Specht rule to sale of computers over internet).
46. Specht, 306 F.3d at 31 ("We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms.").
47. Id. at 32 (holding that "a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms").
48. See ALI Principles, supra note 10, § 2.01 cmt. b (discussing Ticketmaster Corp. v. Tickets.com, Inc., No. CV99-7654-HLH(VBKx), 2003 U.S. Dist. LEXIS 6483, at *5-*10 (C.D. Cal. Mar. 7, 2003); Mark A. Lemley, Terms of Use, 91 Minn. L. Rev. 459, 472-75 (2006) (comparing browsewrap enforcement in business versus consumer transactions); Moringiello & Reynolds, supra note 22, at 201-03.
49. 356 F.3d 393, 401-02 (2d. Cir. 2004) ("Verio contends that in no instance did it receive legally enforceable notice of the conditions Register intended to impose . . . . [But,] Verio admits it knew perfecdy well what terms Register demanded.").
50. Id. at 401.
51. Id. at 401-03.
52. Id. at 403 (emphasis added).
53. The ALI Principles state: "[B]rowsewrap may be acceptable, according to some courts, when the transferee should have knowledge of the standard form from previous visits to a site or based on reasonable notice." ALI Principles, supra note 10, § 2.01 cmt. b. The idea that the "knowability" of terms might be adequate to make them enforceable is particularly important in the realm of open source licenses, where the knowability of the terms of a license like the General Public License often will be the principal basis for treating it as a binding contract.
54. See Ticketmaster Corp. v. Tickets.com, Inc., No. CV99-7654-HLH (VBKx), 2003 U.S. Dist. LEXIS 6483, at *5-*10 (C.D. Cal. Mar. 7, 2003) (denying defendant's motion for summary judgment because there was sufficient evidence that defendant knew that its use of automated agent violated plaintiff's terms of use); Lemley, supra note 30, at 472-74 (describing Ticketmaster and other cases where courts upheld browsewrap terms against defendant competitors who used automated agents).
55. See Lemley, supra note 30, at 476-77 ("One plausible reading of the cases is that courts in browsewrap cases show greater solicitude to consumers than to businesses, and will enforce browsewraps primarily in business-to-business (b2b) rather than business-to-consumer (b2c) transactions, and perhaps only in repeat transactions.").
56. See ALI Principles, supra note 10, § 2.01 cmt. c.
57. Internet Retailer, Top 500 Guide: Profiles and Statistics of America's 500 Largest Retail Web Sites Ranked by Annual Sales (2006) [hereinafter I500].
58. Id. at 6-18.
59. The terms of each retailer's contracts and its website interface were collected and coded by the authors.
60. CR4 is a measure of industry concentration. We calculated CR4 as the percentage share that the top four firms in each market held of the total sales of all firms in each market. HHI is a measure of the size of firms in relationship to their industry. We calculated the HHI as the sum of the squares of the percentage shares of all firms in each market.
61. SKU stands for "stockkeeping unit," which is a measure of how many distinct items of merchandise a retailer sells.
62. If the home page was a page directing the user to multiple companies - a parent company directing the user to its subsidiaries - one subsidiary was selected and we determined both the terms and the type of assent from that one site. See, e.g., I500, supra note 39 (describing Federated Department Stores).
63. If the sites required registration, we collected screen shots of the registration process and all terms and conditions and statements of consent.
64. We did not collect screen shots of the product itself or of the product in a virtual cart if these screens included neither terms nor consent interfaces.
65. See supra Part II.
66. When a site had more than one document requiring consent, we assigned a consent level based solely on the document with the most enforceable consent.
67. The IQR is the interquartile ratio, the share of the firms between the 25th and 75th percentile.
68. If it seems odd that Table 2 reports Amazon.com as the largest merchant with more than $8 billion in sales and Table 3 reports total sales for the book/CD/DVD sector of only $2 billion, this is because Internet Retailer codes Amazon.com as a mass merchant/department store. See infra note 61 (discussing categories of sales by Amazon.com).
69. Although we have not comprehensively examined the interfaces of non-U.S. retailers, it is interesting that major sites like Amazon.com and Dell.com have substantially different terms of use at their non-U.S. websites, but quite similar interfaces.
70. For a description of each of these forms of assent, see supra Part III.A.2.
71. This is particularly surprising given the likelihood that arbitration will be the only cost-effective method of resolving small-dollar disputes between internet merchants and their customers. See, e.g., Sayeedi v. Walser, 835 N.Y.S.2d 840, 848 (Civ. Ct. 2007) (dismissing action by disgruntled eBay purchaser for want of personal jurisdiction over eBay merchant),
72. discussed in Mark Fass, Contact Held Insufficient to Sue Seller, N.Y.L.J., Mar. 6, 2007, at 1. It also warrants comparison to the credit card context, where arbitration agreements are standard for disputes that are much larger in size, and apparendy often have the effect of insulating the card issuer from judicial review of its actions. See generally Mann, supra note 6, at 915-32 (discussing various approaches to resolve credit card related disputes).
73. With respect to implied warranties, one possible explanation is that many of the sites provide express warranties, and thus any disclaimer would violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2308(a) (2000).
74. For comparative purposes, we note that such clauses are ubiquitous in contracts with credit card issuers, where the issuers' need for such clauses is considerably less clear.
75. See supra notes 7-9.
76. Retailers without click-through interfaces still might assume that their terms will be enforceable. As discussed above, supra Part II.B.2, they might be relying on recent cases suggesting that they would have at least a chance of enforcing browsewrap terms against their customers. Our point, however, is that the transactional lawyer designing the website would use a click-through interface to ensure enforceability if the value of enforceability was substantial in relation to the cost of the additional click.
77. See Oliver Hart & John Moore, Contracts as Reference Points 39 (Nov. 14, 2006) (unpublished manuscript, on file with the Columbia Law Review), available at http://ssrn.com/abstract=944784 (suggesting that contracts "can continue to govern the parties' feelings of entitlement").
78. See, e.g., In re Jetblue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299, 326-27 (E.D.N.Y. 2005) (finding no claim for breach of privacy policy absent showing of economic loss, but leaving open possibility of consumer protection claims in most contexts); In re Nw. Airlines Privacy Litig., No. 04-CV-126, 2004 WL 1278459, at *6 (D. Minn. June 6, 2004) (rejecting claim for breach of privacy policy because of failure to show sufficient detail to make it a contract, reliance on it, or damages from its breach).
79. See Federal Trade Commission, Enforcing Privacy Promises: Section 5 of the FTC Act, at http://www.ftc.gov/privacy/privacyinitiatives/promises.html (last visited Mar. 12, 2008) (on file with the Columbia Law Review).
80. In 2005, about two-thirds of Amazon's revenues ($5.9 billion out of $8.5 billion) came from the sales of "media" products, as opposed to "electronics and other general merchandise." 2005 Amazon.com Annual Report 36, available at http://library.corporate-ir.net/ library/97/976/97664/items/193688/AMZN2005AnnualReport.pdf (on file with the Columbia Law Review).
81. The dominance of credit cards for internet payments makes it difficult to have an onerous returns policy, given the ease with which customers can disavow claims through the credit card system. In recent years, however, some merchants have begun to scrutinize those claims more aggressively, motivated by the perception of consumer abuse. See Michael Rubinkam, Online Sellers Getting Tough: More Merchants Challenge Fraud and Charge-Backs, Houston Chron., Apr. 17, 2006, at 4 (discussing returns policy of Ice.com, 1500 Retailer # 193).
82. See Martin Campbell-Kelly & Patrick Valduriez, A Technical Critique of Fifty Software Patents 2, 7 (Jan. 2005) (unpublished manuscript, on file with the Columbia Law Review), available at http://ssrn.com/abstract=650921) (discussing and rejecting criticisms of one-click patent).
83. See, e.g., Lou Hirsh & Jennifer LeClaire, Kings of Repeat E-Business, E-Commerce Times, Aug. 26, 2002, at http://www.ecommercetimes.com/story/19137. html (on file with the Columbia Law Review) (discussing Amazon's early and effective use of personalization technology at its site); Keith Regan, Amazon Dips Toe into Online Grocery Business, E-Commerce Times, June 15, 2006, at http://www.ecommercetimes.com/story/51136.html (on file with the Columbia Law Review) (discussing importance of "ultra-convenient [shopping] experience" to Amazon's effort to enter online grocery business). For academic discussion of the importance of short purchase paths at websites, see Montgomery et al., supra note 12.
84. Provencher v. Dell, Inc., 409 F. Supp. 2d 1196, 1199 (C.D. Cal. 2006); Hubbert v. Dell Corp., 835 N.E.2d 113, 118 (Ill. App. Ct 2005); Rogers v. Dell Computer Corp., 127 P.3d 560, 563 (Okla. 2005); Defontes v. Dell Computers Corp., No. PC 03-2636, 2004 R.I. Super. LEXIS 32, at *4 (Jan. 29, 2004). There is a fifth case that deals with customer's assent, but the court only discusses the shrinkwrapped contract in reasoning that the consumer had assented to the arbitration provision. Stenzel v. Dell, Inc., 870 A.2d 133, 139-40 (Me. 2005).
85. Defontes, 2004 R.I. Super. LEXIS 32, at *4 (describing Dell's websites as allowing users to view terms of use "as a hyperlink on the bottom of Dell's website").
86. Hubbert, 835 N.E.2d at 118 (stating that following statement was present on three of Dell's order pages: "'All sales are subject to Dell's Term[s] and Conditions of Sale'"). It is hard to determine exactly what website interface confronted the plaintiff in Provencher, as the court simply stated: "The Agreement was available for Mr. Provencher's review on Dell's website before, while, and after he ordered the computer . . . ." 409 F. Supp. 2d at 1199. This is even more difficult in Rogers where the court professed itself unable to determine "whether the plaintiffs were required to consent to the 'Terms and Conditions of Sale.'" 127 P.3d at 563.
87. 1500, supra note 39 (profiling Dell).
88. Defontes discusses Dell's site as a browsewrap agreement and uses a reasonable notice standard. 2004 R.I. Super. LEXIS 32, at *17. Both Rogers and Hubbert seem to view Dell's site as browsewrap with a statement referring to the Terms and Conditions; however, each case uses different reasoning. Hubbert, 835 N.E.2d at 121-22 (reasoning based on notice); Rogers, 127 P.3d at 566-68 (reasoning based on time of formation). Provencher gives little indication of the status of Dell's website and assumes the validity of the online contract. See 409 F. Supp. 2d at 1199.
89. 2004 R.I. Super. LEXIS 32, at *17.
90. 835 N.E.2d at 121-22.
91. Id. The ambiguity of the term "browsewrap" is evident from the discussion in the ALI Principles, which regards situations like that found in Hubbert to be examples of browsewrap despite the relatively plain notice and accessibility of the terms on the order pages. See ALI Principles, supra note 10, § 2.01 cmt. b. In any event, for purposes of the coding in our dataset this would not have been treated as pure browsewrap. Moreover, as we discuss in the text, Dell's subsequent experience in litigation apparently has convinced the company that the decision in Hubbert is not sufficiently reliable to justify retaining the interface at issue in that case.
92. 127 P.3d 560.
93. Id. at 568 ("Section 2-207 and other provisions of the U.C.C. apply to the contracts here.").
94. Id.
95. Although we are skeptical about the value to be gained by simply counting onerous clauses, we did analyze the relation between the number of onerous clauses in a firm's contract and the level of assent. There is a correlation coefficient of about 13%, significant at the 1% level. Given the discussion in Part II of reasons why a firm might include those clauses and yet not obtain assent to its terms, it is not surprising that the correlation is so low. We also investigated the possibility that a single "super" clause was important, estimating models that used each of the clauses as a separate independent variable. The results of that analysis were inconsistent, suggesting that some clauses might have a positive relationship to assent and others a negative relationship. Because the coefficients on the clauses in those models were unstable with the addition of additional control variables we do not report those results here.
96. Although we do not report them here, we also estimated a parallel set of models using logistic regressions with a binary dependent variable cutting the dataset after the first four categories of assent, at the point (a pre-checked radio button) that approximates the boundary of legal enforceability. The results indicated a similar pattern of relationships, although the levels of statistical significance were often lower. We do not report those models here because of our view that the line between enforceable and unenforceable is not clear in practice. Thus, we believe the model more accurately reflects the motivations of online businesses when it treats each step as reflecting both a marginal increase in the likelihood of enforceability and a marginal increase in the transaction costs of contracting at the site.
97. The science (or art, depending on your perspective) of designing retailer website interfaces is a rapidly developing one. To get a sense for the issues designers face, see, e.g., Rachelle Crum, ATG's Cliff Conneighton: E-Tailers "Can't Wing It Anymore", E-Commerce Times, Feb. 21, 2007, at http://ecommercetimes.com/story/55847.html (on file with the Columbia Law Review) (interview with interface-design consultant who advises retailers such as Best Buy, Target, Nike, Neiman Marcus, and OfficeMax).
98. Using a two-sample test of proportion, the difference is significant at the 1% level.
99. We tested the variations using a two-sample test of proportion and determined significance based on the z statistic from that test.
100. We estimated a parallel set of models using CR4 without substantially different results with respect to our principal hypotheses.
101. The 25th percentile firm has a conversion rate of 1.8% and the 75th percentile firm has a conversion rate of 3.85%. (3.85 - 1.8) (.046) = .0943.
102. Those coefficients show the number of standard deviations of change in the dependent variable associated with a one standard deviation shift of the explanatory variable.