Tuesday, May 24, 2022
From time to time, JOTWELL provides reviews by contracts profs on recent contracts law scholarship. A recent example is an essay by Hila Keren (left), Vast Scale Undue Influence, reviewing Jamie Luguri & Lior Strahilevitz, Shining a Light on Dark Patterns, 13 J. Legal Analysis 43 (2021).
As Professor Keren presents the article, Luguri (below, right) and Strahilevitz (below left; together, "the Authors") show the following: you do not want cookies, and yet web sites are designed ("dark patterns") to manipulate you into accepting intrusions on your privacy that you would not agree to but for the manipulation. The Authors show that dark pattern manipulations are most likely to be effective when they are subtle and that better-educated consumers more successfully resist the dark patterns' siren song. This is not particularly surprising, but the authors' proposed solution is very surprising.
The Authors suggests that undue influence might be the best legal tool for rendering unenforceable the promises extracted through the manipulative techniques that authors see embodied in the dark patterns. The Authors duly acknowledge that the doctrine, traditionally conceived, is quite narrow, and some of the usual components of undue influence seem to be lacking. Most obviously, undue influence usually involves special relationships between or among the parties, and here we are dealing with an individual's encounter with a website. The nefarious designer of that website is a stranger to the consumer. Nonetheless, the doctrine's basic purpose is to defeat contracts formed where a combination of one party's dominance and the other party's vulnerability leads to a contract whose terms effect harms to the vulnerable party. So conceived, the doctrine serves nicely to tame the effects of dark patterns.
Professor Keren helpfully supplements the Authors' perspective with a dose of Martha Fineman's vulnerability theory. Undue influence doctrine is narrow precisely because courts require an extreme level of vulnerability. Vulnerability theory helps us to understand that all of us are on a path toward vulnerability, if we have not already arrived there. Fineman's broad view of human vulnerability informs her understanding of the role of the state in safeguarding its vulnerable citizens. In this instance, Professor Keren uses Fineman to support the Authors' narrower claim that courts are justified in intervening to protect the typical, vulnerable consumers without having to demonstrate a pathology.