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Professor Frischmann will workshop a draft paper, Engineering Humans with Contracts, which will be part of his forthcoming book, Being Human in the 21st Century: How Social and Technological Tools are Reshaping Humanity (Cambridge 2017). The paper is available online here.
Contract law shapes the transactional environments where people formulate legally binding commitments and relationships. In general, contract law is understood to be a form of liberating infrastructure that greatly enhances individual and group autonomy and sociality. Yet conventional understanding may have it backwards. Contracting practices have changed dramatically over the past half-century to accommodate changes in economic, social, and technological systems, and may be more liberating for some (e.g., firms) than others (e.g., consumers). As implemented in electronic architecture, at least, contracts may be quite oppressive.
This paper shows how the current legal and technical architecture of electronic contracting nudges human beings to behave like simple stimulus-response machines and conditions us to become increasingly predictable and programmable. It develops a series of hypotheses to be tested, articulates a new Taylorist theory to explain the design of human-computer interfaces used to form electronic contracts, and defends a series of reform proposals.
Brett Frischmann is CITP’s Microsoft Visiting Professor of Information Technology Policy for the 2016-2017 academic year. He is a professor at Cardozo Law School in New York City, an affiliated scholar of the Center for Internet and Society at Stanford Law School, and a trustee for the Nexa Center for Internet & Society, Politecnico di Torino. He teaches courses in intellectual property, Internet law, and technology policy. Frischmann is a prolific author, whose articles have appeared in numerous leading academic journals. He also has published important books on the relationships between infrastructural resources, governance, commons, and spillovers, including ‘Infrastructure: The Social Value of Shared Resources’ (Oxford University Press, 2012), ‘Governing Knowledge Commons’ (Oxford University Press, 2014, with Michael Madison and Katherine Strandburg), and ‘Governing Medical Research Commons’ (Cambridge University Press, Winter 2016, with Michael Madison and Katherine Strandburg). Frischmann received his B.A. in Astrophysics from Columbia University, an M.S. in Earth Resources Engineering from Columbia University, and a J.D. from the Georgetown University Law Center.