The model of traditional contracts is that of two individuals negotiating terms that are to each party's advantage. This model persists even though it no longer reflects the reality of consumer contracts. This Article traces the evolution of modern day consumer contracts and explains how courts have accommodated business needs by distorting contract law. This Article argues that the doctrine of consideration should be reconceptualized in light of new technologies and changes in doctrinal application. It concludes that in order to restore contract law's legitimacy, courts must allocate the burdens of technological and doctrinal changes in a more evenhanded manner. One way to do this is to require that websites use their technical advantage to enable the consumer to indicate bargaining.
Nancy S. Kim, Contract’s Adaptation and the Online Bargain, 79 U. CIN. L. REV. 1327 (2011).