The potential of digital solutions and legal tech (LT) for increasing access to justice is real. Although many LT developments focus on innovation of law practices, in several countries we see LT as champion of access to justice. These typically are new types of players in the market that provide legal services directly to the public. Even though practice-based evidence shows their positive impact, legal services regulations struggle to catch up and facilitate these developments. They, as a matter of fact, may actually hamper access to justice improvements. In that respect, it is illustrative that private investors acknowledge the potential of LT, but only dared to invest 2.8 per cent of their $1 billion total investments in 2018 in customer-facing services.1

Legal tech (LT) companies operating in litigation predominantly address B2C relationships, which is odd against the overall LT backdrop where B2B solutions prevail.1 A ‘no win no fee’ policy, whereby consumers are only charged for success, is popular among LT companies that manage claims.2 Even though their contingency fees tend to be significant,3 they attract consumers who would otherwise have abandoned a claim as a result of rational apathy due to its small value. The automated management of claims has impacted consumer access to justice as the activity of LT companies has led to an increase in redress for small value claims.4

Unlike privacy law discourse, which has primarily explored questions related to others’ knowledge, access, and use of information about us, commercial law’s central focus has been on issues related to trade involving persons, merchants, and entities. In the commercial law context, questions about knowledge and information are primarily connected to the exchange and disclosure of information needed to facilitate transactions between parties.1 This distinct historical focus has likely contributed to commercial law’s failure to adequately account for and address privacy, security, and digital domination harms. In some cases, commercial law also defers to corporate commercial practices as well.

Consumer contracts separate the core terms of the exchange and the terms suggested by the seller, forcing sellers to be other-regarding and to avoid terms that are unfair or one-sided.

This chapter deals with the topic of the sale of goods. There are Sale of Goods Acts in each state and territory in Australia. All of these Acts are broadly the same in their terms and structure. They are all based on the UK Sale of Goods Act 1893. As such, UK court decisions are very relevant to the interpretation of Australian legislation. The sale of goods is regulated in Victoria by the Goods Act 1958 (Vic) (‘Goods Act’), and the chapter uses this Act as a model with which to explore the various issues pertaining to the sale of goods.

The advent of the Australian Consumer Law (ACL) as a law having uniform application throughout Australia will have a significant impact upon some areas of contract law. Most notably, the ACL will impact upon statutory unconscionability, implied terms in the form of consumer guarantees, misleading or deceptive conduct (the statutory corollary to the common law doctrine of misrepresentation) and unfair contract terms. The last topic is the focus of this chapter: the unfair contract terms regime of the ACL, as provided for in ss 23–28, sets up a mechanism for determining whether terms in standard form consumer or small business contracts are unfair.

This chapter explores the evolution of judicial influence using a hand-collected data set of all cases until 2016 that address the enforceability of clickwrap, shrinkwrap, and browsewrap contracts as well as their out-of-state influence over time. A foundational theory conceptualizes precedent as an investment that yields valuable information to subsequent courts that depreciates over time, as new circumstances and innovations make such precedent less helpful for later courts. Empirical research on judicial citations has found a “superstar” or “tournament winner” effect, whereby a handful of cases garner almost all citations for a given question. How do tournament winners fare over time? I find that the citation universe is indeed dominated by “tournament winners.” These cases, which tend to be decided by circuit court judges, influence other courts from the date they are decided. Instead of experiencing depreciation, however, I find that their influence continues to grow, even over cases that are hierarchically more important. In addition, cases tend to converge towards a particular rule or standard over time. The results enrich our understanding of the evolution of judicial influence and help inform theories of the evolution of precedent and the common law.

Chapter 14 defines the term algorithmic contract, distinguishing it from the term smart contract, and justifying the need for the term. Then, it argues that business-to-consumer algorithmic contracts present distinct issues from business-to-business algorithmic contracts. In particular, Chapter 14 argues that privacy is the canary in the coalmine with respect to the potential threat to civil liberties presented by personalized law by way of pseudo-contract regime. Without any deliberate choice on the part of consumers or change in attitudes, contracts and practices have severely eroded consumer privacy over the past two decades. Thus, privacy terms provide an ideal case study to examine what limits on the ability of consumers to contract with businesses using algorithms to determine customized terms might look like. Personalized law, in the absence of proper fiduciary incentives or default rules, could be a major threat to the civil liberties necessary for a liberal society.