U.S. Internet Contracting and Jurisdiction

Abstract: The thesis examines jurisdiction in the United States in contractual relationships established over the Internet. The presentation is divided into six chapters and the first pair describes Internet contract types and the evolution of the jurisdictional doctrine. The second pair of chapters is a mix of descriptive and analytical content regarding case law and the debate in the legal community. The last pair of chapters is predominantly analytical and identifies some fundamental legal issues and the conclusions. The importance of UCC, as something like a national sales law, is covered in conjunction with the review of the relevant contract types. National and international e-commerce regulation is limited in scope but still important and commented. The precedence driven evolution of jurisdictional doctrine is covered with special consideration is afforded to aspects of particular relevancy to Internet contracting and jurisdiction. The constitutional requirements and the federal legal system of the United States creates an interesting dynamic to the benefit of the inquiry. The chapter on case law is primarily intended as descriptive in nature but the considerable uncertainty interpreting these opinions introduce an analytical element. The Zippo sliding scale test and subsequent development is described together with alternative approaches. The case law for shrinkwrap, browsewrap, and clickwrap contracts is scrutinized and the scope is not strictly limited to only jurisdictional aspects. The chapter describing the debate in the legal community is a hybrid with the most prevalent ideas and some bold and innovative approaches. Issues of fundamental legal importance are discussed in the fifth chapter, these are issues of grave concern and may have an impact on the long-term development including the integrity of legal instruments and use of technology in the legal process. A number of recommendations are issued including abandoning the Zippo sliding scales test in favor for a traditional jurisdictional inquiry with some adjustments such as introducing proximate cause, targeting considerations, and an effect test. It is also suggested to discontinue any use of the browsewrap contract.