Vol 7 No 1 - Roger Williams University School of Law

sign a hard copy contract containing what I consider to be thecomplete terms of the agreement, the legislature and the courtsmay still insert public interest principles, such as the notion ofunconscionability. Do we need legislation to ensure that thesenew code driven information contracts are informationallyconscionable? Will the current law suffice?Lessig explains much the same thing in the following way:The dissimilarity is this: with every enforced contract—with every agreement that subsequently calls upon anenforcer to carry out the terms of that agreement—thereis a judgment made by the enforcer about whether thisobligation should be enforced. In the main, thesejudgments are made by a court. And when a court makessuch judgments, the court considers not just the privateorderings constituted in the agreement before it, but alsoissues of public policy, which can, in some contexts,override these private orderings. When a court enforcesthe agreement, it decides how far the power of the courtcan be used to carry out the agreement. Sometimes theagreement will be carried out in full; but often, theagreements cannot be fully effected. Doctrines such asimpossibility or mistake will discharge certainobligations. Rules about remedy will limit the remediesthe parties can seek. Public policy exceptions willcondition the kinds of agreements that can be enforced.‘Contracts’ incorporate all these doctrines, and it is themix of this set of public values, and private obligations,that together produce what we call ‘a contract.’When the code enforces agreements, however, or whenthe code carries out a self-imposed constraint, thesepublic values do not necessarily enter into the mix.Consequences that a court might resist (forfeitures, forexample), the code can impose without hesitation. Thecode writer operates free of the implicit limitations ofcontract law. He or she can construct an alternativeregime for enforcing voluntary constraints. And nothingrequires or ensures that this alternative regime willcomport with the values of the background regime we call‘contract.’