This dissertation answers the three research questions in three parts, each part detailed in
a chapter that follows. Chapter 4 answers the first question by placing the discourse of each the Contract Perspective and the Theory Perspective in conversation with each other to test the adequacy of the current governance around SFCCs. This chapter also serves as a literature review for the project. Chapter 5 answers the second question by describing the issues with SFCCs in a revised fashion using the theories laid out in the Theory Perspective from the previous chapter. This chapter offers a new theoretical lens to describe and assess SFCCs (and possibly digital documents in general), called demateriality. The last chapter, Chapter 6, answers the third question by outlining an experiment brief that could be conducted, which would test the hypothesis that a document-engineered SFCC could solve some of the issues with this type of contract. This section will first detail the rationale for the project’s design, then it will
acknowledge both the validity and limitations of the project, before describing in more detail how each of the following three chapters (Chapter 4-6) answer the three aforementioned research questions.
2.1.1. Mixed Methods. This dissertation makes use of a mixed methods design. Mixed methods design, in addition to collecting both quantitative and qualitative types of data,
integrates these varied samples into its study, analysis, and results, and frames the research procedures within a framework of theory and philosophy (Creswell and Clark, 2017, p. 23).
Convergent mixed methods projects specifically analyze both types of data concurrently as they typically have equal importance to the focus of the research questions. Each type of data is analyzed according to common methods for that type of data, and then the results are merged into one comprehensive analysis. This is opposed to sequential (i.e., exploratory or explanatory)
mixed methods designs that analyze each data set separately or in tandem. For convergent analyses, the merging of analysis of both types of data concurrently commonly could include directly comparing similar results for each analysis or transforming the results so that they can be related in further, additional analysis. Convergent mixed methods approaches are particularly well suited for theoretical analysis as the theory “may operate [...] by providing an umbrella theoretical or conceptual model that informs both the quantitative and qualitative data collection and analysis as well as the researcher’s approach to integrating the two sets of results” (p. 56).
By framing the analysis explicitly with theories of documents, records, and contracts, this project provides a specific lens or model within which the data is studied.
The interdisciplinary project design chosen for this study seeks to combine the conceptual justifications from a few chosen fields in order to both highlight strengths and reveal differences among them and to assess what might be offered by this comparison for each perspective. Some of the advantages of interdisciplinary research that this project hopes to benefit from include some logistical advantages such as a wider audience and other, loftier goals such as possibly a more ‘normative’ conclusion (Glod, 2016). Towards the latter concern—producing more normative conclusions—it plays interestingly within the theoretical moves of jurisprudence that have struggled with the role of normative law (Eigen, 2014), as well as with the theoretical disciplines that reject normative descriptions of experience. Glod (2016) notes how
interdiciplinarity, by combining fields of thought, might produce more normative conclusions that he considers to be more well-rounded, humane; he describes conclusions that consider
“trade-offs” and “principles” including ethical concerns as well as the responses to the exigencies of the discipline, for instance. Thus, this interdisciplinary research design is also mixed methods in the sense that it proposes two solutions, one of which makes use of qualitative
methods to describe the phenomena under review (i.e., SFCCs) and the other that proposes a solution that makes use of quantitative and computational methods, including text analysis, topic modeling, and document-engineering.
2.1.2. Validity. Using a mixed methods design has many benefits for analyzing large and complex systems. According to Smith et. al (2016), “the benefits are derived from drawing on the strengths of qualitative methods to answer questions about how and why a phenomenon occurs and those of quantitative methods to examine how often a phenomenon occurs and establish generalizable, empirical associations between variables and outcomes.” In other words, this project gains validity from the close readings and deep critical analyses of SFCCs and their governance, which are then analyzed further by the quantification of some of the document components from actual examples. For this project specifically, my analysis of the excerpts from documents and interviews reveals certain ideals and values associated with digital SFCCs, while the measurements of the collected samples from actual digital contracts provides a dataset that allows for a bottom-up analysis of their components for a more complete analysis of the phenomena. The project will be successful not through depth or comprehension of each
discipline or perspective, but rather by demonstrating the usefulness of one body of work for the other, and through its ability to outline a feasible solution.
2.1.3. Limitations. There are a few limitations to this study. The first, most obvious limitation is that the design of this study is primarily theoretical and not experimental in nature, and thus I only hypothesize about possible solutions, not test them. More work on these solutions should be undertaken and tested in the future, and the descriptions in this project are only meant to provide some threads that may be looked into more deeply in further research. That being said, however, the experiment brief and conclusions may also be viewed as more complete than
simply a purely theoretical analysis or quantitative experiment—in its current form, the project offers both a theoretical lens for studying the SFCC document, which provides a revised way of assessing their presentation, as well as a proposed experiment that makes use of both
computational and quantitative methods. While not actually performed, this experiment is
complete in its proposal and informed with a wide range of foundational and critical literature, as well as a thorough workflow.
2.1.4. Chapter 4. This chapter, called “The Conversation” serves both as a literature review for the project and a way of highlighting the differences in discourse amongst the Contract Perspective and Theory Perspective. Most critically, by placing these two bodies of literature in conversation with each other, it allows for an assessment of the first research
question. As it seems the argument is being made by the legal community that a consensus exists on some of the issues with SFCCs, this conversation is important for revising that consensus to reveal how some of their issues might be revisited within the purview of different disciplinary contexts and standards of measurement. This allows for both a summation of each perspective and a conclusion that a comparative analysis is necessary. This chapter is described as a conversation, rather than a summary of literature, due to the fact that I am summarizing
discourse from a variety of disciplines and contexts, with at least two varying perspectives on the topic (i.e., from the legal world and from the theory world). I do not wish to flatten the
differences in these disciplines, but instead highlight them so as to note how varying contexts can read similar topics from distinct angles. From this conversation and summary of the ideas from the two perspectives, three shifts in concept are proposed as guiding principles for the discourse around SFCCs: standardization, not standard practice; documentation, not integration; and explanation, not notification.
2.1.5. Chapter 5. This chapter, called “The Demateriality of SFCCs,” answers the second research question by describing the phenomena of this type of contract and its current associated conventions through the lens of the Theory Perspective. This analysis revises the Contract Perspective by highlighting some of the justifications used in this discourse as ‘myths,’ thus bringing awareness to their implicit assumptions. It describes the use of three myths in the process: the Myth of Literacy, the Myth of Engagement, and the Myth of Equality. This analysis helps to strategize about new types of practices that could solve these issues from a revised perspective, namely how the issues of SFCCs might be framed as issues of document
performance. Further, it outlines a way of describing the document performance of a SFCC as a rhetorical move—called demateriality—that is often justified by the myths in SFCC discourse rather than described as an intentional choice. Calling it out as a rhetorical move demonstrates the usefulness of the Theory Perspective for the legal discourse around SFCCs and disrupts the notion that consensus on these issues has been achieved. This makes the case that document performance and associated documentation practices are a useful point of study for SFCCs.
Lastly, the analysis presented in this chapter and the study of demateriality is a useful apparatus offered for studying the rhetorical performance of a broad range of documents.
2.1.6. Chapter 6. The last chapter, called “Experiment Brief: A study of a document-engineered SFCC,” outlines an experiment for creating and assessing a document standard for digital SFCCs. While the study was not performed as part of this project, the detailed outline provides an informed example for a solution to the issues of SFCCs. This solution proposes a document-engineered SFCC that can then be processed and/or regulated in various ways over time. The most immediate benefit from this solution is a more meaningful interpretation from advocacy groups such as TOS;DR. At the very least, a document-engineered SFCC could
provide a voice for consumers and fulfill the potential of the informed minority hypothesis in the process. The proposed solution is not finite and exists on a spectrum of possible regulation, enforcement, and processing or documentation practices, and thus the range of its success might take time to emerge. This project is intended not to demonstrate this range, but rather that it might exist and is worth pursuing further. For instance, if the document standard is adopted, it might begin most minimally, and then expand to allow for regulation that affects the contract more granularly. Initially, it might allow for easier processing by activist groups, but over time, it might allow regulators to target egregious terms more appropriately, allow for the contract to be sustained as a reliable or authentic document for evidentiary purposes, and even allow for better explanation of its content for the average consumer.