Caleb N. Griffin of Arkansas has written Contracting as a Class, 48 BYU Law Review (2023). Here’s the abstract:
Contract law is stuck in a loop of path dependency and stale precedent. Its metaphors, like “the meeting of the minds,” are today laughably implausible. Its values, like “consent,” have been stripped of any real meaning. No one reads or understands the overwhelming majority of contracts to which they agree. And no one should. Reading them is meaningless, because it simply does not matter what they say. Individuals must agree to them—indeed, are effectively forced to agree to them—if they wish to participate in the modern world.
Modern digital contracting is not a collaborative process. Today, most “contracting” involves merely browsing a website or clicking “yes” to agree to endless streams of unread boilerplate. Contracting now largely consists of a party in a superior bargaining position dictating terms to a weaker party.
To the extent the law has evolved to deal with the scale and complexity of the digital era, its focus has been on putting parties on notice of contract terms. However, we already know, at least in a vague sense, the terms of our “bargain.” The real issue is power—we knowingly accept onerous terms because we lack the power to do anything else.
This Article seeks to revitalize the digital contracting process. It outlines the infrastructure necessary to facilitate class contracting between corporate entities, particularly Big Tech companies, and their users. Granting individuals the ability to engage in class contracting will improve the wellbeing of billions of individuals. It will facilitate meaningful communication, enable the collaborative development of shared priorities, and restore a vital balance to the modern contracting process.