Here, with Myriam Gilles of Cardozo, Prentiss Cox of Minnesota, and David Vladeck of Georgetown. Excerpt:
Perhaps the most consequential documents ever produced in this country are the Constitution and the Declaration of Independence. The Constitution identifies our most important rights, while the Declaration explains why the deprivation of those rights justified the fight for independence. So you might be surprised to learn that rights the founding generation fought for have been stripped away from tens of millions of Americans — almost certainly including you — by businesses we deal with every day. And, unlike the British, these businesses have done so in a way that almost no Americans can even recognize until it is too late.
Businesses have accomplished this by inserting incomprehensible terms in fine print contracts they know consumers do not read. The businesses argue that consumers are bound by these terms, which might as well be written in a foreign language they’re so incomprehensible. And our courts have largely allowed companies to get away with this — even though U.S. Supreme Court Chief Justice John Roberts himself acknowledges that he doesn’t always read terms and conditions before accepting them.
What rights are we talking about? Well, for starters, you lose the right to file your case in court, you lose the constitutional right to a jury trial, you lose the right to appeal wrong decisions.