ABSTRACT
Contract law has lost its way. Designed as a way to allow people to agree, it has over time become a means for large businesses to unilaterally impose terms and conditions on others. In large part that is a function of a fundamental change in how we contract. For most of history, for most deals, and even for most written contracts, the rules of the game were not set by the document itself but by the background customs and norms, the expectations of the parties, or the default rules of contract law.
Over time, and for a variety of reasons, contracts have become more fully specified in written documents. Those long, lawyerly documents are increasingly produced not by negotiation between lawyers, but in standard forms written by lawyers for one side that are not subject to change and must be agreed to on a take-it-or-leave-it basis. And even that ‘agreement’ is increasingly itself a fiction, manifested not by signing a piece of paper or even clicking a button but by taking ordinary acts like visiting a website or even continuing to use a product you bought years ago …
Lemley, Mark A, The Benefit of the Bargain (August 8, 2022). Stanford Law and Economics Olin Working Paper No 575.
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