Meme #1: Fictional Contractual Assent is Fine
The online contract formation process is in “crisis.” Courts, adhering to legal formalism, embrace a legal fiction that consumers have assented to online contract terms—even when no one really believes that consumers agreed with the terms. This essay examines this “crisis of online contracts” using ten Internet memes.1
Meme #2: Darth Vader’s Invisible Hand 
Contract assent plays a critical role in the marketplace’s operation.The “invisible hand” metaphorically describes how well-functioning marketplaces allocate goods and services to consumers who value them the most.2 Willing buyers and willing sellers voluntarily transact when trades are mutually beneficial (i.e., produces utility for each party). Each transaction comprising the invisible hand is a contract.
Contract law says assent occurs when a party objectively manifests an intent to be bound to a promise through overt acts or words. 3 This legal standard ensures that each party chose to transact knowing the applicable terms.
If the legal standards for assent are too lax, parties will be bound by contracts they didn’t intend. This distorts the invisible hand and the marketplace. Vendors can weaponize lax legal standards to pull consumers into unwanted contracts. This diverts wealth into the hands of undeserving vendors; and it encourages other vendors to replicate unscrupulous practices (creating a “market for lemons”). 4 This would reduce consumer confidence in contracts generally.
Meme #3 and #4: The Great Gatsby’s Toast to TOS Readers, and a Biblical View of Contract Formation 
Despite the essential gatekeeping function of contract assent, courts nevertheless routinely use legal fictions to establish consumer assent. There is substantial evidence that consumers routinely do not agree with the online terms that courts say they assented to.
First, few consumers actually read online contract terms.5 Online terms are too long; 6 most online terms seem irrelevant to consumers 7 (a problem often exacerbated by government-mandated disclosures);8and consumer decisions are driven principally by their “trust” in vendors, not boilerplate online terms. 9 Also, most vendors adopt equally consumer-disadvantageous terms, and consumers have little incentive to review the terms if better terms won’t be available elsewhere. 10
Second, consumers who read online terms usually won’t understand them. Most online terms are above consumers’ reading levels.
11Furthermore, drafters routinely obfuscate the details.Furthermore, drafters routinely obfuscate the details. 12 Third, when consumers eventually come to understand the online terms, they routinely regret their choices. 13 As one study found, “When users were informed of the actual contents of the EULAs to which they agreed, we found that users often regret their installation decisions.” 14
Meme #5: Buzz Lightyear Takes Us to an Infinite Number of Contracts and Beyond…
Putting the last three memes together, courts find contractual assent when consumers didn’t really assent; and this proliferation of contracts can jeopardize the marketplace by binding consumers to terms they don’t want or intend. This sounds like a problem, and the next four memes explore alternatives to address or eliminate this crisis of online contracts: noisier disclosures, certifications, digital agents, and government-set contract terms.
Meme #6: Your Cat, and Your TOS, Are Ready for Their Close-Ups
Option #1: Noisier Disclosures.
If consumers don’t understand online terms, one solution would be to educate them better. One such approach is to present terms in a more visible way so consumers can’t miss them, what I call “noisier disclosures.” Regulators have regularly embraced noisier disclosures. For example: (1) the EU “Cookie Directive” requires websites to disclose their cookie policy on the first screen consumers see and provide consumers with a way of managing that usage; 15 and (2) the California Consumer Privacy Act (CCPA) requires many commercial online services to conspicuously display, on every page of their websites,16 a way for consumers to opt-out of “sales” of their personal data. 17
Noisier disclosures might fix any problems with terms’ obscurity, but they don’t fix the crisis of online contracts. First, noisier disclosures do not necessarily improve comprehensibility to consumers. 18 (Various plain-English efforts have attempted to address that, with minimal or no success). Worse, layered notices—where key terms are highlighted and relegating details to boilerplate—can ultimately reduce overall consumer understanding. 19 Second, regulators don’t always know which terms should get noisier treatment (this applies to all layered notices).20 Instead, every regulator wants more noisy treatment of their concerns, which creates a congestion problem. If everything is noisy, nothing stands out to consumers. Plus, the noisy disclosures can make for a lousy consumer experience, as the disclosures impede consumers’ abilities to complete their goals. Third, just like consumers developed “banner blindness” to ignore banner advertisements,21 consumers develop “regulatory notice blindness” and learn how to ignore noisier disclosures. 22 This creates a potential arms race where regulators make their disclosures even noisier to overcome the acquired blindness, and consumers grow inured to those heightened efforts.
Meme #7: Oprah Gives Away Certifications
Option #2: Certifications.
Certifications are logos or symbols confirming that a vendor meets a third party’s minimum standards. 23 Certifications about vendors’ online terms could help consumers skip the difficult and time-consuming steps of independently reviewing the terms. For example, TrustArc (formerly TRUSTe) verifies a service’s compliance with certain privacy practices.24 Among other advantages, the certifying entity has more expertise reviewing vendor terms than consumers do; and the certifier can help discipline non-compliant vendors. Certifications solve some problems for consumers, but probably not enough. Certifiers have a tough time convincing consumers of the certification’s value and making sure consumers understand exactly what the certification signals. Furthermore, certifications struggle to balance accuracy and simplicity. Certifications either can be easy for consumers to understand, or they can be detailed enough to cover everything consumers could possibly care about; there is rarely a comfortable middle ground. Finally, certification bodies routinely develop conflicts-of-interest because they are reluctant to criticize or cut off paying customers. 25
Meme #8: Captain Picard Makes Automated Assent So
Option #3: Digital Agents Rather than reading online terms themselves, consumers could delegate the work of reviewing online terms to digital agents, 26 such as a consumer’s browser software that blocks access to vendors whose terms do not meet the consumer’s requirements. For example, in the 1990s, the “P3P” standard allowed websites to codify their privacy practices in machine-readable form. 27 Consumers could configure their browser settings to reflect their privacy preferences. If a website’s P3P policy indicated the website had subpar practices, the browser software would stop the consumer from accessing the site. Another example, the “do- not-track” (DNT) standard, allowed websites to signal if they tracked consumer behavior. 28 Consumers could configure their browser software to block access to any websites that tracked them. 29 More recently, California requires businesses to honor browser-based opt-outs of data sales called “global privacy controls.” 30 Digital agents can help consumers navigate complex online terms, but they create their own challenges. 31 Consumers routinely struggle to set their settings; they don’t understand the options and don’t want to spend their time doing the customizations. Websites also struggle to reduce complex and diverse business practices into standardized machine-readable options. Finally, like certification bodies, the digital agent often has its own conflicts-of-interest. For example, Google has the most popular browser software and operates many most popular websites, so it has some incentive to self-preference its services in its browser software.
Meme #9: Yoda Says That Government Should Set Mandatory Terms
Option #4: Restrict Freedom to Contract. If consumers didn’t really assent to contract terms, they shouldn’t be bound by those terms. Instead, the contract terms could be gap-filled by legislation or common law. 32 This is the basic principle of the UCC Article 2, which extensively relies on gap-filler terms. Or, if there wasn’t a meeting of the minds, the contract will fail entirely. However, legislatures cannot adequately gap-fill contract terms across every business sector,33 especially segments involving rapidly evolving technologies or business practices. That leaves many “edge” cases where there are no clear gap-filling terms. That puts courts in the awkward position of either making up the parties’ contract terms or striking down contracts. This helps explain why courts have so readily embraced the legal fictions underlying the crisis of online contracts. Those terms, even without consumer consent, are more tailored to the subject transaction than generic or non-existent legislative gap-filler terms.
Meme #10: Futurama Fry’s Best/Worst Dilemma
Obviously, the options discussed in the prior four memes aren’t the only possible solutions to the fiction of contract assent; and options could be complementary, not substitutive. Still, the limitations of those options help explain why the crisis of online contracts persists. Plus, the marketplace will partially discipline vendors so long as (1) watchdogs can identify and amplify deviant terms or customer service, and (2) some consumers are willing to switch based on online terms, putting that business in play. 34 This raises the possibility that the fiction of contract assent, as counterintuitive as it seems, may be the least-worst of the available options.