16 Pages Posted: 4 Nov 2009
Date Written: November 3, 2009
Judge Frank Easterbrook’s opinion in ProCD v. Zeidenberg has been heavily criticized for ignoring the law and making unrealistic assumptions about the ability of consumers to read and understand contract terms. This contribution to a symposium on Judge Easterbrook’s judicial output argues that the opinion is a classic example of the manipulation of legal doctrine to advance a policy goal - here, enabling sellers to communicate contract terms when buyers’ time and attention are limited. Contrary to the conventional wisdom, Judge Easterbrook implicitly assumes that buyers are fallible, not hyperrational; his doctrinal solution persuasively addresses the problem of cognitive overload while endorsing a valuable business tool - the “terms later” or “rolling” contract - that reduces the cost of transacting.
Keywords: Frank Easterbrook
Suggested Citation: Suggested Citation
Posner, Eric A., ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining (November 3, 2009). University of Chicago Law Review, Vol. 77, No. 4, 2010; U of Chicago Law & Economics, Olin Working Paper No. 492. Available at SSRN: https://ssrn.com/abstract=1499414 or http://dx.doi.org/10.2139/ssrn.1499414