Unwrapping Shrinkwraps, Clickwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse

Abstract

This Article starts with the famous “horse trades” (typically between A and B and for 10£) from early discussions of contract law, and proceeds through Judge Burrough’s enduring “unruly horse” and Karl Llewellyn’s Across Sales on Horseback and The First Struggle to Unhorse Wares, to provide background for a critique of the recent judicial liberality in enforcing online contracts. We then focus on role of Judge Frank Easterbrook, who has personally insulted the place of the horse in law, and his infamous opinion in ProCD v. Zeidenberg. This case fueled the enforcement of clickwrap and browsewrap contracts by decaying assent and notice requirements that once anticipated a more cognizant approach to contracting. Further, it has engendered applications expanded far beyond what was required by the facts.

We next examine the contract formation process of eight significant online service providers, illustrating the range of opacity in the act of contracting and the notice given for online terms. We ground these illustrations by including a sampling of some of their more onerous provisions. Finally, we survey courts’ handling of clickwrap and browsewrap agreements in the last several years. We conclude generally that, as the years pass, the particulars of judicial analysis and case precedent get muddled and the nuances lost, and later courts sometimes pick up a partial idea or rule and forget its context, justifications, and penumbra. One might say they adopt half a horse, and we argue that the half of contract law modern courts have adopted is not the front half.

Keywords: contract, adhesion, adhesive, form contracts, Internet, online, terms of service, end user agreements, legal history, common law, Lord Mansfield, Judge Frank Easterbrook, ProCD