Amicus Brief in Chilutti versus Uber (Supreme Court of Pennsylvania)

Abstract

This brief advances a simple argument. Consistent with common law principles, the Supreme Court of Pennsylvania should reform the Commonwealth’s law of contract formation to require demonstrably informed consent as the foundation of an enforceable digital contract. The Court should not endorse the notice and assent doctrine for digital contracts. The brief makes six main arguments:

1. Mutual agreement among parties is the fundamental basis for valid contracts. Without genuine agreement between parties, contracts become something else altogether–a state-sanctioned mechanism for private coercion.

2. Contract formation doctrine is instrumental to establishing that agreement exists and serves two instrumental purposes: First, generating reliable evidence of genuine agreement between parties (evidentiary function), and second, enabling parties to rely on formalities to standardize contracting practices (pragmatic function).

3. Notice and assent doctrine is not a reliable method for evaluating agreement in the digital context. Rather, notice and assent is a farce that supports pernicious legal fictions.

4. Ignorance at scale is engineered by the combination of law and technology. Widespread public ignorance of the deals struck in the digital world is engineered and not natural, inevitable, or a given to be taken for granted. It is contingent on contract law and technology. It is unfair, untrue, and unjustified to blame non-drafting parties for choosing ignorance (not to read) in the digital context. Their ignorance is not chosen; it is engineered.

5. A demonstrably informed consent standard would push companies to deploy better digital contracting systems. The Court should 1) recognize a presumption of consumer ignorance regarding terms of digital contracts

and 2) place the burden on the party drafting and designing the contracting mechanism to demonstrate informed consent. The burden would be met by generating reliable evidence that the non-drafting party actually understands the terms to which the person agrees. For substantively important terms, requiring actual comprehension, rather than notice and assent, is both feasible and desirable. The mechanisms for generating reliable evidence exist and are not cost prohibitive. The mechanisms involve friction-in-design where performing tasks, such as answering questions, generates the required evidence.

6. The PA Supreme Court has the power to reform state contract law and should not be dissuaded by the specter of the Federal Arbitration Act or US Supreme Court preemption. Relevant precedents emphasize concern with treating arbitration differently, selectively, uniquely, or in a biased manner. The Court should not treat arbitration agreements as special. There is plainly no good reason to limit the scope of the proposed reform to arbitration.

Keywords: contract, agreement, arbitration, FAA, digital contract, friction-in-design, friction, Uber, big tech, technology, contract formation, notice, assent, consent, informed consent, failure to read