Lochner v New York turned ‘freedom of contract’ from the gift of the king requiring lords to allow serfs to decide the terms of their own service back to freedom of the powerful to impose terms on the weak without any governmental oversight. Despite the vilification of Lochner for over a century, courts are returning to Lochnerian philosophy as a revival of ‘classicism’ or ‘formalism’. Notwithstanding the decades of anti-Lochner rhetoric, courts are again enforcing overreaching contracts in the name of freedom of contract, Smithian-market myths, and the efficiency of the powerful. Rather than face hard issues about market power and the meaning of the rights waived, courts take the easy route of blaming the victims for assenting – or rather, not for assenting, but for failing to search for a link to legal terms, take a half hour to read them, seek legal counsel to interpret them, and shop for another online service or goods provider with less onerous terms, even though one is unlikely to be found. At least the bakers in Lochner signed a written document. But even that form of assent is no longer required.
Preston, Cheryl B, How Did We End Up in a World Where Browsewraps are Enforced Even When They Waive All Consumer Rights? (August 29, 2018). Florida State University Law Review, forthcoming 2018.