Somewhere in the last thirty days you clicked a box, tapped a button, or scrolled past a banner, and in doing so you executed a legally binding contract. Probably several. There was no ceremony, no pen, no witness — just a moment of mild impatience between you and the thing you actually wanted, which was to log in, check out, or make the pop-up go away. Your grandparents signed a handful of contracts in their entire lives: a mortgage, maybe a car loan, an employment agreement or two. You have out-signed them before breakfast.
The standard complaint about this state of affairs is that the documents are too long. This is true and also beside the point. Length is a symptom. The more interesting fact is that nobody involved in the system — not the companies that draft the terms, not the users who accept them, and crucially not the courts that enforce them — actually expects reading to happen. The document's job is not to be read. Its job is to exist, so that your click can be retroactively described as informed consent. Unreadability isn't a bug in the arrangement. It's the load-bearing wall.
The duty to read the unreadable
In 2019, two law professors, Uri Benoliel and Shmuel Becher, did something faintly heroic: they ran the sign-in agreements of the 500 most popular US websites — the Facebooks, Amazons, Ubers and Airbnbs of the world — through established linguistic readability tests. The average agreement, they found, reads at the level of an academic journal article. These are texts addressed to everyone, written for practically no one. Their paper's title captures the absurdity in six words: “The Duty to Read the Unreadable.”
That duty is real, and it's ancient. American contract law has long held that you're bound by what you sign whether or not you read it — a rule that made a certain rough sense when contracts were negotiated between merchants who could plausibly push back. What Benoliel and Becher point out is how lopsided the rule has become. Consumers carry a duty to read. Companies carry no corresponding duty to be readable. One side must perform comprehension; the other need only perform disclosure. It's consent as theater, and everyone in the audience has been handed a program that says they understood the play.
What the courts actually look at
You might expect judges to be troubled by this. Mostly, they aren't — but the way they've made peace with it is revealing. Courts no longer ask whether you understood the terms, or even whether you saw them. They ask whether the screen was designed well enough that a hypothetical “reasonably prudent user” could have seen them. Contract law, in other words, has quietly become a branch of interface criticism.
Consider Nicosia v. Amazon. Dean Nicosia bought weight-loss pills on Amazon that turned out to contain dangerous chemicals, and sued. Amazon pointed to its Conditions of Use, which required arbitration. The federal appeals court examined Amazon's checkout page and had doubts — the link to the terms wasn't next to the “Place your order” button, and the page was cluttered. Not doubts about whether Nicosia had read anything; doubts about layout. When the case went back down, Judge I. Leo Glasser in Brooklyn opened his July 2019 opinion with a confession unusual for a federal judge: “Any internet user knows, website terms and conditions are burdensomely long. One rarely reads the fine print.” He then held Nicosia bound anyway — partly because Nicosia had kept shopping on Amazon after filing his lawsuit, which the court treated as actual notice. The judge admitted the ritual is empty and enforced it in the same breath.
The pattern holds across the country. The Second, Sixth, Seventh and Ninth Circuits, along with California's appellate courts, will enforce online terms given reasonably conspicuous notice plus some gesture of assent. New York's Court of Appeals recently upheld Uber's terms — a pop-up saying “We've updated our terms,” a checkbox, done — including the clause that sends even the question of whether you must arbitrate to the arbitrator. And in a 2024 case involving Everlywell's home test kits, a consumer who never read a word of the terms was bound because the outside of the box said the product was subject to an agreement posted at a URL. The box was the contract's cover; the contract lived on a website; the court called that assent.
What you actually agreed to
It's worth pausing on what's inside these documents, because the clauses are not fine print in the old sense — they're not haggling over warranty periods. The standard kit includes mandatory arbitration, which moves disputes out of court and into a private forum the company helps pay for; a class action waiver, which ensures that a harm done to ten million people for three dollars each is a harm done to no one, legally speaking; a unilateral amendment clause, meaning the contract you signed can be rewritten after you sign it, your continued use constituting agreement to terms that didn't exist when you agreed; and a licence grant over everything you upload, typically broad, perpetual and royalty-free. These are not details. They are the architecture of who can be held accountable and who can't.
The rare person who refuses to click discovers the system's real premise: there is no negotiation because there is no counterparty. You cannot email a company to strike the arbitration clause. The terms are offered on a take-it-or-leave-it basis, and leaving increasingly means leaving — the service, the platform, sometimes the infrastructure of ordinary life. Consent that cannot be withheld isn't really consent; it's a description of the relationship wearing consent's clothes.
The formality is the point
So the click does not signify agreement in any meaningful human sense, and everyone knows it, including the judges who say so in their own opinions and then enforce the agreement regardless. What the click actually manufactures is a legal fact: a record that notice existed and a gesture occurred. The unreadable document and the unread click need each other. If the terms were short and clear, people might read them, and then they might object, and the whole arrangement would have to become what it pretends to be.
There's a strange honesty available here, if anyone wanted it. We could stop calling these things agreements and call them what they are: published conditions of access, imposed by the party with the servers. The law could then judge them the way it judges other one-sided impositions — on whether the terms themselves are fair, rather than on whether a button was adjacent to a hyperlink. That would mean giving up the fiction of the prudent reader, a character who has never existed. But fictions in law are supposed to do work. This one mostly does errands.