EULA discussion

Mike’s previous post re. the recent EULA cases are quite good, as are the posts to which he links. I don’t have much to add, except for a little “off the top of my head” ramble. Reading over them, I found myself nodding and in basic agreement but still wondering whether we’re missing something important. Perhaps this isn’t it, but might the death of assent itself be a (systemic) harm that we find troublesome. First, if/when the exception (actual assent not really required, trivial manifestations will be deemed sufficient) becomes the rule, it seems to me that many of the advantages of contract as a means for efficient private ordering are put at risk. Second, without assent as a meaningful component of contract law, contracts begin to look more like instruments for “thing definition” than for defining the relationship between parties. This seems troublesome because the relationship between contracting parties is itself commodified (or “thingified”).