In an opinion today in the Uber antitrust case, which was on remand from the Second Circuit (see our prior coverage here), Judge Rakoff sent the case to arbitration based on the “Terms of Service” within Uber’s phone application.  Before doing so, however, he complained of having to enforce terms that “everyone recognizes” are “totally coerced”:

The American law of contracts in its common law origins presumed a promissory agreement freely negotiated between parties who reached a “meeting of the minds.”  . . . .

But with the rise of giant corporations selling their products to masses of consumers, this contractual model became largely a figment of imagination, or nostalgia, at least so far as national retail markets were concerned.  . . . [C]onsumers are now required, if they wish to purchase virtually any product or service via the internet, to waive their constitutional right to trial by jury – indeed, even their right to access to a court of law – and instead, submit to binding arbitration before a company-hired arbitrator.

One might have thought that such waivers were unenforceable on their face. The right to trial by jury, in civil as well as criminal cases, is a central feature, not only of the federal Constitution, but also of the constitutions of virtually every state.  The right reflects the deep-seated view of the American people that the community is the best judge of justice.

But this, it appears, is not the view of the judiciary. Thus, while appellate courts still pay lip service to the “precious right” of trial by jury,  and sometimes add that it is a right that cannot readily be waived, in actuality federal district courts are now obliged to enforce what everyone recognizes is a totally coerced waiver of both the right to a jury and the right of access to the courts – provided only that the consumer is notified in some passing way that in purchasing the product or service she is thereby “agreeing” to the accompanying voluminous set of “terms and conditions.”

This being the law, this judge must enforce it – even if it is based on nothing but factual and legal fictions.