By Jeffrey T. Donner, Esq.

August 17, 2026

I began law school in 1996. Like generations of first-year law students, I learned contract law through a conceptual framework built around offer, acceptance, consideration, assent, bargaining, reasonable expectations, unconscionability, illegality, and public policy. We learned the familiar rule that competent parties ordinarily are bound by contracts they sign and that courts generally do not exist to relieve parties from bargains that later prove unwise. But we also learned that a signature did not necessarily end every inquiry into whether a purported contractual provision should be enforced.

Among the concepts we studied was the contract of adhesion: the standardized agreement drafted by the party possessing superior bargaining power and presented to the weaker party substantially on a take-it-or-leave-it basis, without a realistic opportunity to bargain over its terms. Closely associated doctrines included procedural and substantive unconscionability, reasonable expectations, public policy, and judicial skepticism toward provisions purporting to relieve a party from responsibility for its own misconduct.

Thirty years later, those doctrines have not disappeared. Courts still recognize contracts of adhesion. Unconscionability remains a defense to enforcement. Federal arbitration law itself preserves generally applicable contractual defenses. Florida’s Supreme Court continues to speak explicitly about disparities in bargaining power, lack of meaningful choice, take-it-or-leave-it contracts, and oppressive consumer terms.

Yet anyone who actually practices law—and anyone who simply purchases goods and services in modern America—can reasonably wonder what practical significance remains in the doctrine we were taught.

Consumers routinely enter contracts they did not draft, could not negotiate, frequently do not read, and sometimes cannot even conveniently see. The agreements govern credit cards, automobiles, cellular service, housing, banking, insurance, airline travel, computer software, online services, entertainment, recreation, and countless ordinary transactions. Increasingly, the document itself has disappeared. Assent occurs through a signature pad, a hyperlink, a QR code, or an “I Agree” button.

The standardized, non-negotiable transaction that contract law once considered distinctive enough to deserve the name “contract of adhesion” has become one of the predominant methods by which consumers contract.

The resulting historical question is more interesting than the simplistic claim that courts once protected consumers and now protect corporations. There was no golden age in which an adhesion contract was automatically void. Even in the cases a law student might have encountered in the early 1990s, adhesion ordinarily supplied a reason for scrutiny rather than an independent rule of invalidity.

But neither is it correct to say that nothing has changed. The basic common-law vocabulary has remained remarkably stable while the surrounding legal environment has changed substantially. Federal arbitration jurisprudence has greatly restricted the ability of state contract doctrine to invalidate arbitration provisions based on characteristics deemed inconsistent with the Federal Arbitration Act. Florida itself has relaxed one important aspect of its older jurisprudence governing exculpatory clauses. At the same time, electronic contracting has made adhesive contracting vastly easier to deploy and has reduced the practical friction associated with obtaining formal manifestations of assent.

For someone who entered law school in 1996, the most accurate historical conclusion may therefore be that we entered law school near an inflection point. The traditional doctrines we learned were real, and courts of that era sometimes applied them with considerable force. But the federal doctrinal developments that would substantially constrain some of those principles were already underway.

I. What the Contract of Adhesion Actually Meant in the Early 1990s

It is useful to begin by eliminating a misconception. Adhesion did not mean automatic invalidity in 1996, and it generally had not meant that for years beforehand.

A particularly instructive decision from the period is Broemmer v. Abortion Services of Phoenix, Ltd., 173 Ariz. 148, 840 P.2d 1013 (1992). Although obviously not binding Florida authority, Broemmer captures remarkably well the conception of adhesion that a Contracts student in the mid-1990s could have encountered.

The plaintiff in Broemmer signed standardized paperwork before obtaining medical services. One of the documents required disputes to be submitted to binding arbitration. The Arizona Supreme Court had little difficulty characterizing the agreement as adhesive: it was a standardized form presented on a take-it-or-leave-it basis as a condition of receiving services, without negotiation. But the court expressly recognized that finding adhesion did not itself determine enforceability. Instead, it examined whether the disputed provision was outside the adhering party’s reasonable expectations and whether it was unconscionable. Broemmer, 173 Ariz. at 150–53, 840 P.2d at 1015–18.

The court ultimately declined to enforce the arbitration provision because it fell outside the plaintiff’s reasonable expectations. Significantly, the court found it unnecessary to reach the separate issue of unconscionability. The distinction matters. Broemmer should not be cited for the proposition that the Arizona Supreme Court found the arbitration clause unconscionable; it did not. Its importance here is different. The court treated the adhesive circumstances of the transaction as legally significant in determining whether the standardized provision was reasonably within the adhering party’s expectations.

Objective manifestations of assent remained important, but the signature did not erase the factual circumstances in which it had been obtained.

That distinction becomes clearer if one compares two very different transactions. In the first, two sophisticated corporations negotiate the acquisition of a business. Both sides are represented by counsel. Drafts move back and forth. An indemnification provision is proposed, revised, rejected, and revised again. After negotiation, the parties execute a seventy-page agreement.

In the second, a parent takes a child to a recreational attraction. An employee turns an electronic tablet toward the parent and says the form must be completed before the child can participate. The form contains a release of liability and perhaps other provisions concerning arbitration, photographs, publicity, data, indemnification, or venue. The employee has no authority to change a word.

Both transactions can produce an objective manifestation of contractual assent, but they do not remotely involve the same bargaining process. The usefulness of adhesion doctrine was that it gave courts a vocabulary for acknowledging that difference without declaring every standardized contract invalid.

II. There Was No Consumer-Protective Golden Age

The temptation, looking backward, is to imagine that courts in the 1980s and early 1990s generally regarded adhesion contracts with suspicion until some later judicial revolution changed everything. The cases do not support so simple a history. The federal movement toward expansive enforcement of arbitration agreements was already well established before I entered law school.

In Southland Corp. v. Keating, 465 U.S. 1 (1984), the United States Supreme Court construed § 2 of the Federal Arbitration Act (“FAA”) as creating substantive federal law applicable in state as well as federal courts, thereby preempting contrary state rules that required judicial resolution of claims the parties had agreed to arbitrate. Id. at 10–16.

Several years later, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Court held that a claim under the federal Age Discrimination in Employment Act could be subjected to compulsory arbitration pursuant to an arbitration agreement. Gilmer was not a consumer adhesion case and should not be characterized as one, but it was part of a broader doctrinal movement in which statutory claims were no longer treated as presumptively exempt from agreements requiring arbitration. Id. at 24–35.

Thus, while courts such as the Arizona Supreme Court in Broemmer were applying reasonable-expectations doctrine to adhesive arbitration provisions, the United States Supreme Court was simultaneously constructing an increasingly powerful federal law of arbitration. Those developments were not sequential. They coexisted, and the important historical question is what happened when they began to collide.

III. The Seminal 1995 Case Was Allied-Bruce—But It Was Moving in the Opposite Direction

There actually was a major Supreme Court decision in 1995, the year before I entered law school, that helps explain where consumer contract law was going: Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995).

The facts make the case particularly appropriate to this discussion. The dispute arose from a termite-protection agreement involving homeowners and Terminix. The agreement contained an arbitration clause. Alabama law generally rendered predispute arbitration agreements unenforceable, and the Alabama Supreme Court concluded that the FAA did not govern because the parties had not contemplated substantial interstate activity.

The United States Supreme Court reversed, construing the FAA’s phrase “involving commerce” broadly, essentially to the limits of Congress’s Commerce Clause power. Id. at 273–81. That holding was consequential because transactions that appear thoroughly local—a homeowner purchasing termite protection for a house, for example—may nevertheless fall within the FAA when the transaction involves interstate commerce in the broad constitutional sense.

Even more revealing for present purposes, the Supreme Court expressly confronted the consumer-form-contract objection. The Court acknowledged the argument that a narrower construction could protect consumers who encounter arbitration clauses in standardized business forms, but it was not persuaded that the proposed interpretation would reliably serve that purpose. The Court pointed instead to § 2 of the FAA, which preserves generally applicable grounds for revocation of contracts. Id. at 281.

That is the architecture of modern arbitration law in embryo. The answer to concern about adhesive arbitration agreements was not to exempt them from the FAA. The answer was that ordinary contract defenses remained available. On paper, that sounds like a reasonable compromise: arbitration agreements receive the same treatment as other contracts, while fraud, duress, unconscionability, lack of assent, and other generally applicable doctrines remain available where warranted.

The difficult question became how much work those doctrines would actually be permitted to do.

IV. The Supreme Court Reinforced the Point in 1996—the Year I Entered Law School

The historical timing becomes even more striking with Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996). Montana had enacted a statute requiring arbitration provisions to contain special notice on the first page of a contract in underlined capital letters. The dispute involved a standard-form Subway franchise agreement containing an arbitration clause that did not satisfy Montana’s special notice requirement.

The Supreme Court held the Montana statute preempted by the FAA. A state could invalidate arbitration agreements through generally applicable contract doctrines, but it could not impose a special form requirement applicable only to arbitration clauses. Id. at 687–88.

Again, Casarotto was a franchise case rather than a paradigmatic consumer transaction. Doctrinally, however, it sharpened the rule that was becoming critical to consumer adhesion cases: state law could continue to employ fraud, duress, unconscionability, and other generally applicable contract defenses, but it could not burden arbitration simply because arbitration was involved.

Thus, in 1996, two principles in American law were operating simultaneously. Cases such as Broemmer reflected an established judicial willingness to examine adhesion, reasonable expectations, bargaining power, notice, and the reality of the transaction. At the same time, the Supreme Court was federalizing arbitration law and restricting states’ ability to give arbitration provisions special treatment.

A first-year Contracts student could therefore quite correctly learn robust doctrines concerning unconscionability and adhesion while, elsewhere in the reporters, the Supreme Court was defining increasingly important limits on how those doctrines could interact with arbitration.

V. Florida in 1999: Powertel Shows That the Doctrine We Learned Had Real Teeth

For Florida lawyers, perhaps the most revealing case is Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla. 1st DCA 1999), decided in the year I graduated from law school.

Powertel involved cellular telephone customers. After litigation had already commenced, Powertel attempted to add an arbitration clause to existing customer agreements through an insert sent with customers’ bills. The First District affirmed the refusal to compel arbitration, concluding both that the provision was unconscionable and that it could not retroactively govern an already-pending lawsuit. Id. at 574–77.

The court’s unconscionability analysis is particularly interesting when read a quarter-century later. It recognized Florida’s requirement of procedural and substantive unconscionability and treated adhesion as highly relevant, although not by itself dispositive. Procedural unconscionability examined the manner in which the contract was made, including relative bargaining power and the parties’ realistic ability to understand the disputed terms. Id. at 574.

More important was the court’s willingness to look realistically at supposed consumer choice. Powertel argued, in substance, that customers dissatisfied with the new provision could obtain cellular service elsewhere. The First District did not regard that theoretical possibility as a complete answer. Customers had invested in equipment and faced practical costs in changing providers and telephone numbers. The court concluded that they lacked a meaningful choice in the circumstances. Id. at 575.

That analysis remains important because market choice is not necessarily contractual choice. A consumer may have several companies from which to purchase a service, but if changing providers entails significant transaction costs—or if all realistic competitors impose substantially equivalent terms—the fact that another business technically exists does not establish meaningful bargaining power over the disputed contractual provision.

Powertel also addressed the economic significance of aggregate litigation. The arbitration arrangement restricted remedies and foreclosed class treatment. In discussing substantive unconscionability, the First District recognized that many small consumer claims are economically feasible only when pursued collectively and that class litigation may have a deterrent effect unavailable through isolated claims. Id. at 576–77.

That part of Powertel is particularly revealing historically because subsequent federal arbitration doctrine substantially restricted the use of state unconscionability principles to invalidate arbitration agreements on precisely that basis. As a snapshot of Florida contract doctrine in 1999, however, Powertel is difficult to ignore.

A Florida lawyer graduating that year could reasonably believe that “meaningful choice” meant something more than the metaphysical freedom not to transact. A Florida appellate court was willing to look at switching costs, bargaining power, fine-print modification of an existing relationship, available remedies, and whether small consumer claims could realistically be prosecuted individually. The doctrine was not imaginary.

VI. What Changed Most Was Not the Definition of Adhesion; It Was the Federal Law Governing Its Consequences

The modern story therefore is not that courts formally abolished adhesion doctrine. They did not. One of the major changes occurred because the Supreme Court increasingly restricted the extent to which state unconscionability doctrine could interfere with what the Court regarded as fundamental attributes of arbitration under the FAA.

The landmark modern decision is AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). The plaintiffs alleged that AT&T had improperly charged sales tax on cellular telephones advertised as free. Their consumer agreement required arbitration on an individual basis and prohibited class proceedings. California’s so-called Discover Bank rule treated certain class-action waivers in consumer adhesion contracts as unconscionable.

The Supreme Court held the state rule preempted. Section 2’s saving clause continued to permit generally applicable contract defenses, the Court explained, but not applications of state law that stood as an obstacle to the FAA’s purposes and objectives. The Court concluded that requiring the availability of classwide arbitration interfered with fundamental attributes of arbitration and therefore could not be imposed through state unconscionability doctrine. Concepcion, 563 U.S. at 339, 341–52.

The significance for the historical comparison with Powertel is considerable. Powertel had treated the practical loss of collective remedies as part of the substantive-unconscionability problem. After Concepcion, a state cannot simply use unconscionability doctrine to invalidate an arbitration agreement because it requires individual rather than class proceedings when the FAA governs.

This does not mean that Powertel vanished from Florida contract law. Its discussion of adhesion, bargaining power, notice, meaningful choice, and unconscionability remains relevant to generally applicable contractual analysis. But the particular remedial reasoning concerning class arbitration now operates within a federal doctrinal environment materially different from the one that existed when Powertel was decided. That is a genuine change rather than a difference in rhetoric.

VII. Italian Colors Made the Economic Point Even Clearer

Two years after Concepcion, the Supreme Court confronted an even more direct challenge based upon the economics of individual enforcement in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013).

The case involved merchants rather than ordinary consumers, and that distinction should be kept clear. The plaintiffs alleged federal antitrust violations and contended that proving an individual claim would require expert expenditures vastly exceeding the potential individual recovery. Their arbitration agreements nevertheless prohibited class procedures.

The Supreme Court enforced the agreements. The fact that the cost of proving an individual statutory claim exceeded the expected recovery did not, in the Court’s view, eliminate the right to pursue the remedy and therefore did not justify refusing to enforce the contractual class-arbitration waiver. Id. at 231–39.

For present purposes, Italian Colors matters not because it was a consumer case—it was not—but because it makes explicit a proposition with enormous consequences for mass consumer contracting. The economic irrationality of pursuing an individual claim does not necessarily render an arbitration agreement unenforceable under federal law.

That proposition bears directly upon why contract defenses can remain robust in theory while producing relatively little visible litigation in practice. If a consumer has a $200 claim and would need thousands of dollars of legal work to vindicate it individually, the theoretical existence of a contractual defense may be beside the point. The consumer will ordinarily never litigate the issue far enough to generate an appellate decision.

The corporation, by contrast, may have millions of dollars at stake in preserving the standardized provision across its entire customer base. The parties therefore approach enforcement from radically different economic positions even if contract doctrine formally supplies both sides with the same rules.

VIII. Basulto Demonstrates That Florida Has Not Forgotten Unconscionability

Any article suggesting that Florida courts abandoned the traditional doctrines would be incomplete without Basulto v. Hialeah Automotive, LLC, 141 So. 3d 1145 (Fla. 2014).

Basulto arose from an automobile transaction involving Spanish-speaking consumers and English-language documents containing arbitration provisions. The facts included substantial allegations concerning the circumstances in which documents were presented and signed. The Florida Supreme Court ultimately quashed the Third District’s decision and reinstated the trial court’s refusal to compel arbitration.

For present purposes, Basulto is important because the Court undertook an extended discussion of unconscionability and expressly recognized the realities of consumer adhesion contracting. The Court explained that procedural unconscionability concerns how the contract was formed, including the relative bargaining power of the parties, whether the consumer possessed a meaningful choice, whether disputed terms were presented on a take-it-or-leave-it basis, and whether the adhering party had a realistic opportunity to know and understand the terms. Id. at 1157 & n.3.

The Court also adopted a balancing or sliding-scale approach to Florida’s two-pronged unconscionability requirement. Both procedural and substantive unconscionability must be present, but they need not exist to the same degree; a strong showing on one dimension can compensate to a degree for a weaker showing on the other, so long as at least a modicum of each exists. Id. at 1159–61.

Most strikingly, the Court expressly discussed what occurs in the typical consumer adhesion contract: little or no actual bargaining, substantial disparity in bargaining power, and the ability of a business drafting standardized agreements to impose one-sided terms upon consumers. Id. at 1160–61.

That sounds remarkably similar to the concerns taught in Contracts classes decades earlier because the doctrine itself survives. The practical limitation is that adhesion is not ordinarily a freestanding defense. A court may recognize that an agreement is adhesive and still enforce it. Adhesion supplies evidence bearing upon procedural unconscionability and related doctrines; it ordinarily does not itself answer whether a particular provision is unenforceable.

This helps explain the apparent paradox. The law can accurately identify almost every characteristic that makes an agreement adhesive—the business wrote it; the consumer did not negotiate it; the employee could not modify it; it was presented on a take-it-or-leave-it basis—and nevertheless conclude that the disputed provision is enforceable because the additional requirements of the governing defense were not established.

The doctrine has not disappeared. Its classification function is simply much broader than its invalidating force.

IX. Florida’s Negligence-Release Cases Provide a More Concrete Example of Actual Doctrinal Change

Arbitration presents a complicated historical comparison because federal preemption dominates so much of the analysis. Florida’s treatment of exculpatory clauses provides a cleaner example in which the law confronting a lawyer today is materially different from the body of district-court authority that existed when I entered law school.

Florida has long stated that contracts purporting to relieve a party from liability for its own negligence are disfavored and must communicate the intended exculpation clearly and unequivocally. During the 1980s, however, four Florida district courts adopted a particularly demanding version of that rule: Tout v. Hartford Accident & Indemnity Co., 390 So. 2d 155 (Fla. 3d DCA 1980); Goyings v. Jack & Ruth Eckerd Foundation, 403 So. 2d 1144 (Fla. 2d DCA 1981); Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. 4th DCA 1984); and Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987). Those cases represented existing Florida appellate authority when I entered law school.

Nearly two decades later, the Florida Supreme Court addressed the conflict in Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 2015). The Court held that an exculpatory provision is not per se ineffective to release a defendant from liability for its own negligence merely because it fails to use the specific words “negligence” or “negligent acts.” If the language otherwise clearly and unequivocally communicates the release, the provision can be effective. Id. at 260–61, 271. The Court expressly disapproved Levine, Van Tuyn, Goyings, and Tout.

This is therefore not a matter of hazy recollection about what contract law “felt like” in the 1990s. On this discrete Florida issue, we can identify four actual appellate decisions existing when the law-school class of 1999 entered the profession and a subsequent Florida Supreme Court decision expressly disapproving their stricter rule.

At the same time, Sanislo should not be overstated. The Supreme Court did not announce that Florida now favors exculpatory clauses. To the contrary, it reiterated that such agreements remain disfavored because they relieve one party of an obligation to exercise due care and shift the risk of injury. The Court continued to require that the intent to obtain exculpation be communicated clearly and understandably. Id. at 260–61, 271.

The change was narrower but still important: Florida moved away from a categorical requirement that the release expressly invoke the defendant’s own “negligence” or “negligent acts.”

For purposes of a historical comparison, that is a much stronger proposition than the vague assertion that courts are simply more “pro-business” now. It is a demonstrable doctrinal change.

X. Why Modern Adhesion Feels More Extreme Even Where the Doctrine Has Not Changed

Much of what makes contemporary contract law feel different may arise not from formal doctrinal changes but from the extraordinary expansion of standardized contracting itself.

The common-law rules concerning objective assent evolved in a world in which signatures carried substantial transactional friction. A person ordinarily encountered a physical document. The fact that few people carefully read every word did not eliminate the physical and psychological significance of signing it.

Modern technology has reduced that friction almost to zero. A consumer can become bound to thousands of words by tapping a screen. Terms can reside behind hyperlinks. Multiple legal permissions can be bundled into a single electronic transaction. A consumer seeking one product may simultaneously “agree” to provisions concerning dispute resolution, class proceedings, data, publicity, intellectual property, indemnity, venue, governing law, automatic renewal, and limitations of liability.

This makes the traditional distinction between subjective understanding and objective manifestation of assent increasingly consequential. Contract law cannot sensibly require proof that every person actually read and subjectively approved every contractual provision. If that were the rule, written agreements would become unreliable. But neither should that practical necessity obscure what is actually happening.

Imagine a consumer behaving at a modern rental-car counter as though the transaction were a negotiated commercial contract. He reads the agreement for forty-five minutes and announces that he accepts the rental price, fuel provision, and insurance provisions but proposes revisions to the arbitration, indemnity, data-use, and governing-law sections. Nothing productive follows. The employee cannot negotiate the clauses, the computer system cannot process the proposed revisions, and corporate counsel is not waiting to redraft an eighty-dollar rental agreement. The consumer can accept the form or leave without the car.

That is not a criticism of standardization itself. Individual negotiation of every mass-market transaction would be economically absurd, and standardized contracts make modern commerce possible. But the economic necessity of standardization does not logically establish the substantive fairness of every standardized term.

Those are separate propositions, and modern contract doctrine sometimes slides too quickly from the first to the second.

XI. Market Choice and Contractual Choice Are Not the Same Thing

One of the most valuable insights in Powertel deserves more attention today. Courts and contracting parties sometimes respond to an allegation of unequal bargaining power by observing that the consumer could simply choose another provider. That answer may be relevant, but it is not necessarily persuasive.

There is a difference between choice among sellers and choice concerning contractual terms. Suppose four companies provide a necessary or important service. If all four require materially equivalent arbitration provisions, limitations of liability, or other standardized terms, the consumer may possess market choice among companies while having no meaningful contractual choice concerning the disputed provision.

Similarly, switching providers can impose substantial transaction costs. Powertel recognized that customers who had purchased equipment and could not easily preserve their existing telephone numbers did not necessarily enjoy meaningful choice simply because another cellular carrier theoretically existed. 743 So. 2d at 575.

This concept is even more compelling in industries where contractual practices become standardized across competitors. The economically meaningful inquiry should not end with whether the consumer could refuse this particular contract. A more useful question is whether the consumer could realistically obtain a materially equivalent product or service without accepting a materially equivalent version of the challenged term.

That does not mean courts should invalidate a provision whenever an entire industry uses it. But industry-wide standardization should not itself be mistaken for evidence of meaningful bargaining. The consumer who can choose among five businesses offering essentially identical non-negotiable legal provisions possesses consumer choice in one sense and virtually no contractual bargaining power in another.

XII. Negligence Waivers Expose the Conceptual Problem Particularly Clearly

The recreational negligence waiver provides an especially useful illustration because the provision alters the ordinary legal consequences of the business’s own conduct.

A customer pays a commercial operator to provide an activity. As a condition of participation, the operator may require a standardized waiver shifting some risk of the operator’s own negligence to the customer. There can be legitimate reasons for contractual risk allocation in recreational activities. Some activities carry inherent risks that cannot be eliminated without changing the nature of the activity itself, and businesses understandably seek protection against claims based upon risks a participant knowingly assumes.

But assumption of an inherent risk and exculpation for the operator’s own negligence are analytically distinct concepts. A contractual provision saying, in substance, that horseback riding involves the risk of falling from a horse performs a different function from one saying that the participant cannot recover even if the operator’s failure to exercise reasonable care causes the injury. The second provision reallocates the consequences of the defendant’s own breach of the ordinary duty of care.

Florida’s continued statement that such provisions are disfavored reflects that difference. Sanislo, 157 So. 3d at 260–61. Yet in modern recreational commerce, the transaction may consist of little more than an electronic form presented moments before participation. There is no negotiation over the allocation of negligence risk. The employee cannot alter it. The participant cannot pay a different price for a contract preserving ordinary tort remedies.

That does not necessarily make the release legally unenforceable, but it does make the rhetoric of “freedom of contract” somewhat artificial. The freedom involved is usually the operator’s freedom to prescribe the terms and the customer’s freedom to participate or not participate. That is a species of consent, but it is not bargaining in the conventional sense.

XIII. Collateral Rights Present an Even Harder Case

The same concern becomes more pronounced when an adhesion contract bundles rights that are collateral to the principal economic transaction.

Suppose a parent intends to purchase admission to an attraction for a child. The standardized agreement also purports to authorize photography or recording of the child for promotional or commercial purposes. Conceptually, those are two different transactions. The first is an exchange of money for admission. The second is a transfer or authorization concerning the child’s likeness.

In a genuinely negotiated setting, the business could sell admission and separately ask whether the parent consents to promotional use of photographs. The parent could accept one proposition while declining the other. Bundling the two changes the transaction because the business controls access to the service the consumer actually wants.

Whether a particular publicity provision is legally enforceable will depend on governing law, wording, notice, and other circumstances. The broader contractual point is that standardized forms permit sophisticated drafters to attach collateral transfers of rights to transactions that consumers subjectively perceive as much narrower. The signature or click then performs extraordinary legal work.

This is precisely the terrain in which the older concepts of reasonable expectations, meaningful choice, conspicuousness, and unconscionability ought to matter most.

XIV. Why We See So Few Successful Consumer Challenges in Practice

The disparity between the prominence of unconscionability in Contracts textbooks and its apparent rarity in ordinary litigation also has an economic explanation.

A corporation drafts its standardized contract once and uses it repeatedly. An individual consumer must challenge it one dispute at a time. Suppose a disputed provision generates or protects $100 of value per customer and is used in one million transactions. The provision may represent $100 million to the drafting company, making substantial legal fees incurred to establish its enforceability economically rational.

To the consumer, the dispute remains worth $100. No rational consumer retains litigation counsel at ordinary hourly rates to prosecute a $100 contract claim through discovery, summary judgment, trial, and appeal merely to establish that a provision is unconscionable.

The absence of published appellate decisions therefore does not necessarily establish that consumers universally regard the provisions as fair or that every provision would survive determined judicial scrutiny. It may simply mean that the economic incentive to create precedent lies overwhelmingly on one side. The corporation receives the benefit of scale in drafting and defending the contract. The consumer receives no corresponding economy of scale unless the legal system supplies one through class procedures, statutory fee shifting, public enforcement, or another aggregation mechanism.

This helps explain why the Powertel court’s attention to the economics of class litigation was important and why Concepcion and Italian Colors were so consequential. Those later Supreme Court cases did not merely decide abstract questions concerning arbitration procedure. They affected the economic mechanisms by which individually small claims can be pursued.

XV. A Legal Right and an Economically Enforceable Right Are Different Things

Lawyers sometimes speak as though establishing the existence of a legal right completes the analysis. For many consumers, it does not. A legal right worth $300 that requires $30,000 of legal expense to enforce is formally real but practically weak.

This is not unique to consumer law. Litigation economics affect every field. But the problem is structurally acute where one party deals through standardized agreements used at enormous scale while the other party experiences the transaction only once. The law may tell the consumer that unconscionability remains available as a defense. That statement can be doctrinally correct and practically meaningless at the same time.

This is one reason that observing few reported unconscionability victories does not necessarily tell us much about how often overreaching provisions occur. Reported cases are generated by disputes valuable enough to litigate and appeal. Mass consumer practices may impose comparatively small injuries upon each individual while producing enormous aggregate value.

The doctrines taught in first-year Contracts can therefore remain formally intact while becoming economically difficult to deploy.

XVI. So Was the Law Actually Different When I Was in Law School?

After reviewing the cases from the period, the most defensible answer is: partly, but not in the simplistic way memory might suggest.

It would be inaccurate to say that contracts of adhesion were generally unenforceable in 1996. They were not. Adhesion was already ordinarily a factor in a larger analysis rather than an automatic defense. Freedom-of-contract principles were well established, and courts regularly enforced standardized agreements.

It would also be inaccurate to suggest that the Supreme Court’s expansive arbitration jurisprudence appeared only recently. Southland was decided in 1984, Gilmer in 1991, Allied-Bruce in January 1995, and Casarotto in 1996. By the time I sat in a first-year Contracts classroom, the federal arbitration revolution was already substantially underway.

But the opposite conclusion—that nothing meaningful changed over the ensuing thirty years—would also be wrong. Broemmer demonstrates that courts in the early 1990s could use adhesion and reasonable-expectations analysis to invalidate a non-negotiated arbitration provision while expressly examining the actual circumstances of assent. Powertel, decided in Florida in 1999, demonstrates even more directly that meaningful choice, switching costs, disparity in bargaining power, remedial restrictions, and the economic viability of collective consumer litigation were not merely academic concepts. The First District used them in holding an arbitration provision unconscionable.

Then Concepcion materially restricted states’ ability to use unconscionability doctrine to invalidate arbitration agreements because they foreclosed class proceedings. Italian Colors reinforced the principle that the prohibitive economics of individual enforcement do not themselves provide a basis for disregarding an agreement requiring individual arbitration.

Meanwhile, Basulto confirms that traditional Florida unconscionability doctrine survived and continues to recognize precisely the concerns associated with consumer adhesion contracts. Sanislo supplies an unusually clean Florida example of actual doctrinal movement: four district-court decisions from the 1980s imposed a stricter requirement upon releases of a defendant’s own negligence, and the Florida Supreme Court expressly disapproved those cases in 2015.

The historical picture is therefore neither revolution nor complete continuity. It is continuity in doctrine combined with important changes in the doctrines’ operating environment and, in particular areas, actual changes in substantive law.

XVII. The Great Irony: Adhesion Became Less Exceptional by Becoming More Common

There is a final irony in the development. The contract of adhesion was given a special name because it departed from the classical image of bargaining. One side drafted the agreement. The other side could accept or reject it but could not realistically negotiate the terms. That departure from the bargaining paradigm was important enough to trigger special doctrinal attention.

Today, those characteristics describe an enormous portion of ordinary consumer contracting. The consumer did not draft the agreement, ordinarily cannot negotiate it, and often deals with an employee who cannot modify it. The consumer may have little incentive to read thousands of words of boilerplate governing a modest transaction, while competitors may impose substantially similar terms. Nevertheless, the consumer manifests assent because assent is required to obtain the product or service.

Once adhesion became ordinary, the legal system faced two possible responses. It could treat the prevalence of adhesion as a reason for greater scrutiny of standardized terms, or it could increasingly accept adhesion as simply the manner in which modern commerce operates. For understandable reasons, American law has largely taken the latter course. Mass commerce requires standardization. A society in which every consumer individually negotiates the indemnification provisions in an airline ticket or the dispute-resolution terms in a software license is not realistic.

But that practical insight should not swallow the doctrinal distinction between standardized administration and substantive consent. The fact that individualized negotiation is impractical establishes a justification for standardized contracting. It does not establish a justification for every term that a sophisticated drafter chooses to place in the standardized contract.

XVIII. What a More Coherent Adhesion Doctrine Might Ask

A serious modern law of adhesion need not invalidate standardized contracts merely because they are standardized. Instead, the adhesive character of an agreement could serve as a reason for heightened scrutiny of particular kinds of provisions, especially provisions that eliminate ordinary remedies, shift responsibility for the drafting party’s own misconduct, transfer rights collateral to the transaction, or substantially alter legal relationships in ways a reasonable consumer would not ordinarily expect from the underlying exchange.

Among the relevant questions might be whether the disputed term was reasonably related to the principal transaction; whether it was conspicuously disclosed; whether the consumer had a realistic opportunity to obtain a materially equivalent service without agreeing to the term; whether the provision imposed collateral obligations unrelated to the consideration the consumer sought; whether it eliminated remedies for misconduct by the drafter; and whether meaningful market alternatives actually existed.

None of those questions requires a return to an imaginary world of individually negotiated consumer contracts. They merely recognize something contract law has always understood at some level: a manifestation of assent and a genuinely bargained allocation of legal rights are not necessarily identical concepts.

The law must often treat the first as sufficient to create a contract, but it need not pretend that the second therefore occurred.

XIX. Conclusion

Looking back at the law from the perspective of someone who entered law school in 1996, my recollection was not wrong, but it requires qualification. The doctrines concerning adhesion, unconscionability, meaningful choice, reasonable expectations, and public policy were real. They remain real today. There was no general rule in the 1990s invalidating adhesion contracts simply because they were adhesive, and it would be historically inaccurate to suggest otherwise.

But neither was the doctrine merely an academic curiosity. Broemmer in 1992 demonstrates meaningful judicial scrutiny of the reasonable expectations of a party presented with an adhesive arbitration agreement. Powertel in 1999 demonstrates a Florida appellate court examining consumer bargaining power, realistic alternatives, switching costs, remedial limitations, and the economic importance of aggregate litigation in finding an arbitration provision unconscionable.

At exactly the same historical moment, however, another doctrinal current was gaining force. Southland, Gilmer, Allied-Bruce, and Casarotto progressively established a powerful federal policy requiring enforcement of arbitration agreements and restricting state rules that burdened arbitration differently from contracts generally. Concepcion later limited states’ ability to use unconscionability doctrine to require class procedures, and Italian Colors rejected economic impracticability of individual enforcement as sufficient to overcome an agreement requiring individual arbitration.

Florida’s own cases reveal both continuity and change. Basulto retains a robust conception of procedural and substantive unconscionability and expressly recognizes the dangers inherent in consumer adhesion contracts. Sanislo, on the other hand, demonstrates an actual movement in substantive Florida law toward enforcement of certain exculpatory agreements that would have failed under four district-court decisions existing when I entered law school.

The best historical explanation, therefore, is not that the contract of adhesion died. It is that adhesion became ordinary while some of the legal consequences traditionally associated with adhesion became more constrained.

The marketplace also changed beneath the doctrine. Electronic contracting now allows businesses to obtain an objective manifestation of assent to extraordinarily detailed standardized terms with almost no transactional friction. The law continues to apply principles of objective assent developed in an earlier commercial environment because commerce could not function without them.

The resulting tension is one that contract law has not fully resolved. When the law knows that a contract was not negotiated, knows that its material provisions could not have been negotiated, knows that the employee presenting the agreement lacked authority to change them, knows that comparable businesses may impose substantially equivalent terms, and nevertheless treats a click or signature as assent to every legal allocation placed within the document, what precisely should follow from calling the transaction a contract of adhesion?

The first-year doctrines of adhesion, reasonable expectations, unconscionability, and public policy were developed because courts understood that formal assent and meaningful consent overlap, but they are not necessarily the same thing. Nothing about electronic commerce has made that distinction obsolete. If anything, the economic conditions that made the distinction important have become more pervasive than they were when we learned the doctrine in law school.

The contract of adhesion did not disappear.

It became the normal contract.