Introduction
William Good was a passenger in the back of an Uber when the driver lost control and crashed, leaving him quadriplegic.1 Good v. Uber Techs., Inc., 234 N.E.3d 262, 268 (Mass. 2024). Without realizing it, by signing Uber’s updated terms of service and continuing to request rides through the app, Good not only lost his ability to walk, but forfeited his constitutional rights to seek proper justice in court.2 See id. The average user is unaware of the arbitration clause within Uber’s terms of service that strips them of their ability to litigate against Uber in front of a traditional trier of fact.3 Study: 99% of Consumers Unaware They Are Subjected to Forced Arbitration, NAT’L Consumer L. Ctr. (July 27, 2023), perma.cc/HK44-BTCD [hereinafter Forced Arbitration]; see generally Trier of Fact, Cornell L. Sch., perma.cc/8FP3-JM3Z (last updated June 2024) (describing a trier of fact as a judge or jury who evaluates “the evidence presented in a legal proceeding” and reaches a decision based on their own factual determinations). Arbitration clauses act as a hidden fail-safe for large corporations, like Uber, to escape liability while reaping the rewards of ill-informed consumer participation.4 See Arash Homampour, It’s a Small World That Can Be Wrapped with One Click, Daily J. (Sept. 9, 2024), perma.cc/7TBH-LLQK; Katherine Stone & Alexander Colvin, The Arbitration Epidemic: Mandatory Arbitration Deprives Workers and Consumers of Their Rights, Econ. Pol’y Inst. (Dec. 7, 2015), https://perma.cc/FX4U-SJMQ.
In Good v. Uber Technologies, Inc., the Massachusetts Supreme Judicial Court (hereinafter “SJC”) held that William Good had reasonable notice of Uber’s updated terms of service, thereby enforcing the arbitration requirement and limiting Good’s claims against Uber to arbitration.5 See Good, 234 N.E.3d at 268–69. The SJC’s ruling effectively paves the way for companies to incorporate deceptive arbitration clauses amid complicated legal jargon.6 See Richard M. Alderman, Why We Really Need the Arbitration Fairness Act, 12 J. Consumer & Com. L. 151, 156–57 (2009), https://perma.cc/SS2A-MBBQ.
This Comment disagrees with the SJC’s holding in Good v. Uber Technologies, Inc., by addressing the concerning precedent set by Good and the SJC’s failure to safeguard the constitutional guarantees of the Seventh and Fourteenth Amendments for the average app user in an evolving technological world. Part I provides a background on arbitration law and clickwrap agreements. Part II examines the facts and the Court’s opinion in Good. Part III explores how the Court failed to consider the inherent unreasonableness of Uber’s interface and suggests that users could not reasonably assent to the updated terms of service because of the unique characteristics of Uber’s digital platform. Finally, Part IV argues that Good is inconsistent with the ethical obligations of digital corporations and will have dangerous effects on industry standards.
I. Background
A. Framework of Arbitration
1. Arbitration as an Alternative to Dispute Resolution
Arbitration is a form of alternative dispute resolution that is generally considered “more efficient, cost effective, and less complex than litigation.”7 Overview of Arbitration & Mediation, FINRA, perma.cc/EGW7-M73R (last visited Sept. 30, 2025). The parties involved select one neutral party or a panel of neutral parties, known as the arbitrator(s).8Id. The arbitrator(s) unilaterally make(s) the final decision in a dispute if the parties fail to reach a settlement on their own.9 Non-Binding Consumer Arbitration Rules, 2016 Am. Arb. Ass’n 7, perma.cc/QL2R-NMNH. Those who contractually agree to utilize an arbitrator are barred from bringing their claims before a traditional trier of fact.10 Arbitration, Cornell L. Sch., perma.cc/MWF2-TXVH (last updated Mar. 2025). Nevertheless, arbitration decisions are binding on the parties as if they were decided in a normal court proceeding.11Id.
The Federal Arbitration Act (hereinafter “FAA”) establishes a national policy that favors enforcement of arbitration agreements as an efficient alternative to dispute resolution.129 U.S.C.S. § 2. Given that arbitration clauses are a contractual matter, state law determines whether parties have voluntarily and knowingly agreed to arbitrate their disputes.13 First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Under state law, if a contract including an arbitration clause is validly entered into,14 See generally Instruction 5.01, Contracts: Formation of a Binding Contract, Mass.Gov (2024), perma.cc/8QJC-WJ8U (defining the formation of a binding contract including the requirement for the parties to “mutually agree to the terms and conditions of their promise”). arbitration is enforced in the event a dispute arises from the contract.15 Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 67 (2010); Michael Jonathan Smikun (@Relentless Guardian), TikTok (Nov. 5, 2023), perma.cc/4ZYV-PW2Y. Additionally, the FAA mandates that arbitration agreements—provided they are voluntarily and knowingly entered into—must be allowed, even if other terms in the contract are deemed unenforceable.16 See Miller v. Cotter, 863 N.E.2d 537, 544–45 (Mass. 2007) (stating that absent fraud, a party’s failure to read or understand a contract provision does not free them from their obligations).
The Massachusetts Arbitration Act (hereinafter “MAA”) governs arbitration at the state level and closely aligns with the FAA.17 See Mass. Gen. Laws. Ann. ch. 251, § 1 (West 1960). Written arbitration agreements in Massachusetts are generally deemed “valid, enforceable, and irrevocable.”18Id. Massachusetts law recognizes a public policy favoring arbitration in commercial disputes, viewing it as a cost-effective and “expedient alternative to litigation.”19 Miller, 863 N.E.2d at 543. The FAA does not explicitly preempt state law but requires state courts to examine arbitration clauses using the same guidelines applied to contracts.20 Feeney v. Dell Inc., 908 N.E.2d 753, 768 (Mass. 2009).
2. Negative Effects of Enforcing Arbitration Clauses
The Seventh Amendment guarantees the right to a civil jury trial at the federal level.21 U.S. Const. amend. VII. The Fourteenth Amendment ensures that state laws do not deprive citizens of fundamental rights 22See generally Fundamental Right ,Cornell L. Sch. ,perma.cc/8NQ7-AJSR (last updated Mar. 2023) (“Fundamental rights are a group of rights that have been recognized by the Supreme Court of the United States as requiring a higher degree of protection from government encroachment.”). —such as access to the courts—without due process of law, applying these protections equally to all individuals.23 U.S. Const. amend. XIV, § 1. In this context, the Fourteenth Amendment’s Due Process Clause reinforces citizens’ Seventh Amendment rights, ensuring access to the courts at both the federal and state level.24See id. Constitutional arguments are frequently raised in arbitration disputes, particularly where access to the courts has been curtailed without adequate due process.25 Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L. J. 2804, 2809–11 (2015); see e.g., Hardware Dealers’ Mutual Fire Ins. Co. v. Gildden Co., 284 U.S. 151 (1931) (upholding a state law that requires arbitration to determine insurance loss amounts against a due process and equal protection challenge, finding the procedure reasonable and that due process does not mandate a trial in all circumstances); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) (emphasizing that arbitration’s authority flows from consent, thereby bypassing many constitutional constraints applicable to government action).
Arbitration clauses also raise unconscionability challenges when a party claims the terms are overly oppressive.26 35 Thomas B. Merrit, Mass. Prac., Consumer L. § 5:43 (4th ed., 2020); see also Arbitration Agreement, Arbitration Clause in a Contract Binds Signers to Handle All Disputes with a Company, Youtube (Nov. 15, 2023), perma.cc/2YHQ-BMVY. Courts distinguish between procedural unconscionability, which involves an imbalance in the bargaining process, and substantive unconscionability, which pertains to fairness of the contract terms themselves.27 Merrit, supra note 26. Courts will evaluate these two elements to decide whether an arbitration agreement is enforceable, focusing on whether the terms were clearly communicated and fairly agreed upon.28 Merrit, supra note 26.
B. Enforceability of Arbitration Agreements Under Massachusetts Law
1. Massachusetts Framework for Enforcing Arbitration
Massachusetts courts generally employ a two-step analysis to determine the enforceability of arbitration agreements.29 Kauders v. Uber Techs., Inc., 159 N.E.3d 1033, 1049 (Mass. 2021). The first step is the notice requirement, which mandates that the party accepting an arbitration agreement must have had reasonable notice of its terms.30Id. In the absence of actual notice, courts examine the totality of the circumstances to assess whether constructive notice was provided.31Archer v. Grubhub, Inc., 190 N.E.3d 1024, 1033 (Mass. 2022); see generally Cornell Law School, Constructive Notice, Legal Info. Inst., perma.cc/CL4L-GJZW (last visited Sept. 30, 2025) (defining constructive notice as “the legal fiction that someone actually received notice . . . whether or not they truly did” and that constructive notice “arises by presumption of law from the existence of facts and circumstances”). The second step requires reasonable assent.32 Kauders, 159 N.E.3d at 1049. This can take many forms, including clicking a box on a phone or computer screen to indicate assent.33Id. at 1050. If a party is required to click a box of agreement, their failure to read the agreement in its entirety does not make the arbitration clause unenforceable.34 Archer, 190 N.E.3d at 1034; see 47 Paul Finn Et Al., Mediation And Arbitration § 10:3 (2024–2025 ed. 2024).
2. Clickwrap and Browsewrap Agreements in Online Contracts
Clickwrap and browsewrap agreements are the digital-age equivalents of adhesion contracts, as they are presented to online users on a take-it-or-leave-it basis with no opportunity to negotiate the terms.35 See generally Cornell Law School, Adhesion Contract (Contract of Adhesion), Legal Info. Inst., perma.cc/JHP4-A7FU (last updated Dec. 2021) (defining adhesion contracts as when parties have “disproportionate bargaining power that the party of weaker bargaining power could not have negotiated for variations in the terms”); see Arbitration, supra note 10; Alderman, supra note 6, at 162. Specifically, clickwrap agreements require users to click an “agree” button before they are permitted to use the digital service.36See Arbitration, supra note 10. Clickwrap agreements are typically displayed using an in-app blocking pop-up screen.37Christopher Kelley, Old School “Wrap”: Exploring Traditional Contract Doctrine and Developing Law that Can Serve to Prevent Websites from Exploiting Online Consumer Data at 3 (2013), perma.cc/6VM8-H3C8. This in-app blocking pop-up screen appears when the app is initially opened or downloaded.38Good v. Uber Techs., Inc., 234 N.E.3d 262, 268 (Mass. 2024). The purpose of presenting the terms in this manner is to deny access to the app until the user indicates assent to its terms of use.39See A Bronx Tale: A New York State Trial Judge Calls Out New York State’s Long-Standing Heightened Standard of Proving the Making of an Agreement to Arbitrate, Hinshaw & Culberston LLP (Jan. 9, 2023), perma.cc/HND4-T4LP (highlighting that Uber’s in-app blocking pop-up screen limits user’s ability to continue using the app until the “Confirm” button is pressed). In contrast, browsewrap agreements disclose little notice of the service’s terms and conditions and do not require the user to indicate assent to access the service.40 Ian Ayres & Alan Schwartz, The No-Reading Problem in Consumer Contract Law, 66 Stan. L. Rev. 545, 548 (2014).
In Massachusetts, courts align the enforceability of clickwrap and browsewrap agreements with traditional contract principles, requiring satisfaction of all elements of contract formation.41 Kauders v. Uber Techs., Inc., 159 N.E.3d 1033, 1048 (Mass. 2021). Specifically, courts have emphasized that online agreements should be treated the same as other contracts regarding notice and assent.42Id. at 1048–49. The clarity and conspicuousness of how the arbitration clause is presented plays a significant role in their enforceability.43 See Cullinane v. Uber Techs., Inc., 893 F.3d 53, 61–62 (1st Cir. 2018). Therefore, when a clickwrap agreement is presented through an in-app blocking interface, the interface must clearly communicate the terms to users and require an unambiguous manifestation of assent.44 See Meyer v. Uber Techs., Inc., 868 F.3d 66, 75–76 (2d Cir. 2017). An interface clearly communicates terms of service when a hyperlink—displayed in a form typically understood to be a hyperlink—provides access to the terms.45Cullinane ,893 F.3d at 60 n.8 (defining a typical hyperlink to be “a string of text or a computer graphic that a user can ‘click’ . . . to open a new browser”). An unambiguous manifestation of assent is satisfied when the user clicks some form of “I agree.”46Kauders , 159 N.E.3d at 1050.
3. Kauders v. Uber Technologies
Prior to 2021, Uber’s registration process provided minimal disclosure of the arbitration clause within its terms of service.47 See id. at 1052. Users were required to complete registration without explicit attention to the arbitration agreement.48 See id.
Then in 2021, the SJC in Kauders v. Uber Technologies, considered the enforceability of Uber’s arbitration clause in its registration process.49 Id . at 1039 (discussing whether a user who had been denied service due to his disabilities had notice of Uber’s terms of use, binding him to arbitrate his claims with Uber). Notably, it evaluated whether Uber’s registration provided users with appropriate notice of the terms and conditions, and whether a reasonable user would have understood that they entered into a binding contract.50 Id. The Kauders Court concluded that a reasonable user would not have known they were entering into a binding contract and, therefore, could not give valid assent to its terms.51 Id. at 1054–55. The court emphasized three key points: Uber is for cheap, short-term transactions; the user did not have to select or scroll through the terms; and the interface at registration failed to solely focus on contract formation.52 Amici Curiae Brief for Massachusetts Academy of Trial Attorneys at 15, Good v. Uber Techs., Inc., 234 N.E.3d 262 (Mass. 2024) (No. SJC-13490) [hereinafter Mass. Trial Attorneys] (quoting the Kauders decision that “reasonable users may not understand that, by simply signing up for future ride services over the Internet, they have entered into a contractual relationship,” especially when payment information is required at the same time the contract is displayed). Following the holding in Kauders, Uber was required to improve how it presented its terms of use to consumers, which led to a pop-up interface informing all users, new and old, of the updated terms and conditions.53 See generally Massachusetts Supreme Judicial Court Reconsidering Uber’s Pop-Up Terms & Conditions, Mcglinchey (Mar. 1, 2024), perma.cc/UQQ7-EZZG (stating that Good is the first real test of the pop-up screen deriving from the 2021 decision in Kauders that required Uber to fix the way they presented terms of service). This pop-up interface ultimately led to the events of Good v. Uber Technologies.54 See generally id.
II. The Court’s Opinion
A. Facts and Procedural History
William Good began using Uber in August 2013, initially assenting to the terms of service in Uber’s registration process identified by Kauders.55 See generally id. See also Good v. Uber Techs., Inc., 234 N.E.3d 262, 268 (Mass. 2024). In 2021, Uber updated its terms of service to include an arbitration clause binding users to bring all future claims against Uber before an arbitrator.56 Good , 234 N.E.3d at 269, 271.
The interface presented a clickwrap contractual agreement displaying updated terms and conditions through a hyperlink and requiring users to indicate their assent by checking a box.57 Id. at 270. The box stated, “[b]y checking the box, I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice.”58Id. Users could not continue using the app until they checked the box.59 Id. at 281. However, users could check the box indicating their assent without clicking the hyperlink to view the terms of service.60 Id. at 275.
On April 25, 2021, Good opened the Uber app and encountered the pop-up screen with the updated terms of service.61 Id. at 268. The pop-up screen “d[id] not use the words ‘contract’ or ‘agreement’ to describe Uber’s terms of use.”62 Good , 234 N.E.3d at 268, 292 (depicting a visual of Uber’s interface). Good checked the required box and continued using the app without clicking the hyperlink to view the updated terms.63 Id. at 286. Five days later, Good requested a ride home from work using the Uber app and was picked up by a driver named Jonas Yohou.64 Id. at 268. This ride ended in a collision, rendering Good quadriplegic.65 Id.
Good filed claims against both Yohou and Uber in the Superior Court.66 Id. at 267. Uber argued that Good had agreed to its terms of service, which included an arbitration clause, and moved to compel arbitration.67 Id. at 267–68. Uber’s motion was denied in Superior Court, and the company appealed to the SJC.68 Good , 234 N.E.3d at 268.
B. Analysis and Holding
On appeal, the SJC held that Good entered into a binding contractual agreement with Uber, reversing the Superior Court’s decision and granting Uber’s motion to compel arbitration.69 Id. The SJC found that Uber provided reasonable notice of its updated terms of service and Good assented to the terms of the clickwrap agreement by checking the required box and continuing to request rides off Uber’s app.70 Id. at 267–68.
In its analysis, the SJC determined that online contract formation is subject to the same legal standards as written contracts—adequate notice of contract formation and reasonable assent to the terms.71 Id. The SJC first evaluated whether Uber provided adequate notice by examining the design of its app interface and presentation of the updated terms.72 See id. at 277–84. The Court found that Uber’s interface was sufficiently clear, indicating to a reasonable user they were entering into a binding contract and important terms and conditions were available via hyperlink.73 See id. at 277–78. While actual notice was lacking, the Court found that constructive notice of the arbitration clause was provided under the totality of the circumstances.74 Good , 234 N.E.3d at 275–80 (finding the totality of the circumstances satisfied when the design used a clipart picture of a contract and directed the user’s sole attention to agreeing to the contract before being able to use the app). The Court also emphasized that, while Uber did not require users to click the hyperlink to review the terms, Uber gave users a reasonable opportunity to do so.75 Id. at 284.
The SJC next considered whether Good reasonably assented to the updated terms.76 Id. at 286. Courts regularly enforce clickwrap agreements where users indicate assent by clicking a box, effectively communicating their understanding of the terms and conditions.77 Id. at 287. The SJC found that Good provided his reasonable assent to the terms when he checked the required box at the bottom of the interface and further indicated his assent by selecting the “confirm” button to continue using the app.78Id.
C. Dissenting Opinion
Justice Scott Kafker dissented, stressing that this case is in no way ordinary.79 Id. at 289–90 (Kafker, J., dissenting). Justice Kafker disagreed that Uber had provided reasonable notice.80 Good 234 N.E.3d at 289 (Kafker, J., dissenting). He reasoned the average user does not expect to give up their constitutional guarantees in “such a simple transaction.”81Id. at 290 (Kafker, J., dissenting). For the requirement of reasonable assent, he maintained that while users may be aware that they need to agree to Uber’s updated terms before utilizing the app, they are unaware of what is within the agreement.82Id. at 294 (Kafker, J., dissenting). Consequently, users cannot reasonably assent to an arbitration clause that they did not know existed within Uber’s updated terms of service.83See id. at 300 (Kafker, J., dissenting).
Analysis
III. The Court Failed to Recognize How Uber’s Unique Characteristics Render Notice of Its Arbitration Clause Unreasonable
A. Users Misunderstand Uber’s Role in Providing Transportation Services
In Good, the Court relied on a two-prong test for determining the validity of online contracts: (1) the agreement must provide reasonable notice of the terms; and (2) the consumer must take some action to unambiguously manifest assent.84 Id. at 274. However, the Court erred in finding that Uber provided Good with reasonable notice because it failed to consider how users perceive Uber’s role in providing transportation.85 See generally Lisa Goetz, 4 Reasons Why Riders Choose Uber, Investopedia, perma.cc/7AW8-2SB2 (last updated Sept. 6, 2024) (highlighting the key reason consumers use Uber is because it is a fast way to get a safe ride compared to other public transportation methods). Most consumers believe Uber is a ride-sharing service where they request a ride from Uber to a desired location.86 See generally id. Yet Uber identifies its main focus as giving everyone “technology that can help them move ahead” with the overarching goal of making movement accessible.87 About Us , Uber, perma.cc/AM98-6MEY (last visited Sept. 30, 2025). While it alludes to its overall purpose being transportation, Uber emphasizes that it is not a driving service; rather, Uber is the nexus connecting consumers to suppliers who can meet their demands in a quick and efficient way.88 Id. Uber’s self-description as a connector of suppliers and consumers, rather than as a transportation company, contributes to users’ misunderstanding of Uber’s responsibility for third-party drivers.89 See id.
Most available forms of information define Uber primarily as a transportation service, further widening the gap of misunderstanding.90 See Rahul Awati, What is Uber?, TechTarget (Sep. 13, 2024), https://perma.cc/3JEF-CKQM (stating that “Uber is a transportation and ride-sharing technology company that allows passengers to book rides and drivers.”); Uber –Request a Ride, Apple Store , perma.cc/46T4-J5FN (last visited Sept. 30, 2025) (describing the Uber app by saying, “[J]oin the millions of riders who trust Uber for their everyday travel needs.”); see generally A Guide for How to Use Uber, Uber, perma.cc/8G5C-3HXC (last visited Sept. 30, 2025) (informing consumers that “[T]he Uber app gives you the power to get where you want to go.”). A simple Google search asking “[w]hat is the function of Uber?” leads to Uber’s website that prompts users to enter a destination for a ride.91 A Guide for How to Use Uber, supra note 90. Furthermore, a subheading reads “[a] guide for how to use Uber” accompanied by a step-by-step description of how to use what appears to be the only service offered by Uber: a ride.92 A Guide for How to Use Uber, supra note 90 (describing the process to use Uber’s services as: “Create an account; Enter your destination; Meet your driver; Check your ride; Rate your trip.”). But see Ride with Uber, Uber, perma.cc/7MPM-5BGL (last visited Nov. 20, 2025) (including other services now offered by Uber including; courier, food, grocery, rental cars, and “reserve a car” options).
Consumers who download the Uber app, believing it to be a transportation company, are unaware that, while Uber facilitates rides, it assumes little responsibility for the drivers it connects users with or the risks a rider may encounter.93See Ariene Reis & Vikram Chand, Uber Drivers: Employees or Independent Contractors?, Kluwer Tax Blog (Apr. 3, 2020), perma.cc/DQM6-52E3. Therefore, the Court’s conclusion that Uber provided reasonable notice is flawed on its face because most users do not know how Uber operates and do not expect to discover Uber is not the service they downloaded its app to provide.94 Id. A message indicating “we have updated our terms” cannot rectify the initial misunderstanding or inform users that Uber is not a mere “taxi” company and its drivers are not employees.95 See generally Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 865 (9th Cir. 2022) (finding that “placing a hyperlink in a ‘prominent or conspicuous place’ may have no meaning or a different meaning to a large segment of the Internet-using public when accompanied by the phrase ‘terms of use’”).
B. The Interface Fails to Provide Reasonable Notice of an Arbitration Clause
The SJC should have considered the nature of clientele and obvious time constraints on those seeking Uber’s services.96 See generally How Surge Pricing Works, Uber, perma.cc/EGW5-R7KH (last visited Sept. 30, 2025) (showing that people in extreme weather and at later times of the night utilize Uber at a higher volume). Had it done so, the Court would have found that a clickwrap contractual agreement displayed through a pop-up screen when opening the app to request immediate transportation does not provide users with a meaningful opportunity to engage with the contract or negotiate its terms.97 See Cheryl B. Preston, “Please Note: You Have Waived Everything”: Can Notice Redeem Online Contracts?, 64 Am. U. L. Rev. 535, 552 (2015). Nor can it provide reasonable notice that users are relinquishing constitutional guarantees in the absence of legal understanding.98 See id. at 546–47.
The dissent points out that users go to the Uber app when they need convenient access to a ride and likely do not have enough time to read through the terms of service.99 See Good v. Uber Techs., Inc., 234 N.E.3d 262, 291–92 (Mass. 2024) (Kafker, J., dissenting). Specifically, Uber sees increased demand for transportation services in times of “bad weather, rush hour, and special events.”100 How Surge Pricing Works, supra note 96. Additionally, intoxicated or injured individuals use the app to safely reach their destinations.101 See Herman & Herman, P.L.L.C., New Study: Uber & Reducing Drunk Driving, Herman & Herman (Dec. 30, 2023), perma.cc/9QC7-ZFAL. The clickwrap agreement displayed immediately upon opening the app, when the user is in need of a ride, makes it more unlikely they will read through the terms.102 See Preston, supra note 97, at 546–47. Even if they were to read through the terms, it is unlikely they would be able to deny their assent while in the midst of needing immediate transportation. For the average person in urgent need of transportation, navigating the numerous loopholes in Uber’s terms is definitively impractical, particularly when users lack the means to fully read and comprehend the legalese of the agreement.103 See generally Preston, supra note 97, at 546–47 (explaining that a user who is literate, has a chance to read, and has an attorney present to ask questions cannot claim unconscionability).
Moreover, the small size of a smartphone screen diminishes the reasonable expectation that users can meaningfully engage with lengthy contractual provisions.104 See Raluca Budiu, Mobile User Experience: Limitations and Strengths, Nielsen Norman Grp. (Apr. 19, 2015), perma.cc/N6J8-VJPL. The Court ruled that a clip art image of a piece of paper and a cartoonish pencil sufficiently alerted users they were entering into an agreement, implying that they had constructive notice because they could access the contract via a hyperlink.105 Good v. Uber Techs., Inc., 234 N.E.3d 262, 279–80 (Mass. 2024). However, the interface does not state, “you are entering into a binding contract,” but merely suggests, “[w]e encourage you to read our updated terms in full.”106 Id. at 270. The interface lacks the urgency needed to inform users that they are contracting with a third party that Uber is not responsible for and effectively entering into an agreement to arbitrate potential claims against Uber for the misconduct of third parties.107 See id. at 296 (Kafker, J., dissenting). The Court erred in finding that a person can provide assent to a binding arbitration clause based on a passive suggestion to view updated terms accompanied by an informal clipart visual.108 See id. at 292 (Kafker, J., dissenting). Checking a box that states, “[b]y checking the box, I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice,” means little when the contract uses “scattered, weightless terms and design contracts that go unnoticed.”109 Preston, supra note 97, at 564.
Ultimately, Uber’s interface was insufficient to achieve informed assent of the user.110See Do We Actually Agree to These Terms and Conditions?, U.C. Berkeley’s Sch. Of Info. (July 9, 2021), perma.cc/2FUP-83XT [hereinafter Do We Actually Agree?] (arguing that pressing a button labeled “I Agree” is not informed consent because while terms of service do include all relevant information, it is “always too long to read…in a reasonable amount of time”). Updated terms and conditions for an average app user, like Good, does not mean they are aware constitutional guarantees are being waived.111 See Roseanna Sommers, What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, 19 (PLOS ONE 2024), perma.cc/5YQ5-GF59. If the interface explicitly told users they were giving up constitutional rights, they would be more likely to click the hyperlink.112 See generally Do We Actually Agree?, supra note 110 (finding that people do not view terms when they do not expect to find something detrimental to them). Had users been required to click on the hyperlink or informed by the interface that they were relinquishing constitutional rights, their assent to the arbitration clause would be more conscionable.113 See Preston, supra note 97, at 546.
C. Reasonable Notice Must Cater to the Wide Variety of Consumers Who Use Uber’s Services
The clientele of Uber is wide and far-reaching. It includes anyone with the ability to access Uber’s app or website who is in need of a service that Uber can provide.114 See generally id. The SJC failed to view the requirements for both reasonable notice and reasonable assent through a lens that considers how technological proficiency affects the ability of those presented with the agreement who may not know how to successfully operate the digital interface.115 Sara J. Czaja et al., Factors Predicting the Use of Technology: Findings from the Center for Research and Education on Aging and Technology Enhancement (CREATE), 21 Psych. & Aging 333, 334 (2006) (conducting a study that shows older adults have a more difficult time navigating current technologies as opposed to younger generations). In the digital age, technological proficiency must be addressed on an individual basis.116 Id. at 339. Technological advances create a deficit in the functionality of apps for differently situated people.117 See id. at 348 (finding a digital divide for minorities, older people, and those with lower educational levels). Therefore, the notice must be universally understood—not only for its word usage and general legal implications—but also for the way in which consumers know how to view the terms and conditions before they can reasonably indicate assent.118 See generally Do We Actually Agree?, supra note 110 (referencing a Boston College Law study that found terms of service for the top 500 websites uses terminology that even if users read through the terms, they would not be able to understand them).
Furthermore, the SJC narrowly focused on whether a user could be on notice of the arbitration clause hidden in the updated terms of service, rather than evaluating whether the majority of app users would be on notice of the arbitration clause presented in this manner.119 See generally Nancy S. Kim, Wrap Contracts: Foundations and Ramifications 1–2 (2023), https://perma.cc/2377-6HA3 (asserting that most people enter into online binding agreements without knowing it because they associate contracts with having to be “typed, dated, and signed by both parties”). This question does not require a law degree to answer; it is evident from everyday life experiences that nearly everyone encounters some form of terms of service, yet nine-out-of-ten consumers typically do not fully investigate what they are agreeing to before assenting to the terms.120 See Do We Actually Agree?, supra note 110 (finding that 99% of respondents never read all the way through the terms and conditions, evidenced by their consent to give permission to their moms to view their browsing history; giving up the name rights to their first-born child; and inviting a personal FBI agent to Christmas dinner for the next 10 years). The SJC noted that it was aware most people do not read the terms of use, which makes its holding at the very least questionable.121 See Good v. Uber Techs., Inc., 234 N.E.3d 262, 275 (Mass. 2024) (quoting Kauders v. Uber Techs., Inc., 159 N.E.3d 1033, 1052 (Mass. 2021)) (pointing to empirical studies showing that “most users of mobile applications ‘do not read the terms of use’”).
Simply put, users are everybody.122 See generally Blair, supra note 114 (reporting Uber’s diverse clientele). They are the elderly client who can’t drive anymore trying to reach a doctor’s appointment, the college student who turned twenty-one and is seeking a safe ride home after a night of drinking alcohol, and the city dweller who does not own a car and has no alternative way of reaching the suburbs other than by requesting a ride.123 See generally Regina R. Clewlow, Disruptive Transportation: The Adoption, Utilization, and Impacts of Ride Hailing in the United States, Transfers, Spring 2019, at 1, 6, perma.cc/5TA4-QZUM (pointing to ride-hailing services like Uber as a method for those previously unable to drive because of age or disability to get a ride); Herman & Herman, P.L.L.C., supra note 103. With this in mind, there is an increased demand for Uber and companies like Uber to ensure notice of their updated terms is reasonable within the context customers typically rely on the service.124 See Ellen Huet, Uber, Lyft Cars Arrive Much Faster Than Taxis, Study Says, Forbes (Sept. 8, 2014, 9:00 AM EDT), perma.cc/7G9R-K4UM; Do We Actually Agree?, supra note 110.
IV. The Court’s Decision Poses Significant Dangers to Consumers in the Digital Age
A. The Court Failed to Consider the Ethical Obligations of Corporations in the Digital Age
In the evolving digital world, corporations have an ethical responsibility to present transparent and fair contracts to consumers, especially when users often have little choice but to accept these terms.125 See generally Lara Lobschat et al., Corporate Digital Responsibility, 122 J. Of Bus. Rsch. 875, 876 (2021) (defining a framework to guide “organization’s operations with respect to the creation and operation of digital technology”). Uber’s contracts with drivers are comprehensive, demonstrating the company’s ability to draft clear agreements for those without legal training.126 See Good v. Uber Techs., Inc., 234 N.E.3d 262, 283 (Mass. 2024). However, when it comes to consumers, Uber has implemented vague terms and complicated interfaces, taking advantage of the trust users place in its platform.127 Gina Zapanta & Z.A. Lawyers California (@ginazapanta_ & @zalawyers), Instagram (Oct. 6, 2024) (stating that Uber takes advantage of the trust consumers put in them). The convenience and popularity of Uber foster a false sense of security among consumers who may not realize they are forfeiting constitutional rights when accepting these agreements.128 See id.
Companies like Uber know that consumers are less likely to read or fully understand the fine print.129 See generally Krishnapriya Agarwal, What is a Clickwrap Agreement: Steps + Best Practices + Examples, SpotDraft (July 10, 2023), perma.cc/B5RE-2A92. The SJC’s ruling in Kauders initially tried to fix this issue by requiring Uber to provide less ambiguous notice of terms and require more concrete actions to show consumer consent.130 See Kauders v. Uber Techs., Inc., 159 N.E.3d 1033, 1051 (Mass. 2021). The Kauders decision emphasized the need for reform in consumer protection, acknowledging that digital contracts must meet higher standards of transparency.131 See Letter from Thomas R. Murphy, Law Offs. of Thomas R. Murphy, LLC, & Jeffrey R. White, Senior Assoc. Gen. Counsel, Am. Ass’n for Justice, to Francis V. Kenneally, Clerk of Court, Supreme Judicial Court for the Commonwealth, Good v. Uber Technologies, Inc., SJC No. 13490, at 1 (Oct. 27, 2023), perma.cc/7XXM-WE6A [hereinafter Letter, Murphy & White]. Yet, the Good ruling reversed this momentum, signaling to other companies that minimal compliance with what constitutes reasonable notice and assent is sufficient.132 See generally Good v. Uber Techs., Inc., 234 N.E.3d 262, 289 (Mass. 2024). Consequently, companies are enabled to legally obscure terms in their contracts with consumers, thereby condoning deceitful practices.133 Letter, Murphy & White, supra note 132, at 2 (expressing concern that Uber has ignored the SJC’s instructions post-Kauders and is pursuing a strategy of “contract-by-trickery”). This kind of trend will have significant negative implications as more companies adopt digital agreements based on the SJC’s holding in Good. 134 See Letter, Murphy & White, supra note 132, at 2.
B. The SJC’s Ruling Encourages the Bare Minimum Across Industries Beyond Uber
The Good decision has broader implications for other companies operating in the digital space.135 See generally Mass. Trial Attorneys, supra note 51, at 36–37 (quoting Kenneth S. Abraham & J.W. Montgomery, The Lawlessness of Arbitration, 9 Conn. Ins. L.J. 355, 364 (2003)) (discussing their concerns that allowing companies to force unclear arbitration clauses allows them multiple “bites at the apple” and encourages “arguing and re-arguing meritless positions in successive litigations ‘without being bound by prior precedent’”). Uber is viewed as a trailblazer in the virtual transportation industry, and because of its success, other companies are likely to follow its lead.136 See Shakeel Khuhro, Uber: The Ride-Hailing Innovation—A Disruptive Platform, Medium (Sept. 13, 2023), https://perma.cc/DKW7-RF9K. Competitors like DoorDash, Lyft, and Grubhub operate similar platforms where users must agree to terms of service, each of which include an arbitration clause, through quick inconspicuous interactions.137 See Consumer Terms and Conditions, Doordash (July 15, 2025), perma.cc/Z2S8-YFRG; Lyft Terms of Service, Lyft, perma.cc/588Z-X64P (last updated Dec. 13, 2024); Terms of Use, Grubhub (Dec. 17, 2024), perma.cc/QS8S-5KJL.
When large companies who obscure important terms gain a competitive edge over those prioritizing transparency, a new marketable framework emerges that incentivizes consumer manipulation.138 See generally Mass. Trial Attorneys, supra note 52, at 41 (highlighting that sufficient notice of terms of use has the effect of “some consumers not proceeding with the service”). Allowing companies to legally rely on adhesion contracts that limit liability and avoid scrutiny promotes normalization of deceptive practices.139 See generally Mass. Trial Attorneys, supra note 52, at 41 (suggesting “‘[a]t the heart of’ Uber’s . . . pop-up design . . . ‘is a concern over lost sales.’” (quoting Colin P. Marks, Online Terms as In Terrorem Devices, 78 Md. L. Rev. 247, 259 (2019))). This situation puts ethical businesses at a disadvantage, as their efforts to ensure clarity and fairness may not appeal to consumers who would knowingly be waiving their rights in favor of convenience.140 See generally Mass. Trial Attorneys, supra note 52, at 39–40 (referencing a study where “[u]sers who were told . . . that the terms affected their legal rights spent almost twice as long reading the terms” and were more likely to deny their assent).
The debate surrounding arbitration clauses centers on the fact that they inherently take away constitutional rights and diminish fairness in the judicial process.141 Allie Reed, Uber’s Terms of Use Spark Online Contract Enforcement Debate, Bloomberg L. (Jan. 4, 2024, 10:05 AM EST), https://perma.cc/WCQ8-P6CK; see Katherine Stone & Alexander Colvin, The Arbitration Epidemic: Mandatory Arbitration Deprives Workers and Consumers of Their Rights 17–18 (Econ. Pol’y Inst., Briefing Paper No. 414, 2015). Additionally, consumer arbitration clauses pose an undeniable threat to the foundations of our common law when consumers must trust that the law is being upheld and modeled in their best interest while the same legal system is simultaneously precluding them from asserting their Seventh and Fourteenth constitutional rights.142 See Alderman, supra note 6, at 156. Therefore, enforcing arbitration clauses—especially in consumer and employment contracts—fosters a general mistrust in the legal system and places the defenseless public at a considerable disadvantage against powerful corporations.143 See Kim, supra note 120, at 4; Mandatory Arbitration Clauses Are Discriminatory and Unfair, Pub. Citizen, perma.cc/SRT6-WEHS (last visited Sept. 30, 2025). These clauses will almost always benefit corporations by allowing them to bypass traditional court procedures, which raises concerns about access to justice and the protection of individual rights.144 See Kim, supra note 120, at 5. As companies continue to prioritize profits over ethical obligations, consumers may find themselves increasingly unprotected in a system that rewards unreasonable notice and ill-informed assent based on technicalities.145 See Mass. Trial Attorneys, supra note 52, at 37–38.
Conclusion
Uber has transformed from a dependable solution for transportational needs into the Rumpelstiltskin146See generally Rumpelstiltskin, Encyclopedia Britannica, https://perma.cc/HP6Z-NDWY (last visited Sept. 30, 2025) (explaining Rumpelstiltskin is a character in a German fairy tale known for his deceit in making a contract). of the digital age, disguising a cunning trapdoor underneath the immense appeal of its convenience.147 See Kim, supra note 120, at 4. As a popular alternative to risky transportation, Uber now poses a new threat to constitutional guarantees with its hidden arbitration clause.148 See Alderman, supra note 6, at 156–57; Ryan Stygr (@Attorney Ryan), TikTok (Feb. 16, 2023), perma.cc/XPB4-C47B. William Good, a chef from Somerville, Massachusetts, represents countless individuals who rely on Uber for their daily transportation needs.149See Good v. Uber Techs., Inc., 234 N.E.3d 262, 268 (Mass. 2024). His experience is shared by many who have fallen victim to the confusing implications of Uber’s updated terms and conditions.150 See Forced Arbitration, supra note 3. The visual layout of these terms, combined with a lack of meaningful engagement, renders the agreement unreasonable from the outset. The SJC should have considered what the public knows about Uber as a company, how much the average user understands implications of arbitration agreements, and the typical behaviors people exhibit when using a convenient app for transportation.
The ruling in Good highlights the SJC’s failure to see the negative effects of its decision on industry standards. By overlooking these critical factors, the Court missed a vital opportunity to protect consumer rights and set a precedent for transparency in digital agreements. While some companies may provide slightly more transparency, the Good ruling signals that minimal effort is sufficient. This precedent encourages corporations to cut corners on transparency, confident that meeting the bare minimum legal requirement will shield them from judicial scrutiny. As a result, consumer protections will take a backseat, allowing companies to exploit the convenience of digital agreements to their advantage.
The SJC’s ruling in Good begs the question: If an unsuspecting man left quadriplegic cannot access justice due to an arbitration clause in his Uber agreement, what hope does the average person have against powerful corporations who adopt similar clauses?151 See generally Am. Ass’n. For Justice, The New Forced Arbitration—Even Worse Than the Old Forced Arbitration 5 (2023), perma.cc/PZL8-LVJ4 (describing the moving goalposts of forced arbitration that is not about efficiency or justice but “always will be about corporate immunity”). The SJC’s ruling in Good shifts the danger from the transportation method itself to the app’s fine print.152 See Wayne Lonstein, The Digital Oppression of Clickwrap and Browserwrap Arbitration Clauses, Forbes (July 24, 2023, 9:15 AM EDT), perma.cc/GGN6-SQCU; Danny Karon, @Your Lovable Lawyer, TikTok (Apr. 21, 2023), perma.cc/EB25-HMKR.
