At least in theory, mutual assent remains a cornerstone of contract law and thus of arbitration.  The tricky part has become understanding what counts as mutual assent in a world where overwhelming empirical evidence, not to mention our own lived experience, demonstrates that no one reads standardized terms and conditions, including arbitration provisions buried in

In a fascinating decision, the Second Circuit has ruled that an internet merchant cannot compel arbitration with a consumer, when it only emailed the consumer the arbitration agreement after the consumer agreed to the purchase, without any requirement that the consumer affirmatively assent to the term.

In Schnabel v. Trilegiant Corp., __ F.3d __,