I’ve discussed before my take on whether clickwrap and related agreements ought to be enforceable in The Libertarian View on Fine Print, Shrinkwrap, Clickwrap; see also The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld. (My 2004 Oxford University Press book Online Contract Formation addresses purely legal aspects of such questions.)
The Nevada District Court, where the cases were consolidated for pretrial proceedings, denied Zappos.com’s motion to compel arbitration. In doing so, the court distinguished between “browsewrap” and “clickwrap” (or “click through”) agreements. A browsewrap agreement is one in which a website owner seeks to bind website users to terms and conditions by posting the terms somewhere on the website, usually accessible through a hyperlink located somewhere on the website. A clickwrap agreement requires users to affirmatively manifest asset to the terms, for example by clicking an “I ACCEPT” button.