Finding Room for Fairness in Formalism - The Sliding Scale Approach to Unconscionability

Abstract

This Article evaluates the sliding scale approach to unconscionability, defends its use, and advocates for its continued and expanded application to consumer standard form contracts. Part I describes the sliding scale approach and its recent popularity in state courts, thereby filling a gap in the scholarly doctrine, which has to date failed to fully examine this trend. Parts II and III defend the sliding scale approach, praising its potential to align the unconscionability analysis with interdisciplinary research regarding consumer behavior and to balance formalist concerns about judicial regulation of unfair terms in standard form contracts. Finally, Part IV calls for calibrations to the sliding scale approach and its application to standardized forms that will ensure its success as a protective device for consumers.

Keywords: unconscionability, sliding scale, standard form contract, fairness, formalism