Embracing Unconscionability's Safety Net Function
University of Colorado Law School
September 19, 2008
Alabama Law Review, Vol. 58, No. 73, 2006-2007
U of Colorado Law Legal Studies Research Paper No. 08-24
Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it provides a flexible safety net for catching contractual unfairness that slips by formulaic contract defenses.
Number of Pages in PDF File: 47
Keywords: unconscionability, formalism, contractual unfairness, contract, consumer, dispute resolution, consumer law, commercial law, arbitration
JEL Classification: K12, K41Accepted Paper Series
Date posted: September 21, 2008
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