Embracing Unconscionability's Safety Net Function

Abstract

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.

Keywords: unconscionability, formalism, contractual unfairness, contract, consumer, dispute resolution, consumer law, commercial law, arbitration

JEL Classification: K12, K41