Giving Unconscionability More Muscle: Attorney’s Fees As a Remedy for Contractual Overreaching
58 Pages Posted: 17 Mar 2010 Last revised: 28 Apr 2010
Date Written: March 16, 2010
This Article seeks to broaden the conversation about unconscionability. While most of the discussion has focused on the appropriate standard for determining unconscionability, this Article focuses on the appropriate remedy to be imposed when unconscionability is found. The current remedy for unconscionability is non-enforcement or limited enforcement of unconscionable contracts or contract terms. This remedy is inadequate and seriously undermines unconscionability’s effectiveness as a tool for policing against contractual overreaching. The Article proposes that courts be given discretion to award attorney’s fees to consumers who successfully establish the unconscionability of a standard form contract. Such a remedy would enable unconscionability to meet the challenges posed by standard form contracts and would be fully consistent with unconscionability’s nature and history.
Keywords: unconscionability, contracts, standard form contracts, attorney's fees
JEL Classification: K12
Suggested Citation: Suggested Citation