Paternalism, Unconscionability Doctrine, and Accommodation
Philosophy of Law, (edited by Joel Feinberg and Jules Coleman, Wadsworth/Thompson Learning, 2003, 2007)
29 Philosophy & Public Affairs 205-51 (2000)
47 Pages Posted: 30 Oct 2015
Date Written: 2003
The unconscionability doctrine in contract law enables a court to decline to enforce a contract whose terms are seriously one-sided, exploitative, or otherwise manifestly unfair. It is often criticized for being paternalist. The essay argues that the characterization of unconscionability doctrine as paternalist reflects common but misleading thought about paternalism and obscures more important issues about autonomy and social connection. The defense responds to another criticism: that unconscionability doctrine is an inappropriate, because economically inefficient, egalitarian tool. The final part discusses more interesting but neglected questions about the scope of accommodation necessary to support fully meaningful autonomous activity.
Keywords: contract law, inequitable contracts, paternalist doctrines and policies
Suggested Citation: Suggested Citation