Category Archives: Unconscionability

Paul Skowron, ‘The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales’

Abstract Judges in England and Wales tell three apparently contradictory stories about the relationship between autonomy and mental capacity. Sometimes, capacity is autonomy’s gatekeeper: those with capacity are autonomous, but those without capacity are not. Sometimes, capacity is necessary for autonomy but insufficient; for voluntariness, freedom from undue external influences is also required. Finally, sometimes […]

Matthew Marinett, ‘Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract’

Abstract This article puts forward a unifying principle for the exceptions to contractual enforcement, including unconscionability, undue influence, duress, and mistake. In coming to a unified analysis, this article explains and defends three general premises. First, contract law should be understood as operating to maximize societal welfare in the aggregate. Second, contractual enforcement encourages and […]

Renata Grossi, ‘Love as a Disadvantage in Law’

Abstract Love is not often the explicit subject of legal discussion but when it is, it appears as a negative phenomenon that leads us to make bad decisions. This view of love is amplified in the context of commercial and economic transactions, where love, intimacy, and economic exchange are seen as operating under opposing principles. […]

Michael Oswalt, ‘The Content of Coercion’

Abstract This article is about a new approach to one of the law’s most basic questions: what is coercion? Under its traditional framing, coercion is about transactions. One person makes an offer to another person, who, under the circumstances, has no realistic option but to say ‘yes’. But that conception has not helped courts articulate […]

‘Why Trump Likely Won’t Collect the $20 Million He Claims Stormy Daniels Owes Him – Five law professors weigh in’

“For the past couple of months, salacious details about the alleged decade-old dalliances between Donald Trump and adult film performer Stormy Daniels have slowly dripped out …” (more) [Jennifer Taub, Slate, 20 March]

Marcus Moore, ‘Why does Lord Denning’s lead balloon intrigue us still? The prospects of finding a unifying principle for duress, undue influence and unconscionability’

Introduction “Recently, a workshop in contract law held at the University of Oxford caused me to recall the sense I had some years ago, when I first came across duress, undue influence, and unconscionability in first-year Contract, that these doctrines had much in common despite their described differences. That point, of course, had been recognised […]

CSECL Summer School 2018: ‘Private Law and Vulnerability’, University of Amsterdam, 2-5 July 2018

“The 2018 CSECL International Summer School will provide a cross-disciplinary exploration of the relationships between vulnerability and private law. The focus will be on private law both as a cause of and as a (possible) solution to the problem of vulnerability. The vulnerability of particular groups and individuals, in particular in relation to growing power […]

PG Turner, ‘Lex Sequitur Equitatem: Fusion and the Penalty Doctrine’

Abstract Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law […]

‘“You Are Asking Me About Reading Things I Never Had to Read ”: Consumer Contracting in Historical Context’

Anne Fleming, The Rise and Fall of Unconscionability as the ‘Law of the Poor’, 102 Georgetown Law Journal 1383 (2014). Who is best suited to police unfair terms – the market, the judiciary, or the legislature? Williams vs Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian […]

Guido Smorto, ‘Protecting the Weaker Parties in the Platform Economy’

Abstract Known by many names – platform, sharing, peer-to-peer (p2p), collaborative economy, and so on – entirely new business models have emerged in recent years, whereby online platforms use digital technologies to connect distinct groups of users in order to facilitate transactions for the exchange of assets and services. This dramatic shift in business organisation […]