Category Archives: Unconscionability and Unfair Terms

Elizabeth Brake, ‘Price gouging and the duty of easy rescue’

ABSTRACT What, if anything, is wrong with price gouging? Its defenders argue that it increases supply of scarce necessities; critics argue that it is exploitative, inequitable and vicious. In this paper, I argue for its moral wrongness and legal prohibition, without relying on charges of exploitation, inequity or poor character. What is fundamentally wrong with […]

Sylvester Udemezue, ‘A Critical Evaluation of Appropriateness of Duress and Undue Influence as Legal Safeguards Against Unconscionable Contracts’

ABSTRACT Duress and undue influence as equitable concepts in the Law of Contract permit an innocent party to withdraw from a subsisting contractual relationship on grounds that the innocent party was induced to accede to such contractual relationship, by reprehensible pressure on the part of the other party; in other words, that as a result […]

Paul Miller, ‘A Right For Retirement: Unconscionable Contracts, The Right (Not) to Associate, and Citizens United

ABSTRACT The article explores the consequences of the Citizens United through the lens of the equity doctrine of unconscionable contracts. This expands on the argument regarding shareholders’ Right of Association addressed in the Citizens United decision I create a hypothetical around the contracts used by companies that manage retirement funds. My argument is that a […]

Jonas-Sébastien Beaudry, ‘Disability and Contractual Expectations’

ABSTRACT This is a précis of the forthcoming book, The Disabled Contract: Severe Intellectual Disability, Justice and Morality. It examines how people with severe intellectual disabilities (PSID) fare within the social contract tradition. More specifically, it contends that even recent strategies that attempted to integrate disability within the realm of contractual justice and morality are […]

Babette Boliek, ‘Upgrading Unconscionability: A Common Law Ally for a Digital World’

ABSTRACT To work, go to school, shop and even to communicate with each other, Americans live by the terms of myriad tech company contracts. Indeed, any time someone presses the ‘I agree’ button that pops up on a website – the clicking of which is required to continue on – they have entered into such […]

Orly Lobel, ‘Boilerplate Collusion: Clause Aggregation, Antitrust Law and Contract Governance’

ABSTRACT Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This article exposes the ways that a contract is larger than the sum of its separate clauses and a set of […]

Francisco de Elizalde, ‘Control of Price Related Terms in Standard Form Contracts: Spain’

ABSTRACT The purpose of this paper is to analyse whether Private law could determine the fate of the Circular Economy. The article will first assess the legal relationship that the service creates between the supplier and the consumer. This relationship establishes a contractual bond in which the quality of performance is at stake. Next, the […]

‘Recent Scholarship: Eric Goldman, “The Law of Contracts in Memes”’

“Eric Goldman has posted on SSRN ‘The Crisis of Online Contracts (As Told in 10 Memes)’. The manner of presentation is charming. I hope it catches on, and I hope I can find enough relevant memes (or figure out how to make memes) to tell the American legal academy why we need Hans Kelsen’s positivist […]

Katz and Zamir, ‘Do People Like Mandatory Rules? The Choice between Disclosures, Defaults, and Mandatory Rules in Supplier-Customer Relationships’

ABSTRACT In recent years, numerous empirical studies have examined the prevailing attitudes toward nudges, but hardly any have examined the prevailing attitudes toward mandatory rules. To fill this gap, this article describes five studies (N=3,103) – mostly preregistered studies conducted with representative samples of the US population – which tested people’s attitudes toward mandatory rules […]

Chris Hunt, ‘Unconscionability In The Supreme Court Of Canada: Uber Technologies Inc v Heller

“The Canadian doctrine of unconscionability is notoriously uncertain. Until its decision in Uber Technologies Inc v Heller, 2020 S.C.C. 16 (‘Heller’), the Supreme Court of Canada had not pronounced authoritatively on the subject, leaving lower courts to develop a variety of different framework tests that operate inconsistently across the country (see C Hunt, ‘Unconscionability Three […]