Giving unconscionability some muscle

The doctrine of contract unconscionability was designed to be the contract law version of the Lone Ranger (left).  The Lone Ranger, you remember, used to ride about the country like a knight-errant, battling unfairness, injustice, and overreaching wherever he found them, even in situations where ordinary law enforcement was helpless.  Like the Lone Ranger, the doctrine of unconscionability was developed to help courts to battle unfairness, injustice, and overreaching in situations where ordinary contract doctrines (such as lack of consideration) were helpless.

Over the years, however, the doctrine has proved much less fierce than originally advertised.  In practice it has been less like Sir George going after the dragon than like Monty Python’s Brave Sir Robin.  Even in the area of standard-form contracts, where we would suspect the greatest likelihood of overreaching, it has been the rare case when the doctrine has been successfully invoked.

Widener-Delaware’s Stephen Friedman (right) would like to see the doctrine strengthened.  In a new paper, Giving Unconscionability More Muscle: Attorney’s Fees As a Remedy for Contractual Overreaching, forthcoming in theGeorgia Law Review, he has a suggestion that should be popular with lawyers who litigate on behalf of consumers.  Here’s the abstract:

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.

FGS