Julian Jonker (University of Pennsylvania)

Unconscionability, Vulnerability, and Autonomy

7 December 2020 | 12:00 EST | 17:00 BST

Contract law’s doctrine of unconscionability is difficult to reconcile with a view of contract as autonomy-enhancing. The ability of a court to withhold contract enforcement seems at odds with respect for the choices of the contracting parties, and gives rise to the charge of paternalism. Indeed, unconscionability is typically defended as an external constraint upon contract that relies upon some value other than autonomy. This is in part because the moral charge of exploitation that underwrites most unconscionability claims is not well understood. I advance a proceduralist account of exploitation that explains the procedural emphasis of unconscionability doctrine. This proceduralist account does not implausibly claim that exploitation undermines consent or voluntariness, but does focus on the way in which the plaintiff’s options are narrowed before or during bargaining. In so doing, the account vindicates unconscionability doctrine as a natural part of an autonomy-enhancing contract law.

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