Document Type

Article

Publication Title

Harvard Civil Rights-Civil Liberties Law Review

Abstract

In Part I, I attribute the cyclical reappearance of contracts imposing unfair terms on economically weaker parties to our failure to confront a radical disconnect in our contracts jurisprudence. On the one hand, the notion of “consent” remains the principal moral justification for deploying state power to enforce privately minted contractual norms. On the other hand, genuine consent is lacking in most contracts of adhesion, either because the provision in question was buried in the fine print, or because the weaker party lacked the ability to bargain over it, or both. I explore the anomaly of invoking a fictive consent to justify the enforcement of nonconsensual contracts in three doctrinal settings: (1) the rise and decline of Lochner; (2) the brief reign of Shelley v. Kraemer; and (3) the contested status of modern unconscionability doctrine. I conclude that, despite powerful dictum during the Lochner years, courts have failed to confront the anomaly head on, relying on legal doctrines that enable the legislature (and an occasional common law judge) to mitigate the immediate consequences of allowing the strong to dictate the terms of judicially enforceable contracts in particular contexts, but do little to prevent the strong from imposing unfair contracts elsewhere. In Part II, I briefly review the emergence of the FAA as a potent device allowing economically dominant contracting parties to shunt the enforcement of post-Lochner rights into structurally flawed arbitration fora. I argue that to the extent the FAA compels state and federal judges to enforce unfairly imposed contractual waivers of the capacity to invoke generally available techniques of aggregate dispute resolution, the FAA constitutes state action abridging the weaker party’s First Amendment right to associate with others in the search for justice.

First Page

183

Volume

50

Publication Date

2015

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