Monday, September 19, 2005
Marrow, Paul Bennett, "Squeezing Subjectivity from the Doctrine of Unconscionability," Cleveland State Law Review, Vol. 53, p. 187, 2005 http://ssrn.com/abstract=801426
This article proposes that unconscionability determinations be based upon the impact of a suspect term on third parties.
Those indirectly impacted should be the chief concern.
Accordingly, a term is unconscionable only if:
1. With respect to any contract
a. The term undermines the integrity of the contracting system itself, or
b. The term undermines the integrity of any statutory scheme granting to the court the power to review agreements allowed by the statutory scheme.
2. With respect to matrimonial agreements
a. The operation of the term appears likely to result in any party to the agreement seeking public assistance, or
b. The term interferes with the ability of a party to seek reform to avoid having to seek public assistance, or
c. Adversely impacts the interests of children of the marriage.
In addition, this article reconsiders what "substantive" and "procedural" describe.