A Contractarian Approach to Unconscionability

In this paper I discuss two nonpaternalistic defenses of the doctrine of unconscionability in contract law. The first approach, proposed by Seana Shiffrin, relies on the moral ban to collaborate with other agents' immoral plans. Because this prohibition falls also on the judge, she must refrain from enforcing unfair or exploitative contracts. The second approach regards the unconscionability doctrine as one limitation on freedom of contract that rational contractors would choose in the course of adopting the fundamental terms of social cooperation.

I assess the implications and merits of the two approaches. 'The contractarian approach is capable of justifying procedural unconscionability, but not substantive unconscionability. I maintain that this implication accords better with the conception of individual rights as freely alienable rights, which is central to individual autonomy in contractual settings.