Viewing Unconscionability through a Market Lens
Social Science Research Network
This Article calls for a move to a new phase in courts' attitudes toward consumer contracts. Currently, courts applying the unconscionability doctrine to consumer contracts focus on the characteristics of the parties and the transaction. We suggest that rather than examining each consumer contract in isolation, courts should inquire whether there is competition, or potential competition, over contracts in the supplier's market. As we show, competition over contracts is different from
... over products or services. In order to assess the degree of competition, or potential competition, over contracts, courts should look at the particular features of the supplier's market identified in this Article, as well as examine the potential strategic interaction among competitors. We argue that when competition, or the threat of such competition, over consumer contracts is sufficiently strong, these contracts should be deemed efficient and fair, and courts should not strike down clauses incorporated into such contracts. Interestingly, and counterintuitively, this conclusion holds even when consumers are uninformed.