This sort of thing makes my blood boil.
http://repository.uchastings.edu/cgi/viewcontent.cgi?article=2102&context=faculty_scholarship
It has seemed to some of us that the function of the modem doctrine of unconscionability during the early period of its case law development was twofold. First, when courts felt that existing rules of law were enabling merchants to impose on their customers contracts that were grossly unbalanced and inequitable–either because the effects of those contracts were not initially apparent or because the merchants’ raw economic power enabled them to do so-the courts could refuse to enforce those contracts on the ground of unconscionability. This is, of course, the “safety valve” referred to in the quotation above. Second, by producing and publishing opinions in which various problematic contracts and clauses were examined and condemned vocally and prominently, courts and individual judges could call to the attention of other actors in the legal system the existence of legal lacunae-gaps in existing law that failed to protect consumers against such overreaching. They could, in other words, “blow the whistle.” Of course the individuals affected may have benefitted from particular applications of the doctrine, but as commentators have pointed out, the use of individual lawsuits to develop a generally consumer-protective common law is by itself an inefficient and probably ultimately ineffective strategy. However, seen as a means of engaging other parts of the legal system and alerting them to problems in need of attention, the doctrine of unconscionability seems actually to have done in the 1960s and 1970s precisely what its proponents might have hoped: it helped to produce, at least for awhile, a legal climate in which the legislative, executive, and judicial branches with a more or less common voice sought to dispense a better brand of justice to consumers-not just to consumers of goods and services, but to consumers of the legal system itself. …
contract law as a judicially created component of our legal system might
be doomed to obsolescence by the mushrooming employment of arbitration clauses in adhesive contracts of all sorts. …
once again the ability of relatively powerless individuals to have unfettered access to their governmental institutions is being threatened by powerful interests who seek to deny that access, and who are supported by some of the very institutions by which those rights should be protected. But this time, instead of leading the fight to establish and protect individual rights, the Supreme Court has enlisted on the other side-on behalf of the credit card issuers and bank lenders, communications giants, powerful employers, and other drafters and enforcers of adhesion contracts, collectively the forces of what in this context one might fairly call “oppression and unfair surprise.”
This “whistle blowing” function that Knapp talks about is, by this point, just completely broken in our republic. Congress isn’t listening.
