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Unconscionability in contracts: a new test




Aaronson, Michael Louis, author
McShane, Katie, advisor
Kneller, Jane, committee member
Gill, Ann, committee member

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The goal of this thesis is to answer a number of unresolved, fundamental legal and moral questions about contracts. Answering these important questions will require a broad legal, applied ethical, and normative ethical analysis of historical and contemporary case law, statutory law, and legal literature. The end result will be a unified theory of unconscionability: it will capture the intent of contemporary statutory law, provide a test that consistently yields judgments of unconscionability where it ought to do so, and include plausible, well-developed normative ethical justification for the judgments yielded by the test. In Chapter 1 there will be a brief presentation of the legal historical context. We will have a look at unconscionability in statutory law, case law, and the legal literature of the previous era of unconscionability law and find that there has for a long time been broad, fundamental disagreement about the nature of unconscionability itself, and more recently, equally serious disagreement about how contemporary statutory legal attempts to define unconscionability should be interpreted and applied. In Chapter 2, we will examine and critique two contemporary attempts at legal and moral analysis of extant case and statutory law. In Chapter 3, I will take a stand on the issues discussed throughout the first two chapters, proposing a general theory of unconscionability and a two-pronged test for identifying unconscionability in contracts. The theory will capture the intent of contemporary statutory unconscionability law, explain and solve the difficulties that led to broad inconsistency in the case law we saw in Chapter 2, and lead us to a plausible test. Chapter 4 will present the normative theory that undergirds and unites both prongs of the test proposed in Chapter 3. The goal is to show how my theory of unconscionability is explained and justified within moral theory more broadly.


2013 Summer.
Includes bibliographical references.

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