Squeezing Subjectivity from the Doctrine of Unconscionability

Issues of unconscionability are most often encountered in two arenas: commercial agreements and family law agreements. In the first arena this Article proposes that the analysis should focus on the impact of a suspect term on the integrity of the contracting system or to an enabling statute. If a contract term materially undermines or compromises the integrity of the system for contracting or the integrity of an enabling statute, it should be found unconscionable. In the family law arena things differ because of the substance of the relationships involved and because the need for mutual consideration is de-emphasized. Accordingly, in this arena there are additional criteria. If the term has a materially adverse impact on the state as the default provider of public assistance, or if the term interferes with the ability of a party to seek reform to avoid having to petition for public assistance, or if the term adversely impacts the interests of children of the marriage, it should also be deemed unconscionable. ... Part II of this Article examines in detail the proposition that unconscionability refers solely to the degradation of the integrity of the contracting process as applicable to the commercial arena. Part III examines the issue within the context of family law