Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts
Much scholarship questioning the enforcement of standard form contract terms offers interesting insights into possible approaches a court can take in analyzing the issue, but the literature largely fails to examine what courts actually do in these cases. This Article identifies the gap between what scholars are saying about standard form contracts and what courts are doing about them. It notes that courts have not accepted the scholarship that urges a nontraditional approach to analyzing assent. Rather-with but a few exceptions—what has emerged is a case-by-case unconscionability analysis in which courts focus narrowly on particular terms and conditions in standard form contract cases, and refuse to enforce only a limited number of provisions in a limited number of cases.
Edith R. Warkentine, Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts, 31 SEATTLE U. L. REV. 469 (2008).