Coping with the Death of the Bargain Without
Burying the Spirit of the Law: A “Foundational”
Approach to Comparative Law and Its Application to
Adhesion Contracts in Louisiana
TABLE OF CONTENTS
Introduction ................................................................................. 1278
I. Identifying the Legal Problem: The Death of the Bargain in
Consumer Contracts .................................................................... 1284
A. The Proliferation of Adhesion Contracts ............................. 1285
B. The Primary Concern with Legal Developments ................. 1289
C. The Legal Problem of Adhesion Contracts .......................... 1290
1. The Role of the Bargain................................................. 1292
2. The Death of the Bargain in Consumer Contracts ......... 1294
3. The Significance of the Legal Problem ......................... 1296
II. A Proposed Solution to the Legal Problem: The Doctrine of
Unconscionability ....................................................................... 1299
A. The Doctrine of Unconscionability in the Common Law .... 1299
1. The Uniform Commercial Code Section 2-302 ............. 1300
2. The Application of the Doctrine of
Unconscionability .......................................................... 1301
3. The Guiding Principles of the Doctrine of
Unconscionability .......................................................... 1302
B. The Unconscionability Debate in Louisiana’s Civil
Law System .......................................................................... 1304
III. Testing the Coherency of Proposed Solutions: The
Foundational Method .................................................................. 1306
A. The Basics of Social Contract Theory ................................. 1309
1. The State of Nature ........................................................ 1310
2. The Social Contract ....................................................... 1310
3. Perspectives on the Social Contract ............................... 1311
B. Application of the Foundational Method to the
Common Law ....................................................................... 1313
1. A Philosophical Foundation of the Common Law
Legal System ................................................................. 1313
2. General Principles of the Common Law ....................... 1316
3. The Connection Between the Common Law Legal
System and the Means-Focused Perspective ................. 1318
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4. The Coherency of the Doctrine of Unconscionability
with the Common Law Legal System ........................... 1320
C. Application of the Foundational Method to the Civil Law .. 1321
1. A Philosophical Foundation of the Civil Law Legal
System ........................................................................... 1322
2. General Principles of the Civil Law .............................. 1325
3. The Connection Between the Civil Law Legal
System and the Ends-Focused Perspective .................... 1326
4. The Coherency of the Doctrine of Unconscionability
with Louisiana’s Civil Law Legal System..................... 1329
IV. Secondary Inquiry: A Civilian Answer to Adhesion
Contracts ..................................................................................... 1330
A. The Proposed Solution: The Cause Element ........................ 1330
1. The Development of Cause ........................................... 1331
2. The Use of Cause in Louisiana ...................................... 1333
3. The Broader Guiding Principles of Cause ..................... 1334
B. Application of the Foundational Method ............................. 1335
C. The Doctrine of Unsociability .............................................. 1336
Conclusion .................................................................................. 1337
INTRODUCTION
As the Huns rampaged across the Eurasian Steppe,1 Gothic tribes
amassed along the eastern bank of the Danube River, hoping to obtain
passage to and protection from the Roman Empire.2 Asylum was granted,
but the sanctuary soon became a hellish prison as famine inundated the
settlements.3 In this time of desperation, it is believed that Gothic parents’
only option to avoid starvation was to barter their children for dog meat.4
The fact that Roman officials participated in and enforced these
“agreements” only added to the hopelessness of the humanitarian tragedy.5
Copyright 2016, by PARKER SMITH.
1. See generally Peter Heather, The Huns and the End of the Roman Empire
in Western Europe, ENG. HIST. REV., Feb. 1995, at 4–41 (discussing the activity
of the Huns in the fourth and fifth centuries as well as the impact of the resulting
barbarian migrations and invasions on the Western Roman Empire).
2. Id. at 5.
3. See HERWIG WOLFRAM, HISTORY OF THE GOTHS 119 (Thomas J. Dunlap
trans., Univ. Cal. Press 1998).
4. See MIC HAEL KULIKOWSKI, ROME’S GOTHIC WARS 130–31 (2007).
5. See id.
2016] COMMENT 1279
Discontent among the Gothic people could not be contained, and the Empire
soon had its first taste of the barbarian uprisings that would one day re-
shape the political order of Western Europe.6
Such “agreements” are shocking—if not utterly repulsive—to the
Western world today, and thus slavery as a legal institution is explicitly
outlawed.7 But slavery is only one—albeit a most extreme—example of
agreements that shock the conscience,8 and even legally enforceable
agreements can invoke moral condemnation. Modern contempt for
agreements that trade fundamental rights for basic necessities runs deeper
than the letter of the law. Society is concerned not only with adherence to
the law as it is written or the competence of the law to address today’s
problems, but, more fundamentally, the legitimacy of the law itself.
Like the Roman enforcement of slave contracts, the proliferation of
certain agreements today can have profound consequences for a legal
system’s legitimacy. Although these consequences may arouse narrow
policy concerns—such as economic efficiency, individual autonomy,
fairness, social stability, and political pragmatism—more fundamental
problems can arise. Most notably, the legal problems associated with
certain agreements not only call into question the legitimacy of their
enforcement but, more importantly, the legitimacy of the governing
authority that does the enforcement. In this sense, the Gothic plight
illustrates an important lesson for government that was later expressed by
the social contract theorists.
As social contract theorists emphasize, “[t]here will always be a great
difference between subduing a multitude and ruling a society.”9 The key
point to this lesson is that force alone cannot bring about a duty, at least in
any meaningful sense of the word.10 Instead, as social contract theorists
6. See Heather, supra note 1, at 41.
7. See, e.g., U.S. CONST. amen d. XIII (“Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.”).
8. See Larry A. DiMatteo, Equity’s Modification of Contract: An Analysis
of the Twentieth Century’s Equitable Reformation of Contract Law, 33 NEW ENG.
L. REV. 265, 290 (1999).
9. JEAN-JACQUES ROUSSEAU, ON THE SOCIAL CONTR ACT, in THE BASIC
POLITICAL WRITINGS 147 (Donald A. Cress trans., Hackett Publ’g Co. 1987)
(1762).
10. See id. at 143 (“Let us suppose for a moment that there is such a thing as
this alleged right [of the strongest]. I maintain that all that results from it is an
inexplicable mish-mash. For once force produces the right, the effect changes
places with the cause. . . . As soon as one can disobey with impunity, one can do
so legitimately . . . .”).