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

• Author: Parker Smith
• Position: J.D./D.C.L., 2016, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1277-1337

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 1278 LOUISIANA LAW REVIEW [Vol. 76 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 MICHAEL 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. amend. 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 CONTRACT, 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 . . . .”). 1280 LOUISIANA LAW REVIEW [Vol. 76 claim, all legitimate authority is derived from the sincere consent of the governed. 11 This idea is applicable to the relations between a people and its government as well as the relations among the people themselves. 12 Consent has been seen as an essential feature of contractual obligations since the time of the Romans. 13 Although the nature of consent is debated, it remains central to modern contract theory. 14 The importance of consent to modern contract theory can be problematic because it is often difficult to determine whether a person has in fact consented to an agreement through her actions, which may be misleading for a number of reasons. Thus, legal systems must grapple with the challenge of ensuring the reliability of the objective manifestation of consent if consent is to remain a realistic foundation of contract law. The bargain has been seen historically as a safeguard to the reliability of the objective manifestation of consent; 15 however, many recognize that today most consumer contracts do not involve anything that resembles a meaningful bargain. 16 Instead, they are “adhesion contracts” that are “standard form printed contracts prepared by one party and submitted to the other on a ‘take it or leave it’ basis.” 17 These contracts are ubiquitous in the modern life of a consumer, who often inadvertently manifests consent to be bound by extremely onerous terms with the mere click of the mouse or stroke of the pen. A question thus arises: how should legal systems cope with the death of the bargain as the traditional indicia of reliability for the objective manifestation of mutual assent? Although common law jurisdictions have developed the doctrine of unconscionability to answer this question, 18 Louisiana’s civil law has yet to develop a systematic way of addressing the concerns surrounding adhesion 11. See id. at 144–45; JOHN LOCKE, TWO TREATISES OF GOVERNMENT, in TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION 154–55 (Ian Shapiro ed., Yale Univ. Press 2003) (1690). 12. The lack of sincere consent in the arrangement suggests slavery—like tyranny—is inherently illegitimate. See ROUSSEAU...