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

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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 . . . .”).