But I do not want to dwell on such minor quarrels, because, as I have already made clear, I agree with Waddams' central theme, namely, the complexity of private law and the general failure of categorization. In the rest of this essay, I first set forth and expand upon but one of Waddams' many examples to illustrate his thesis. Then i briefly discuss some questions that Dimensions of private Law inspires: (1) In light of its inadequacies, what accounts for the popularity of conceptualizing private law?(2)What are the ramifications of the reality that private law is complex and multidimensional? (3)What new approaches to the study of decision making may shed light on the judicial process when judges confront multidimensional problems? An Example of Private Law,s Many Dimensions Waddams is careful never to claim that every case is complex. Rather, his strategy is to demonstrate that courts utilize a combination of concepts, principles, and policies to resolve many cases in so many different contexts that the reader cannot help but distrust any map of private law 20 In this section, I shall look at one example, to illustrate what Waddams shows over and over again. Because of the breadth of Dimensions of Private Law, Waddams does not spend much time on the problem of judicial policing of contracts for unfairness 21 Nevertheless, it is an excellent example of the complexity and many dimensions of private law Categories have"failed to account for many actual judicial decisions .. "Id at vi [ COurts, in attempting to accommodate 'life in all its untidy complexity, have in many cases not derived their conclusions from pre-existing conceptual schemes or maps. Id. at 3. The preceding chapters have drawn attention to a number of issues the resolution of which has not conformed to simple accounts of private law.. [S]uch cases have been neither infrequent, nor, from the point of view of the parties or of the public, insignificant. " Id at 223 21 See id at 164
5 But I do not want to dwell on such minor quarrels, because, as I have already made clear, I agree with Waddams' central theme, namely, the complexity of private law and the general failure of categorization. In the rest of this essay, I first set forth and expand upon but one of Waddams' many examples to illustrate his thesis. Then I briefly discuss some questions that Dimensions of Private Law inspires: (1) In light of its inadequacies, what accounts for the popularity of conceptualizing private law? (2) What are the ramifications of the reality that private law is complex and multidimensional? (3) What new approaches to the study of decision making may shed light on the judicial process when judges confront multidimensional problems? I. An Example of Private Law's Many Dimensions Waddams is careful never to claim that every case is complex.19 Rather, his strategy is to demonstrate that courts utilize a combination of concepts, principles, and policies to resolve so many cases in so many different contexts that the reader cannot help but distrust any map of private law.20 In this section, I shall look at one example, to illustrate what Waddams shows over and over again. Because of the breadth of Dimensions of Private Law, Waddams does not spend much time on the problem of judicial policing of contracts for unfairness.21 Nevertheless, it is an excellent example of the complexity and many dimensions of private law. 19 Categories have "failed to account for many actual judicial decisions . . . ." Id. at vi. 20 [C]ourts, in attempting to accommodate 'life in all its untidy complexity,' have in many cases not derived their conclusions from pre-existing conceptual schemes or maps." Id. at 3. "The preceding chapters have drawn attention to a number of issues the resolution of which has not conformed to simple accounts of private law. . . . [S]uch cases have been neither infrequent, nor, from the point of view of the parties or of the public, insignificant." Id. at 223. 21 See id. at 164
Waddams sees a combination of wrongdoing, consent, unjust enrichment, and policy at work in policing cases. I agree. Take for example judicial application of the unconscionability doctrine. As analysts have long pointed out, courts applying the principle examine the bargaining process to determine whether there has been any""procedural unconscionability, and they evaluate the adequacy of the exchange to determine whether it is" substantively unconscionable rocedural unconscionability constitutes wrongdoing by a party in many possible forms For example, a party's conduct may resemble(or satisfy the elements of) duress, fraud, or undue influence. In addition, a party's wrongdoing may involve hiding terms or drafting terms that it knows the other party cannot understand. But wrongdoing is not all that is going on in procedural unconscionability cases. They also involve the quality of a partys consent. Courts have little difficulty concluding that a party has not consented to a hidden or unclear term or to one that is the product of fraud or duress, or even conduct approaching these wrongs. Courts also consider the age, intelligence, business acumen, and bargaining power of the party asserting unconscionability in determining whether that party has consented to a term See, e.g., American Stone Diamond, Inc. v. Lloyds of London, 934 F. Supp 839,844(S.D. Tex. 1996)([T]he party asserting unconscionability of contract bears the burden of proving both the substantive unconscionability and the procedural unconscionability of the contract at issue. ) Arthur Allen Leff, Unconscionability and the Code-The Emperor's New Clause, 115 U Pa L Rev. 485, 487-488(1967) See, e.g, Hillman, Richness, supra note 10, at 138 See Robert A Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C. C Section 2-302, 67 Cornell L Rev. 1, 19(1981)
6 Waddams sees a combination of wrongdoing, consent, unjust enrichment, and policy at work in policing cases.22 I agree. Take for example judicial application of the unconscionability doctrine. As analysts have long pointed out, courts applying the principle examine the bargaining process to determine whether there has been any “procedural unconscionability,” and they evaluate the adequacy of the exchange to determine whether it is “substantively unconscionable."23 Procedural unconscionability constitutes wrongdoing by a party in many possible forms. For example, a party's conduct may resemble (or satisfy the elements of) duress, fraud, or undue influence. In addition, a party's wrongdoing may involve hiding terms or drafting terms that it knows the other party cannot understand.24 But wrongdoing is not all that is going on in procedural unconscionability cases. They also involve the quality of a party's consent. Courts have little difficulty concluding that a party has not consented to a hidden or unclear term or to one that is the product of fraud or duress, or even conduct approaching these wrongs.25 Courts also consider the age, intelligence, business acumen, and bargaining power of the party asserting unconscionability in determining whether that party has consented to a term.26 22 Id. 23 See, e.g., American Stone Diamond, Inc. v. Lloyds of London, 934 F. Supp. 839, 844 (S.D. Tex. 1996) (“[T]he party asserting unconscionability of contract bears the burden of proving both the substantive unconscionability and the procedural unconscionability of the contract at issue.”); Arthur Allen Leff, Unconscionability and the Code–The Emperor’s New Clause, 115 U. Pa. L. Rev. 485, 487-488 (1967). 24 See, e.g, Hillman, Richness, supra note 10, at 138. 25 Id. at 141. 26 See Robert A. Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2-302, 67 Cornell L. Rev. 1, 19 (1981)