Parker Smith, ‘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’

Introduction:
… Part I of this Comment illustrates the first step in the foundational approach, which is to identify and articulate the nature of a ‘legal problem’. This Part argues that the proliferation of adhesion contracts results in the death of the bargain in consumer contracts and strips away significant evidentiary and theoretical justifications for the enforcement of contracts generally, undermining the legitimacy of contract law in both the common law legal system and Louisiana’s civil law legal system. Part II illustrates the second step in the foundational approach, which is to account for a proposed solution to the legal problem presented in the first step as well as to determine the guiding principles of that solution. This Part focuses on a proposed solution to the problems associated with adhesion contracts from the common law – the doctrine of unconscionability. Part III illustrates the third step in the foundational approach, which is to use the ‘foundational method’ to test whether proposed solutions to legal problems are coherent with the legal systems under consideration. Utilizing social contract theory, this Part argues that two ‘perspectives’ on the social contract – the ‘means-focused’ perspective and the ‘ends-focused’ perspective – can act as philosophical foundations of the common law legal system and Louisiana’s civil law legal system, respectively. These philosophical foundations can be used to deduce general principles of each legal system, which can be compared with the guiding principles of the doctrine of unconscionability to determine the doctrine’s coherency with each legal system … (more)

Parker Smith, ‘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’, 76 Louisiana Law Review (2016).

First posted 2016-05-14 08:22:36

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