SQUEEZING SUBJECTIVITY FROM THE DOCTRINE OF UNCONSCIONABILITY

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Determinations about unconscionability are subjective. To date no one has been able to articulate an objective standard. Statutes that empower the judiciary to make findings of unconscionability almost uniformly fail to define what qualifies.Judges are left to fashion solutions that they, and they alone, believe address their charge. Different results from different judges are what can reasonably be expected absent an agreed upon definition.3 The issue takes on the character of the debate some decades ago around defining pornography. Recall the famous statement by Mr. Justice Stewart who acknowledged defeat in arriving at an actual definition of pornography but who nevertheless declared categorically: “I could never succeed intelligibly in doing so. But I know it when I see it."

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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