71 Am. U. L. Rev. 177 (2021).
The doctrine of unconscionable contracts is an equity doctrine. As such, it does not ask whether an agreement is or is not an enforceable contract; legality has no bearing. Rather, the doctrine asks whether it would be it be fit and proper . . . would it be fair . . . for a court to enforce such a contract. Using the doctrine, courts examine whether the price paid for a good or service far outstrips any benefit gained.
What if that price is the surrender of a basic right, the Right (Not) to Associate? The Supreme Court says that a violation of that right is “always demeaning.” Would that be a price, to quote Lord Chancellor Hardwicke, “such as no man in his senses would make, or as no honest man would come into”?
This Article is my latest collateral attack on Citizens United. The main ideas discussed are unconscionable contracts and the Right (Not) to Associate. A little bit of time is spent on the particulars of Delaware corporate law regarding the owner of record and the Employee Retirement Income Security Act (ERISA). Somehow, it ends up being about the unfairness of giving private corporations, and the officers that rule them, an exalted place in our political system.
* Loyola University New Orleans College of Law. I wish to thank Mary Algero, Brian Barnes, John Blevins, Mitchel Crusto, Chunlin Leonhard John Lovett, Robert Verchick, M. Isabel Medina, Raphael Rabalais, for their participation and thoughtful comments in the faculty colloquia on this Article. I also share my appreciation for the hard work of the editors and staff at the American University Law Review: Chris Baumohl, Ashley Brown, Margaret Smiley Chavez, Katelyn Deibler, Alexandra D. Finocchio, Rachel M. Fleischer, Madeline P. Fuller, Margaret Helein, David M. Jennings, Lauren Keller, Emily King, Elizabeth Lancaster, Hannah Paradis, Gabrielle A. Quintana, Ariel Rawls, Lena Raxter, Zoe R. Shir, Kane T. Smith, Matthew Sokol, Kristina R. Woodward, and John C. Zang. Ann M. Lipton provided additional comments and support. None of my articles would occur without the generous time and support of Jill E. Fisch.