November 02, 2005
Let's Ask Alito What He Thinks of Williams v. Walker-Thomas Furniture Co.
Posted by Christine Hurt

At VC, David Bernstein mentions the "unconscionability" case as a barometer for student ideology and a point of reference for intra-class enforcement of social norms surrounding that ideology.  Do students in your class think the case was rightly decided or wrongly decided?  Do they turn on the minority viewpoint?

Interestingly, I remember very clearly the day in Contracts when we covered Walker-Thomas Furniture Company.  I did sense that a slim majority (Texas, 90-91)thought the case was rightly decided.  I welcomed the case as psychic relief from a string of cases where sympathetic plaintiffs were turned away by settled contract law -- loyal woman nurses high-maintenance, aging family member for years based on unfulfilled promise to leave farm in will, family leaves home and community to take long, expensive trip based on ambiguous promise of employment, etc.  However, our professor was clear to point out that the defense of unconscionability is not usually a winning trial strategy:  "unconscionability is the last resort of a fool."

That being said, I do remember that the case divided the class.  The case itself was not the dividing line so much as the hypotheticals that swirled under the guise of the Socratic Method.  I do not adhere to theories that the SM is hostile or dangerous, but on this day, the SM spun out to its stereotypical end -- the professor questioned the student (Bill) until Bill stuck to his guns and conceded that he would allow people to contract themselves into slavery and would allow courts to enforce that contract.  For the next 3 years, Bill was "the guy who thinks that people should be allowed to contract themselves into slavery."  FYI -- I think Bill enjoyed his reputation, though.

Coincidentally, I recently received a reprint of Russell Korobkin's A "Traditional" and "Behavioral" Law-and-Economics Approach to Williams v. Walker-Thomas Furniture.  I can't wait to see what Russell has to say on the matter.

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