Wednesday, February 7, 2018

Wilkinson-Ryan on Fleming, "The Rise and Fall of Unconscionability as the ‘Law of the Poor’"

Also at JOTWELL, Tess Wilkinson-Ryan (University of Pennsylvania) spotlights "The Rise and Fall of Unconscionability as the ‘Law of the Poor’," by Anne Fleming (Georgetown University Law Center). The article appeared in Volume 102 of the Georgetown Law Journal (2014). Here is a taste:
Who is best suited to police unfair terms—the market, the judiciary, or the legislature? Williams vs. Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian Anne Fleming takes on the standard narrative of judicial overreach and recasts the relationships among institutional actors in a reform movement. 
In 1965, Judge Skelly Wright ruled that Ora Lee Williams’s contract to pay for furniture on a pro rata installment plan was subject to review for unconscionability—a moment of judicial activism that was later blamed for the decline and stagnation of the doctrine of unconscionability. Fleming pushes back against the standard narrative that Williams created a backlash against Wright’s ‘law of the poor’ – according to that simplistic story, “Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded.” (Pp. 1387-1388.) Fleming’s argument reframes the Williams decision within a broader context of judicial, legislative, and popular pressure, tracing the revival of unconscionability back to the Uniform Commercial Code, enacted in Washington, D.C. in 1963.
Read on here.