Bruce Nye at Cal Biz Lit has an interesting post on Gentry (h/t The UCL Practitioner.)
In my original post on Gentry, I noted that:
I think the practical effect of this case will far exceed its holding. In fact, I expect it to add new dimensions to practically every employment case. If every employment contract of this kind has some procedural unconscionability, and that allows an analysis of potentially unconscionable substantive terms…
Mr. Nye at Cal Biz Lit recently stated that he thinks the language goes beyond just employment contracts:
It isn’t clear after this case that any contract of adhesion can escape scrutiny for substantive unconscionability if the side with the power has expressed a preference that the “little guy” sign it and hasn’t given him clear, conspicuous warning that some parts of it aren’t to his advantage. The possibility of opening every contract to scrutiny for fairness is fairly breathtaking.
I don’t take it quite that far. Sure, that is the reductio ad absurdum of the language in that case; however, realistically, this case isn’t going to radically alter all aspects of contract law. Employment contracts are a special case that have long been recognized as asymmetrical in power, and vast quantities of statutes, public policy, and case law reflect that. Without much exaggeration, I’d say that’s what 75% of the Labor Code is about.
What about the other “little guy” situations? I suppose it will depend on the power dynamic of the relationship, but I’m not sure just how far that deviates from the existing framework. I would never underestimate the creativity of my colleagues, so I don’t doubt that language from Gentry will be used in many situations where it doesn’t apply, like the million dollar company versus the mutli-million dollar company. Will it succeed? My Ouija board says no, but it’s often broken.
It will indeed be interesting to see how this plays out.
