American Contract Law for a Global Age, 2017a

it is pejorative. More particularly, one cannot tell from the statute whether the key
concept is something to be predicated on the bargaining process or on the bargain or
on some combination of the two, that is, to use our terminology, whether it is
procedural or substantive. Nonetheless, determining whether the section’s target is
a species of quasi-fraud or quasi-duress, or whether it is a species of quasi-illegality,
is obviously the key to the bite and scope of the provision.
[The author discusses the drafting history of UCC § 2-302 and the Comments
to it, noting that over time they grew less and less precise with respect to what the
term “unconscionable” meant.]
The draftsmen [ultimately] were faced with several possibilities. They could
have said that if a certain level of bargaining elaborateness were reached, any
resulting contract (short of illegality) would be invulnerable to later judicial
meddling. That, however, would most likely have necessitated some fuller description
of what type of bargaining procedure was envisioned as sufficiently immunizing.
This, as the earliest draft itself showed, presented exceedingly difficult drafting
problems. Alternatively, the draftsmen could have espoused the position that there
were some contractual provisions, presently unspecifiable, which could not be
permitted under the Code no matter how fully bargained between the parties. This
position, however, might well have been unacceptable to important backers of the
Code (not to mention to legislatures) if it had been set forth in high relief. Thus faced
with a dilemma, the difficulty of the first alternative and the unpopularity of the
second, the draftsmen opted for a third solution. They fudged.
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Review Question 8. Professor Leff’s article has been enormously influential in
defining the somewhat nebulous concept of unconscionability. Almost all discussions
of contractual unconscionability today rely on his “procedural” and “substantive”
categorizations. Most jurisdictions require both procedural and substantive
unconscionability. Some use a sliding scale where having more of one means less of
the other is needed. Some states have even taken the position that if the substantive
unfairness is great enough, then only it is required. Can you explain to your
classmates (and professor) Professor Leff’s argument as to what the two prongs of
unconscionability are and how they are distinct?
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UNIT 16: POLICY-BASED DEFENSES 329