Knapp on Strict Scrutiny of Individual Contracts

Chuck Knapp has just published an article entitled, "Opting Out or Copping Out? An Argument for Strict Scrutiny of Individual Contracts," which was part of a symposium called "Contracting Out of the Uniform Commercial Code." Chuck's article is concerned not so much with the specific topic of contracting out of the UCC, but with the more general issue of whether and to what extent stronger contracting parties should be free to impose on weaker ones contractual terms of various kinds, up to and including terms intended to deprive the weaker party of what would otherwise be its right of recourse to rules of law that would otherwise apply, to litigate in forums that would otherwise have jurisdiction and competence, and indeed to have legal recourse in any court of law at all. Building on many of the themes sounded in his earlier article on "mandatory arbitration" clauses ("Taking Contracts Private: The Quiet Revolution in Contract Law," 71 Fordham L. Rev. 761 (2002)), this article concentrates on the imbalance of bargaining power ordinarily existing between commercial entities (typically corporations) and flesh-and-blood individuals (either as consumers of goods and services or as sellers of their labor), and it argues for a kind of "strict scrutiny" of such contracts by the courts. The cite is 40 Loyola L. A. L. Rev. 95 (2006). (Trust me, it was just now published.)