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Paul Michalik
Wed, 3 Dec 1997 20:47:27
Taylor v. Dickens


On Tue, 2 Dec 1997, Allan AXELROD wrote:

On Mon, 1 Dec 1997, Colin Riegels wrote:

.......... To the suggestion that there was a general right of equitable intervention in response to any unconscionability he asserted: "[i]f there were such a jurisdiction one might as well forget the law of contract and judge every civil dispute with a portable palm tree."

Words to remember indeed.

in US law under the Uniform commercial Code, 'unconscionability' is in issue for almost every commercial contract in the US and would you believe life goes on, and case outcomes are not generally thought to be capricious

what pathology accounts for this sort of 'end-of-western-civilization-as-we-know-it' judicial statement?

Yes, but in the US, the concept of arguing the social and political implications of a judicial decision, particularly at appellate level makes a great deal of difference. Judges are openly legislating, and gather the background information that English judges tend to regard as one very important reason parliament is the sole legislator here. (Quite apart from questions of constitutional legitimacy.)

The point is that the US system is adapted to inherent uncertainty in a way in which the english system is not (which is not to say that it could not be so adapted). the US accepts the palm tree principle, and courts have adjusted to deal, as palm tree legislators, with the resulting powers and resulting uncertainties. It is far from pathological to respect certainty and to fear change to an unconstitutional tyranny of the bewigged ones. It is far from pathological not to want to follow the US lead into the indignities of direct election of judicial officers and campaigns for office based on who has been tougher on criminals - all of which are a relatively natural (if not inevitable) result of seeking a mandate for judicial legislation.

Equity once was the court of conscience, but outgrew the tendency in favour of certainty in the law. Restitution scholarship ought to resist the tendency to want to turn the clock back. Our Lord Chancellor may have ambitions to emulate Wolsey. Let's not help him turn that nightmare into reality.


Paul Michalik

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