EPSTEIN, CRASWELL, ECONOMICS, UNCONSCIONABILITY,
AND MORALITY
By Brian Bix*
As has often been noted, economists and non-economists tend to approach
unconscionability from very different perspectives.'
The virtuous prefer good, villains prefer bad, and rational actors in economics
prefer themselves.
This paper will consider Richard Epstein's early and influential
article on unconscionability, 3 as well as a more recent work by Richard
Craswell on the same topic, 4 as starting points for evaluating the
strengths and weaknesses of economic analysis of law. The paper will
also highlight the moral values that are promoted, sometimes implicitly
and unintentionally, by economic analysis, a form of analysis that is
usually presented as being morally neutral.
I. EPSTEIN 25 YEARS LATER
Epstein's work exemplifies some of the strongest aspects of lawand-economics and displays well the way that economic analysis can
see some things clearly that other approaches seem to overlook or only
see partially.5
At the same time, economic analysis also has
* Visiting Professor of Law, George Washington Law School and Georgetown
University Law Center; Professor of Law, Quinnipiac College School of Law. This
article was written for the conference, "The Works of Richard A. Epstein," held at
Quinnipiac College School of Law in October 1999.
1. Richard Craswell, Property Rules and Liability Rules in Unconscionabilityand
Related Doctrines,60 U. CHI. L. REV. 1, 63 (1993) (footnote omitted).
2. Robert Cooter, Models of Morality in Law and Economics: Self-Control and
Self-Improvementfor the "Bad Man" of Holmes, 78 B.U. L. REV. 903, 903-04 (1998).
3. See Richard A. Epstein, Unconscionability:A CriticalReappraisal, 18 J.L. &
ECON. 293 (1975).
4. See Craswell, supra note 1.
5. On the strengths and weaknesses of the law and economics approach, see, for
example, BRIAN Bix, JURISPRUDENCE: THEORY AND CONTEXT 177-202 (2d ed. 1999).
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[Vol. 19:715
perspectives that it tends to overlook or undervalue, and hints of this
incompleteness of perspective are also on display, if one looks carefully
enough, even in this classic article.
The article begins with contract law's presumption that agreements
should be enforced as written ("freedom of contract"), a perspective,
Epstein argues, that can be justified both by its consequences
("utilitarian" grounds: "maximiz[ing] the welfare of the parties to [the
contract], and therefore the good of the society as a whole") and by the
interest in liberty ("libertarian grounds": "guarantee[ing] to individuals
a sphere of influence in which they will be able to operate, without
having to justify themselves to the state or to third parties").6
Epstein considers a series of traditional doctrinal defenses to the
enforcement of agreements-duress, fraudulent misrepresentation, and
incompetence (infancy, insanity, etc.)-and shows how these defenses
can be justified despite the general presumption in favor of enforcing
agreements as written. He then takes the analysis a step further, noting
that while these defenses are legitimate and fully justified, they are often
difficult to prove! Because of that difficulty, Epstein believes that there
is a role for a doctrine of unconscionability to play, in situations where
the court suspects that there has been duress, fraud, or the like, but that
the defense may not be demonstrable under the relevant rules of
evidence and burdens of proof.9 Epstein is content to go this far with
unconscionability, but no further. Where the doctrine is used for other
purposes, generally to "strike down either whole contracts or . . .
particular clauses on the ground that they are ...
unfair," he thinks the
use of the doctrine causes more harm than good.' Throughout the
article, we are given quick but effective explanations as to why
apparently one-sided provisions (like "add-on clauses" in sales of
goods" and termination-at-will provisions in franchise agreements) are
6. See Epstein, supra note 3, at 293 (footnote omitted).
7. See id. at 295-301.
8. See id. at 301-02.
9. See id. at 301-05. Epstein notes that the parol evidence rule and the Statute of
Frauds may also work similarly to protect against fraud that might otherwise be difficult
to prove. See Epstein, supra note 3, at 302.
10. Id. at 305-06. Epstein also expresses doubts about using the doctrine of
unconscionability "to protect those who are poor, unemployed, on welfare, or members
of disadvantaged racial or ethnic groups." Id. at 304.
11. Such terms are also sometimes known as "cross-collateral clauses." These
provisions provide "that all previous goods purchased by the buyer from the seller will
secure the debts incurred with the current purchase." Id. at 306; see also Williams v.
Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
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EPSTEIN, CRASWELL
reasonable in the circumstances and might have some benefits to the
other party.12
Epstein's work, along with that of Richard Posner'3 and other
prominent law-and-economics theorists, have clarified the problem of
apparently-oppressive or one-sided agreements.
In earlier times,
conventional thinking had been that there were two responses:
(1) That agreements entered into by competent adults (who were
not subject to fraud or duress) should be enforced as written;14 or
(2) That the agreements should not be enforced, for the courts
should not be complicit with injustice."5
One of the significant values of works like Epstein's and Posner's
is that they remind us of a third line of argument: that these agreements
should be enforced, because enforcement will be to the long-term
interests of those who sign these sorts of agreements. 6 Attempts to take
away one-sided terms and agreements, or their effectiveness, will not
work to the benefit of the other side, but will only shackle the stronger
party for no apparent purpose, causing that party to charge higher prices
or offer lesser terms in the place of the criticized provisions."
Epstein's article suggests the two alternative bases for enforcing
contracts as written (alternatives where one can be offered whenever the
other is rejected or seems to be without force): (1) that enforcing
12. See Epstein, supra note 3, at 306-08, 314-15. Other types of provisions
considered include "waiver of defense" clauses, provisions excluding liability for
consequential damages, and "due on sale" clauses. See id. at 308-14.
13. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 126-30 (5th ed.
1998) ("Duress, Bargaining Power, and Unconscionability").
14. See, e.g., Lansing v. McKillip, 3 Cai. R. 286, 289-91 (N.Y. Sup. Ct. 1805)
(Livingston, J., dissenting).
15. See, e.g., Clitherall v. Ogilvie, 1 S.C. Eq. (1 Des.) 250, 259 n. (1792)
(Chancellor Desaussure, in an 1817 report of the 1792 case, writing: "It would be a great
mischief to the community, and a reproach to the justice of the country, if contracts of
very great inequality, obtained by fraud, or surprise, or the skillful management of
intelligent men, from weakness, or inexperience, or necessity could not be examined
into, and set aside."), quoted in MORTON J. HORWlTz, THE TRANSFORMATION OF
AMERICAN LAW, 1780-1860, at 164-65 (1977). See generally JAMES GORDLEY, THE
PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 146-58 (1991) (discussing
the response of the eighteenth century English courts to unfair agreements).
16. See, e.g., Epstein, supra note 3, at 307 ("The 'add-on' clause allows both
parties to benefit from the reduction in costs in the setting up of a security
arrangement.").
17. See, e.g., id. at 313 (arguing that the effect of decisions restricting the
enforceability of due-on-sale clauses will be that "banks will try to offset that loss in
party by increasing the rates of interest that they will charge").
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voluntary transactions increases the welfare of both parties;" and (2)
any option other than enforcement-as-written will lead to bad
consequences (for the party we intend to help or protect) in the mediumand long-run.' 9
While much of Epstein's article holds up very well for all the
passage of time, it is interesting to speculate on how the piece might
have to be written differently given the current state of the law-andeconomics literature. The article's discussion of why parties enter
contracts and agree to terms which might seem to the parties'
disadvantage seems a bit underdeveloped.
Recent works would
encourage a greater discussion of "bounded rationality"2 ° and game
18. As Epstein writes elsewhere:
The key element of the voluntary transaction is that it only takes place when it
produces benefits to both participants. It therefore results in a positive sum
game for its players, which presumptively means that it should be enforced
unless it imposes some larger offsetting disability on third parties .... On the
other side of the line are those transactions whose voluntariness is vitiated by
force or fraud. In these cases, the assumption of mutual gain no longer holds.
Richard A. Epstein, The Assault that Failed: The Progressive Critiqueof Laissez Faire,
97 MICH. L. REV. 1697, 1702 (1999) (reviewing BARBARA H. FRIED, THE PROGRESSIVE
ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND ECONOMICS
MOVEMENT (1998)) [hereinafter Epstein, Assault].
19. See Epstein, supra note 3, at 293-95; see also Selmer Co. v. BlakesleeMidwest Co., 704 F.2d 924, 928 (7th Cir. 1983) (Posner, J.) (rejecting the argument that
financial distress alone is sufficient to rescind a contract for duress and arguing that if it
were otherwise, "people who desperately wanted to settle for cash ... would be unable
to settle, because they could not enter into a binding settlement; being desperate, they
could always get it set aside later on grounds of duress. It is a detriment, not a benefit to
one's long-run interests not to be able to make a binding commitment."); POSNER, supra
note 13, at 129 ("Like usury laws and pro-debtor provisions of bankruptcy law, the
broad interpretation of unconscionability. .. makes it more difficult for poor people to
borrow, thus harming them ex ante though benefiting some of them ex post.").
Epstein's arguments here in terms of long-term benefits exemplify the way
that, throughout his writing, he has combined, with varying emphasis, libertarianism and
Utilitarianism. As Larry Alexander and Maimon Schwartzschild have argued, these
may be incompatible commitments. See Larry Alexander & Maimon Schwartzschild,
The UncertainRelationship Between Libertarianismand Utilitarianism, 19 QUINNIPIAC
L. REV. 657 (2000).
20. See, e.g., Melvin Aron Eisenberg, The Limits of Cognition and the Limits of
Contract,47 STAN. L. REV. 211 (1995) [hereinafter Eisenberg, Limits] (describing how
our "limits of cognition" justify the decision not to enforce certain kinds of contracts);
Christine Jolls et al., A BehavioralApproach to Law and Economics, 50 STAN. L. REV.
1471 (1998); Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175
(1997). In some of his more recent work, Epstein has shown his awareness of the
possible effects of "cognitive biases" on standard economic analysis. See Richard A.
Epstein, Law and Economics: Its Glorious Past and Cloudy Future, 64 U. CHI. L. REv.
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EPSTEIN, CRASWELL
theory;2 there might also be a more detailed consideration of what
"externalities" might result from enforcing such agreements (a topic
which will be revisited briefly in Part III).
II. CRASWELL ON REMEDIES
One obvious difference between Epstein and Craswell in their
articles on unconscionability is that the former presumes enforcement
for all agreements which meet a fairly minimal level of consentbasically any agreement in the absence of duress or fraud-while the
latter spoke of degrees of consent. For Craswell, agreements signed
under full and proper consent should be enforced, while agreements
with incomplete or improper consent might be subject to partial
enforcement, enforcement only to the extent reasonable.
One might thus accuse Epstein of ignoring the problem of
imperfect consent, with everything turning on express and implied
utilitarian arguments about the long-term benefits (both to society and to
the signatories of agreements) of enforcing certain types of agreements,
and the long-term detriments of not enforcing them. However, this is
probably too quick. One could ascribe to Epstein the view (never
expressly stated in his article) that it is morally allowable to hold parties
to their agreements wherever there is a certain threshold level of
maturity, voluntariness, information, etc., and that this threshold will be
found (once moral and utilitarian calculations are made) to be fairly
low.
1167, 1171 & n. 18 (1997) [hereinafter Epstein, Law and Economics] (discussing briefly
Amos Tversky and Daniel Kahneman's work on cognitive biases).
As Eisenberg clearly explains, refusing enforcement of an agreement because
of limits of cognition is a different kind of justification from what is usually thought to
justify refusing enforcement for unconscionability, in that the problem is not one of one
party exploiting another, or imposing unfair terms. See, e.g., Eisenberg, Limits, supra,
at 257 ("Unconscionability is a fairness doctrine, and if a contract is fair when made,
enforcement cannot be unfair. Rather, what drives these cases is the limits of cognition,
because, unlike unconscionability, those limits justify a refusal to apply the bargain
principle even if the contract was fair when made."). However, as there is no existing
doctrinal category for "limits of cognition," and unconscionability is usually the residual
category for non-enforcement, that is the label most courts will use when they refuse
enforcement. See, e.g., id. at 254-58 (discussing courts' use of "unconscionability" to
refuse enforcement of some premarital agreements, where the problem is not fairness,
but limits of cognition).
21. See, e.g., Avery Katz, The Strategic Structure of Offer and Acceptance: Game
Theory and the Law of Contract Formation, 89 MICH. L. REv. 215 (1990). See
generally DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW (1994).
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By contrast, Craswell's analysis seems more nuanced, and more
up-front about different levels of consent perhaps authorizing or
requiring (morally, and also legally) different responses. However,
neither Epstein nor Craswell digs down as deep as one might into the
moral question: why, or under what circumstances, should "consent"
justify state enforcement of agreements? The question has been raised
in recent years by feminists, who argue that there are sociological and
psychological reasons for believing that even on occasions when women
have given what appears to be complete consent, there are substantial
moral reasons for not holding the women to those agreements.22
Of course, it is impractical (one might even say, "inefficient") to
consider the deep questions of moral justifications of consent in every
doctrinal contract article, or in every judicial decision of a contract case.
However, it is exactly the extreme sort of case which evokes inquiries
about unconscionability where inquiries about consent, morality, and
legitimacy are most apt.
Craswell has a response, an excuse for not worrying too much
about the nuances of "consent" and justification. He points out that in
many types of situations the remedy a court may offer (when refusing to
enforce an agreement because of problems of improper consent) may be
better or worse than enforcing the agreement as written, but either way
the court's intervention will not eradicate the original problem. For
example, if the problem is that the party's circumstances leave it no real
choice but to accept the terms presented to it (e.g., because the party's
distressed circumstances mean that the alternatives are worse), the
court's intervention, either refusing enforcement entirely, or modifying
unreasonable terms, does not give that party back "full and proper
consent"; at most, the intervention gives the party somewhat better
terms on an agreement to which it has not fully consented."
Craswell's article reinforces one basic, if often implicit, point of
Epstein's critique: that it may be O.K. for courts or legislatures to
require better terms in contracts, but they must realize that this will
come as a package with a higher price. It is the package of better-termand-higher-price that must be evaluated, with the realization that the
22. See Gillian K. Hadfield, The Dilemma of Choice: A Feminist Perspective on
the Limits of Freedom of Contract, 33 OSGOODE HALL L.J. 337 (1995); Gillian K.
Hadfield, An Expressive Theory of Contract: From Feminist Dilemmas to a
Reconceptualization of Rational Choice in Contract Law, 146 U. PA. L. REv. 1235
(1998); Robin West, Authority, Autonomy and Choice: The Role of Consent in the
Jurisprudenceof Franz Kafka and Richard Posner,99 HARV. L. REv. 384 (1985).
23.
Craswell, supra note 1, at 34-36.
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EPSTEIN, CRASWELL
higher price may mean that some buyers are forced out of the market for
the good in question.24 One of the basic lessons of law and economics
scholarship is that one should not reject a particular approach or
doctrine unless and until one has an alternative in mind and one is
confident that the alternative will have better consequences over the
long-term once implemented.
However, one might question whether a better term must always
come with a higher price. What about those situations where a company
is over-reaching just because it can (e.g., because it has monopoly
power, or there is some other market failure)? Is it not possible that in
some situations the requirement of better terms will have the effect not
so much of an ("inefficient") gain to one side, but rather merely the
giving to25 that side a greater portion of the consumer or cooperative
surplus?
Epstein may have an answer for this already prepared, adopted
from another context where he is speaking about the "social surplus"
rather than the "consumer surplus":
[T]he size of the social surplus is not independent of the rules used to decide
its division. Let individuals think that the social surplus is always up for
grabs, and they will spend resources to deflect as large a fraction of that
surplus to their own private ends. In the end, thrust and riposte dissipate any
surplus .... 26
Thus, too much uncertainty will create the incentives for
actions (not least, wasteful litigation and other forms of "rent
It is thus important that most transactions be immune from
and clearly so. However, if only the most egregious
inefficient
seeking").
challenge,
forms of
24. See id. at 29-31. Craswell goes on to emphasize a point of great intrinsic
importance, though tangential to the project here: that in determining how to respond to
cases of inadequate consent, it is important to determine the relative competence of the
court (compared to the parties) in setting the terms for the agreement. See id. at 38-39,
47-50, 63-64; see also Richard Craswell, Remedies When Contracts Lack Consent:
Autonomy and InstitutionalCompetence, 33 OSGOODE HALL L.J. 209 (1995).
25. Cf Kenneth G. Dau-Schmidt, A BargainingAnalysis of American Labor Law
and the Searchfor BargainingEquity and IndustrialPeace, 91 MICH. L. REV. 419, 42023, 479, 512-13 (1992) (rejecting the traditional economic analysis that saw labor
unions' bargaining gains as inefficiencies created by a cartel; arguing instead that labor
unions are merely gaining a higher proportion of the cooperative surplus for the
employees).
26. Epstein, Assault, supra note 18, at 1711.
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exploitation and over-reaching are subject to challenge the inefficiency
cost may not be too heavy.27
III. FAIRNESS AND OTHER VALUES
This, then, is the basic problem with unconscionability, as both
Epstein and Craswell have tried to show us: (Epstein) that it will usually
be to everyone's benefit to enforce agreements as written (except in
cases of gross defects in formation); and (Craswell) that it will be very
difficult to come up with standards, procedures, and remedial rules to
protect parties in cases of imperfect consent that will work better than
the current rules. This is a valuable lesson, and one easily overlooked.
However, in the rush to emphasize this point, it may be forgotten that
the force of the other positions-including the idea that the state should
not be complicit in unjust agreements-is not entirely undermined.
Even if it is granted that the refusal to enforce may have effects that
some of the "protected" parties might not appreciate, including effects
that may work against their (short-term economic) interests, we still
might think the principle worth the cost.
One might summarize both writers as instrumentalists or
consequentialists in the sense in which that sort of thinking has always
been the hallmark of law-and-economics. Epstein's concern is seeking
the legal rules which will have the best long-term utility; Craswell
27. Cf Melvin Aron Eisenberg, The BargainPrincipleand Its Limits, 95 HARV. L.
REV. 741, 769-70 (1982) [hereinafter Eisenberg, Bargain] ("Admittedly, the principle of
unconscionability introduces somewhat more uncertainty than many other [doctrinal
contract] defenses, but in accepting that principle contract law has in effect bargained
away some of its certainty to augment its fairness.") Even if the standard is as vague as
"unconscionability" (or, to choose a different doctrinal defense, "impracticability"), a
course of decisions can still make it sufficiently clear that the vast, vast majority of
agreements cannot be successfully challenged on this basis, thus minimizing the amount
of resources wasted fighting over this defense.
One can also speak of incentives and disincentives to justify not enforcing such
bargains. Without recourse to a doctrine like "unconscionability," parties in a position
to exploit other parties' weakness or cognitive disability have little incentive to be
moderate in their terms; the incentives mostly point towards getting as much as one can
all the time.
Finally, one might point out that unconscionability is by no means the only
area in contract law in which judges are required to reason morally in a broad and
largely unconstrained way. Other examples include the excuse of a condition to avoid
forfeiture, see RESTATEMENT (SECOND) OF CONTRACT § 229 (1979); Eisenberg, Limits,
supra note 20, at 236-40 (discussing the excuse of express conditions), and promissory
estoppel, see RESTATEMENT (SECOND) OF CONTRACT § 90 (enforcing promises where,
among other things, "injustice can be avoided only by enforcement of the promise").
EPSTEIN, CRASWELL
20001
broadens and deepens the inquiry by trying to determine what
combinations of legal standards and remedial rules will have the best
long-term utility. The question then is whether there are any inquiries
judges and contract scholars should be making other than ones
regarding short-term and medium-term practical consequences.
It is fair enough to look back in wonder, and some disdain, at a
time when legal rules were evaluated only in terms of some intuitive
sense of fairness, with no regard to their instrumental value (and with
certainly no reference to their "efficiency"). 28 At the same time, one
may wonder whether there has been an "overcorrection": while some
commentators wonder whether there is any role for a concept of
"fairness" once instrumental considerations are exhausted,29 others
"express" a view of the irrelevance of fairness by their silence on that
issue.3" Of course, if one acts, it should be with eyes open: aware of the
costs (including efficiency costs) that may come with "expressive" or
"symbolic" non-enforcement of agreements." However, it is a basic
point, long ago conceded by Calabresi and Melamed, that efficiency
will only be one value among many, and that we should be conscious of
actual and potential (and potentially desirable) tradeoffs of less
efficiency for more fairness or justice 2
One might also want some inquiry into the problem of thirdparty effects ("externalities")33 and other long-term effects.34 This is
28. See, e.g., Epstein, Law and Economics, supra note 20, at 1167.
29. See Louis Kaplow & Steven Shavell, The Conflict Between Notions of
Fairnessand the Pareto Principle, 1 AM. L. & ECON. REV. 63 (1999). Richard Posner,
at least in his more recent writings, has distanced himself from that position. See, e.g.,
POSNER, supra note 13, at 30 ("there is more to notions of justice than a concern with
efficiency").
30. To argue that there is a point and a value to the State's (and its courts')
disassociating itself from injustice, even without proof of short-term instrument benefits,
is in no way to deny the truth that "any legal order necessarily depends on second-best
accommodations that are needed precisely because first-best solutions are never
obtainable." Epstein, Assault, supra note 18, at 1701.
31.
Cf
RICHARD
A.
EPSTEIN,
FORBIDDEN
GROUNDS:
THE
CASE
AGAINST
EMPLOYMENT DISCRIMINATION LAWS 1-12, 496-99 (1992) (discussing the problems of
"trading off' the symbolic gains (and losses) of anti-discrimination laws with their
economic losses).
32. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules,
and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1098-1105
(1972) (listing "distributional goals" and "other justice reasons" as alternative
justifications to efficiency).
33. See Epstein's quotation, supra note 18, where his discussion of social utility
seems to leave open the possibility that third-party effects may be sufficient to justify
not enforcing an agreement.
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speculative matter, and in most contexts relevant to this discussion, it
may be that there are no such externalities or long-term effects. I am
thinking of the kind of argument one comes across in justification of not
allowing "free trade" in child labor, babies, or kidneys, even though, at
least over the short term, such transactions would increase the utility of
those involved. As regards child labor, Michael Trebilcock notes that
the original prohibition of such labor in England "may well have
diminished [the children's] welfare and that of their families in the short
term, but arguably provided an important political impetus in the longer
term for the development of a public and universally accessible system
of primary and, later, secondary schooling."3
As regards the
commodification of babies or body organs, one might argue that
allowing such transactions over the longer term will lead to bad moral
effects in the community as a whole, in a way that
is not easy to
6
articulate in terms of short-term preferences or utility.
IV.
CONCLUSION
Richard Epstein's powerful analysis of the "unconscionability"
doctrine, even twenty-five years on, still has much to teach us about the
various sorts of bad consequences that await a legal systems too quick
to use such a vague tool to battle unfairness (and transactions which, on
first appearance, only seem to be unfair). Richard Craswell offered a
similar, and similarly rich, analysis, in showing how, even assuming
unfairness to which we want to respond, we must pay close attention to
the short- and long-term consequences of the remedies we might supply
in these situations. These articles offer important correctives to those of
us who might too quickly scream of unfairness and demand state
intervention, without stopping to consider the consequences and the
alternatives. At the same time, it may be possible to learn these lessons
34. Whether limitations on "freedom of contract" do in fact have favorable social
consequences is an empirical (or partly normative and partly empirical) question which
requires further evidence and argument. Cf Epstein, Assault, supra note 18, at 1705
(arguing that the legislation overturned by the Lochner-era decisions were not about
protecting workers from exploitation, and that the legislation invalidated merely
"wanted to displace a competitive labor market with a monopolistic one in exchange for
purported social gains that have yet to be identified.").
35. Michael J. Trebilcock, Critiques of The Limits of Freedom of Contract: A
Rejoinder, 33 OSGOODE HALL L.J. 353, 375 (1995).
36. See generally Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV.
1849, 1870-87, 1903-37 (1987) (describing problems arising from the commodification
of things important to personhood).
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EPSTEIN, CRASWELL
too well. Just because many things which appear unfair at first glance
may in fact be reasonable under the circumstances does not mean that
there is no such thing as unfairness, and just because some remedies of
unfairness will make things worse rather than better does not mean that
one should stop trying to respond to unfairness.37 Economics, in all of
its analytical power, remains only a tool. Justice, in all of its infuriating
vagueness, remains the ultimate goal.
37. Cf Eisenberg, Bargain, supra note 27, at 801 ("Placing limits on the bargain
principle involves cost of administration. Failure to place such limits, however,
involves still greater costs to the system of justice.").