Capital Social

And yet, applying Stout’s recommendations is not enough. As I have argued in Part II, emotions play a critical role in shaping people’s moral judgments and behaviors. Given the connection between moral emotions and moral judgments, the question then becomes: what can be learned from reading Riggins and Stoll about the ability of judicial decisions to impact self-restraint via their influence over relevant affective processes? This question is not discussed by Stout.

To begin with, it seems that this question should be distinguished from the traditional debate, which asks whether courts should intervene in contractual relationships or not. Taking affective consequences into account calls for a focus on how courts should discuss inappropriate market acts that are exposed during the litigation, regardless of the outcome of the case.

For the operation of the moral emotions, the content of the analysis may matter more than its final enforcement decision. On one hand, even a decision to invalidate a contract due to its unconscionability can evoke very minimal affective response and thus offer very limited encouragement of future self-restraint. On the other hand, decisions that eventually enforce the contract (or part of it) can still enable others to experience moral emotions and particularly to anticipate the two kinds of guilt that may yield self- restraint. For purposes of facilitating self-restraint and supporting the ethics of the market, I suggest that the framing, reasoning, and rhetoric of judicial decisions can have significant impact. In contrast, a hyper-rational discourse that avoids moral questions is likely to result in the unintended cost of impairing the operation of emotions, thereby fostering greedy and exploitative behavior. Therefore, judges can play an important positive social role by being mindful of the

moral component of the dispute and by utilizing unconscionability in a manner that would support, rather than hinder, the workings of the emotions that bring about self-restraint. Toward achieving this broad goal, I draw the proposal into three concrete steps, each grounded in years of studies of human behavior and human emotions.

The first step is to welcome, rather than ostracize, the moral emotions. It is important that judges clarify that social norms and questions of morality do not stop at the gates of the market. Neither are they foreign concepts before the law. Both the interaction of parties in the market and the formation of contracts are human behaviors, framed by interpersonal relationships. As such, they are intertwined with ethical questions and replete with emotions. Decisions that have the ability to encourage future self-restraint start, as demonstrated in Stoll, from a discourse that reflects the human and moral aspects of the dispute, creating an environment within which ethical concerns and moral emotions are both natural and welcome.

The second step is to clarify rather than cloud pertinent social norms. This step is necessary to support the workings of one type of guilt: self-guilt. Judges are capable of highlighting a norm that has been transgressed by articulating it with the judiciary’s unique power and authority. Significantly, the process of defining transgressions and condemning them can be effective even if eventually—due to narrower legal reasons (such as burdens of proof)—the contract that resulted from the disreputable behavior has to be enforced. In contrast, ignoring wrongful behaviors makes the relevant social norms hazy and interrupts the emergence of anticipated self-guilt by blurring the lines between intolerable and acceptable behaviors.

The third step is to portray the damage that results from the misbehavior and to do this with empathy to the harmed party. To achieve this, judges must resist the human inclination to blame the victims for their sufferings, an effort similar to judicial efforts in the contexts of rape and sexual harassment. An empathetic emphasis on the fact that one party’s behavior had dire influence on other members of society can facilitate the operation of the second type of guilt: other-guilt. It is important to note that judicial treatment of the exploited party with empathy is the appropriate approach for another reason. Courts are part of a broad, state-based system that impacts distributive justice in multiple ways. This system is

responsible for at least some of the vulnerabilities of weaker parties, leaving them with inferior bargaining power and subject to exploitation. As such, courts ought to put exploitation in its social context rather than framing it merely as a matter of flawed individual choice of the exploited party. In other words, judges may have more than an ability to portray the exploited party with empathy: they may have a duty to do so.287

Before concluding my proposal, it is worth recognizing and explaining the special importance of the last step, namely the salient role of highlighting the harm to others caused by the exploiters. Much of the heated debate regarding the use of unconscionability originates from the power assigned to individualism and private autonomy in our culture. Judicial use of unconscionability is often criticized for entailing an undesired intervention in the freedom of contract—one of the leading symbols of neoliberal western societies. In this regime, establishing harm to others is the most effective way, if not the only way, to justify intervention and limitation of freedom. Indeed, as morality theorists have noted, “Our moral system . . . focuses on harm to others.”288 _{The third step in my proposal is,}

therefore, critical not only to the ability to anticipate other-guilt, but also more generally to justify judicial decisions that utilize the unconscionability principle to invalidate predatory contracts.