Threaded discussion not a paper: Answer each question directly under the question minimum at least 3 sentences per question.
(1) Class, now that we have an understanding of what constitutes a valid contract and some of the remedies for breach, let's focus on some valid defenses for alleged breach of contracts.
The doctrine of unconscionability is a relatively recent judicial invention designed to intervene when all the bargaining power is on one side. A contract can be held to be unenforceable when the sum total of its provisions drives too hard a bargain for a court of conscience to assist. In its original form the unconscionability doctrine was used to protect uneducated and unsophisticated consumers from contracts where all the benefits flowed one way and all the burdens the other.
One of the issues we can explore in this thread is whether the unconscionability doctrine should be available to set aside commercial contracts where market powers like Wal-Mart or Microsoft attempt to impose 'take it or leave it' terms on their vendors and suppliers.
Questions:
(a) Should courts look at the respective economic power of the parties in determining whether to enforce a harsh contractual provision?
(b) Should our courts serve as an ethical leveling mechanism when it comes to unconscionable performance requirements?
(c) Are small businesses and suppliers completely at the mercy of the "big box" companies or is there anything they can do to fight back?
(2) Class, Great discussion on parody and copyright law. Lets look at another JK Rowling suit with Warner Brothers against the US Army for using Harry Potter style characters in one of their manuals.
https://www.mwe.com/info/news/euroip0305-copyright.htm
Questions:
(a) Do they have a viable case against the Army? If so, what is the legal claim? Do you think Warner and Rowling will be successful. Does the Army have any defense?
(b) From a legal standpoint, is it good for Rowling to go after others so aggressively who attempt to profit off her work?