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i. “Contract of Adhesion”
For all these reasons it is clear, when Mr. Kenseth signed
the contingent fee agreement, that he gave up substantial
control-–perhaps all effective control–-over the future conduct
of his age discrimination claim. This is not surprising; a
contingent fee agreement in all significant respects amounts to a
“contract of adhesion”,49 defined by Black’s Law Dictionary 318-
319 (7th ed. 1999) as: “A standard-form contract prepared by one
party, to be signed by the party in a weaker position, usu. a
consumer, who has little choice about the terms”.50
I’m not suggesting that the contingent fee agreement would
be unenforceable;51 contracts of adhesion are prima facie
enforceable as written. See Rakoff, “Contracts of Adhesion: An
49 See Rakoff, “Contracts of Adhesion: An Essay in
Reconstruction”, 96 Harv. L. Rev. 1174, 1176-1177 (1983), which
sets forth seven characteristics that define a “contract of
adhesion”; all these characteristics are present in the
contingent fee agreement between Mr. Kenseth and Fox & Fox.
50 The landmark article that coined and gave currency to the
appellation “contract of adhesion” is, of course, Kessler,
“Contracts of Adhesion–-Some Thoughts About Freedom of Contract”,
43 Colum. L. Rev. 629 (1943). The less inflammatory term found
and used in Restatement, Contracts Second, sec. 211 (1979), is
“standardized agreement”. But see Corbin on Contracts, secs.
559A-559I (Cunningham & Jacobson, Cum. Supp. 1999).
51 Other than the uncertainty regarding enforceability of
the provision in Section III of the agreement that Mr. Kenseth
and the other claimants in the class action could not settle
their cases without the consent of Fox & Fox.
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