Justice Ginsburg, delivered the opinion of the Court.
The Airline Deregulation Act of 1978 prohibits States from "enact[ing] or enforc[ing] any law . . . relating to
Until 1978, the Federal Aviation Act of 1958 (FAA), 72 Stat. 731, as amended, 49 U. S. C. App. § 1301 et seq. (1988 ed. and Supp. V), empowered the Civil Aeronautics Board (CAB) to regulate the interstate airline industry. Although the FAA, pre-1978, authorized the Board both to regulate fares and to take administrative action against deceptive trade practices, the federal legislation originally contained no clause preempting state regulation. And from the start, the FAA has contained a "saving clause," § 1106, 49 U. S. C. App. § 1506, stating: "Nothing . . . in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."
In 1978, Congress enacted the Airline Deregulation Act (ADA), 92 Stat. 1705, which largely deregulated domestic air transport. "To ensure that the States would not undo federal deregulation with regulation of their own," Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992), the ADA included a preemption clause which read in relevant part:
This case is our second encounter with the ADA's preemption clause. In 1992, in Morales, we confronted detailed Travel Industry Enforcement Guidelines, composed by the National Association of Attorneys General (NAAG). The NAAG guidelines purported to govern, inter alia, the content and format of airline fare advertising. See Morales, 504 U. S., at 393-418 (appendix to Court's opinion setting out NAAG guidelines on air travel industry advertising and marketing practices). Several States had endeavored to enforce the NAAG guidelines, under the States' general consumer protection laws, to stop allegedly deceptive airline advertisements. The States' initiative, we determined, "`relat[ed] to [airline] rates, routes, or services,' " id., at 378— 379 (quoting 49 U. S. C. App. § 1305(a)(1)); consequently, we held, the fare advertising provisions of the NAAG guidelines were preempted by the ADA, id., at 391.
For aid in construing the ADA words "relating to rates, routes, or services of any air carrier," the Court in Morales referred to the Employee Retirement Income Security Act of 1974 (ERISA), which provides for preemption of state laws "insofar as they . . . relate to any employee benefit plan." 29 U. S. C. § 1144(a). Under the ERISA, we had ruled, a state law "relates to" an employee benefit plan "if it has a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). Morales analogously defined the "relating to" language in the ADA preemption clause as "having a connection with, or reference to, airline `rates, routes, or services.' " Morales, 504 U. S., at 384.
The litigation now before us, two consolidated state-court class actions brought in Illinois, was sub judice when we decided Morales. Plaintiffs in both actions (respondents here) are participants in American Airlines' frequent flyer program, AAdvantage. AAdvantage enrollees earn mileage credits when they fly on American. They can exchange those credits for flight tickets or class-of-service upgrades. Plaintiffs complained that AAdvantage program modifications, instituted by American in 1988, devalued credits AAdvantage
In March 1992, several weeks before our decision in Morales, the Illinois Supreme Court rejected plaintiffs' prayer for an injunction. Such a decree, the Illinois court reasoned, would involve regulation of an airline's current rendition of services, a matter preempted by the ADA. That court, however, allowed the breach-of-contract and Consumer Fraud Act monetary relief claims to survive. The ADA's preemption clause, the Illinois court said, ruled out "only those State laws and regulations that specifically relate to and have more than a tangential connection with an airline's rates, routes or services." American Airlines, Inc. v. Wolens, 147 Ill.2d 367, 373, 589 N.E.2d 533, 536 (1992). After our decision in Morales, American petitioned for certiorari. The airline charged that the Illinois court, in a decision out of sync with Morales, had narrowly construed the ADA's broadly preemptive § 1305(a)(1). We granted the petition,
On remand, the Illinois Supreme Court, with one dissent, adhered to its prior judgment. Describing frequent flyer programs as not "essential," 157 Ill.2d 466, 472, 626 N.E.2d 205, 208 (1993), but merely "peripheral to the operation of an airline," ibid., the Illinois court typed plaintiffs' state-law claims for money damages as "relat[ed] to American's rates, routes, and services" only "tangential[ly]" or "tenuous[ly]," ibid.
We granted American's second petition for certiorari, 511 U.S. 1017 (1994), and we now reverse the Illinois Supreme Court's judgment to the extent that it allowed survival of plaintiffs' Consumer Fraud Act claims; we affirm that judgment, however, to the extent that it permits plaintiffs' breach-of-contract action to proceed. In both respects, we adopt the position of the DOT, as advanced in this Court by the United States.
We need not dwell on the question whether plaintiffs' complaints state claims "relating to [air carrier] rates, routes, or services." Morales, we are satisfied, does not countenance the Illinois Supreme Court's separation of matters "essential" from matters unessential to airline operations. Plaintiffs' claims relate to "rates," i. e., American's charges in the form of mileage credits for free tickets and upgrades, and to "services," i. e., access to flights and class-of-service upgrades unlimited by retrospectively applied capacity controls and blackout dates. But the ADA's preemption clause contains other words in need of interpretation, specifically, the words "enact or enforce any law" in the instruction: "[N]o State . . . shall enact or enforce any law . . . relating to [air carrier] rates, routes, or services." 49 U. S. C. App. § 1305(a)(1). Taking into account all the words Congress placed in § 1305(a)(1), we first consider whether plaintiffs'
The Consumer Fraud Act declares unlawful
The Act is prescriptive; it controls the primary conduct of those falling within its governance. This Illinois law, in fact, is paradigmatic of the consumer protection legislation underpinning the NAAG guidelines. The NAAG Task Force on the Air Travel Industry, on which the Attorneys General of California, Illinois, Texas, and Washington served, see Morales, 504 U. S., at 392, reported that the guidelines created no
The NAAG guidelines highlight the potential for intrusive regulation of airline business practices inherent in state consumer protection legislation typified by the Consumer
As the NAAG guidelines illustrate, the Consumer Fraud Act serves as a means to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers. In light of the full text of the preemption clause, and of the ADA's purpose to leave largely to the airlines themselves, and not at all to States, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,
American maintains, and we agree, that "Congress could hardly have intended to allow the States to hobble [competition for airline passengers] through the application of restrictive state laws." Brief for Petitioner 27. We do not read the ADA's preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings. As persuasively argued by the United States, terms and conditions airlines offer and passengers accept are privately ordered obligations
The FAA's text, we note, presupposes the vitality of contracts governing transportation by air carriers. Section 411(b), 49 U. S. C. App. § 1381(b), thus authorizes airlines to "incorporate by reference in any ticket or other written instrument any of the terms of the contract of carriage" to the extent authorized by the DOT. And the DOT's regulations contemplate that, upon the January 1, 1983, termination of domestic tariffs, "ticket contracts" ordinarily would be enforceable under "the contract law of the States." 47 Fed. Reg. 52129 (1982). Correspondingly, the DOT requires carriers to give passengers written notice of the time period within which they may "bring an action against the carrier for its acts." 14 CFR § 253.5(b)(2) (1994).
American does not suggest that its contracts lack legal force. American sees the DOT, however, as the exclusively competent monitor of the airline's undertakings. American
Nor is it plausible that Congress meant to channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law, the range of contract claims relating to airline rates, routes, or services. The ADA contains no hint of such a role for the federal courts. In this regard, the ADA contrasts markedly with the ERISA, which does channel civil actions into federal courts, see ERISA §§ 502(a), (e), 29 U. S. C. §§ 1132(a), (e), under a comprehensive scheme, detailed in the legislation, designed to promote "prompt and fair claims settlement." Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41, 54 (1987); see IngersollRand Co. v. McClendon, 498 U.S. 133, 143-145 (1990) (finding ERISA's comprehensive civil enforcement scheme a "special feature" supporting preemption of common-law wrongful discharge claims).
The conclusion that the ADA permits state-law-based court adjudication of routine breach-of-contract claims also makes sense of Congress' retention of the FAA's saving clause, § 1106, 49 U. S. C. App. § 1506 (preserving "the remedies now existing at common law or by statute"). The ADA's preemption clause, § 1305(a)(1), read together with the FAA's saving clause, stops States from imposing their own substantive standards with respect to rates, routes, or services, but not from affording relief to a party who claims and proves that an airline dishonored a term the airline itself
American suggests that plaintiffs' breach-of-contract and Consumer Fraud Act claims differ only in their labels, so that if Fraud Act claims are preempted, contract claims must be preempted as well. See Reply Brief 6. But a breach of contract, without more, "does not amount to a cause of action cognizable under the [Consumer Fraud] Act and the Act should not apply to simple breach of contract claims." Golembiewski v. Hallberg Ins. Agency, Inc., 262 Ill.App.3d 1082, 1093, 635 N.E.2d 452, 460 (1st Dist. 1994). The basis for a contract action is the parties' agreement; to succeed under the consumer protection law, one must show not necessarily an agreement, but in all cases, an unfair or deceptive practice.
American ultimately argues that even under the position on preemption advanced by the United States—the one we adopt—plaintiffs' claims must fail because they "inescapably depend on state policies that are independent of the intent of the parties." Reply Brief 3. "The state court cannot reach the merits," American contends, "unless it first invalidates or limits [American's] express reservation of the right
American's argument is unpersuasive, for it assumes the answer to the very contract construction issue on which plaintiffs' claims turn: Did American, by contract, reserve the right to change the value of already accumulated mileage credits, or only to change the rules governing credits earned from and after the date of the change? See Brief for Respondents 5 (plaintiffs recognize that American "reserved the right to restrict, suspend, or otherwise alter aspects of the Program prospectively," but maintain that American "never reserved the right to retroactively diminish the value of the credits previously earned by members"). That question of contract interpretation has not yet had a full airing, and we intimate no view on its resolution.
Responding to our colleagues' diverse opinions dissenting in part, we add a final note. This case presents two issues that run all through the law. First, who decides (here, courts or the DOT, the latter lacking contract dispute resolution resources for the task)? On this question, all agree to this extent: None of the opinions in this case would foist on the DOT work Congress has neither instructed nor funded the Department to do. Second, where is it proper to draw the line (here, between what the ADA preempts, and what it leaves to private ordering, backed by judicial enforcement)? Justice Stevens reads our Morales decision to demand only minimal preemption; in contrast, Justice O'Connor reads the same case to mandate total preemption.
* * *
For the reasons stated, the judgment of the Illinois Supreme Court is affirmed in part and reversed in part, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Although I agree with the majority that the Airline Deregulation Act of 1978 (ADA) does not pre-empt respondents' breach-of-contract claims, I do not agree with the Court's disposition of their consumer-fraud claims. In my opinion, private tort actions based on common-law negligence or fraud, or on a statutory prohibition against fraud, are not pre-empted. Under the broad (and in my opinion incorrect
Unlike the National Association of Attorneys General (NAAG) guidelines reviewed in Morales, the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) does not instruct the airlines about how they can market their services. Instead, it merely requires
I see no reason why a state law requiring an airline to honor its contractual commitments is any less a law relating to its rates and services than is a state law imposing a "duty not to make false statements of material fact or to conceal such facts." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 528 (1992) (finding similar claim not to be pre-empted under Federal Cigarette Labeling and Advertising Act). In this case, the two claims are grounded upon the exact same conduct and would presumably have an identical impact upon American's rates, routes, and services. The majority correctly finds that Congress did not intend to pre-empt a claim that an airline breached a private agreement. I see no reason why the ADA should pre-empt a claim that the airline defrauded its customers in the making and performance of that very same agreement.
I would analogize the Consumer Fraud Act to a codification of common-law negligence rules. Under ordinary tort principles, every person has a duty to exercise reasonable care toward all other persons with whom he comes into contact. Presumably, if an airline were negligent in a way that somehow affected its rates, routes, or services,
The majority's extension of Morales is particularly untenable in light of the interpretive presumption against preemption. As in Cipollone, I believe there is insufficient evidence of congressional intent to supersede laws of general applicability to justify a finding that the ADA pre-empts either the contract or the fraud claim. Cipollone, 505 U. S., at 525-530; see also Morales, 504 U. S., at 419-421 (Stevens, J., dissenting) (discussing presumption against pre-emption as an incident of federalism). Indeed, the presumption against pre-emption is especially appropriate to the ADA because Congress retained the "saving clause" preserving state "remedies now existing at common law or by statute." 49 U. S. C. App. § 1506.
Accordingly, while I join the Court's disposition of the breach-of-contract claims,
In permitting respondents' contract action to go forward, the Court arrives at what might be a reasonable policy judgment as to when state law actions against airlines should be pre-empted ifwe were free to legislate it. It is not, however, consistent with our controlling precedents, and it requires some questionable assumptions about the nature of contract law. I would hold that none of respondents' actions may proceed.
The Airline Deregulation Act of 1978 (ADA) says that "no State . . . shallenact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier." 49 U. S. C. App. § 1305(a)(1).
Applying Morales to this case, I agree with the Court that respondents' consumer fraud and contract claims are "related to" airline "rates" and "services." See ante, at 226. The Court says, however, that judicial enforcement of a contract's
I do not understand the Court to say that a State only "enforces" its "law" when some state employee (e. g., an attorney general, or a judge) orders someone to do something. If that were the meaning of "enforce" in this context, then a diversity action brought by a private party under state law in federal court would never be subject to § 1305 preemption, because no state employee is involved, whereas the same action might be pre-empted in state court. That would make little sense, and federal courts have routinely considered § 1305 in determining whether a particular state law claim is pre-empted. E. g., Statland v. American Airlines, Inc., 998 F.2d 539, 541-542 (CA7) (contract claim preempted), cert. denied, 510 U.S. 1012 (1993); West v. Northwest Airlines, Inc., 995 F.2d 148, 151 (CA9 1993) (tort claim for punitive damages pre-empted), cert. denied, 510 U.S. 1111 (1994); Cannava v. USAir, Inc., No. 91-30003—F, 1993 WL 565341, *6 (D. Mass., Jan. 7, 1993) (tort and contract claims pre-empted). Consequently, one must read "no State. . . shall . . . enforce any law" to mean that no one may enforce state law against an airline when the "enforcement actio[n] ha[s] a connection with, or reference to, airline `rates, routes, or services.' " Morales, supra, at 384. This explains the Court's conclusion, with which I agree, that private parties such as respondents may not enforce the Illinois consumer fraud law against petitioner in an action whose subject matter relates to airline rates and services. Ante, at 228.
As I read § 1305 and Morales, however, respondents' contract claims also must be pre-empted. The Court recognizes, ante, at 227, that the "guidelines" at issue in Morales
The Court concludes, however, that § 1305 does not preempt enforcement, by means of generally applicable state law, of a private agreement relating to airline rates and services. I cannot distinguish this case from Morales. In both, the subject matter of the action (the guidelines in Morales, the contract here) relates to airline rates and services. In both, that subject matter has no legal force, except insofar as a generally applicable state law (a consumer fraud law in
The Court argues that the words "law, rule, regulation, standard, or other provision" in § 1305 refer only to "`official, government-imposed policies, not the terms of a private contract.' " Ante, at 229, n. 5 (quoting Brief for United States as Amicus Curiae 17). To be sure, the terms of private contracts are not "laws," any more than the guidelines at issue in Morales were "laws." But contract law, and generally applicable consumer fraud statutes, are laws, and Morales held that § 1305 prevents enforcement of "any [state] law" against the airlines when the subject matter of the action
As the Court recognizes, ante, at 234, n. 9, my view of Morales does not mean that personal injury claims against airlines are always pre-empted. Many cases decided since Morales have allowed personal injury claims to proceed, even though none has said that a State is not "enforcing" its "law" when it imposes tort liability on an airline. In those cases, courts have found the particular tort claims at issue not to "relate" to airline "services," much as we suggested in Morales that state laws against gambling and prostitution would be too tenuously related to airline services to be preempted, see Morales, supra, at 390. E. g., Hodges v. Delta Airlines, Inc., 4 F.3d 350, 353-356 (CA5 1993) (arguing that "`services' is not coextensive with airline `safety,'" so safety-related tort claim should not be pre-empted; urging en banc review to bring Circuit precedent into conformity with that view), rehearing en banc granted, 12 F.3d 426 (1994); Public Health Trust v. Lake Aircraft, Inc., 992 F.2d 291, 294-295 (CA11 1993) (tort claim for defective aircraft design not pre-empted because not related to airline services); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1443, and n. 11, 1444, n. 13 (CA10) (same), cert. denied, 510 U.S. 908 (1993); Stagl v. Delta Air Lines, Inc., 849 F.Supp. 179, 182 (EDNY 1994) (tort claim against airline for personal injury not pre-empted because not related to airline "services" within the meaning of § 1305); Curley v. American Airlines, Inc., 846 F.Supp. 280, 284 (SDNY 1994) (same); Bayne v. Adventure Tours USA, Inc., 841 F.Supp. 206 (ND Tex. 1994)
Our recent decision in Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117 (1991), is relevant. The question in that case was whether a rail carrier's statutory exemption from "all other law," which we read to mean "all law as necessary to carry out an ICC-approved transaction," id., at 129, exempted the carrier from contractually imposed obligations. We held that it did. We noted that "[a] contract depends on a regime of common and statutory law for its effectiveness and enforcement," id., at 129-130, that "[a] contract has no legal force apart from the law that acknowledges its binding character," id., at 130, and that "`[l]aws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as fully as if they had been expressly referred to or incorporated in its terms," ibid. (quoting Farmers and Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U.S. 649, 660 (1923)). Accordingly, we concluded that "the exemption . . . from `all other law' effects an override of contractual obligations . . . by suspending application of the law that makes the contract binding." 499 U. S., at 130. In so concluding, we specifically rejected the Court of Appeals' views that the "all other law" exemption "[n]owhere . . . sa[id] that the ICC may also override contracts," and that it did not exempt the carrier from "`alllegal obstacles.' " Brotherhood of R. Carmen v. ICC, 880 F.2d 562, 567 (CADC 1989); see Norfolk & Western, supra, at 133-134.
The Court does not dispute this reading of Norfolk & Western, which in my view makes clear that a State is enforcing its "law" when it brings its coercive power to bear
As support for its theory, the Court cites only a statement in the plurality opinion in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992); see ante, at 229. The Cipollone plurality said that "a common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a `requirement . . . imposed under State law ` within the meaning of § 5(b)." 505 U. S., at 526. But the plurality elaborated on this point in a footnote. In rejecting the argument that specific warranty obligations are "imposed under State law," the plurality agreed that pre-emption might be required "if the Act pre-empted `liability ` imposed under state law . . . ; but instead the Act expressly pre-empts only a `requirement or prohibition ` imposed under state law." Id., at 526, n. 24. It agreed that contractual requirements are "only enforceable under state law," but argued that those requirements are "`imposed' by the contracting party upon itself." Ibid. The plurality thus distinguished the situation where substantive requirements contained in a contract are enforceable only under state law from the situation where state law itself imposes substantive requirements, and concluded that the statute before it pre-empted only the latter kind of state law. Here, as in Cipollone, the requirements
The Court also concludes that § 1305 only "stops States from imposing their own substantive standards with respect to rates, routes, or services," ante, at 232. In Morales, however, we specifically rejected an interpretation of § 1305 that would have rewritten it to read: No State shall "`regulate rates, routes, and services.' " See Morales, 504 U. S., at 385-386. There is little distinction between "regulating rates, routes, and services" and "imposing substantive standards with respect to rates, routes, and services," and the Court does not explain how Morales ` rejection of the former allows it now to adopt the latter. The Court relies on the statute's "saving clause," 49 U. S. C. App. § 1506, see ante, at 232, but we said in Morales that "[a] general `remedies' saving clause cannot be allowed to supersede the specific substantive pre-emption provision," particularly where, as here, "the `saving' clause is a relic of the pre-ADA/no pre-emption regime." Morales, 504 U. S., at 385.
Without question, Morales gave § 1305 a broad preemptive sweep. The dissent in that case argued that such a broad interpretation went too far by pre-empting areas of traditional state regulation without a clear expression of congressional intent to do so. Id., at 421-424 (Stevens, J., dissenting); see also ante, at 235, 237 (Stevens, J., concurring in part and dissenting in part). But the Court rejected the dissent's reading, holding instead that § 1305's language demonstrated a clear "statutory intent" to expressly preempt generally applicable state law as long as the "particularized application" of that law relates to airline rates, routes, or services. Morales, supra, at 383, 386, and n. 2.
Congress has recently revisited § 1305, and said that it "d[id] not intend to alter the broad preemption interpretation adopted by the United States Supreme Court in Morales, " H. R. Conf. Rep. No. 103-677, p. 83 (1994). If the Court nonetheless believes that Morales misread § 1305, the proper course of action would be to overrule that case, despite Congress' apparent approval of it. The Court's reading of § 1305 is not, in my view, a "`closer working out' " of ADA pre-emption, see ante, at 235; rather, it is a new approach that does not square with our decisions in Morales and Norfolk & Western.
Stare decisis has "special force" in the area of statutory interpretation, see Allied-Bruce Terminix Cos. v. Dobson, post, at 284 (O'Connor, J., concurring) (internal quotation marks omitted). It sometimes requires adherence to a wrongly decided precedent. Post, at 283-284. Here, however, Congress apparently does not think that our decision in Morales was wrong, nor do I. In the absence of any "`special justification,' " post, at 284 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)), for departing from Morales, I would recognize the import of Morales and Norfolk & Western here, and render the decision that the lan-
& § 1305, guage of in light of those cases, compels. If, at the end of the day, Congress believes we have erred in interpreting § 1305, it remains free to correct our mistake.
Our decisions in Morales and Norfolk & Western suffice to decide this case along the lines I have described. In addition, however, I disagree with the Court's view that courts can realistically be confined, "in breach-of-contract actions, to the parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement." Ante, at 233. When they are so confined, the Court says, courts are "simply hold[ing] parties to their agreements,"
The doctrinal underpinnings of the notion that judicial enforcement of the "intent of the parties" can be divorced from a State's "public policy" have been in serious question for many years. As one author wrote some time ago:
More recent authors have expressed similar views. See, e. g., Braucher, Contract Versus Contractarianism: The Regulatory Role of Contract Law, 47 Wash. & Lee L. Rev. 697, 699 (1990) ("Mediating between private ordering and social concerns, contract is a socioeconomic institution that requires an array of normative choices. . . . The questions addressed by contract law concern what social norms to use in the enforcement of contracts, not whether social norms will be used at all"). Contract law is a set of policy judgments concerning how to decide the meaning of private agreements, which private agreements should be legally enforceable, and
Thus, the Court's allowance that "`[s]ome state-law principles of contract law . . . might well be preempted to the extent they seek to effectuate the State's public policies, rather than the intent of the parties,' " ante, at 233, n. 8 (quoting Brief for United States as Amicus Curiae 28), threatens to swallow all of contract law. For example, the Court observes that on remand, the state court will be required to decide whether petitioner reserved the right to alter the terms of its frequent flyer program retroactively, or instead only prospectively. Ante, at 234. The court will presumably decide that question by looking to the usual "rules" of contract interpretation to decide what the contract's language means. If the court finds the language to be ambiguous, it might invoke the familiar rule that the contract should be construed against its drafter, and thus that respondents should receive the benefit of the doubt. See 2 E. Farnsworth, Farnsworth on Contracts § 7.11, pp. 265— 268 (1990) (hereinafter Farnsworth). That rule of contract construction is not essential to a functional contract system. It is a policy choice that our contract system has made. Other such policy choices are that courts should not enforce agreements unsupported by consideration, see 1 Farnsworth § 2.5; but cf. J. Barton, J. Gibbs, V. Li, & J. Merryman, Law in Radically Different Cultures 579 (1983) (other legal systems enforce certain agreements not supported by consideration); that courts should supply "reasonable" terms to fill "gaps" in incomplete contracts, see 2 Farnsworth §§ 7.15-7.17; the method by which courts should decide what terms to supply, see C. Fried, Contract as Promise 60, 69-73 (1981); Charny, Hypothetical Bargains: The Normative Structure of Contract Interpretation, 89 Mich. L. Rev. 1815, 1816, 1820-1823
Even the doctrine of unconscionability, which the United States suggests as an aspect of contract law that "might well be preempted" because it "seek[s] to effectuate the State's public policies, rather than the intent of the parties," Brief for United States as Amicus Curiae 28, cannot be so neatly categorized. On the one hand, refusing to enforce a contract because it is "unfair" seems quintessentially policy oriented. But on the other, "[p]rocedural unconscionability is broadly conceived to encompass not only the employment of sharp practices and the use of fine print and convoluted language, but a lack of understanding and an inequality of bargaining power." 1 Farnsworth § 4.28, at 506-507 (footnotes omitted). In other words, a determination that a contract is "unconscionable" may in fact be a determination that one party did not intend to agree to the terms of the contract. Thus, the unconscionability doctrine, far from being a purely "policy-oriented" doctrine that courts impose over the will of the parties, instead demonstrates that state public policy cannot easily be separated from the methods by which courts are to decide what the parties "intended."
"[T]he law itself imposes contractual liability on the basis of a complex of moral, political, and social judgments." Fried, supra, at 69. The rules laid down by contract law for determining what the parties intended an agreement to
For these reasons, I would reverse the judgment of the Illinois Supreme Court.
"[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier . . . ." § 41713(b)(1). Congress intended the revision to make no substantive change. Pub. L. 103-272, § 1(a), 108 Stat. 745.