Part I of this Article provides an introduction to the concept of bargaining power and offers a review of the case law in which superior bargaining power has played a central role. It demonstrates the wide array of approaches taken by courts in explaining and applying the concept, as well as the contexts in which they have used the concept as an explanatory device. This review reveals the absence of judicial consensus on the meaning of bargaining power and suggests that courts use the term as an entry point for the discussion of concerns not clearly related to the concept of power or its misuse. Part II describes the academic literature focusing on bargaining power, paying particular attention to the lack of a shared notion of what bargaining-power means. Part III analyzes the term superior bargaining power, demonstrating its incoherence and the impossibility of measuring and comparing relative degrees of interparty power. Part IV discusses possible alternatives to the bargaining power construct, some doctrinal, others legislative and regulatory. It suggests that all are superior to the continued use of bargaining power and that it would be better still to eliminate bargaining power as a factor in contractual analysis.
