I would also like to see some punishment for this. It is commonly used to bully the public who can't afford to call a lawyer for every little thing. I do think it should be illegal to knowingly include unenforceable clauses.
However it is not a trivial problem. Different jurisdictions have different rules about what sort of things are allowed in a contract. It probably wouldn't be good if they needed different contracts in different states. (Although maybe being required to list the differences explicitly in contracts that are clearly intended for cross-US use would be good). Additionally you won't want to void a contract just because any little detail is unenforceable.
I think the issue's with differing laws is more or less covered by "knowingly".
A small company that gets a contract drafted up and uses it in a neighbouring state or something wouldn't really qualify as doing it "knowingly" by any reasonable sense of the word.
A company the size of TicketMaster who has undoubtedly already had lawyers from or familiar with multiple regions review and modify their contracts can damn well be considered "knowingly" doing this. And if they _didn't_ have any other lawyers look at it, well, I think we could call that willful ignorance ("negligence") and apply it anyway.
This really isn't far off of established law, either (at least to my layman understanding). This is more or less how most criminal laws work already. You have to have some sort of intent to commit the crime. Intent can be fulfilled by negligence/etc as well. (You didn't _try_ and do this, but you didn't take the level of care that would be expected so it was a foreseeable outcome of your actions and we're taking that as good as intent.)
> A company the size of TicketMaster who has undoubtedly already had lawyers from or familiar with multiple regions review and modify their contracts can damn well be considered "knowingly" doing this.
Known or should have known is usually how this is phrased.
However it is not a trivial problem. Different jurisdictions have different rules about what sort of things are allowed in a contract. It probably wouldn't be good if they needed different contracts in different states. (Although maybe being required to list the differences explicitly in contracts that are clearly intended for cross-US use would be good). Additionally you won't want to void a contract just because any little detail is unenforceable.