Contract and Procedure
Christopher R. Drahozal
University of Kansas School of Law
Peter B. Rutledge
University of Georgia Law School
February 14, 2011
94 Marquette Law Review 1103 (2011)
University of Kansas School of Law Working Paper No. 2011-1
UGA Legal Studies Research Paper No. 11-02
This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and the scope of an arbitrator's ability to fill gaps in parties' procedural contracts (at issue in the Supreme Court's recent Stolt-Nielsen decision). At an empirical level, this paper taps a largely unexplored database of credit card contracts available at the Federal Reserve in order to examine actual practices in the use of procedural contracts.
Number of Pages in PDF File: 69
Keywords: Procedural contracts, contracts, arbitration, alternative dispute resolution
JEL Classification: K11
Date posted: February 15, 2011 ; Last revised: July 6, 2012
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