Contract and Procedure

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

69 Pages Posted: 15 Feb 2011 Last revised: 4 Oct 2015

Christopher R. Drahozal

University of Kansas School of Law

Peter B. Rutledge

University of Georgia Law School

Date Written: February 14, 2011

Abstract

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.

Keywords: Procedural contracts, contracts, arbitration, alternative dispute resolution

JEL Classification: K11

Suggested Citation

Drahozal, Christopher R. and Rutledge, Peter B., Contract and Procedure (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 . Available at SSRN: https://ssrn.com/abstract=1761407 or http://dx.doi.org/10.2139/ssrn.1761407

Christopher R. Drahozal

University of Kansas School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9239 (Phone)
785-864-5054 (Fax)

Peter B. Rutledge (Contact Author)

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

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