Whither Bespoke Procedure?

46 Pages Posted: 14 Feb 2013 Last revised: 13 May 2013

David A. Hoffman

University of Pennsylvania Law School; Cultural Cognition Project at Yale Law School

Date Written: February 15, 2013

Abstract

Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.

How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses, and the economic logic which makes them so compelling.

A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure; nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform and progressive; they will be punctuated, particularized and contingent.

Keywords: private procedure, federal rules of civil procedure, contract law, bespoke, discovery, motion practice, arbitration

JEL Classification: K12, K41

Suggested Citation

Hoffman, David A., Whither Bespoke Procedure? (February 15, 2013). University of Illinois Law Review, Forthcoming; Temple University Legal Studies Research Paper No. 2013-10. Available at SSRN: https://ssrn.com/abstract=2216902 or http://dx.doi.org/10.2139/ssrn.2216902

David A. Hoffman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Samson Street
Philadelphia, PA 19104
United States

Cultural Cognition Project at Yale Law School

127 Wall St
New Haven, CT 06520
United States

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