The Form Knows Best
University of Miami Law Review, Vol. 79, 2025
Virginia Public Law and Legal Theory Research Paper No. 2025-32
21 Pages Posted: 25 Apr 2025 Last revised: 25 Apr 2025
Date Written: April 15, 2025
Abstract
Law students learn that contracts are carefully negotiated, precisely drafted, and shaped by doctrine. But lawyers tell a different story. This article compares six pillars of contract law with what we heard in over 170 interviews with senior transactional lawyers across M&A, sovereign bonds, and leveraged loans. The result is a gap between the Official Story taught in classrooms and the Unofficial Story told by practitioners—where boilerplate dominates, case law is rarely consulted, and market custom often prevails over efficient design. We suggest that many contract provisions are better understood as historical artifacts: products of inherited forms and production pressure. Or, as one lawyer put it, more Mars Bar than masterpiece. That gap may matter, especially when courts often interpret form as if it reflects intent.
Keywords: contract law, contract theory, boilerplate
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