The Form Knows Best

21 Pages Posted: 25 Apr 2025 Last revised: 25 Apr 2025

See all articles by Tara Chowdhury

Tara Chowdhury

University of Virginia - School of Law

Faith Chudkowski

University of Virginia - School of Law

Mitu Gulati

University of Virginia School of Law; European Corporate Governance Institute (ECGI)

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

Suggested Citation

Chowdhury, Tara and Chudkowski, Faith and Gulati, Mitu, The Form Knows Best (April 15, 2025). University of Miami Law Review, Vol. 79, 2025, Virginia Public Law and Legal Theory Research Paper No. 2025-32, Virginia Law and Economics Research Paper No. 2025-07, Available at SSRN: https://ssrn.com/abstract=5218952 or http://dx.doi.org/10.2139/ssrn.5218952

Tara Chowdhury

University of Virginia - School of Law ( email )

Charlottesville, VA
United States

Faith Chudkowski

University of Virginia - School of Law ( email )

580 Massie Rd
Charlottesville, VA 22903
United States

Mitu Gulati (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

European Corporate Governance Institute (ECGI)

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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