43 Pages Posted: 12 Jun 2006
Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.
Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, helping it to secure negotiating advantage and success over its counterparty.
Keywords: boilerplate, bargaining, strategy, contract, adhesion, standard-form, norm, convention, Schelling, focal point, coordination, signaling, communication, cheap talk, indenture
JEL Classification: D74, D82, D84, K12, K22
Suggested Citation: Suggested Citation
Ahdieh, Robert B., The Strategy of Boilerplate. Michigan Law Review, Vol. 104, p. 1033, 2006; Emory Law and Economics Research Paper No. 06-11; Emory Public Law Research Paper No. 06-18. Available at SSRN: https://ssrn.com/abstract=907414