Law Review Article | Contract and Procedure

Christopher R. Drahozal, John M. Rounds Professor of Law at the University of Kansas School of Law, and Peter B. Rutledge, Associate Professor of Law at the University of Georgia School of Law, recently authored a theoretical and empirical law review article entitled Contract and Procedure, (February 14, 2011), Marquette Law Review, Forthcoming; University of Kansas School of Law Working Paper No. 2011-1; UGA Legal Studies Research Paper No. 11-02. In the article, the authors examine procedural contracts and the effect recent U.S. Supreme Court decisions such as Rent-A-Center, West and Stolt-Nielsen have had on such agreements.

Here is the 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.

The article may be downloaded here (without charge) from Social Science Research Network.

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