Procedural Autonomy

de Henry Allen Blair

Commercial parties author the substantive terms of their contracts. Of course, they do not and cannot think of everything. Epistemic limits, differentials in bargaining power, and escalating costs prevent them from addressing all possible contingencies and details. So, contract law helps out by offering a set of default terms, which fill in many gaps. Conventional contract theory says that parties will change these defaults and select transaction-specific provisions whenever doing so will increase their contractual surplus. More and more commentators have been asking whether similar autonomy extends to procedure: can, do, and should parties also be free to author the processes used to determine their substantive rights? The existing rules of procedure could be seen as defaults that apply to the extent that parties do not opt out or stickiness does not prevent them from doing so. The articles that comprise this dissertation address these questions, with emphasis on the first two: can and do parties engage in procedural contracting. Chapter 1 focuses on whether parties have the power, under existing law, to contract for their own procedural regimes. It does so in a narrow context: opting into enhanced review of arbitral awards. This narrow context matters to the larger project because the only Supreme Court decision in the past sixty years to arguably curtail party autonomy over procedure was Hall Street Associates, L.L.C. v. Mattel, Inc., which eliminated the authority of parties to opt into greater judicial scrutiny of their arbitral awards in federal courts. Chapter 1 investigates whether Hall Street’s limitation threatens the freedom of contract in arbitration. Analyzing not only the case but the historic trajectory of Supreme Court jurisprudence on procedural contracting, Chapter 1 concludes that Hall Street was a poorly decided opinion, but it does not undermine party authority over procedure in arbitration. To the contrary, it purports to bolster that freedom by encouraging parties to look to state arbitration law for enforcement of awards. That outcome might jeopardize the harmonious function of arbitration law, but it does not signal any reticence by the Court about procedural contracting. Chapter 2 picks up on a similar but broader approach. It begins by outlining the many theoretical benefits that parties could achieve through contractually selected dispute resolution procedures. Those benefits are significant. It then conducts a high-level survey of existing empirical literature. This literature concludes that parties do precious little procedural customization in their contracts. Chapter 2 recognizes the puzzling tension between these two conclusions: if procedural customization offers significant opportunity for contractual gains, why are parties shy about making such customizations? Chapter 2 posits that one important answer could be that existing doctrine prevents or dissuades procedural customization. Accordingly, Chapter 2 revisits and broadens the doctrinal analysis conducted in Chapter 1, evaluating a wider range of precedents, including lower federal court cases and state court cases. It concludes that courts are abandoning their historic skepticism over the devolution of judicial authority and recognizing the advantages of seeing dispute resolution procedures, both outside of courts and within them, as defaults rather than immutable or mandatory rules. Although not all forms of procedural autonomy are expressly welcomed by courts, the overwhelming trend of precedent suggests that courts would validate most procedural contracts. Chapter 3 then confronts the unsolved puzzle: why do parties seem to avoid procedural customization when such customization could provide significant contractual gains? It begins with a more thorough meta-analysis of existing empirical studies looking at procedural contracting. Many existing studies focus on only a small subset of all possible procedural innovations, so Chapter 3 weaves the studies together to paint a broader and more comprehensive picture. It finds that, contrary to some early commentator’s estimates, some parties, some of the time, engage in a diverse range of procedural customization. In other words, the general conclusions reached by many commentators about the lack of procedural contracting are imprecise. Procedural contracting does take place. The challenge has been identifying and explaining the patterns of procedural contracting. Chapter 3 argues that the first step towards understanding the ways that transactional designers harness the potential of procedural autonomy is to recognize that procedural customization functions best to offset litigation opportunism. Such opportunism is inherent in formal dispute resolution, but it presents particular problems in the context of contract dispute resolution. After a dispute arises, parties can strategically exploit the mismatch between their ex ante intentions and a decision maker’s ability t