Party Choice of Procedure & Specific Performance

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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3 Responses

  1. A.J. Sutter says:

    I admit I might not be the world’s most sophisticated practitioner, but I can’t recall ever seeing a contract with procedural rules about adjudication, other than waiver of jury trial. You’re an empirical guy — is this a real problem in practice? Or just a contrived one to be mined academically?

    I share your puzzlement about why specific enforcement should be the assumed default mechanism, but according to Tina Stark’s treatise on boilerplate and the cites therein (Chap. 7), some jury trial waivers, at least, seem to be enforced specifically.

  2. Dave Hoffman says:

    Well, that’s part of the puzzle. The common ones – maybe so common you haven’t thought about – are forum, law, statute of limitations, jury trial, and class waiver. (Arbitration is a distinct category.) The hypothesized ones are discovery, pleading standards, evidentiary rules, limitations on joinder, etc. I don’t think this is a “problem”, I think it’s question: what is the status of private discovery, and what should the status be?

  3. A.J. Sutter says:

    A meta-thought on this topic: given that some of the clauses you mention, e.g. class action and statute of limitations waivers, typically arise in highly asymmetrical contexts, such as employment applications and other labor law situations, isn’t the notion that, as Bone puts it, “parties can directly shape procedure for their cases” a bit of a fiction? Most of my deals involve parties with relatively symmetrical bargaining power, and I don’t run into such clauses. So should the questions to be explored about them also include issues like justice?