Document Type

Article

Publication Date

2016

Publication Information

95 Nebraska Law Review 787 (2016)

Reprinted with permission from the Nebraska Law Review. This article was previously published in the Nebraska Law Review. See H. Allen Blair, Promise and Peril: Doctrinally Permissible Options for Calibrating Procedure Through Contract, 95 Neb. L. Rev. 787 (2016).

Abstract

For a long time, arbitration was the only game in town for parties who wanted more flexibility in the adjudication of their disputes. They faced a dichotomous choice between accepting the public court system and its attendant procedural rules or opting out entirely and resolving their disputes in arbitration. Private process, however, "has migrated in surprising ways into the public courts: despite public rules of procedure, judicial decisions increasingly are based on rules of procedure drafted by the parties . . . ." This sort of private procedural ordering gives parties the ability to unbundle the off-the-rack procedures applied in public courts and bargain about individual rules. Customized procedure, in short, offers parties much of the flexibility that once seemed the prerogative of arbitration while maintaining the advantages of public adjudication, including, most significantly, rights to appeal and public subsidization. While arbitration has arguably be-come more like litigation, litigation may be becoming more like arbitration.

The promise of more flexible public adjudication presents parties with significant benefits. Yet, given the potential gains from finely tuned procedure, it is puzzling that current empirical evidence suggests that few parties explore the full range of customization theoretically available to them. Indeed, while the evidence we have is far from perfect, it seems to indicate that parties are doing precious little fine-tuning, at least ex ante.

This Article evaluates this doctrinal explanation for the puzzle created by the gap between the potential gains of customized procedure and the apparent reality that parties do little of it, at least before a dispute arises. It concludes that a close look at the doctrine does not bear this story out. To the contrary, while express authorization for many forms of customized procedure does not exist, the current trend of doctrine could not be clearer: courts seem ready to enforce parties' autonomous procedural choices. Accordingly, there are minimal risks that a court will refuse to enforce or abide by a procedural customization so long as it does not suffer from some fundamental contract formation flaw, like unconscionability or fraud.

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