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72 Oklahoma Law Review 797 (2020)


Despite a vast literature on contract theory, scholars are only just scratching the surface of understanding how parties design their contracts in the real world. This shortfall is particularly true of procedural customizations. Contrary to some early commentators’ estimates, in a small but significant set of circumstances, parties engage in a diverse range of procedural customization. To date, however, scholars have struggled to identify and explain the patterns of ex ante procedural contracting.

This Article argues that the first step toward understanding how transactional attorneys harness the potential of procedural autonomy is to recognize that procedural customization functions most effectively to offset litigation opportunism. By systematically considering how various forms of customization limit or eliminate litigation opportunism, this Article demonstrates how contract design can be improved through procedural contracting. This Article then advances a typology of procedural innovation that considers the key attributes underlying a transaction, namely the degree of environmental and behavioral uncertainty present and the frequency with which other similar parties contract in the same domain. This typology offers tentative predictions about when and how parties are most likely to calibrate procedure through contract.

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Contracts Commons