Originally uploaded at SSRN.

Abstract

Civil procedure is traditionally conceived of as a body of publicly-set rules, with limited carve-outs – most commonly, forum selection and choice of law provisions. I argue that these terms are mere instantiations of a broader, unified phenomenon of procedural private ordering, in which civil procedure is no longer irrevocably defined by law, but instead is a mere default that can be waived or modified by contract. Parties are no longer merely selecting between publicly-created procedural regimes but customizing the rules of procedure to be applied by the court – from statutes of limitations, discovery obligations and the admissibility of evidence, to burdens of proof, available remedies and standard of review – before a dispute arises. The resulting conversion of procedural rules from publicly-created guarantors of procedural justice to privately-bargained commodities fundamentally alters our system of civil procedure.

But the impact transcends civil procedure, as the existing doctrine allows parties to use procedural terms not only to reinforce their substantive obligations under contract or statutory default rules, but to circumvent limits on the alienability of non-waivable rights – reducing even those substantive laws designated as mandatory to a mere set of default rules.

I argue that while procedural contracting can often enhance both private and social welfare, we should not permit its use as a mechanism for contracting around existing limits on private ordering. The Article concludes by exploring the viability of a symmetrical approach, whereby any applicable limitations upon the substance of a contract are applied with equal force both to substantive terms and procedural terms. Likewise, this approach denies enforcement to procedural contracts seeking to modify elements of procedure that have been removed from the ambit of modification via stipulation during the litigation process, creating symmetry between pre- and post-dispute contracts.

The degree of procedural alteration permitted is thus a function of the contracting parties’ right to modify or waive the underlying substantive right that gives rise to the claim at issue; the procedural contract is then treated as an ex post stipulation, for purposes of determining the judicial enforceability of the particular modification. In this way, the symmetrical approach permits procedural contracting to further the parties’ legitimate ends, while preventing its use as a method for circumventing limitations on private ordering.

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