June 2011, Volume 97, Issue 4|
The Limits of Procedural Private Ordering
97 Va. L. Rev. 723 (2011)
The rules of civil procedure are traditionally conceived of as immutable and inalienable with limited carve-outs—most commonly, forum selection and choice of law provisions. I argue that these instances of procedural contracting are 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 ex ante by contract. This conversion of procedural rules from publicly-created guarantors of procedural justice to privately-bargained commodities alters the nature and function of civil procedure at the most fundamental level, requiring reassessment of the public and private roles of civil procedure.
Courts broadly enforce contract terms not only electing between systems of procedure but also modifying individual procedural rights and procedures applied by the court. I argue that the recent turn toward enforcement fails to address the inherent link between substance and procedure. I contend that this approach creates hydraulic pressure toward the use of procedure to contract around substantive law and fails to correct for unique information cost asymmetries inherent to contracting for procedure in specified bargaining situations, which increase the likelihood of market failure. Based upon these considerations, I elaborate the symmetrical theory of procedure, in which the degree of procedural modification permitted is 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 modification.
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