United States
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Description
This report responds to the call for information from the United States about what the conveners have termed the ‘contractualisation of civil litigation.’ The language of contract evokes images of disputants making autonomous choices to devise and agree to bespoke procedures and customised rules that are adapted to their situations. In our view, use of the term ‘contractualisation’ should be reserved for instances when parties of relatively equal status enter into negotiations and, in exchange for valuable consideration, agree to be bound by terms that replace or complement public rules of civil process. Such negotiated, specific contract terms could come into being before a dispute exists, after it has arisen, or once a lawsuit or other dispute-resolution proceeding is pending. This form of contractualised procedure is predicated on parties not only with commensurate bargaining power but also with the ability to make informed assessments of litigation prospects and of the remedies sought, and with the capacity to structure or adopt an alternative dispute-resolution mechanism or instead to come to an agreed-upon end of the dispute. When private parties comply with these obligations, courts play no role. If breaches of agreements occur, one party may decide to seek enforcement in court. At that point, issues emerge about whether judges should accede to the agreement or impose some constraints. Because such real contracts crafting alternative procedures are a small subset of the contemporary developments in U.S. Law, questions of their enforcement are not the focus of this report. Of course, civil litigation is a mélange of public and private decisions. Whenever non-governmental entities file in court, they make ‘private’ decisions to seek public remedies. Indeed, an important feature of U.S. law is the creation of incentives for ‘private enforcement’ of public laws involving such fields as antitrust, securities regulation, consumer relations, employment, and civil rights. We concentrate on a host of procedural provisions that sometimes are termed ‘contractual’ but for which the word ‘contract’ is generally inapt. In a variety of arenas involving parties of unequal status (such as employers and employees and merchants and consumers), a more powerful party imposes procedural terms that alter the forms and modes of dispute resolution in civil litigation or completely block access to courts. The effort to do so is not novel and in decades past, U.S. judges often considered bargaining asymmetries and, at times, declined to enforce mandates imposed by a more powerful party on the other side. In recent decades, and often invoking the idea of a contract, the U.S. Supreme Court has shifted towards enforcing such arrangements. The unilateral mandates that have obtained court enforcement result in interactions better understood as ‘cramdowns’ rather than ‘contracts.’
Source Publication
Contractualisation of Civil Litigation
Source Editors/Authors
Anna Nylund, Antonio Cabral
Publication Date
2023
Recommended Citation
Hershkoff, Helen and Resnik, Judith, "United States" (2023). Faculty Chapters. 2053.
https://gretchen.law.nyu.edu/fac-chapt/2053
