Are All Contracts Alike?

Authors

Margaret F. Brinig, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

2008

Publication Information

43 Wake Forest L. Rev. 533 (2008)

Abstract

This Article compares two sets of contracts that are structurally and contextually similar. They originate in two quite different fields, however: the commercial arena and the family. The contracts come from two separate empirical investigations. The first investigation studied 131 telecommunication interconnection agreements made between SBC Communications, Inc. ("SBC") and various local phone companies in Michigan beginning in 1998. The second investigation involved 141 divorce cases granted in 1998 in Johnson County, Iowa, all of which involved children, and 130 of which involved contracts, or "stipulations" as they are called locally. Though each empirical project has been described separately elsewhere, this Article will consider them together.

What happens if a contract is not launched with rose-colored expectations, but rather because one has to? This is the problem faced by incumbent and competing local phone companies who need to negotiate contracts under the Telecommunications Act of 1996. It is also the problem that divorcing couples face when they negotiate separation agreements. When the law forces parties to contract over an extended period and they are not both willing entrants into the new or reconfigured relationship, what characterizes the contracts? What makes some contracts successful?

The punch line of this Article is that the two sets of agreements are similar enough-and produce similar enough results-to be studied together. There is much we can learn about how to write long-term contracts when we see how clauses operate similarly and successfully-in two such different areas. However, skeptics are right when they decry attempts to draw perfect analogies between corporate affairs and marriages. In particular, the role of fault in dissolving marital partnerships overwhelmed other considerations that might have produced more successful contracts. It remains to be seen whether it is the prior bad relationship (leading to the fault) that is responsible or just the emotional nature of these marital dissolutions.

Comments

Copyright by Wake Forest Law Review. Reprinted with permission.

Recommended Citation

Margaret F. Brinig, Are All Contracts Alike?, 43 Wake Forest L. Rev. 533 (2008).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/358