Article Title

Procedure as Contract


Judith Resnik


During much of the twentieth century, civil processes in the United States relied on a conceptual framework anchored in the constitutional and common law of due process. More recently, the case law looks to doctrines of contract and agency law to enforce contracts to preclude litigation and to encourage the entry of contracts to conclude litigation. While “bargaining in the shadow of the law” is a phrase often invoked, bargaining is increasingly a requirement of the law of conflict resolution, both civil and criminal. Therefore, analyses of the meaning of agreements, familiar features of the law of contract, are becoming central elements of the new law of Civil Procedure. As a consequence, debate needs to center on what the law of “Contract Procedure” should provide. Central questions include whether parties ought to be able to contract for jurisdiction (both state and federal), for choice-of-law rules, and for privacy. Contract Procedure needs also to decide how to regulate the role of judges (who sometimes participate in shaping civil bargains) and what rights parties have when post-agreement conflicts arise either about the existence of a settlement or about the meaning of its terms. As Contract Procedure supplements and sometimes supplants “Due Process Procedure,” the rules of bargaining for legally binding judgments need to identify what bargains law cannot abide. Reprinted by permission of the publisher.



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