ABSTRACT
Boilerplate contracts have long fascinated legal scholars. But the focus has largely been on consumer contracts, with the debate centered on the question of whether ‘take it or leave it’ mass produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate – the standard forms used in transactions for corporate or sovereign bonds or merger agreements – have traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not substance from bespoke contracts between business entities. Yet a growing body of scholarship is questioning that assumption. This essay provides a review of the complexities of contract production in these large markets and a window into an exciting new area of contracts research.
Scott, Robert E and Choi, Stephen J and Gulati, Mitu, Commercial Boilerplate: A Review and Research Agenda (January 17, 2024), Annual Review of Law and Social Science (Forthcoming); Virginia Public Law and Legal Theory Research Paper No 2024-07; Virginia Law and Economics Research Paper No 2024-03.
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