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Sunday, March 5, 2006

Smith on Boilerplate

A new and interesting paper from Yale's Henry Smith, Modularity in Contracts: Boilerplate and Information Flow.  Here's the abstract:

Like property, contractual boilerplate is less tailored to its contractual and business environment than one might expect considering only the costs of producing it.  Boilerplate, like all legal communication, requires actors to trade off the benefits of information-richness with the need for adaptability to a wide variety of contexts.  One device for managing the complexity of contexts is modularity, under which a system is divided into information-hiding components which allow internal interaction but only limited interaction across component boundaries.  Modularity helps boundedly rational agents to understand systems and to specialize in working on a subset of modules.  Modularity also facilitates adaptability of systems in response to changes in the environment.  Boilerplate utilizes modularity to allow for its addition, subtraction, and porting from one contract to another, without the need to worry about unforeseen interactions with other parts of the contract and the business context.  Governing law and severability provisions provide particularly dramatic examples.  Boilerplate is also intermediate between contract and property in terms of contexts not taken into account by the creators of boilerplate, and thus boilerplate requires less judicial intervention to maintain standardization than does property, but more so than in the case of contracts.  The need for modularity also helps explain the role of "reading costs" in parties' choice of simpler contractual provisions over other more complex provisions that are not necessarily more costly to write.  Modularity and formalism more generally are matters of degree, and underappreciated benefits of modularity help explain the incompleteness of the Realist revolution in contracts and the relationship of contracts to off-the-rack doctrines in civil and common law.

[Frank Snyder]

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