Matthew Jennejohn

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers chooses litigation strategies, crafts arguments, and presents their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail. This Article focuses on a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.” For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network. Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time.