Both economic theory and legal theory assume that sophisticated parties routinely aim to write contracts that are optimal, in the sense of maximizing the parties’ joint surplus. But more recent studies analyzing corporate and government bond agreements have suggested that some contract provisions are highly path dependent, or “sticky,” with future agreements only rarely improving upon previous ones.
Analyzing half a million contracts using automated text analysis, this Article demonstrates that the stickiness hypothesis explains the striking lack of dispute resolution clauses that can be found in agreements between even the most sophisticated commercial parties. When drafting these contracts, external counsel rely heavily on templates, and whether a contract includes a dispute settlement provision is almost exclusively driven by the template that is used to supply the first draft. There is no evidence to suggest that counsel negotiate over the inclusion of dispute resolution clauses, nor that law firm templates are revised in response to changes in the costs and benefits of incomplete contracting.
Together, the findings reveal a distinct apathy toward addressing dispute resolution through contracting. From an institutional perspective, this suggests that the role of default rules in contract law is more important than is often assumed. Whereas traditional accounts hold that commercial actors would simply contract around inefficient defaults, the evidence produced in this Article highlights that defaults are significantly important for transactions between even the most sophisticated commercial actors.