Bargains Bicoastal: New Light on Contract Theory

Authors

Geoffrey P. Miller, New York UniversityFollow

Abstract

Recent research has shown that large companies select New York law and New York courts to govern disputes under commercial contracts. Because these parties make choice-of-law and forum selection decisions before conflicts arise, there is reason to believe that their preference for New York reflects an effort to select efficient terms. This Article compares New York's contract law with that of its most natural competitor, California. It turns out that New York strictly enforces bargains and displays little tolerance for efforts to rewrite deals ex post. California, in contrast, more willingly reforms contracts for reasons of fairness, equity, morality, or public policy. The revealed preferences of sophisticated parties support arguments by Schwartz, Scott, and others that formalistic rules offer superior value for the interpretation and enforcement of commercial contracts.

Disciplines

Conflict of Laws | Contracts | Jurisprudence | Law

Recommended Citation

Geoffrey P. Miller, Bargains Bicoastal: New Light on Contract Theory, 31 Cardozo L. Rev. 1475 (2010).
Available at: https://larc.cardozo.yu.edu/clr/vol31/iss5/3