Contractual Control over Adjective Law: Recent Developments

Abstract

Fifteen years ago it was possible to call attention to the curious but persistent attempt that was manifesting itself in business to substitute synthetic arrangements by contract for the traditional machinery for the enforcement of the law.1 Attempts were being made to substitute contractual arrangements for the laws governing venue, periods of limitations, the conflict of laws, summons, mode of trial, evidence, competency of witnesses, judicial review, self-help, choice of a remedy, and measure of damages. Occasionally the attempts went so far as to specify that no damages could be collected or that no action could be brought, at least not until some condition was fulfilled-and this condition might conceivably have been such as to make a trial highly improbable, if not unnecessary. Such instances are shown by cases where submission to arbitration or reference, or even the satisfaction of one party, were made conditions precedent to bringing an action. Until that time all these or similar attempts were dealt with very casually in the law books, since they were looked upon as agreements the validity of which could be questioned on the ground that they interfered with the administration of justice.2 The courts were very jealous of their jurisdiction and were still fond of the phrase ousting the court. In their fear of what might happen if they yielded an inch, they indulged in magnificent reductiones ad absurdum.