University of Cincinnati Law Review Volume 84 Issue 1 Article 5 April 2018 Lexical Opportunism and the Limits of Contract Theory Jeffrey M. Lipshaw Follow this and additional works at: https://scholarship.law.uc.edu/uclr Recommended Citation Jeffrey M. Lipshaw, Lexical Opportunism and the Limits of Contract Theory, 84 U. Cin. L. Rev. (2018) Available at: https://scholarship.law.uc.edu/uclr/vol84/iss1/5 This Article is brought to you for free and open access by University of Cincinnati College of Law Scholarship and Publications. It has been accepted for inclusion in University of Cincinnati Law Review by an authorized editor of University of Cincinnati College of Law Scholarship and Publications. For more information, please contact
[email protected]. Lipshaw: Lexical Opportunism and the Limits of Contract Theory LEXICAL OPPORTUNISM AND THE LIMITS OF CONTRACT THEORY* Jeffrey M Lipshaw Abstract This essay is a reflection on the gap between the real- life practice of contract law and some of the academic theory that tries to explain it. I describe "lexical opportunism," an aspect of contract practice having three elements. First, the parties must have reduced a complex business arrangement to contractual text, portions of which text are as devoid of thoughtful drafting or close negotiation as the boilerplate in a consumer contract. Second, an adversary cleverly develops a legal theory based upon a colorable interpretationof that text. Third, this interpretation creates a potential for staggeringliability beyond all common sense. A multi-billion