Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2009 Bargaining in the Shadow of the Lawsuit: A Social Norms Theory of Incomplete Contracts Claire Hill University of Minnesota Law School,
[email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Claire Hill, Bargaining in the Shadow of the Lawsuit: A Social Norms Theory of Incomplete Contracts, 34 DEL. J. CORP. L. 191 (2009), available at https://scholarship.law.umn.edu/faculty_articles/78. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact
[email protected]. BARGAINING IN THE SHADOW OF THE LAWSUIT: A SOCIAL NORMS THEORY OF INCOMPLETE CONTRACTS BY CLAIRE A. HILL* ABSTRACT Complex business contracts are notoriously difficult to write and read. Certainly, when litigation arises, courts scarcely have an easy time interpreting them. Indeed, contracts don't look at all as though they are written to tell a court what the parties want. Why can't smart, well- motivated lawyers do a betterjob? My articleargues that they rationallydo not try. I arguefor a view of contractingin which parties are not princi- pally trying to set forth an agreementfor a court to enforce. Rather, by leaving inartful language and ambiguity in the agreement, parties are bonding themselves not to seek precipitous recourse to litigation. The agreement entered into provides each party with grounds to bring a lawsuit if it so desires.