Commercial Boilerplate: A Review and Research Agenda

Boilerplate contracts have long fascinated legal scholars. But the focus has been largely on consumer contracts, with the debate centered on the question of whether take-it-or-leave-it mass-produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate—the standard forms used in transactions for corporate or sovereign bonds or merger agreements—has traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not in substance from bespoke contracts between business entities. Yet a growing body of scholarship is questioning that assumption. This article reviews the complexities of contract production in these large markets and provides a window into an exciting new area of contracts research.