Refracted Intent
Is it possible for courts to find contracting parties’ original intent? In a contract dispute, the court’s task is just that. But as this article shows, original intent is lost by the time parties dispute their contracts. Instead, litigators present what this article calls “refracted intent” to the court: the parties’ intent at the time of dispute, rather than at the time of contract formation.
This article makes three contributions to literatures in contract theory, contract design, and transactional lawyering. First, using original interviews with attorneys who litigate complex contract disputes, this article presents a new way to think about intent—“refracted intent.” It identifies two moments of intent: one at contract formation, and the other at the time of dispute. Courts are charged with finding the former, but litigators, who see themselves as advocates, craft their advocacy around the latter. Second, this article considers how the gap between the two moments of intent affects the parol evidence debate in contract theory. Theoretically, refracted intent has important implications for both textualist and contextualist approaches. Finally, it considers practical implications for contract design—in particular, how novel contracting technologies like modular contracting can mitigate the potential for costly litigation in a world of refracted intent.
About the Law and Economics Workshop
Michigan’s Law and Economics Workshop provides an opportunity for faculty and students from across the University to engage with cutting-edge law and economics research by leading scholars on a wide range of legal and policy topics.
Professors Adam Pritchard ([email protected]) and Gabriel Rauterberg ([email protected]) organize the workshop. If you would like to receive workshop announcements, please contact Alex Wroble ([email protected]) and ask to have your name added to the workshop’s email list.
