There is great appeal to the notion that parties to a contract may provide in their agreement for how certain aspects of any dispute that may subsequently arise will be resolved. The appeal is so great, in fact, that both parties and courts have embraced the use and enforcement of pre-litigation agreements ("PLAs"). These agreements take a variety of forms. Parties may agree to the forum in which their dispute will be resolved. They may designate the law that will be applied to the resolution of the dispute. Parties may designate what evidence may or may not be presented as proof of their respective positions and what burden of proof should govern the weighing of the evidence presented. Parties may designate who will resolve their dispute, in terms of judge or jury. And they even may designate that the dispute will not be heard by a judicial tribunal at all, but rather will be re- solved outside the courts by means of some form of alternative dispute resolution ("ADR").
David H. Taylor & Sara M. Cliffe,
Civil Procedure by Contract: A Convoluted Confluence of Private Contract and Public Procedure in Need of Congressional Control,
U. Rich. L. Rev.
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