The 'Battle of the Forms': Fairness, Efficiency, and the Best Shot Rule

Victor P. Goldberg, Columbia Law School


The "battle of the forms" has long posed a problem for contract law. The common law resolved the problem with the "mirror image" rule. Under the Code there has been a movement away from that rule toward one favoring the Code's default rules. Movement in that direction continues in the latest drafts of the new Code. The mirror image rule, the current Code, and the proposed revisions all fail to address the primary problem: when drafting their forms the parties have insufficient incentive to take their counterparties' concerns into account. What is needed is a mechanism that would bring the counterparties' concerns to the lawyer's attention at the moment at which the standardized form is being produced. This paper proposes such a mechanism, the "best shot rule," which is, in effect, a variant of final offer arbitration.