Law Commons^™

Context Matters - What Lawyers About Choice Of Law In Merger Agreements, Juliet P. Kostritsky

Faculty Publications

Finding out the truth about a matter can proceed in many different ways. Neoclassical law and economists would construct models built on certain assumptions. The empiricists and contextualists would collect data about the matter in the inductive not deductive sense.

The choice of law in merger agreements presents an opportunity to study a contractual provision in the context of merger deals to see what we can learn from studying the choices in detail.

There are a variety of ways to approach these provisions in merger agreements. Can we learn anything about how choices are made in the drafting of these …

Rethinking Jacob & Youngs V. Kent, Victor P. Goldberg

Case Western Reserve Law Review

The legal background will be described in Part I. I begin with the development of the doctrine of substantial performance and the role of willfulness. If the contractor’s compensation were conditional on the architect providing a certificate of completion, what happens if the architect refused to provide the certificate? If a court concludes that the work had been substantially performed, how should the contractor’s award be modified? In Part II, I revisit Jacob & Youngs to show how the result followed from the pre-existing law. That, of course, does not mean that it was a sensible outcome. In Part III, …

Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky

Faculty Publications

This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are …

Private Ordering In The Market For Professional Services, Cassandra Burke Robertson

Faculty Publications

Freedom of contract is significantly restricted in the market for professional services. Under the so-called “corporate practice doctrine,” professionals such as doctors and lawyers are prohibited from practicing within corporate entities, and laypeople are likewise prohibited from investing in professional service firms. Defenders of this prohibition argue that it can be justified as a means of protecting professional independence and thereby increasing the quality of care. In fact, however, the available evidence suggests that investment restrictions are counterproductive to their stated goal. In practice, these restrictions raise costs and reduce access without measurably improving the quality of service at all. …

A Collaborative Model Of Offshore Legal Outsourcing, Cassandra Burke Robertson

Faculty Publications

International outsourcing has come to the legal profession. The ABA and other bar associations have given it their stamp of approval, and an ailing economy has pushed both clients and firms to consider sending more legal work abroad. This article integrates research from the fields of organizational behavior, social psychology, and economic theory to analyze the effectiveness of the legal outsourcing relationship. It identifies organizational pressures in the practice of law that affect how legal work is performed in a transnational context, and it examines how individuals on both sides of the outsourcing process influence the success or failure of …

Plain Meaning Vs. Broad Interpretation: How The Risk Of Opportunism Defeats A Unitary Default Rule For Interpretation, Juliet P. Kostritsky

Faculty Publications

The problem of contract interpretation presents courts with significant questions about the nature and methodology of judicial intervention into privately arranged affairs. The court often assumes an active role in interpreting the words of a written contract in part because words have more than one meaning or because a contract is incomplete. When a court chooses amongst variable meanings, or interprets contracts to craft limitations on parties' behavior when express limits do not exist, its choice must be then justified using a framework explored in this essay.

Traditionally, commentators have advocated one of two general approaches to supply the methodology …

Illegal Contacts And Efficient Deterrence: A Study In Modern Contract Theory, Juliet P. Kostritsky

Faculty Publications

This Article offers a unified theory that explains why courts, despite the compelling argument for deterrence, should not apply the no-effect rule of illegal contracts uniformly and why they should vary the type of relief according to the factual setting. It posits that a graduated relief structure will maximize efficient deterrence. An efficient deterrence scheme will preserve limited personal, judicial and societal resources without burdening legitimate transactions.

Judicial Incorporation Of Trade Usages: A Functional Solution To The Opportunism Problem, Juliet P. Kostritsky

Faculty Publications

Article 2 of the UCC directed courts to look to business norms as a primary means of interpreting contracts. Recently the new formalists have attacked this strategy of norm incorporation as a misguided one that will lead inevitably to significant error costs. Accordingly, they have embraced plain meaning as the preferred interpretive strategy. This article argues that the strategy of rejecting trade usages unless they are part of the express contract is too rigid. The rejection is premised on an overly narrow cost/benefit analysis that fails to account for the functional role that such usages may play in curbing opportunistic …

Symposium - Incomplete Contracts: Judicial Responses, Transactional Planning, And Litigation Strategies - Introduction, Juliet P. Kostritsky

Faculty Publications

This introduction introduces three articles in a Symposium by Richard Craswell, Avery Katz, Robert Scott and George Triantis on the topic of incomplete contracts. The Symposium appears in 56 CASE WES. L. REV. 135 (2005).

The recognition that parties will often fail to achieve completely contingent contracts that provide for an optimal outcome in any future state of the world raises the important question of what role courts could or should play in such contracts.

Scholars working in the law-and-economics tradition have suggested that courts should use a hypothetical bargain approach to incompleteness, filling in terms that are optimal (efficient) …

The "Incomplete Contracts" Literature And Efficient Precautions, Richard Craswell

Case Western Reserve Law Review

No abstract provided.

Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis

Case Western Reserve Law Review

No abstract provided.

The Rise And Fall Of Promissory Estoppel Or Is Promissory Estoppel Really As Unsuccessful As Scholars Say It Is: A New Look At The Data, Juliet P. Kostritsky

Faculty Publications

This article makes important contributions to the field of empirical promissory estoppel scholarship. First it challenges recent empirical scholarship (by Professors Robert Hillman and Sidney De Long in the 1998 and 1997 Columbia and Wisconsin law reviews). Their scholarship had challenged the view of the vast majority of American Contracts scholarship by proclaiming promissory estoppel to be an unimportant doctrine based on low win rates of tried cases. My article challenges this new orthodoxy based on a comprehensive five year survey of cases. It concludes that it is too soon to announce the death of promissory estoppel and that promissory …

When Should Contract Law Supply A Liability Rule Or Term?: Framing A Principle Of Unification For Contracts, Juliet P. Kostritsky

Faculty Publications

To demonstrate the need for a unified instrumental framework for deciding gaps and implying liability rules, Part II of this Article will first describe the competing visions of the role of law in contract gap-filling. Although each vision has expanded the ways in which we think about contracts and has offered more realistic models of bargaining, each still fails to offer a unified framework for deciding how courts should decide *1290 incomplete contracts. Part III of the Article outlines the methodological framework for unifying judicial approaches to law-supplied terms or rules. The framework will incorporate a: (1) realistic model of …

Mandatory Arbitration: Alternative Dispute Resolution Or Coercive Dispute Suppression?, Sharona Hoffman

Faculty Publications

The enforceability of mandatory arbitration policies contained in employment contracts between employees and their direct employers remains an open question, even after the Supreme Court's 1991 decision in Gilmer v. Interstate Johnson Lane Corp. While Gilmer gave effect to a mandatory arbitration clause in a contract between a securities broker and his licensing exchange, the Court noted that the contract at issue was not an ordinary employment contract between employer and employee. The Court declined to decide whether arbitration agreements in ordinary employment contracts are per se enforceable under the Federal Arbitration Act or whether these provisions are exempt from …

Essay: Developments In Contract Law During The 1980'S: The Top Ten, E. Allan Farnsworth

Case Western Reserve Law Review

No abstract provided.

The Contractual Reallocation Of Procreative Resources And Parental Rights: The Natural Endowment Critique, William Joseph Wagner

Case Western Reserve Law Review

No abstract provided.

Contractual And Donative Capacity, Alexander M. Meiklejohn

Case Western Reserve Law Review

No abstract provided.

Public Contracts, Private Contracts, And The Transformation Of The Constitutional Order, Thomas W. Merrill

Case Western Reserve Law Review

No abstract provided.

Obligations Of Contracts: Intent And Distortion, Robert C. Palmer

Case Western Reserve Law Review

No abstract provided.

Foreseeability In Contract And Tort: The Problems Of Responsibility And Remoteness, Banks Mcdowell

Case Western Reserve Law Review

No abstract provided.

Justice Story, The Supreme Court, And The Obligation Of Contract, Morgan D. Dowd

Case Western Reserve Law Review

No abstract provided.

Damages--Breach Of Contract--Accounting Analysis [Vitex Manufacturing Co. V. Carbitex Corp., 377 F.2d 795 (3d Cir. 1967)], Bernard C. Johnson

Case Western Reserve Law Review

No abstract provided.

Contracts, Robert C. Bensing

Case Western Reserve Law Review

No abstract provided.

Equitable Enforcement Of Negative Covenants In Employment Contracts, Harry Stein

Case Western Reserve Law Review

No abstract provided.