Examining Success, 2015 Temple University
Examining Success, Jonathan C. Lipson
Jonathan C. Lipson
Chapter 11 of the Bankruptcy Code presumes that managers will remain in possession and control of a corporate debtor. This presents an obvious agency problem: these same managers may have gotten the company into trouble in the first place. The Bankruptcy Code thus includes checks and balances in the reorganization process, one of which is supposed to be an “examiner,” a private individual appointed to investigate and report on the debtor’s collapse.
We study their use in practice. Extending prior research, we find that examiners are exceedingly rare, despite the fact that they should be “mandatory” in large cases ($5 …
Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, 2015 Cornell Law School
Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey Miller, Emily Sherwin
Emily L Sherwin
We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.
The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …
Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, 2015 Cornell Law School
Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin
Emily L Sherwin
We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. …
Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, 2015 Cornell Law School
Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, Emily Sherwin
Emily L Sherwin
Buried in the details of legal doctrine governing misrepresentation is a remedial anomaly that raises some interesting questions about how law should deal with moral wrongs such as fraud. We tend to think of deliberate deception--fraud--as a grave moral wrong. At least, we think of deception as gravely wrong when the deceiver's objective is not to avert harm or spare feelings, but to obtain someone's money or goods. Deception denies the autonomy of the person deceived and undermines the foundation of trust in human interaction. The law, however, does not penalize every instance of fraud. Moreover, the standards governing when …
Epstein And Levmore: Objections From The Right?, 2015 Cornell Law School
Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild
Emily L Sherwin
No abstract provided.
Law And Equity In Contract Enforcement, 2015 Cornell Law School
Law And Equity In Contract Enforcement, Emily Sherwin
Emily L Sherwin
No abstract provided.
Contribution Arguments In Commercial Law, 2015 University of Virginia
Contribution Arguments In Commercial Law, Steven Walt, Emily Sherwin
Emily L Sherwin
No abstract provided.
Restitution And Equity: An Analysis Of The Principle Of Unjust Enrichment, 2015 Cornell Law School
Restitution And Equity: An Analysis Of The Principle Of Unjust Enrichment, Emily Sherwin
Emily L Sherwin
No abstract provided.
A Coasean Experiment On Contract Presumptions, 2015 Cornell Law School
A Coasean Experiment On Contract Presumptions, Stewart J. Schwab
Stewart J Schwab
Despite the theoretical importance of the Coase Theorem, scholars have given surprisingly little attention to verifying its predictions empirically. Supporters often accept the theorem as dogma, while armchair critics assail its assumptions. In an exciting series of recent articles, however, Elizabeth Hoffman and Matthew Spitzer have presented experimental evidence, as have others, that largely supports the Coasean prediction that bargainers will negotiate around inefficient property rights to reach a Pareto-optimal solution. The methodology has even gained sufficient attention to have its detractors. The existing experiments analyze the results of bargains when one side has the power to impose unilaterally one …
“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, 2015 St. John's University School of Law
“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern
Jeff Sovern
Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …
Foreign And Religious Family Law: Comity, Contract, And The Constitution, 2015 Pepperdine University
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Pepperdine Law Review
The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.
Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, 2015 Pepperdine University
Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin
Pepperdine Law Review
In this article, the author discusses the ways such as common law, and contracts employed by religious systems for navigating their relationship with legal systems of secular states. Topics discussed include the role of religious contracts in helping religious systems negotiate with secularism, the role of religious contracts in protecting autonomy of religious systems, and the structure of marriage and divorce in Jewish law.
Legal Ignorance And Information-Forcing Rules, 2015 William & Mary Law School
Legal Ignorance And Information-Forcing Rules, J. H. Verkerke
William & Mary Law Review
People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-informationforcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts …
Petitioning Foreign Governments: The Act Of State And Noerr-Pennington Doctrines, 2015 Jenner & Block
Petitioning Foreign Governments: The Act Of State And Noerr-Pennington Doctrines, Don R. Sampen
Georgia Journal of International & Comparative Law
No abstract provided.
Buying Time In Spain: The Spanish Law Of Installment Sales, 2015 District of Columbia Court of Appeals
Buying Time In Spain: The Spanish Law Of Installment Sales, John M. Steadman
Georgia Journal of International & Comparative Law
No abstract provided.
Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, 2015 Cardozo Law School
Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel
W. Bradley Wendel
Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract. The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should …
On The Rise Of Shareholder Primacy, Signs Of Its Fall, And The Return Of Managerialism (In The Closet), 2015 Selected Works
On The Rise Of Shareholder Primacy, Signs Of Its Fall, And The Return Of Managerialism (In The Closet), Lynn Stout
Lynn A. Stout
In their 1932 opus "The Modern Corporation and Public Property," Adolf Berle and Gardiner Means famously documented the evolution of a new economic entity—the public corporation. What made the public corporation “public,” of course, was that it had thousands or even hundreds of thousands of shareholders, none of whom owned more than a small fraction of outstanding shares. As a result, the public firm’s shareholders had little individual incentive to pay close attention to what was going on inside the firm, or even to vote. Dispersed shareholders were rationally apathetic. If they voted at all, they usually voted to approve …
Will Ticket Scalpers Meet The Same Fate As Spinal Tap Drummers? The Sale And Resale Of Concert And Sports Tickets, 2015 Pepperdine University
Will Ticket Scalpers Meet The Same Fate As Spinal Tap Drummers? The Sale And Resale Of Concert And Sports Tickets, Gregory M. Stein
Pepperdine Law Review
Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events. What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can …
Choosing The Choice: Distilling And Designating Contract Choice Of Law In Virginia, 2015 SelectedWorks
Choosing The Choice: Distilling And Designating Contract Choice Of Law In Virginia, Jessica Pak
Jessica Pak
Choice of law[1] has been said to cause more “consternation and confusion among the bench and bar” than any legal subject.[2] Contract interpretation, in turn, has been identified by the great choice of law theorist Joseph Beale as the most confusing issue in the conflict of laws.[3] Unfortunately, the perplexity of this legal topic is paralleled by its practical importance. Choice of law is a matter of paramount concern in any dispute involving more than one jurisdiction, as a court cannot adjudicate a case without first ascertaining which law applies. Particularly in contract cases where the laws …
Enduring Design For Business Entities, 2015 University of Arkansas
Enduring Design For Business Entities, William E. Foster
William E Foster
The success or failure of an institution may hinge on some of the earliest decisions of its founders. In constitutional design literature, endurance is a widely accepted drafting objective. Indeed, constitutional endurance is positively associated with prosperous and stable societies. Like drafters of constitutions, business organizers have almost innumerable objectives for their enterprises, and attorneys drafting organizational documents must take into account these myriad goals. Oftentimes the drafting process fails to fully address some of the most important of these aims and results in suboptimal structures that lack predictability and reliability. This article looks specifically at small business organizations and …