Law Commons^™

The Exit Structure Of Venture Capital, D. Gordon Smith

Faculty Scholarship

Venture capital contracts contain extensive provisions regulating exit by the venture capitalists. In this Article, Professor Smith employs financial contracting theory in conjunction with original data collected from 367 venture-backed companies to analyze these exit provisions. He concludes that the combination of exit provisions in a typical venture capital relationship serves to lock venture capitalists into the investment during the initial stage. In later stages of the relationship, the venture capitalists acquire increasing control over exit by securing additional seats on the board of directors and by obtaining contractual exit rights. The result is a sophisticated transfer of control from …

"Boilerplate": An Introduction, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

This short essay introduces the themes that are developed in twelve articles that were delivered recently in a symposium on “Boilerplate: Foundations of Market Contracts” at the University of Michigan Law School. The proceeding of the symposium will be published in Volume 104 of the Michigan Law Review.

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

Law & Economics Working Papers Archive: 2003-2009

This article studies the standard form contracts used by automobile manufacturers to purchase auto parts. It explores how the contracts reflect divisions of bargaining power, asymmetric information, problems of hold-up and renegotiation, and market competition. Based on interviews with representatives of buyers and suppliers, the article also describes the process of drafting the forms, the negotiation over price and other terms in the shadow of these forms, and the opportunities for non-drafters to extract improved terms. Some of the main lessons are: (i) The terms of the contracts and the bidding process prevent ex-post hold-up by suppliers (in contrast to …

Summary Of Canfora V. Coast Hotels & Casinos, Inc., 121 Nev. Adv. Op. 76, Daria Snadowsky

Nevada Supreme Court Summaries

The Canforas appealed the district court’s order that they reimburse Coast Hotels in accordance with a subrogation clause and reimbursement agreement. The Canforas unsuccessfully argued that various contract and civil procedure principles precluded Coast Hotels from recovering its expenses

Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese

Faculty Publications

No abstract provided.

Remedies And The Cisg: Another Perspective, Robert A. Hillman

Cornell Law Faculty Publications

In this brief comment, I apply behavioral decision theory to the question of the enforcement in transnational sales of super-compensatory agreed damages. I conclude that a good case can be made that such damages provisions should be enforced.

Summary Of Sheehan & Sheehan V. Nelson Malley & Co., 121 Nev. Adv. Op. 49, Kimberly Lou

Nevada Supreme Court Summaries

In this case, the Nevada Supreme Court reviews the district court’s interpretation of a contractual covenant not to compete and a liquidated damages clause. The Court states that unless clearly erroneous, it will affirm a district court’s decision on whether a contract was breached or not. However, the Court does not have to use the district court’s construction of a contract to make that determination. The Court may use independent appellate review to construe contracts.

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

Court Grants No Leniency For Maritime Lien Claim,, Jonathan Lew

Sea Grant Law Fellow Publications

No abstract provided.

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

Pre-Contractual Obligations In France And The United States, Florence Caterini

LLM Theses and Essays

This thesis compares the pre-contractual obligations in France and the United States. The focus of this study is to analyze how both legal systems deal with these pre-contractual obligations. It focuses on the possibilities given to the parties to protect themselves during the negotiation process. In event of breach of negotiations, the law gives legal remedies to the parties. French and American laws have a different analysis of the problem but they reach similar result: liability under contract law when a contract has been formed or a tentative agreement, or under tort law when no agreement whatsoever has been reached.

'Treaties', 'Agreements', 'Contracts' And 'Commitments' - What's In A Name? The Legal Force And Meaning Of Different Forms Of Agreement Making, David Llewelyn, Maureen Tehan

Research Collection Yong Pung How School Of Law

The multi-dimensional nature of treaty and agreement making has assumed a central focus in the conduct of relations between Indigenous peoples and settlers in Australia and elsewhere. Whether as a means of resolving disputes, delivering government programmes, or establishing common understandings, agreement making, however defined and named, has become the key tool for engagement between Indigenous and non-Indigenous Australians. Agreements come in all shapes and sizes ranging from registered Indigenous Land Use Agreements (ILUA) to Statements of Commitment, Memorandums of Understanding and Regional Agreements. In other jurisdictions these may be called 'treaties'. This paper examines the plethora of agreements in …

The Exit Structure Of Strategic Alliances, D. Gordon Smith

Faculty Scholarship

Today, many biotechnology firms use strategic alliances to contract with other companies. This article contends that the governance structure of these alliances - specifically, the contractual board - provides an integrated restraint on opportunism. While an alliance agreement's exit structure could provide a check on opportunism by allowing the parties to exit at will, such exit provisions also can be used opportunistically. Most alliance agreements, therefore, provide for contractual lock in of the alliance partners, with only limited means of exit. Lock in, of course, raises its own concerns, and the contractual board - which typically is composed of representatives …

Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron J. Wright

Articles

No abstract provided.

Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer

Faculty Publications

No abstract provided.

A Common Tragedy: Promises To Benefit The Public Interest And The Enforceability Problem, Irma S. Russell

Faculty Works

No abstract provided.

On-Line Consumer Standard-Form Contracting Practices: A Survey And Discussion Of Legal Implications, Robert A. Hillman

Cornell Law Faculty Publications

In a recent article, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429 (2002), Jeffery Rachlinski and I analyzed whether contract law's approach to the problem of paper standard forms can effectively govern electronic forms. We thought the rational and cognitive reasons consumers fail to read their paper forms apply in the e-environment. Further, although e-consumers do not face manipulative sales agents or impatient customers waiting in line but, instead, largely contract at home in the evening without time constraints, e-consumers are impatient, even click happy, and therefore still do not read their forms or shop for the …

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro

All Faculty Scholarship

No abstract provided.

On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces

Faculty Publications

No abstract provided.

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Faculty Publications

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …

Critical Race Realism: Re-Claiming The Antidiscrimination Principle Through The Doctrine Of Good Faith In Contract Law, Emily Houh

Faculty Articles and Other Publications

This Article employs what it calls "critical race realism" to theorize and propose a common law antidiscrimination claim that incorporates contemporary re-conceptualizations of antidiscrimination jurisprudence and grounds itself doctrinally not in civil rights law but in the contractually implied obligation of good faith. "Critical race realism" refers in part to this Article's explicit goal, in proposing the common law claim, to re-conceive explicitly the private law doctrine of good faith as one that might assist in effecting a public law norm of equality. By employing critical race realism, this Article hopes to help revive the controversy over what constitutes the …

The Doctrine Of Good Faith In Contract Law: A (Nearly) Empty Vessel?, Emily Houh

Faculty Articles and Other Publications

Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness …

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

The Contract Drafting Process: Integrating Contract Drafting In A Simulated Law Practice, Charles C. Lewis

Scholarly Works

No abstract provided.

Losing Rights To Intellectual Property: The Perils Of Contracting With The Federal Government, Katherine White

Law Faculty Research Publications

No abstract provided.

Mercantile Stories & Postcolonial Stories-Stories Of The Code, 12 Tex. Wesleyan L. Rev. 377 (2005), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Rediscovering Williston, Mark L. Movsesian

Faculty Publications

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the under-theorized quality of Williston's scholarship—to contemporary …

Joseph Baxendale, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

The defendant in the great case of Hadley v. Baxendale is Joseph Baxendale, managing partner of Pickford and Co., the common carrier that delayed the delivery of the Hadley's shaft. Baxendale was named the defendant, because Pickfords was a partnership and did not incorporate until 1901. Joseph Baxendale was born in 1785, the son of a Lancastershire surgeon. In 1806, he moved to London, where he worked for a wholesale linen draper. Later, he became a partner in that firm, and developed the managerial and accounting skills that would serve him so well at Pickfords.