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Articles 1 - 4 of 4
Full-Text Articles in Law
Constraints On Private Benefits Of Control: Ex Ante Control Mechanisms Versus Ex Post Transaction Review, Ronald J. Gilson, Alan Schwartz
Constraints On Private Benefits Of Control: Ex Ante Control Mechanisms Versus Ex Post Transaction Review, Ronald J. Gilson, Alan Schwartz
Faculty Scholarship
We ask how to regulate pecuniary private benefit consumption. These benefits can compensate controlling shareholders for monitoring managers and investing effort in implementing projects. Controlling shareholders may consume excessive benefits, however. We argue (a) ex post judicial review of controlled transactions dominates ex ante restrictions on the controlled structures: the latter eliminate efficiencies along with abuses of the controlled company form; (b) controlling shareholders should be permitted to contract with investors over private benefit levels. Both work with better courts. Hence, we recommend creating a European-level corporate court, whose jurisdiction parties can invoke by contract.
A Precedent Built On Sand: Norcon V. Niagra Mohawk, Victor P. Goldberg
A Precedent Built On Sand: Norcon V. Niagra Mohawk, Victor P. Goldberg
Faculty Scholarship
Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC Section 2-609 allowed it to demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available …
Freedom Of Contracts, Hanoch Dagan, Michael Heller
Freedom Of Contracts, Hanoch Dagan, Michael Heller
Faculty Scholarship
“Freedom of contracts” has two components: (1) the familiar freedom to bargain for terms within a contract and (2) the long-neglected freedom to choose from among contract types. Theories built on the first freedom have reached an impasse; attention to the second points toward a long-elusive goal, a liberal and general theory of contract law. This theory is liberal because it develops an appealing conception of contractual autonomy grounded in the actual diversity of contract types. It is general because it explains how contract values – utility, community, and autonomy – properly relate to each other across contract types. Finally, …
Contract And Innovation: The Limited Role Of Generalist Courts In The Evolution Of Novel Contractual Forms, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott
Contract And Innovation: The Limited Role Of Generalist Courts In The Evolution Of Novel Contractual Forms, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott
Faculty Scholarship
In developing a contractual response to changes in the economic environment, parties choose the method by which their innovation will be adapted to the particulars of their context. These choices are driven centrally by the thickness of the relevant market – the number of actors who see themselves as facing similar circumstances – and the uncertainty related to that market. In turn, the parties' choice of method will shape how generalist courts can best support the parties' innovation and the novel regimes they envision. In this Article, we argue that contractual innovation does not come to courts incrementally, but instead …