Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- File Type
Articles 1 - 10 of 10
Full-Text Articles in Law
Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Juliet P. Kostritsky, Wojbor Woyczynski, Harold Haller, Kyle Chen
Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Juliet P. Kostritsky, Wojbor Woyczynski, Harold Haller, Kyle Chen
Juliet P Kostritsky
No abstract provided.
Efficient Contextualism, Juliet P. Kostritsky, Peter M. Gerhart
Efficient Contextualism, Juliet P. Kostritsky, Peter M. Gerhart
Juliet P Kostritsky
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 …
The Law And Economics Of Norms, Juliet P. Kostritsky
The Law And Economics Of Norms, Juliet P. Kostritsky
Juliet P Kostritsky
This Article examines the increased importance of norms in the law and economics of exchange. By studying how private parties bring order despite the absence of a coercive state and the idea of a norm as the result of an exchange that originates in the brain to accommodate all competing costs, one can better understand how modern states, private agreements, public laws, and market economies work in conjunction with the norms and human behavior patterns that underlie all communities. These institutions of norms, public law, private law and agreements, the state, and markets are all alternative and complementary ways of …
Judicial Intervention As Risk Reduction, Juliet P. Kostritsky
Judicial Intervention As Risk Reduction, Juliet P. Kostritsky
Juliet P Kostritsky
JUDICIAL INTERVENTION AS RISK REDUCTION J. P. Kostritsky Employing an economics-based consequentialist approach to contract interpretation (focusing on the prospective effect and the factors that might justify intervention) this Article attempts to identify the precise parameters of an optimal framework for contract interpretation. Such a framework would seek to maximize gains from trade. The issue in such cases is always, given the words the parties used, what is the best (surplus maximizing) interpretation of the bargain. Courts can achieve that interpretation by, in part, minimizing the interpretive risk that parties face when they draft an express contract but fail to …
A Consequentialist Approach To Interpretation, Probabilistic Mechanisms, And Risk: Let’S Not Limit Courts’ Techniques Of Common Law Adjudication; Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky
Juliet P Kostritsky
Employing an economics-based consequentialist approach to contract interpretation (focusing on the prospective effect and the factors that might justify intervention) this Article attempts to identify the precise parameters of an optimal framework for contract interpretation. Such a framework would seek to maximize gains from trade. The issue in such cases is always, given the words the parties used, what is the best (surplus maximizing) interpretation of the bargain. Courts can achieve that interpretation by, in part, minimizing the interpretive risk that parties face when they draft an express contract but fail to completely resolve all possible issues. This Article uses …
A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, J. P. Kostritsky
A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, J. P. Kostritsky
Juliet P Kostritsky
Abstract When contracts remain ambiguous or incomplete, courts and scholars must confront the inevitable question of when intervention in private contracts is justified. To deal with the unresolution or residual uncertainty, the Austrian economists and the new textualists suggest that any intervention would be a fool’s errand. Their position amounts to an unvarying posture that any party asking for an additional term or a broad interpretation will always lose. Recognizing that there is an interpretive risk in all contracts, the court should adopt an interpretive methodology that parties would be willing to adopt and that would enhance the willingness of …
Interpretive Risk And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky
Interpretive Risk And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky
Juliet P Kostritsky
• The Article offers a theory of judicial intervention and interpretation in Contracts. It posits that the principal objective of courts interpreting, supplementing, or overriding terms is to ask whether such intervention can serve the broad objective of maximizing gains from trade while minimizing transaction costs and the costs of opportunism, collectively, an interpretive risk. It offers an economic rationale for a broad approach to interpretation and explores several examples from Contract law where courts depart from the parties’ textual choices and follow the theory suggested in this Article. These examples directly challenge the theory of the new formalists.
A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky
A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky
Juliet P Kostritsky
Abstract When contracts remain ambiguous or incomplete, courts and scholars must confront the inevitable question of when intervention in private contracts is justified. To deal with the unresolution or residual uncertainty, the Austrian economists and the new textualists suggest that any intervention would be a fool’s errand. Their position amounts to an unvarying posture that any party asking for an additional term or a broad interpretation will always lose. Recognizing that there is an interpretive risk in all contracts, the court should adopt an interpretive methodology that parties would be willing to adopt and that would enhance the willingness of …
The Means/Ends Dilemma In Contract Interpretation: A Response To Professors Kraus And Scott: How The Intractability Of Express Language And Uncertainty Affects Legal Interventions In Contracts, Juliet P. Kostritsky
The Means/Ends Dilemma In Contract Interpretation: A Response To Professors Kraus And Scott: How The Intractability Of Express Language And Uncertainty Affects Legal Interventions In Contracts, Juliet P. Kostritsky
Juliet P Kostritsky
In their recent article on Contract Design and Intent, Professors Jody Kraus and Robert Scott offer a new justification for such a literal enforcement of the parties’ chosen terms and for ignoring contractual objectives. Their argument depends on a theory of how parties bargain and trade off front end and back end costs. Kraus and Scott posit that if parties have invested enough transaction costs to result in specific terms, and failed to delegate decision-making to a court through open-ended terms, they have a deliberately chosen to exclude courts. In such cases courts should rigorously adhere to the explicit contractual …
"Uncertainty, Reliance, Preliminary Negotiations And The Hold Up Problem,", Juliet P. Kostritsky
"Uncertainty, Reliance, Preliminary Negotiations And The Hold Up Problem,", Juliet P. Kostritsky
Juliet P Kostritsky
Recently, two scholars, Alan Schwartz and Robert Scott, have cast doubt on the conventional view that courts would find liability and award reliance damages in precontractual cases that resembled the famous Hoffman v. Red Owl case. They have argued that courts deny recovery for reliance in cases involving precontractual preliminary negotiation but regularly grant reliance recovery following a preliminary agreement. They identify a pattern or sequence in which success is likely and then provide an analytical framework to justify liability. When parties reach a preliminary agreement that also includes an agreement that they both invest simultaneously and one party strategically …