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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 …
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.
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.