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Full-Text Articles in Law

Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch Mar 2021

Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch

Faculty Scholarship at Penn Law

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use. Commentators too support private ordering for its capacity to facilitate innovation and enhance efficiency.

Private ordering typically occurs through firm-specific charter and bylaw provisions. VC-funded startups, however, frequently use an alternative tool – shareholder agreements. These agreements, which have largely ...


Leases As Forms, David A. Hoffman, Anton Strezhnev Feb 2021

Leases As Forms, David A. Hoffman, Anton Strezhnev

Faculty Scholarship at Penn Law

We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently ...


The Contract Interpretation Policy Debate: A Primer, Joshua M. Silverstein Feb 2021

The Contract Interpretation Policy Debate: A Primer, Joshua M. Silverstein

Faculty Scholarship

Contract interpretation is one of the most significant areas of commercial law. As a result, there is an extensive academic and judicial debate over the optimal method for construing agreements. Throughout this exchange, scholars and courts have advanced a wide array of conceptual, theoretical, and empirical arguments in support of the two primary schools of interpretation— textualism and contextualism—as well as various hybrid positions. This Essay is intended to serve as a primer on those arguments.


Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker Jan 2021

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

Faculty Scholarship at Penn Law

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work ...


The Limits To Freedom To Contract, Jia Xin Tan Jan 2021

The Limits To Freedom To Contract, Jia Xin Tan

Singapore Law Journal (Lexicon)

In line with the principle of freedom to contract, the courts will give effect to the intention of the parties in creating their contract, and also hold them to their duty to perform their primary obligations under such contract. However, where the contracting parties agree to vest certain decision-making powers to a specific (non-judicial) entity, to what extent may a court review the exercise of powers by such entity?


The Social Cost Of Contract, David A. Hoffman, Cathy Hwang Jan 2021

The Social Cost Of Contract, David A. Hoffman, Cathy Hwang

Faculty Scholarship at Penn Law

When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular contracts—such as following through with weddings, conferences, and other large gatherings—will greatly increase the risk of rapidly spreading disease. A close reading of past cases illustrates that when social hazards sharply increase after formation, courts have sometimes rejected, reformed, and reinterpreted contracts so that parties who breach to reduce external harms are not left holding the bag.

This Essay builds on that observation in making two contributions. Theoretically, it characterizes contracts ...


Contracts As Systems, Spencer Williams Jan 2021

Contracts As Systems, Spencer Williams

Publications

A contract is much more complex than its individual terms would suggest. Yet contract scholars have traditionally taken a reductionist approach to the study of contracts. According to "contractual reductionism," a contract can be understood through each of its constituent terms. Recent scholarship, however, has begun to challenge contractual reductionism's term-by-term view of contracts. Building on this work, this Article provides the first application of complex systems theory to contracts, arguing that a contract is a complex system that is greater than the sum of its terms. A complex system is composed of many components that interact in a ...


The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie Jan 2021

The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

All Faculty Scholarship

Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.

This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation ...


Let's Get Serious - The Clear Case For Compensating The Student Athlete - By The Numbers - A University Of Michigan Athletic Program Case Study, Neal Newman Jan 2021

Let's Get Serious - The Clear Case For Compensating The Student Athlete - By The Numbers - A University Of Michigan Athletic Program Case Study, Neal Newman

Faculty Scholarship

Should college athletes be compensated for their play and if so, how? The first question has been a debate for some time now. But the second question—the “how”—not so much. This writing addresses both questions in depth. With the Ed O’Bannon case that was decided back in August of 2014 and the palaver the Northwestern football team raised in their efforts to unionize, it is acknowledged that the discussions on this issue may have reached its crescendo years ago. That is until now. On September 27, 2019, Gavin Newsom, the Governor of California, signed into law Senate ...


The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand Jan 2021

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction ...


The Vulnerable Sovereign, Ronald A. Brand Jan 2021

The Vulnerable Sovereign, Ronald A. Brand

Articles

The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the ...


The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott Jan 2021

The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott

Faculty Scholarship

Recent scholarly inquiry into fiduciary law predominantly focuses on whether the subject is a coherent field and not a piecemeal assortment of doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. These include intrinsic motivation, markets for professional services, and forces like the operation of reputation. The Article demonstrates that looking across domains, from the legal to the extralegal, casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well ...


The Cost Of Guilty Breach: Willful Breach In M&A Contracts, Theresa Arnold, Amanda Dixon, Madison Whalen Sherrill, Hadar Tanne, Mitu Gulati Jan 2021

The Cost Of Guilty Breach: Willful Breach In M&A Contracts, Theresa Arnold, Amanda Dixon, Madison Whalen Sherrill, Hadar Tanne, Mitu Gulati

Faculty Scholarship

The traditional framework of United States private law that every first-year student learns is that contracts and torts are different realms—contracts is the realm of strict liability and torts of fault. Contracts, we learn from the writings of Justice Holmes and Judge Posner, are best viewed as options; they give parties the option to perform or pay damages. The question we ask is whether, in the real world, that is indeed how contracting parties view things. Using a dataset made up of one thousand mergers and acquisitions (M&A) contracts and thirty in-depth interviews with M&A lawyers, we ...


Obsolescence: The Intractable Production Problem In Contract Law, Robert E. Scott, Alan Schwartz Jan 2021

Obsolescence: The Intractable Production Problem In Contract Law, Robert E. Scott, Alan Schwartz

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit ...


Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley Jan 2021

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each ...


Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller Jan 2021

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither is contract ...


Investigating The Contract Production Process, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati Jan 2021

Investigating The Contract Production Process, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

Contract law and theory have traditionally paid little attention to the processes by which contracts are made. Instead, contracts among sophisticated parties are assumed to be full articulations of the desires of the parties; whatever the process, the outcome is the same. This article compares sovereign debt contracts from US and UK firms, with different production processes, that are trying to do the same thing under very similar legal regimes. We find that that the production process likely matters quite a bit to the final form that contracts take.


Dr. Marye. Maida Order Denying Defendant Clerisy Corporation’S Motion For Interlocutory Injunction And Plaintiffs’ Motion For Judgment On The Pleadings, John J. Goger Dec 2020

Dr. Marye. Maida Order Denying Defendant Clerisy Corporation’S Motion For Interlocutory Injunction And Plaintiffs’ Motion For Judgment On The Pleadings, John J. Goger

Georgia Business Court Opinions

No abstract provided.


Greenlife Energy Solutions Order Granting Defendants’ Motions For Summary Judgment And Order Finding Moot Defendants’ Motion In Limine To Exclude Plaintiff’S Expert Witness, Kelly Lee Ellerbee Dec 2020

Greenlife Energy Solutions Order Granting Defendants’ Motions For Summary Judgment And Order Finding Moot Defendants’ Motion In Limine To Exclude Plaintiff’S Expert Witness, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.


Greenlife Energy Solutions Order Denying Defendants’ Motion To Strike Patterson’S Third Affidavit, Kelly Lee Ellerbee Dec 2020

Greenlife Energy Solutions Order Denying Defendants’ Motion To Strike Patterson’S Third Affidavit, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.


The Judicial Admissions Exception To The Statute Of Frauds: A Curiously Gradual Adoption, Wayne Barnes Dec 2020

The Judicial Admissions Exception To The Statute Of Frauds: A Curiously Gradual Adoption, Wayne Barnes

Faculty Scholarship

The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titular purpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception ...


United Sciences Order On Various Motions, John J. Goger Nov 2020

United Sciences Order On Various Motions, John J. Goger

Georgia Business Court Opinions

No abstract provided.


Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe Nov 2020

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Blogs

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of ...


Strategic Jubilee Holdings Order On Plaintiffs’ Motion For Partial Summary Judgment, Kelly Lee Ellerbee Oct 2020

Strategic Jubilee Holdings Order On Plaintiffs’ Motion For Partial Summary Judgment, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.


Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp Oct 2020

Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.

However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again ...


J.P. Carey Enterprises Amended Order On Cross Motions For Summary Judgment, Kelly Lee Ellerbee Oct 2020

J.P. Carey Enterprises Amended Order On Cross Motions For Summary Judgment, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.


The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes Oct 2020

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2019 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions.


Global Cellular Order Denying Staymobile’S Motion To Retroactively Extend The Deadline For Its Responses And Objections, Kelly Lee Ellerbee Sep 2020

Global Cellular Order Denying Staymobile’S Motion To Retroactively Extend The Deadline For Its Responses And Objections, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.


Greenlife Energy Solutions Order On Plaintiff’S Motion To Compel Production Of Documents, Kelly Lee Ellerbee Sep 2020

Greenlife Energy Solutions Order On Plaintiff’S Motion To Compel Production Of Documents, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.


J.P. Carey Enterprises Order Granting Defendant Cuentas’S Motion To Strike, Kelly Lee Ellerbee Sep 2020

J.P. Carey Enterprises Order Granting Defendant Cuentas’S Motion To Strike, Kelly Lee Ellerbee

Georgia Business Court Opinions

No abstract provided.