Law Commons^™

Mythical Adverse Effect, Naveen Thomas

Emory Law Journal

The material adverse effect (MAE) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. Practitioners and scholars alike encourage attorneys to bargain extensively over these definitions, which have inexorably grown in length and complexity over the past two decades.

Challenging this longstanding conventional wisdom, this Article shows that endemic efforts to customize MAE definitions’ language are in fact inefficient and counterproductive. Each of the purported benefits commonly attributed to extensive MAE negotiation—most notably, risk allocation and renegotiation incentives—is illusory under Delaware law, which governs most major M&A agreements. Careful analysis …

Taxing Choices, Tessa R. Davis

FIU Law Review

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice …

Contract Design, Default Rules, And Delaware Corporate Law, Jeffrey Manns, Robert Anderson

Washington and Lee Law Review

Incomplete contract theory recognizes that contracts cannot be comprehensive and that state law necessarily has to fill in gaps when conflicts arise. The more complex the transaction, the more that lawyers face practical constraints that force them to limit the scope of drafting and broadly rely on legal defaults and open-ended terms to plug holes and address contingencies. In theory Delaware law serves as lawyers’ preferred jurisdiction and forum for merger and acquisition (M&A) transactions and other high-end corporate deals because of the state’s superior default rules for corporate law and its judiciary’s expertise in discerning the “hypothetical bargain” of …

Contract Remedies In Action: Specific Performance, Yonathan A. Arbel

West Virginia Law Review

No abstract provided.

Control Or Security: A Therapeutic Approach To The Freedom Of Contract, Yuval Feldman

Touro Law Review

No abstract provided.

A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thürmann

Georgia Journal of International & Comparative Law

No abstract provided.

Introduction: Private Ordering In A Globalizing World: Still Searching For The Basics Of Contract, Peer Zumbansen

Indiana Journal of Global Legal Studies

Governing Contracts - Public and Private Perspectives, Symposium. Osgoode Hall Law School, Toronto, November 9-10, 2006

The Law Of Society: Governance Through Contract, Peter Zumbansen

Indiana Journal of Global Legal Studies

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that …

The New Public Contracting: Public Versus Private Ordering?, Peter Vincent-Jones

Indiana Journal of Global Legal Studies

This article explores the hybrid character of contemporary public service organization with specific reference to the emergence in Britain over the last twenty-five years of a novel mode of governance, the "New Public Contracting." The New Public Contracting governs an ever-expanding range of aspects of modern life through contracting regimes directed at the attainment of particular policy purposes. In Britain, this mode of governance has been problematic in that many contracting regimes have failed to respond adequately to public needs. While the trend toward privatization may be politically irreversible, the role of the state should be to help establish the …

Relational Contract And The Nature Of Private Ordering: A Comment On Vincent-Jones, David Campbell

Indiana Journal of Global Legal Studies

This paper focuses on the enormous growth of contract in the public sector over the last twenty years as part of the development of the "new public management." In the United Kingdom, the most penetrating assessment of the significance of this growth for the law of contract, its theory and its use, is Peter Vincent-Jones's The New Public Contracting, the thrust of which has been the basis of Vincent-Jones's contribution to this issue, The New Public Contracting: Public versus Private Ordering? In this paper, the author examines the welfarism of public sector contracting by means of a comment on Vincent-Jones's …

The Role Of Contracts And Networks In Public Governance: The Importance Of The "Social Epistemology" Of Decision Making, Karl-Heinz Ladeur

Indiana Journal of Global Legal Studies

This article addresses the role of public contracts and of public-private networks in relation to the new cognitive infrastructure of postmodern societies and the rise of an experimental rationality. The use of contracts in public law has evolved: it is no longer just a new version of the administrative decision; it is now used as a means in a broad process of breaking up the permeability of public administration. New modes of contracting are a response to increasing fragmentation of interests in industry and in society as a whole. This evolution has also given rise to the concept of the …

Private Contracting And Business Models Of Electronic Commerce, Ichiro Kobayashi

University of Miami Business Law Review

No abstract provided.

Symposium- Incomplete Contracts: Judicial Responses, Transaction Planning, And Litigation Strategies - Introduction, Juliet P. Kostritsky

Case Western Reserve Law Review

No abstract provided.

Rediscovering Williston, Mark L. Movsesian

Washington and Lee Law Review

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 undertheorized quality of Williston 's …

Inequality Of Bargaining Power, Daniel D. Barnhizer

University of Colorado Law Review

No abstract provided.

Contractual Incompleteness: A Transactional Perspective, Avery W. Katz

Case Western Reserve Law Review

No abstract provided.

Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis

Case Western Reserve Law Review

No abstract provided.

A Realistic Proposal For The Contract Duress Doctrine, Grace M. Giesel

West Virginia Law Review

No abstract provided.

Relational Contract Theory And Democratic Citizenship, James W. Fox Jr.

Case Western Reserve Law Review

No abstract provided.

The Rise And Fall Of Article 2, Robert E. Scott

Louisiana Law Review

No abstract provided.

The Justification For Protecting Reasonable Expectations, Bailey H. Kuklin

Hofstra Law Review

No abstract provided.

Humans, Computers, And Binding Commitment, Margaret Jane Radin

Indiana Law Journal

Addison C. Harris Lecture at the Indiana University School of Law-Bloomington on October 26, 1999.

Essay: Shakespeare's Contribution To The Teaching Of Comparative Law - Some Reflections On The Merchant Of Venice, Edith Z. Friedler

Louisiana Law Review

No abstract provided.

Certainty, Fence Building, And The Useful Arts, Craig Allen Nard

Indiana Law Journal

No abstract provided.

Reviving Jacob And Youngs, Inc. V. Kent: Material Breach Doctrine Reconsidered, Amy B. Cohen

Villanova Law Review

No abstract provided.

The Meaning Of Value In Contract Damages And Contract Theory , David W. Barnes

American University Law Review

No abstract provided.

A Defense Of Judicial Reconstruction Of Contracts, Mark P. Gergen

Indiana Law Journal

No abstract provided.

Should We Fire The Gatekeeper? An Examination Of The Doctrine Of Consideration, Mark B. Wessman

University of Miami Law Review

No abstract provided.

The Reunification Of Contract Law: The Objective Theory Of Consumer Form Contracts, Michael I. Meyerson

University of Miami Law Review

No abstract provided.

Striking The Balance In Contract History, Joel Levin, Banks Mcdowell

Cleveland State Law Review

The past three decades have seen an enormous amount of writing by Anglo-American scholars about contract theory. If nothing else, this demonstrates the almost universal perception that there are serious problems with the received theory of contract, the product of giants like Holmes, Williston, Cardozo and Corbin. This theoretical activity, instead of creating a new paradigm, has produced divergent theoretical approaches with various bands of scholars striking off in quite different directions, and in the process leaving most judges and lawyers back at the starting point. What should we be trying to do when we build a contract theory for …