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Formalism

Case Western Reserve University School of Law

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Full-Text Articles in Law

Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Kyle Chen, Harold S. Haller, Juliet P. Kostritsky, Wojbor A. Woyczynski Jan 2016

Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Kyle Chen, Harold S. Haller, Juliet P. Kostritsky, Wojbor A. Woyczynski

Faculty Publications

The legal community has long recognized that business corporations heavily favor Delaware as the state of incorporation. However, a recent study of merger agreements from 2002 by Eisenberg and Miller suggested that despite Delaware’s prominence as the place of incorporation, companies “flee” from Delaware with respect to both choice of law and forum, and instead prefer New York. We set out to study data from 343 merger and acquisitions contracted on between January 1, 2011 and June 30, 2011 in an attempt to verify this conjecture. Our study is important for two reasons. First, the 2011 data set show that …


Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky Jan 2015

Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky

Faculty Publications

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 …