Contracts Commons^™

Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

Is U.S. Ceo Compensation Inefficient Pay Without Performance?, John E. Core, Wayne R. Guay, Randall S. Thompson

Michigan Law Review

In Pay Without Performance, Professors Lucian Bebchuk and Jesse Fried develop and summarize the leading critiques of current executive compensation practices in the United States. This book, and their highly influential earlier article, Managerial Power and Rent Extraction in the Design of Executive Compensation, with David Walker offer a negative, if mainstream, assessment of the state of U.S. executive compensation: U.S. executive compensation practices are failing in a widespread manner, and much systemic reform is needed. The purpose of our Review is to summarize the book and to offer some counterarguments to try to balance what is becoming …

The Exit Structure Of Strategic Alliances, D. Gordon Smith

Faculty Scholarship

Today, many biotechnology firms use strategic alliances to contract with other companies. This article contends that the governance structure of these alliances - specifically, the contractual board - provides an integrated restraint on opportunism. While an alliance agreement's exit structure could provide a check on opportunism by allowing the parties to exit at will, such exit provisions also can be used opportunistically. Most alliance agreements, therefore, provide for contractual lock in of the alliance partners, with only limited means of exit. Lock in, of course, raises its own concerns, and the contractual board - which typically is composed of representatives …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

The Notion Of Trust As A Comprehensive Theory Of Contract And Corporate Law: A New Approach To The Conception That The Corporation Is A Nexus Of Contract, Eli Bukspan

ExpressO

The paper argues that the concept of trust is inevitably latent in every contractual relationship, and is best understood as a comprehensive theory and justification of contract law as both trust and contracts (more than any other legal action) are aiming toward the same universal goal of cooperation, risk-taking, and fulfillment of reasonable expectations. Contract law, per se and through its “good faith” doctrine, could then function as an expressive, coercive, and thus corrective legal tool, serving to symbolize, build, and internalize a culture of trust wherever it has failed to develop. Accordingly, while viewing the corporation as a nexus …

The Missing Preferred Return, Victor Fleischer

ExpressO

Managers of buyout funds typically offer their investors an 8% preferred return on their investment before they take a share of any additional profits. Venture capitalists, on the other hand, rarely offer a preferred return. Instead, VCs take their cut from the first dollar of nominal profits. This disparity between venture funds and buyout funds is especially striking because the contracts that determine fund organization and compensation are otherwise very similar. The missing preferred return might suggest that agency costs pose a larger problem in venture capital than previously thought. Is the missing preferred return evidence, perhaps, that VCs are …

Erisa: State Regulation Of Insured Plans After Davila, 38 J. Marshall. L. Rev. 693 (2005), Donald T. Bogan

UIC Law Review

No abstract provided.

Risk Management In Long-Term Contracts, Victor P. Goldberg

Faculty Scholarship

Long-term contracts are designed to manage risk. After a brief discussion of why it is unhelpful to invoke risk aversion for analyzing serious commercial transactions between sophisticated entities, this paper focuses on adaptation to changed circumstances. In particular, it considers the options to abandon and the discretion to change quantity. It then analyzes a poorly designed contract between Alcoa and Essex showing how the parties misframed their problem and designed a long-term contract that was doomed to fail.

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Thinking Like A Deal Lawyer, Tina L. Stark

Journal of Legal Education

No abstract provided.

Independent Legal Significance, Good Faith, And The Interpretation Of Venture Capital Contracts, D. Gordon Smith

Faculty Scholarship

Venture capital contracts are inherently incomplete. When interpreting such contracts, courts could deal with the expectations of parties formally by inquiring only about the plain meaning of the contract or qualitatively by enforcing the presumed expectations of the parties, regardless of whether those expectations are expressed in the contract. The Delaware courts have opted for a formal approach. In doing so, they appear to be engaged in an effort to force contracting parties toward completeness. While the duty of good faith appears to respond to the inevitable incompleteness of contracts, the courts largely ignore this duty in preferred stock cases. …

Erisa: Re-Thinking Firestone In Light Of Great-West - Implications For Standard Of Review And The Right To A Jury Trial In Welfare Benefit Claims, 37 J. Marshall L. Rev. 629 (2004), Donald T. Bogan

UIC Law Review

No abstract provided.

Creditors' Rights Risk: A Title Insurer's Perspective, 38 J. Marshall L. Rev. 223 (2004), Paul L. Hammann, John C. Murray

UIC Law Review

No abstract provided.

Partnoy's Complaint: A Response, John C. Coffee Jr.

Faculty Scholarship

My article attempts to strike a balance and find a middle ground between the polar positions of those who favor strict liability (of whom Professor Partnoy is probably the most notable) and recent critics who believe it would produce market failure. Necessarily, those who take a middle position are exposed to fire from both sides. Although I admire Professor Partnoy's originality and incisive style, I do not believe that the market could easily survive his reforms and suspect that he has undervalued the hidden costs of strict liability. Deterrence is needed – but there can be too much of a …

Economic Organization In The Construction Industry: A Case Study Of Collaborative Production Under High Uncertainty, William A. Klein, Mitu Gulati

Faculty Scholarship

No abstract provided.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Engineering A Venture Capital Market: Lessons From The American Experience, Ronald J. Gilson

Faculty Scholarship

The venture capital market and firms whose creation and early stages were financed by venture capital are among the crown jewels of the American economy. Beyond representing an important engine of macroeconomic growth and job creation, these firms have been a major force in commercializing cutting-edge science, whether through their impact on existing industries as with the radical changes in pharmaceuticals catalyzed by venture-backed firms' commercialization of biotechnology, or by their role in developing entirely new industries as with the emergence of the Internet and World Wide Web. The venture capital market thus provides a unique link between finance and …

Red Owl's Legacy, Gregory M. Duhl

Faculty Scholarship

In the early 1960s, Joseph Hoffman, a high school graduate, baker and father of seven, sought to obtain a Red Owl grocery store franchise in Wisconsin. He entered into negotiations with Red Owl Stores, Inc. after the franchisor assured him that the $18,000 he had to invest in the franchise was sufficient. Over the course of the negotiations, Red Owl encouraged Hoffman to sell his bakery, buy a small grocery store to gain experience in the grocery business, sell his grocery store three months later, and move his family to the desired location for his Red Owl franchise. The negotiations …

Energy Goods: Should Article 2 Of The Uniform Commercial Code Apply To Energy Sales In A Deregulated Environment, 37 J. Marshall L. Rev. 281 (2003), Koby Bailey

UIC Law Review

No abstract provided.

Reciprocal Fairness, Strategic Behavior & Venture Survival: A Theory Of Venture Capital-Financed Firms, Manuel A. Utset

Scholarly Publications

No abstract provided.

The Evolution Of Corporate Law: A Cross- Country Comparison, Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West

Faculty Scholarship

The importance of law and legal institutions for economic development is widely acknowledged today. The invention of credit mechanisms to support long-distance trade has been hailed as one of the preconditions for the development of capitalism in Europe. The corporate form is regarded as another milestone for industrialization, the creation of viable market economies, and ultimately economic prosperity. Many former socialist countries quickly enacted new corporate codes or revived their pre-World War Two ("WWII") legislation. The failure of major privatization efforts to enhance enterprise efficiency is attributed to weaknesses in corporate governance, of which the corporate law is a crucial …

A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg

Faculty Scholarship

In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how …

3rd Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 3rd Annual Computer & Technology Law Institute held by UK/CLE in March 2001.

Issues Associated With New Developments And Transfers: A West Slope Perspective, Eric Kuhn

Water and Growth in the West (Summer Conference, June 7-9)

8 pages.

Activities Of The Eagle River Assembly, Douglas Kemper

Water and Growth in the West (Summer Conference, June 7-9)

14 pages (includes illustrations).

Conjunctive Use In The Denver Basin: The Three Way Agreement, Peter D. Binney

Water and Growth in the West (Summer Conference, June 7-9)

14 pages.

Contains references.

Potential For Coordinated Facilities Management Along The Northern Front Range, Marc Waage

Water and Growth in the West (Summer Conference, June 7-9)

2 pages.

Emerging Demands In The Colorado Headwaters, Taylor Hawes

Water and Growth in the West (Summer Conference, June 7-9)

8 pages.