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Full-Text Articles in Contracts
Contract Design, Default Rules, And Delaware Corporate Law, Jeffrey Manns, Robert Anderson
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 …
The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield
The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield
Scholarly Articles
This article argues that informed consent to contract terms is not a good to be maximized, but is rather an information cost that courts should minimize. The goal of mass-market contract law ought to be to keep costs low by encouraging contract standardization. The article applies information cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential …
Rediscovering Williston, Mark L. Movsesian
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 …