Revising Boilerplate: A Comparison Of Private And Public Company Transactions,
2020
New York University School of Law
Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati
Faculty Scholarship
The textbook model of commercial contracts between sophisticated parties holds that terms are proposed, negotiated and ultimately priced by the parties. Parties reach agreement on contract provisions that best suit their transaction with the goal of maximizing the joint surplus from the contract. The reality, of course, is that the majority of the provisions in contemporary commercial contracts are boilerplate terms derived from prior transactions and even the most sophisticated contracting parties pay little attention to these standard terms, focusing instead on the price of the transaction. With standard-form or boilerplate contracts, this dynamic of replicating by rote the terms …
Can Smart Contracts Enhance Firm Efficiency In Emerging Markets?,
2020
Northwestern Pritzker School of Law
Can Smart Contracts Enhance Firm Efficiency In Emerging Markets?, Kevin J. Fandl
Northwestern Journal of International Law & Business
Blockchain technology has the potential to eliminate one of the most significant barriers to economic growth through private business transactions in developing countries—lack of trust. In a typical developed country, individuals and firms conduct transactions within an institutional environment that offers security through the enforcement of agreements. Transparent and effective courts, while imperfect to be sure, enable parties to feel secure in their transactions even if their level of trust in the other party is low. This security, in turn, facilitates transactions far afield from high-trust relationships (e.g., immediate relatives), generating transactions based upon economic value rather than party trust …
Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage,
2020
Penn State Law
Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French
Faculty Scholarship
The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been …
Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment,
2020
Judge of the Court of Appeal of England and Wales
Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment, Richard Arnold, Jane C. Ginsburg
Faculty Scholarship
The U.S. Copyright Act gives authors the right to terminate assignments of copyrights in works other than works for hire executed on or after 1 January 1978 after 35 years, and to do so notwithstanding any agreement to the contrary. Given that agreements which are subject to the laws of other countries can assign U.S. copyrights, and purport to do so in perpetuity, U.S. law’s preclusion of agreements contrary to the author’s right to exercise her termination right can give rise to a difficult choice of law issue. Two recent cases which came before courts in the U.S. and England …
Federalizing Contract Law,
2020
St. Thomas University School of Law
Federalizing Contract Law, Stephen A. Plass
Lewis & Clark Law Review
Contract law is generally understood as state common law, supplemented by the Second Restatement of Contracts and Article 2 of the Uniform Commercial Code. It is regarded as an expression of personal liberty, anchored in the bargain and consideration model of the 19th century or classical period. However, for some time now, non-bargained or adhesion contracts have been the norm, and increasingly, the adjudication of legal rights and contractual remedies is controlled by privately determined arbitration rules. The widespread adoption of arbitral adjudication by businesses has been enthusiastically endorsed by the Supreme Court as consonant with the Federal Arbitration Act …
Anticipating Venezuela’S Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses,
2020
Duke Law School
Anticipating Venezuela’S Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an …
Revising Boilerplate: A Comparison Of Private And Public Company Transactions,
2020
Duke Law School
Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Robert E. Scott, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across …
The Myth Of Optimal Expectation Damages,
2020
Duke Law School
The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati
Faculty Scholarship
A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer-drawing from the theory of efficient breach-is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract/or themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the …
Artworks As Business Entities: Sculpting Property Rights By Private Agreement,
2020
University of Kentucky College of Law
Artworks As Business Entities: Sculpting Property Rights By Private Agreement, Christopher G. Bradley
Law Faculty Scholarly Articles
Modern business entities, such as LLCs, are increasingly created and deployed to accomplish customized transactions and evade legal restrictions. Rather than acting as traditional business enterprises, entities serve as tools to facilitate complex commercial transactions and surmount limitations presented by existing bodies of law. One limitation constrains the ways that private parties can agree to divide property rights—a doctrinal limitation sometimes referred to as numerus clausus. This Article shows that such limitations on the customizing of property rights by private agreement now can be surmounted by virtue of modern business entity law. After describing the key features of modern …
Contracts: An Eight-Factor Test For Quantum Meruit Compensation For A Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. V. Api, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018),
2020
Mitchell Hamline School of Law
Contracts: An Eight-Factor Test For Quantum Meruit Compensation For A Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. V. Api, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018), Mitch Ohiwa
Mitchell Hamline Law Review
No abstract provided.
Short History Of The Choice-Of-Law Clause,
2020
University of Colorado Law School
Short History Of The Choice-Of-Law Clause, John F. Coyle
University of Colorado Law Review
In the field of conflict of laws, private actors are generally granted the power to choose the law to govern their contracts. This is the doctrine of party autonomy. In recent years, this doctrine has been the subject of several excellent histories that draw upon judicial opinions, scholarly writings, and legislative enactments to chronicle changing attitudes toward party autonomy over time. A moment's reflection, however, reveals that judges, scholars, and legislatures are not the most important actors in this story. The true protagonists are the contracting parties who write choice-of-law clauses into their agreements, without which there would be no …
"You're Fired!": The Common Law Should Respond With The Refashioned Tort Of Abusive Discharge,
2020
Louisiana State University Law Center
"You're Fired!": The Common Law Should Respond With The Refashioned Tort Of Abusive Discharge, William R. Corbett
Journal Articles
An at will prerogative without limits could be suffered only in an anarchy, and there not for long--it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together. Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature …
Delaware As Deal Arbiter,
2020
Louisiana State University Law Center
Delaware As Deal Arbiter, Christina M. Sautter
Journal Articles
Most would agree that the Delaware courts are the leading jurists in the resolution of corporate conflicts, particularly in the Mergers & Acquisitions (M&A) context. Arguably a greater role that Delaware plays is that of a norm setter, both with respect to the expectations of management conduct in the M&A process and with respect to deal terms, particularly deal protection devices. Like in any relationship, there is a "give and take" between practitioners and Delaware. That is, practitioners are "on the front lines," often innovating with respect to new deal structures and deal terms. After some time, Delaware has the …
The Vested Way: A Model Of Formal Relational Contracts,
2020
University of the Pacific
The Vested Way: A Model Of Formal Relational Contracts, Kate Vitasek, Jane K. Winn, Toni E. Nickel
University of the Pacific Law Review
No abstract provided.
Contract Law And Social Morality,
2020
University of the Pacific
Contract Law And Social Morality, Peter M. Gerhart
University of the Pacific Law Review
No abstract provided.
Year In Review: The Federal Circuit's 2019 Government Contract Law Decisions,
2020
Arnold & Porter Kaye Scholer LLP
Year In Review: The Federal Circuit's 2019 Government Contract Law Decisions, Nathaniel E. Castellano
American University Law Review
No abstract provided.
Summit Insurance Co. V. Stricklett, 199 A.3d 523 (R.I. 2019),
2020
Candidate for Juris Doctor, Roger Williams University School of Law
Summit Insurance Co. V. Stricklett, 199 A.3d 523 (R.I. 2019), Amanda Larocca
Roger Williams University Law Review
No abstract provided.
Rhode Island Council On Postsecondary Education V.Hellenic Society Paideia – Rhode Island Chapter, 202 A.3d 931(R.I. 2019),
2020
Candidate for Juris Doctor, Roger Williams University School of Law
Rhode Island Council On Postsecondary Education V.Hellenic Society Paideia – Rhode Island Chapter, 202 A.3d 931(R.I. 2019), Jeffery Rankel
Roger Williams University Law Review
No abstract provided.
Investment Misconceived: The Investment-Commerce Distinction In International Investment Law,
2020
Brooklyn Law School
Investment Misconceived: The Investment-Commerce Distinction In International Investment Law, Stratos Pahis
Faculty Scholarship
No abstract provided.
Super-Statutory Contracting,
2020
University of Colorado Law School
Super-Statutory Contracting, Kristelia García
Publications
The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …
