Governing innovative collaboration : a new theory of contract

Herein I outline an alternative theory of contract and contract enforcement. This theory is based upon two claims, one positive and one normative. The first claim is that incomplete contracting theory fails to explain how economic actors govern production in the new economy. Theories of "pragmatic governance" do, however, capture how modern firms order their relationships. To support this first claim, evidence from collaborative contracts is presented. The second claim is that, because both the traditional contextualist and the ascendant neoformalist approaches to contract enforcement undermine this new form of contract, a new philosophy is needed. A hybrid approach, integrating both formalism and problem-solving judicial intervention, provides such an alternative

Putting Stockholders First, Not the First-Filed Complaint

The prevalence of settlements in class and derivative litigation challenging mergers and acquisitions in which the only payment is to plaintiffs' attorneys suggests potential systemic dysfunction arising from the increased frequency of parallel litigation in multiple state courts. After examining possible explanations for that dysfunction, and the historical development of doctrines limiting parallel state court litigation -- the doctrine of forum non conveniens and the "first-filed" doctrine -- this article suggests that those doctrines should be revised to better address shareholder class and derivative litigation. Revisions to the doctrine of forum non conveniens should continue the historical trend, deemphasizing fortuitous and increasingly irrelevant geographic considerations, and should place greater emphasis on voluntary choice of law and the development of precedential guidance by the courts of the state responsible for supplying the chosen law. The "first-filed" rule should be replaced in shareholder representative litigation by meaningful consideration of affected parties' interests and judicial efficiency