What Lawyers Say Determines Choice of Law in Merger Agreements
JAN 21, 2015
8:30 AM - 9:30 AM
Professor Kostritsky's paper will address the reasons underlying the choice of law made in a set of approximately 400 merger agreements. Miller and Eisenberg have hypothesized that companies specify New York, rather than Delaware law, because New York contract law is more formalistic. She became interested in exploring whether this shift exists (a separate paper explores whether the data supports finding of a shift) and in this paper she explores why lawyers and clients make a particular choice of law. Rather than relying on a hypothesis that that a preference for formalism underlies a particular choice of law, Professor Kostritsky asked lawyers what matters to them and their clients in making the choice of law decision.
Contrary to her own expectation that the location of the attorney would be the driving force in such decisions, because of concerns with malpractice, lawyers themselves ranked the presence of a branch office in the chosen jurisdiction relatively low on the reasons governing the choice.
To better understand the choice of law issue, Professor Kostritsky designed a survey sent out to 812 lawyers identified from the EDGAR database complied by the SEC as a lawyer who worked on a merger agreement during the period of Jan 1, 2011 to June 30, 2011. The survey responses shed light on several issues including who chooses the law (client or lawyer), what factors (ranked in order of preference) influence the choice of law in New York and in Delaware, how Delaware and New York compare in terms of formalism, the degree of comfort with New York and Delaware contract law, and the influence of the forum on the choice of law.
Everett D. & Eugenia S. McCurdy Professor of Contract Law
Case Western Reserve University School of Law
Professor Kostritsky is the Everett D. and Eugenia S. McCurdy Professor of Contract Law at Case Western Reserve University. Her research focuses on legal interventions in incomplete contracts, trade usages, contract interpretation, promissory estoppel and illegal contracts. She teaches Contracts, Law and Business, Commercial Paper, Sales, and Advanced Contracts. The first year classes in 2001, 2002, 2004 and 2007 voted Professor Kostritsky their favorite professor. Prior to joining the Case law faculty, Professor Kostritsky was an associate with the New York law firm of Milbank, Tweed, Hadley & McCloy. She graduated with a B.A. from Harvard and a J.D. from the University of Wisconsin where she was a member and articles editor on the Wisconsin Law Review. After joining the Case faculty, Professor Kostritsky visited at Northwestern University School of Law in Chicago. Kostritsky is a member of the American Law Institute (ALI) and the American Law and Economics Association (ALEA).
8:00 a.m. Registration and continental breakfast.
1-hour gratis CLE credit pending approval.
Space is limited. Registration required.