The Market for Contracts

50 Pages Posted: 19 Oct 2006  

Theodore Eisenberg

Cornell University, Law School (Deceased)

Geoffrey P. Miller

New York University School of Law

Date Written: March 2007

Abstract

Legal scholars have focused much attention on the incorporation puzzle - why major firms so heavily favor Delaware as their chartering state. The choice of Delaware incorporation is effectively a decision to select Delaware law to control issues of corporate governance and (less reliably) to select Delaware courts to adjudicate disputes. In this sense the incorporation decision is similar to any contract in which parties select a governing law or designate a forum. This paper considers whether theories about Delaware corporate law apply to the broader market for commercial contracts. After describing how the preconditions for such a market were established during the last half of the Twentieth Century (through the increased enforceability of choice-of-law and forum selection clauses), the paper looks at empirical evidence about major commercial contracts. Although Delaware dominates the market for incorporations, New York is the leading supplier of law and forum in commercial contracts. The paper explores several explanations for New York's popularity.

Suggested Citation

Eisenberg, Theodore and Miller, Geoffrey P., The Market for Contracts (March 2007). New York University, Law and Economics Research Paper No. 06-45. Available at SSRN: https://ssrn.com/abstract=938557 or http://dx.doi.org/10.2139/ssrn.938557

Theodore Eisenberg

Cornell University, Law School (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Geoffrey P. Miller (Contact Author)

New York University School of Law ( email )

Center for the Study of Central Banks
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6329 (Phone)
212-995-4590 (Fax)

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