Article

Faux Contracts

In deals, parties sometimes enter into agreements that look like contracts but lack the legal bite of formal contracts. What value can these agreements add that formal contracts cannot? This Article shows how parties use these agreements to mitigate so-called mundane transaction costs and to build a small relational ecosystem for future steps in the same transaction.

Parties use non-binding agreements in a variety of unsurprising contexts, like when binding agreements are too expensive or illegal, or when informal enforcement suffices. Use of non-binding agreements is puzzling, however, when parties are sophisticated—that is, when parties have the financial means and technical sophistication to enter into real, binding legal contracts, but choose to use non-binding ones instead. Early-stage mergers and acquisitions (“M&A”) is one such situation: parties enter into non-binding term sheets, which often look like contracts, but intentionally opt out of formal enforcement. Informal enforcement is also unlikely, because many M&A parties are not repeat players in the market. Yet, despite lack of enforcement, parties abide by the terms of the non-binding term sheet.

This Article makes two contributions to the literature. First, it shows that sometimes, enforcement is not necessary or even preferred: rather, parties prefer to decouple ex ante contracting from ex post enforcement through “faux contracts” like M&A term sheets. In doing so, parties can leverage the benefits of engaging in a contracting exercise, without actually subjecting themselves to enforcement. Because complex business deals are highly collaborative design processes, using a contract-like tool, even (or especially) without enforcement, helps parties organize, clarify, and understand the metes and bounds of their deals and obligations, whether or not they plan to, or can, enforce them. Second, through original interviews, this Article shows how parties use these early agreements and other activities to build a small relational ecosystem in which they feel enough trust to make further investments. Ultimately, parties’ reputations still matter to them—not on the broader M&A market, but within the individual deal.

The Myth of Common Law Crimes

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.

Confining Cases to Their Facts

Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal principles; and it conflicts with modern retroactivity doctrine. Remarkably, the law of precedent has failed to account for this unusual practice. Confining and overruling have been deployed interchangeably, with little regard for their distinctive attributes. In this first in-depth treatment of confining, we offer guidelines for its responsible use—ones designed to place the practice on sounder theoretical footing and to end its indiscriminate use across the federal and state court systems.

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