Sunday, September 20, 2009
Over at the Conglomerate, guest blogger Afra Afsharipour has a couple of posts (here and here) dealing with the sparseness of legal scholarship on contractual complexity. Prof. Afsharipour, who practiced as a corporate lawyer for seven years before she began teaching in 2007, is "surprised that there is not more scholarship studying in detail complex agreements." She contends that there is a need for greater scholarly study of existing contractual terms, deals and deal structures, at least in part to help practioners do a better job.
I agree with her views. In 2005, Jono Rosen and I published a pair of articles analyzing some common but complex contractual terms. The first was on various anti-dilution provisions and the circumstances under which they are used. The second examined the effect various provisions in venture capital contracts have on economic outcomes. Our goal was to provide a way for practioners and academics to think about these provisions and better understand them.
Unfortunately, I believe that she is fighting an uphill battle. In my (admittedly limited) experience, too many legal scholars believe these inquiries are too practical and therefore don't have much value. So (with a handful of exceptions) even those who think this is a productive area of inquiry are discouraged from this path.