Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2020 Innovation Versus Encrustation: Agency Costs in Contract Reproduction Stephen J. Choi New York University School of Law,
[email protected] Mitu Gulati Duke University School of Law,
[email protected] Robert E. Scott Columbia Law School,
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Banking and Finance Law Commons, Business Organizations Law Commons, Contracts Commons, International Law Commons, and the Law and Economics Commons Recommended Citation Stephen J. Choi, Mitu Gulati & Robert E. Scott, Innovation Versus Encrustation: Agency Costs in Contract Reproduction, (2020). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2668 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. INNOVATION VERSUS ENCRUSTATION: AGENCY COSTS IN CONTRACT REPRODUCTION Stephen J. Choi,* Mitu Gulati** & Robert E. Scott*** Abstract This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk.