D. Gordon Smith, The "Branding Effect" of Contracts, 12 Hᴀʀᴠ. Nᴇɢᴏᴛ. L. Rᴇᴠ. 189 (2006).
branding, contracts, opportunism
In his case study of the MasterCard IPO and its predecessor piece on the Google IPO, Victor Fleischer claims to find evidence of a branding effect of legal infrastructure. The branding effect is not aimed at reducing the potential for opportunism by a counterparty to a contract, but rather at increasing the attractiveness of a product to present and future users or improving the image of a company in the eyes of regulators, judges, and juries. In this essay commenting on Fleischer's work, I endorse the notion that deal structures have branding effects and position Fleischer's work within a larger stream of scholarship that focuses on the substantive terms of contracts rather than on contract doctrine or dispute resolution in various contractual settings. In addition, I offer a few refinements to Fleischer's notion of branding effect.
For the Conference on Case Studies and Negotiations, sponsored by Harvard Law School, Cambridge, Massachusetts on April 26, 2006.
Harvard Negotiation Law Review