Materials


The following is a suggested list of publications and materials that may be of interest to students who would like to explore the issues that relate to transactional law. It is by no means comprehensive, but contains some of the seminal works in this area.

Commercial Transactions - context, structure and documentation

  • Ronald J Gilson and Bernard S Black, The law and finance of corporate acquisitions (Foundation Press, 1995), together with 1999 Supplement (UniM Law KN 262.1 G1 GILS)
    • Written by two renowned scholars, this book provides detailed information on the law and finance of corporate acquisitions. It is particularly useful in terms of providing insights into the commercial context in which acquisitions take place and the legal issues that arise.
  • Geoff Yates and Mike Hinchliffe, A Practical Guide to Private Equity Transactions (Cambridge University Press) (UniM INTERNET electronic resource)
    • This guide explains the issues that arise through the life cycle of a private equity investment, from the identification of an opportunity (the deal process and preliminary matters), through the various stages of the transaction (deal structure and documentation), to the exit by the investor. It is particularly useful to those who want to explore the key documentation and legal issues that arise in a private equity deal.
  • James C Freund, Anatomy of a merger: strategies and techniques for negotiating corporate acquisitions (Law Journal Press, 1975) (UniM Law KN 262.1 FREU)
    • As its title suggests, this book looks at the strategies and techniques that lawyers need to be employ when they negotiate corporate acquisitions. Written by a former practitioner, the book is particularly useful for those who would like to delve into the key provisions that appear in acquisition documentation (e.g. the share purchase agreement)
  • Australian Encyclopaedia of Forms and Precedents, (LexisNexis AU) (UniM INTERNET electronic resource)
    • This is a useful database for precedent transaction agreements and commentary.
  • Getting the Deal Through, (UniM INTERNET electronic resource)
    • This provides international guides to law and regulation in 45 practice areas and more than 150 jurisdictions. With each jurisdiction following a standardised format, the guide contains concise explanations of the most important legal and regulatory matters that arise in business deals and disputes worldwide.

Transactional lawyers - their role and impact

  • Since Gilson wrote his seminar article in 1984, a scholarly debate has been underway in relation to the ways in which lawyers add value when acting for clients in business transactions. What theories best explain the role that transactional lawyers perform and what impact do transactional lawyers have in relation to value creation and value division? For those who are interested in following this debate, the following is a selection of some of the most significant papers from the United States:
    • Ronald J Gilson, 'Value Creation by Business Lawyers: Legal Skills and Asset Pricing' (1984) 94 The Yale Law Journal 239 (PDF)
    • Ronald J Gilson and Robert H Mnookin, 'Foreword: Business Lawyers and Value Creation for Clients' (1995) 74Oregon Law Review 1 (PDF)
    • Lisa Bernstein, 'The Silicon Valley Lawyer as Transaction Cost Engineer' (1995) 74 Oregon Law Review 239 (PDF)
    • Steven L Schwarcz, 'Explaining the Value of Transactional Lawyering' (2007) 12 Stanford Journal of Law, Business & Finance 486 (PDF)
  • Tina L Stark, 'Thinking Like a Deal Lawyer' (2004) 54 Journal of Legal Education 223 (PDF)
    • This article explores the question of what it means to think like a deal lawyer and proposes and analytical framework that students can learn to add value to a deal.
  • David H Maister, Charles H Green, Robert M Galford, The trusted advisor (Free Press, 2000) (UniM Law KZ 658.46 MAIS)
    • A classic, this book argues the proposition that nobody can become a successful advisor until they first gain the confidence of their clients. Through anecdotes and illustration, the authors examine the process by which professionals become trusted advisors and the importance of trust-building.
  • Christine Parker and Adrian Evans, Inside Lawyers' Ethics (Cambridge University Press, 2007) (UniM Law reserve KL 82 PARK; UniM INTERNET electronic resource)
    • This popular textbook looks at the ethics and ethical challenges that arise in legal practice. Although covering the broad range of legal practice, it contains some useful commentary and analysis on the challenges that corporate lawyers face in relation to issues such as conflicts of interest and time-based billing.

Transactional Skills - negotiating, advising and drafting

Negotiating and advising

  • Communication in practice, Melbourne Law School's own website for legal skills
  • Roger Fisher, William Ury and Bruce Patton, Getting to yes: negotiating your way from confrontation to cooperation(Random House, 2007) (UniM Law reserve KN 398.4 FISH)
    • Arising out of the work undertaken by the authors as part of the Harvard Negotiation Project, this book has become a globally recognised classic in relation to the negotiation process and how to behave in negotiations.
  • William Ury, Getting past no: negotiating your way from confrontation to cooperation (Bantam Books, 1993) (UniM Law KN 398.4 URY)
    • This book suggest strategies for turning adversaries into negotiating partners.
  • For the website on the Program on negotiation at Harvard Law SchoolClick here
  • Jeswald J Salacuse, The wise advisor: what every professional should know about consulting and counselling(Praeger, 2000) (UniM Bail 158.3 SALA)
    • This book provides a method for understand and carrying out the advising process. although generally applicable to all professionals, the book contains some useful insights for lawyers when advising on commercial transactions.
  • Jeswald J Salacuse, The global negotiator: making, managing and mending deals around the world in the Twenty-First Century (Palgrave Macmillan, 2003) (UniM BEE 658.4052 SALA)
    • Written by a world-recognised expert on negotiation theory, this book looks at the challenges that arise when business executives, lawyers and other advisors negotiate international deal, including relationship-building and how to save deals that are faltering.

Drafting

  • Kenneth A. Adams, , A Manual of Style for Contract Drafting (American Bar Association, 2008, 2nd Edition)
  • Peter Butt and Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language (Cambridge University Press, 2001)
    • Incorporating recent research and case law, this useful text provides a step-by-step guide to drafting in the modern style. It uses examples from four areas: leases, company constitutions, wills and conveyances.
  • Bryan A Garner, Garner on language and writing: selected essays and speeches of Bryan A Garner (American Bar Association, 2009) (UniM Law K 100 GARN)
    • This is a collection of essays on writing, language and style by Bryan Garner, the editor in chief of of Black's Law Dictionary. The essays are wide-ranging and cover topics such as learning to write, contractual and legislative drafting, writing in legal practice, judicial writing and the literature relating to this subjects.
  • Michele M Asprey, Plain language for lawyers (Federation Press, 2010) (UniM Law reserve K 100 ASPR)
    • A comprehensive text that explains the impact of the plain language movement and how lawyers can - and should - write in plain language.
  • Ros Macdonald, Denise McGill, Drafting (LexisNexis Butterworth, 2008) (UniM Law KN 13 K1 MACD)
    • A practical guide to legal drafting in general and also to a number of specific transactions, including mortgages, guarantees and leases.
  • E L Piesse, The elements of drafting (Law Book Co, 1995) (UniM Law KL 34 K1 PIES)
    • A classic Australian work on the drafting of legal and business documents.
  • Caroline Maughan, Lawyering skills and the legal process (Cambridge University Press, 2005) (UniM Law KL 51 MAUN)
    • A useful general text for developing students' understanding of client interviewing, writing and drafting, negotiation and advocacy.
  • Australian Government Office of Parliamentary Counsel, Plain English Manual
    • a useful website for gaining an understanding of the style and approach adopted by parliamentary drafters when drafting legislation. Much of this is equally applicable to contract drafting.
  • Australian Encyclopaedia of Forms and Precedents (LexisNexis AU) Click here 
    • This is a useful database for precedent transaction agreements and commentary.