94 Iowa L. Rev. 937 (2008-2009)
Values and Value Creation in Public-Private Transactions

handle is hein.journals/ilr94 and id is 943 raw text is: Values and Value Creation
in Public-Private Transactions
Nestor M. Davidson*
ABSTRACT. Scholars have developed a significant body of literature
exploring the work of deal lawyers with the essential insight that attorneys
acting as transaction-cost engineers have unique potential to add to the
overall value of deals. This value-creation literature has traditionally made
two foundational assumptions about the role of the state in transactional
law. First, scholars have assumed that regulation is essentially irrelevant to
transacting-that from the deal lawyer's perspective, the government is a
factor only to the extent that the state will enforce private agreements.
Second, scholars have assumed that private parties uniformly view public
policy as a constraint in the realm of compliance-that from the deal
lawyer's perspective, clients are indifferent, if not hostile, to regulatory goals.
The first assumption is the subject of recent scholarship convincingly
arguing that regulatory arbitrage should be added to the picture of deal
lawyers as transaction-cost engineers. The second assumption, however, has
gone unchallenged and is the focus of this Article.
Although the value-creation literature envisions a monolithic orientation
toward the state, in practice, partnerships that engage the private sector in
advancing a variety of public goals represent both a significant sector of the
economy and one of the central contemporary approaches to policy by federal,
state, and local governments. Deal lawyers are thus increasingly called upon
not only to reduce transaction costs and leverage regulatory constraints, but
also to manage a complex alignment of interests between private means and
public ends. In short, lawyers in public-private transactions perform what
this Article calls regulatory translation-transmognfying the often abstract
goals of public policy into the concrete mechanisms of private ordering.
* Associate Professor, University of Colorado Law School. J.D., Columbia Law School,
1997, A.B., Harvard University, 1990. For helpful comments, the author wishes to thank
Deborah Cantrell, Scott Cummings, Vic Fleischer, Clare Huntington, Scott Moss, Pierre Schlag,
Jim Smith, Phil Weiser, and the participants in the 2007 Workshop on Affordable Housing and
Public/Private Partnerships. Charles Swanson and Kelly Kafer provided excellent research


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