His work was a call to legal scholars to consider the process of bargaining about rights outside the context of litigation.
"We're setting these rules in a context of litigation, with Congress standing ready to make changes if it didn't like what we did," said Mr. Donovan, the current housing secretary.
She noted, for example, that shareholders typically are not entitled to copies of the minutes of board meetings, or application packages provided by prospective buyers, except in the context of litigation.
Jim Dessler, a Microsoft spokesman, calls the deal "reasonable, fair, even generous," and adds, "This is the chance to do something positive in the context of litigation".
It shows that privatization, often touted as a means of improving the efficiency of government services, may have the opposite effect in the context of litigation.
A special problem is that if people adapt to adverse changes because they cease to focus on them, the context of litigation will produce a serious distortion, because the attention of juries and judges is specifically focused on adverse changes.
Major League Baseball said in a statement: "We would welcome a thoughtful and inclusive dialogue to address these concerns outside the context of litigation.
