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Contracting For Procedure, Kevin E. Davis, Helen Hershkoff
Contracting For Procedure, Kevin E. Davis, Helen Hershkoff
William & Mary Law Review
Judicial decisions of public courts increasingly are based on “contract procedure,” private rules of procedure that the parties draft and assent to before a dispute even has arisen. These rules govern such matters as the forum in which the proceeding will be conducted, whether a jury will be involved in adjudicating the dispute, the scope of rights of discovery, and rules of evidence. The practice deserves greater attention and should raise more profound concerns than the academic literature currently suggests. We argue that contract procedure operates as a form of privatization that effectively outsources government functions to private contracting parties. …
You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
William & Mary Law Review
Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the “benefit of the bargain.” The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach, after putting the victim in the position he would have been in had the promise been performed. This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they do not. Rather than protecting the expectation …