Law Commons^™

You Do Have To Keep Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman

Peter Siegelman

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 …

Cities, Property, And Positive Externalities, Gideon Parchomovsky, Peter Siegelman

Peter Siegelman

Cities are the locales of numerous interactions that generate externalities—both negative and positive. Although the common law provides a vast array of mechanisms for limiting negative externalities, there is a striking absence of provisions for stimulating the production of positive ones. As a consequence, activities whose social benefits are greater than their private costs are not undertaken, with a resulting efficiency loss.

In this Article, we demonstrate how cities can develop commercial districts that allow for the capture of positive externalities by following the example of suburban malls. In malls, anchor stores provide positive externalities—additional customers—to neighboring stores. Anchors capture …

Predictions And Nudges: What Behavioral Economics Has To Offer The Humanities, And Vice-Versa, Anne Dailey, Peter Siegelman

Peter Siegelman

Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness. New Haven: Yale University Press, 2008. Pp. 304. $26.00. Dan Ariely, Predictably Irrational: The Hidden Forces That Shape Our Decisions. New York: HarperCollins, 2008. Pp. 280. $25.95. The informed law and humanities reader can hardly fail to be aware that the field of economics has undergone a "behavioral revolution" over the past several decades, and that this revolution has spilled over into the legal academy. Open an economics journal these days and you are likely to find any number of articles billing themselves as "behavioral" …

The Economics Of The Insurance Antitrust Suits: Toward An Exclusionary Theory, Ian Ayres, Peter Siegelman

Peter Siegelman

On March 22, 1988, the Attorneys General of eight states filed antitrust actions in state and federal courts alleging that major insurance and reinsurance companies colluded to boycott specific types of insurance coverage in violation of section 1 of the Sherman Act. The suits suggest that this collusion was responsible for the unprecedented increase in premiums and concomitant erosion of coverage that has come to be known as "the insurance crisis." The lawsuits have provoked fierce denials by insurance industry participants, including assertions that the suits, which came in an election year, were politically motivated. The litigation is certain to …

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman

Peter Siegelman

An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …

You Want Insurance With That? Using Behavioral Economics To Protect Consumers From Add-On Insurance Products, Tom Baker, Peter Siegelman

Peter Siegelman

No abstract provided.