Law Commons^™

Comfortably Numb: Medicalizing (And Mitigating) Pain-And-Suffering Damages, Lars Noah

University of Michigan Journal of Law Reform

Among the compensatory damages that a plaintiff may recover in tort litigation, awards for pain and suffering have attracted the most attention. Attorneys, judges, legislators, and scholars from various disciplines long have struggled to measure and make sense of this aspect of compensation for tortiously caused injuries. With the steady expansion of what falls within the rubric of nonpecuniary damages and in the types of claims eligible for such awards, to say nothing of the growth in the absolute and relative size of this portion of compensatory awards, pain-and-suffering damages have become increasingly controversial.

Although it canvasses the competing arguments …

The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson

University of Michigan Journal of Law Reform

Tort reform became an important issue during the 1994 Congressional Campaign as part of the Republican Party's "Contract with America. "Since then, many federal and state laws have attempted to reduce both liability and recovery in tort actions. In 1996, Michigan passed the Tort Reform Act, encompassing many drastic changes to state tort law. One provision of the Act, § 294 7, scaled back liability against non-manufacturing retailers in product liability actions. The Michigan Supreme Court interpreted the exceptions of the law narrowly and the prohibition broadly, essentially barring recovery from retailers. Since 1996, this provision has prevented victims injured …

Fault In Contract Law, Eric A. Posner

Michigan Law Review

A promisor is strictly liable for breaching a contract, according to the standard account. However, a negligence-based system of contract law can be given an economic interpretation, and this Article shows that such a system is in some respects more attractive than the strict-liability system. This may explain why, as a brief discussion of cases shows, negligence ideas continue to play a role in contract decisions.

Why Breach Of Contract May Not Be Immoral Given The Incompleteness Of Contracts, Steven Shavell

Michigan Law Review

There is a widely held view that breach of contract is immoral. I suggest here that breach may often be seen as moral, once one appreciates that contracts are incompletely detailed agreements and that breach may be committed in problematic contingencies that were not explicitly addressed by the governing contracts. In other words, it is a mistake generally to treat a breach as a violation of a promise that was intended to cover the particular contingency that eventuated.

An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar

Michigan Law Review

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no "-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely …

Could Breach Of Contract Be Immoral?, Seana Shiffrin

Michigan Law Review

Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not morally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that contractual breach is not immoral in those cases in which the legal regime would offer expectation damages because the contracting parties would not have agreed to require performance had they explicitly deliberated about the circumstances occasioning the breach. I criticize his argument for failing to justify this hypothetical-contract approach and, in any …

Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Michigan Law Review

The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …

The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun

University of Michigan Journal of Law Reform

Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. They cause dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …

"One Of The Dirty Secrets Of American Corrections": Retaliation, Surplus Power, And Whistleblowing Inmates, James E. Robertson

University of Michigan Journal of Law Reform

Retaliation is deeply engrained in the correctional office subculture; it may well be in the normative response when an inmate files a grievance, a statutory precondition for filing a civil rights action. This Article, the first to address comprehensively the sociological and constitutional aspects of retaliation, argues for protecting grievants through safeguards much like those accorded whistleblowers. Part I of the Article provides a socio-legal primer on correctional officer retaliation by addressing the frequency of retaliation, its causes, and its constitutional taxonomy. Part II describes the elements of a prima facie case of unconstitutional retaliation under § 1983. Part III …

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell

Michigan Law Review

The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues-the definition of "willful," and the measure of damages for willful breach-need to be considered simultaneously. Specifically, if a definition of "willful" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level ("throw the book at …