Law Commons^™

Repairing (The Doctrine Of) Irreparable Harm: Economic Analysis Of Preliminary Injunctions, Barak Medina, Ofer Grosskopf

Barak Medina

In deciding whether to grant a preliminary injunction courts compare the expected irreparable harm if the injunction is not issued to the irreparable harm that would result if the injunction is issued. An injury is considered irreparable only as far as it “cannot be cured by a remedy after trial.” This Article demonstrates that to maximize social welfare (“efficiency”) the definition of irreparable harm must be modified. From a social-welfare perspective, harms to one party which do not correlate to corresponding benefits to the other party are deadweight-losses, regardless of the availability of a remedy that may merely reallocate them …

Remedies For Wrong Preliminary Injunctions: The Case For Disgorgement Of Profits And Only Partial Liability For Harms, Barak Medina, Ofer Grosskopf

Barak Medina

A party who applies for a preliminary injunction is required to post a bond that would cover the harms inflicted on any party who is found to have been wrongfully enjoined or restrained. Yet, the moving-party’s liability frequently covers only a fraction of the actual costs and harms inflicted by the injunction. In addition, courts reject most claims for restitution of benefits gained by the plaintiff on the basis of the wrong preliminary injunction. This Article demonstrates that these practices are only partially justified. It supports the practice of requiring the moving-party to compensate the defendant for only part of …

A Revised Economic Theory Of Disclosure Duties And Break-Up Fees In Contract Law, Barak Medina, Ofer Grosskopf

Barak Medina

The economic analysis of contract law offers an influential argument against imposing a duty to disclose information and in support of guaranteeing reimbursement (“break-up fees”) for pre-contractual investments in acquiring information. According to the conventional wisdom, a negotiating party invests resources in information gathering on the basis of its expectation to extract the contractual surplus that the investment may generate. As a result, it is arguably essential to protect the investing party’s ability to benefit from its investment in gathering information. Such protection can be provided either by allowing non-disclosure of relevant information that was achieved through a deliberate effort, …

Law, Morality, And Economics: Integrating Moral Constraints With Economic Analysis Of Law , Barak Medina, Eyal Zamir

Barak Medina

Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Thus, for example, it presumably approves the deliberate killing of one innocent person to save the lives of two, and the breaking of a promise whenever it would produce slightly more net benefit than keeping it.

Moderate deontology prioritizes such things as autonomy, basic liberties, truth telling, and promise keeping over the promotion of good outcomes. It holds that there are constraints …