Law Commons^™

Comment On 'Judicial Compensation And Performance', J.J. Prescott

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The most significant challenges to better understanding judicial behavior are lack of data and the absence of plausible exogenous variation in judicial environments. The random assignment of judges to cases has admittedly been helpful in gaining traction on the effects of judicial decisions (e.g., Dobbie, Goldin, and Yang 2018). Yet developing a full empirical account of “what judges maximize” (Posner 1993) would require a setting in which judges are randomly subjected to a wide variety of (real-world) environments with different costs, constraints, and rewards. This prospect remains pie in the sky, but that does not mean that we have not …

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

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Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Lawyering In Place: Topographies Of Practice And Pleadings In Pittsburgh, 1775-1895, Bernard J. Hibbitts

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Even in the digital age, lawyering is always located. Lawyers live and work in physical space, and they deal with other lawyers and with clients who also have at least some measure of physicalized existence. Distracted and ofttimes overwhelmed by written records, legal historians have traditionally paid little attention to the physical environment of lawyering, but under the influence of contemporary cultural factors this is beginning to change. Indeed, in light of recent works on American, English and even ancient law it may be time to recognize the birth pangs of a new interdisciplinary field that we might label “legal …

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

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This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …

Theater Of International Justice, Jessie Allen

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In this essay I defend international human rights tribunals against the charge that they are not “real” courts (with sovereign force behind them) by considering the proceedings in these courts as a kind of theatrical performance. Looking at human rights courts as theater might at first seem to validate the view that they produce only an illusory “show” of justice. To the contrary, I argue that self-consciously theatrical performances are what give these courts the potential to enact real justice. I do not mean only that human rights tribunals’ dramatic public hearings make injustice visible and bring together a community …

Threatening An Irrational Breach Of Contract, Oren Bar-Gill, Omri Ben-Shahar

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When circumstances surrounding the contract change, a party might consider breach a more attractive option than performance. Threatening breach, this party may induce the other party to modify the original agreement. The contract law doctrine of modification determines whether and when these modifications are enforceable. To promote social welfare as well as the interests of the threatened party, the law should enforce modifications if and only if the modification demand is backed by a credible threat to breach. This paper argues that credibility is not a function of pecuniary interests alone. A decision to breach can be motivated also by …

The Law Of Duress And The Economics Of Credible Threats, Oren Bar-Gill, Omri Ben-Shahar

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This paper argues that enforcement of an agreement, reached under a threat to refrain from dealing, should be conditioned solely on the threat's credibility. When a credible threat exists, enforcement promotes social welfare and the threatened party's interests. If agreements backed by credible threats were not enforceable, the threatening party would not extort them and would instead refrain from deaing-to the threatened party's detriment. The doctrine of duress, which invalidates such agreements, hurts the coerced party. By denying enforcement when a credible threat exists, the duress doctrine precludes the threatened party from making the commitment necessary to reach agreement. Paradoxically, …

Good Faith And The Cooperative Antagonist (Symposium On Revised Article 1 And Proposed Revised Article 2 Of The Uniform Commercial Code), James J. White

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One of Karl Llewellyn's most noted achievements in the Uniform Commercial Code was to impose the duty of good faith on every obligation under the Uniform Commercial Code.1 Some (I am one) have privately thought that imposition of this unmeasurable, undefinable duty was Llewellyn's cruelest trick, but no court, nor any academic writer, has ever been so bold or so gauche as to suggest that good faith should not attend the obligations of parties under the UCC. Notwithstanding this silent indorsement of the duty of good faith, the courts2 and commentators3 have had difficulty in determining what is and what …

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

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A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …

Autistic Contracts (Symposium), James J. White

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In this paper I address the question whether the law should affirm the offeror's inference and should bind the offeree to the terms proposed by the offeror even in circumstances where the offeree may not intend to accept those terms and where an objective observer might not draw the inference of agreement from the offeree's act. Modem practice and current proposals concerning contract formation in Revised Article 2 and in the Uniform Computer Information Transactions Act (nee Article 2B) press these issues on us more forcefully than old practices and different law did. 1 But contractual autism is not new; …

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

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Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.

Making Motions: The Embodiment Of Law In Gestures, Bernard J. Hibbitts

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In contemporary America, the locus of legal meaning is habitually deemed to be the written word. This article pushes our conception of law’s “text” beyond its traditional inscripted bounds by focusing on physical gesture as a legal instrumentality. The few studies of legal gesture undertaken to date have explained its prominence in various legal systems and cultural environments, the significance of specific legal gestures in specific historic contexts, and the depiction of legal gestures in particular manuscripts or other specific physical settings, but no one has considered the general functions of legal gesture as a modality.

In an effort to …

'Coming To Our Senses': Communication And Legal Expression In Performance Cultures, Bernard J. Hibbitts

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This article examines how semi-literate or largely non-literate cultures having little or no experience with writing ("performance cultures") communicate and express law and legal meaning through the orchestrated use of the physical senses. It first examines how each of the senses - hearing (sound), sight, touch, smell and taste - is brought to bear in the cultural and legal experience of performance-based societies. It then considers how and why members of performance cultures "perform", i.e. use and combine various sensory media in single messages, and describes how and why they use the same strategy in creating law and legal expression. …

Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White

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Diligent first year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year long analysis are several inarticulate hypotheses: that they make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to …

Eight Cases And Section 251, James J. White

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[A] continuing sense of reliance and security that the promised performance will be forthcoming. . . is an important feature of the bargain-so states Comment 1 to section 2-609 of the Uniform Commercial Code. At common law, one party to a contract might suffer considerable and justifiable anxiety about the other party's willingness or ability to perform and yet have no legal basis for cancelling the contract or for procuring additional assurances from the other party. Section 251 of the Restatement (Second) of Contracts is designed to provide a remedy for one party's reasonable fears that the other party to …

Allocation Of Scarce Goods Under Section 2-615 Of The Uniform Commercial Code: A Comparison Of Some Rival Models, James J. White

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Section 2-615 of the Uniform Commercial Code authorizes a contract seller to allocate goods in short supply when full performance has become commercially impracticable. Most of the cases under and commentary on that section have focused on the issue of commercial impracticability. The allocation aspects of the section have attracted much more modest attention in the cases and in the scholarly journals. The purpose of this article is to examine critically the allocation rule set out in section 2-615(b). That subsection authorizes a seller, upon a finding of commercial impracticability, to allocate "in any manner which is fair and reasonable." …

Mutuality In Specific Performance, Edgar N. Durfee

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Prior to the present century, the subject of mutuality in specific performance was an unsolved puzzle. The decisions of the courts were in the main wise, but the attempts both of courts and text writers to formulate a statement of the principle governing these decisions were far from happy. After two centuries of litigation and discussion, the current formula was that the remedy must be mutual, must be equally available to both parties. The worst fault of this formula was its plausibility. Equality is equity, and perfect equality between the parties to a contract is not attained unless remedies are …

Is The Assignee Of A Contract Liable For The Non-Performance Of Delegated Duties?, Grover C. Grismore

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IT is an oft recurring statement that "rights arising out of a contract cannot be transferred if they are coupled with liabilities." It is such obscure statements as this which give rise to and perpetuate error, and an examination of the cases will show that this one has been responsible for no little confusion in regard to the matter of assignment in the law of Contract. Our courts, under the pressure of a well filled docket, are prone to seize upon a broad generalization of this kind without examining its true meaning or defining its proper limitations. It is high …

Conflict Of Laws--The Law Controlling The Validity Of A Married Woman's Contract, Victor H. Lane

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The case of Poole v. Perkins (Va.), IO S. E. 240, involves that troublesome question of whether the validity of a contract is to be ruled by the law of the place where made, or by that of the place of performance.

Implied Condition Involving Impossibility Of Performance, Edson R. Sunderland

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Early in 1914 the defendants contracted to sell to the plaintiffs a quantity of Finland birch timber. The practice was to send the timber direct by sea from Finnish ports. Before any timber was delivered the war broke out and the presence of German warships in the Baltic made the direct shipment by water impossible. The contract contained no war, force majeure or suspension provision. Held, that the contract was not dissolved, and the defendants were liable for damages for non-delivery of the timber. Blackburn Robbin Co., Lim. v. Allen & Sons, Lim. (1918) 87 L. J. K. B. 1085. …

Subsequent Impossibility As Affecting Contractual Obligations, Ralph W. Aigler

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Where the law creates a duty or charge and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. * * * But where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Paradine v. Jane, Aleyn, 26, a case not really involving a question of impossibility. Most discussions of the effect of subsequent impossibility of performance …

Contract Of Infant--Evidence, Competency Of Witness Under Survivorship Statute, Victor H. Lane

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Two questions are presented by the case of Sigiaigo v. Signaigo, (Mo. 1918), 205 S. W. Rep. 23: First, the enforcibility of the contract of an infant, fully performed by her, to live with a man and his wife as their adopted child so long as they should live, in consideration that the infant should have all the property of the foster parents upon their death; and Second, the competency of the consenting mother of the infant to testify in support of the infant's claim.

Re-Writing The Statute Of Frauds: Part Performance In Equity, Willard T. Barbour

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One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as "part performance" became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will …

Performance Of An Existing Obligation As Consideration For A Promise, John B. Waite

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The dictum that if there be nothing in a rule flatly contradictory to reason the law will presume it to be well founded, and that the office of the judge is "jus dicere and not jus dare", is responsible for much agony of construction and tortious logic on the part of courts torn by desire to evade it in the interest of modern ideas of right. There is a trilogy of accepted legal principles which it has been particularly difficult for the courts to adhere to in spirit or to repudiate in letter. They are the propositions, that for a …

The 'Right' To Break A Contract, Willard T. Barbour

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It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …

The 'Right' To Break A Contract, Willard T. Barbour

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It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …

Performance Of Legal Obligation As A Consideration For A Promise, John B. Waite

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At a time when the true reasonableness of the common law and its responsiveness to the actualities of life are under criticism, it is interesting to find several cases, within the past year, affirming the old rule that performance of a legal duty is not consideration for a promise. In Vance v. Ellison, (V. Va.) 85 S. E. 776, suit was brought to enjoin the enforcement of a deed of trust executed by plaintiff to defendant, to secure payment of $1000 promised for legal services. It was admitted that when the deed was executed the defendant was already bound by …