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Full-Text Articles in Law
Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman
Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman
Faculty Scholarship
No abstract provided.
The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati
The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati
Faculty Scholarship
A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer-drawing from the theory of efficient breach-is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract/or themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the …
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Faculty Articles
The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …
Secret Consumer Scores And Segmentations: Separating Consumer 'Haves' From 'Have-Nots', Amy J. Schmitz
Secret Consumer Scores And Segmentations: Separating Consumer 'Haves' From 'Have-Nots', Amy J. Schmitz
Faculty Publications
“Big Data” is big business. Data brokers profit by tracking consumers’ information and behavior both on- and offline and using this collected data to assign consumers evaluative scores and classify consumers into segments. Companies then use these consumer scores and segmentations for marketing and to determine what deals, offers, and remedies they provide to different individuals. These valuations and classifications are based on not only consumers’ financial histories and relevant interests, but also their race, gender, ZIP Code, social status, education, familial ties, and a wide range of additional data. Nonetheless, consumers are largely unaware of these scores and segmentations, …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Scholarly Articles
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander Radus
Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander Radus
All Faculty Scholarship
Gathering pattern contract jury instructions from every State, we examine jurisdictions' treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee's noneconomic damages than the hornbooks would have us believe. We substantiate this claim with an online survey experiment asking respondents about a common contract case, and instructing them using the differing pattern forms. We found that subjects routinely awarded more …
Access To Consumer Remedies In The Squeaky Wheel System, Amy J. Schmitz
Access To Consumer Remedies In The Squeaky Wheel System, Amy J. Schmitz
Faculty Publications
This article explores the “Squeaky Wheel System” (“SWS”) in business-to-consumer (“B2C”) contexts, referring to merchants’ reservation of purchase remedies and other contract benefits for only the relatively few “squeaky wheel” consumers who have the requisite information and resources to persistently seek assistance. The article uncovers how this system fosters contractual discrimination and hinders consumers’ awareness and access with respect to contract remedies. It also adds empirical insights from my recent e-survey, and offers suggestions for using the internet to empower consumers of all economic and status levels with efficient and accessible means for learning about their purchase rights and asserting …
Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz
Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz
Faculty Publications
Consumer purchases over the Internet (“ePurchases”) are on the rise, thereby causing an increase in conflicts regarding these purchases (“eConflicts”). Furthermore, these conflicts are increasingly international as consumers purchase goods over the Internet not knowing or caring where the seller is physically located. The problem is that if the purchase goes awry, consumers are often left without recourse due to the futility of pursing international litigation and the textured law and policy regarding enforcement of private dispute resolution procedures, namely arbitration. The United States strictly enforces arbitration contracts in business-to-consumer (“B2C”) relationships, while other countries have refused or limited enforcement …
The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman
The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman
Faculty Publications
The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Job Security: Protecting At-Will Employees With Good Cause Legislation, Mayumi Yokoyama
Job Security: Protecting At-Will Employees With Good Cause Legislation, Mayumi Yokoyama
LLM Theses and Essays
Recent decades have witnessed significant developments in employment termination law in the United States. In particular, the long-standing “at-will” doctrine, under which employers can fire employees for good, bad, or no reason at all, has experienced great erosion and wide variations in law from state to state. There has been a movement of statutory and common law restrictions limiting an employer’s freedom to terminate at will, which reflects the increasing consciousness of job security by society and workers. This paper analyzes the problem of job security by tracing the origin of the at-will doctrine to 19th century principles favoring economic …
Private Information And The Deterrent Effect Of Antitrust Damage Remedies, Jonathan Baker
Private Information And The Deterrent Effect Of Antitrust Damage Remedies, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Common Sense And Article 9: A Uniform Approach To Automobile Repossession, Darryll K. Jones
Common Sense And Article 9: A Uniform Approach To Automobile Repossession, Darryll K. Jones
Journal Publications
Clients who seek legal assistance earlier in the repossession process preserve their options, which may include preventing the repossession altogether, allowing the client an opportunity to reclaim the vehicle after repossession, or limiting the client's liability to the loss of the vehicle itself. Many of the actions considered by the attorney will be based on the provisions in Article 9 of the Uniform Commercial Code (U.C.C. or the Code). This article begins with a discussion of steps that may be taken to eliminate the need to resort to the U.C.C. Because these steps will not always be successful, the article …
Bleeding Hearts And Peeling Floors: Compensation For Economic Loss At The House Of Lords, David S. Cohen
Bleeding Hearts And Peeling Floors: Compensation For Economic Loss At The House Of Lords, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
The decision of the House of Lords in Junior Books Ltd. v. Veitchi Ltd. represents an unwarranted development in the law of tort and contract, unless its rationale and limitations are fully appreciated. This reform in such an important area is premature "in the absence of hard data on the probable impact of such an extension of liability.” Much of the published commentary on recovery of economic loss in tort, and on this decision in particular, has been written from the ex post perspective of accident compensation doctrine and theory. Most writers have been concerned with the development of positive …
The Relationship Of Contractual Remedies To Political And Social Status: A Preliminary Inquiry, David S. Cohen
The Relationship Of Contractual Remedies To Political And Social Status: A Preliminary Inquiry, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
This paper has, then, two major themes. In the first part I hope to elucidate the relationship of political, legal, and social status associated with land ownership to the unique legal remedies - specific performance and non-recovery of damages - which society created in respect to exchanges of land (and thus exchanges of status) for money. In the conclusion I examine the transformation of legal rules applied to agreements in which labour is exchanged for money. If, in fact, property rules in contract evolved in response to the political, legal, and social attributes of land ownership, then one may be …
Foreword: Damages In Contract, William Burnett Harvey
Foreword: Damages In Contract, William Burnett Harvey
Articles by Maurer Faculty
No abstract provided.
Rationale Of Past Consideration And Moral Consideration, Hugh Evander Willis
Rationale Of Past Consideration And Moral Consideration, Hugh Evander Willis
Articles by Maurer Faculty
No abstract provided.
The 'Right' To Break A Contract, Willard T. Barbour
The 'Right' To Break A Contract, Willard T. Barbour
Articles
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
The 'Right' To Break A Contract, Willard T. Barbour
Articles
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 …
Effect Of A Change In The Law Upon Rights Of Actions And Defences, Thomas M. Cooley
Effect Of A Change In The Law Upon Rights Of Actions And Defences, Thomas M. Cooley
Articles
A very interesting and important question frequently is, what effect has been produced upon a right of action, or upon a previously existing defence to an action, by a change in the law effected by statute after the right has accrued, or the cause of action has arisen, to which the defence was applicable. The question is encountered in a great variety of cases, and is sufficiently important to be considered under the several heads where the cases seem to range themselves. This is done imperfectly below.