Law Commons^™

Reframing Housing: Incorporating Public Law Principles Into Private Law, Kristen Barnes

College of Law - Faculty Scholarship

A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of Spain, where several rich cultural and legal resources have inspired a new sensibility with regard to residential mortgage loan contracts, rental agreements, and the overall duties and obligations of governments to address the citizenry's housing needs. Although this reorientation reflects decisions from the European Court of …

Reisurance: The Silent Regulator?, Aviva Abramovsky

College of Law - Faculty Scholarship

Abstract This Essay suggests that a discussion on insurance regulation should include a consideration of the effect reinsurance may have on the behavior of insurers. The Essay reviews the traditional types of reinsurance, and considers the ability of private reinsurance contracts to produce insurer action. This essay suggests if reinsurance is not included in a holistic examination of the field, its realities have the capacity to misdirect insurance regulatory assumptions. Moreover, reinsurance works as a source of independent and often unexamined contractual influence on insurer activity, and as a potential source of interference with regulatory proposals. Even though reinsurance is …

Contract Law's Inefficiency, David M. Driesen

College of Law - Faculty Scholarship

Neoclassical economic theory seems to aptly characterize contract law’s essence. Contracts enable two parties to reach a mutually beneficial agreement, thereby facilitating economically efficient transactions. It would seem to follow that the achievement of economic efficiency serves as contract law’s major goal. This article, however, examines an alternative hypothesis, that contract law is about enforcing inefficient bargains in order to provide enough security to facilitate cooperation among economic actors over long periods of time. On this account, contract law manages change over time, rather than achieves static efficiency. While recognizing that parties execute contracts in order to realize an efficient …

The Functions Of Transaction Costs: Rethinking Transaction Cost Minimization In A World Of Friction, David M. Driesen, Shubha Ghosh

College of Law - Faculty Scholarship

This article critically examines the goal of minimizing transaction costs, including the costs of legal decision-making. This goal permeates the law and economics literature and has profoundly influenced public policy. While most transaction cost scholarship has focused upon private law, this influence has been especially pervasive in public law, where it has contributed to a variety of legal changes aimed at reducing public transaction costs, often through privatization.

We argue that transaction costs perform useful functions. They frequently enable those engaging in transactions to obtain information needed to correct for information asymmetries or inadequate information. They facilitate efficient transactions, allow …