Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

2009

Discipline
Institution
Keyword
Publication
Publication Type
File Type

Articles 2401 - 2430 of 11223

Full-Text Articles in Law

In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott Jun 2009

In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott

Michigan Law Review

Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions …

Go to article

A Comparative Fault Defense In Contract Law, Ariel Porat Jun 2009

A Comparative Fault Defense In Contract Law, Ariel Porat

Michigan Law Review

This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.

Go to article

The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg Jun 2009

The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg

Michigan Law Review

It is often asserted that contract law is based on strict liability, not fault. This assertion is incorrect. Fault is a basic building block of contract law, and pervades the field. Some areas of contract law, such as unconscionability, are largely fault based. Other areas, such as interpretation, include sectors that are fault based in significant part. Still other areas, such as liability for nonperformance, superficially appear to rest on strict liability, but actually rest in significant part on the fault of breaking a promise without sufficient excuse. Contract law discriminates between two types of fault: the violation of strong …

Go to article

Fault In Contract Law, Eric A. Posner Jun 2009

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.

Go to article

The Fault That Lies Within Our Contract Law, George M. Cohen Jun 2009

The Fault That Lies Within Our Contract Law, George M. Cohen

Michigan Law Review

Scholars and courts typically describe and defend American contract law as a system of strict liability, or liability without fault. Strict liability generally means that the reason for nonperformance does not matter in determining whether a contracting party breached. Strict liability also permeates the doctrines of contract damages, under which the reason for the breach does not matter in determining the measure of damages, and the doctrines of contract formation, under which the reason for failing to contract does not matter In my Article, I take issue with the strict liability paradigm, as I have in my prior work on …

Go to article

An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar Jun 2009

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 …

Go to article

Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman Jun 2009

Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman

Michigan Law Review

Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …

Go to article

Fault At The Contract-Tort Interface, Roy Kreitner Jun 2009

Fault At The Contract-Tort Interface, Roy Kreitner

Michigan Law Review

The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of "no liability without fault," while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law …

Go to article

Could Breach Of Contract Be Immoral?, Seana Shiffrin Jun 2009

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 …

Go to article

Why Breach Of Contract May Not Be Immoral Given The Incompleteness Of Contracts, Steven Shavell Jun 2009

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.

Go to article

The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann Jun 2009

The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann

Michigan Law Review

This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …

Go to article

Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh Jun 2009

Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh

Research Collection Yong Pung How School Of Law

In recent times, the venerable principles relating to remoteness of damage in contract have undergone a period of sustained re-evaluation. Key amongst this exercise is the House of Lords’ decision in Transfield Shipping Inc v Mercator Shipping Inc—referred to as ‘The Achilleas’, which represents a fundamental shift in the understanding of remoteness principles. Caught in the winds of The Achilleas is the considered judgment of the Singapore Court of Appeal in Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd.In direct contrast with some of the speeches in The Achilleas, the judgment delivered by Andrew Phang JA in Robertson …

Go to article

David Sive Award Best Brief Overall: Galleon Enterprises, Inc., Sarah Williams, Elizabeth Pletan, Matt Riley Jun 2009

David Sive Award Best Brief Overall: Galleon Enterprises, Inc., Sarah Williams, Elizabeth Pletan, Matt Riley

Pace Environmental Law Review

No abstract provided.

Go to article

No Male Or Female, But All Are One, Mary Anne Case Jun 2009

No Male Or Female, But All Are One, Mary Anne Case

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt Jun 2009

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

Randomization In Criminal Justice: A Criminal Law Conversation, Michael O'Hear, Bernard E. Harcourt, A. Harel, Ken Levy, Alice Ristroph Jun 2009

Randomization In Criminal Justice: A Criminal Law Conversation, Michael O'Hear, Bernard E. Harcourt, A. Harel, Ken Levy, Alice Ristroph

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

Welfare As Happiness, Jonathan Masur, Christopher Buccafusco, John Bronsteen Jun 2009

Welfare As Happiness, Jonathan Masur, Christopher Buccafusco, John Bronsteen

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

Willpower And Legal Policy, Lee Anne Fennell Jun 2009

Willpower And Legal Policy, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan S. Maher Jun 2009

Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan S. Maher

Faculty Scholarship

Notwithstanding the fact that ERISA was enacted to protect employee benefits, courts have narrowly construed the relief available when benefits are denied, out of concern that a stronger remedy would be too costly for the system to bear. Judges, I argue, are ill-equipped to make this policy judgment. Instead, a regulated, subsidized, paternalistic market should be created to permit the benefit players themselves to choose and price the strength of the remedy they desire. This is a superior means to reach the right level of remedial strength for the most players. To protect against undesirably weak remedial options being selected, …

Go to article

Foreword, R. Lawrence Dessem Jun 2009

Foreword, R. Lawrence Dessem

Missouri Law Review

It is my great pleasure to introduce the Missouri Law Review's 2009 symposium: "Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." This has been a labor of love by the entire staff of the Missouri Law Review, and both the February 27 symposium and the written symposium that follows are a work product that should serve as a touchstone for scholars, policy-makers, and all members of the public who are interested in state judicial selection and retention systems and the current efforts to amend and extend those systems.

Go to article

Essentials And Expendables Of The Missouri Plan, The, Sandra Day O'Connor Jun 2009

Essentials And Expendables Of The Missouri Plan, The, Sandra Day O'Connor

Missouri Law Review

This speech was presented by Sandra Day O'Connor at the University of Missouri School of Law on February 27, 2009. It is the 2009 Earl F. Nelson Lecture and was part of the symposium titled "Mulling over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." The author has modified the speech and added citations for publication purposes

Go to article

We Have Met The Special Interests, And We Are They, Michael R. Dimino Sr. Jun 2009

We Have Met The Special Interests, And We Are They, Michael R. Dimino Sr.

Missouri Law Review

I have two major points. First, because there is no such thing as a general interest, it makes no sense to speak of "special" interests. Second, judicial decisions make policy. In so doing, they benefit certain interests at the expense of others, whether judges are selected by elections, appointments, or some hybrid system. So, it should not be surprising that politics pervades the choice of judges under every system used or considered today. No selection system may be capable of eliminating the power of interest groups, but the selection system may determine which of those interests are benefited. As a …

Go to article

Plea For Reality, A, Roy A. Schotland Jun 2009

Plea For Reality, A, Roy A. Schotland

Missouri Law Review

Thank you for the privilege and the pleasure of joining you, in the best possible state for any discussion of judicial selection and blessedly at a distinguished law school. For me, after twenty-five years of involvement in the judicial election scene and four weeks after retiring from teaching - but not, I hope, from continued involvement - this is a unique opportunity to share views, air questions, consider the ever-evolving changes and challenges, and speak bluntly on a few points. I treasure the friendships I have built with others similarly involved, and I hope that my comments, some of which …

Go to article

Federal And State Judicial Selection In An Interest Group Perspective, Michael E. Solimine, Rafael Gely Jun 2009

Federal And State Judicial Selection In An Interest Group Perspective, Michael E. Solimine, Rafael Gely

Missouri Law Review

This Article proceeds as follows. In Part II, we summarize the model advanced by Landes and Posner. In Part III, we explore some of the criticisms that have been levied against their model, while in Part IV we raise some criticisms of our own and explore how later scholarship has addressed them. Part V concludes the article.

Go to article

Parties, Interest Groups, And Systemic Change, Anthony Champagne Jun 2009

Parties, Interest Groups, And Systemic Change, Anthony Champagne

Missouri Law Review

If we are going to get from point A to B - if we are going to change a state system of judicial selection - what must be done? How does one get from a judicial election system to a merit-selection system? Generally it is going to take a state constitutional amendment to make the change. That is usually going to mean that a constitutional amendment must be approved by the legislature in order to be submitted to the people for a vote. To do this, key interest groups must be considered. The story of changing to merit selection is …

Go to article

Comments On The White, Caufield, And Tarr Articles, Duane Benton Jun 2009

Comments On The White, Caufield, And Tarr Articles, Duane Benton

Missouri Law Review

These three articles are valuable additions to the literature on retention elections. I am honored to comment, understanding I was chosen because I have survived merit selection (both as an applicant and as chair of the commission), a retention election, federal appointment, various roles in partisan elections, and an undergraduate political-science, voter-behavior education

Go to article

Bench, The Bar, And Everyone Else: Some Questions About State Judicial Selection, The, Michael E. Debow Jun 2009

Bench, The Bar, And Everyone Else: Some Questions About State Judicial Selection, The, Michael E. Debow

Missouri Law Review

I am honored to be a part of this conference. I very much appreciate the hospitality of the law school, particularly the efforts of the Missouri Law Review staff. It has been a wonderful event. A wide range of views has been presented here, and I think that is a great credit to the people who organized the program. Just briefly, I am from Alabama, and I am not here to tell you what you should do in Missouri. That probably comes as a big relief. I became interested in this subject about fifteen years ago because of what was …

Go to article

Exporting The Missouri Plan: Judicial Appointment Commissions, Mary L. Volkcansek Jun 2009

Exporting The Missouri Plan: Judicial Appointment Commissions, Mary L. Volkcansek

Missouri Law Review

Debates over the best methods for selecting judges in the United States usually turn on finding an appropriate balance between independence and accountability for judges, but elsewhere the tension between those two competing ends has been resolved in favor of judicial independence. According to Martin Shapiro, judges cannot, though, be truly independent, because they are dependent on those to whom they owe their office. Or, as Jean Blondel sees it, the question becomes one of "from whom should judges be independent?" Judges are, in other words, dependent in some sense on those to whom they are accountable. New democracies and …

Go to article

High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett Jun 2009

High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett

Missouri Law Review

This note seeks to explain Missouri's enactment of a law requiring use of E-Verify by certain employers, track recent developments that have made it more difficult to employ unauthorized workers, and advocate the position that this legislation will be upheld in the face of legal challenges. The following Section addresses federal immigration law and the subsequent creation of the E-Verify program. It also examines Missouri's recent enactment that requires some employers to enroll in the E-Verify program and provides stiff penalties for any entity that employs unauthorized workers. Section III considers recent cases out of Arizona, Oklahoma, and Missouri that …

Go to article

There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings, Bradley S. Dixon Jun 2009

There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings, Bradley S. Dixon

Missouri Law Review

The Eighth Circuit directly addressed this issue in Passmore v. Astrue and joined the group of circuits that follow the "qualified right" approach, which maintains that a social security claimant does not have an absolute right to cross-examine reporting physicians. In doing so, however, the Eighth Circuit relied on long-held assumptions, and its judgment may warrant re-evaluation to ensure that the rights of social security claimants are best protected. The circuit split on this issue is reflective of competing values that are practically inevitable in light of the tension between efficiency and justice, and both approaches will be evaluated in …

Go to article

First Prev Next Last