Recently added articles from Michigan Law Review:
Let us never blame a contract breaker.
Jun 01, 2009; ... Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in ...
Stipulated damages, super-strict liability, and mitigation in contract law.
Jun 01, 2009; ... The remedy of expectancy damages in contract law is conventionally described as strict liability for breach. Parties sometimes stipulate damages in advance, and may agree that the damages they stipulate shall be the exclusive remedy for breach. They may do so because of their conviction ...
In (partial) defense of strict liability in contract.
Jun 01, 2009; ... 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 ...
A comparative fault defense in contract law.
Jun 01, 2009; ... 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 ...
The role of fault in contract law: unconscionability, unexpected circumstances, interpretation, mistake, and nonperformance.
Jun 01, 2009; ... 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 ...
Fault in contract law.
Jun 01, 2009; ... 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 ...
The fault that lies within our contract law.
Jun 01, 2009; ... 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 ...
The many faces of fault in contract law: or how to do economics right, without really trying.
Jun 01, 2009; ... Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central ...
An information theory of willful breach.
Jun 01, 2009; ... 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 ...
When is a willful breach "willful"? The link between definitions and damages.
Jun 01, 2009; ... The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these ...
Willfulness versus expectation: a promisor-based defense of willful breach doctrine.
Jun 01, 2009; ... 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 ...
Fault at the contract-tort interface.
Jun 01, 2009; ... 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 ...
Could breach of contract be immoral?
Jun 01, 2009; ... 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 ...
Why breach of contract may not be immoral given the incompleteness of contracts.
Jun 01, 2009; ... 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 ...
The fault principle as the chameleon of contract law: a market function approach.
Jun 01, 2009; ... 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 ...
Residential protectionism and the legal mythology of home.
May 01, 2009; ... The theory that one's home is a psychologically special form of property has become a cherished principle of property law, cited by legislators and touted extensively in the legal scholarship. Influential scholars, most notably Margaret Radin, have asserted that ongoing control over one's ...
The court of life and death: the two tracks of constitutional sentencing law and the case for uniformity.
May 01, 2009; ... The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes ...
The appropriations power and sovereign immunity.
May 01, 2009; ... Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence--or nonexistence--of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, ...
Can courts repair the crumbling foundation of good citizenship? An examination of potential legal challenges to social studies cutbacks in public schools.
May 01, 2009; ... In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and ...
Conditions on taking the initiative: the First Amendment implications of subject matter restrictions on ballot initiatives.
May 01, 2009; ... Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote--precluding, ...