Category Archives: Contract

‘Studying Specific Performance’

Yonathan A Arbel, Contract Remedies in Action: Specific Performance, 118 West Virginia Law Review 100 (2015), available at SSRN. Parties that have a right to the very thing promised in a contract may opt not to have it delivered by the breaching party through specific performance. Even when the promised item is unique, the plaintiff […]

Rothstein and Rothstein, ‘The Use of Genetic Information in Real Property Transactions’

With the cost of genome sequencing continuing to decline and genomic information becoming more common in health records, it is foreseeable that entities with an economic interest in the future health status of individuals will be tempted to use predictive genetic information to assess the health risks of individuals who are parties to real property […]

David Blankfein-Tabachnick, ‘Property, Duress, and Consensual Relationships’

Speech Matters: On Lying, Morality, and the Law. By Seana Valentine Shiffrin. Princeton and Oxford: Princeton University Press. 2014. Pp. xi, 223. $35. Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and […]

‘A Pragmatist’s View of Promissory Law with a Focus on Consent and Reliance’

This article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce ‘desirable’ outcomes for society. In addition to a comprehensive account of what he calls ‘virtues’ of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of […]

Christopher French, ‘Understanding Insurance Policies as Noncontracts: An Alternative Approach to Drafting and Construing These Unique Financial Instruments’

Abstract: Insurance policies commonly are understood to be a species of standardized contracts. This Article challenges that conventional wisdom and argues that insurance policies do not actually qualify as contracts under the doctrinal and theoretical bases of contract formation. It examines the process by which insurance policies are created and sold, and measures that process […]

Anthony Niblett, ‘On the efficiency of the common law: an application to the recovery of rewards’

Abstract: Richard Posner’s influence on the field of law and economics cannot be overstated. Among his many contributions, Posner offered an early conjecture that remains fascinating and controversial to this day: the idea that common law rules are more likely than legislative codes to be concerned with efficiency. In this paper, I compare the efficiency […]

Jeffrey Thomas, ‘Extra-Contractual Liability in the Restatement of the Law, Liability Insurance: Breach of the Duty to Settle or Bad Faith?’

Abstract: This paper focuses on the Restatement’s treatment of an insurer’s duty to settle and the duty of an insurer to act in good faith in handling liability claims. The duty to settle is framed as an objective ‘duty to the insured to make reasonable settlement decisions’. At the same time, however, a separate claim […]

Bar-Gill, Ben-Shahar and Marotta-Wurgler, ‘Searching for the Common Law: The Quantitative Approach of the Restatement of Consumer Contracts’

Abstract: In 2012, the American Law Institute asked us to serve as reporters for a new Restatement of Consumer Contracts. Recognizing that many innovations in American contract law in the past generation occurred in the area of consumer transactions, the project seemed timely and challenging. We discovered that many of these innovations are controversial and […]

‘Insurance as the Big Bad Wolf of Big Data’

Max N Helveston, Consumer Protection in the Age of Big Data, 93 Washington University Law Review 859 (2016). In this insightful and well-researched article, Consumer Protection in the Age of Big Data, Professor Max Helveston arguably has opened stage two of a movement in contracts scholarship assessing the dangers and opportunities presented by large scale […]

Patrick Borchers, ‘How “International” Should a Third Conflicts Restatement Be in Tort and Contract?’

Introduction: The question on the floor, I take it, is whether in drafting the Third Conflicts Restatement special considerations (or perhaps even rules) should come into play in tort and contract conflicts cases in which the involved jurisdictions are not all states of the United States. This is a question that — in my view […]