Monthly Archives: December, 2011

Michael Knobler, ‘A Dual Approach to Contract Remedies’

Abstract: Are contracts options to perform or pay damages, or are they obligations to perform? This paper adopts a “both-and” answer to what commentators have spent decades debating as an “either-or” question. The correct theory of contract depends on the parties; applying the wrong theory harms the parties’ autonomy and economic interests. Recent empirical evidence […]

Just published: Rights and Private Law (ed. Nolan and Robertson)

“In recent years a strand of thinking has developed in private law scholarship which has come to be known as ‘rights’ or ‘rights-based’ analysis. Rights analysis seeks to develop an understanding of private law obligations that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by […]

Robert Rhee, ‘A Financial Economic Analysis of Punitive Damages’

Abstract: This Article provides a financial economic analysis of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, […]

Samuel Bray, ‘Announcing Remedies’

Abstract: It is a familiar ideal that the remedy should fit the wrong – this wrong, by this wrongdoer, against this victim. Modern legal systems ordinarily pursue this kind of fit, at least in civil cases, by tailoring the remedy case by case. There is an alternative, though, which is for a legal system to […]