Prof. Roy Kreitner of Tel Aviv University shows great insight into the dichotomy between tort and contract law. He first discusses how tort law shifted toward a fault-based system during the nineteenth century. States Prof Kreitner, “the early [tort] law asked simply, ‘Did the defendant do the physical act which damaged the plaintiff?’ T[ort] law …
Category Archives: Law Reviews
Economic Constraints in the Fiduciary Relationship
Professors Robert Cooter and Bradley J. Freedman analyzed the economic character and legal consequences of the fiduciary relationship. As discussed below, their strongest point is to explain that not all fiduciary duties are the same – it depends on the nature of the relationship. As a starting point, they acknowledge that “Legal theorists and practitioners …
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Willfulness Versus Expectation
This week we consider another view on the issue of whether some contractual breaches are such that additional remedies should be imposed by the courts, beyond the traditional damages for breach of contract. In other words, Is some conduct sufficiently wrongful that a court should have the right to impose additional damages to deter such …
The Fault that Lies Within Our Contract Law
Let’s continue the discussion regarding rules of fault in contract law. This series is from a law review article written by Professor George M. Cohen, who first notes that: “The economic justification starts from the same premise as the traditionalist justification – that courts should enforce agreements according to the parties’ mutual intentions. [Thus,] the …
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An Information Theory of Willful Breach
Let’s continue with the discussion of fault and breach in contract law. We are starting to see that the law treat different kinds of contracts differently. Meaning that, with a “relational contract,” being one in which the duties and obligations extend over time, the law imposes higher standards than in a “one-shot” contract. Professors Oren …
Does West Side Farming Make Economic Sense? (Part 2)
Journalist and attorney Lloyd Carter questions whether the benefits of subsidized water outweigh the social costs. The undisputable fact is that the west side of Fresno County is one of the poorest regions in all of America. Does current water policy help or does it simply compound the misery? The Cost for West Side Agriculture …
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Does West Side Farming Make Economic Sense? (Part 1)
Water supplies for West Side agriculture have been major news items in the past few years. Many residents, including this writer, are proud of our agricultural heritage and bounty, and have questioned decisions that threaten water supplies for agriculture. Journalist and attorney Lloyd Carter has penned a provocative article that probes the financial integrity of …
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Minority Interest Discount for Breach of Corporate Fiduciary Duties
The issue this week concerns the appropriate remedy when controlling shareholder(s) breach the fiduciary duties they owe to the other shareholders. An article by attorney William S. Monnin-Browder discusses whether courts should apply a minority interest discount in a forced sale. Background As explained in many published opinions, “stockholders in the close corporation owe one …
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A Comparative Fault Defense in Contract Law – Part 2
This posting continues the question of whether fault should be considered in evaluating a claim for breach of contract, specifically, whether the courts should weigh the “fault” of the non-breaching party. When would such “fault” by the non-breaching party arise? It would seem that three time frames could be considered: Before (i.e., during the formation …
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A Comparative Fault Defense in Contract Law – Part 1
This week’s posting considers whether culpability should be considered in a claim for breach of contract. The traditional answer in the U.S. (traditional at least since 1900) is No. As discussed in a recent symposium, “In terms of the Restatement of Contracts conception, then, contract law is strict liability without a contributory negligence defense . …
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