| SOURCE | POSITION | THESIS | ARGUMENT STRUCTURE | COMMENTARY |
| Curtis Bridgeman, “Contracts as Plans” [2009] 2009:2 U III L Rev 341. | A theory of contracts based on philosophy of action and legal theory (mostly Scott Shapiro and Michael Bratman). | Contracts as a plan to solve a “coordination problem” and better accounts for how societies might use contract law to achieve good ends. | The author surveys the current theories of contract law and notes weaknesses in each theory. The author then explains the relevance of Bratman’s work and how Shapiro uses it to build a general legal theory; finally, the author applies Shapiro’s legal theory to contracts. | While creative in many ways, the real upshot seems to be that practical reasoning needs to be looked at more closely by contract scholars. |
| A Mitchell Polinsky, “Risk Sharing through Breach of Contract Remedies” (1983) 12:2 J Leg Stud 427. | An economic, efficiency argument that leads to liquidated damages as a the principled (based on risk sharing) remedy, but expectation damages as the practical one (since risk sharing is not the only metric for law). | “The risk allocation effects the choice of remedy for breach…” (p 428) If we consider the effects of risk in affecting remedies, we find that liquidated damages is always optimal and that the expectation remedy is optimal “only if the seller is risk neutral.” (429) | The author considers scenarios illustrating how risk affects the choice of remedy, especially with respect a party’s tolerance for risk. Then the author looks at five remedies and models them in terms of risk allocation. | While this is an interesting addition to Shavell’s paper (1980), it is mostly an economics paper. |
| Ian Ayres & Gregory Klass, “Promissory Fraud without Breach” (2004) 2004:2 Wis L Rev 507. | An (economic) argument for money damages over specific performance based on options valuation. | Money damages are best understood as an option to buy back performance. | This article responds to transaction costs and how they lead to scenarios of excessive breach and excessive performance. Money damages as options makes sense of this by looking at a parties ex ante preferences (of valuing the option and tolerance to risk). | This is an economic piece that moves towards a more sophisticated economic model of contract law analysis. |
| Anthony T Kronman, “Contract Law and Distributive Justice” (1980) 89:3 Yale LJ 472. | A normative theory of contracts based on distributive justice. | “I argue that the non-distributive conception of contract law cannot be supported on either liberal or libertarian grounds, and defend the view that rules of contract law should be used to implement distributional goals whenever alternative ways of doing so are likely to be more costly or intrusive.” (474) | This article looks at the moral legitimacy of redistribution and the failure of both liberal and libertarian views that contract is a bad instrument for distributive justice. Voluntary agreement is to be understood as a distributional concept and it is perfectly compatible as a legitimate instrument for redistribution (in the way taxation is viewed). | A very convincing argument for redistribution through contractual regulation (e.g. minimum wage laws). The structural similarities with taxation make this a viable alternative and consistent with political liberalism (see 500 for discussion on Rawls). |
| Lionel D Smith, “Disgorgement of the Profits of Breach of Contract: Property, Contract and Efficient Breach” (1994) 24:1 Can Community LJ 121. | A doctrinal argument in favor of disgorgement for breach of contract. | Breach of contracts where the plaintiff suffers no loss but the defendant’s breach provides gain need to allow disgorgement for breach of contract. | The author engages the question of whether disgorgement is available for contracts – that is, a damage measure not based on the loss suffered by the plaintiff, but rather based on the gains by the defendant. | There is an interesting discussion of efficient breach as a counterargument for disgorgement. |
Philo-so-fun 