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Opportunistic Breach of Contract
No full textLaw and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach
The Road Not Taken: A Critical Juncture in Racial Preferences for Naturalized Citizenship
No full textIn The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as a “critical juncture” when the U.S. government could have taken a counterfactual path that was less racist. The counterfactual path would have required legal interpretations of Constitutional equality and statutory nondiscrimination that remained cognizant of racial implications of purportedly race neutral laws, which was briefly captured in language rights and voting rights statutes in the late 1960s to 1970s. But the egalitarian interpretations unraveled due to contradictions within the liberal national ideology that permitted a post-racial pragmatism about colorblindness that stalled the political incorporation of some non-White immigrants—Asian, Latino/a, Arab—due to their racialization as perpetual foreigners (racialized foreigners)
Methodology in Private Law Theory
No full textMethodology in Private Law Theory: Between New Private Law and Rechtsdogmatik represents a first-of-its-kind dialogue between leading lights in German and American private law theory. The chapters in this volume build upon established traditions of scholarship in German private law and harness resurgent scholarly interest in private law in the United States, inviting readers to question how private law functions on both sides of the Atlantic.In the context of the cross-fertilization of legal scholarship, the transnationalization of law, and the historical ties between US and German debates on methodology, the volume encourages reasoned engagement with private law doctrines and institutions. It further invites reflexive consideration of diverse ways in which methods of legal analysis influence social practices where law is given, received, asserted, and negotiated. Leading methodologies of the past and present are subject to fresh elucidation and insightful criticism, including those of legal formalism, legal conceptualism, legal realism, law and economics, legal philosophy, legal history, empirical jurisprudence, Rechtsdogmatik, and other varieties of doctrinal scholarship.Providing the necessary background for understanding different legal cultures and traditions in private law, Methodology in Private Law Theory is a must-read for anyone working within the field.https://scholarship.law.nd.edu/law_books/1431/thumbnail.jp
Taking Back the Bar: The need for State Legislation Directed at Addressing the Disparate Impact of the Bar Exam and Holding the NCBE Accountable
No full textTrump\u27s Legal Troubles
No full textFriday, April 18, 2024 | 3:00–4:15 PM | Jenkins Nanovic Halls, Room 1030
Free and open to the public.
Join the Center for Citizenship & Constitutional Government for a lecture by Berkeley law professor John Yoo on former President Donald Trump\u27s legal troubles.
John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley. He is also a Nonresident Senior Fellow at the American Enterprise Institute and a Visiting Fellow at the Hoover Institution, Stanford University. His many books include The Politically Incorrect Guide to the Supreme Court (2023 with Robert Delahunty). Professor Yoo has served in all three branches of government, including the U.S. Deparment of Justice, where he worked on national security and terrorism issues after the 9/11 attacks.
Sponsor: Center for Citizenship & Constitutional Governmenthttps://scholarship.law.nd.edu/ndls_posters/1864/thumbnail.jp
Racial Targets
No full textIt is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race relations have become polarized and the conservative, pro-business U.S. Supreme Court may weigh in on the legality of voluntary goals set by some of the largest companies in the country. Large companies have historically been granted discretion to choose their strategies for paving the way toward equal employment opportunity for people of color. The Article grapples with whether this corporate-discretion ideal would inform the legal posture of racial targets