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The Myth of Optimal Expectation Damages
Get PDFA much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer—drawing from the theory of efficient breach—is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract for themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the manner an actual liquidated provision might be. We find little evidence of a preference for the expectations damages measure
Presidential Administration, the Appearance of Corruption, and the Rule of Law: Can Courts Rein in Unlawful Executive Orders?
Get PDFMany of President Trump’s executive orders aimed to “deconstruct” the administrative state by exercising unprecedented control over agency action. While presidents have exercised directive authority over executive agencies for several decades, these recent directives are particularly troubling because many of them direct agencies to act contrary to congressionally mandated procedures designed to ensure that agencies engage in predictable, transparent, and justified decision-making. This phenomenon poses a threat not only to agency rulemaking but also to corresponding rule of law principles—all at a time when public confidence in government officials has steadily declined and more and more Americans perceive their officials as corrupt, untrustworthy, or otherwise unable to serve the public interest. With Congress unmotivated and unable to act, the Judiciary is the only branch left to check such potentially dangerous directives. This Article seeks to show why courts can and should adjudicate challenges to such problematic orders issued by current or future presidents, despite potential standing problems when orders are challenged directly, in order to promote the rule of law and democratic governance
Confusion, Conflict, and Case Law: Analyzing the Language of the United States Patent Act and Conflicting Case Law Regarding the Transfer of Patent Rights in the 21st Century
Get PDFProperty Rights in Celestial Bodies: A Question of Pressing Concern to All Mankind
Get PDFCommercial interest in outer space is increasing, thanks in part to technological developments and private sector investment. Major spacefaring nations—including the United States, China, and Russia—are suddenly having to grapple with issues of space law that have not been so hotly debated since the Cold War. Unfortunately, the foundational document governing the use of outer space and its resources is the Outer Space Treaty from 1967. Written from the perspective of an earlier era and intentionally nonspecific in much of its phrasing, this agreement has stymied the economic development of space resources by its ambiguously worded prohibition on the appropriation of certain extraterrestrial objects