Michigan Law Review articles

Recent articles from Michigan Law Review

Let us never blame a contract breaker.
June 1, 2009... Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in...

Stipulated damages, super-strict liability, and mitigation in contract law.
June 1, 2009... The remedy of expectancy damages in contract law is conventionally described as strict liability for breach. Parties sometimes stipulate damages in advance, and may agree that the damages they stipulate shall be the exclusive remedy for breach. They may do so because of their conviction that...

In (partial) defense of strict liability in contract.
June 1, 2009... Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is...

A comparative fault defense in contract law.
June 1, 2009... This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II...

The role of fault in contract law: unconscionability, unexpected circumstances, interpretation, mistake, and nonperformance.
June 1, 2009... It is often asserted that contract law is based on strict liability, not fault. This assertion is incorrect. Fault is a basic building block of contract law, and pervades the field. Some areas of contract law, such as unconscionability, are largely fault based. Other areas, such as...