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EfficientBreachTheory 5 - 26 Jan 2012 - Main.RohanGrey
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The following is an edited transcript of a Facebook conversation between Joseph Itkis (JI), Jonathan Brice (JB), Shaked Sivan (SS) and myself, Rohan Grey (RG) that was inspired by our class yesterday and we thought might be worth sharing. Apologies in advance for any edit-fails. | | | In regards to the first, there was general agreement that contract law functioned to allow private actors the option to voluntarily bring the public to bear witness on their private commitments to each other, and to arbitrate disputes regarding those commitments as they arose. This arbitration capacity included the discretionary power to enforce commitments if the courts deemed such a solution to be socially optimal. | |
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< | The first major point of disagreement was whether the aim of legal arbitration should be to promote the actual performance of commitments, where feasible, or merely to determine an appropriate form of compensation to a party that suffers a loss due to another party’s non-performance, irrespective of whether that performance was intentional or unintentional. This disagreement ultimately turned around whether or not courts should accord any implicit value to the integrity of a contract – in other words, whether or not they should remain ambivalent between performance and non-performance accompanied by compensatory monetary damages. | >
> | The first major point of disagreement was whether the aim of legal arbitration should be to promote the actual performance of commitments, where feasible, or merely to determine an appropriate form of compensation to a party that suffers a loss due to another party’s non-performance, irrespective of whether that performance was intentional or unintentional. This disagreement ultimately turned around whether or not courts should accord any implicit value to the integrity of a contract. | | | | |
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< | This question was determined to be a normative one, since Holmes’s “bad man” approach was useful in ascertaining the positive qualities of a particular court or jurist’s judicial approach rather than the its relative merit. There was general agreement that most self-styled “efficient breach” theorists such as Galabresi and Posner advocated the latter approach, while Eben appeared in class to be suggesting that the former interpretation may be preferable. | >
> | This question was determined to be a normative one. Holmes’s “bad man” approach is only useful in inferring the positive qualities of a particular court or jurist’s judicial approach rather than the its relative merit. There was general agreement that most self-styled “efficient breach” theorists such as Galabresi and Posner advocated the latter approach, while Eben appeared in class to be suggesting that the former interpretation may be preferable. | | | In order to answer this question, the discussion then turned to the question of what the appropriate framework for analysis was – in particular, whether or not the law should adopt a purely economic (i.e. utilitarian/consequentialist) perspective in determining the optimal form of legal remedy. There was disagreement between those who saw Eben as advocating that courts acknowledge and consider the external deontological value implicit in social trust, and those who saw him as accepting the fundamental consequentialist approach but making a more nuanced economic argument regarding the negative externalities associated with efficient breach theory. Ultimately the question was left unanswered, although the discussion of the original question proceeded upon the assumption of the latter approach. |
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