Papers by melvin eisenberg
Nw. UL Rev., 1999
... As Holmes observed, axiomatic theories may easily be coupled with deductive theories, which t... more ... As Holmes observed, axiomatic theories may easily be coupled with deductive theories, which take as a premise that at least some doctrinal propositions can be established solely by deduction from other, more fun-damental doctrinal propositions. ...
Oxford University Press eBooks, Aug 14, 1997
Oxford University Press eBooks, Oct 18, 2018
Chapter 21 concerns the theory of overreliance. That theory is as follows: frequently a promisee ... more Chapter 21 concerns the theory of overreliance. That theory is as follows: frequently a promisee can increase the profit he will make from a contract by investing in goods or services (for example advertising) that will make the contract more profitable. In the absence of institutional considerations this theory could have significant consequences in formulating the legal rules that govern damages. When institutional considerations are taken into account, however, the theory, although illuminating, has few real-world consequences, especially considering the cases where overreliance is normally impossible, or theoretically possible but very unlikely to occur, or when any reliance would hold its value after breach.
Oxford Scholarship Online, 2018
Chapter 21 concerns the theory of overreliance. That theory is as follows: frequently a promisee ... more Chapter 21 concerns the theory of overreliance. That theory is as follows: frequently a promisee can increase the profit he will make from a contract by investing in goods or services (for example advertising) that will make the contract more profitable. In the absence of institutional considerations this theory could have significant consequences in formulating the legal rules that govern damages. When institutional considerations are taken into account, however, the theory, although illuminating, has few real-world consequences, especially considering the cases where overreliance is normally impossible, or theoretically possible but very unlikely to occur, or when any reliance would hold its value after breach.
Oxford Scholarship Online, 2018
Chapter 9 concerns contexts in which two parties, A and B, have either entered into a contract or... more Chapter 9 concerns contexts in which two parties, A and B, have either entered into a contract or taken significant steps to form a contractual relationship, and B is at risk of incurring an unbargained-for loss that A could prevent by taking an action that would not require her to forgo a bargaining advantage, undertake a significant risk, or incur some other material cost. In the contexts described in this chapter A is under a moral and legal duty to take action—a duty referred to in this book as the duty to rescue in contract law. Among the contexts in which the duty is imposed are silence as acceptance, late acceptance, and performance.
Oxford Scholarship Online, 2018
In unexpected circumstances cases relief normally should be granted to the adversely affected par... more In unexpected circumstances cases relief normally should be granted to the adversely affected party if the parties shared a tacit incorrect assumption that the nonoccurrence of some circumstance during the life of the contract was certain rather than problematic, and the incorrectness of that assumption would have provided a basis for judicial relief if the assumption had been explicit rather than tacit. Relief should also normally be granted to the adversely affected party if as a result of a dramatic and unexpected general rise in prices, and therefore costs, performance would result in an unbargained-for loss to a promisor. Where judicial relief is based on a shared tacit assumption the promisor should not be liable for expectation damages. Where relief is based on an unbargained-for risk the promisor should be liable for a modified form of expectation damages.
Oxford Scholarship Online, 2018
Chapter 13 concerns the building blocks of formulas to measure expectation damages: replacement c... more Chapter 13 concerns the building blocks of formulas to measure expectation damages: replacement cost, market price, resale price, diminished value, and lost profits. Replacement-cost damages are based on the difference between the contract price and the actual or imputed cost of a replacement transaction. Resale-price damages are based on the difference between the contract price payable by a breaching buyer and the price the seller received on resale to a third party. Diminished-value damages are based on the difference between the value of the performance that a breaching seller rendered and the value of the performance that she promised to render. Lost-profit damages are based on the difference between the price a breaching buyer agreed to pay and the seller’s variable costs.
Oxford Scholarship Online, 2018
Chapter 36 considers issues that result from the incompleteness of a contract. In economic theory... more Chapter 36 considers issues that result from the incompleteness of a contract. In economic theory a complete contract is a contract that specifies the parties’ rights, duties, and remedies under every possible state of the world. Under this conception every contract is incomplete, because it would be prohibitively expensive to delineate the effect of all possible future states and the consequences of each state. In contract law the term incomplete contract means a contract that is gappy or indefinite in important respects. The law on incomplete contracts concerns when a contract has too many gaps or is too indefinite to enforce, when and how a court should fill gaps in a contract, what is the effect of a provision in an agreement that contemplates the later execution of a final contract, and when is there a duty to negotiate in good faith to make an incomplete contract sufficiently complete or to reach a contemplated final contract.
Oxford Scholarship Online, 2018
Chapter 26 considers the disgorgement interest. This is a promisee’s interest in requiring the pr... more Chapter 26 considers the disgorgement interest. This is a promisee’s interest in requiring the promisor to disgorge a gain that was made possible by her breach but did not consist of a benefit conferred upon her by the promisee. The disgorgement interest and the corresponding disgorgement measure are the mirror images of the expectation interest and the expectation measure. The expectation measure is intended to place a promisee in the position he would have been in if the contract had been performed. In contrast, the disgorgement measure is intended to place a promisor in the position that she would have been in if the contract had been performed. Accordingly, perfect disgorgement makes the promisor indifferent between performing, on the one hand, and paying damages, on the other.
Columbia Law Review, 1990
California Law Review, 2003
Introduction ....................................................................................... more Introduction ............................................................................................ 164 8 I. The Disclosure Principle ................................................................. 1649 II. Information that is Adventitiously Acquired ................................... 1656 A. Information that is Not Acquired by a Deliberate Investment Made for that Purpose ............................................ 1656 B. Information that is Acquired by a Deliberate Investment Made for that Purpose ............................................................... 1661 III. Foreknowledge ................................................................................ 1664 A. Hirshleifer, Cooter and Ulen, and Shavell ................................ 1664 B. Productive Efficiency and Allocative Efficiency ..................... 1667 IV . S ellers .............................................................................................. 16 74 A. Asymmetric Access .................................................................. 1675 B. Acquisition of Information ....................................................... 1675 C. Losses versus Forgone Gains .................................................... 1675 D. Incentives to Acquire Information ............................................ 1676 E. Market Information ................................................................... 1677 V. Information Acquired Through Improper Means ............................ 1681 VI. Relationships of Trust and Confidence ........................................... 1682 V II. E xceptions ...................................................................................... 1684 A. The Risk that the Unknowing Party Held a Mistaken Assumption Was Allocated to that Party .................................. 1684 B. The Unknowing Party Was on Notice or Failed to Conduct a Reasonable Search ................................................... 1684
California Law Review, 2000
c. Cases in which a party's conduct results in the imposition of a duty to negotiate in good faith .
Berkeley Program in Law Economics Working Paper Series, Mar 1, 1999
play important roles in the law, and that belief-systems that result from information and reasone... more play important roles in the law, and that belief-systems that result from information and reasoned persuasion play a fundamental role in the origin and adoption of social norms. The organization of this Article is as follows: I begin by describing and defining the kinds of social norms that are relevant to law (Part I). I then consider, in a preliminary way, the effects and origins of social norms (Part II). Finally, I examine the role of social norms in three central areas of corporate law: fiduciary duties, corporate governance, and takeovers (Part III). In the course of that examination, I apply and elaborate the analysis in Parts I and II concerning the kinds, origins, and effects of social norms, and consider some of the kinds of interrelations between social norms and law. An analysis of the operation of social norms in the law presents severe problems of terminology. To begin with, as a matter of ordinary language the term norm encompasses both rules and regularities. Because rules and regularities are very different kinds of phenomena, a single canonical definition of the term norm is not within reach. Furthermore, rules and regularities each include various types of norms, and the typology that is employed in a given inquiry will depend in part on the purpose of the inquiry. I therefore begin by describing and defining the major types of norms that are salient to law. These descriptions and definitions, in turn, will set the stage for an inquiry into the manner in which different types of norms operate in areas that are within the scope of law.
Law and Economics Workshop, Apr 19, 2004
Stanford Law Review, 1995
Contract law recognizes a number of exceptions to the rule that courts should fully enforce barga... more Contract law recognizes a number of exceptions to the rule that courts should fully enforce bargains between capable actors. In this article, Professor Eisenberg argues that we can best justify a number of these doctrines by reference to the limits of human cognition. He canvasses recent empirical research on the cognitive limits relevant to contracting and then shows how these discoveries shed light on six areas of contract: liquidated damages, the excuse of express conditions, form contracts, contracts to waive fiduciary obligations, agreements governing thick relationships, and prenuptial agreements. While the limits of cognition do not explain all of contract law, Professor Eisenberg argues, an understanding of the psychological constraints on decisionmaking should play a central role in the development of contract doctrine. * Koret Professor of Law, University of California at Berkeley. Earlier versions of this article were presented at a workshop at Stanford Law School, at a colloquium at the School of Law of the University of California at Berkeley, and in seminars at the law schools of the University of New South Wales, the University of Adelaide, and Bond University. Valuable suggestions were made in all of these forums. I especially thank Tom Tyler for his invaluable help on the cognitive material and Matt Forsyth for his invaluable help on prenuptial agreements. 1. By a bargain, I mean an exchange in which each party views his performance as the price of the other party's performance.
U. Pitt. L. Rev., 1989
... Under the law of negligence, an actor is treated as if he has at least such knowledge as ... ... more ... Under the law of negligence, an actor is treated as if he has at least such knowledge as ... of thisresponsibility of a director will be episodic and, typically, infrequent, but the responsibility itself is ... because (at least in the Court's view) they had not vio-lated their duty to monitor, and ...
Fordham L. Rev., 1993
INTRODUCTION rH IS Article concerns standards of conduct and standards of review I in corporate l... more INTRODUCTION rH IS Article concerns standards of conduct and standards of review I in corporate law. A standard of conduct states how an actor should conduct a given activity or play a given role. A standard of review states the test a court should apply when it reviews an actor's ...
J. Corp. L., 1998
820 The Journal of Corporation Law [Summer validity of this conception, however, cannot be establ... more 820 The Journal of Corporation Law [Summer validity of this conception, however, cannot be established by economic analysis. That does not make the conception invalid, but it does mean that its validity must be examined along other dimensions. In this Article, I will examine the ...
Ucla Law Review, 1998
promissory structures that are designed to increase the probability of exchange, rather than to b... more promissory structures that are designed to increase the probability of exchange, rather than to bring a state under an actor's control or to make it predictable that the state will occur. Such promises should be enforceable, whether or not the promise is exchanged for another promise or an act. In the area of remedies, probability and chance best explain the remedies in reward and prize cases; show how the principles of uncertainty and foreseeability should be administered; and suggest that expectation damages based on lost profits should be measured by the expected value of the lost profits rather than by the amount of profits that were probably lost.
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Papers by melvin eisenberg