Scholars and courts typically describe and defend American contract law as a system of strict liability, or liability without fault. Strict liability generally means that the reason for nonperformance does not matter in determining whether a contracting party breached. Strict liability also permeates the doctrines of contract damages, under which the reason for the breach does not matter in determining the measure of damages, and the doctrines of contract formation, under which the reason for failing to contract does not matter. In my Article, I take issue with the strict liability paradigm, as I have in my prior work on contract law. In my view, the theoretical justifications for strict liability as a general paradigm for contract law oversimplify contractual intent, the relationship between intent and fault, and the nature of contractual fault. Moreover, the strict liability label is descriptively misleading, once one dips even slightly below the surface of contract doctrine. Fault shows up throughout contract law. Efforts to make contract law conform more to the strict liability paradigm and exorcize fault are wrongheaded. In any case, such efforts are doomed to fail. Fault may not be the dominant feature of contract law, but it plays an inherent, invaluable, and ineluctable supporting part. Like other contract rules, strict liability is merely a fault-based presumption. Determining the limits of that presumption means considering why parties make contracts and why they do not perform them, in other words, fault. Courts and scholars should acknowledge the role of fault and think about how to use fault more effectively within the framework of contract doctrine.
Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public...
It has long been said that the common law "works itself pure" But in the law of torts, not always. This Article reveals and analyzes the...
The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice...
Long lines inside Bodo’s Bagels, congestion on Emmet Street and a seemingly endless stream of runners and scooters zooming past your car in early...
The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed...
Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and...
Do legal concepts alter how we understand the past and present? The jurisprudence of race suggests that they do. For several decades, federal courts...
Public nuisance has lived many lives. A centuries-old doctrine defined as an unreasonable interference with a right common to the public, it is...
This project is part of ALI’s ongoing revision of the Restatement Second of Torts. The Restatement Second recognized compensatory damages, injunctions...
An important administrative law doctrine developed by the lower federal courts, called remand without vacatur, rests on a mistaken premise. Courts...
At its meeting on January 19 and 20, 2023 the Council approved Council Draft No. 2, containing §§ 5, 11, and 12 of Topic 1, General Rules for...
This Article examines the legal issues underlying hundreds of lawsuits, claiming unjust enrichment or breach of contract, brought by students who paid...
This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient...
Bankruptcy offers a fresh start that frees individuals from crushing debt burdens. Many insolvent Americans are, however, simply too poor to afford...
Federal courts are often asked to issue various forms of expedited relief, including stays pending appeal. This Article explores a little examined...