Nathan B. Oman, Consent to Retaliation: A Civil Recourse Theory of Contractual Liability,

Abstract:     
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: "If I breach this contract, let it be done to me as we are doing to the goat." This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.

SSRN Articles

Barbara Mescher, Business Ethics and the Law of Contract,
Abstract:    

It is essential for business managers to be able to rely upon the performance of promises made in legally binding contracts. This article examines the role of business ethics in contract performance. It demonstrates that the law alone is not enough to ensure performance because the law is a narrower fi eld than business ethics. Law has drawn upon the broader discipline, ethics, to form the foundation of the law. Ethics is about moral standards, and ethical philosophies explain moral standards. Business ethics has applied these philosophies to business. The law and business ethics are two different disciplines although they are at some points integrated and at others complementary. An appreciation of the relationship between applied ethics and the law is necessary to assist managers to appreciate that business ethics is as much part of business as is commercial law. This is particularly the case in the law of contract. This article encourages managers to embrace the principles of business ethics and engage in ethical decision-making as a necessary part of their business. Trust and honesty are ethical principles and they are basic elements of all business operations, especially entry into contracts. 

[In this Article, the author seeks to argue that "contractual performance is assisted by the application of business ethics principles". Further the author argues that ""the law alone does not ensure contractual performance. Rather, the principles of business ethics, in particular honesty and trust, encourage contractual performance. If business managers did not believe in the honesty of their potential contract parties, no contract would be formed. It would simply be too great a risk commercially". No business manager would rely on her expectation that the other potential contract party would act honestly. Rather, she would ensure that (a) the entity which she represents gets the best deal and (b) the entity which she represents is best protected. From this point of view, it is difficult to sustain the author's arguments that belief in honesty and trust encourage contractual performance. ]

Tai-Heng Cheng, Some Limits to Apply Chinese Med-Arb Internationally,  
Abstract:     
Recently combined arbitration and mediation processes have been gaining in appeal as parties seek to resolve disputes more expeditiously and at reduced costs. Issues relating to confidentiality, procedural due process and the effectiveness of the mediation step in such a hybrid process have been the subject of several law review articles. Cross-cultural differences relating to such mixed processes have been noted. We have gathered in this issue reflections on med-arb and arb-med from jurisdictions around the world. We hope that this sharing of perspectives on the efficacy and fairness of med-arb and arb-med will assist ADR specialists and parties in designing their dispute resolution process. 

Reflections

Disrespect of Parliament from within

Yesterday's The Hindu carried an evaluation of Indian Parliament by Vidya Subrahmaniam. Incidentally, a Private Member Bill was proposed to ensure that the Lok Sabha meets at least for a minimum of 100 days. Find the news here. See a report by PRS Legislative Research with statistics of the 2009 Parliament sessions here.

On National Commission for Higher Education

See, the The Draft National Commission for Higher Education and Research Bill, here and some responses to it here by Pratap Bhanu Mehta, here by Member Secretary, Kerala State Higher Education Council and Prof. Madhav Menon's Response to the previous one here. See a rejoinder by the Member Secretary here.