Penalty Clauses Research Articles

Employee Crime and the Monitoring Puzzle

The simplest economic theories of crime predict that profit-maximizing firms should follow strategies of minimal monitoring with large penalties for employee crime. We investigate possible reasons why firms actually spend considerable resources trying to detect employee malfeasance. We find that the most plausible explanations for firms' large outlays on monitoring of employees-legal restrictions on penalty clauses in contracts and the adverse impact of harsh punishment schemes on worker morale-are also consistent with the payment of premium (rent-generating) wages by cost-minimizing firms.

Penalty Clauses in Tumshuqese, Khotanese and the Shanshan Prakrit

Penalty Clauses in Tumshuqese, Khotanese and the Shanshan Prakrit

Diagnosing and treating “insanity” on death row: Legal and ethical perspectives

AbstractIn every American state with a death penalty law, execution of the insane is forbidden by statute or case law. Recently, the United States Supreme Court held that this proscription is mandated by the Cruel and Unusual Punishment Clause of the Eighth Amendment. As a result of these laws and the Supreme Court's recent ruling, psychiatrists and psychologists have been and will continue to be called upon to both diagnose and treat insanity among death row inmates. This article considers whether psychiatrists and psychologists can meet both these legal demands and the ethical demands of the healing professions to which they belong.

The child's right to corporal integrity in the school setting: A right without a remedy under the constitution

Although the law recognizes the right of teachers to corporally punish their students, teachers must act within reasonable parameters. This paper, by examining the evolution of the standard of reasonableness from the common law to its current application in constitutional law, studies the extent of the teachers’ parameters. Historically, teachers derived their authority to corporally punish students through the doctrine of in loco parentis. With the institution of compulsory education laws, the source of the teachers’ authority shifted from the parent to the state itself Court cases demonstrate that concomitant with this shift, teachers are allowed far greater latitude than parents in what constitutes “reasonable”; corporal punishment. Constitutional challenges to corporal punishment based upon the Eighth Amendment's cruel and unusual punishment clause and Fourteenth Amendment procedural due process and substantive due process have not resulted in court decisions that satisfactorily safeguard the corporal...

Cost of Completion or Diminution in Market Value: The Relevance of Subjective Value

Previous articleNext article No AccessCost of Completion or Diminution in Market Value: The Relevance of Subjective ValueTimothy J. MurisTimothy J. Muris Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 12, Number 2Jun., 1983 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467728 Views: 15Total views on this site Citations: 17Citations are reported from Crossref Copyright 1983 The University of ChicagoPDF download Crossref reports the following articles citing this article:Maria Bigoni, Stefania Bortolotti, Francesco Parisi, Ariel Porat Unbundling Efficient Breach: An Experiment, Journal of Empirical Legal Studies 14, no.33 (Aug 2017): 527–547.https://doi.org/10.1111/jels.12154Maria Bigoni, Stefania Bortolotti, Francesco Parisi, Ariel Porat Unbundling Efficient Breach: An Experiment, SSRN Electronic Journal (Jan 2016).https://doi.org/10.2139/ssrn.2881462Maria Bigoni, Stefania Bortolotti, Francesco Parisi, Ariel Porat Unbundling Efficient Breach, SSRN Electronic Journal (Jan 2014).https://doi.org/10.2139/ssrn.2477973Osnat Jacobi, Avi Weiss The effect of time on default remedies for breach of contract, International Review of Law and Economics 35 (Aug 2013): 13–25.https://doi.org/10.1016/j.irle.2012.11.004Jeffrey Lynch Harrison The Influence of Law and Economics Scholarship on Contract Law: Impressions Twenty-Five Years Later, SSRN Electronic Journal (Jan 2012).https://doi.org/10.2139/ssrn.1999085Francesco ParisiBarbara Luppi, and Vincy Fon Optimal Remedies for Bilateral Contracts, The Journal of Legal Studies 40, no.11 (Jul 2015): 245–271.https://doi.org/10.1086/658406Osnat Jacobi, Avi Weiss The Effect of Time on Default Remedies for Breach of Contract, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.2033634Benjamin E. Hermalin, Avery W. Katz, Richard Craswell Chapter 1 Contract Law, (Jan 2007): 3–138.https://doi.org/10.1016/S1574-0730(07)01001-8Francesco Parisi, Barbara Luppi, Vincy Fon Optimal Remedies for Bilateral Contracts, SSRN Electronic Journal (Jan 2007).https://doi.org/10.2139/ssrn.1020669Eleni Zervogianni Remedies for damage to property: money damages or restitution in natura?, International Review of Law and Economics 24, no.44 (Dec 2004): 525–541.https://doi.org/10.1016/j.irle.2005.01.008Todd J. Zywicki The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, SSRN Electronic Journal (Jan 2003).https://doi.org/10.2139/ssrn.326740Aristides N Hatzis Having the cake and eating it too: efficient penalty clauses in Common and Civil contract law, International Review of Law and Economics 22, no.44 (Dec 2002): 381–406.https://doi.org/10.1016/S0144-8188(02)00111-4Aristides N. Hatzis Having the Cake and Eating It Too: Efficient Penalty Clauses in Common and Civil Contract Law, SSRN Electronic Journal (Jan 2001).https://doi.org/10.2139/ssrn.278219Dieter Schmidtchen Time, uncertainty, and subjectivism: Giving more body to law and economics, International Review of Law and Economics 13, no.11 (Mar 1993): 61–84.https://doi.org/10.1016/0144-8188(93)90022-WPeter H. Aranson The common law as central economic planning, Constitutional Political Economy 3, no.33 (Sep 1992): 289–319.https://doi.org/10.1007/BF02393138 Daniel Friedmann The Efficient Breach Fallacy, The Journal of Legal Studies 18, no.11 (Oct 2015): 1–24.https://doi.org/10.1086/468138Louis Alessi, Robert J. Staaf Property Rights and Choice, (Jan 1989): 175–200.https://doi.org/10.1007/978-94-009-1079-9_6

Disciplinary Agents in the Sepulchral Inscriptions of Lycia

Lycian scholars have long recognized that a number of the sepulchral inscriptions of Lycia refer to certain disciplinary agents responsible for punishing persons guilty of illegal use of a tomb—e.g. by making unauthorized burials in the tomb. TL 57 provides a typical example:hrppiye mei:tadi:tike:me ne:tubeiti:mãhãi huwedri.se itlehi:trmili: (lines 8–9)“If (anyone) places anyone (else) upon them (i.e. the authorized tomb occupants), the huwedri gods and the Lycian itlehi will punish him.”There has been some fluctuation of opinion on the actual nature of the disciplinary agents involved. Many of them once thought to have been secular authorities can now quite confidently be regarded as deities or religious institutions, and this of course throws a rather different light on the nature and purpose of the penalty clauses in the inscriptions. In some cases, these clauses seem to have threatened the offender with divine retribution and nothing more, but in other cases, the offender apparently risked a more tangible form of penalty. One might then ask to whom precisely a tomb violator was answerable for his offence, and what precisely was the nature of the penalty imposed upon him.

Unenforceable Contracts: Penalty Clauses and Specific Performance

THAT many aspects of the common law may be explained in terms of economic efficiency, defined as wealth maximization, is a proposition that has been well-established by the work of Posner' and others. I have, along with others, provided arguments which partially explain why this is true.2 Thus, it is puzzling when there is some legal rule which cannot be so explained. To date, one of the main anomalies in the economic explanation of common law is the rule against penalty clauses in contracts. If two parties sign a contract specifying a payment in the case of breach and if the courts determine that damages are greater than the actual costs of the breach, the damages will not be allowed. Though there are some economic explanations for this behavior in the literature,3 these explanations have not been fully convincing.4 Another area in which economic analysis has not been fully satisfying is the area of specific performance. Kronman is able to explain some of the reluctance of the courts to order specific performance in the case of contracts, but he is still left with some puzzles.5 In this paper, I provide an explanation for both of these aspects of the courts' refusal to enforce contracts. The argument is based on Telser's

Predictability and the Economic Approach to Law: A Comment on Rizzo

Previous articleNext article No AccessPredictability and the Economic Approach to Law: A Comment on RizzoPaul H. RubinPaul H. Rubin Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 9, Number 2Mar., 1980Change in the Common Law: Legal and Economic Perspectives Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467642 Views: 10Total views on this site Citations: 8Citations are reported from Crossref PDF download Crossref reports the following articles citing this article:Alain Marciano, Alessandro Melcarne, Giovanni B. Ramello JUSTICE WITHOUT ROMANCE: THE HISTORY OF THE ECONOMIC ANALYSES OF JUDGES’ BEHAVIOR, 1960–1993, Journal of the History of Economic Thought 42, no.22 (Jun 2020): 261–282.https://doi.org/10.1017/S105383721900052XDavid Chavanne Thinking Like (Law-And-) Economists – Legal Rules, Economic Prescriptions and Public Perceptions of Fairness, Review of Law & Economics 16, no.11 (Oct 2019).https://doi.org/10.1515/rle-2018-0050David Chavanne Thinking Like (Law-and-) Economists Efficient Legal Rules and Moral Intuitions of Fairness, SSRN Electronic Journal (Jan 2015).https://doi.org/10.2139/ssrn.2649489Alain Marciano, Elias L. Khalil Optimization, path dependence and the law: Can judges promote efficiency?, International Review of Law and Economics 32, no.11 (Mar 2012): 72–82.https://doi.org/10.1016/j.irle.2011.12.010Chad W. Seagren Emergent Order, Agent-Based Modeling, and Economic Analysis of Accident Law, SSRN Electronic Journal (Jan 2009).https://doi.org/10.2139/ssrn.1486502Bruce L. Benson Customary law as a social contract: International commercial law, Constitutional Political Economy 3, no.11 (Dec 1992): 1–27.https://doi.org/10.1007/BF02393230Peter H. Aranson Economic Efficiency and the Common Law: A Critical Survey, (Jan 1986): 51–84.https://doi.org/10.1007/978-94-009-4442-8_4 Paul H. Rubin Unenforceable Contracts: Penalty Clauses and Specific Performance, The Journal of Legal Studies 10, no.22 (Oct 2015): 237–247.https://doi.org/10.1086/467680

Adjudication as a Private Good

This paper examines the question whether adjudication can be viewed as a private good, i.e., one whose optimal level will be generated in a free market. Part I focuses on private courts, noting their limitations as institutions for dispute resolution and rule creation but also stressing the important role that the private court, in its various manifestations, has played both historically and today. Part II discusses a recent literature which has argued that the rules generated in the public court system, in areas of the law where the parties to litigation are private individuals or firms and the rules of law are judge-made, are the efficient products of purely private inputs. Our analysis suggests that this literature has overstated the tendency of a common law system to produce efficient rules, although areas can be identified where such a tendency can indeed be predicted on economic grounds. Viewed as a contribution to the emergent literature on the positive economic theory of law, our finding that the public courts do not automatically generate efficient rules is disappointing, since it leaves unexplained the mechanisms by which such rules emerge as they seem to have done in a number of the areas of Anglo-American judge-made law. However, our other major finding, that the practices and law governing private adjudication appear to be strongly influenced by economic considerations and explicable in economic terms, is evidence that economic theory has a major role to play in explaining fundamental features of the legal system.

The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause

The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause

Forecasting Work Conditions for Road Construction Activities: An Application of Alternative Probability Models

Certain activities of highway construction are particularly sensitive to such weather conditions as soil moisture, precipitation, and daily temperature. Regression analysis is used to obtain three alternative probability models designed to translate observed weather conditions into probabilities for carrying out construction activities. The models were developed using generalized least squares, normit analysis, and logit analysis. The generalized least squares method was the most convenient computationally, but it had severe interpretative disadvantages. The results obtained by logit analysis gave the desired probabilistic interpretation most readily and had the best predictive ability. Comparison of sample observation and predicted work probabilities for common excavation during wet and dry months indicated that the logit analysis model could accurately translate weather conditions into probabilities that work would take place. Models for paving and asphalt work and for bridge and drainage structure are also estimated using logit analysis. These estimates indicate a strong sensitivity of the latter category of work to precipitation conditions. Such models may aid contract letting agencies is planning payment schedules, penalty clauses, and completion dates for new roads; construction firms may find such models valuable in planning effective use of men and equipment.

Paper 4: Contractual Acceptance Tests of Model Turbines

Acceptance tests on turbine installations have, in most instances in the past, been undertaken by field tests on the prototype. Greater accuracy, however, is possible by laboratory tests on a model. The cost of model and field tests is examined to show when a model test is an economic proposition. The question of when it is justifiable to have comparative model tests on a number of model turbines from different manufacturers is also discussed. The realistic level of accuracy attainable leads to reasonable setting of penalty clauses. In many cases penalty clauses have been unrealistic, as the necessary precision on testing, majoration step-up, seal clearance, surface finish, and manufacturing tolerances cannot be achieved. This can result in unnecessary dispute after the tests. The practical aspects of testing are also covered in the paper, including the need for model installation supervised by the manufacturer, the careful calibration of measuring equipment, and the statistical assessment of results. Finally geometric measurement of the model to ensure homogeneity with the prototype is discussed.

The Cruel and Unusual Punishment Clause and the Substantive Criminal Law

The Cruel and Unusual Punishment Clause and the Substantive Criminal Law

Competition and Organization in Building

MOST people would think that builders compete vigorously against each other. Certainly the small firm on whose experience this study is based is surrounded by many other firms. Within a-mile of its offices in London are at least thirty other companies, and much of the work in the district is done by firms who come from farther afield. On the lines of conventional theory one would imagine that competition would be intense, that prices would be keen and profit margins low. There would be little opportunity to raise prices above the general level and firms would concentrate on higher productivity to earn profits. Inefficient firms would be forced out. Of course, the theory assumes that customers can compare the prices of one firm with that of another. There are three principal difficulties here. First, closely related to the price is the time taken to do the work: the longer the client owns a half-built house that he cannot occupy the more rent he is, in effect, paying for nothing. Builders are notoriously difficult to pin down about time, and penalty clauses for non-completion are often unenforceable at law. The customer can only hope that the builder will not delay, and that when he chooses the lowest price the advantage is not cancelled out by that builder's slowness. The second difficulty is over quality. There are no standards setting out permitted tolerances, or detailed descriptions of exactly how the work is to be done. Phrases like 'good workmanship' leave the door wide open to differences of opinion. For example, a plastered wall, should be perfectly flat and plumb, but in practice all walls undulate slightly, and arguments develop over when an undulation becomes a bump. A contract has to be signed before work starts, so that it is not possible, as with manufactures, to inspect the finished goods before agreeing a price. So the client has often to depend on past experience of a firm, or their reputation, to decide whether he will be given the speed and quality of work he wants. The third problem is the difficulty of describing accurately and completely the work to be done before it starts. This is particularly true of work in old property where, when the existing construction is removed, further defects come to light-a recent well publicized example is the reconstruction of Downing Street which cost over four times the first estimates. But the same trouble occurs in new buildings: there were over a thousand drawings delivered to the

Contracts. Enforcement of Contract Penalty Clause by Government Held Precluded by 'Arbitrary and Inequitable' Refusal to Make Partial Payments

Contracts. Enforcement of Contract Penalty Clause by Government Held Precluded by 'Arbitrary and Inequitable' Refusal to Make Partial Payments

Penalty Clauses in Government Contracts: Applicable Law and Validity

The United States sued the Le Roy Dyal Company, to enforce a liquidated damages clause a contract between the defendant and the Commodity Credit Corporation. Under this clause, the government was to recover $3.00 per hundredweight if the Dyal Co., which was contracting with CCC to carry out the 1947 Irish potato price support program, purchased potatoes from an ineligible grower. The trial judge held the provision to be in the nature of a under the circumstances of this case, and gave a judgment for plaintiff for nominal damages only. The Court of Appeals for the Third Circuit reversed on appeal, on the ground that this was not a penalty, but a reasonable provision for damages that would be difficult to anticipate or to prove after breach of the contract. This, the court derived from principles of contract rather than from state law, although it concluded that state law would lead to the same result this particular case.' The principal case points up two interesting problems. One relates to whether the court was free to apply general contract law. The other is the problem of the extent to which penalty clauses government contracts will be enforceable.

Contracts: Law Applying to Government Contracts: Penalty Clauses

Contracts: Law Applying to Government Contracts: Penalty Clauses

Constitutional Law. Workmen's Compensation Act. Penalty Clause

Constitutional Law. Workmen's Compensation Act. Penalty Clause