June 2009 Vol. 107 No. 8 THE REVIEW
ARTICLES

Foreword: Fault in American Contract Law

Omri Ben-Shahar & Ariel Porat

Symposium: Fault in Contract Law

It would take more than one symposium to explain the puzzling interface between contract and tort. Any explanation, though, would have to begin with an account of the limited role that fault plays in contract law. This breaks down to separate lines of inquiry: (1) Should lack of fault be a defense against breach? Should the breaching party be able to escape liability if he can show that he worked hard to avoid breach? (2) Should fault be an aggravating factor multiplying damages? Should the breaching party be liable for more than normal damages if breach was “malicious”? (3) Should contract law take the aggrieved party’s fault into account? These three lines of questions—the no-fault defense, the willful-breach multiplier, and contributory fault—are the focus of the present Symposium.

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Let Us Never Blame a Contract Breaker

Richard A. Posner
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Stipulated Damages, Super-Strict Liability, and Mitigation in Contract Law

Saul Levmore
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In (Partial) Defense of Strict Liability in Contract

Robert E. Scott
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A Comparative Fault Defense in Contract Law

Ariel Porat
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The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformance

Melvin Aron Eisenberg
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Fault in Contract Law

Eric A. Posner
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The Fault That Lies Within Our Contract Law

George M. Cohen
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The Many Faces of Fault in Contract Law: Or How to Do Economics Right, Without Really Trying

Richard A. Epstein
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An Information Theory of Willful Breach

Oren Bar-Gill & Omri Ben-Shahar
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When Is a Willful Breach “Willful”? The Link Between Definitions and Damages

Richard Craswell
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Willfulness Versus Expectation: A Promisor-Based Defense of Willful Breach Doctrine

Steve Thel & Peter Siegelman
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Fault at the Contract-Tort Interface

Roy Kreitner
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Could Breach of Contract Be Immoral?

Seana Shiffrin
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Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contracts

Steven Shavell
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The Fault Principle As the Chameleon of Contract Law: A Market Function Approach

Stefan Grundmann
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