The common law practice of refusing to enforce contractual penalties has long mystified law and economics scholars. After critiquing the prevailing law and economics analyses of the common law rule, Eric L. Talley reevaluates the penalty doctrine using the game theoretic technique of mechanism design, which facilitates the analysis of multiparty bargaining situations under various assumptions. Using this technique to model the allocational consequences of various enforcement regimes that courts might adopt with respect to stipulated damages clauses, Mr. Talley finds that penalty nonenforcement can increase economic efficiency by discouraging strategic behavior by the parties, thereby inducing more efficient contract renegotiation.
Contracts | Law | Law and Economics
Eric L. Talley,
Contract Renegotiation, Mechanism Design, and the Liquidated Damages Rule,
Stan. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3690