117 Yale L.J. 2 (2007).
There is a longstanding debate about whether courts should enforce contract terms purporting to limit the parties’ liability for fraud. It is less-often noticed that many contracts are designed to incorporate fraud liability by requiring one party to make representations about her performance that, if false, can satisfy the elements of deceit. Such contractual representations are best understood as members of a broader, hitherto underappreciated category of contract terms: duties designed to increase the other party’s chances of recovering for breach. Examples include the duty to keep records, to share information about performance, to permit audits, and not to hide breach. This Article shows that the logic of proving proximate harm from the breach of such terms entails that legal liability for such breach often makes a practical difference only when it includes penalties, punitive damages, or other extracompensatory measures. The Article also demonstrates that most of the costs of extracompensatory remedies (such as deterring efficient breach) do not apply when those remedies are attached to duties to cooperate in recovery, and that, in many cases, adopting such duties is a better solution to underenforcement than damages multipliers. Parties now contract for liability in fraud, where punitive damages are available, because they cannot get these remedies in contract. The practical upshot is a new argument against rulings, most recently via a broad reading of the economic loss doctrine, that there can be no liability in fraud for lies that are also breaches. Rather than serving the oft-stated goal of protecting the parties’ contractually chosen allocation of risk, these rules defeat party choice. Even better, however, would be exceptions to the rules against penalties and punitive damages when those remedies are attached to the breach of a duty to cooperate in recovery.
117 Yale L.J. 70 (2007).
A significant portion of the war on terror detainees who have been charged at Guantanamo have announced their intentions to dismiss their attorneys, to waive their right to be present at their trials, or to take both actions simultaneously so that their interests will not be represented. This Note demonstrates that strong justifications, rooted in international and domestic legal rules and precedent, support honoring the detainees’ requests. Yet the military tribunal proceedings are designed to follow the adversarial model to achieve just outcomes; granting the detainees’ procedural requests can, in certain situations, undermine the ability of the military commissions to reach just outcomes in favor of the personal whims of the detainees. When a detainee’s procedural request threatens to undermine the adversarial model, I propose that military adjudicators appoint an amicus curiae counsel to provide sufficient process on behalf of the tribunal.
117 Yale L.J. 120 (2007).
This Note assesses the relationship between hostile work environment harassment and retaliatory harassment claims by reviewing several cases in which both claims were brought. It argues that courts have unjustifiably narrowed the reach of both claims by disaggregating harassment from retaliation in a variety of ways, including considering harassment that occurs after the discrimination complaint to be solely retaliatory, rather than both retaliatory and discriminatory; interpreting harassment to be motivated simply by personal animus rather than by a retaliatory or discriminatory purpose; and disaggregating explicitly racialized or sexualized forms of harassment from nonracialized or sexualized forms of conduct. This Note concludes by describing the potential of joint harassment/retaliation claims to respond to both status-based and conduct-based discrimination and by offering specific recommendations to courts for reaching an integrated understanding of the two claims.