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Contractual Enforcement Mechanisms and the Structure of Information: Comment

By Alan Schwartz


An early question to ask about a paper is who the addressees of the paper are. This paper (Katz [2008]) answers the question. “The motivating question [...] is how parties should choose among the various enforcement regimes available to them. [...] the primary audience for such analysis likely consists of private parties engaged in transactional planning, who need to decide whether to prepare for public or private enforcement, for monetary remedies or merely a termination right, and for a series of independent and sequential exchanges as opposed to a unified installment contract. It is those actors who are most likely to [...] choose optimally among them.” “The main purpose of this essay is to argue that parties can also choose among the enforcement institutions in which to pursue remedies for breach of contractual commitment, and on analogous criteria.” That the paper is intended for persons in business and lawyers – the “private parties” – raises an initial question, not answerable by me, as to why the paper is presented at this conference. Private parties and lawyers seldom read JITE. It raises a second question, how towrite an academic comment on a paper that is not intended for an academic audience. This Comment struggles with the second question for a while and then briefly takes the paper on its own terms, to ask whether it is useful to its intended audience. The Comment concludes, using academic criteria, that the paper is too sketchy for the academy and, using practical criteria, that the paper is too abstract for the business world

Publisher: Yale Law School Legal Scholarship Repository
Year: 2008
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