The Discrimination Shibboleth

This Article explores a more conservative viewpoint than Richard Epstein\u27s view that all employment antidiscrimination laws should be repealed in his book Forbidden Grounds: The Case Against Employment Discrimination. This Article focuses on the distinctions between current antidiscrimination laws and those of the Civil Rights Act of 1964. While the Civil Rights Act of 1964 prohibited discrimination on the basis of race and sex, current laws prohibit discrimination on many other grounds. The author argues that these new laws constitute new policy choices, and they impose more costs than the traditional laws

Unilateral Mistake: The Baseball Card Case

Part I of this Article revisits the traditional account of unilateral mistake, arguing that a subjective theory focused on requirements of contract formation still provides the most convincing explanation of the case law and the best rule of decision. Part II suggests that the original limits to relief for unilateral mistake came to be expanded as an unintended consequence of the Holmes/Williston objective theory of contract, though the present-day consequences of this development are very far from what either scholar would have approved. Part III examines the alternatives to the traditional conception of unilateral mistake currently advanced by influential schools of modern contract theory

Restitution\u27s Outlaws

The usual assertion that restitution is not punitive is true in the important sense that liability in restitution does not exceed the defendant\u27s enrichment: enhanced or exemplary liability is foreign to this area of the law. On the other hand, restitution incorporates an unmistakably punitive aspect that is given effect in a different fashion: not by enhancing the liability of a disfavored defendant, but by denying relief to a disfavored claimant. The traditional explanation of such outcomes (by recitation of English and Latin maxims) has tended to obscure the extent and the consistency of the law\u27s punitive response

Restitution and Final Payment

Final payment occurs when a payee acquires ownership of the money paid, so that payment can no longer be revoked by the payor or recovered by self-help. But final payment in this sense is not the end of the story, because a person who has made a payment as a result of fraud or mistake has a prima facie claim in restitution to get the money back. Final payment is therefore the point at which restitution begins. Finality in a different sense—meaning the point at which a payee is protected from a liability in restitution—is determined by standard affirmative defenses, most notably the rule of Price v. Neal. Confusion between the two kinds of finality distorts payments law and leads to errors—either too much restitution or not enough—in a number of settings, some of them diverting

Consideration Which Happens to Fail

Recent English commentary employs the timeworn expression “failure of consideration” in an unprecedented way. It can now designate an expansive residual category of grounds for restitution: at its fullest, “the failure to sustain itself of the state of affairs contemplated as a basis” for a transaction by which one party is enriched at the expense of another. Because the result is plainly to incorporate a civilian-style “absence of basis” test within commonlaw unjust enrichment, the new “failure of consideration” carries an incidental implication for Canadian restitution law: if Garland v Consumers’ Gas really announced a shift from commonlaw “unjust factors” to civilian “absence of basis,” the change may not make that much difference. Contrasting approaches to “failure of consideration” illustrate a broader difference in attitudes toward “restitution in a contractual context”: English law looks “off the contract” in situations where US law finds answers in the contract itself

Restitution and Final Payment

Final payment occurs when a payee acquires ownership of the money paid, so that payment can no longer be revoked by the payor or recovered by self-help. But final payment in this sense is not the end of the story, because a person who has made a payment as a result of fraud or mistake has a prima facie claim in restitution to get the money back. Final payment is therefore the point at which restitution begins. Finality in a different sense—meaning the point at which a payee is protected from a liability in restitution—is determined by standard affirmative defenses, most notably the rule of Price v. Neal. Confusion between the two kinds of finality distorts payments law and leads to errors—either too much restitution or not enough—in a number of settings, some of them diverting

Equity\u27s Atrophy

Current U.S. law sees numerous decisions from which a once- predictable, traditional equitable corrective has simply disappeared. The salient cases are those in which, until recently—recent history for this purpose comprising just one or two generations of lawyers and judges—equitable intervention would have been at least highly likely: because the unmodified legal outcome diverges so plainly from equity and good conscience, and because an established equitable response was part of what everybody knew. The idea that equity in U.S. law has been losing some previous degree of vitality is so venerable that it can scarcely be debatable at this point,11 and in the present discussion it will be treated as self-evident. Rather the object will be to consider briefly some illustrations, and some possible explanations, of the current equity deficit. The nature of the deficit will be apparent from a handful of examples. The cases are selected for purposes of demonstration, not as a representative assortment: the object is to offer unmistakable illustrations, not a survey. The problem cases are all commercial in character—a fact that suggests one part of the explanation—and their difficulties seem to stem from the same general sources. These obstacles to the exercise of traditional equity are interrelated and overlapping, to the point that it will be somewhat artificial to distinguish them. Still they may be classified for convenience as (1) simple ignorance; (2) a loss of trust in the ability of judges to exercise the necessary discretion; and (3) an explicit preference for form over substance in the attitudes of commercial lawyers