Good faith and fair dealing as an underenforced legal norm

American contract law includes a duty of good faith and fair dealing in the performance of every contract. The duty appears, on first reading, to authorize judges to attach sanctions whenever one party to a contract acts unreasonably towards another. But judicial practice very often falls short of such an expansive standard. This article proposes a novel interpretation of the doctrine that accommodates both the rhetoric of good faith and fair dealing and the reality of judicial enforcement. Good faith and fair dealing, the article contends, is an underenforced legal norm. The duty is valid as a legal norm to the fullest extent, even though courts engage only in partial enforcement of that norm. This article is the first to bring the idea of underenforced legal norms into private law, drawing on the extensive literature on underenforced legal norms in constitutional law, and on analogous ideas in corporate law. The article explores the reasons why legislatures and courts might want to announce a duty whose scope extends beyond what the courts enforce. In private law, as elsewhere, the underenforcement idea allows courts to lend their expressive support to the broader norm while avoiding the negative side effects that attempted full enforcement would entail

Rethinking assignability

When should a contractual right be assignable to a non-party? English law’s answer to this question is complex, and many of its rules are difficult to justify. In some respects, the law appears unreasonably pro-assignment, whereas sometimes it denies assignability to rights that should be assignable. This article contends that, in developing the law of assignability, the judiciary and Parliament have relied on a series of dubious ideas that deviate from the law’s usual approach to contracts, and the current law rests partly on intuitive policy rationales that do not withstand scrutiny. The main aim of the article is to propose a new framework for thinking about the law of assignability that is more closely aligned with general ideas about contract law

Contract Law’s Transferability Bias

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, and renders it either impossible or extremely difficult for the parties to make rights nonassignable by agreement. After examining the range of techniques courts and legislators use to promote the transferability of contractual rights, the Article contends that these practices cannot be squared with contract law’s basic principles. The law’s pro-transferability policy appears to be based on an intuitive but dubious economic theory, which in turn is premised on an inaccurate vision of contracts as impersonal exchanges. The Article proposes reforms to make this aspect of contract law more faithful to the relationships it regulates and supports

Contract law's transferability bias

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A's position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights - the focus of this Article - the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, and renders it either impossible or extremely difficult for the parties to make rights nonassignable by agreement. After examining the range of techniques courts and legislators use to promote the transferability of contractual rights, the Article contends that these practices cannot be squared with contract law's basic principles. The law's pro-transferability policy appears to be based on an intuitive but dubious economic theory, which in turn is premised on an inaccurate vision of contracts as impersonal exchanges. The Article proposes reforms to make this aspect of contract law more faithful to the relationships it regulates and supports

Conflict and contract law

This article examines an under-explored reason to have contract law: conflict minimization. An important function of contract law, the article contends, is to diminish the wasted time, effort, and resources spent on disputes over economic exchange, and to reduce the incidence of harm resulting from these disputes. Minimizing conflict typically serves the parties’ own interests, and it also serves the public interest in social peace. These insights have implications not just for contract law as a whole but also for its doctrinal details. The article thus discusses how several doctrines of substantive contract law help to minimize conflict, without claiming that currently prevailing contract law regimes are perfectly adapted to this aim. Finally, it defends the normative claim that conflict minimization should be considered one of contract law’s goals

The inquest and the virtues of soft adjudication

An inquest is a quasi-judicial proceeding resulting in a verdict as to the cause and manner of a suspicious or unusual death. Inquests are an important feature of most common-law legal systems, but have been ignored by American legal scholars for decades. In fact, inquests continue to be held in some American localities. Inquests are intriguing partly because they are inquisitorial proceedings in stereotypically adversarial common law systems. Their determinations do not directly affect anyone’s legal rights or duties, but may be highly consequential. This Article uncovers the American inquest, and explores the case for revamping and reviving the institution. Precisely because their verdicts do not carry coercive consequences, the Article contends, inquests can aim more squarely than other legal proceedings at establishing the truth about a contested event. Accordingly, they have significant advantages in the furtherance of important societal goals, including accountability for wrongful deaths, the collection and dissemination of information about risky activities, and helping the deceased’s family come to terms with a traumatic death. The Article focuses on one particular area where suitably designed inquests could be particularly effective: deaths at the hands of police and prison officers. More broadly, the inquest is an example of legal institutions providing non-binding-yet-formal-pronouncements about past events, a phenomenon I call “soft adjudication.

Identification and validation of Triamcinolone and Gallopamil as treatments for early COVID-19 via an in silico repurposing pipeline

SARS-CoV-2, the causative virus of COVID-19 continues to cause an ongoing global pandemic. Therapeutics are still needed to treat mild and severe COVID-19. Drug repurposing provides an opportunity to deploy drugs for COVID-19 more rapidly than developing novel therapeutics. Some existing drugs have shown promise for treating COVID-19 in clinical trials. This in silico study uses structural similarity to clinical trial drugs to identify two drugs with potential applications to treat early COVID-19. We apply in silico validation to suggest a possible mechanism of action for both. Triamcinolone is a corticosteroid structurally similar to Dexamethasone. Gallopamil is a calcium channel blocker structurally similar to Verapamil. We propose that both these drugs could be useful to treat early COVID-19 infection due to the proximity of their targets within a SARS-CoV-2-induced protein-protein interaction network to kinases active in early infection, and the APOA1 protein which is linked to the spread of COVID-19.Comment: 32 pages, 4 figure

Developing and evaluating complex interventions: the new Medical Research Council guidance

<p><i>Evaluating complex interventions is complicated. The Medical Research Council's evaluation framework (2000) brought welcome clarity to the task. Now the council has updated its guidance</i></p> <p>Complex interventions are widely used in the health service, in public health practice, and in areas of social policy that have important health consequences, such as education, transport, and housing. They present various problems for evaluators, in addition to the practical and methodological difficulties that any successful evaluation must overcome. In 2000, the Medical Research Council (MRC) published a framework<sup>1</sup> to help researchers and research funders to recognise and adopt appropriate methods. The framework has been highly influential, and the accompanying BMJ paper is widely cited.<sup>2</sup> However, much valuable experience has since accumulated of both conventional and more innovative methods. This has now been incorporated in comprehensively revised and updated guidance recently released by the MRC (<a href="www.mrc.ac.uk/complexinterventionsguidance">www.mrc.ac.uk/complexinterventionsguidance</a>). In this article we summarise the issues that prompted the revision and the key messages of the new guidance. </p&gt

The perturbations ϕ2,1\phi_{2,1} and ϕ1,5\phi_{1,5} of the minimal models M(p,p′)M(p,p') and the trinomial analogue of Bailey's lemma

We derive the fermionic polynomial generalizations of the characters of the integrable perturbations $\phi_{2,1}$ and $\phi_{1,5}$ of the general minimal $M(p,p')$ conformal field theory by use of the recently discovered trinomial analogue of Bailey's lemma. For $\phi_{2,1}$ perturbations results are given for all models with $2p>p'$ and for $\phi_{1,5}$ perturbations results for all models with ${p'\over 3}<p< {p'\over 2}$ are obtained. For the $\phi_{2,1}$ perturbation of the unitary case $M(p,p+1)$ we use the incidence matrix obtained from these character polynomials to conjecture a set of TBA equations. We also find that for $\phi_{1,5}$ with $2<p'/p < 5/2$ and for $\phi_{2,1}$ satisfying $3p<2p'$ there are usually several different fermionic polynomials which lead to the identical bosonic polynomial. We interpret this to mean that in these cases the specification of the perturbing field is not sufficient to define the theory and that an independent statement of the choice of the proper vacuum must be made.Comment: 34 pages, 15 figures, harvmac. References added and the TBA conjecture refine