is the title of a new paper by Alan Schwartz and Robert E. Scott (Columbia) posted on SSRN.  Here's the paper and here's the abstract:

Market damages - the difference between the market price for goods or services at the time of breach and the contract price - are the best default rule whenever parties trade in thick markets: they induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors offer a set of services some of which are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. In these cases, courts compare the cost to the promisor of providing the service that was not supplied to the increase in the market value of the promisee/buyer's property had the promisor/seller performed. When the cost of completion is large relative to the "market delta"- the increase in market value - courts concerned to avoid "economic waste" limit the buyer to the market value increase. This concern is misguided. Since the buyer commonly prepays for the service at the ex ante market price, a cost of completion award actually has a restitution element - the prepaid price - and an expectation interest element - the market damages. The failure to recognize the joint nature of cost of completion damages causes courts to deny these damages more frequently than they should. In this paper, we argue that the unappreciated virtues of market based damages justify removing the courts' discretion to deny them no matter how high they appear to be. The rule that denies buyers market damages induces excessive entry into these service markets. Moreover, buyers are under-compensated when they prepay and cannot recover the price paid for the breached services but instead are restricted to the market delta. As a result, too few buyers contract ex ante for the relevant service and surplus maximizing contracts are forgone. Finally, sellers often can take actions in the interim between making the contract and the time for performance of the service that would reduce the service cost to manageable proportions. Sellers are less likely to take these precautions if they are required to pay buyers only the market delta rather than the full performance cost that their actions could have avoided.

 Another fascinating paper from Professor Hathaway, "The Continuing Influence of the New Haven School."  Originally published in 32(2) Yale Journal of International Law in 2007.  Here is the abstract:

This Commentary examines the deep and abiding influence of what has been called the New Haven School of international law. It considers the connection between the past and the present the ideas first formulated by Myres S. McDougal and Harold D. Lasswell more than a half-century ago, and those, both near and far, whose work they have influenced.

Professor Hathaway has posted a paper originally published in the journal International Organization in 1998 (v. 52, no. 3) on SSRN, entitled "Positive Feedback: The Impact of Trade Liberalization on Industry Demands for Protection".

Here is the abstract:

This article proposes a theory of dynamic industry preferences and strategies to explain variation in industries' demand for trade protection over time. This theory shows how the characteristics of industries affect their demand for trade policy and how, in turn, trade policy transforms industry characteristics. An important implication of this theory is that trade liberalization tends to reduce, rather than increase, industry demand for protection over the long term. The article begins by developing a static model of industry decision making that illustrates how producers faced with a reduction in trade barriers weigh the costs and benefits of political action and economic adjustment. It then explains how the strategic choices of an industry are determined by key industry characteristics that evolve over time in response to changes in trade policy and market conditions. In particular, it demonstrates that reductions in trade barriers may have a positive feedback effect that dampens rather than amplifies domestic protectionist sentiment. To test this model, the article examines the dramatic postwar transformation of three industries that have historically demanded and received extensive import protection: the footwear, textile, and apparel industries. The article concludes with an assessment of the model and a discussion of its possible implications for our understanding of the politics of trade policy.

Nice review in the Times Literary Supplement by John Habgood, the former Archbishop of York:

A book which begins with the sentence “Evil makes us Human” must surely compel attention. This is no ordinary account of what is usually meant by the problem of evil, where the main emphasis is on justifying the ways of God to man. Instead, Paul W. Kahn’s aim is to explore the nature of evil itself. He interprets it, not just as doing or experiencing bad things, but as “a way of being in the world”. Evil, he claims, is about making ourselves the source of our own meaning, a meaning inevitably negated by death, the certainty of which gives urgency and depth to the way life is lived. It is this consciousness of our mortality, and the refusal to accept its implications, which can lead to the worship of false gods. Ascribing ultimate value to what is essentially nothing at all results in what he calls “a pathology of the will”. Personal evil is essentially about wilfulness rather than reason, nor can it be subsumed within our rational understanding. Evil in this sense, as part of our humanity, is not a fashionable concept, but we have good reasons to recognize it, not least in ourselves.

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Three recent law review articles by members of the faculty: 

Ian Ayres and Gideon Parchomovsky,  Tradable Patent Rights, 60 Stan. L. Rev. 863 (2007)

Daniel Markovits, Luck Egalitarianism and Political Solidarity, 9 Theoretical Inquiries L. 271 (2008)

Judith Resnik, No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 J.L. & Pol'y 6 (2007)

 The theme of this year's Law Day, "The Rule of Law: Foundation for Communities of Opportunity and Equity," recognizes the fundamental role that the rule of law plays in preserving liberty in our Nation and in all free societies.  View President Bush's proclamation here.

By LYNNLEY BROWNING, New York Times.
Published: May 1, 2008.