Tamar Frankel | Boston University (original) (raw)
Papers by Tamar Frankel
Research Handbook on the Economics of Corporate Law
Finance & Bien Commun, 2008
SSRN Electronic Journal, 2018
annual.html (last visited Feb. 2, 2017).
This Essay represents a version of a chapter in my forth coming book "Trust and Honesty, Ame... more This Essay represents a version of a chapter in my forth coming book "Trust and Honesty, America's Business Culture at a Crossroad." In designing legal protection from breach of trust and deception lawyers and judges have not only used this branch of economics as an information source but also adopted its objectives in substitution of the law's objectives. The first issue in this Essay relates to the ways in which legal economics simplifies the world. This is the reasons for its attraction and rejection. The second issue in this Essay relates to the autonomy of the law. It raises a concern that the soul and mind of the law are lost in the jargon and approaches of this special form of "imperial economics." It suggests that the place of economics in law is the same as any other discipline. Economic objectives have a modest place in law just as the objectives of other disciplines have not.
Open any newspaper and you are likely to find stories of financial scandals, frauds and questiona... more Open any newspaper and you are likely to find stories of financial scandals, frauds and questionable ethical behavior in the business and professional worlds. The latest and lasting scandals in corporate America touched the highest level of corporate management and professional firms raising the question of whether business leaders are being taught the value of trust and honesty. Yet the very fabric of our economic prosperity and social stability are woven with trust and honesty. Distrust and dishonesty are not new. However, we appear to be at a tipping point where we run the risk of a culture that accepts and justifies corporate abuse of trust and dishonesty. The consequences include higher costs, slower growth and less freedom. The goal of these course materials is to help students and seasoned practitioners recognize the ease with which trust and honesty can be lost, understand the impact of the business environment and social culture on trust and honesty, and explore measures to...
The Ponzi Scheme Puzzle, 2012
The American Journal of Comparative Law, 1988
Cardozo Journal of International and Comparative Law, 2004
BUL Rev., 1993
To summarize my arguments: (i) efficient markets require both contract and property rules, (ii) s... more To summarize my arguments: (i) efficient markets require both contract and property rules, (ii) some property rules are designed to satisfy the essen-tial conditions for efficient markets, (iii) contract and property rules may conflict, and, (iv) when they conflict, property rules ...
Intituto de Investigaciones Hábitat, Ciudad y Territorio, 2009
University of Bologna Law Review, 2021
Social Science Research Network, 2021
Restitution
In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and serv... more In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.<br><br>Please see the complete abstract in the article.
In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and serv... more In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. ... In theory, if a supplier agrees to the low price because he has no choice, and the contractor drove a hard bargain, we agree that the subcontractor should be awarded the contract price rather than the higher market price. ... Whether one classifies cases like Boomer v. Muir as restitution, as reliance, or as expectation, the result should be the same: In cases of ostensibly-but-not-truly-losing contracts where the supplier partially performs, a recovery should be appropriately keyed to what the supplier has provided-rather than to what the defendant has received or the contract states as its price. ... Our departure point, as our starting point, is the issue raised in the Muir case: Should a supplier of goods and services at below-market price be awarded, upon breach by the other party, restitutionary relief-actual cost or market price far exceeding the contract price? No, says Professor Kull. ... TEXT: I. INTRODUCTION: NATURE OF THE PROBLEM In Boomer v. Muir, n1 a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them. n2 In many states, a supplier in the subcontractor's position has among her options the choice of "rescission and restitution." n3 That means the supplier may rescind the contract and seek, under the label of "restitution", payment set at market price (or at her cost) n4 for all the nonreturnable goods and services provided over the course of the project. Under the majority rule, it does not matter whether the market price (or cost) is above the contract price n5 or even above the value of what the defendant has received; n6 if after the other party's material breach the partially-Page 2 67 S. Cal. L. Rev. 1519 performing supplier chooses to rescind, the court will award her the price (or cost) of what she has supplied. n7 This was in fact the rule applied in the Muir case.
Research Handbook on the Economics of Corporate Law
Finance & Bien Commun, 2008
SSRN Electronic Journal, 2018
annual.html (last visited Feb. 2, 2017).
This Essay represents a version of a chapter in my forth coming book "Trust and Honesty, Ame... more This Essay represents a version of a chapter in my forth coming book "Trust and Honesty, America's Business Culture at a Crossroad." In designing legal protection from breach of trust and deception lawyers and judges have not only used this branch of economics as an information source but also adopted its objectives in substitution of the law's objectives. The first issue in this Essay relates to the ways in which legal economics simplifies the world. This is the reasons for its attraction and rejection. The second issue in this Essay relates to the autonomy of the law. It raises a concern that the soul and mind of the law are lost in the jargon and approaches of this special form of "imperial economics." It suggests that the place of economics in law is the same as any other discipline. Economic objectives have a modest place in law just as the objectives of other disciplines have not.
Open any newspaper and you are likely to find stories of financial scandals, frauds and questiona... more Open any newspaper and you are likely to find stories of financial scandals, frauds and questionable ethical behavior in the business and professional worlds. The latest and lasting scandals in corporate America touched the highest level of corporate management and professional firms raising the question of whether business leaders are being taught the value of trust and honesty. Yet the very fabric of our economic prosperity and social stability are woven with trust and honesty. Distrust and dishonesty are not new. However, we appear to be at a tipping point where we run the risk of a culture that accepts and justifies corporate abuse of trust and dishonesty. The consequences include higher costs, slower growth and less freedom. The goal of these course materials is to help students and seasoned practitioners recognize the ease with which trust and honesty can be lost, understand the impact of the business environment and social culture on trust and honesty, and explore measures to...
The Ponzi Scheme Puzzle, 2012
The American Journal of Comparative Law, 1988
Cardozo Journal of International and Comparative Law, 2004
BUL Rev., 1993
To summarize my arguments: (i) efficient markets require both contract and property rules, (ii) s... more To summarize my arguments: (i) efficient markets require both contract and property rules, (ii) some property rules are designed to satisfy the essen-tial conditions for efficient markets, (iii) contract and property rules may conflict, and, (iv) when they conflict, property rules ...
Intituto de Investigaciones Hábitat, Ciudad y Territorio, 2009
University of Bologna Law Review, 2021
Social Science Research Network, 2021
Restitution
In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and serv... more In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.<br><br>Please see the complete abstract in the article.
In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and serv... more In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. ... In theory, if a supplier agrees to the low price because he has no choice, and the contractor drove a hard bargain, we agree that the subcontractor should be awarded the contract price rather than the higher market price. ... Whether one classifies cases like Boomer v. Muir as restitution, as reliance, or as expectation, the result should be the same: In cases of ostensibly-but-not-truly-losing contracts where the supplier partially performs, a recovery should be appropriately keyed to what the supplier has provided-rather than to what the defendant has received or the contract states as its price. ... Our departure point, as our starting point, is the issue raised in the Muir case: Should a supplier of goods and services at below-market price be awarded, upon breach by the other party, restitutionary relief-actual cost or market price far exceeding the contract price? No, says Professor Kull. ... TEXT: I. INTRODUCTION: NATURE OF THE PROBLEM In Boomer v. Muir, n1 a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them. n2 In many states, a supplier in the subcontractor's position has among her options the choice of "rescission and restitution." n3 That means the supplier may rescind the contract and seek, under the label of "restitution", payment set at market price (or at her cost) n4 for all the nonreturnable goods and services provided over the course of the project. Under the majority rule, it does not matter whether the market price (or cost) is above the contract price n5 or even above the value of what the defendant has received; n6 if after the other party's material breach the partially-Page 2 67 S. Cal. L. Rev. 1519 performing supplier chooses to rescind, the court will award her the price (or cost) of what she has supplied. n7 This was in fact the rule applied in the Muir case.