Remedial Clauses: The Overprivatization of Private Law

37 Pages Posted: 11 Sep 2015 Last revised: 16 Feb 2016

See all articles by Seana Shiffrin

Seana Shiffrin

University of California, Los Angeles (UCLA) - School of Law

Date Written: September 9, 2015

Abstract

This article considers and criticizes the growing trend to enforce liquidated damages agreements on the grounds that their reflexive enforcement contravenes important public values. Although many have claimed the traditional presumption against such clauses is mysterious or unsupported, I contend that the traditional presumption against such clauses enforces important values central to the rule of law, including that private parties should not decide their own cases and that the public has an special interest in deciding what remedies are appropriate for breaches of legal duty. In delineating the theoretical foundations for treating stipulated damages differently than performance terms, I offer a distinctive, liberal, democratic perspective on contract and contractual breach that answers the ubiquitous arguments offered by libertarians and law and economics scholars that freedom of contract requires the contrary.

Keywords: Liquidated damages, stipulated damages, due process, remedies, contracts, privatization, alternate performance clauses

Suggested Citation

Shiffrin, Seana, Remedial Clauses: The Overprivatization of Private Law (September 9, 2015). 67 Hastings Law Journal 407 (2016); UCLA School of Law Research Paper No. 15-29. Available at SSRN: https://ssrn.com/abstract=2658452

Seana Shiffrin (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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