The Myth of Optimal Expectation Damages

40 Pages Posted: 6 May 2020 Last revised: 1 Jun 2020

See all articles by Theresa Arnold

Theresa Arnold

McGuireWoods LLP

Amanda Gray Dixon

Duke University, School of Law, Students

Madison Whalen

Duke University, School of Law, Students

G. Mitu Gulati

Duke University School of Law

Date Written: April 10, 2020

Abstract

A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer, drawing from the theory of efficient breach, is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on what types of damages provisions parties contract for themselves in international debt contracts. Specifically. we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the manner an actual liquidated provision might be. We find little evidence of a preference for the expectations damages measure.

Keywords: contract, expectation damages, make-whole premium, efficient breach

JEL Classification: K12, K22

Suggested Citation

Arnold, Theresa and Dixon, Amanda and Whalen, Madison and Gulati, Gaurang Mitu, The Myth of Optimal Expectation Damages (April 10, 2020). Marquette Law Review, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2020-24, Available at SSRN: https://ssrn.com/abstract=3572640

Theresa Arnold (Contact Author)

McGuireWoods LLP

434 Fayetteville Street
Suite 2600
Raleigh, NC 27601
United States

Amanda Dixon

Duke University, School of Law, Students ( email )

Durham, NC
United States

Madison Whalen

Duke University, School of Law, Students ( email )

Durham, NC
United States

Gaurang Mitu Gulati

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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