The Goals of Contract Remedies

This article offers a general account of the rules that regulate exit and loyalty in contract disputes to make some fundamental points about the goals of contract remedies. The dominant goal of these rules, like all of contract remedies, is vindicating contracting rights. When contract rights give way it is almost always for one of two reasons. Rights sometimes give way to advance the goal of efficient performance. This goal is familiarly expressed by the mitigation principle and, in American contract law, by the theory of efficient breach. Rights also give way to advance the goal of remedial simplicity. In a nutshell, the rules that regulate exit and loyalty in contract disputes, like all of contract remedies, vindicate contract rights at the least cost and with the least fuss. This should be utterly unsurprising. More interesting are the trade offs made when these goals conflict. A contract right’s certainty is of crucial significance. I define a contract right as certain when the right to a performance from another is indisputable. There is an important distinction between the right to a performance and the worth of that performance to the right-holder. Often the right a performance is certain while its worth to the right-holder is uncertain. When a contract right is certain or indisputable contract law permits a right-holder to take a self-help measure, such as exiting from a contract, to avoid suffering an uncompensated loss even though the measure inflicts a disproportionate loss on the defaulter. In other words, the goal of vindicating rights trumps the goal of efficient performance when it comes to self-help remedies that do not unduly tax courts. More bluntly, the theory of efficient breach is bunk as a descriptive matter when it comes to the rules that regulate self-help responses to an indisputable default. The goal of efficient performance drives other aspects of contract remedies. Trivially, the mitigation doctrine and other rules compel a party to vindicate a right in the cheapest way possible. More interestingly, the goal of efficient performance explains the law’s response to loyalty in the face of contract uncertainty. By this I mean when a party performs a disputed obligation or accepts performance of disputed adequacy. I show that performance of a disputed obligation (or acceptance of performance of disputed adequacy) does not preclude the later assertion of a claim of a lesser obligation (or of a greater right), but only if performance (or acceptance of performance) avoids a loss. This point, which I believe is novel but seems obvious once you think about it, systematizes what now is a very tangled thicket of law. There is scant authority on the related question whether contract uncertainty warrants withholding or refusing performance. I think this is because courts have not had to confront the question directly. It tended not to arise under traditional common law rules, which made contract rights and obligations certain or unenforceable. This is changing. I highlight a fascinating decision by Judge Posner that confronts the question and answers that contract uncertainty does warrant exit, indeed his reasoning suggests uncertainty may require exit. Judge Posner is on to something important. However, putting the issue in a broader frame shows that the power to exit from an uncertain contract is cosseted by other rules that discourage exit when it would result in a consequential loss

Performative Social Science

Performative Social Science is positioned within the current era of crosspollination from discipline to discipline. Practitioners from the Arts and Humanities look to the Social Sciences for fresh frameworks, whist Social Science practitioners explore the Arts for potential new tools for enquiry and dissemination. Performative Social Science is defined and the similarities and differences between PSS and Arts-based Research (ABR) are delineated. The history of PSS is then outlined and its development, particularly at the Centre for Qualitative Research at Bournemouth University in the United Kingdom, is reviewed. Relational Aesthetics is then described in depth as the theoretical basis and grounding of Performative Social Science. Relational Aesthetics (Bourriaud, 2002) offers a theoretical ground for the complexities of connections across seemingly disparate disciplines such as the Arts and Social Sciences and for further exploration of the synergies between both disciplines as well as communities beyond the academy. An example of a large, three-year nationally funded project, culminating with the production of an award-winning short biopic, RUFUS STONE, is outlined as a prime example of a multi-method approach to social science research which includes tools from the arts in its progress and outputs. The entry concludes with goals and aspirations for Performative Social Science in the future

The formation of professional identity in medical students: considerations for educators

<b>Context</b> Medical education is about more than acquiring an appropriate level of knowledge and developing relevant skills. To practice medicine students need to develop a professional identity – ways of being and relating in professional contexts.<p></p> <b>Objectives</b> This article conceptualises the processes underlying the formation and maintenance of medical students’ professional identity drawing on concepts from social psychology.<p></p> <b>Implications</b> A multi-dimensional model of identity and identity formation, along with the concepts of identity capital and multiple identities, are presented. The implications for educators are discussed.<p></p> <b>Conclusions</b> Identity formation is mainly social and relational in nature. Educators, and the wider medical society, need to utilise and maximise the opportunities that exist in the various relational settings students experience. Education in its broadest sense is about the transformation of the self into new ways of thinking and relating. Helping students form, and successfully integrate their professional selves into their multiple identities, is a fundamental of medical education

Territoriality and the Perils of Formalism

Recently in this journal Donald Regan published a pair of essays on CTS Corp. v. Dynamics Corp. of America. Much of the first essay elaborates his theory that what the Supreme Court should be doing and what it is doing under the dormant commerce clause is checking state laws adopted with a substantial protectionist purpose. The rest of the first essay and all of the second essay develop a different check on state lawmaking power in interstate affairs: a rule that states may not regulate conduct beyond their borders. He calls this the extraterritoriality principle. Elsewhere I have questioned whether Regan\u27s theory of protectionism is sufficient to explain what the Court is and should be doing under the dormant commerce clause. Here I want to question the extraterritoriality principle. My argument is that it works poorly, if it works at all, as a check on the regulatory authority of states. I also make the broader point that Regan\u27s two proposals are overly formal. They blind us to what should be our real concerns when reviewing state laws that affect out-of-state interests and may generate an intolerable number of bad results. At the end I briefly sketch an alternative approach to these problems that is more open-ended

Paradox as invitation to act in problematic change situations

It has been argued that organizational life typically contains paradoxical situations such as efforts to manage change which nonetheless seem to reinforce inertia. Four logical options for coping with paradox have been explicated, three of which seek resolution and one of which ‘keeps the paradox open’. The purpose of this article is to explore the potential for managerial action where the paradox is held open through the use of theory on ‘serious playfulness’. Our argument is that paradoxes, as intrinsic features in organizational life, cannot always be resolved through cognitive processes. What may be possible, however, is that such paradoxes are transformed, or ‘moved on’ through action and as a result the overall change effort need not be stalled by the existence of embedded paradoxes

Teachers as leaders in a knowledge society: encouraging signs of a new professionalism

[Abstract]: Challenges confronting schools worldwide are greater than ever,and, likewise, many teachers possess capabilities, talents, and formal credentials more sophisticated than ever. However, the responsibility and authority accorded to teachers have not grown significantly, nor has the image of teaching as a profession advanced significantly. The question becomes, what are the implications for the image and status of the teaching profession as the concept of knowledge society takes a firm hold in the industrialized world? This article addresses the philosophical underpinnings of teacher leadership manifested in case studies where schools sought to achieve the generation of new knowledge as part of a process of whole-school revitalization. Specifically, this article reports on Australian research that has illuminated the work of teacher leaders engaged in the IDEAS project, a joint school revitalization initiative of the University of Southern Queensland and the Queensland Department of Education and the Arts