Having the cake and eating it too: efficient penalty clauses in Common and Civil contract law

In this paper we examine one of the areas where there is a marked difference between Civil and Common contract law, that of the enforcement of liquidated damages and more particularly of penalty clauses. Common law judges are quite reluctant to enforce liquidated damages, especially if they believe that they include penalty clauses which are not enforceable. On the contrary, in almost all European contract laws liquidated damages are readily enforced, as are penalty clauses when they are not manifestly excessive. Although most law and economics scholars have criticized Common law courts for the non-enforcement of penalty clauses, there is a sizable minority of scholars who have defended the Common law “non-enforcement” policy on the ground that penalty clauses are inefficient because they hinder efficient breach. However, and despite the merits of the arguments advanced by advocates of the non-enforcement of penalty clauses, we believe that Common law’s rejection of penalty clauses is inefficient. We further show that the Civil law solution to the problem is not only comparatively more efficient, but that it can also appease the worries of those scholars who are afraid that efficient breaches will be deterred. The solution that Civil law systems give to the problem manages to enforce the parties’ wishes and to avoid deterring efficient breaches. However, we point out that in order for the Civil law systems to take advantage of this superiority, the interpretation of their Civil Codes should be guided by economic analysis and the respect to the wishes of the contracting parties.     

Understanding Recreation and Sport as a Rehabilitative Tool Within Juvenile Justice Programs

This article discusses relevant literature on the potential benefits of sport, recreation, and leisure, and how these benefits relate to rehabilitation of juveniles. Many professionals involved in juvenile rehabilitation believe sport and recreation are beneficial adjuncts to treatment programming; however, it can be difficult to structure sport and recreation in ways that directly correspond to treatment goals. The purpose of this article is to provide insights for professionals working with juveniles on how sport and recreation programming can be an effective means of helping to achieve rehabilitation goals. Attention is given to approaches, particularly the Teaching Games for Understanding model (Bunker & Thorpe, 1982), which can be used to effectively link recreation and sport to the rehabilitation process.     

Prison mental health services: results of a national survey of standards, resources, administrative structure, and litigation

The formation of adequate mental health systems within prisons has accelerated as a result of successful class action lawsuits. Our recent national survey questioned all state correctional departments about the existence of standards in each system, compliance with such standards, prevalence of class action lawsuits involving the issue of providing adequate mental health services for inmates, issues related to consent decrees, available mental health resources within the correctional system, and the administrative structure of the mental health system. Our purpose was to identify those factors correlated with certified class action lawsuits involving issues related to mental health services. Twenty-one states were involved in such litigation. Only the presence of psychiatric hospitals operated by the department of corrections correlated with the presence of certified class action lawsuits involving mental health services. Prison systems larger than 15,000 inmates were at higher risk for such litigation. Smaller systems having psychiatric hospitals run by the state mental health agency appeared to be at less risk for such litigation.