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.     

Reassessing the Effect of Economic Growth on Well-being in Less-developed Countries, 1980–2003

Development debates have been greatly influenced by the growth consensus: the conventional wisdom that economic growth should be the primary priority for less-developed countries (LDCs) because it most effectively improves the well-being of the world’s poor. We compare the impact of growth to other independent variables in an unbalanced panel analysis of up to 109 LDCs and 580 observations across six time points (1980, 1985, 1990, 1995, 2000, and 2003). Our dependent variables include caloric consumption, infant survival probability, one-to-five year survival probability, female life expectancy, and male life expectancy. First, we find that gross domestic product (GDP) has significant positive effects on caloric consumption, female life expectancy, and male life expectancy. Second, GDP does not have robust effects on infant and one-to-five survival probabilities. Third, fertility, urbanization, and secondary school enrollment have larger effects than GDP in the majority of models. The more powerful effects of fertility, urbanization, and secondary schooling cannot simply be attributed to an indirect effect of GDP. Fourth, we find that dependency variables do not have robust significant effects. Fifth, over time, GDP has become much less effective at improving caloric consumption and infant and one-to-five survival. We infer that there are serious limitations to concentrating exclusively on economic growth to improve well-being in LDCs.     

Spatial variation of refractive index in a pane of float glass.

In the statistical interpretation of forensic glass evidence it is standard practice to make the assumption of homogeneity of the refractive index (RI) of the source glass, or of localized homogeneity. However, the work of Locke and Hayes showed that, for toughened windscreen glass, this assumption might not be true. This work is well cited, but there appears to have been little follow-on published research. Furthermore, the toughening process is something known to affect the refractive index, and is a process that float glass does not undergo. Float glass is a major component of casework in New Zealand and for that reason it would be interesting to know whether the findings of Locke and Hayes apply when dealing with float glass. In this paper we describe an experiment similar to that of Locke and Hayes, systematically examining the variation of RI in a pane of float window glass. It was found that, although there were no systematic differences in refractive index, there were observable differences across the pane.     

Managing the Environment: Rhetoric, Policy and Reality

This article argues that, despite environmental issues climbing higher on the political agenda and considerable recent policy activity, rhetoric is not matched by reality in our efforts to manage the Australian environment. We integrate the imperatives emerging from the policy and sustainability literatures and from actual policy, with detailed work on wildlife conservation in Victoria's Central Highlands. Our analysis demonstrates that, rather than undertaking the more intensive policy and 'adaptive management' that is needed, governments are often doing less and may actually be 'taking their hands of their wheel'. Some public policy and administration implications of the emerging policy field of sustainability are illustrated.