William S. Dodge

The Case for Punitive Damages in Contracts

The majority of American jurisdictions do not allow punitive damages for breach of contract unless the breach constitutes an independent tort. Increasingly, courts and commentators have relied on the theory of “efficient breach” to explain the rule against punitive damages in contracts. In this Article, Professor Dodge argues that economic efficiency supports a different rule — one allowing punitive damages for any willful breach of contract.Willful breaches fall into two categories: those that are “opportunistic” and those that are “efficient.” An “opportunistic” breach does not increase the size of the economic pie; the breaching party gains simply by capturing a larger share of the pie at the expense of the nonbreaching party. An “efficient” breach, by contrast, increases the size of the pie, allowing the breaching party to compensate the nonbreaching party and still come out ahead. Deterring opportunistic breaches with the threat of punitive damages is efficient because such breaches by definition do not increase societal wealth. Thus, punitive damages should be routinely available in cases of opportunistic breach, such as pretextual termination, stonewalling, and bad faith refusal to pay a debt.Efficiency also supports extending liability for punitive damages to those breaches that are, in theory, “efficient.” The threat of punitive damages will not require inefficient performance because the potentially breaching party may negotiate with the other party for a release. Relying on Calabresi and Melamed’s distinction between “property rules” and “liability rules,” Professor Dodge shows that requiring the potentially breaching party to negotiate for a release is more efficient than allowing her to breach and pay damages because the transaction costs of negotiation, while not negligible, are generally lower than the assessment costs of litigation. He also explains why other forms of “property rule” protection, like specific performance and penalty clauses, are insufficient to ensure that negotiation occurs before breach.

Understanding the Presumption Against Extraterritoriality

What does the presumption against extraterritoriality mean? There are at least three possibilities. First the presumption might mean that acts of Congress should apply only to conduct that occurs within the United States, unless a contrary intent appears, regardless of whether that conduct causes effects in the United States. This is the traditional view of the presumption that Justice Holmes articulated in American Banana. Second, the presumption might mean that acts of Congress apply only to conduct that causes effects within the United States, unless a contrary intent appears, regardless of where that conduct occurs. Judge Bork adopted this view in Zoelsch v. Arthur Anderson & Co. Third, the presumption might mean that acts of Congress apply to conduct occurring within or having an effect within the United States, unless a contrary intent appears. This is how Chief Judge Mikva read the presumption in Environmental Defense Fund v. Massey. I argue that only the notion that Congress generally legislates with domestic concerns in mind is a legitimate basis for the presumption against extraterritoriality. This leads me to agree with Judge Bork that under the presumption, acts of Congress should presumptively apply only to conduct that causes effects within the United States regardless of where that conduct occurs. I further argue that, if this is the basis for the presumption against extraterritoriality, then the presumption should not be considered a clear statement rule and should be deemed rebutted when there is good reason to think that Congress was focused on something other than domestic conditions.

International law in the U.S. Supreme Court : continuity and change

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

Foreign Official Immunity in the International Law Commission: The Meanings of 'Official Capacity'

Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.

International Law in the U.S. Supreme Court: INTERNATIONAL LAW AND STATUTORY INTERPRETATION AFTER 2000

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: Acknowledgments

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: CUSTOMARY INTERNATIONAL LAW AFTER 2000

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: Contents

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: Continuity and Change over Two Centuries

From its earliest decisions in the 1790s, the U.S. Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court’s use of international law from the Court’s inception to the present day. Addressing treaties, the direct application of customary international law, and the use of international law as an interpretive tool, this book examines all the cases or lines of cases in which international law has played a material role, showing how the Court’s treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court’s international law doctrine through the end of the nineteenth century, the past century has been a time of tremendous doctrinal change. Few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.