Part III.A, Matching, Search Costs, and Market Competition

Modest use of imperfect smart readers can improve individual matching and generate market-wide pressure for better contract terms

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 114–118, that greater term transparency has both micro and macro effects. Individually, consumers can find contracts better matched to their preferences and reduce search costs; collectively, even a minority that reads simplified terms or checks scores may exert enough demand pressure to improve standardized terms for everyone. This is significant because smart readers can revive a modest informed-minority theory without requiring most consumers to read contracts in full. It connects to product-attribute competition, shrouded terms, privacy markets, market entry, consumer activism, watchdog journalism, regulatory supervision, reputational pressure, and the spotlight effect on contract drafters.

The claim explains how limited adoption can produce positive spillovers, including in imperfect or concentrated markets where informed consumers, entrants, watchdogs, and regulators can change firm incentives.

informed minority
term competition
search costs
consumer matching
market entry
consumer activism
positive spillovers

The dynamics depend on consumers caring about terms and on some mechanism for demand, entry, advocacy, or regulation; unequal access and firms’ ability to identify informed users can undermine the spillover.

The section connects transparency to matching and welfare, explains the informed-minority mechanism, works through privacy-policy and search-engine examples, and adds watchdog, agency, reputational, and moral channels of pressure.


Yonathan A. Arbel & Shmuel I. Becher, Contracts in the Age of Smart Readers, 90 Geo. Wash. L. Rev. 83 (2022)

Part III.B, Errors and Adversarial Attacks

The most serious smart-reader risks arise from correlated error and deliberate adversarial manipulation, not simply from isolated mistakes

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 118–124, that error must be evaluated comparatively and by type. Random errors may cancel in large markets, and an inexpensive, consistent tool can help even when it underperforms a lawyer because the realistic alternative is often no reading; correlated errors can systematically distort particular clauses; and adversarial examples let firms subtly alter text or formatting so a machine produces a seller-favorable interpretation invisible to a human reader. This is significant because the black-box reader creates a new strategic drafting surface on which apparent contract language and machine-perceived language can diverge. It connects to machine-learning security, correlated bias, platform contract scores, adversarial examples, conspicuousness doctrine, ALL-CAPS disclosures, strategic boilerplate, and the difference between replacing nonreading and replacing legal counsel.

The taxonomy shows why aggregate benefits can coexist with concentrated harms and why maliciously induced errors require a different legal response from ordinary model imperfection.

adversarial machine learning
correlated error
black-box systems
conspicuous disclosure
strategic drafting
comparative accuracy

The authors expect substantial near-term error and acknowledge that their illustrations are cherry-picked; gradual adoption may bound harm, but sophisticated attacks can transfer across models and be extremely difficult to distinguish from innocent design choices.

The section compares human and machine performance, distinguishes isolated, correlated, and adversarial errors, demonstrates hidden-text and visual attacks, and analogizes machine manipulation to courts’ slow response to ineffective ALL-CAPS drafting.


Low-cost smart readers can scale basic know-your-rights assistance where subsidized human legal services cannot

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 124–126, that smart readers can relieve part of the access-to-justice deficit by providing on-demand explanations of contractual rights. A consumer like Ms. Williams, confronted with an obscure cross-collateral clause, could receive a warning, an explanation, and perhaps a referral to better alternatives on a device she already owns. This is significant because human legal subsidies face severe scaling limits, whereas software can distribute preliminary legal information at low marginal cost to people excluded by price, geography, and repeat-player advantage. It connects to legal deserts, legal aid, know-your-rights tools, smartphone access, repeat-player theory, consumer education, and the use of automation to complement rather than simply replace lawyers.

The relevant comparison for many consumers is not a smart reader versus excellent counsel but a smart reader versus unaided judgment, making imperfect assistance potentially valuable at scale.

access to justice
legal deserts
legal aid
know-your-rights services
repeat players
digital inclusion

Smart readers are unlikely to match lawyers in the short or medium term; smartphone ownership does not eliminate the digital divide; and automated advice can itself contain bias or error.

The authors describe cost, repeat-player, rural, and social barriers; explain why lawyer subsidies do not scale; and revisit the Williams cross-collateral example to illustrate low-cost, on-demand assistance.


Part III.D, Compliance and Overcompliance

Better contractual awareness can reduce accidental breach but can also induce harmful compliance with illegal or unenforceable terms

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 126–127, that clearer awareness, comprehension, and recall can improve compliance by both consumers and sellers, reduce accidental breach, and help consumers invoke promises such as repair or cancellation rights. The same clarity can be harmful when readers assume every written term is valid and morally binding, because form contracts often contain illegal or unenforceable provisions. This is significant because it rejects the simple premise that more reading is always pro-consumer. It connects to unenforceable noncompetes, exculpatory terms, chilling effects, the moral psychology of promise, legal literacy, disclosure policy, and the difference between identifying contractual text and assessing its enforceability.

A smart reader that accurately reports what a document says but fails to distinguish legal validity may strengthen the behavioral force of abusive terms.

contract compliance
overcompliance
unenforceable terms
moral obligation
legal literacy
disclosure effects

The direction of the effect depends on whether the tool can contextualize enforceability and remedies; improved recall is beneficial for valid obligations but potentially harmful for vulnerable clauses.

The section identifies compliance benefits, then draws on studies of noncompetes, exculpatory clauses, and lay beliefs to argue that readable terms can acquire excessive legitimacy and deter valid claims.


Part III.E, Discrimination and Personalization

Smart readers can expose discriminatory contract personalization while also enabling firms to discriminate between users and nonusers

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 127–131, that personalization has opposite distributive possibilities depending on who controls it. A consumer-side reader can flag unusually harsh interest rates, tailor explanations to people excluded by the imagined white, educated, male reasonable consumer, and make intersectional accommodation feasible. But firms may identify likely smart-reader users, give them favorable terms, and finance those benefits through worse terms for less informed or digitally excluded consumers. This is significant because a technology capable of resisting individualized exploitation can itself become a basis for market segmentation and regressive cross-subsidy. It connects to algorithmic redlining, proxy discrimination, reasonable-consumer doctrine, big-data scoring, digital inclusion, disparate treatment, intersectionality, and the informed-minority assumption that firms cannot identify who is informed.

The analysis shows that consumer empowerment does not automatically produce universal spillovers when sellers can separate sophisticated users from everyone else.

algorithmic discrimination
contract personalization
digital divide
reasonable consumer
market segmentation
regressive cross-subsidy
intersectionality

Benchmarking needs an appropriate comparison group, personalized markets make comparators harder to identify, individual alerts cannot solve systemic discrimination, and mimicry is unavailable to consumers facing deeper digital barriers.

The section contrasts seller-side targeting with consumer-side accommodation, explains benchmarking’s protective potential, and develops a separating-equilibrium risk based on firms’ growing ability to score and identify consumers.


Smart readers create a new channel for countering cognitive overload, risk myopia, and price manipulation at the moment of contracting

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 131–133, that smart readers can function as consumer-side nudges against several recurring decision failures. They can reduce cognitive overload through summaries, scores, and accessible formatting; counter optimism and myopia by making warranties, return policies, and future risks salient; and defeat partitioned or psychologically manipulative pricing by calculating and presenting a rounded total transaction price. This is significant because the technology supplies a personalized intervention channel at the point when boilerplate and pricing architecture shape choice. It connects to behavioral law and economics, salience, cognitive overload, smart disclosure, choice architecture, drip pricing, left-digit effects, and field experimentation on consumer debiasing.

Rather than merely transmitting more information, a smart reader can restructure information to counter the way sellers exploit limited attention and predictable bias.

behavioral nudges
cognitive overload
risk salience
partitioned pricing
choice architecture
smart disclosure

The tool cannot address every bias, and whether these interventions actually improve decisions is an empirical question that requires testing by researchers and consumer organizations.

The section identifies three target problems, explains how summaries and formatting reduce overload, how salience can counter optimism and myopia, and how whole-transaction calculations can expose price partitioning.


Part IV.A, The Challenge to Consumer Protection

If smart readers materially solve nonreading, consumer-contract interventions cannot continue to rely on information failure without reexamining their justification

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 133–136, that lack of reading may increasingly become a technological challenge rather than an immutable ethical premise for legal intervention. Because the no-reading problem supports positions across the debate over the Restatement of Consumer Contracts—including relaxed formation, unconscionability review, and skepticism toward merger clauses—effective smart readers could make some rationales dated and redirect policy toward adoption. This is significant because it asks whether consumer law is future-proof when a foundational account of informational asymmetry changes. It connects to meaningful assent, merger clauses, unconscionability, mandatory disclosure, the Restatement of Consumer Contracts, the Schumer Box, warranty regulation, and the distinction between informational, market, and reputational failures.

The argument separates legal protections that depend on unreadability from protections grounded in independent fairness or market concerns, allowing doctrine to evolve without assuming smart readers end consumer vulnerability.

consumer-contract Restatement
meaningful assent
unconscionability
merger clauses
mandatory disclosure
future-proof regulation

Solving reading does not solve bargaining power, market failure, reputational failure, bias, or unfair terms; the authors therefore do not predict the end of consumer protection or endorse immediate deregulation.

The section traces no-reading rationales through the Restatement debate and disclosure mandates, then argues that growing smart-reader sophistication may shift policy toward uptake while leaving other justifications intact.


Courts and agencies can use language models to structure corpus-based interpretation and prioritize suspicious contract terms

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 136–137, that institutions as well as consumers can benefit from smart readers. Courts could operationalize corpus linguistics by using language models to estimate contextual frequencies rather than relying only on introspection or dictionaries, while agencies could scan sector-wide contract sets and flag offensive, suspicious, or unusual terms for human attention. This is significant because it treats automation as a way to allocate scarce judicial and enforcement attention, not only as a retail advice product. It connects to ordinary meaning, corpus linguistics, dictionary use, regulatory triage, supervisory technology, sectoral benchmarking, and human review of algorithmically flagged cases.

Institutional use can make contextual evidence easier to access and conserve enforcement resources even when model outputs are not precise enough to decide cases autonomously.

corpus linguistics
ordinary meaning
judicial interpretation
regulatory technology
enforcement triage
contract surveillance

Usage frequencies do not themselves resolve normative meaning, the authors’ numerical example is hypothetical, and agency flags require human investigation because smart readers remain imperfect.

The authors contrast dictionaries with corpus evidence, illustrate probabilistic usage analysis, and propose agency processing of industry contracts to focus limited resources on irregular terms.


Existing contract doctrines tend to place innocent smart-reader error on consumers, but a better regime would share incentives through machine-readable disclosure of key terms

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 137–140, that ordinary mistake, misrepresentation, misunderstanding, and duty-to-read doctrines offer consumers little recourse when an independent smart reader misstates a contract. Producer liability may improve technology but also raise price and chill entry, while neither buyer nor seller fully controls the risk. They therefore propose adapting conspicuousness, contra proferentem, or the Restatement’s duty to warn so key terms must be disclosed in a smart-reader-friendly form as a condition of enforcement. This is significant because it frames model error as a legal-accident problem requiring incentive-compatible loss allocation rather than automatically blaming the user or developer. It connects to mistake doctrine, misunderstanding, products liability, autonomous-system accidents, conspicuous disclosure, contra proferentem, Restatement section 211, and machine-readable contracting.

A smart-reader-friendly disclosure rule could give sellers control over preventable parsing risk while preserving incentives for consumers and developers and avoiding exclusive liability at either endpoint.

allocation of error costs
mistake doctrine
products liability
conspicuousness
contra proferentem
machine-readable terms
Restatement section 211

The proposal is tentative; seller control over third-party apps is limited, producer liability can suppress beneficial adoption, consumer nonreading complicates cheapest-cost-avoider analysis, and no single party is clearly best positioned to prevent every error.

The section tests standard doctrines against several innocent-error hypotheticals, analyzes producer, buyer, and seller incentives, and proposes enforcement-conditioned disclosure of key terms in reader-friendly form.


Courts should not expand the duty to read merely because smart readers appear cheap and accessible

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 140–141, that courts and legislatures may prematurely treat smart-reader access as a stronger opportunity to understand contracts and correspondingly expand the duty to read. Repeat players may promote that expectation, fluent demonstrations may obscure technological weakness, and policymakers may try to force adoption through doctrine. This is significant because a legal presumption of technological competence can arrive before reliable tools and equal access do, converting a promised aid into a new burden on consumers. It connects to clickwrap and browsewrap, constructive notice, strategic technology mandates, digital inequality, regressive cross-subsidies, and the institutional lag between technical reality and judicial doctrine.

Restraint preserves room for gradual development and empirical learning and prevents uneven access from hardening existing inequalities through stronger enforcement of unread terms.

duty to read
constructive notice
clickwrap
browsewrap
digital divide
premature regulation
consumer inequality

Maintaining the existing rule may modestly reduce incentives to adopt useful readers, but the authors regard that cost as smaller than the danger of doctrine outrunning reliability and access.

The section explains the current duty-to-read rule, identifies repeat-player, judicial-capacity, and strategic-adoption pressures for expansion, and warns that unequal technology access can make a stronger rule regressive.


Part IV.C.3, The Problem of Adversarial Attacks

Because adversarial contract manipulation is hard to detect and prove, legal response will require imperfect combinations of burden shifting, deterrence, and regulatory monitoring

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 141–143, that adversarial attacks resist ordinary enforcement because innocuous-looking choices of spacing, fonts, word order, color, register, or margins can mislead models, while intent is difficult to prove and contract remedies rarely include punitive damages. Statistical evidence that a document misleads a sample of readers might justify shifting the burden to the drafter, and agencies could monitor formatting for suspicious patterns, but both approaches can also penalize innocent drafting for technical model failures. This is significant because neither traditional fraud doctrine nor purely technical detection supplies a comprehensive answer to strategic machine-facing boilerplate. It connects to res ipsa loquitur, burden shifting, optimal penalties for low-detection violations, punitive damages, fraud, CFPB and FTC monitoring, adversarial robustness, and the distribution of false-positive costs.

The proposal identifies complementary institutional tools while preserving the central tradeoff between deterring manipulation and imposing liability on sellers who do not control smart-reader design.

adversarial attacks
burden shifting
punitive damages
fraud
regulatory monitoring
CFPB
FTC
false positives

Every proposed response is incomplete: attacks may be invisible, intent evidence scarce, penalties constrained, statistical error endemic, and agencies’ own smart readers vulnerable to the same manipulations.

The section catalogs possible textual attack surfaces, explains detection and proof obstacles, considers high penalties and fraud, evaluates statistical burden shifting, and recommends ongoing agency and consumer-organization attention.


Law should prepare for discrimination based on smart-reader use before data-driven personalization becomes entrenched

Professors Yonathan A. Arbel and Shmuel I. Becher claim, in “Contracts in the Age of Smart Readers” on pages 143–145, that big-data personalization reverses the old presumption favoring individualized over standardized contracts. If firms offer better terms to smart-reader users and worse terms to nonusers—especially when usage correlates with race or other protected characteristics—the practice can create regressive transfers and eliminate the technology’s positive market spillovers. Unfairness or deception law may reach some instances, but market segmentation doctrine, injury standards, material-omission proof, and benign uses of personalization make a blanket ban undesirable. This is significant because intervention becomes harder after firms collect usage data and build reader status into pricing and contract design. It connects to unfair or deceptive acts and practices, proxy discrimination, algorithmic segmentation, material omissions, freedom of contract, protected classes, precautionary regulation, and path dependence in data markets.

The authors identify a time-sensitive governance problem: early attention may preserve inclusive benefits that later market architecture would make difficult to restore.

UDAP law
proxy discrimination
market segmentation
material omission
freedom of contract
precautionary regulation
data-driven contracts

The legal balance depends on values and future evidence; personalization has legitimate uses, current unfairness and deception theories are contestable, and the authors raise the issue for research rather than prescribe a categorical prohibition.

The final substantive section analyzes discrimination by reader status, tests unfairness and deception theories, rejects a blanket ban, and urges precaution before data collection and tailored treatment become entrenched.


Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, 118 W. Va. L. Rev. 369 (2015)

2015 West Virginia Law Review article PDF

Contract-remedy theory depends on contestable empirical assumptions about how litigants, lawyers, and courts actually choose, trade, and implement specific performance

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 370–374, that the traditional contest between rights-based and economic accounts of contract remedies cannot be resolved at the level of moral principle or formal incentives alone. Both camps rely on beliefs about whether plaintiffs choose specific performance, whether decrees produce performance, whether parties renegotiate, and whether selecting a remedy affects judges or lawyers. His qualitative study asks actors inside specific-performance litigation how those remedial rights are actually used. This is significant because prescriptions about damages and performance can fail if their behavioral premises are false. It connects to law in action, empirical contract theory, specific performance, expectation damages, remedial choice, litigation behavior, and institutional design.

The article turns implicit behavioral premises of remedy theory into observable questions rather than treating doctrine as self-executing.

law in action
empirical contract theory
specific performance
expectation damages
remedial choice
litigation behavior
institutional design

The study is exploratory and qualitative, so it identifies mechanisms and challenges assumptions but does not estimate population-wide frequencies or causal effects.

The abstract and introduction identify the theoretical dispute, enumerate its assumptions, and frame interviews with litigants and lawyers as the article's central contribution.


Specific-performance litigation must be analyzed as a sequence of remedy choice, possible post-judgment trade, and practical execution, with distinct failures at each stage

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 372–374, that a decree's life has three analytically separate stages: plaintiffs choose among remedies, prevailing parties may renegotiate the judgment, and any remaining decree must be implemented. Interview evidence challenges theory at each point: many plaintiffs opt for damages, some seek performance strategically, some decline mutually beneficial renegotiation, and enforcement can be hardest for unique goods. This is significant because calling a legal outcome 'specific performance' collapses a chain of decisions that may never deliver the promised performance or equivalent value. It connects to process tracing, remedies, post-judgment bargaining, judgment enforcement, unique goods, strategic litigation, and legal implementation.

The chronological framework reveals where the formal entitlement can diverge from both contractual performance and compensation.

process tracing
contract remedies
post-judgment bargaining
judgment enforcement
unique goods
strategic litigation
legal implementation

The three-stage synthesis previews interview findings whose prevalence and generality remain limited by the research design and jurisdiction.

The introduction organizes results around choice, renegotiation, and execution and summarizes the principal mechanism identified at each stage.


Rights-based arguments for specific performance commonly assume that a decree yields performance, protects the promisee better than damages, and is used to obtain what was promised

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 375–378, that diverse promise-, consent-, expectation-, and virtue-based theories often converge on a preference for specific performance but share three empirical shortcuts. They use the decree as shorthand for actual performance, presume it protects the promisee at least as well as expectation damages, and assume the entitlement will be used to secure performance rather than other strategic ends. This is significant because a moral argument from the duty to do X does not establish that a court order will cause X, adequately compensate the promisee, or remain confined to vindicating the promise. It connects to promissory morality, corrective justice, deontology, consent theory, expectation theory, compensatory adequacy, and instrumental use of rights.

Separating moral entitlement from remedial consequences identifies the empirical bridge that rights-based theory must defend.

promissory morality
corrective justice
deontology
consent theory
expectation theory
compensatory adequacy
instrumental rights

The theories are heterogeneous, and some expressly acknowledge supervision or enforcement costs; the claim identifies recurring tendencies rather than a universal position.

Part II.A reviews leading rights-based accounts and isolates assumptions about decree-to-performance equivalence, relative compensation, and noninstrumental use.


Economic accounts of specific performance depend on low-cost renegotiation, strong enforcement value, and an underexamined assumption that giving promisees a remedial choice has little strategic effect

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 379–381, that economic theory evaluates remedies by ex ante joint welfare and recognizes competing costs: inefficient compelled performance, hold-up, precautions, administration, damages measurement, and excessive breach. Yet influential arguments expect parties to renegotiate inefficient decrees because contractual transaction costs are low, expect the resulting value to equal or exceed performance value, and largely neglect how a plaintiff's remedial option changes plaintiff–lawyer and plaintiff–court interactions. This is significant because Coasean trade and neutral choice are behavioral predictions, not consequences of welfarism itself. It connects to efficient breach, Coasean bargaining, property rules, hold-up, transaction costs, ex ante welfare, strategic choice, and agency costs.

The article locates falsifiable premises within economic analysis rather than treating efficient renegotiation as automatic.

efficient breach
Coasean bargaining
property rules
hold-up
transaction costs
ex ante welfare
strategic choice
agency costs

Economic models differ and often incorporate enforcement or bargaining frictions; the article targets recurrent assumptions rather than rejecting economic analysis as a whole.

Part II.B reviews costs and benefits of specific performance and then specifies assumptions about post-judgment trade, promisee value, and the overlooked effects of choice.


Israel offers a comparative setting close enough to American contract law for useful inference but with specific performance unambiguously treated as the default and morally preferred remedy

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 381–384, that United States law ordinarily makes expectation damages the default and conditions specific relief on inadequate damages, hardship, supervision, and public-interest constraints. Israeli private law mixes statutory, common-law, and American influences but reverses remedial prominence: aggrieved parties may elect specific performance unless statutory exceptions apply, and courts call it the 'first and foremost' remedy. Enforcement may proceed through contempt, a collection agency, or a receiver. This is significant because a default-specific-performance jurisdiction exposes ordinary rather than exceptional uses of the remedy while retaining meaningful legal comparability. It connects to comparative law, remedial defaults, UCC section 2-716, Restatement doctrine, Israeli contract law, contempt, receivership, and legal transplants.

The comparative design avoids selecting only the unusual American cases in which equitable relief survives doctrinal screening.

comparative law
remedial defaults
UCC 2-716
Restatement of Contracts
Israeli contract law
contempt
receivership
legal transplants

Legal similarity does not eliminate cultural, procedural, institutional, or market differences between Israel and the United States.

Part III contrasts American adequacy doctrine with Israeli statutory priority, describes doctrinal similarity, and identifies the principal enforcement venues.


Maximum-variation interviews can identify mechanisms in experienced law but cannot estimate how frequently those mechanisms occur

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 384–386, that an exploratory qualitative design is appropriate where scholarship lacks parties' internal accounts of legal experience. From randomly ordered database cases, he attempted contact in roughly sixty matters and obtained participation in eighteen: six private parties, eleven lawyers, and one enforcement magistrate, deliberately seeking variation rather than statistical representativeness. Semi-structured interviews reconstructed case facts, motivations, pre- and post-trial experiences, and hypothetical attitudes. This is significant because the method supports existence and mechanism claims while expressly withholding prevalence estimates. It connects to qualitative legal research, maximum-variation sampling, semi-structured interviews, law in action, purposive sampling, response bias, IRB review, and substantive representativeness.

The methodological boundary lets interview evidence challenge universal assumptions without pretending that eighteen cases describe a population distribution.

qualitative legal research
maximum variation
semi-structured interviews
law in action
purposive sampling
response bias
IRB
substantive representativeness

The response rate was about 36 percent, defendants and losing parties were sparse, recollections may be biased, and the sample cannot quantify incidence.

Part IV explains case identification, recruitment, participant composition, maximum variation, the interview protocol, and the distinction between phenomena and distributions.


Many plaintiffs choose expectation damages even when specific performance is legally available and theoretically more valuable

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 386–388, that plaintiffs regularly opt out of Israel's specific-performance default. A supplementary case review found the remedy requested in 102 of 300 analyzed contract cases—roughly one third—and interviewed lawyers also reported advising damages in matters including settlements. The interviews identify three mechanisms: weak enforceability, lawyers' fee incentives, and changing client preferences during slow litigation. This is significant because ready legal availability and predicted bargaining value do not translate into routine demand for the remedy. It connects to revealed remedial preference, default effects, expectation damages, plaintiff choice, litigation selection, civil-law practice, lawyer advice, and enforcement risk.

Observed opting out weakens both moral and economic assumptions that rational or vindicatory promisees will normally demand performance.

remedial preference
default effects
expectation damages
plaintiff choice
litigation selection
civil-law practice
lawyer advice
enforcement risk

The case review excludes settlements and the interview study is not frequency-representative; 'many' is supported, but a population rate is not.

Part V opens with the opt-out finding, describes the 300-case review, adds lawyer reports, and previews enforceability, agency, and temporal-preference explanations.


Weak practical enforceability can make a specific-performance judgment a worse bargaining chip than an expectation-damages award

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 388, that a plaintiff uninterested in actual performance cannot assume a decree will be saleable at a premium. If implementation is difficult, renegotiation may never occur; even if it does, a promisor who expects to evade enforcement will pay little for release. The settlement value can therefore fall below expectation damages. This is significant because the property-rule intuition that specific performance strengthens bargaining power depends on the credibility of the enforcement threat behind the entitlement. It connects to bargaining leverage, credible threats, judgment value, enforcement probability, outside options, property rules, undercompensation, and settlement.

The mechanism explains why a nominally stronger entitlement may be privately inferior before any enforcement attempt begins.

bargaining leverage
credible threats
judgment value
enforcement probability
outside options
property rules
undercompensation
settlement

The section states an implication developed through later interview evidence; it does not estimate the discount that enforcement risk places on decrees.

Part V.A.1 explains the two channels—renegotiation failure and reduced settlement price—through which weak enforcement lowers the ex ante value of suing for performance.


Attorney compensation and collection rules can bias remedial advice toward damages even when specific performance better serves the client

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 388–389, that plaintiff and lawyer may value remedies differently. Under contingency fees, designing and enforcing a decree adds uncompensated work and requires costly valuation of noncash performance; under other fee arrangements, a damages award supplies liquidity and supports a lawyer's lien, while a good or service does not. Attorneys therefore have a systematic private incentive to recommend money damages and may disguise self-interest as legal judgment. This is significant because remedial choice made through counsel need not reveal the promisee's own preferences or welfare. It connects to principal–agent problems, contingency fees, attorney liens, professional responsibility, liquidity, valuation costs, legal advice, and remedial design.

The finding brings the lawyer's payoff into contract-remedy analysis and identifies a channel through which formal client choice can be distorted.

principal-agent problems
contingency fees
attorney liens
professional responsibility
liquidity
valuation costs
legal advice
remedial design

Interview evidence identifies a plausible and reported bias but cannot determine how often advice is self-interested rather than based on legitimate enforcement concerns.

Part V.A.2 ties attorney preferences to uncompensated decree work, valuation difficulty, client liquidity, and lien security, supported by lawyer interviews.


Long litigation makes specific performance expose plaintiffs to changes in taste and deteriorating relationships that damages avoid

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 389–390, that the value of future performance is dynamically uncertain. A buyer of a delayed luxury car may no longer want that model or brand years later, and litigation itself can turn a once-benign contractual relationship into mistrust and animosity. Because a performance decree requires more future interaction than a damages award, those shifts reduce its relative value even when the promised item remains financially valuable. This is significant because remedy choice occurs before plaintiffs know their post-litigation tastes, needs, health, or relationship with the promisor. It connects to changing preferences, litigation delay, relational contracts, lock-in, real options, cy pres performance, temporal welfare, and remedial risk.

The analysis treats specific performance as a risky future entitlement rather than a static equivalent of today's desired performance.

changing preferences
litigation delay
relational contracts
lock-in
real options
approximate performance
temporal welfare
remedial risk

The mechanism is illustrated through interviews and examples rather than longitudinal measurement of preference change across a representative set of cases.

Part V.A.3 uses a luxury-car dispute and reports of litigation-induced animosity to show change in preferences over both the thing promised and the counterparty relationship.


Choosing specific performance can signal good faith and case merit to a court, compelling plaintiffs to seek it even when they prefer money

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 390–391, that a plaintiff's remedy request can operate as evidence. Where contractual fault is contested and judges praise performance's moral superiority, opting for money may suggest that the plaintiff abandoned the bargain, behaves opportunistically, or is merely 'in it for the money.' A plaintiff may therefore request specific performance to signal sincerity and improve the chance of prevailing even if neither side ultimately wants the transaction performed. This is significant because the menu of remedies changes adjudicative behavior and can force costly signaling rather than simply satisfy remedial preference. It connects to signaling theory, good faith, litigation strategy, remedy choice, costly signals, judicial inference, procedural justice, and default effects.

The mechanism shows why adding options can make a claimant worse off and distort observed demand for specific performance.

signaling theory
good faith
litigation strategy
remedy choice
costly signals
judicial inference
procedural justice
default effects

The evidence is based on lawyers' beliefs about judicial inference rather than a study of judges' actual decisions or causal effects of remedy requests.

Part V.B.1 reports counsel's concern that seeking damages communicates insincerity and explains why the signal can rationally influence both courts and plaintiffs.


Part V.B.2, Faster and Cheaper Resolution

Specific-performance claims can reduce adjudication cost and delay by postponing or avoiding judicial quantification of damages

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 391–392, that a performance suit may be procedurally cheaper and faster because it avoids expert-heavy valuation of loss. This advantage can survive an intention to renegotiate later if the parties are better than a court at pricing the entitlement but need the court to allocate fault. Interviewees described separating performance and damages proceedings because the early performance determination's speed outweighed the duplication cost. This is significant because a remedy aimed nominally at delivering a thing may be selected as a procedural device for sequencing adjudication and private valuation. It connects to damages measurement, bifurcation, comparative institutional advantage, litigation cost, delay, fault determination, private ordering, and procedural strategy.

The finding reveals a nonmoral and noncompensatory reason to seek specific relief that may still benefit parties and courts.

damages measurement
bifurcation
institutional competence
litigation cost
delay
fault determination
private ordering
procedural strategy

Specific decrees can themselves be costly to formulate or supervise, and the relative savings depend on case-specific valuation and enforcement costs.

Part V.B.2 explains avoided damages proof, comparative advantages in fault and valuation, and an interview example involving separated claims.


Some plaintiffs seek specific performance in order to sell the resulting entitlement after judgment rather than to compel performance

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 392, that interviews confirm at least some plaintiffs are motivated by the prospect of selling the decree back to the promisor. This instrumental use accords with economic accounts of property-rule bargaining even though earlier nuisance research found post-judgment trade scarce and rights-based accounts justify the remedy through the promised performance itself. This is significant because identical pleadings can express radically different objectives: vindication, actual delivery, litigation economy, signaling, or bargaining leverage. It connects to post-judgment renegotiation, property rules, hold-up, plaintiff motivation, remedy pluralism, efficient breach, bargaining chips, and stated versus revealed purpose.

The evidence validates one economic mechanism while complicating any inference from a performance request to a desire for performance.

post-judgment renegotiation
property rules
hold-up
plaintiff motivation
remedy pluralism
efficient breach
bargaining leverage
revealed purpose

The interviews establish that the motive exists in some cases but do not show its prevalence or whether anticipated trades ultimately succeed.

Part V.B.3 reports interview evidence of ex post sale motives and contrasts it with both economic prediction and earlier empirical work on injunctions.


Post-judgment renegotiation sometimes succeeds, but potential gains from trade do not ensure that parties will even try to bargain

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 392–394, that the interviews neither confirm universal Coasean bargaining nor the complete absence reported in earlier nuisance research. Two respondents described successful trades, including a house-title decree settled after years of avoidance for half its judgment value; another negotiation failed amid mistrust and hard bargaining; and some parties made no attempt despite apparent gains. This is significant because contract parties' prior ability to bargain does not guarantee that litigation survivors will renegotiate a sticky judicial entitlement. It connects to Coasean bargaining, gains from trade, post-judgment settlement, mistrust, litigation trauma, enforcement avoidance, bilateral monopoly, and judgment stickiness.

The mixed evidence replaces an all-or-nothing renegotiation assumption with a behavioral question about when trade begins and succeeds.

Coasean bargaining
gains from trade
post-judgment settlement
mistrust
litigation trauma
enforcement avoidance
bilateral monopoly
judgment stickiness

The small, nonrepresentative set cannot estimate renegotiation rates, observe unrealized gains directly, or separate psychological from strategic bargaining failure.

Part VI catalogs successful, failed, and unattempted renegotiations and uses the cases to motivate psychological explanations beyond transaction costs.


Litigation-induced animosity can both obstruct renegotiation through mistrust and encourage it by making continued interaction costly

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 393–394, that animosity has no single directional effect on post-judgment bargaining. Entrenched mistrust and spite can make settlement offers look like legal traps and cause talks to collapse; yet a performance decree prolongs interaction, so mutual dislike can also increase both sides' desire to buy their way out. The net effect depends on the case. This is significant because psychological conflict cannot simply be inserted into a model as a fixed transaction-cost increase; it changes both the feasibility and the value of settlement. It connects to affective bargaining, mistrust, spite, relational breakdown, transaction costs, settlement incentives, litigation psychology, and ambiguous comparative statics.

The analysis explains why hostility sometimes blocks efficient trade and sometimes supplies the very reason to complete it.

affective bargaining
mistrust
spite
relational breakdown
transaction costs
settlement incentives
litigation psychology
comparative statics

Interview narratives cannot isolate animosity from legal strategy, bargaining position, or information problems, and the combined effect remains explicitly indeterminate.

Part VI describes a failed exchange treated as a trap and then explains the opposing bargaining effects of dislike when performance requires further contact.


A court victory can endow a plaintiff psychologically with the promised object and raise the price required to trade the decree

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 394–395, that litigation may intensify the endowment effect because a prevailing party experiences the judgment as earned, deserved, and fair. Specific performance makes the effect especially salient by attaching the entitlement to an actual good or service rather than undifferentiated money; interviewees spoke of judgments as things that belonged to them. This is significant because acquiring a decree can change subjective valuation without changing the object's attributes, narrowing the settlement range and potentially defeating mutually beneficial trade. It connects to the endowment effect, entitlement framing, reference dependence, earned ownership, behavioral law and economics, willingness to accept, settlement range, and judicial allocation.

The mechanism supplies a behavioral reason why initially low transaction costs may rise after rights are judicially assigned.

endowment effect
entitlement framing
reference dependence
earned ownership
behavioral law and economics
willingness to accept
settlement range
judicial allocation

The qualitative study cannot prove an endowment effect or distinguish created subjective value from bias and strategic overstatement.

Part VI links experimental literature on earned entitlements with parties' ownership rhetoric and explains how the resulting valuation gap can prevent renegotiation.


Individual plaintiffs often resist commodifying specific-performance judgments, while corporate clients more readily translate them into money

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 395–396, that litigants may treat a decree as qualitatively different from cash even while conceding they would sell for a sufficiently high price. Individual plaintiffs attach symbolic meaning to a specific apartment, building, good, or fulfilled promise but do not actively seek a monetizing bargain; lawyers for large firms report that corporate clients find monetary conversion natural. He calls this an incommensurability bias. This is significant because perceived category boundaries, not merely bargaining expense, can make a legally tradable entitlement practically sticky and can vary by organizational form. It connects to commodification, incommensurability, symbolic value, corporate decision-making, monetary valuation, identity, property rules, and heterogeneity.

The finding identifies a cognition-based limit on renegotiation while bounding it through the contrasting behavior of repeat corporate litigants.

commodification
incommensurability
symbolic value
corporate decision-making
monetary valuation
identity
property rules
heterogeneity

The term describes interview patterns rather than a validated psychometric construct, and corporations constitute a substantial share of litigation, limiting generalization from individuals.

Part VI reports recurring resistance to monetary framing, hypothetical willingness to sell without active bargaining, and lawyers' contrasting descriptions of corporate clients.


Part VII, Implementing Specific Performance

Specific-performance decrees are frequently costly, incomplete, or ineffective and can undercompensate promisees even relative to damages

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 396–398, that doctrine and theory often infer adequate compensation from an order to perform, especially when goods are unique and damages supposedly inadequate. Most interviewees, however, reported negative enforcement experiences; some decrees were delayed, deficient, or never fully implemented. Because compliance requires cooperation, quality control, and further expense, the realized value may fall below both promised performance and an expectation award. This is significant because equitable relief does not automatically cure damages' undercompensation and can create its own more severe shortfall. It connects to judgment execution, compensatory adequacy, equitable remedies, compliance, unique goods, underperformance, enforcement costs, and remedial comparison.

The evidence attacks the central move from 'damages are inadequate' to 'specific performance is adequate.'

judgment execution
compensatory adequacy
equitable remedies
compliance
unique goods
underperformance
enforcement costs
remedial comparison

The participant sample may overrepresent contested or difficult cases, and negative opinions do not yield a comparative expected-value estimate across remedies.

Part VII contrasts UCC and Restatement adequacy premises with interview reports that most parties encountered implementation problems and some orders were not fulfilled.


Part VII, The Proper Performance Baseline

Remedy comparison must recognize that ordinary contracts are sometimes underperformed and expectation damages can overcompensate relative to the degraded performance a resistant promisor would actually supply

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 397–398, that analysts use the wrong baseline when they compare a decree with perfect contractual performance. Even voluntary contracts can be underperformed, and breach signals increased performance cost that may encourage corner cutting; litigation can add spite. Expectation damages are undercompensatory in familiar doctrinal ways, but they can be overcompensatory relative to the low-quality output a reluctant promisor would have delivered because the award assumes full performance. This is significant because neither formal expectancy nor ordered performance maps cleanly onto the counterfactual value the promisee would have received. It connects to counterfactual baselines, substantial performance, quality shading, expectancy, efficient breach, moral hazard, compensatory measurement, and second-best remedies.

The nuanced baseline explains how damages can outperform a performance decree without becoming fully compensatory in absolute terms.

counterfactual baselines
substantial performance
quality shading
expectation interest
efficient breach
moral hazard
compensatory measurement
second-best remedies

The relative magnitude of ordinary underperformance, post-breach degradation, and doctrinal damages discounts is not quantified.

Part VII contrasts full-performance assumptions with ordinary quality shortfalls, increased breach cost, animosity, and the full-performance premise embedded in expectation damages.


Animosity does not inevitably prevent adequate performance, especially when ordinary business incentives and clear obligations remain operative

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 398–399, that hostility's practical importance can be overstated. A firm that won enforcement of a multimillion-dollar finance agreement later reported excellent day-to-day cooperation with the bank, and a consumer eventually received a custom door installed exactly as ordered. These cases suggest that reputational, commercial, and specification-based drivers of ordinary performance can survive litigation, perhaps especially when organizations are involved. This is significant because courts should not presume either that compelled relationships always collapse or that judicial victory erases relational risk. It connects to relational repair, business reputation, repeat interaction, compelled cooperation, specific performance, organizational behavior, contract implementation, and case-specific equity.

The counterexamples prevent the article's enforcement critique from hardening into a categorical rule against ongoing-performance decrees.

relational repair
business reputation
repeat interaction
compelled cooperation
specific performance
organizational behavior
contract implementation
equity

A handful of successful implementations cannot establish when animosity is harmless or whether business parties systematically perform better than individuals.

Part VII.A describes the finance and custom-door cases and infers that ordinary performance drivers may continue after judgment.


Part VII.B, Costly Supervision and Lack of Standards

Specific performance works best when courts can verify a finished product against clear standards, making uniqueness both a reason to grant the remedy and a reason it may fail

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 399–400, that continuous judicial supervision is not always necessary if completed work can be cheaply tested against detailed specifications, as the custom-door case illustrates. But when effort is hard to monitor and the output lacks close substitutes or objective standards, neither supervision nor ex post verification assures quality. This creates an irony: the uniqueness that makes damages hard to calculate also makes defective performance hard to detect and correct. This is significant because American doctrine directs specific relief toward the cases in which its quality-control technology may be weakest. It connects to verifiability, incomplete contracts, quality standards, unique goods, judicial supervision, performance measurement, information costs, and remedial fit.

The claim replaces uniqueness with verifiability as a central criterion for predicting remedial effectiveness.

verifiability
incomplete contracts
quality standards
unique goods
judicial supervision
performance measurement
information costs
remedial fit

Some unique goods have detailed specifications and some standardized services remain hard to monitor, so uniqueness and verifiability are related but not equivalent.

Part VII.B contrasts costly ongoing monitoring with finished-product verification, uses the door specifications as a success, and explains the unique-good quality-standard problem.


A receiver can sometimes enforce technically complex performance by directing the promisor's organization and using its embedded expertise

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 399–400, that receivership supplies a third enforcement mechanism beyond judicial monitoring and end-product inspection. A receiver placed over a promisor's business can direct employees who possess the necessary know-how, even when the court lacks technical expertise; one studied case used the mechanism effectively, with the defendant bearing the receiver's salary. This is significant because organizational control may translate a general decree into specialized execution without requiring a judge to supervise every act. It connects to receivership, organizational knowledge, delegated enforcement, court administration, embedded expertise, compliance governance, cost shifting, and equitable discretion.

The case suggests an underexplored institutional tool for performance that cannot be specified or verified easily from outside the firm.

receivership
organizational knowledge
delegated enforcement
court administration
embedded expertise
compliance governance
cost shifting
equitable discretion

The evidence is one effective case, receivership is costly and intrusive, and the article calls for further analysis rather than general adoption.

The end of Part VII.B describes the receiver mechanism, its use of employee expertise, its cost allocation, and one successful case.


Part VII.C, Post-Judgment Costs and Liquidity

Specific-performance plaintiffs must actively coordinate, monitor, and finance enforcement after judgment, although doctrine tends to count public supervision costs instead

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 400–401, that the private costs of implementation are systematically undercounted. Every successful collection in the interviews followed active plaintiff contact, while the one passive plaintiff received no performance. Coordination, administration, and monitoring consume money and time; unlike money judgments, specific relief lacks a broad collection industry. A plaintiff depleted by litigation may therefore own a valid decree but lack liquidity to realize it, as illustrated by a parking-space order unperformed six years later after the plaintiff became ill. This is significant because nominal victory transfers enforcement labor and solvency risk to the promisee. It connects to access to justice, judgment collection, plaintiff liquidity, enforcement industry, monitoring costs, legal mobilization, illness, and rights realization.

The finding redirects cost analysis from court supervision alone to the claimant resources necessary to turn an order into performance.

access to justice
judgment collection
plaintiff liquidity
enforcement industry
monitoring costs
legal mobilization
illness
rights realization

The observed association between plaintiff activity and success does not prove that every passive decree fails or that additional action would have secured compliance.

Part VII.C contrasts doctrinal focus on court cost with interview evidence on claimant activity, explains the missing enforcement market, and gives the unperformed parking-space case.


Part VII.D, Capitalization and the Judgment-Proof Problem

Specific performance is not a reliable answer to judgment-proof defendants because contempt is usually enforced financially and courts resist incarceration for contractual noncompliance

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 401, that the supposed advantage of ordering an insolvent defendant to perform ignores how the order is enforced. Contempt formally permits monetary or criminal sanctions, but courts are highly reluctant to jail contract promisors; the remaining financial threat has little force against a poorly capitalized defendant. One lawyer described such defendants as literal 'outlaws' because ordinary legal pressure cannot reach them. This is significant because substituting an in-kind command for an uncollectible damages award does not create leverage when both ultimately depend on assets. It connects to judgment-proof defendants, contempt, insolvency, sanctions, deterrence, coercive enforcement, asset constraints, and remedial substitution.

The argument undermines a familiar doctrinal reason to prefer specific performance when damages cannot be collected.

judgment proof
contempt
insolvency
sanctions
deterrence
coercive enforcement
asset constraints
remedial substitution

Nonfinancial leverage, reputational capital, physical control of assets, or feasible receivership may still make performance enforceable in some low-capitalization cases.

Part VII.D contrasts the theoretical insolvency advantage with actual contempt practice and explains why financial sanctions lose force against undercapitalized promisors.


Reputational capital can make a decree enforceable even when it was insufficient to prevent the initial breach, so reputation operates in contingent and stage-specific ways

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 401–402, that reputation can substitute for weak financial or criminal enforcement and reduce monitoring needs. Interviewees associated successful performance with defendants who had valuable reputations and failures with those who did not. Yet reputation did not prevent the contracts from being breached in the first place; it became strong enough only after a court judgment altered the stakes. This is significant because reputation is not a binary trait that either replaces law or does nothing; its force depends on the legal stage, audience, and threatened signal. It connects to reputational capital, relational enforcement, court judgments, repeat players, market sanctions, legal–social interaction, compliance, and stage dependence.

The evidence supports a complementary relationship between formal adjudication and reputation rather than a simple substitution model.

reputational capital
relational enforcement
court judgments
repeat players
market sanctions
legal-social interaction
compliance
stage dependence

Interview correlations do not identify the precise reputational audience or show that reputation, rather than capitalization or organization, caused compliance.

Part VII.E reports lawyers' emphasis on reputation, links strong reputation to successful cases, and notes its failure to deter breach but success in supporting obedience.


Social pressure can initially support compliance and later legitimate defiance as group composition and norms change

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 402–403, that social norms are contingent sources of enforcement rather than reliably procompliance forces. A cooperative member initially felt shame while resisting a house-transfer decree, but drew strength when other indebted members joined him and recast the dispute as a collective division; five years later, the cooperative settled for about half the original debt. This is significant because the same community that stigmatizes nonperformance can normalize and coordinate it as identities and coalitions change. It connects to social norms, collective action, shame, norm cascades, cooperative governance, judgment resistance, informal enforcement, and endogenous preferences.

The case cautions courts and theorists against treating community pressure as a stable substitute for legal enforcement.

social norms
collective action
shame
norm cascades
cooperative governance
judgment resistance
informal enforcement
endogenous preferences

The proposition rests on one detailed case and does not specify when social environments will reinforce rather than undermine compliance.

Part VII.F traces the Moshav member's changing social position, prolonged noncompliance, and discounted settlement to show the bidirectional force of norms.


Rights-based theories must confront frequent instrumental uses of specific performance rather than dismiss them as immoral or marginal by-products

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 403–405, that plaintiffs use performance decrees to hold up promisors, signal merit, or reduce procedural cost—not solely to obtain the promised act. A deontologist cannot answer simply that such uses are morally impermissible, because legal rights exist precisely where conduct cannot be trusted to remain moral and there is no cause of action against plaintiff hold-up. Nor can theory assume the effects are marginal when the study finds them repeatedly; that is an empirical premise requiring evidence. This is significant because a right justified by promise keeping may authorize outcomes not entailed by the promise. It connects to deontology, instrumental rights, moral hazard, hold-up, promissory obligation, legal entitlement, unintended consequences, and empirical jurisprudence.

The argument makes real-world uses of a remedy part of its moral evaluation rather than external noise.

deontology
instrumental rights
moral hazard
hold-up
promissory obligation
legal entitlement
unintended consequences
empirical jurisprudence

The sample suggests instrumental motives are recurrent but cannot establish their overall frequency or settle how much consequence-sensitive weight a rights theory must assign them.

Part VIII.A lists instrumental motives and rejects moral-impermissibility and marginal-by-product responses as inadequate without empirical support.


Part VIII.A, Compensation and Remedial Choice

Corrective-justice theories cannot assume specific performance compensates, and giving the promisee a choice may itself cause signaling and agency harms

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 404–406, that costly policing, resistant promisors, and claimant illiquidity can make specific performance less compensatory than damages. Allowing promisees to choose seems to protect them, but choice is not neutral: judicial signaling may compel an unwanted performance claim, while lawyers may steer clients toward cash for private fee reasons. Combining performance and damages may sometimes help, yet rights-based theories still must explain the divergence between a legal right, actual performance, and promisee welfare. This is significant because formal autonomy over remedies can reduce rather than increase substantive autonomy or compensation. It connects to corrective justice, remedial election, agency costs, signaling, combined remedies, autonomy, undercompensation, and second-best design.

The analysis shows why neither categorical specific performance nor unstructured plaintiff choice solves the rights-based compensation problem.

corrective justice
remedial election
agency costs
signaling
combined remedies
autonomy
undercompensation
second-best design

The article identifies opposing mechanisms but does not offer a complete rights-based ranking of choice, mandatory performance, damages, or hybrid awards.

Part VIII.A applies enforcement, signaling, and lawyer-agency findings to compensation and explains why a remedy option or combined award remains theoretically incomplete.


Weak enforcement means specific performance need not deliver performance-level value, strong deterrence, or insurance for subjective valuation

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 406–407, that economic analysis often overstates the decree's payoff. A system built mainly to collect money may lack expertise for in-kind relief, particularly with unique goods, thinly capitalized parties, or weak reputational and social pressure. The result may be neither performance nor a settlement above expectancy; promisors can be underdeterred from inefficient breach, and promisees do not receive reliable insurance for subjective value. This is significant because describing specific performance as analogous to a punitive sanction reverses reality when damages are easier to collect. It connects to deterrence, subjective-value insurance, enforcement technology, efficient breach, judgment collection, pecuniary remedies, risk aversion, and institutional capacity.

The argument inserts implementation probability into both deterrence and insurance rationales for the property-rule remedy.

deterrence
subjective value
enforcement technology
efficient breach
judgment collection
money damages
risk aversion
institutional capacity

Enforcement weakness varies across transactions, defendants, and institutions, so the finding supports conditional analysis rather than a universal preference for damages.

Part VIII.B applies the execution findings to transfer value, deterrence, and insurance and contrasts in-kind expertise with mature money-collection systems.


Behavioral reluctance to commodify judgments can defeat post-judgment trade even when conventional transaction costs are low

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 407, that animosity, endowment, and incommensurability can make decrees sticky in precisely the two-party contractual settings where economists expect low bargaining costs. If promisees refuse to negotiate or assign exceptionally high subjective prices after judgment, a wrongly allocated right will not be traded to its efficient user. This is significant because the Coasean prediction that parties 'already know how to bargain' omits preferences and frames created by litigation and entitlement. It connects to behavioral law and economics, Coase theorem, entitlement effects, commodification, bargaining breakdown, low transaction costs, inefficient allocation, and sticky rights.

The claim supports a larger role for damages or more careful judicial allocation even without search, coordination, or multilateral bargaining barriers.

behavioral law and economics
Coase theorem
entitlement effects
commodification
bargaining breakdown
transaction costs
inefficient allocation
sticky rights

Failed bargaining may reflect private information or strategic demands as well as the proposed psychological mechanisms, and the study cannot measure forgone surplus.

Part VIII.B synthesizes the renegotiation findings and explains why contract familiarity and bilateral structure do not guarantee trade after judgment.


Part VIII.B, Choice and Domain Refinement

Economic analysis should model opposing strategic effects of remedial choice, qualify flood-of-litigation fears, and target specific performance to verifiable domains

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 407–408, that allowing plaintiffs to elect remedies pushes behavior in opposite directions: signaling can induce excessive performance claims, while lawyer incentives can induce excessive damages claims. Israel's low observed demand, echoed in other civil-law jurisdictions, also weakens predictions that liberal availability will flood courts with supervision-heavy suits. The enforcement evidence instead supports finer domain rules, such as favoring performance when clear quality standards exist. This is significant because optimal remedy design requires a holistic model of litigants, counsel, adjudication, and implementation rather than one formal choice variable. It connects to option design, litigation volume, judicial supervision, verifiability, strategic interaction, comparative evidence, domain rules, and welfare analysis.

The synthesis translates qualitative mechanisms into testable refinements for economic models and doctrinal categories.

option design
litigation volume
judicial supervision
verifiability
strategic interaction
comparative evidence
domain rules
welfare analysis

Low use in Israel does not directly predict the response to expanded American relief, and the article does not estimate the welfare weights of competing mechanisms.

Part VIII.B discusses signaling and lawyer bias, qualifies flood concerns with Israeli and comparative evidence, and proposes clear standards as a domain refinement.


Courts should strengthen implementation through calibrated financial sanctions, receivers, cost shifting, deficiency awards, and inexpensive quality-review mechanisms

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 408–409, that improving specific performance requires institutional machinery, not simply broader entitlement. Criminal contempt carries grave error and liberty costs, but more liberal financial sanctions and receivership may help. Because both damages and performance often undercompensate, courts can add deficiency awards, shift enforcement costs to promisors, and create inexpensive forums—potentially arbitrators or receivers—to identify substandard performance and impose adequate consequences. This is significant because a decree's remedial value is designed after judgment through monitoring, complaint, and sanction channels. It connects to remedial engineering, contempt, receivership, deficiency judgments, fee shifting, arbitration, quality review, and access to enforcement.

The proposals aim to close the gap between legal declaration and realized performance while recognizing the costs of coercion and error.

remedial engineering
contempt
receivership
deficiency judgments
cost shifting
arbitration
quality review
enforcement access

The proposals are exploratory, can increase administrative and error costs, and require comparative evaluation of institutional competence and funding.

Part VIII.C weighs criminal, financial, and receivership sanctions and proposes supplemental compensation, claimant-cost allocation, and low-cost quality supervision.


Courts should assess specific performance by verifiability and actual enforceability rather than presume that unique goods or uncollectible damages make it adequate

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 408–409, that the two familiar gateways to equitable relief can point in the wrong direction. Unique subject matter makes market damages difficult but often deprives courts of standards for detecting poor performance; an insolvent defendant may be unable to pay damages but equally resistant to financially enforced contempt. Judges seeking compensation should compare remedies in the circumstances, including their ability to identify substandard performance, rather than treat inadequacy of damages as proof of adequacy of performance. This is significant because remedial doctrines need separate tests for the weakness of the legal remedy and the strength of the equitable one. It connects to equitable adequacy, unique goods, insolvency, verifiability, comparative remedies, UCC remedies, Restatement section 360, and judicial discretion.

The proposal exposes a logical gap in doctrine: failure of one remedy does not establish success of its alternative.

equitable adequacy
unique goods
insolvency
verifiability
comparative remedies
UCC remedies
Restatement 360
judicial discretion

Case-by-case comparison may increase uncertainty and adjudication cost, and courts still need evidence and metrics for expected enforcement quality.

Part VIII.C applies the unique-good and judgment-proof findings to American adequacy doctrine and urges comparative, circumstance-specific assessment.


Part VIII.C, Choice, Timing, and Professional Ethics

Remedy administration should account for distorted plaintiff choice, preference change during delay, and lawyers' conflicts of interest

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 409–410, that judges should not assume plaintiffs select the best compensatory remedy when judicial signaling and attorney self-interest pull in opposing directions. If legal policy wants performance to remain valuable, courts must address the delay during which tastes and relationships change, perhaps through priority or interim relief. Professional-ethics rules should also confront lawyers' incentive to favor damages that increase remuneration and ease collection. This is significant because better substantive doctrine can still fail through procedure and conflicted advice before a decree is entered. It connects to judicial discretion, interim relief, docket priority, dynamic preferences, attorney conflicts, professional ethics, informed consent, and procedural design.

The proposals extend remedy reform upstream from execution to case timing and the institutions that shape plaintiff election.

judicial discretion
interim relief
docket priority
dynamic preferences
attorney conflicts
professional ethics
informed consent
procedural design

Priority can delay other cases, interim measures create error costs, and ethics enforcement must distinguish self-serving advice from sound preference for collectable damages.

Part VIII.C recommends attention to judicial override, delay, interim remedies, and professional regulation of the lawyer-agency problem.


Contract-remedy theory needs contextual qualitative evidence about internal motivations and implementation, followed by broader comparative samples before definitive prescription

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 410, that studying litigation 'from the inside' reveals practices more complex than prevailing theory: parties respond to overlapping incentives, limits, relationships, and unintended effects at every remedial stage. The present interviews illuminate oversights but are neither exhaustive nor conclusive; future research should include damages recipients, more losing parties, and individuals and organizations of different sizes. This is significant because normative debate without empirical sensitivity risks remaining an intellectual exercise whose assumed remedy never resembles experienced law. It connects to qualitative empiricism, contextual jurisprudence, law in action, mixed-method research, comparative sampling, theory revision, external validity, and remedial realism.

The conclusion states both the article's methodological contribution and the humility required to turn mechanisms into policy.

qualitative empiricism
contextual jurisprudence
law in action
mixed methods
comparative sampling
theory revision
external validity
remedial realism

The article expressly calls for larger and more varied evidence before definitive measures or population claims are justified.

The conclusion summarizes the inside perspective, identifies the study as nonconclusive, specifies missing comparison groups, and calls for empirically informed remedy theory.