Barry E. Adler (New York University – School of Law) has posted Contract Law and the Willfulness Diversion on SSRN. Here is the abstract:
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As a general matter, American contract law imposes strict liability for breach. The willfulness doctrine, under which the damages awarded apparently depend on the reason for the promisor’s failure to perform, seems an exception to the strict liability approach. For an influential set of willfulness cases, however, the exception is merely apparent. In these cases, fault seems not to be truly part of the judges’ willfulness conception and punishment seems not to be part of their goal. Rather the judges use the esoteric legal term of willfulness in a mundane process: the ordinary calculation of expectation damages.