Response to the Cost of Guilty Breach: What Work is “Willful Breach” Doing?

The authors of The Cost of Guilty Breach have pointed out an interesting issue—why is it that merger agreements import into their contracts language of moral culpability to establish liability in connection with a breach of the agreement? The authors propose some persuasive hypotheses to explain the presence of “willful breach” language. In this brief response, I mostly agree with the authors and offer a few of my own thoughts about the merger contract and breach.