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My sense is that some members of the RDG are a little hostile to 'law and' approaches. So with some trepidation, may I proffer the following references on efficient breach and empirical testing:

Richard Craswell, "Contract Remedies, Renegotiation, and the Theory of Efficient Breach", Southern California Law Review, 61 (1988): 629-70.

Stewart Macaulay, "Non-contractual Relations in Business: A Preliminary Study", American Sociological Review, 28 (1963); 55-67

Alan Schwartz, "Relational Contracts in the Courts: An Analysis of Incomplete Agreements and Judicial Strategies", Journal of Legal Studies, 21 (1992): 271-318.

All are found in Brian Bix's fine collection on Contract Law in Dartmouth/Ashgate "International Library of Essays in Law and Legal Theory" (2nd series).

It seems at least plausible that some economic reasoning can help in sorting out the issue of efficient breach. We should also beware of the ideological trap of denying that the law has any economic or other ideological commitments just because lawyers say they do not practice economic reasoning. For example, all of us make appeals to 'commercial certainty' when it suits us; that is an ideologically-loaded economic norm if ever there was one.

JM Keynes, General Theory (1936) p. 383: 'Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist'.

Joshua Getzler