The University of Louisville had a contract with Duke University for a series of four football games over the course of a few years, but Duke pulled out of the series after the first game. Whereupon, Louisville sued for $450,000—pointing out, quite reasonably, that the contract between the schools called for a penalty of $150,000 per game, “if a date with a ‘team of similar stature’ could not be arranged.”
Louisville, however, lost its lawsuit, for the lawyers from Duke showed up in court and argued that “the Blue Devils, which have a record of 6-45 over the past five seasons, were so bad that any team would be a suitable replacement.” As the judge observed in his decision, “At oral argument, Duke (with a candor perhaps more attributable to good legal strategy than to institutional modesty) persuasively asserted that this is a threshold that could not be any lower. Duke’s argument on this point cannot be reasonably disputed by Louisville.”
It’s a legal strategy that has, one imagines, many other useful applications.
(Hat Tip: Eugene Volokh )
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