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The title of this post is a phrase that appears a lot in court cases and quoted often by administrative agencies. It almost always precedes a negative result for the taxpayer in question and conveniently ignored when a positive outcome is required.

Over the last year, while there has not been much activity here, I have seen two of my writings published. The first is one-of-many Peach Sheets that was co-authored. The second was my student Note.

II. Is a Change Needed?While only a small sample of states have been surveyed to this point, it quickly becomes clear that the few states that have determined if reliance is a required element for a breach of warranty claim do not agree with each other.

III. The Proposed RuleWhile Whitehead argues that the default rules should favor an anti-sandbagging regime, the mere fact that the parties are not incentivized to bargain for a sandbagging or anti-sandbagging provision is not reason enough to upset the balance of the negotiated terms.