Cornell Law Faculty Publications Copyright (c) 2013 Cornell Law Library All rights reserved. http://scholarship.law.cornell.edu/facpub Recent documents in Cornell Law Faculty Publications en-us Thu, 23 May 2013 01:48:17 PDT 3600 The Crisis in Modern Contract Theory http://scholarship.law.cornell.edu/facpub/566 http://scholarship.law.cornell.edu/facpub/566 Wed, 22 May 2013 12:05:02 PDT Robert A. Hillman Contract Modification and "Self-Help Specific Performance": A Reaction to Professor Narasimhan http://scholarship.law.cornell.edu/facpub/565 http://scholarship.law.cornell.edu/facpub/565 Wed, 22 May 2013 11:17:21 PDT Robert A. Hillman Article 29(2) of the United Nations Convention on Contracts for the International Sale of Goods: A New Effort at Clarifying the Legal Effect of "No Oral Modification" Clauses http://scholarship.law.cornell.edu/facpub/564 http://scholarship.law.cornell.edu/facpub/564 Wed, 22 May 2013 08:56:05 PDT Robert A. Hillman Comment: More in Defense of U.C.C. Methodology http://scholarship.law.cornell.edu/facpub/563 http://scholarship.law.cornell.edu/facpub/563 Tue, 21 May 2013 14:26:32 PDT Robert A. Hillman Remedies and the CISG: Another Perspective http://scholarship.law.cornell.edu/facpub/562 http://scholarship.law.cornell.edu/facpub/562 Tue, 21 May 2013 14:26:30 PDT In this brief comment, I apply behavioral decision theory to the question of the enforcement in transnational sales of super-compensatory agreed damages. I conclude that a good case can be made that such damages provisions should be enforced.

]]> Robert A. Hillman Court Adjustment of Long-Term Contracts: An Analysis Under Modern Contract Law http://scholarship.law.cornell.edu/facpub/561 http://scholarship.law.cornell.edu/facpub/561 Tue, 21 May 2013 14:26:27 PDT Robert A. Hillman Evidentiary Problems In--and Solutions For--The Uniform Commercial Code http://scholarship.law.cornell.edu/facpub/560 http://scholarship.law.cornell.edu/facpub/560 Tue, 21 May 2013 08:34:48 PDT The Uniform Commercial Code does not offer a systematic approach to the rules governing the evidentiary relationships of parties to commercial litigation. In this article, Professors Allen and Hillman present a general analytical approach to proof rules, highlight the shortcomings of the Code's evidentiary provisions, and discuss the inevitable confusion in the case law construing the Code. They propose an amendment to the Code designed to clarify and improve the Code approach.

]]> Ronald J. Allen et al. A Tale of Two Cities: From Davids Holdings to Metcash http://scholarship.law.cornell.edu/facpub/559 http://scholarship.law.cornell.edu/facpub/559 Mon, 20 May 2013 12:41:53 PDT In 1994, the Full Federal Court upheld the decision of the trial judge to prevent the acquisition of QIW by Davids, on the grounds that, Davids would become the only supplier of groceries to independent retailers in the geographic market. While the independent retailers faced significant competition in the downstream (retail) business from the integrated retail chains, the Court found that such competition would not be sufficient to prevent the exercise of monopoly power in the upstream (wholesale) business.

In 2011, the Full Federal Court upheld the decision of the trial judge not to prevent the acquisition by Metcash of Franklins. The acquisition had been opposed by the ACCC on the grounds that it would leave Metcash as effectively the only wholesale supplier of packaged groceries to independent retailers in New South Wales. The Court rejected the Commission’s claim, finding that the merged firm would not be able to exercise market power due to the constraining presence downstream of the integrated retail chains.

Two cases with apparently similar facts. What explains the different outcomes? In this article, we try to identify a critical analytical difference in the way that the cases were presented to the Court and will suggest that this difference may have had a significant influence on the outcomes.

]]> George A. Hay et al. An Analysis of the Cessation of Contractual Relations http://scholarship.law.cornell.edu/facpub/558 http://scholarship.law.cornell.edu/facpub/558 Tue, 14 May 2013 14:39:48 PDT Robert A. Hillman Contract Modification in Iowa-Recker v. Gustafson and the Resurrection of the Preexisting Duty Doctrine http://scholarship.law.cornell.edu/facpub/557 http://scholarship.law.cornell.edu/facpub/557 Tue, 14 May 2013 13:45:50 PDT Robert A. Hillman Individual Conscience and the Law http://scholarship.law.cornell.edu/facpub/556 http://scholarship.law.cornell.edu/facpub/556 Mon, 13 May 2013 12:05:38 PDT Laura S. Underkuffler Policing Contract Modifications under the UCC: Good Faith and the Doctrine of Economic Duress http://scholarship.law.cornell.edu/facpub/555 http://scholarship.law.cornell.edu/facpub/555 Fri, 10 May 2013 13:18:34 PDT Robert A. Hillman Construction of the Uniform Commercial Code: UCC Section 1-103 and "Code" Methodology http://scholarship.law.cornell.edu/facpub/554 http://scholarship.law.cornell.edu/facpub/554 Fri, 10 May 2013 12:07:37 PDT Robert A. Hillman Contract Modification Under the Restatement (Second) of Contracts http://scholarship.law.cornell.edu/facpub/553 http://scholarship.law.cornell.edu/facpub/553 Fri, 10 May 2013 11:05:07 PDT Robert A. Hillman Keeping the Deal Together After Material Breach--Common Law Mitigation Rules, the UCC, and the Restatement (Second) of Contracts http://scholarship.law.cornell.edu/facpub/552 http://scholarship.law.cornell.edu/facpub/552 Fri, 10 May 2013 10:30:47 PDT Robert A. Hillman A Study of Uniform Commercial Code Methodology: Contract Modification Under Article Two http://scholarship.law.cornell.edu/facpub/551 http://scholarship.law.cornell.edu/facpub/551 Thu, 09 May 2013 14:22:15 PDT A goal of the Uniform Commercial Code is to provide rules that respond to commercial reality so that the intentions of contracting parties will be effectuated. To meet this challenge the U.C.C. was written to allow both certainty and flexibility. In this Article, Professor Hillman examines the Code provisions governing contract modifications. Through a series of hypothetical problems he explores the methodology used by the U.C.C. in attempting to achieve a proper balance between stability and flexibility in contract modification law. He concludes that the Code has not been successful in achieving its goals in this area. The various sections relating to contract modification are often ambiguous, confusing, and even conflicting. Professor Hillman attempts to counter these Code inadequacies by suggesting solutions consistent with the Code policy of enforcing freely made modification agreements.

]]> Robert A. Hillman Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2-302 http://scholarship.law.cornell.edu/facpub/550 http://scholarship.law.cornell.edu/facpub/550 Thu, 09 May 2013 13:57:35 PDT Robert A. Hillman Rolling Contracts http://scholarship.law.cornell.edu/facpub/549 http://scholarship.law.cornell.edu/facpub/549 Thu, 09 May 2013 12:59:31 PDT "Rolling contracts" are one method of presenting standard forms to contracting parties, including consumers, who are the focus of this paper. In a rolling contract, a purchaser orders goods and pays for them before seeing most of the terms, which come later in or on the packaging of the goods. The purchaser can return the goods for a limited time period.

This paper addresses the controversy over whether the new terms are part of the contract and enforceable against the purchaser. Although most analysts focus on when the contract is formed, this paper urges that this analysis yields little fruit. In fact, it is rather curious why analysts believe so much should turn on the question of whether the seller makes the terms available before or after contract formation when these writers also believe that purchasers do not read their forms either way. Instead, courts should focus on whether the new terms are conscionable. Because sending terms with the goods is not uncommon, and similar to many other terms-after-payment transactions, and because the purchaser has the opportunity to return the goods if the terms are undesirable, rolling contracts rarely should be procedurally unconscionable. On the other hand, courts should carefully peruse the terms to police them for substantive unconscionability.

]]> Robert A. Hillman The Limits of Behavioral Decision Theory in Legal Analysis: The Case of Liquidated Damages http://scholarship.law.cornell.edu/facpub/548 http://scholarship.law.cornell.edu/facpub/548 Thu, 09 May 2013 12:11:08 PDT Discontent with the apparent tunnel vision of economic analysis of law's rational choice theory, legal scholars recently have turned with enthusiasm to "behavioral decision theory" (BDT) to enrich their understanding of how people make decisions and of the law's effect on human behavior. This article, for the first time, evaluates BDT's potential contribution to legal analysis by focusing on a single, important legal paradox: Despite contract law's freedom of contract paradigm, courts actively and enthusiastically police agreed damages provisions. Although the article finds an important place in legal analysis for this new discipline, the article raises and discusses several obstacles to BDT's effectiveness.

]]> Robert A. Hillman The Best Law School Subject http://scholarship.law.cornell.edu/facpub/547 http://scholarship.law.cornell.edu/facpub/547 Thu, 09 May 2013 11:14:50 PDT Robert A. Hillman et al.