Scholarship@Cornell Law: A Digital Repository Copyright (c) 2013 Cornell Law Library All rights reserved. http://scholarship.law.cornell.edu Recent documents in Scholarship@Cornell Law: A Digital Repository en-us Tue, 21 May 2013 01:32:53 PDT 3600 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. Approaches to Teaching Contracts: Enriching Case Reports http://scholarship.law.cornell.edu/facpub/546 http://scholarship.law.cornell.edu/facpub/546 Thu, 09 May 2013 08:58:11 PDT Robert A. Hillman The Rhetoric of Legal Backfire http://scholarship.law.cornell.edu/facpub/545 http://scholarship.law.cornell.edu/facpub/545 Thu, 09 May 2013 08:37:23 PDT This Article focuses on legal backfire claims. A claim of legal backfire constitutes the position that a law produces or will produce results directly contrary to one or more of those intended. Legal backfire claims are pervasive, yet potentially misleading and harmful argumentation used primarily to undermine existing law (or policy) or to forestall the enactment of new law. This Article analyzes many examples of legal backfire to suggest that the concept is often a rhetorical strategy for opposing the promulgation of new law or policy or for attempting to have existing law rolled back, and that actual legal backfires are more rare (or at least unproven) than the use of the rhetoric would suggest. This Article also addresses a much more basic problem: the challenges to effective lawmaking and the limitations of techniques to evaluate the effects of law make an accurate assessment of law problematic. Ultimately, this Article suggests that lawmakers should proceed with caution when dealing with legal backfire claims because critics of laws almost invariably author these claims, the claims are rhetorically charged, and the claims themselves are extraordinary.

]]> Robert A. Hillman Contract Lore http://scholarship.law.cornell.edu/facpub/544 http://scholarship.law.cornell.edu/facpub/544 Wed, 08 May 2013 12:42:33 PDT The article investigates why contracts lawyers, judges, and theorists ("contracts people") routinely and confidently invoke "traditional beliefs" about contract law that are not even close to true. For example, contracts people often declare that the purpose of expectancy damages is to put the injured party in as good a position as if the contract had been performed. But expectancy damages virtually never do this. Contracts people also recite that the reasons for breach, whether willful, negligent or unavoidable, do not matter, and that formation and interpretation issues focus on the parties' intentions. Neither of these assertions is close to true either. The goal of the article is to understand why this "contract lore" exists and its ramifications.

]]> Robert A. Hillman Enriching the Contracts Course http://scholarship.law.cornell.edu/facpub/543 http://scholarship.law.cornell.edu/facpub/543 Wed, 08 May 2013 12:24:50 PDT Robert A. Hillman Online Boilerplate: Would Mandatory Website Disclosure of E-Standard Terms Backfire? http://scholarship.law.cornell.edu/facpub/542 http://scholarship.law.cornell.edu/facpub/542 Wed, 08 May 2013 12:06:39 PDT Robert A. Hillman How to Create a Commerical Calamity http://scholarship.law.cornell.edu/facpub/541 http://scholarship.law.cornell.edu/facpub/541 Wed, 08 May 2013 11:21:46 PDT This Article briefly catalogs the kinds of commercial calamities and then focuses on one of them, namely laws that are so imprecise and ambiguous that judges do not know how to apply them, and lawyers cannot explain them. The Article illustrates the problem with Uniform Commercial Code (UCC) section 2-209, dealing with contract modification and waiver. The paper does not focus on the ambiguities and obfuscations of section 2-209, but on the strategy of lawmaking that inevitably produces such a result. The drafters of section 2-209 ambitiously sought to reform the law, but then lost their nerve. In short, they wavered. The result was a compromise that created chaos, a true commercial calamity.

]]> Robert A. Hillman Contract Lore http://scholarship.law.cornell.edu/facpub/540 http://scholarship.law.cornell.edu/facpub/540 Wed, 08 May 2013 10:30:26 PDT Robert A. Hillman