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Series

2014

Contracts

Cornell Law Faculty Publications

Articles 1 - 2 of 2

Full-Text Articles in Law

The Future Of Fault In Contract Law, Robert A. Hillman Jul 2014

The Future Of Fault In Contract Law, Robert A. Hillman

Cornell Law Faculty Publications

According to judicial opinions, the Restatement (Second) of Contracts, and some analysts, the reasons for failing to perform a contract, whether willful, negligent, or unavoidable, have little or no bearing in determining contract liability. Contract liability is said to be “strict,” meaning that the reasons for nonperformance are irrelevant in determining the injured party’s rights. In this Article, I argue that the reasons for failing to perform, which focus on whether non-performance is the promisor’s fault, are crucially important in the resolution of many, perhaps most disputes under contract law.


Killing Conscience: The Unintended Behavioral Consequences Of "Pay For Performance", Lynn A. Stout Apr 2014

Killing Conscience: The Unintended Behavioral Consequences Of "Pay For Performance", Lynn A. Stout

Cornell Law Faculty Publications

Contemporary lawmakers and reformers often argue that ex ante incentive contracts providing for large material rewards are the best and possibly only way to motivate corporate executives and other employees to serve their firms' interests. This Article offers a critique of the "pay for performance" approach. In particular, it explores why, for a variety of mutually reinforcing reasons, workplaces that rely on ex ante incentive contracts suppress unselfish prosocial behavior (conscience) and promote selfishness and opportunism. The end result may not be more efficient, but more uncooperative, unethical, and illegal employee behavior.