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Precedent In Contract Cases And The Importance(?) Of The Whole Story, Robert A. Hillman
Precedent In Contract Cases And The Importance(?) Of The Whole Story, Robert A. Hillman
Cornell Law Faculty Working Papers
I am honored to contribute to this symposium in honor of Bill Whitford. I have been an admirer of Bill's work for the past 39 years, which encompasses my entire teaching career. Bill's scholarship on contracts and consumer law in his law review articles and in his casebook, Contracts: Law in Action, now in its third edition with Macaulay, Braucher, and Kidwell, confirms the importance of examining the non-legal forces at work in exchange transactions, the sometimes tenuous relationship between contract rules and legal decisions, the limitations of legal opinions, and the value of focusing on the relationship of contracting …
Drafting Chapter 2 Of The Ali's Employment Law Restatement In The Shadow Of Contract Law: An Assessment Of The Challenges And Results, Robert A. Hillman
Drafting Chapter 2 Of The Ali's Employment Law Restatement In The Shadow Of Contract Law: An Assessment Of The Challenges And Results, Robert A. Hillman
Cornell Law Faculty Working Papers
The American Law Institute (ALI) has just completed the Restatement of the Law Third, Employment Law. Chapter 2 is entitled "Employment Contracts: Termination." As the name suggests, the Chapter focuses on the law's difficult challenge of applying contract law to distinguish lawful terminations of employees from wrongful ones. The question is especially problematic because, on the one hand, employment law's long-existing default rule allows employers to terminate employees "at will" and without cause. Advocates of the at-will doctrine present several policies to support it, including freedom of contract and efficiency. On the other hand, employers seek to attract talented employees …
The Future Of Fault In Contract Law, Robert A. Hillman
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
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.