Evidentiary Problems in—And Solutions For—the Uniform Commercial Code

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\u27s 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

The Rhetoric of Legal Backfire

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 much more rare (or at least unproven) than 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

A Pragmatist\u27s View of Promissory Law with a Focus on Consent and Reliance

This article discusses Professor Nate Oman\u27s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce desirable outcomes for society. In addition to a comprehensive account of what he calls virtues of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions. Oman is not only a fan of markets, but he asserts that markets are the center of contract theory, and provide its normative foundation. Elaborating, Oman concludes that contract law exists primarily to support markets and that contracts are valuable because they facilitate commerce and extend the reach of markets. It is their beneficial consequences that justify the enforcement of contracts. The article focuses on two of the many important issues generated by Oman\u27s thesis. First, has Oman done enough to convince that markets are what he calls the centerpiece of contract law? Second, does his effort to present what is essentially a unitary normative theory of contract handcuff his analysis of particular contract issues and doctrines? I will argue that markets are important and contract law should and does play an important role in supporting markets. However, we should not demote other visions of contract law, but see them all as important ingredients in understanding the subject. By largely espousing a unitary, integrative theory of contract law, Oman may have boxed himself into a corner that leads to a few debatable propositions, including with respect to consent to boilerplate and reliance on promises, which the article takes up in some detail. The article concludes that The Dignity of Commerce makes a solid case for the importance and virtues of markets and is rich in discussion and detail. As with any excellent work, it makes the reader ponder accepted wisdom and adds to the reader\u27s perspective. Further, in making his case for markets, Oman does an excellent job of introducing, discussing and debunking many counterarguments. My effort in this article is only to reflect on whether the market argument really can capture the entire contract-law field

Questioning the New Consensus on Promissory Estoppel: An Empirical and Theoretical Study

Professor Hillman presents evidence that contradicts several assumptions about how courts apply the doctrine of promissory estoppel. Although theorists have claimed the importance, even dominance, of the theory as a ground for enforcing promises, he shows that this theory is remarkably unsuccessful in the courts. Professor Hillman also demonstrates the crucial role of reliance in both successful and unsuccessful promissory estoppel cases, despite the new consensus that courts enforce promises without a showing of reliance. Finally, Professor Hillman shows that courts award damages flexibly in successful promissory estoppel cases, although analysts have claimed that courts strongly favor expectancy damages. Professor Hillman derives his evidence from a data pool of all of the reported decisions in the United States for a two-year period in the mid-1990s in which a promissory estoppel claim either succeeded or failed or in which a court discussed promissory estoppel. He reports the results of a systematic survey of these cases. He also analyzes and discusses a representative sample of the cases in greater depth. In addition, Professor Hillman reexamines some of the cases in earlier studies that led others to report incorrectly the unimportance of reliance. Professor Hillman also discusses why promissory estoppel has been so unsuccessful in the courts. He surmises that claimants may have overestimated the chances of success because of their failure to comprehend a judicial souring on the theory. Another possible explanation is that claimants often bring weak secondary claims of promissory estoppel. Professor Hillman leaves for another day the question of whether promissory estoppel should be more successful and whether promissory estoppel should require reliance

The Many Dimensions of Private Law

This article is a revised version of a paper delivered at the 33rd Annual Workshop on Commercial and Consumer law, held at the Faculty of Law of the University of Toronto. It is a commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge, Press 2003). The article first reviews Waddams\u27 thesis of the inadequacy of simple explanations or categorizations of private law and Waddams\u27 admonition to avoid labeling cases such as contract or tort, as if one involves solely enforcing agreements and the other only wrongdoing. The article then goes on to analyze questions inspired by Waddams\u27 book: What accounts for the popularity of conceptualizing private law? What are the ramifications of the reality that private law is complex and multidimensional? What new approaches to the study of decision-making shed light on the judicial process when judges confront multidimensional problems? The article concludes that analysts should not be sanguine about the ability of judges to handle complexity and that judges make systematic errors in that environment just like everyone else. If categorizing or mapping moves only a few prominent concepts to the forefront, perhaps it performs an important service