This article explores competing policies between accurately enforcing mediated settlement agreements and maintaining the confidentiality of the mediation process. Attempts to enforce or resist enforcement of settlement agreements are an increasingly common source of challenges to mediation confidentiality in two contexts: claims of oral settlement agreements and defenses to agreements such as fraud, duress, or lack of authority. In both these settings communications and events that took place during mediation are often relevant to evaluting the validity of settlements, yet this evidence would undermine the promise of confidentiality associated with the mediation process. State legislatures and courts have taken a myriad of approaches to this inherent conflict in deciding if mediated agreements are enforceable. Professor Deason considers the policy choices in light of the potential harms from disclosure to the process of mediation, the values expressed in traditional contract rules, and the central role of party autonomy in mediation. In her view, the importance of mediation confidentiality justifies requiring a signed writing or some other form of record to show the existence of a mediated settlement. The draft Uniform Mediation Act also takes this approach. For contract defenses, however, she supports a case-by-case balancing, despite the uncertainty it introduces. The article also proposes ways for courts to minimize the need to consider mediation disclosures and suggests proceduress to maintain confidentiality during the decision process when it is necessary.
We show in a union-bargaining model that a decrease in the unemployment benefit level increases not only equilibrium employment, but also nominal wage flexibility, and thus reduces employment variations in the case of nominal shocks. Long-term wage contracts lead to higher expected real wages and, hence, higher expected unemployment than short-term contracts. Therefore lower benefits reduce the expected utility gross of contract costs of a union member more with long-term than with short-term contracts and thus create an incentive for shorter contracts. Incentives for employers work in the same direction. Lower taxes associated with lower benefits also tend to make short-term contracts more attractive.
The ABS definition of a "casual employee" includes: many workers who do not have a casual employment contract; a large group whose work is not casual (in the sense of being occasional, irregular or short term); and aggregates across distinct groups of casual contract employees who have very different entitlements and work arrangements. In August 1999, more than one in ten people categorized as casual employees by the ABS were in fact owner managers. This upward bias in the data has increased since the late 1980s and is most evident for people working full-time. Using alternative data from a new irregular ABS survey, it is estimated that there were 1.5 million casual contract employees in August 1998 (equivalent to 17.7 percent of employed persons, compared to 23.2 percent who would have satisfied the ABS definition of a casual employee). In August 1998, 95 percent of casual contract employees had an implicit contract for ongoing employment, only 4 percent had a job which their employer had indicated was short term, and many perceived that they were able to progress to an ongoing contract job. More than a third of casual contract employees had an implicit contract for ongoing employment and regular earnings in August 1998. Many of these "ongoing casuals" have been granted entitlements associated with ongoing employment (such as long service leave) because the true nature of their work is ongoing. However, 80 percent of casual contract employees in August 1998 were not protected by unfair dismissal laws, 62 percent had irregular earnings (excluding overtime), and 40 percent wanted to work more hours. They were also concentrated in low skill occupations. The welfare impacts of particular job traits will depend on the preferences of those affected. Casual contract employees tend to be young, female, and full-time dependent students. A large minority (29 percent in August 1998) are aged over 24 and have dependants, although this group is more likely to have employment conditions closer to ongoing contract employees. Hence, whether an employee has a casual contract provides little information about his or her welfare. Where the concern is about so-called "precarious" employment, analysts need to identify such employment on the basis of work arrangements rather than the type of employment contract.
This short essay was written for a symposium on the 25th anniversary of Marvin v. Marvin, the California Supreme Court decision recognizing the enforceability of cohabitation contracts. It observes that Marvin turned out to be far less significant in the lives of cohabiting couples than many had thought at the time it was decided, and argues that the reason is its misguided reliance upon contract as the basis of claims between partners in an intimate relationship. That reliance was misguided because while couples often think of their relationship as reciprocal, they do not think of it as contractual in any sense that the law can sensibly employ as the basis of liability. A legal regime in which contract is the main source of legal obligation will therefore lead to the rejection of compelling claims by courts unwilling to distort contract doctrine. The difference between reciprocal and contractual relationships, and ease with which they may be confused, is briefly explored. The essay concludes that there is a separate source of legal duty arising from relationships themselves, distinct from contract; that obligations arising from marriage are in fact relational rather than contractual; and that sensible rules governing legal duties between unmarried cohabitants would not ask whether they had a contract, but whether their non-marital relationship shares with marriage those qualities which lead the law to impose reciprocal legal duties on husbands and wives. The essay finally observes that a relational approach, based upon status rather than contract, has been recommended by the American Law Institute, has been enacted in many other countries, including Canada, and is the likely future of American law. Marvin's contract conception of obligation in intimate relationships therefore seems a relic of a failed experiment more than a harbinger of the future.
A number of issues in the common law arise when agents make contracts on behalf of principals. Should a principal be bound when his agent makes a contract with some third party on his behalf which the principal would immediately wish to disavow? The tradeoffs resemble those in tort, so the least-cost-avoider principle is useful for deciding when contracts are valid, and may be the underlying logic behind a number of different doctrines in agency law. In particular, an efficiency explanation can be found for the undisclosed principal rule, under which the principal is bound even when the third party is unaware that the agent is acting as an agent.
Recently, a number of commentators have questioned the validity of the use of default rules in contract law, by challenging the assumptions that lead, in the first place, to the wide use of default rules. (See e.g., the University of Chicago Law Review Symposium on Formalism Revisited, 1999). Motivated in part by this debate, this article challenges one of the most basic assumptions in employment law: that employers and employees are silent about a number of important issues concerning the employment relationship, and thus, that courts are justified in developing default rules to apply to employment law disputes. This assumption has been used to develop default rules in a number of areas, but has been particularly relevant in the development of the law regarding privacy rights and employment security (the Employment-at-Will debate). In the article I argue that the parties to employment contracts have been telling us more than what conventionally we have recognized. In particular, I argue that by carefully analyzing aspects of the employment contract which the parties normally specify (such as the form and the basis of compensation), very specific, non trivial, understandings on other important issues are made apparent. I rely on recent developments in labor economics theory to explore the exchanges employers and employees make, and to analyze how these exchanges are reflected in the compensation provisions of their employment contracts. I argue that the information embedded in the compensation provisions of employment contracts provides valuable insights for the resolution of disputes regarding privacy rights and job security. The article advances an alternative approach to the use of default rules in the employment area, similar to the attempts to advance alternative approaches to the use of default rules in commercial law.
This paper reports the results of an experiment that examines how incentive-based compensation contracts compare to flat-wage compensation contracts in motivating individual learning and performance. I use a multiperiod cognitive task where the accounting system generates information (feedback) that has both a contracting role and a belief-revision role. The results suggest that incentives enhance performance and the rate of improvement in performance by increasing both: (1) the amount of time participants devoted to the task, and (2) participants' analysis and use of information. Further, I find evidence that incentives improve performance only after considerable feedback and experience, which may help explain why many prior one-shot decision-making experiments show no incentive effects. Collectively, the results suggest that incentives induce individuals to work longer and smarter, thereby increasing the likelihood that they will develop and use the innovative strategies frequently required to perform well in complex judgment tasks and learning situations.
Reduced reimbursements from the federal government and third-party payors have threatened the financial viability of many hospitals. An increasing number of hospitals are losing money from their primary mission of caring for patients. The hospital “industry” is still viewed by many as inefficient. Hospitals are generally not run like businesses, nor is it really possible for them to function in the same manner because they have to provide services, to some extent unpredictable, 24 h a day, 7 days a week. Unlike businesses, they cannot increase the charges to their clients to any significant extent when their costs increase because fees are largely dictated by the federal government. For no other business is there the equivalent of capitation or dictation of prices by outside organizations as there is in the medical business. It is perhaps easier for hospital administrations to assess the productivity of their clinical laboratories than of most other hospital services. The number of tests, the number of staff, and the cost of running the service as determined by the supply and salary budgets can be readily quantified. Furthermore, these factors can be bench-marked against the performance of other institutions. However, clinical laboratories also have to contend with the absurd concept of the “billed test” beloved by the federal government, insurance carriers, and consulting companies lacking laboratory expertise. The “billed” test assigns equal weight to a multitest outpatient panel as it does to a dipstick urinalysis or to an elaborate genetic test that is labor-intensive and may take days to complete. This ridiculous concept makes comparisons of productivity between institutions impossible. Indeed, the billed test concept hides increases in productivity because one billed outpatient test may generate as much work as 12 inpatient tests. Successful efforts by hospitals to reduce their inpatient testing, because of non-reimbursability, then mask any increase in revenue-generating outpatient tests. This dual objective of reducing unnecessary inpatient testing and capitalizing on the potential for outpatient revenue has become a major charge for the responsible clinical laboratory director. Clinical laboratories everywhere have been faced with the challenge of doing more tests at less cost, i.e., boosting their productivity. Many laboratories have reached the point at which it is impossible to increase productivity using the equipment that they have. Although each generation of “automated” analyzers usually provides some improvement in throughput and turnaround time for results, they do not have the ability to make the quantum improvements that are a prerequisite to significantly improving productivity. This has led to the concept of “total laboratory automation”, as much a misnomer as “automation” is for a single laboratory instrument. Total laboratory automation goes beyond the automation of analyses but includes automation of much of the important hitherto labor-intensive manual preanalytical phase in the process. The concept was conceived in Japan and has been widely accepted there, so that many large Japanese hospitals now include robotized specimen processing and delivery systems. In the United States, only a very small proportion of even the largest hospital and reference laboratories have installed such systems. Clearly, many laboratory directors have been waiting to learn of the success, or otherwise, of the automated systems in daily operation before they, too, embark on such a major investment. Many also remain uncertain as to whether maximum centralization, as represented by total laboratory automation, is to be preferred over maximum decentralization, as represented by point-of-care testing. The 1999 Clinical Chemistry Forum was designed to present the arguments as to why a fresh approach to laboratory testing was needed and to detail the steps necessary to make the decision whether to commit to total laboratory automation and how to identify the steps involved in a successful installation. The presentations began, appropriately, with discussions of alternative approaches to coping with rapidly escalating workloads. These included total laboratory automation for both individual hospitals and for networks of hospitals. Within the laboratory, alternative approaches were presented, including the use of modular components and automation of selected fixed tasks. The topics covered included a discussion of the components of the necessary overall planning process by a senior administrator from an integrated health system. Another paper dealt with the internal marketing of the concept by the laboratory to the administration and medical staff who would have a major, and vested, interest in the successful operation of a new system. Two of the critical areas that can make or break a robotic system are the layout of the facility with its attendant demands, which involves providing an appropriate environment for both the operators and the analytical systems, and the design and implementation of a superior information system. The latter is essential for capitalizing on the rapid generation of test results. The planning for an automated laboratory entails much more than the operation of the system once it is installed. One of the difficulties in many laboratories is maintaining the daily processing and testing of specimens while a large part of the laboratory’s space is taken out of service during construction. An especially difficult area to manage is ensuring the loyalty and productivity of staff. This is particularly true when they are aware that one of the objectives of installing a robotized laboratory is to reduce labor costs, which must inevitably impact some of the staff whose goodwill and cooperation are essential. This also is essential during all of the steps before the successful introduction of routine operation of the system on a daily basis. A majority of the forum papers are presented here in their full-length form. Four other papers are summarized below that address key problems in working toward an automated laboratory. We believe that the meeting achieved its objective of presenting all of the issues that need to be recognized by a laboratory director before embarking on the very challenging and expensive pathway leading to total laboratory automation. Although this concept has been well accepted in Japan, the small number of installations in the US to date means that those laboratory directors who have installed systems are still pioneers. We are grateful that they were willing to share their experience at the 1999 Clinical Chemistry Forum. In addition, the attendees and the readers of these Proceedings need to recognize the dedication and support given by Jean Rhame and Pamela Nash of the American Association for Clinical Chemistry’s staff, who made the meeting happen. Implementation of total automation of a laboratory is a formidable task. Not only does it ultimately require a large expenditure of money, it requires time and perseverance on the part of its proponents. Two of the papers presented at this forum addressed the very practical issues of getting buy-in from constituencies as diverse as a hospital administration to all of the individuals whose jobs may be threatened by an automated system. A third paper summarized the necessary steps for the overall planning process, and a fourth paper highlighted the critical importance of information handling in a successful robotic facility. These papers are summarized below. Julie A. Fisher, Mount Sinai Medical Center, New York City, discussed selling the concept of a totally automated laboratory to a hospital’s administration and other stakeholders. Successful selling is based on extensive communication and detailed financial and other justifications. There are eight essential elements to successfully selling an automation concept. These are defining goals, assessing needs, obtaining stakeholder buy-in, the decision-making process, vendor selection, the financial planing process, implementation, and metrics. Continuous communication is essential throughout all phases of the project. The wishes of the laboratory must be congruent with those of the administration. The process may be protracted; the cycle between initial concept and routine operation may be as long as 6 years. The trigger for a laboratory to consider automation usually is pressure to reduce costs and improve its efficiency. Automation has the potential to enhance the economic survival of a laboratory, reduce its operating costs, improve the quality of services, and provide a safer work environment. The need for automation should be assessed in the context of whether the institution is planning to expand or to just cut costs. Every ramification must be considered. For example, contractual arrangements with unions must be taken into account. This will become particularly important when the system is fully implemented because contracts may determine who may or may not be laid off. Additionally, needs for upgrading or changing the laboratory information system and analytical instruments must be assessed. A successful automation project depends on stakeholder buy-in. The stakeholders include the laboratory staff, the hospital administration and Board of Trustees, and hospital physicians. It is important to communicate to each of the groups what automation will do for them. Each of these constituencies has different interests and concerns. The laboratory staff are most concerned about job security, but it is important to let them know that automation is a tool to help them perform their jobs differently, and perhaps better. For the administration and Board of Trustees, the focus needs to be on the financial bottom line, with emphases on the opportunity for both revenue enhancement and expense reduction. Other selling points for the administration can include the potential to perform tests for other hospitals and develop group purchasing arrangements with other hospitals for which laboratory services can be provided. Physicians are primarily concerned with turnaround times of test results as well as enhanced information. The financial planning process requires projections of revenue and expenses. A break-even analysis is essential and must demonstrate that automation will reduce costs and/or enhance revenue. Various approaches may be used. A traditional return on investment (ROI) analysis relates net income to investment capital. The formula for calculating a ROI may be refined to take into account sales as well, as in a DuPont analysis. This approach recognizes that it might not be beneficial to tie up assets, thereby lowering profitability. The same formula can be used for an expense analysis by keeping sales constant. The net profit margin increases with a reduction in expenses, and with automation, the key expense reduction is in labor. Technical productivity can be calculated by dividing the number of tests performed by the total number of paid full-time employees or equivalents (FTEs). The calculation of labor savings should take into account how the number of employees will be reduced. With layoffs, there often will be severance and/or retraining expenses to equip the laid-off employees for other jobs. Different laboratory areas will be affected differently. Thus, the laboratories in which automation will be implemented will be more impacted than others. For each laboratory area, a separate projection of staffing needs to be done. Recently, there has been a trend away from justifying automation solely on an ROI analysis because not all of the benefits can be quantified in financial terms. Automation provides added value through improved efficiency coupled with reduction in processing errors, improved turnaround times, automated repeat and reflex testing, enhanced safety, and improved specimen tracking. The active participation of stakeholders in the planning process enhances the laboratory’s ability to sell the concept. Thus, an overall executive committee derives benefits when supported by laboratory management with information systems and instrumentation teams. It is advantageous to enlist stakeholders in vendor selection because acceptance of the system is critically dependent on the their involvement. The more people involved in different aspects of the planning process, the greater the probability of acceptance. Even during the implementation phase, it is important to involve the stakeholders, especially the staff who will be directly affected by the system. During the installation and after the system becomes operational, it is important to continue to communicate to the stakeholders. Information that should be communicated includes actual performance compared with projections, especially with regard to revenue projections and/or expense reductions, the quality of service, and whether a safer environment has been created. Patricia Abbott, Hospital of the University of Pennsylvania (HUP), Philadelphia, discussed the practical aspects of creating a robotized laboratory. Because acceptance of laboratory automation by a hospital’s administration is, to a great extent, dependent on perceived financial benefits, an accurate estimate of the number of employees needed to operate the system is required. The greatest financial returns are likely to arise from reduced labor costs. Unfortunately, the estimate of the number of staff needed to operate a robotized laboratory must be made before the laboratory has any experience with the system or its impact. One of the first steps in the planning process is to decide which tests will be performed in the automated laboratory and which will be performed elsewhere. This decision requires not only an analysis of which tests are performed at each existing bench station but the proportion of tests requested stat vs routine per shift, the number of tests per shift, and the number of technologists working on each shift on each day of the week. With automation, it becomes feasible to combine the stat and routine workbenches for the high-volume tests, but for precise planning of staffing needs, the time of receipt of specimens in the laboratory must be considered. It is also necessary to consider physician needs in deciding which instruments should be interfaced with the robotized and to assess whether greater can be through the test on different analytical the of the planning process, it is essential to assess the and interests of the laboratory staff. This is especially important the laboratory been to a of separate laboratories because there may be a need for extensive of existing on the of the staff in the laboratory at it was to staff the automated laboratory with a staff who would be to operate all of the instruments in the and who would be by staff from the areas working in their areas of expertise. this the laboratory for example, be to on the of of the technologists who would be to operate only the in the automated laboratory to become in operating technologists who been to the and laboratories would not have to the needed to operate a was to assess the of the for working in the automated laboratory, it was on a small number of staff. The for the technologists to assess their to new and for management to assess each potential for a successful to a environment with new for the individuals selected to work in the automated laboratory was each existing The not only on instruments but also on the clinical of the that were new to them and of the results of these tests. before all technologists were to the it was on a selected staff and by their before it was out to all the staff. The of the automated laboratory the laboratory to turnaround time to the the and the in as well as from a processing to a of benefits through of test results possible to the efficiency of testing by the automated laboratory. a the turnaround times for and high-volume tests between in the laboratory information system of the receipt of a specimen and its test results to is now for and for the tests. It is important to have a committee of technologists to at all of work including and in work A of the a of the planning committee once the decision to been made to that the interests of all of the staff were The planning committee has been after the system to Because the staff from different the senior management has with the management of the automated laboratory to their and has with the staff on a as well as on a to that the of the staff are and The senior management a many of the staff a and that problems were to be A committee was as a to and assess problems and The ROI for the project at was based on the of the impact of on the staff, staff were to for all even those not directly affected by the automated laboratory, so that those staff from the automated laboratory be to laboratory the and of these benefits were to them. In the number of that to be was less than been for because of a to tests from other hospitals and the A. the concept of project management as to the of a robotized laboratory. management is as the of and to project to or needs and from a project. Thus, it is a approach to the management of costs, and However, it has only been management requires of a to and manage people and other One individual is to the and is given and to manage the project to its areas of or function are involved in project and the project should have and some in all of them. The primary areas involve the management of cost, and These are by the management of and management is concerned with the of the the overall and of management involves of the necessary the of and the for the project. It is concerned with all aspects of and requires critical and/or as management planning and cost and management all of the of total quality management to that the of the project will the needs of the of the project. management the most use of the people involved in the project and includes and management includes the to the and services needed to the project. management is the function of and to The project must manage or communication so that all of the appropriate people are about the of the project at the appropriate time in the appropriate both and in Each project has a cycle which may have different of and There is no single to manage a but the approach involves the phases of implementation, and the of the concept phase, there usually is only a of a but the of this phase is the for the project. The or design phase usually is when the project is to the project and is the critical detailed planning with planning is the need to develop to and manage of the project. Two critical require the of the people who must the project and the that many individuals working on a project are not working on it The of the phase is a project which should not be The must identify all the necessary and their costs The costs must be to the individual work times and must be with to to the overall project For large such as for installation of a costs with should be as part of the overall project. for costs are of the for for for and of the for the service for the instrument. For large it is to a work which the project to identify the and to to them. A is the for the and of time and cost to be based on is now readily to identify the through the and to determine the of the project. In of the most there is the of with of the project beyond the initial This is not a as long as the project the the cost, and quality and this to the stakeholders. A potential is and to develop management must be a and one of the most to manage is through to can be to whether the can be the probability of is or The latter requires the of a the objectives of the project are it is and its to an Mount Sinai Medical Center, New York City, discussed the critical of a laboratory information system in an automated laboratory. automation involves much more than a robotic system a laboratory. The in an automated laboratory is involved in both analytical and The latter includes both preanalytical such as the processing of and specimen and such as and The provides to the quality and and results and them to the In an automated laboratory, the of the must be integrated with the of the robotic processing and the robotic The each specimen on the robotic system and the robotic process to the and to the specimen and its they might be the system. It and from the robotic system the quality of each primary specimen and the of specimen in the so that specimens may be as It is for tests to be directly into the Not only does this reduce errors, it also has the potential to improve turnaround of to the also and testing. Furthermore, it enhances and provides an accurate time of specimen Within the laboratory, from the to the robotic information and the and system However, such an approach requires or of specimens for which tests were but not on the robotic of the provides in testing and reflex specimen testing. of different of specimens on the but the need to cost and may also a in the testing process because all specimens must through a single An automated laboratory is critically dependent on a and its and system should be in to to of some part of the system. An supply by an is essential to the impact of or in The should have a of that usually share the but with each one of handling the are also needed to provide in one become or to and from the to and and other should be for rapid the system one or more and should also be Each the system should be up to This should be in the at the same time operation of the in the and of the must be with and of the a is it should be in the of the before to the part of the a with the the laboratory staff should to but then should enlist the vendor for The same should be a The staff should provide the laboratory staff with an estimate of the likely so that alternative may be In the of a the medical staff must also be function is this should be communicated to all in the same manner that the was The papers summarized when taken with the full-length papers that will provide the an of the of and with regard to laboratory automation.
This paper examines the relative pricing performance of the Asay (1986) futures option pricing model on the All Ordinaries Share Price Index Futures Call Option contract over the period January 1993-September 1995. A dataset of 8092 matched tick-by-tick transactions in SPI future options is examined, and the Asay model is used to generate pricing estimates for the options. This theoretically derived data is then compared against the real price data, and pricing anomalies are observed. Pricing biases are categorised in terms of time to maturity, and examined in terms of unit error and absolute percentage error. Conclusions are drawn as to the relative efficiency of the model with regard to systematic errors.
The central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete or relational contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the pay-offs for every relevant action and the corresponding sanctions for non performance are prescribed in the contract. In the case of incomplete (or relational) contracts, however, parties have incentives to breach by exploiting gaps in the contract. Making the verifiable terms of the contract legally enforceable and regulating incompleteness in a consistent manner reduces, but does not eliminate, these incentives to breach. There still remains the fundamental question: Should the law seek to complete the contract for the parties? And, if so, from what vantage point should the contractual gaps be filled? Determining the answers to these questions has preoccupied contract law scholars for the past fifteen years. In this paper, I review the academic debate and outline the core arguments for (and difficulties with) three alternative strategies for interpreting relational contracts. Thereafter, I evaluate each strategy in terms of the lessons that are available to us from theory and experience. In particular, I examine the insights from the recent theoretical literature on the economics of incomplete contracting and test those insights against the results of an analysis of the cases interpreting disputed contracts under the significantly different regimes of the Uniform Commercial Code and the common law over the past thirty years. As the title of the paper implies, the case for formalism in interpreting relational contracts emerges out of this analysis. The contract theory literature suggests that the activist role courts traditionally have been asked to assume in specifying default rules ex ante and/or adjusting contractual risks ex post may be far less useful in a complex, heterogeneous economy. Moreover, the invitation to courts to create broadly useful default rules or to undertake equitable adjustment of apparently harsh contract terms threatens a parallel goal of predictable, transparent interpretation of explicit contract terms. If, as theory suggests, the state is simply incapable of supplying parties in a complex economy with useful defaults ex ante or imposing fair outcomes ex post, the better instrumental strategy is for courts to accept the limits imposed by legal formalism and interpret the facially unambiguous verifiable terms of disputed contracts literalistically. Not only would a rigorous application of the common law plain meaning and parol evidence rules preserve the value of predictable interpretation, but the analysis suggests as well that common law formalism has an heretofore unrecognized role in expanding the menu of legally blessed standard form terms and clauses that further reduce contracting costs for most parties. At bottom, the merits of these theoretical speculations turn on the empirical realities. While much of the available evidence is anecdotal, it does point unambiguously to a contrast between the functionalist interpretation of the Uniform Commercial Code and the formalist interpretation that is retained by many common law courts and by the private arbitral regimes of trade associations and other intermediaries. The formalist approach seems to have created a more hospitable environment; one that appears to support both reliable interpretation of contract language and the evolutionary production of standardized and appropriately tailored contract terms. Evidence that commercial parties, whose contracts nominally fall under the jurisdiction of the Code, opt instead for private regimes that employ formalist modes of interpretation further challenges the unquestioned assumption of most contemporary scholars that functionalism is a priori superior to formalism. While the case for formalism is a tentative one, the evidence is sufficient to shift the intellectual burden of proof to those who would defend the activist strategies unleashed by the Uniform Commercial Code.
Significant recent empirical research in commercial law involves interviewing participants in commercial transactions. This comment posits that, in evaluating the findings of these studies, we should pay attention to whether those interviewed were lawyers or nonlawyers. Most people have a tendency to overstate their importance to the work that they do. Thus, one would expect that lawyers would overstate the importance of law (or at least the need for them to manage the law) whereas nonlawyers would have a bias toward understating law's significance. This suggests that lawyers are more likely to view expenditures on negotiating contract terms than are nonlawyers. Professor Dan Keating's recent work on the "battle of the forms" is consistent with these conclusions.
It is well known that contract incompleteness can arise from the impossibility of planning for all future contingencies in a relationship (e.g. Williamson (1975)). In this paper it is shown that whether or not such imcompleteness constrains the efficiency of the contract is very sensitive to assumptions concerning the timing of the resolution of uncertainty. It is shown that when agents must respond to an unforeseen contingency before being able to renegotiate the contract, then contract complexity is a binding constraint, a case that is called ex post hold-up. Secondly, it is suggested that the amount of multi-tasking can provide a measure of contract complexity. When complexity is low, contingent contracting is efficient, while subjective performance evaluation is more efficient when complexity is high. In this case the optimal contract for ex post hold-up is based upon the ability of humans to make subject judgements that are in some cases more informative than explicit performance measures. Moreover, the efficiency of the contract is not sensitive to human error per se, but is an increasing function of the correlation in judgements between the contracting parties.
Allen J. Lockyer, Kevin H. Alt, Daniel P. Coughlin, Michael D. Durham · 7 authors
Documented herein is a review of progress for the recently completed 'Smart Skin Structure Technology Demonstration' (S<SUP>3</SUP>TD) contract number F33615-93-C-3200 performed by Northrop Grumman Corporation, Hawthorne, California and TRW/ASD, Rancho Bernardo, San Diego, California under the Air Force Research Laboratory, Flight Dynamics Directorate, Structures Division's direction and sponsorship. S<SUP>3</SUP>TD was conceived as the first serious attempt, to made a complex antenna become a bone fide aircraft structural panel, without loss of overall structural integrity or electrical performance. The program successfully demonstrated the design, fabrication, and structural validation of a load bearing multifunction antenna component panel subjected to realistic aircraft flight load conditions. The final demonstration article was a structurally effective 36 by 36 inch curved multifunction antenna component panel that withstood running loads of 4,000 pounds per inch, and principal strain levels of 4,700 microstrain. Testing the structural component to ultimate, the panel failed at the predicted limit of 148 kips equating to 150 percent design limit load, after successfully completing one lifetime of fatigue. The load conditions were representative of a mid-fuselage F-18 class fighter component panel installation. The panel was designed not to buckle at ultimate failure, and the dominant failure mode was face sheet pull off, as predicted. Structural test data correlated closely with analysis. Wide band electrical performance for the component antenna panel was validated using anechoic chamber measurements and near field probing techniques, covering avionics communication navigation and identification and electronic warfare functions in the 0.15 to 2.2 GHz frequency regimes.