A footnote for Jack Dawson

Michigan Law Review

Volumn 100, Issue 7, 2002, Pages 1954-1979

  White, James J ^a   Peters, David A ^a  

^a NONE

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EID: 0041368474     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1556081     Document Type: Article

References (192)

1. "I" means White; "We" means Peters and White.
2. See FRANK MCNAUGHTON, MENNEN WILLIAMS OF MICHIGAN: FIGHTER FOR PROGRESS 60 (1960). After Williams's election as governor in 1950, Jack helped him put together a panel of policy advisors to craft his social programs. Id. at 139-40.
3. We are grateful to Professor Gareth Jones for confirming this anecdote. Personal Communication with Gareth Jones, Visiting Professor, University of Michigan Law School, in Ann Arbor, Mich. (Apr. 30, 2002) [hereinafter Personal Communication with Professor Jones (Apr. 30, 2002)].
4. Ultimately, the position went to Blair Moody, a prominent journalist for the Detroit News. See Vandenberg's Successor, TIME, Apr. 30, 1951, at 22 (suggesting that union pressure and a desire to promote Williams's national ambitions contributed to the appointment of Moody). Despite Moody's name recognition, however, he lost his bid for re-election during the 1952 Eisenhower landslide. HELEN WASHBURN BERTHELOT, WIN SOME, LOSE SOME: G. MENNEN WILLIAMS AND THE NEW DEMOCRATS 119 (1995).
5. Ultimately, the position went to Blair Moody, a prominent journalist for the Detroit News. See Vandenberg's Successor, TIME, Apr. 30, 1951, at 22 (suggesting that union pressure and a desire to promote Williams's national ambitions contributed to the appointment of Moody). Despite Moody's name recognition, however, he lost his bid for re-election during the 1952 Eisenhower landslide. HELEN WASHBURN BERTHELOT, WIN SOME, LOSE SOME: G. MENNEN WILLIAMS AND THE NEW DEMOCRATS 119 (1995).
6. John Philip Dawson 1902-1985, HARV. L. SCHOOL BULL. 36, 37 (1986).
7. Id.
8. For those interested in Jack's scholarly genealogy, he studied with Sir Paul Vinogradoff, whose own work covered much the same intellectual terrain as Jack's. . Personal Communication with Professor Jones (Apr. 30, 2002). We thank Professor Gareth Jones for this insight.
9. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
10. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
11. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
12. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
13. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
14. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
15. See, e.g., John P. Dawson, Effects of Inflation on Private Contracts: Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) [hereinafter Dawson, Effects of Inflation in Germany]. For a list of most (though not all) of Dawson's publications, see Appendix: The Writings of John Philip Dawson, 99 HARV. L. REV. 1126 (1986) [hereinafter Appendix]. His most important work, JOHN P. DAWSON, THE ORACLES OF THE LAW (1968) , based on the Cooley lectures he gave in Ann Arbor in 1959, distills his knowledge of European law, tracing Roman, French and German law and comparing them to the Common Law tradition. An impressive piece of legal history, it also reflects Dawson's understanding of the craft of judging and the ways in which tradition disciplines the judicial process. His other books often drew on comparative law to explore the ways in which different systems addressed similar problems. See, e.g., JOHN P. DAWSON, A HISTORY OF LAY JUDGES (1960); JOHN P. DAWSON, GIFTS AND PROMISES: CONTINENTAL AND AMERICAN LAW COMPARED (1980); JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS (1951).
16. See, e.g., John P. Dawson & Frank E. Cooper, The Effect of Inflation on Private Contracts: United States, 1861-1879 (pts. 1 & 2), 33 MICH. L. REV. 706, 852 (1935) [hereinafter Dawson Effects of Inflation in the United States]; John P. Dawson, Coke and Ellesmere Disinterred: An Attack on the Chancery in 1616, 36 U. ILL. L. REV. 127 (1941); John P. Dawson, The Privy Council and Private Law in the Tudor and Stuart Periods (pts. 1 & 2), 48 MICH. L. REV. 393, 627 (1950).
17. See, e.g., John P. Dawson & Frank E. Cooper, The Effect of Inflation on Private Contracts: United States, 1861-1879 (pts. 1 & 2), 33 MICH. L. REV. 706, 852 (1935) [hereinafter Dawson Effects of Inflation in the United States]; John P. Dawson, Coke and Ellesmere Disinterred: An Attack on the Chancery in 1616, 36 U. ILL. L. REV. 127 (1941); John P. Dawson, The Privy Council and Private Law in the Tudor and Stuart Periods (pts. 1 & 2), 48 MICH. L. REV. 393, 627 (1950).
18. See, e.g., John P. Dawson & Frank E. Cooper, The Effect of Inflation on Private Contracts: United States, 1861-1879 (pts. 1 & 2), 33 MICH. L. REV. 706, 852 (1935) [hereinafter Dawson Effects of Inflation in the United States]; John P. Dawson, Coke and Ellesmere Disinterred: An Attack on the Chancery in 1616, 36 U. ILL. L. REV. 127 (1941); John P. Dawson, The Privy Council and Private Law in the Tudor and Stuart Periods (pts. 1 & 2), 48 MICH. L. REV. 393, 627 (1950).
19. See, e.g., John P. Dawson & Frank E. Cooper, The Effect of Inflation on Private Contracts: United States, 1861-1879 (pts. 1 & 2), 33 MICH. L. REV. 706, 852 (1935) [hereinafter Dawson Effects of Inflation in the United States]; John P. Dawson, Coke and Ellesmere Disinterred: An Attack on the Chancery in 1616, 36 U. ILL. L. REV. 127 (1941); John P. Dawson, The Privy Council and Private Law in the Tudor and Stuart Periods (pts. 1 & 2), 48 MICH. L. REV. 393, 627 (1950).
20. The Harvard Law Review lists some thirty-one articles along with eleven books. See Appendix, supra note 8, at 1126-27.
21. John P. Dawson, Estoppel and Statutes of Limitation, 34 MICH. L. REV. 1 (1935).
22. Id. at 14.
23. John P. Dawson, Mistake and Statutes of Limitations, 20 MINN. L. REV. 481, 486 (1936).
24. Id. at 487. ("The longer these [justifiable] expectations have existed unchallenged, the more entitled they should be to judicial protection.").
25. John P. Dawson, Economic Duress and the Fair Exchange in French and German Law (pt. 1), 11 TUL. L. REV. 345, 345 (1937).
26. Id. at 364-76.
27. John P. Dawson, Economic Duress and the Fair Exchange in French and German Law (pt. 2), 12 TUL. L. REV. 42, 45 (1937).
28. Id. at 61 ("[T]he experience of German courts with processes of valuation amply reveals the manifold difficulties in judicial determination of a 'just price'. . . . Nevertheless, these difficulties, when seen and fully understood, do not prove insurmountable.").
29. John P. Dawson, Economic Duress - An Essay in Perspective, 45 MICH. L. REV. 253, 288 (1947).
30. Id. at 285.
31. See id. at 281.
32. John P. Dawson, Duress Through Civil Litigation (pts. 1 & 2), 45 MICH. L. REV. 571, 679 (1947).
33. Id. at 573.
34. Id. at 577.
35. Id. at 687-93.
36. Dawson, Effects of Inflation in Germany, supra note 8.
37. Id. at 238.
38. Id. at 219-36.
39. Dawson, Effects of Inflation in the United States, supra note 9.
40. Id. at 909.
41. Id. at 912.
42. Id. at 913.
43. See supra note 8.
44. Id. at 1.
45. See id. at 288-91.
46. Id. at 293.
47. JOHN P. DAWSON, THE ORACLES OF THE LAW (1968).
48. Id. at xiii.
49. Id.
50. Id.
51. Id. at 370-71.
52. Id. at 114-15.
53. Aluminum Co. of Am. v. Essex Group, Inc., 499 F. Supp. 53 (W.D. Pa. 1980). See generally, John P. Dawson, Judicial Revision of Frustrated Contracts: The United States, 64 B.U. L. REV. 1 (1984) [hereinafter Judicial Revision in the United States].
54. Aluminum Co. of Am. v. Essex Group, Inc., 499 F. Supp. 53 (W.D. Pa. 1980). See generally, John P. Dawson, Judicial Revision of Frustrated Contracts: The United States, 64 B.U. L. REV. 1 (1984) [hereinafter Judicial Revision in the United States].
55. Alcoa, 499 F. Supp. at 55.
56. Id. at 56.
57. Id. Alcoa developed its indexing system with the aid of now-Federal Reserve Chairman Alan Greenspan. Id. at 58.
58. Id.
59. Id. at 59. Interestingly, Alcoa had to that point made a net profit of nine million dollars on the contract (inclusive of its losses). Id. at 65-66.
60. Id. at 63 ("Both [parties] knew that Essex sought an objective pricing formula and that [Alcoa] sought a formula which would cover its out of pocket costs over the years and which would yield it a return of around four cents a pound . . . . The testimony was clear that each assumed the Index was adequate to fulfill it purpose. This mistaken assumption was essentially a present actuarial error.").
61. Id. at 72.
62. See id. at 80. The Court imposed a new scheme that made the contract price the lesser of either 1) the contract ceiling price as calculated under the original indexing clause or 2) the greater of either that contract price calculated according to the terms of the contract or "that price which yields [Alcoa] a profit of one cent per pound of aluminum converted." Id.
63. 52. Id. at 89.
64. Id. at 91.
65. Id. at 91.
66. Id.
67. Dawson, Judicial Revision in the United States, supra note 43, at 28.
68. John P. Dawson, Judicial Revision of Frustrated Contracts: Germany, 63 B.U. L. REV. 1039 (1983) [hereinafter Dawson, Judicial Revision in Germany].
69. John P. Dawson, Judicial Revision of Frustrated Contracts: Germany, 63 B.U. L. REV. 1039 (1983) [hereinafter Dawson, Judicial Revision in Germany].
70. Dawson, Judicial Revision in the United States, supra note 43, at 29.
71. Id. at 27.
72. Id. at 28. This is reminiscent of Dawson's discussion of duress in civil litigation, and makes the court almost an active participant in that part of the process.
73. Id. at 33.
74. Dawson, Judicial Revision in Germany, supra note 57.
75. See generally Dawson, Effects of Inflation in Germany, supra note 8.
76. Id. at 1041-70.
77. Id. at 1060.
78. Id.
79. For a discussion of the Volkswagen case, see id. at 1083-87.
80. Id. at 1087.
81. Id. at 1089 (emphasis in original).
82. Id. at 1098. Jack was generally an admirer of the German legal system; even here, he identified a number of scholars who took issue with the German Courts' treatment of inflation in the post World War II period. See id. at 1096-98.
83. Aluminum Co. of Am. v. Essex Group, Inc., 499 F. Supp. 53 (W.D. Pa. 1980).
84. See generally Dawson, Judicial Revision in the United States, supra note 43.
85. See id. at 28-30. Dawson critically mentions Richard Speidel, Court-Imposed Price Adjustments Under Long-Term Supply Contracts, 76 NW. U. L. REV. 369 (1981); Michael N. Zundel, Comment, Equitable Reformation of Long-Term Contracts - The "New Spirit" of ALCOA, 1982 UTAH L. REV. 985; and Note, U.C.C. § 2-615: Excusing the Impracticable, 60 B.U. L. REV. 575 (1980).
86. See id. at 28-30. Dawson critically mentions Richard Speidel, Court-Imposed Price Adjustments Under Long-Term Supply Contracts, 76 NW. U. L. REV. 369 (1981); Michael N. Zundel, Comment, Equitable Reformation of Long-Term Contracts - The "New Spirit" of ALCOA, 1982 UTAH L. REV. 985; and Note, U.C.C. § 2-615: Excusing the Impracticable, 60 B.U. L. REV. 575 (1980).
87. See id. at 28-30. Dawson critically mentions Richard Speidel, Court-Imposed Price Adjustments Under Long-Term Supply Contracts, 76 NW. U. L. REV. 369 (1981); Michael N. Zundel, Comment, Equitable Reformation of Long-Term Contracts - The "New Spirit" of ALCOA, 1982 UTAH L. REV. 985; and Note, U.C.C. § 2-615: Excusing the Impracticable, 60 B.U. L. REV. 575 (1980).
88. Dawson, Judicial Revision in the United States, supra note 43, at 31 ("The troublesome question for me at least, is - how far would the Alcoa case and the glosses like this that are being written to praise it carry us along the route that German courts have travelled?").
89. Id. at 1-2.
90. Id. at 26-27.
91. Regulation over pipelines was established by the Natural Gas Act ("NGA") of 1938. In 1954 the Supreme Court in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954), construed the NGA to give the Federal Power Commission authority over gas producers. See David Crump, Natural Gas Price Escalation Clauses: A Legal and Economic Analysis, 70 MINN. L. REV. 61 (1985); Richard J. Pierce, Jr., Natural Gas Regulation, Deregulation and Contracts, 68 VA. L. REV. 63, 64 (1982) (showing ways in which gas regulation, phased deregulation and long-term contracts interact for "results that are both inequitable and inefficient"); Susan Morris, Comment, Gas Purchase Contracts: Equitable Remedies For Breach, 24 HOUS. L. REV. 991, 996 (1987); see also Koch Hydrocarbon Co. v. MDU Resources Group, Inc., 988 F.2d 1529, 1532, 1532 n.3 (8th Cir. 1993) (noting deregulatory effects exacerbated by party overreaching and breach of contract causing a "confusing morass").
92. Regulation over pipelines was established by the Natural Gas Act ("NGA") of 1938. In 1954 the Supreme Court in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954), construed the NGA to give the Federal Power Commission authority over gas producers. See David Crump, Natural Gas Price Escalation Clauses: A Legal and Economic Analysis, 70 MINN. L. REV. 61 (1985); Richard J. Pierce, Jr., Natural Gas Regulation, Deregulation and Contracts, 68 VA. L. REV. 63, 64 (1982) (showing ways in which gas regulation, phased deregulation and long-term contracts interact for "results that are both inequitable and inefficient"); Susan Morris, Comment, Gas Purchase Contracts: Equitable Remedies For Breach, 24 HOUS. L. REV. 991, 996 (1987); see also Koch Hydrocarbon Co. v. MDU Resources Group, Inc., 988 F.2d 1529, 1532, 1532 n.3 (8th Cir. 1993) (noting deregulatory effects exacerbated by party overreaching and breach of contract causing a "confusing morass").
93. Regulation over pipelines was established by the Natural Gas Act ("NGA") of 1938. In 1954 the Supreme Court in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954), construed the NGA to give the Federal Power Commission authority over gas producers. See David Crump, Natural Gas Price Escalation Clauses: A Legal and Economic Analysis, 70 MINN. L. REV. 61 (1985); Richard J. Pierce, Jr., Natural Gas Regulation, Deregulation and Contracts, 68 VA. L. REV. 63, 64 (1982) (showing ways in which gas regulation, phased deregulation and long-term contracts interact for "results that are both inequitable and inefficient"); Susan Morris, Comment, Gas Purchase Contracts: Equitable Remedies For Breach, 24 HOUS. L. REV. 991, 996 (1987); see also Koch Hydrocarbon Co. v. MDU Resources Group, Inc., 988 F.2d 1529, 1532, 1532 n.3 (8th Cir. 1993) (noting deregulatory effects exacerbated by party overreaching and breach of contract causing a "confusing morass").
94. See 12 U.S.C.A. § 1904 (Supp. 1971) which codified Title II of Pub. L. 91-379, Aug. 15, 1970, 84 Stat. 799, as amended, "known as the 'Economic Stabilization Act of 1970', authorized the President, within an established procedural framework, to stabilize prices, rents, wages, salaries, interest rates, dividends and similar transfers, and establish priorities for use and allocation of supplies of petroleum products, including crude oil, and to issue standards to serve as a guide for determining levels of wages, prices, etc., which would allow for adjustments, exceptions and variations to prevent inequities, taking into account changes in productivity, cost of living and other pertinent factors."
95. The Economic Stabilization Act instituted price controls over a number of subjects (rent wages, etc.), including commodities. For natural gas, the ESA worked in conjunction with the Natural Gas Act of 1938 as amended. 15 U.S.C.A. § 717-717w (1976).
96. Gary D. Allison, Energy Sectionalism: Economic Origins And Legal Responses, 38 SW. L.J. 703, 714 n.41 (1984) (noting that the 1978 Natural Gas Policy Act established higher price ceilings for 'newer' gas).
97. Professor Richard Pierce reports that "[r]eserves declined from 198.1 trillion cubic feet in 1967 to 134.3 trillion cubic feet in 1973" and by 1977 the shortfall grew to 26.2% from 3.4%. Richard Pierce, Natural Gas Regulation, Deregulation and Contracts, 68 VA. L. REV. 63 n.18 (1982).
98. See James J. White, Gas Sale Contracts Under the Uniform Commercial Code, 47 INST. ON OIL & GAS L. & TAX'N § 9.01, § 9.02 (1996).
99. 15 U.S.C. § 717(c) (2000).
100. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 414 n.19 (1983) (citing a Federal Trade Commission Staff Report).
101. The new legislation was the National Gas Policy Act of 1978, Pub. L. 95-621, Title I, Repealed by Pub. L. 101-60, § 2(b), July 26, 1989; see also Texaco Inc. v. Duhe, 274 F.3d 911 (5th Cir. 2001). See generally J. David Hughes, Indefinite Escalators: 1985 Does FERC Have a 'Stairway' Down?, 4 ENERGY L.J. 189, 190 (1983).
102. See Consol. Edison Co. of New York, Inc. v. F.E.R.C., 823 F.2d 630, 640 n.13 (D.C. Cir. 1987) (litigation rising from FERC's market manipulations intended to alleviate the high-cost of take-or-pay contracts once supplies became plentiful).
103. Federal Energy Regulatory Commission ("FERC") Order No. 380 effective June 1, 1985. But see Atl. Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex. App 1989) (relieving pipeline company of take-or-pay obligations under force majeure clause where customers were released from obligations by FERC Order 380); see also Order No. 436, Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, 18 C.F.R. §§ 2, 157, 250, 284, 375, 381 (1985); Order No. 500, Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, 18 C.F.R. §§ 2, 284 (1987); Order No. 636, Pipeline Service Obligations and Revisions to Regulations Governing Self-Implementing Transportation; and Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, 18 C.F.R. § 284 (1992).
104. In re Columbia Gas Sys. Inc., 997 F.2d 1039, 1052 (3rd Cir. 1993).
105. See J. Michael Medina et al., Take or Litigate: Enforcing the Plain Meaning of the Take-or-Pay Clause in Natural Gas Contracts, 40 ARK. L. REV. 185, 187-92 (1987).
106. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
107. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
108. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
109. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
110. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
111. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
112. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
113. This trend was boosted by Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (1974), which mandated that "the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal." Robert Meltz, The Eseca Coal Conversion Program: Saving Oil The Hard Way, 5 ENVTL. L. REP. 50146 (1975); see also Richard J. Pierce, Jr., The Regulatory Treatment Of Mistakes In Retrospect: Canceled Plants And Excess Capacity, 132 U. PA. L. REV. 497 (1984); Mark Sievers, An Economic Analysis Of Utility-Coal Company Relationships, 8 J. ENERGY L. & POL'Y 27 (1987); Michael Evan Stern & Margaret M. Mlynczak Stern, A Critical Overview Of The Economic And Environmental Consequences Of The Deregulation Of The U.S. Electric Power Industry, 4 ENVTL. LAW. 79, 86 (1997); Joseph P. Tomain, Electricity Restructuring: A Case Study In Government Regulation, 33 TULSA L.J. 827 (1998); Joseph P. Tomain, Focus On Natural Resources Theory The Dominant Model Of United States Energy Policy, 61 U. COLO. L. REV. 355 (1990) (a 100-year history of U.S. energy policy); Brent L. Vanderlinden, Note, Bidding Farewell To The Social Costs Of Electricity Production: Pricing Alternative Energy Under The Public Utility Regulatory Policies Act, 13 J. CORP. L. 1011, 1015 (1988); Note, Captive Coal Pricing And The Regulation Of Utility-Affiliate Transactions, 68 VA. L. REV. 1409, 1415 n.31 (1982).
114. In 1996 California Governor Republican Pete Wilson deregulated electricity wholesale prices but retained caps on retail prices. When the wholesale prices skyrocketed, yet retail prices could not be raised, electrical companies went so close to bankruptcy that out-of-state sellers refused to sell on credit. Governor Gray Davis then spent $6.2 billion, most if it from the general fund, in the period from January to May of 2001, and in June borrowed $4.2 billion more. By July, the State had negotiated thirty-eight long-term contracts worth $43 billion over ten years with suppliers; and wholesale prices then plunged. This prompted "buyers remorse" with the expected amount of finger pointing and demands that the contracts be renegotiated, or breached and damages paid. To avoid insolvency, California is trying to float a $13.2 billion dollar bond so there is money to pay for hospitals and schools, yet critics charge the bond does nothing to get California out from under the long-term contracts. Gray Davis claims that signing the long-term contracts is the act that drove the spot-market down. See Mitchel Benson, California Controller Is Raising Concerns On Big Bond Sale, WALL ST. J., May 24, 2001, at A12; A.G. Block, If Davis Fails, Bush May Be White Knight, L.A. TIMES, Jan. 14, 2001, at M1; Dan Morain, Concern Over Price of Long-Term Power Pacts Grows Embedded Costs May Yield More Rate Hikes, Critics Say, and the $43-Billion Total Could Complicate Plans to Rescue Edison, L.A. TIMES, July 9, 2001, at B7; George Skelton, Davis' Critics Should Wake Up, Smell the Kilowatts, L.A. TIMES, June 21, 2001, at B8.
115. In 1996 California Governor Republican Pete Wilson deregulated electricity wholesale prices but retained caps on retail prices. When the wholesale prices skyrocketed, yet retail prices could not be raised, electrical companies went so close to bankruptcy that out-of-state sellers refused to sell on credit. Governor Gray Davis then spent $6.2 billion, most if it from the general fund, in the period from January to May of 2001, and in June borrowed $4.2 billion more. By July, the State had negotiated thirty-eight long-term contracts worth $43 billion over ten years with suppliers; and wholesale prices then plunged. This prompted "buyers remorse" with the expected amount of finger pointing and demands that the contracts be renegotiated, or breached and damages paid. To avoid insolvency, California is trying to float a $13.2 billion dollar bond so there is money to pay for hospitals and schools, yet critics charge the bond does nothing to get California out from under the long-term contracts. Gray Davis claims that signing the long-term contracts is the act that drove the spot-market down. See Mitchel Benson, California Controller Is Raising Concerns On Big Bond Sale, WALL ST. J., May 24, 2001, at A12; A.G. Block, If Davis Fails, Bush May Be White Knight, L.A. TIMES, Jan. 14, 2001, at M1; Dan Morain, Concern Over Price of Long-Term Power Pacts Grows Embedded Costs May Yield More Rate Hikes, Critics Say, and the $43-Billion Total Could Complicate Plans to Rescue Edison, L.A. TIMES, July 9, 2001, at B7; George Skelton, Davis' Critics Should Wake Up, Smell the Kilowatts, L.A. TIMES, June 21, 2001, at B8.
116. In 1996 California Governor Republican Pete Wilson deregulated electricity wholesale prices but retained caps on retail prices. When the wholesale prices skyrocketed, yet retail prices could not be raised, electrical companies went so close to bankruptcy that out-of-state sellers refused to sell on credit. Governor Gray Davis then spent $6.2 billion, most if it from the general fund, in the period from January to May of 2001, and in June borrowed $4.2 billion more. By July, the State had negotiated thirty-eight long-term contracts worth $43 billion over ten years with suppliers; and wholesale prices then plunged. This prompted "buyers remorse" with the expected amount of finger pointing and demands that the contracts be renegotiated, or breached and damages paid. To avoid insolvency, California is trying to float a $13.2 billion dollar bond so there is money to pay for hospitals and schools, yet critics charge the bond does nothing to get California out from under the long-term contracts. Gray Davis claims that signing the long-term contracts is the act that drove the spot-market down. See Mitchel Benson, California Controller Is Raising Concerns On Big Bond Sale, WALL ST. J., May 24, 2001, at A12; A.G. Block, If Davis Fails, Bush May Be White Knight, L.A. TIMES, Jan. 14, 2001, at M1; Dan Morain, Concern Over Price of Long-Term Power Pacts Grows Embedded Costs May Yield More Rate Hikes, Critics Say, and the $43-Billion Total Could Complicate Plans to Rescue Edison, L.A. TIMES, July 9, 2001, at B7; George Skelton, Davis' Critics Should Wake Up, Smell the Kilowatts, L.A. TIMES, June 21, 2001, at B8.
117. In 1996 California Governor Republican Pete Wilson deregulated electricity wholesale prices but retained caps on retail prices. When the wholesale prices skyrocketed, yet retail prices could not be raised, electrical companies went so close to bankruptcy that out-of-state sellers refused to sell on credit. Governor Gray Davis then spent $6.2 billion, most if it from the general fund, in the period from January to May of 2001, and in June borrowed $4.2 billion more. By July, the State had negotiated thirty-eight long-term contracts worth $43 billion over ten years with suppliers; and wholesale prices then plunged. This prompted "buyers remorse" with the expected amount of finger pointing and demands that the contracts be renegotiated, or breached and damages paid. To avoid insolvency, California is trying to float a $13.2 billion dollar bond so there is money to pay for hospitals and schools, yet critics charge the bond does nothing to get California out from under the long-term contracts. Gray Davis claims that signing the long-term contracts is the act that drove the spot-market down. See Mitchel Benson, California Controller Is Raising Concerns On Big Bond Sale, WALL ST. J., May 24, 2001, at A12; A.G. Block, If Davis Fails, Bush May Be White Knight, L.A. TIMES, Jan. 14, 2001, at M1; Dan Morain, Concern Over Price of Long-Term Power Pacts Grows Embedded Costs May Yield More Rate Hikes, Critics Say, and the $43-Billion Total Could Complicate Plans to Rescue Edison, L.A. TIMES, July 9, 2001, at B7; George Skelton, Davis' Critics Should Wake Up, Smell the Kilowatts, L.A. TIMES, June 21, 2001, at B8.
118. California and electricity sellers are already in arbitration over the long-term contracts. Ricardo Alonso-Zaldivar; Dan Morain, Davis Open to Noncash Ways to Repay State for Overcharges Energy, L.A. TIMES, July 7, 2001, at A13. California renegotiated its long-term contracts with power suppliers in exchange for settling market-manipulation suits it was pursuing against those suppliers, Calpine and Constellation. Power Plays Energise Electricity Industry, FIN. TIMES, Apr. 26, 2002, at 24. Obviously, state governments (particularly one as large as California) have more arrows in their quiver than private actors; recent revelations about market manipulations by Enron and others suggest that a certain amount of reregulation may be in the offing. See James Flanigan, Regulation, the Cure for Energy Ills, is Coming, L.A. TIMES, May 12, 2002, Pt. 3, at 1.
119. California and electricity sellers are already in arbitration over the long-term contracts. Ricardo Alonso-Zaldivar; Dan Morain, Davis Open to Noncash Ways to Repay State for Overcharges Energy, L.A. TIMES, July 7, 2001, at A13. California renegotiated its long-term contracts with power suppliers in exchange for settling market-manipulation suits it was pursuing against those suppliers, Calpine and Constellation. Power Plays Energise Electricity Industry, FIN. TIMES, Apr. 26, 2002, at 24. Obviously, state governments (particularly one as large as California) have more arrows in their quiver than private actors; recent revelations about market manipulations by Enron and others suggest that a certain amount of reregulation may be in the offing. See James Flanigan, Regulation, the Cure for Energy Ills, is Coming, L.A. TIMES, May 12, 2002, Pt. 3, at 1.
120. California and electricity sellers are already in arbitration over the long-term contracts. Ricardo Alonso-Zaldivar; Dan Morain, Davis Open to Noncash Ways to Repay State for Overcharges Energy, L.A. TIMES, July 7, 2001, at A13. California renegotiated its long-term contracts with power suppliers in exchange for settling market-manipulation suits it was pursuing against those suppliers, Calpine and Constellation. Power Plays Energise Electricity Industry, FIN. TIMES, Apr. 26, 2002, at 24. Obviously, state governments (particularly one as large as California) have more arrows in their quiver than private actors; recent revelations about market manipulations by Enron and others suggest that a certain amount of reregulation may be in the offing. See James Flanigan, Regulation, the Cure for Energy Ills, is Coming, L.A. TIMES, May 12, 2002, Pt. 3, at 1.
121. See, e.g., Freidco of Wilmington, Ltd. v. Farmers Bank of Del., 529 F. Supp. 822, 830 n.9 (D. Del. 1981) (in a case regarding a private lease, the lessor demanded that the court eliminate a price cap because the 1970s oil embargo had driven the cost of utilities for a commercial building far above the cap. While the court refused plaintiff's demand on failure to prove impracticability, it noted in footnote nine that it certainly had the authority for this remedy); George Backer Mgmt. Corp. v. Acme Quilting Co., Inc., 385 N.E.2d 1062, 1066 (N.Y. 1978) (rent escalation clause tied to tenants income).
122. The RESTATEMENT (SECOND) OF CONTRACTS § 11, Reporter's Note states: This Chapter . . . adopts the central notion of Uniform Commercial Code s 2-615 of 'a contingency the non-occurrence of which was a basic assumption on which the contract was made' in dealing with both impracticability and frustration. As to the former, it substitutes the term 'impracticability' for 'impossibility' as better expressing the extent of the increased burden that is required. RESTATEMENT (SECOND) CONTRACTS § 11 (261) deals with Impracticability in general arising after contract formation. § 11 (262-64) define three specific fact circumstances: Death Or Incapacity Of Person Necessary For Performance, Destruction, Deterioration Or Failure To Come Into Existence Of Thing Necessary For Performance, and Prevention By Governmental Regulation Or Order, respectively. Section 11(266(1)) deals with impracticability existing at the time of contracting: Where, at the time a contract is made, a party's performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances indicate the contrary.
123. See Article 2-615(a), which states: Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid. (emphasis added).
124. For cases in various circumstances where the defense of impracticability was ineffective, see Arabian Score v. Lasma Arabian Ltd., 814 F.2d 529 (8th Cir. 1987) (death is a foreseeable risk when purchasing a horse); United States v. Wegematic Corp., 360 F.2d 674 (2d Cir. 1966) (engineering difficulties); General Motors Corp. v. Paramount Metal Prods. Co., 90 F. Supp. 2d 861 (E.D. Mich. 2000) (seller of automobile frames not excused where performance would bankrupt the seller); Power Eng'g & Mfg., Ltd. v. Krug Intern., 501 N.W.2d 490 (Iowa 1993) (1993 embargo of Iraq); Missouri Pub. Serv. Co. v. Peabody Coal Co., 583 S.W.2d 721 (Mo.App. 1979) (profitability immaterial for obligations under long-term coal contract); and Thaddeus Davids Co. v. Hoffman-La Roche Chem. Works, 178 A.D. 855, 166 N.Y.S. 179 (N.Y.A.D. 1917) (delivery of chemicals after World War I broke out). Cf. McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341 (8th Cir. 1985) (excused from refusal of delivery of military aircraft parts to Iran after the 1979 revolution, pursuant to Air Force order).
125. Marcovich Land Co. v. J. J. Newberry Co., 413 N.E.2d 935, 943 (Ind. App. 1980). This Indiana court was flatly derisive of the Alcoa court's "purported" interpretation of Indiana doctrine of impracticability. Id.
126. See PGC Pipeline v. Louisiana Intrastate Gas, 791 F.2d 338 (5th Cir. 1986); Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989) (where government regulation permitted, but did not require, reduced production, it did not render the producer unable to meet contract: no impracticability); Universal Res. Corp. v. Panhandle E. Pipeline Co., No. CA3-85-0723-R (N.D. Tex. Apr. 1, 1986), aff'd, 813 F.2d 77 (5th Cir. 1987); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 83-990-A, slip op. at 11 (M.D. La. Mar. 14, 1985); Sid Richardson Carbon & Gasoline Co. v. InterNorth, Inc., 595 F. Supp. 497, 500 (N.D. Tex. 1984); N. Illinois Gas Co. v. Energy Co-op., Inc., 461 N.E.2d 1049 (Ill. App. 1984); Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla. 1988). The contracts from which buyers were released contained force majeure clauses. See Rodrick J. Coffey, Fairness Is In The Eye Of The Beholder: The Conflicting Interpretations Of The Correct Measure Of Damages For Breaches Of Natural Gas Contracts Containing Take-Or-Pay Provisions, 14 BYU J. PUB. L. 151 (1999); John Burritt McArthur, The Take-Or-Pay Crisis: Diagnosis, Treatment, and Cure for Immorality in the Marketplace, 22 N.M. L. REV. 353 (1992); J. Michael Medina, The Take-Or-Pay Wars: A Cautionary Analysis for the Future, 27 TULSA L.J. 283 (1991); A.F. Brooke, Note, Great Expectations: Assessing the Contract Damages of the Take-or-Pay Producer, 70 TEXAS L. REV. 1469, 1478 (1992); Ryan E. Griffitts, Comment, Roye Realty & Developing, Inc. v. Arkla, Inc.: Two Steps Forward and Two Steps Back in the Take-or-Pay Saga, 20 OKLA. CITY U. L. REV. 219, 234-35 (1996); Marc Ryan Stimpert, Note, Lenape Resources Corporation v. Tennessee Gas Pipeline Company: Natural Gas Take-Or-Pay Contracts Under The Uniform Commercial Code, 18 ENERGY L.J. 421 (1997). But see Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex. App 1989) (relieving pipeline company of take-or-pay obligations under force majeure clause where customers (MichCon) were released from obligations by FERC Order 380).
127. See PGC Pipeline v. Louisiana Intrastate Gas, 791 F.2d 338 (5th Cir. 1986); Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989) (where government regulation permitted, but did not require, reduced production, it did not render the producer unable to meet contract: no impracticability); Universal Res. Corp. v. Panhandle E. Pipeline Co., No. CA3-85-0723-R (N.D. Tex. Apr. 1, 1986), aff'd, 813 F.2d 77 (5th Cir. 1987); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 83-990-A, slip op. at 11 (M.D. La. Mar. 14, 1985); Sid Richardson Carbon & Gasoline Co. v. InterNorth, Inc., 595 F. Supp. 497, 500 (N.D. Tex. 1984); N. Illinois Gas Co. v. Energy Co-op., Inc., 461 N.E.2d 1049 (Ill. App. 1984); Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla. 1988). The contracts from which buyers were released contained force majeure clauses. See Rodrick J. Coffey, Fairness Is In The Eye Of The Beholder: The Conflicting Interpretations Of The Correct Measure Of Damages For Breaches Of Natural Gas Contracts Containing Take-Or-Pay Provisions, 14 BYU J. PUB. L. 151 (1999); John Burritt McArthur, The Take-Or-Pay Crisis: Diagnosis, Treatment, and Cure for Immorality in the Marketplace, 22 N.M. L. REV. 353 (1992); J. Michael Medina, The Take-Or-Pay Wars: A Cautionary Analysis for the Future, 27 TULSA L.J. 283 (1991); A.F. Brooke, Note, Great Expectations: Assessing the Contract Damages of the Take-or-Pay Producer, 70 TEXAS L. REV. 1469, 1478 (1992); Ryan E. Griffitts, Comment, Roye Realty & Developing, Inc. v. Arkla, Inc.: Two Steps Forward and Two Steps Back in the Take-or-Pay Saga, 20 OKLA. CITY U. L. REV. 219, 234-35 (1996); Marc Ryan Stimpert, Note, Lenape Resources Corporation v. Tennessee Gas Pipeline Company: Natural Gas Take-Or-Pay Contracts Under The Uniform Commercial Code, 18 ENERGY L.J. 421 (1997). But see Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex. App 1989) (relieving pipeline company of take-or-pay obligations under force majeure clause where customers (MichCon) were released from obligations by FERC Order 380).
128. See PGC Pipeline v. Louisiana Intrastate Gas, 791 F.2d 338 (5th Cir. 1986); Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989) (where government regulation permitted, but did not require, reduced production, it did not render the producer unable to meet contract: no impracticability); Universal Res. Corp. v. Panhandle E. Pipeline Co., No. CA3-85-0723-R (N.D. Tex. Apr. 1, 1986), aff'd, 813 F.2d 77 (5th Cir. 1987); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 83-990-A, slip op. at 11 (M.D. La. Mar. 14, 1985); Sid Richardson Carbon & Gasoline Co. v. InterNorth, Inc., 595 F. Supp. 497, 500 (N.D. Tex. 1984); N. Illinois Gas Co. v. Energy Co-op., Inc., 461 N.E.2d 1049 (Ill. App. 1984); Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla. 1988). The contracts from which buyers were released contained force majeure clauses. See Rodrick J. Coffey, Fairness Is In The Eye Of The Beholder: The Conflicting Interpretations Of The Correct Measure Of Damages For Breaches Of Natural Gas Contracts Containing Take-Or-Pay Provisions, 14 BYU J. PUB. L. 151 (1999); John Burritt McArthur, The Take-Or-Pay Crisis: Diagnosis, Treatment, and Cure for Immorality in the Marketplace, 22 N.M. L. REV. 353 (1992); J. Michael Medina, The Take-Or-Pay Wars: A Cautionary Analysis for the Future, 27 TULSA L.J. 283 (1991); A.F. Brooke, Note, Great Expectations: Assessing the Contract Damages of the Take-or-Pay Producer, 70 TEXAS L. REV. 1469, 1478 (1992); Ryan E. Griffitts, Comment, Roye Realty & Developing, Inc. v. Arkla, Inc.: Two Steps Forward and Two Steps Back in the Take-or-Pay Saga, 20 OKLA. CITY U. L. REV. 219, 234-35 (1996); Marc Ryan Stimpert, Note, Lenape Resources Corporation v. Tennessee Gas Pipeline Company: Natural Gas Take-Or-Pay Contracts Under The Uniform Commercial Code, 18 ENERGY L.J. 421 (1997). But see Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex. App 1989) (relieving pipeline company of take-or-pay obligations under force majeure clause where customers (MichCon) were released from obligations by FERC Order 380).
129. See PGC Pipeline v. Louisiana Intrastate Gas, 791 F.2d 338 (5th Cir. 1986); Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989) (where government regulation permitted, but did not require, reduced production, it did not render the producer unable to meet contract: no impracticability); Universal Res. Corp. v. Panhandle E. Pipeline Co., No. CA3-85-0723-R (N.D. Tex. Apr. 1, 1986), aff'd, 813 F.2d 77 (5th Cir. 1987); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 83-990-A, slip op. at 11 (M.D. La. Mar. 14, 1985); Sid Richardson Carbon & Gasoline Co. v. InterNorth, Inc., 595 F. Supp. 497, 500 (N.D. Tex. 1984); N. Illinois Gas Co. v. Energy Co-op., Inc., 461 N.E.2d 1049 (Ill. App. 1984); Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla. 1988). The contracts from which buyers were released contained force majeure clauses.
130. See PGC Pipeline v. Louisiana Intrastate Gas, 791 F.2d 338 (5th Cir. 1986); Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989) (where government regulation permitted, but did not require, reduced production, it did not render the producer unable to meet contract: no impracticability); Universal Res. Corp. v. Panhandle E. Pipeline Co., No. CA3-85-0723-R (N.D. Tex. Apr. 1, 1986), aff'd, 813 F.2d 77 (5th Cir. 1987); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 83-990-A, slip op. at 11 (M.D. La. Mar. 14, 1985); Sid Richardson Carbon & Gasoline Co. v. InterNorth, Inc., 595 F. Supp. 497, 500 (N.D. Tex. 1984); N. Illinois Gas Co. v. Energy Co-op., Inc., 461 N.E.2d 1049 (Ill. App. 1984); Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla. 1988). The contracts from which buyers were released contained force majeure clauses. See Rodrick J. Coffey, Fairness Is In The Eye Of The Beholder: The Conflicting Interpretations Of The Correct Measure Of Damages For Breaches Of Natural Gas Contracts Containing Take-Or-Pay Provisions, 14 BYU J. PUB. L. 151 (1999); John Burritt McArthur, The Take-Or-Pay Crisis: Diagnosis, Treatment, and Cure for Immorality in the Marketplace, 22 N.M. L. REV. 353 (1992); J. Michael Medina, The Take-Or-Pay Wars: A Cautionary Analysis for the Future, 27 TULSA L.J. 283 (1991); A.F. Brooke, Note, Great Expectations: Assessing the Contract Damages of the Take-or-Pay Producer, 70 TEXAS L. REV. 1469, 1478 (1992); Ryan E. Griffitts, Comment, Roye Realty & Developing, Inc. v. Arkla, Inc.: Two Steps Forward and Two Steps Back in the Take-or-Pay Saga, 20 OKLA. CITY U. L. REV. 219, 234-35 (1996); Marc Ryan Stimpert, Note, Lenape Resources Corporation v. Tennessee Gas Pipeline Company: Natural Gas Take-Or-Pay Contracts Under The Uniform Commercial Code, 18 ENERGY L.J. 421 (1997). But see Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex. App 1989) (relieving pipeline company of take-or-pay obligations under force majeure clause where customers (MichCon) were released from obligations by FERC Order 380).
131. See PGC Pipeline v. Louisiana Intrastate Gas, 791 F.2d 338 (5th Cir. 1986); Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989) (where government regulation permitted, but did not require, reduced production, it did not render the producer unable to meet contract: no impracticability); Universal Res. Corp. v. Panhandle E. Pipeline Co., No. CA3-85-0723-R (N.D. Tex. Apr. 1, 1986), aff'd, 813 F.2d 77 (5th Cir. 1987); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 83-990-A, slip op. at 11 (M.D. La. Mar. 14, 1985); Sid Richardson Carbon & Gasoline Co. v. InterNorth, Inc., 595 F. Supp. 497, 500 (N.D. Tex. 1984); N. Illinois Gas Co. v. Energy Co-op., Inc., 461 N.E.2d 1049 (Ill. App. 1984); Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla. 1988). The contracts from which buyers were released contained force majeure clauses. See Rodrick J. Coffey, Fairness Is In The Eye Of The Beholder: The Conflicting Interpretations Of The Correct Measure Of Damages For Breaches Of Natural Gas Contracts Containing Take-Or-Pay Provisions, 14 BYU J. PUB. L. 151 (1999); John Burritt McArthur, The Take-Or-Pay Crisis: Diagnosis, Treatment, and Cure for Immorality in the Marketplace, 22 N.M. L. REV. 353 (1992); J. Michael Medina, The Take-Or-Pay Wars: A Cautionary Analysis for the Future, 27 TULSA L.J. 283 (1991); A.F. Brooke, Note, Great Expectations: Assessing the Contract Damages of the Take-or-Pay Producer, 70 TEXAS L. REV. 1469, 1478 (1992); Ryan E. Griffitts, Comment, Roye Realty & Developing, Inc. v. Arkla, Inc.: Two Steps Forward and Two Steps Back in the Take-or-Pay Saga, 20 OKLA. CITY U. L. REV. 219, 234-35 (1996); Marc Ryan Stimpert, Note, Lenape Resources Corporation v. Tennessee Gas Pipeline Company: Natural Gas Take-Or-Pay Contracts Under The Uniform Commercial Code, 18 ENERGY L.J. 421 (1997). But see Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex. App 1989) (relieving pipeline company of take-or-pay obligations under force majeure clause where customers (MichCon) were released from obligations by FERC Order 380).
132. In re Columbia Gas Sys., Inc., 997 F.2d 1039 (3rd Cir. 1993); In re Columbia Gas Sys., Inc., 133 B.R. 174 (Bankr. D. Del. 1991) (concerning an unsecured creditor's motion to be put on unsecured creditor committee). Columbia evidently did not include "market-out" provisions in its contracts which permit a renegotiation of price terms if gas cannot be resold at marketable rates. See Office of Consumers' Counsel v. F.E.R.C., 783 F.2d 206, 216 n.20 (D.C. Cir. 1986).
133. See, e.g., Kentucky Utils. Co. v. S.E. Coal Co., 836 S.W.2d 392 (Ky. 1992) (finding that U.C.C. provision excusing seller from performance when performance has become commercially impracticable because of unforeseen circumstances did not apply to long-term coal supply contract, where contract contained price review provision permitting readjustment of coal price). See generally Steven Walt, Expectations, Loss Distribution, and Commercial Impracticability, 24 IND. L. REV. 65 (1990).
134. For a discussion of impossibility as applied in leases, see Nicholas R. Weiskopf, Frustration of Contractual Purpose - Doctrine or Myth?, 70 ST. JOHN'S L. REV. 239, 252-55 (1996).
135. Marcovich Land Co. v. J. J. Newberry Co., 413 N.E.2d 935 (Ind. App. 1980) (declining to excuse landlord from rebuilding commercial building destroyed in fire merely because financing was unavailable).
136. Fereidun Fesharaki & Robert R. Smith, Environmental Concern To Stimulate Asia-Pacific LNG Use, OIL & GAS J., July 16, 2001, at 68 (observing that gas contracts must be of shorter duration and take-or-pay clauses must allow greater latitude for LNG to remain competitive with coal and oil).
137. Amy R. Templeton, Prudence Of Electric Utilities' Coal Contracts and Fuel Procurement Practices: The Impact On Coal Contract Negotiations, 89 W. VA. L. REV. 715 (1987) (assessing the impact of agency oversight on coal utility contracts with suppliers).
138. Industries whose rates must be approved (or are subject to review) by regulatory entities must take added care. See Pennzoil Co. v. F.E.R.C., 645 F.2d 360, 378 (5th Cir. 1981) (holding that indefinite escalator clauses are prohibited under National Gas Act); Southwestern Elec. Power Co. v. Burlington Northern, Inc., 475 F. Supp. 510 (E.D. Tex. 1979) (Interstate Commerce Commission regarding railroad fees); In re Application of Delmarva Power & Light Co., 486 A.2d 19 (Del. Super. 1984), rev'd, Delmarva Power & Light Co. v. Pub. Serv. Comm'n. 508 A.2d 849 (Del. 1986) (trial court upheld utility commission's refusal to allow price increases under escalator clause new to the coal industry, which was therefore "imprudent" without a price cap; reversed and remanded regarding applicable standard).
139. See R. S. Trigg, Escalator Clauses In Public Utility Rate Schedules, 106 U. PA. L. REV. 964 (1958). This article precedes the 1970s energy crisis and reflects the thinking underlying the clauses that were so heavily litigated a decade later. See also Crump, supra note 77; Templeton, supra note 104; William F. Treanor & Raymond W. Goldfaden, Challenges To Rent Escalation Clauses In Commercial Leases, PROB. & PROP., May/June 1990, at 6.
140. See R. S. Trigg, Escalator Clauses In Public Utility Rate Schedules, 106 U. PA. L. REV. 964 (1958). This article precedes the 1970s energy crisis and reflects the thinking underlying the clauses that were so heavily litigated a decade later. See also Crump, supra note 77; Templeton, supra note 104; William F. Treanor & Raymond W. Goldfaden, Challenges To Rent Escalation Clauses In Commercial Leases, PROB. & PROP., May/June 1990, at 6.
141. See generally Clayton Gillette, Commercial Rationality and the Duty to Adjust Long-Term Contracts, 69 MINN. L. REV. 521 (1985) (criticizing those commentators who urge courts to rewrite contracts); Medina et al., supra note 89.
142. See generally Robert A. Hillman, Court Adjustment Of Long-Term Contracts: An Analysis Under Modern Contract Law, 1987 DUKE L.J. 1, 225 (identifying two situations calling for adjustment: an "agreement model" that accounts for the "relational" realities of many contract settings through a theory of the parties' implicit risk allocation; and the "gap model," which is based primarily on the fairness principle that the parties should agree to share unallocated losses); Subha Narasimhan, Of Expectations, Incomplete Contracting, And The Bargain Principle, 74 CAL. L. REV. 1123, 1193 et seq. (1986); Richard Speidel, Court-Imposed Price Adjustments Under Long-Term Supply Contracts, 76 NW. U. L. REV. 369 (1981); Zundel, supra note 73.
143. See generally Robert A. Hillman, Court Adjustment Of Long-Term Contracts: An Analysis Under Modern Contract Law, 1987 DUKE L.J. 1, 225 (identifying two situations calling for adjustment: an "agreement model" that accounts for the "relational" realities of many contract settings through a theory of the parties' implicit risk allocation; and the "gap model," which is based primarily on the fairness principle that the parties should agree to share unallocated losses); Subha Narasimhan, Of Expectations, Incomplete Contracting, And The Bargain Principle, 74 CAL. L. REV. 1123, 1193 et seq. (1986); Richard Speidel, Court-Imposed Price Adjustments Under Long-Term Supply Contracts, 76 NW. U. L. REV. 369 (1981); Zundel, supra note 73.
144. See generally Robert A. Hillman, Court Adjustment Of Long-Term Contracts: An Analysis Under Modern Contract Law, 1987 DUKE L.J. 1, 225 (identifying two situations calling for adjustment: an "agreement model" that accounts for the "relational" realities of many contract settings through a theory of the parties' implicit risk allocation; and the "gap model," which is based primarily on the fairness principle that the parties should agree to share unallocated losses); Subha Narasimhan, Of Expectations, Incomplete Contracting, And The Bargain Principle, 74 CAL. L. REV. 1123, 1193 et seq. (1986); Richard Speidel, Court-Imposed Price Adjustments Under Long-Term Supply Contracts, 76 NW. U. L. REV. 369 (1981); Zundel, supra note 73.
145. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
146. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
147. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
148. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
149. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
150. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
151. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
152. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
153. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
154. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
155. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
156. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
157. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
158. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
159. Alcoa's first appearance was in E. Allan Farnsworth's 1980 Contracts casebook, 3rd. ed. Our incomplete survey has shown that most casebooks cover Alcoa, and they show few signs of slowing down. The results below indicate which books do and do not include Alcoa: Not included: JOHN D. CALAMARI, JOSEPH M. PERILLO, HELEN HADJIYANNAKIS BENDER, CASES AND PROBLEMS ON CONTRACTS (2nd ed. 1989); JOHN P. DAWSON, WILLIAM BURNETT HARVEY, & STANLEY D. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (4th ed. 1981); JOHN H. JACKSON & LEE C. BOLLINGER, CONTRACT LAW IN MODERN SOCIETY: CASES AND MATERIALS (2d ed. 1980); FRIEDRICH KESSLER, GRANT GILMORE, & ANTHONY T. KRONMAN, CONTRACTS: CASES AND MATERIALS (3rd ed. 1986); JOHN W. WHELAN, CASES AND MATERIALS ON FEDERAL GOVERNMENT CONTRACTS (1985). Included: E. ALLAN FARNSWORTH & WILLIAM F. YOUNG, CASES AND MATERIALS ON CONTRACTS (3d-5th eds. 1980, 1988, 1995); LON L. FULLER & MELVIN ARON EISENBERG, BASIC CONTRACT LAW (5th-6th eds. 1990, 1996); ROBERT W. HAMILTON, ALAN SCOTT RAU, & RUSSELL J. WEINTRAUB, CASES AND MATERIALS ON CONTRACTS (1984) (including nine pages of edited cases plus some glowing commentary); CHARLES L. KNAPP & NATHAN M. CRYSTAL, PROBLEMS IN CONTRACT LAW: CASES AND MATERIALS, (2d-4th eds. 1987, 1993, 1999); ADDISON MUELLER, ARTHUR ROSETT & GERALD P. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983) (including seventeen pages of edited case); EDWARD J. MURPHY & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW (3d-4th eds. 1984, 1991); JOHN EDWARD MURRAY, CONTRACTS: CASES AND MATERIALS (5th ed. 2000); ROBERT S. SUMMERS & ROBERT A. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICE (1987).
160. A few others have sympathetic dicta. See, e.g., Freidco, Ltd. v. Farmers Bank of Del., 529 F. Supp. 822, 830 n.9 (D. Del. 1981); Florida Power & Light Co. v. Westinghouse Elec. Corp., 517 F. Supp. 440, 458 (E.D. Va. 1981); Iowa Elec. Light & Power Co. v. Atlas Corp., 467 F. Supp. 129, 135-36 (N.D. Iowa 1978), rev'd, 603 F.2d 1301 (8th Cir. 1979), cert. denied, 445 U.S. 911 (1980); McGinnis v. Cayton, 312 S.E.2d 765, 779-81 (W. Va. 1984).
161. 14 F. Supp. 2d 623 (D. N.J. 1998).
162. Id. at 626.
163. Id.
164. Id. at 627.
165. Id. at 632.
166. Id. at 638.
167. Id. at 640.
168. Id. at 641-42.
169. Id. at 639 n.24.
170. 312 S.E.2d 765, 780 (W.Va. 1984).
171. Id. at 767.
172. Id.
173. Id. at 770.
174. Id.
175. Id. at 779 (internal quotation omitted).
176. Id. at 780.
177. Id. at 768.
178. Id. at 770 (citing Bluestone Coal Co. v. Bell, 18 S.E. 493 (1893)).
179. 584 F. Supp. 990 (N.D. Ohio 1984).
180. Id. at 998.
181. 516 F. Supp. 995 (N.D. Ill. 1981).
182. Id. at 999 n.5; see also Golsen v. ONG Western, Inc., 756 P.2d 1209, 1223 (Okla. 1988) (Kauger, J., concurring) (disfavoring Alcoa's "expansive" view of impracticability over UCC 2-615).
183. Sheldon W. Halpern, Application Of The Doctrine Of Commercial Impracticability: Searching For 'The Wisdom Of Solomon', 135 U. PA. L. REV. 1123, 1127 (1987); see also United States v. Southwestern Elec. Co-op., Inc., 869 F.2d 310, 315 n.7 (7th Cir. 1989) (defendant tried to rescind on mutual mistake a twenty-five year requirement contract for electricity by arguing that the actual costs for nuclear power plant construction, which determined electricity price, were ten times greater than estimated costs).
184. GEORGE SANTAYANA, Reason in Common Sense, in THE LIFE OF REASON 284 (1905).
185. See Dawson, Judicial Revision in Germany, supra note 57.
186. See Dawson, Effects of Inflation in the United States, supra note 9. For a discussion of the impact of the Civil War on American society, see JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM 1-46, 853-62 (1988) (noting the state of American culture in the mid-nineteenth century and observing the transformation of the United States during the war from an agrarian, pre-industrial value system to a modern, industrial society).
187. See Dawson, Effects of Inflation in the United States, supra note 9. For a discussion of the impact of the Civil War on American society, see JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM 1-46, 853-62 (1988) (noting the state of American culture in the mid-nineteenth century and observing the transformation of the United States during the war from an agrarian, pre-industrial value system to a modern, industrial society).
188. Unlike the First World War, which left an already industrialized Germany reeling from out-of-control inflation, the Civil War galvanized American industry and had a number of (arguably) salutary effects on economic management. See generally MCPHERSON, supra note 136, at 428-53.
189. Dawson hints at this in Judicial Revision of Frustrated Contracts: Germany, noting that the German courts did not consider the impact of the OPEC embargo of 1972-73 sufficient to frustrate performance of contracts. Dawson, Judicial Revision in Germany, supra note 57, at 1081.
190. Dawson hints at this in Judicial Revision of Frustrated Contracts: Germany, noting that the German courts did not consider the impact of the OPEC embargo of 1972-73 sufficient to frustrate performance of contracts. Dawson, Judicial Revision in Germany, supra note 57, at 1081.
191. Those old enough to recall might remember former President Jimmy Carter's donning a cardigan, turning down the thermostat in the White House, and declaring the energy crisis the "moral equivalent of war." Sadly for Carter, this declaration failed to steel the resolve of the American people in the same way that Roosevelt's description of Pearl Harbor as a "date which will live in infamy" did.
192. See supra note 109 (surveying textbooks).