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All Volumes | Volume 84 | Issue 6

Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content

Nancy S. Kim | Symposium

The Principles of the Law of Software Contracts, or the “Principles,” seek to “unify and clarify” the law of software transactions. The drafters, however, excluded “digital content” from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as “classification confusion.” Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to [...]

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The Principals of the Law of Software Contracts: At Odds with Copyright, Consumer, and European Law?

Hannibal Travis | Symposium

This Article will describe the drafting history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public interest group representation in the process. The drafting process, I will argue, did not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act. Persistent problems include provisions encouraging terms that violate public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not [...]

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What’s Software Got To Do with It? The ALI Principles of the Law of Software Contracts

Juliet M. Moringiello and William L. Reynolds | Symposium

In May 2009, the American Law Institute (ALI) approved its Principles of the Law of Software Contracts (Principles). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (UCC) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (UCITA) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states [...]

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Principles of the Law of Software Contracts: Some Highlights

Robert A. Hilman and Maureen A. O'Rourke | Symposium

In this Essay, we discuss the nature of the Software Principles and describe some of what we believe are their highlights. By highlights, we mean not only Principles that we believe are helpful contributions to the goal of clarification and unification of software contract law, but also those that have already received some attention because of their controversial nature. Specifically, we first explain the focus of our project, which itself presents some challenging issues. We then discuss several of the specific Principles. We present the Principles’ treatment of terms that may conflict with federal intellectual property law. We explain the [...]

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Crucial and Routine Decisions: A New Explanation of Why Ideology Affects U.S. Supreme Court Decision Making the Way It Does

Tracy Lightcap | Article

This Article is an attempt to show why the effect of ideological preferences in models of the Supreme Court’s decisions works the way it does. First, I present an analysis of the expectations justices can form about the results of their decisions. Next, I suggest that for many kinds of cases the conditions for rational choice cannot be met consistently and that, as a consequence, justices use their policy preferences to reach decisions. I argue that the differential effect of attitudinal indicators in empirical studies turns on the type of decisions that are made in particular classes of Supreme Court cases. [...]

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Sovereign Immunity, Anachronistic or Inherent: A Sword or a Shield?

Stanwood R. Duval | Article

The purpose of this Article is to give a brief history of the origin and development of the doctrine of sovereign immunity both in the common law and the civil law. After treating the doctrine’s European origins, the Article will then cross the Atlantic and likewise sketch the development of the doctrine in the United States and Louisiana. After establishing this background, the doctrine and its myriad permutations can be examined as it applies to one of the greatest disasters in our country’s history–Hurricane Katrina. At that point, the viability of the doctrine can be examined against the backdrop of [...]

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The Origins of Sale: Some Lessons from the Romans

James Gordley | Article

The recognition of the contract of sale is rightly said to be a key achievement of the Roman jurists. In Roman law, it had three characteristics. First, a sale is entered into informally. The parties are bound without the use of any special formality such as an oath, a document, a deed, or even a handshake. Second, sale is what the Romans called a contract of good faith (bonae fidei) as distinguished from a contract of strict law (stricti iuris). The parties are bound, not only to what they said, but to all the obligations that follow as a matter of [...]

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  • Directory

    • All Volumes
      • Volume 87
        • Issue 1
        • Issue 2
        • Issue 3
        • Issue 4
        • Issue 5 & 6
      • Volume 86
        • Issue 1
        • Issue 2
        • Issue 3
        • Issue 4
        • Issue 5
        • Issue 6
      • Volume 85
        • Issue 1
        • Issue 2
        • Issue 3
        • Issue 4
        • Issue 5 & 6
      • Volume 84
        • Issue 1
        • Issue 2
        • Issue 3
        • Issue 4
        • Issue 5
        • Issue 6

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