Note by Nicolette S. Kraska
Article by Kevin Sobel-Read, Glen Anderson, and Jaakko Salminen
Article by Nicholas Cornell
Despite the dramatic changes in family structure in the past decades—including the unprecedented and skyrocketing number of families who live in nonmarital arrangements— marriage and marriage-mimic institutions remain the only legal options for the recognition of relationships. This regulatory regime leaves millions of Americans without the means to establish and protect relationship rights. This Article suggests that the legal issues arising from nonmarital relationships would be best addressed if more options for legal recognition of such relationships were offered. Accordingly, this Article presents the primary principles of a registration-based marriage alternative that is founded on contract: “registered contractual relationships” (RCRs). This legal institution would offer couples the option to sign—and deposit with the state—a contract defining the partners’ obligations and rights vis-a?-vis one another and changing their status to that of “registered partners.” Registered partners would receive most of the rights and benefits that the state provides for married couples. Registration would not require a solemnization process nor any ceremonial or religious component and would provide an easy way to dissolve relationships in cases where couples do not have minor children. This model enjoys the flexibility of contracts and the certainty of official registration. It promotes greater autonomy in family formation in two ways: it allows more choice among state-sanctioned mechanisms, and it allows people to design the terms of their relationships, rather than imposing the one-size-fits-all structure of marriage. The introduction of RCRs would have far-reaching legal and societal consequences. RCRs would provide a functional model for registration and termination of partnerships, offer an alternative that is not associated with marriage's symbolism and that acts to reduce the harm that symbolism creates, and accommodate a wide range of family structures. At the same time, they would efficiently address the state’s need to regulate some aspects of relationships in the interest of avoiding and mediating conflicts and of encouraging couples to think about and negotiate their rights early in their relationships. The Article also looks at the success of the French Pacte Civil de Solidarite? (PACS)—a model that resembles RCRs and provides important lessons to the United States.
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 resolve the conundrum of how to balance the proprietary rights and interests of licensor-owners and the rights and interests of licensee-consumers. This conundrum in turn has created problems of contractual form and user assent that arose out of software transactions but which have much more troubling applications in other contexts. With (and sometimes, even without) a click of a mouse, one can relinquish intellectual property, privacy, and expression rights. This Essay proposes that the Principles should generally apply to digital content. The Principles are an impressive accomplishment and go a long way toward unifying and clarifying the law of software transactions. This Essay urges that they go even further.
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 properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is that European Union (EU) directives on the subject of consumer protection and electronic commerce are of much greater importance today, particularly given the explosion in e-commerce between the United States and Europe. This Article will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with U.S. federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with EU and domestic European law. The Principles and the comments thereto appear to sanction conduct that is in tension with the federal Copyright and Patent Acts, the common law of several U.S. states, and the EU's directives on Unfair Terms in Consumer Contracts (1993) and Protection of Consumers in Respect of Distance Contracts (1997). The Principles seem to be an imperfect attempt to unify the law of software contracts, codify best practices, and develop the law in a desirable direction. Finally, the Article will discuss when it is appropriate to harmonize U.S. and EU law and public policy.
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 enacting “bomb shelter” provisions to ensure that UCITA would never enter those states by way of a choice of law clause. Although the Principles was conceived, in part, as a counterweight to UCITA, the latter was dead in the water by the time the Principles Project became active. Nevertheless, the Principles Project proceeded apace. This Article examines the results of that decision.