ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, May 28, 2009

Call for Proposals

Call for Proposals

AALS Section on Commercial and Related Consumer Law


“The Principles of the Law of Software Contracts:

A Phoenix Rising from the Ashes of Article 2B and UCITA?”


2010 AALS Annual Meeting, New Orleans, Louisiana

The Executive Committee of the AALS Section on Commercial and Related Consumer Law invites proposals for the Section’s 2010 AALS Annual Meeting program and a print symposium to follow on the topic “The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA?”

The Topic: Contracts concerning computer software have presented difficult legal issues for many years.  Although software is often bought and sold like goods, software contracts do not fit easily into the sale of goods rubric of Uniform Commercial Code Article 2.  In the 1990s, the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL) sought to address special issues concerning software contracts by developing a new UCC Article 2B.  This effort failed because of fundamental disagreements about the substance of important rules.  NCCUSL (now known as the Uniform Law Commission, or ULC) then carried forward the project on its own and, in 1999, promulgated the Uniform Computer Information Transactions Act (UCITA), providing a comprehensive (and controversial) set of rules for licensing computer information.  To date, only Maryland and Virginia have enacted UCITA, and the ULC has ceased promoting additional enactments.

A new software contracts project has emerged in Article 2B’s and UCITA’s wake: the Principles of the Law of Software Contracts.  On May 19, the ALI approved the Principles, which undertake to weave the currently divergent threads of law governing software contracts into a coherent whole that will guide parties in drafting, performing, and enforcing software contracts, assist courts and other arbiters in resolving disputes involving software contracts, and, perhaps, inform future legislation addressing software contracts.  Do the Principles clarify the law of software contracts?  Will they successfully unify the law of software contracts?  Are they consistent with current best practices in software contracting?  Will they encourage desirable future developments in the law and practice of software contracts?  These are among the questions we hope our program speakers and symposium contributors will address.

The Program: Principles Reporter Bob Hillman (Cornell) and Associate Reporter Maureen O’Rourke (Boston U.) will offer their unique insights on the Principles’ drafting, key substantive provisions, and their legal and practical implications.  Amy Boss (Drexel), who was intimately involved with both Article 2B and UCITA and has been an adviser on the Principles, will add her own insights about the prior efforts’ failures and the prospects for the Principles’ success.  We seek one or more additional speakers who will offer their perspectives on the Principles, the economic, historical, policy, and political forces that motivated and shaped them, and their likely impact on the law and practice of software transactions.

The Symposium: We are working to identify a law review that will provide the best outlet in the which to publish papers from our presenters as well as a number of additional papers from those who respond to this call for proposals and others from whom we are soliciting contributions.  In addition to contributions from a broader cross-section of legal scholars than we can offer the opportunity to speak at the annual meeting, we hope that the print symposium will also include articles from interested judges, practitioners, and others.  We currently anticipate that finished papers would be due in late spring or summer 2010 for publication in late 2010 or early 2011.

How to Submit a Proposal: If you would like to present or contribute, please e-mail an abstract, précis, or draft by August 29, 2009 to Professor Keith A. Rowley, Chair of the Section on Commercial and Related Consumer Law.  E-mail:  The Executive Committee will review all submissions and notify by October 1, 2009 those we would like to present their topics at the annual meeting and those additional authors we would like to contribute to the print symposium.

[Keith A. Rowley]

May 28, 2009 in Conferences, Meetings | Permalink | TrackBack (0)

Now in Print


M. Neil Browne & Jennifer Coon, The Impact of Market Ideology on Transnational Contract Law, 30 Loy. L.A. Int’l & Comp. L. Rev. 91 (2008).

Kenneth M. Casebeer, Of Service Workers, Contracting Out, Joint Employment, Legal Consciousness, and the University of Miami, 56 Buff. L. Rev. 1059 (2008).

David R. Collins, Note, Shrinkwrap, Clickwrap, and Other Software Agreements: Litigating a Digital Pig in a Poke in West Virginia, 111 W. Va. L. Rev. 531 (2009).

Kate Galloway, Statutory Modification of Contract Law in Queensland: A New Equilibrium or Entrenching the Old Power Order?, 15 James Cook U.L. Rev. 67 (2008).

Ronald J. Gilson, Charles F. Sabel & Robert E. Scott, Contracting for Innovation: Vertical Disintegration and Interfirm Collaboration, 109 Colum. L. Rev. 431 (2009).

Andrew S. Gold, A Property Theory of Contract, 103 Nw. U. L. Rev. 1 (2009).

Haitham A. Haloush, Prescription in Arab Civil Codes and the UNIDROIT Principles of International Commercial Contracts of 2004: A Comparative Analysis, 15 James Cook U.L. Rev. 97 (2008).

George E. Henderson, A New [Article] 2 for Texas: Well-Suited or Ill-Fitting, 41 Tex. Tech L. Rev. 235 (2009).

David Horton, Flipping the Script: Contra Proferentem and Standard Form Contracts, 80 U. Colo. L. Rev. 431 (2009).

Chunlin Leonhard, Beyond the Four Corners of a Written Contract: A Global Challenge to U.S. Contract Law, 21 Pace Int'l L. Rev. 1 (2009).

Jayce R. Lesniewski, Casenote, Contracts: The War Against Words: When Contract Interpretation Impedes Judicial Goals (Lee v.Fresenius Med. Care, Inc., 741 N.W.2d 117 (Minn. 2007)), 35 Wm. Mitchell L. Rev. 627 (2009).

John D. McCamus, Mechanisms for Restricting Recovery for Emotional Distress in Contract, 42 Loy. L.A. L. Rev. 51 (2008).

Asa Markel, American, English, and Japanese Warranty Law Compared: Should the U.S. Reconsider Her Article 95 Declaration to the CISG?, 21 Pace Int'l L. Rev. 163 (2009).

Kabir Masson, Note, Paradox of Presumptions: Seller Warranties and Reliance Waivers in Commercial Contracts,109 Colum. L. Rev. 503 (2009).

Tatiana Melnik, Note, Can We Dicker Online or is Traditional Contract Formation Really Dying?: Rethinking Traditional Contract Formation for the World Wide Web, 15 Mich. Telecomm. & Tech. L. Rev. 315 (2008).

Gerald M. Moody, Jr., Writing is Reading is Writing: Two Applications of the Parol Evidence Rule to Collective Bargaining Agreements, 2009 Colum. Bus. L. Rev. 326.

Val D. Ricks, The Possibility of Plain Meaning: Wittgenstein and the Contract Precedents, 56 Clev. St. L. Rev. 767 (2008).

Caprice L. Roberts, Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages, 42 Loy. L.A. L. Rev. 131 (2008).

Luigi Russi, Chronicles of a Failure: From a Renegotiation Clause to Arbitration of Transnational Contracts, 24 Conn. J. Int'l L. 77 (2008).

Sarah E. Smith, The United Nations Convention on the Use of Electronic Communication in International Contracts (CUECIC): Why It Should be Adopted and How It Will Affect International E-Contracting, 11 SMU Sci. & Tech. L. Rev. 133 (2007).

Andrew Tettenborn, Consequential Damages in Contract--The Poor Relation?, 42 Loy. L.A. L. Rev. 177 (2008).

Alan M. White, Behavior and Contract, 27 L. & Ineq. 135 (2009).

[Keith A. Rowley]

May 28, 2009 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, May 20, 2009

Plaudits for (Mostly Dead) Contracts Scholars

Also appearing recently on Brian Leiter's Law School Reports: the results of a poll of the blog's readers to name The Most Important Legal Thinkers in American Law of the Past Century.  The poll and the results were both skewed toward dyed-in-the-wool jurisprudes, public law scholars, and Supreme Court Justices.  Nonetheless, several of the top vote-getters at least dipped their toes in the waters of contract law and a few dove in unabashed.  Included among the top 25: 1. Oliver Wendell Holmes, Jr.; 2. Richard Posner; 5. Benjamin Cardozo; 7. Karl Llewellyn; 16. Lon Fuller; and 23. Frank Easterbrook(whose failure to grasp the importance of UCC § 2-206 and the first clause of § 2-207(1) in Hill v. Gateway has spawned considerable judicial and academic debate).  I suggested to the pollster that the poll should have included Corbin, Williston, and Farnsworth (curiously, Grant Gilmore -- though not his posthumous alter ego Gil Grantmore -- was in the poll, but did not make the top 25); others suggested Charles Fried and Roger Traynor.  Still, being able to lay a legitimate claim on 20-24% of the top 25 (depending on your view of Easterbrook's contracts contributions) isn't bad for the red-headed step-child* of legal academia.

[Keith A. Rowley]

* - Being the red-headed child of a red-headed step-child whose adoptive parents shipped him off to live at the YMCA while finishing high school, I feel free to invoke this metaphor.

May 20, 2009 in Miscellaneous | Permalink | TrackBack (0)

Friday, May 15, 2009

Plaudits for (Living) Contracts Professors

Ktesty Brian Leiter's Law School Reports, a reliable source of information about moving and shaking in legal academia, reported yesterday that Contracts professor and current dean of the Seattle University School of Law Kellye Testy will become the new dean at the University of Washington School of Law.  I met Kellye at the 1999 AALS Conference on Contracts in Washington, DC and have had several opportunities to talk and correspond with her since then.  She's terrific.  Congratulations, Kellye!


This also affords me the opportunity for long overdue acclaim for our friend Tadas Klimas, who has made the trip from Lithuania to the International Contracts Conference and the AALS Contracts Mid-Year in Montreal.  Some of you may recall that Tadas was the dean for several years of the Vyatus Magnus University School of Law in Vilnius and actively sought to Westernize legal education in his country.  He has also taught as a visiting professor at Stetson, as well as at universities in Spain and Brazil.  Earlier this year, Lithuanian President Valdas Adamkus decreed Tadas a Cavalier of the Lithuanian Order of Merit.  Sveikiname, Tadas!

[Keith A. Rowley]

May 15, 2009 in Contract Profs, In the News, Law Schools | Permalink | TrackBack (0)

Thursday, May 14, 2009

A Lesson in Contract Drafting to Trump All Others

Trumpbuildings What is the drafting lesson to trump all others?  The usual: one size does not fit all.  

AmLaw Daily reports that Trump Corporation leases space in one of the co-op buildings it constructed in New York in the 1980's.  The co-op board of that building (Trump Plaza Owners, Inc.) is looking to evict Trump Corporation, alleging it is nearly $87,000 in arrears.  

At the helm of the effort to remove Trump from the building is the president of the co-op, Andrew Perel (his day job is as an environmental law partner at Steptoe & Johnson).  And here's where Mr. Perel provides the lesson

"The funny part of it is what one of his internal lawyers must have done years ago," Perel says. "Normally Trump is the landlord, not the tenant. So what they did is they took one of their leases and just changed the names. And so it's not a very favorable lease if you're the tenant."

* * * The co-op gave notice of default to Trump Corporation on April 10, but the company still didn't pay its rent. The lease terminated May 6, five days past the deadline required to pay the rent and avoid termination.

"If you don't pay the rent when Donald Trump is your landlord, he comes down on you like a hammer," Perel says. "Well lo and behold, he signed a lease that was his own lease and he's the tenant. And he missed April and May.

Maybe the other lesson is: what's good for the goose, is good for the gander.

[Meredith R. Miller]

May 14, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2009

Is Miss California in Breach of Contract?

Miss California - Carrie Prejean - has been getting a lot of press play lately.  Just recently, at the Miss USA pageant, she got into a little bit of a jam when responding to Perez Hilton's question about same-sex marriage.  Now, in a story written for ContractsProf Blog, the LA Times reports that she may lose her crown for breach of contract:

Officials with the Miss California USA Pageant said today in Beverly Hills that title-holder Carrie Prejean is in breach of contract and "entered the contest under false pretenses." Donald Trump, who owns the Miss USA pageant, will decide tomorrow whether she will keep her crown.

Prejean didn't inform contest officials about her involvement with anti-gay marriage organizations and failed to show up for public appearances as required under her contract with the Miss USA organization, said Keith Lewis and Shannon Moakler, co-executive directors of Miss California USA.

Prejean's brief reign has been clouded by controversy over semi-nude photos and her comments on gay marriage. She made national headlines last month when during the Miss USA pageant she said that marriage should be between a man and woman.

She said in later interviews that she does not support gay marriage (California voters voted to prohibit gay marriage last November). Some have questioned whether her comments cost her the Miss USA title, and she's been the subject of much criticism from pro-gay-marriage activists. Her supporters believe she is being singled out because of her views on gay marriage, which they say are the same as President Barack Obama's.

Now, Miss California officials say they are looking into whether Prejean violated rules by working for a group opposed to gay marriage and by posing semi-nude. It's unclear whether she could lose her California crown if officials determine that she broke the rules. Prejean has said she did nothing wrong.

Donald Trump, who runs Miss USA, told KIIS-FM (102.7) radio last week that he would review the photos. California pageant officials said they first thought that there was only one racy photo but have since discovered there are four. “This completely changes things for us,” Keith Lewis, co-director of the Miss California USA pageant, said last Wednesday in a statement. “Yesterday, we thought she had explained things accurately. We need to revisit this issue with her."

The Donald loves a controversy -- suddenly people are actually paying attention to his Miss USA enterprise (for other examples see this and this).  I think he'll tell Miss California: "You breached the contract.  You're fired."   

[Meredith R. Miller]

May 12, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2009

After a Home Short Sale, Lender May Still Seek the Difference

Foreclosure2 For underwater homeowners who opt for the short sale, this WSJ article suggests that they still might have to tread water.  In a short sale, a seller facing foreclosure can work out a deal with the lender to sell the property for less than the outstanding debt, which the lender will accept as a payoff.  However, as the article explains, this doesn't necessarily mean that the borrower is "home free":

In a growing number of cases, holders of mortgages or home-equity loans are requiring borrowers in short sales to sign a promissory note, which is a written promise to pay back a loan or debt. Real-estate agents and attorneys say they have seen an increase in requests for promissory notes as mortgage companies look to short sales as an alternative to foreclosure.

In many states, lenders have always had the right to pursue former homeowners for unpaid mortgage debt. Yet until recently, most borrowers who ran into trouble were able to refinance or sell their homes and pay off their loans. Now, falling home prices are widening the gap between home values and mortgage balances, and the number of homeowners who can't make their mortgage payments is rising as the economy has weakened. More than 3.8 million homes will be lost in 2009 and 2010 because borrowers can't make their mortgage payments, according to forecasts from Moody's

Some borrowers are surprised to find themselves on the hook. Jodie Byrd sold her home in the Los Angeles area in a short sale last summer after her husband lost his job and the couple realized they wouldn't be able to make their mortgage payments. The sale price covered the $685,000 mortgage, but their lender, Washington Mutual Co., then began pursuing them for the $21,600 balance on their second mortgage.

Ms. Byrd says a clause in their contract gave Washington Mutual the right to pursue the debt, but adds that her real-estate agent said that wasn't likely to happen. The couple eventually settled the claim for $4,000.

A spokesman for J.P. Morgan Chase & Co., which acquired Washington Mutual last year, says it's the company's policy not to comment on individual cases. Speaking generally, he says, "a short sale may resolve the first mortgage, but the second mortgage ... would be a separate negotiation with the lender or servicer."

Some experts say that mortgage companies may pursue leftover debt, or "deficiencies," in greater numbers as the housing market settles. Lenders are "doing everything possible to work with their borrowers and trying to bring stability back to the lending and real-estate market," says Marc Ben-Ezra, an attorney in Ft. Lauderdale, Fla., who represents mortgage companies in foreclosures. "However, the ability to get a deficiency judgment is a valuable right that I think lenders will pursue aggressively in the future as the market stabilizes."

What, then, is the incentive for the borrower to opt for a short sale instead of foreclosure?  It seems that, if the borrower's counsel can't get the bank to consider the loan paid in full, the better option for the borrower is to allow the house to go into foreclosure.  Why would anyone counsel the borrower to opt for a short sale if the borrower has to sign a promissory note for the difference?  As I understand it, either option is bad for a borrower's credit. 

[Meredith R. Miller]

May 8, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

Saturday, May 2, 2009

Now in Print


Paula D. Baron, Confused in Words: Unconscionability and the Doctrine of Penalties, 34 Monash U.L. Rev. 285 (2008).

Omri Ben-Shahar, A Bargaining Power Theory of Default Rules, 109 Colum. L. Rev. 396 (2009).

Curtis Bridgeman, Contracts as Plans, 2009 U. Ill. L. Rev. 341.

Joshua A.T. Fairfield, Anti-social Contracts: The Contractual Governance of Virtual Worlds, 53 McGill L.J. 427 (2008).

Joshua Getzler, Quantum Meruit, Estoppel, and the Primacy of Contract, 125 L.Q. Rev. 196 (2009).

Matthew C. Jennejohn, Collaboration, Innovation, and Contract Design, 14 Stan. J.L. Bus. & Fin. 83 (2008).

David McLauchlan, Contract Interpretation: What Is It About?, 31 Sydney L. Rev. 5 (2009).

Colleen P. MurphyWhat Is Specific About "Specific Restitution"?, 60 Hastings L.J. 853 (2009).

M.H. Ogilvie, Mental Distress and Punitive Damages for Breach of Contract in the Supreme Court of Canada: Here's the Remedy, but Where's the Right?, [2009] J. Bus. L. 248.

Carl N. Pickerill, Executory Contracts Re-Revisited, 83 Am. Bankr. L.J. 63 (2009).

Ingeborg Schwenzer & Pascal Hachem, The CISG--Successes and Pitfalls, 57 Am. J. Comp. L. 457 (2009).

D. Gordon Smith & Brayden G. King, Contracts as Organizations, 51 Ariz. L. Rev. 1 (2009).

Robert P. Bartlett, III, Commentary, 51 Ariz. L. Rev. 47 (2009).

Anna Gelpern, Commentary, 51 Ariz. L. Rev. 57 (2009).

Richard S. Wirtz, Cost of Performance or Difference in Value?, 59 Case W. L. Rev. 61 (2008).

[Keith A. Rowley]

May 2, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2009

Happy Law Day!


Happy Law Day!

[Meredith R. Miller]

May 1, 2009 | Permalink | TrackBack (0)