Thursday, May 28, 2009
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: firstname.lastname@example.org. 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]
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]