ContractsProf Blog

February in Las Vegas ...

Call for Participation and Proposals
Spring Contracts Conference
William S. Boyd School of Law, UNLV
Las Vegas, Nevada
February 26 & 27, 2010

In the spirit of the fine International Conferences on Contracts that Frank Snyder launched and helped organize in Fort Worth, Houston, and Sacramento, UNLV's William S. Boyd School of Law will host a two-day conference designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, as-yet-fully-formed ideas for scholarship, and pedagogical innovations, and to network with colleagues -- and potential collaborators or mentors -- from around the country and the rest of the (predominantly) common-law world.

Invitation: We invite paper, presentation, and panel proposals exploring any aspect of contract law, theory, and policy writ large (including, but not limited to, bankruptcy/insolvency, commercial law, consumer law, dispute resolution regimes, family law, insurance law, legal systems, and restitution, in addition to more traditional contract topics) from a behavioral, comparative, critical, doctrinal, economic, empirical, equitable, historical, institutional, interdisciplinary, jurisprudential, pedagogical, philosophical, policy-driven, or political perspective. We also solicit volunteers to serve as moderators or discussants for panels that are not "packaged deals."

The CFPs issued earlier this year for the AALS Contracts Section's January annual meeting program on New Approaches to Teaching Contracts: A “Teach-In” and the AALS Commercial and Related Consumer Law Section's January annual meeting program on The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA? each yielded more excellent proposals than either section could accommodate in New Orleans. Both topics remain quite relevant, and I hope to assemble one or more panels on each that will continue the conversations begun in New Orleans. I am also working on the opening plenary, my UNLV colleague Jeff Stempel is organizing a panel on insurance contracts, and Wayne Barnes (Texas Wesleyan) is organizing a panel on comparative contract law and theory. Those efforts, if all bear fruit, still leave room for many more presenters, moderators, and discussants.

We will try to accommodate as many presenters, moderators, and discussants as possible. We particularly encourage junior scholars and those who work in non-U.S. legal systems to propose papers or panels and to volunteer to serve as a discussant or moderator. We also welcome anyone who wishes to attend the conference without presenting or serving as a discussant or moderator. The educational and networking benefits alone are worth the price of admission.

Publication: There is no publication requirement for conference participants, although experience suggests that individual papers and panels often find good homes. The Nevada Law Journal encourages participants to submit individual and panel papers and hopes to publish several works from the conference in upcoming issues.

Likely Attendees: In addition to those already mentioned, as of November 30, the following have either committed or expressed a strong desire to attend: Eniola Akindemowo (Thomas Jefferson), Roy Anderson (SMU), Dan Barnhizer (Michigan State), Charles Calleros (Arizona State), Hazel Glenn Beh (Hawaii), Barbara Bucholtz (Tulsa), Scott Burnham (Montana/Ohio State), Gerald Caplan (McGeorge), Miriam Cherry (McGeorge), Carol Chomsky (Minnesota), Karen Halverson Cross (John Marshall), Sidney DeLong (Seattle), Larry DiMatteo (Florida, Warrington College of Business), Jay Feinman (Rutgers-Camden), Marjorie Florestal (McGeorge), David A. Friedman (Willamette), Larry Garvin (Ohio State), Danielle Kie Hart (Southwestern), Nicholas Johnson (Fordham), Yong-Sung Jonathan Kang (U. of Washington), Nancy Kim (Cal Western), Tadas Klimas (Lithuania), Chuck Knapp (UC-Hastings), George Kuney (Tennessee), Peter Linzer (Houston), Charles Martin (Florida Coastal), Jennifer Martin (Oregon), Meredith Miller (Touro), Marcy Peek (Whittier), Joe Perillo (Fordham), Lydie N. Pierre-Louis (St. Thomas, Florida), Deborah Post (Touro), Michael Pratt (Queen's University, Ontario), Cheryl Preston (BYU), Scott Pryor (Regent), Val Ricks (South Texas), Caprice Roberts (West Virginia), Irma Russell (Tulsa), Adam Scales (Washington & Lee), Andrew Schwartz (Colorado), Sean Scott (Loyola-L.A.), Otto Stockmeyer (Cooley), Howard Walthall (Cumberland), Jarrod Wong (Pacific), and Debbie Zalesne (CUNY).

Proposals: To propose a presentation or panel, please e-mail a title, brief description, and any supporting materials by January 4, 2010 to keith.rowley@unlv.edu (or snail-mail it to me at 4505 S. Maryland Parkway, Box 451003, Las Vegas, NV 89154-1003).  If you would like to discuss or moderate, please let me know your interests and availability by January 4.  We will evaluate all proposals, and try to accommodate all requests to discuss or moderate, received by January 4; we will entertain proposals and requests received after January 4 on a space-available basis.

Preliminary Schedule: The conference program will begin both Friday and Saturday morning no later than 9:00 a.m. (grazing and conversational opportunities will start earlier) and should run until 5:00 or 5:30 p.m. each day.

Accommodations: The Hyatt Place adjacent to campus (4520 Paradise Road, Las Vegas, NV 89169) is holding a block of rooms at the rate of $118.00 per night (plus tax). The official deadline for hotel registration at the conference rate is January 25, 2010. However, I encourage you to book sooner, as we blocked a limited number of rooms (due to The Hyatt Place requiring the law school to guarantee at least 80% occupancy and pay the difference if actual registration was less than we anticipate) and will be more likely to induce The Hyatt Place to make the conference rate available to additional attendees if early registration is robust.

To book a conference-rate room at The Hyatt Place, go to www.lasvegas.place.hyatt.com; choose a check-in date no earlier than February 25, 2010 and a check-out date no later than February 28, 2010; enter group code G-BOYD in the box labeled Group/Corporate #; hit the check availability button; if a room is available, verify that Boyd School of Law Contracts Conference appears next to rate details and, if everything matches, then hit book. If you have trouble booking online, or if you prefer to reserve a room over the phone, please call the hotel at (702) 369-3366.

Transportation: For attendees who stay at the conference hotel, The Hyatt Place provides airport shuttle service and we will provide transportation between The Hyatt Place and the law school for those not wanting to walk the mile or so. Attendees who prefer to stay on The Strip or elsewhere are responsible for their own ground transportation.

Sustenance: Your registration fee will cover the costs of lunches both days and a reception and dinner Friday evening, as well as coffee, fruit, and baked goods each morning and cold beverage service and morsels each afternoon. The Hyatt Place also offers a complimentary continental breakfast, which might be particularly attractive to those whose body clocks are on Eastern or Central Time (or earlier).

Registration: We're still finalizing the conference registration fee and process. The registration fee will be no more than $250. This is higher than past spring contracts conferences, in part because some law school publishers, in light of the ongoing economic crisis, have not subsidized the conference to the extent they have in past years. Fortunately, the relatively low conference hotel rate (compared to prior conferences), free airport transportation for those staying at the conference hotel, and the relative ease and low cost of flying into and out of Las Vegas's McCarran Airport (which is less than two miles from the hotel) compared to prior venues, will offset the higher registration fee.

If you have any questions, please e-mail me at keith.rowley@unlv.edu or call me at (702) 895-4993.

[Keith A. Rowley]

AALS Program and Print Symposium on Teaching Contracts

The AALS Section on Contracts invites you to attend our Annual Meeting program on New Approaches to Teaching Contracts: A Teach-In and solicits additional proposals for a companion symposium issue to appear in the Washington Law Review.

The Topic: Responding to profound changes in the practice of law and in our larger culture, many Contracts professors strive to update their methods and materials.  In the spirit of the Annual Meeting’s transformative law theme, our program will explore a variety of new approaches that contracts professors have begun to introduce in the classroom and in teaching materials to address both changes in the structure of practice that require new lawyers to hit the ground running and ways that wired students synthesize material and acquire skills.  We hope that the program, as a whole, will motivate experienced contracts professors to de-laminate their notes and inspire newer professors to move beyond their own professors in developing new ways to convey the beauty, complexity, and occasional imperfections of contract law.

The Program: Our annual meeting program, scheduled for Friday, January 8, 10:30 AM to 12:15 PM, Melrose Room, Third Floor, Hilton New Orleans Riverside, will feature Douglas Baird (Chicago) on the Langdellian, classic-case-centered method; Scott Burnham (Montana) on using drafting exercises to develop both skills and doctrinal understanding; Carol Chomsky (Minnesota) or Christina Kunz (William Mitchell) on their contribution to Thomson/West’s new Interactive Casebook Series, Contracts: A Contemporary Approach (West forthcoming 2010); Jonathan Hyman (Rutgers-Newark) on "Teaching Contracts with Student Role-Play Arbitrations"; Emily Kadens (Texas) on adapting the problem-based method more commonly used in upper-level commercial law courses to the first-year Contracts course; Shruti Rana (Maryland) on "Integrating Cross-border Perspectives on Contract Law: Comparing US and International Perspectives on Acceptances;" and Deborah Schmedemann (William Mitchell) on "Actual Reality: Peopling the Contracts Course."

The Print Symposium: The Washington Law Review will publish a print symposium in its November 2010 issue, which will include papers from most of our presenters, papers selected from among those who responded to our initial call for proposals, as well as others from whom we solicited contributions, and some shorter responses and replies.

How to Submit a Paper or Proposal: We may be able to accommodate on a space-available basis a limited number of additional short (15-20 pages) papers, responses, and replies in the symposium issue.  If you would like to contribute please e-mail an abstract, précis, or draft by Monday, December 14, 2009 to the Planning Subcommittee: Martha Ertman (Maryland), Lisa Bernstein (Chicago), and Keith Rowley(UNLV).  Please direct your submission to all three of our email addresses: mertman@law.umaryland.edu, lbernst621@aol.com, and keith.rowley@unlv.edu, respectively.  The Planning Committee and members of the law review's editorial board will review all timely submissions and offer publication to any we can accommodate.

[Keith A. Rowley]

AALS Program and Print Symposium on the Principles of the Law of Software Contracts

The AALS Section on Commercial and Related Consumer Law invites you to attend our Annual Meeting program on The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA? and solicits additional proposals for a companion symposium issue to be published in the Tulane Law Review.

The Topic: On May 19, 2009, the ALI approved the Principles of the Law of Software Contracts, 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 our program speakers will address.

The Program: The Commercial and Related Consumer Law Section's annual meeting program, scheduled for Saturday, January 9, 10:30 AM to 12:15 PM, in the Magnolia Room, Third Floor, Hilton New Orleans Riverside, will feature Principles Reporter Bob Hillman (Cornell) and Associate Reporter Maureen O’Rourke (Boston U.), who will offer their unique insights on the drafting process, key substantive provisions, and their legal and practical implications; Amy Boss (Drexel), who will add her insights about the failures of the UCC Article 2B project and UCITA and the prospects for the Principles’ success; Juliet Moringiello (Widener), who will discuss her and co-author Bill Reynolds's (Maryland) paper "What's Software Got to Do With It?," offering their perspectives on the Principles process, largely ignoring past efforts and debates, and addressing some of the assumptions underlying the Principles and how they address those assumptions; and Florencia Marotta-Wurgler (NYU), who will discuss her and co-author Yannis Bakos's (NYU Stern School of Business) paper "How Much Does Disclosure Matter?," which delves deeper into the value of disclosure -- an important assumption underlying the Principles and a subject the Principles tackle substantively -- and augments the conceptual discussion with empirical analysis.

The Symposium Issue: The Tulane Law Review will publish a print symposium issue including papers from most of our presenters, papers selected from among those who responded to our initial call for proposals as well as others from whom we solicited contributions, and some shorter responses and replies. We can accommodate a limited number of additional papers, responses, and replies in the symposium issue, which is scheduled to go to press in late summer 2010.

How to Submit a Paper or Proposal: If you would like to contribute to the print symposium, and want your proposal to receive full consideration, please e-mail an abstract, précis, or draft by Monday, December 14, 2009 to Professor Keith A. Rowley, Chair of the AALS Section on Commercial and Related Consumer Law. E-mail: keith.rowley@unlv.edu. We may consider submissions received after December 14 on a space-available basis. Executive Committee members and the Tulane Law Review's symposium editors will review all timely submissions and notify no later than Monday, January 11, 2010 those authors we would like to contribute to the print symposium.

[Keith A. Rowley]

Call for Proposals

Call for Proposals

AALS Section on Contracts

New Approaches to Teaching Contracts: A “Teach-In”

2010 AALS Annual Meeting, New Orleans, Louisiana

The Section on Contracts solicits proposals for its Annual Meeting program, New Approaches to Teaching Contracts: A “Teach-In,” scheduled for Friday, January 8, 2010, at 10:30 a.m., and for a planned print symposium to follow.

The Topic: Responding to profound changes in the practice of law and in our larger culture, many Contracts professors strive to update their methods and materials.  In the spirit of the Annual Meeting’s transformative theme, our program will explore a variety of new approaches that contracts professors have begun to introduce in the classroom and in teaching materials to address both changes in the structure of practice that require new lawyers to hit the ground running and ways that wired students synthesize material and acquire skills.  We hope that the program, as a whole, will motivate experienced contracts professors to de-laminate their notes and inspire newer professors to move beyond their own professors in developing new ways to convey the beauty, complexity, and occasional imperfections of contract law.

The Program: The roundtable discussion will feature professors demonstrating a variety of pedagogical approaches.  Invited presenters include: Douglas Baird (Chicago), on the Langdellian method centering on classic cases; Scott Burhnam (Montana), on using drafting exercises to develop both skills and doctrinal understanding; Carol Chomsky (Minnesota) or Christina Kunz (William Mitchell), on their contribution to West’s Interactive Casebook Series, Contracts: A Contemporary Approach (West forthcoming 2009); and Emily Kadens (Texas) on adapting the problem-based method more commonly used in upper-level commercial law courses to the first-year Contracts course.  We seek two more presenters on innovative approaches to teaching Contracts.  Presentations should demonstrate (rather than merely describe) teaching methods, perhaps distributing or illustrating any relevant materials through PowerPoint or other means.  Each presentation should last 10-15 minutes, though we realize it will likely be taken from a larger work or set of materials.

The Symposium: We are working to identify a journal that will provide the best outlet in which to publish papers from our presenters, as well as additional contributions from those who respond to this call for proposals.  We have begun discussions with the Journal of Legal Education and welcome your suggestions about other venues for the print symposium.

How to Submit a Proposal: Please submit a title, brief description, and any supporting materials no later than SEPTEMBER 1, 2009 to the Planning Subcommittee: Martha Ertman (Maryland), Lisa Bernstein (Chicago), and Keith Rowley (UNLV).  Please direct your submission to all three of our email addresses: mertman@law.umaryland.edu, lbernst621@aol.com, and keith.rowley@unlv.edu, respectively.  We will select two proposals for the Annual Meeting program from those submitted and notify their authors by October 1, 2009.  Once we secure a publication commitment, we will begin contacting additional proposal authors to discuss contributing to the print symposium.

[Keith A. Rowley]

ALI Principles of the Law of Software Contracts

Speaking of the recently-approved Principles of the Law of Software Contracts (the subject of our sister section's call for proposals below), here's an overview and remarks from Reporter Bob Hillman for the benefit of those who have not already read them on Concurring Opinions:

Maureen O’Rourke, the Associate Reporter on the Principles of the Law of Software Contracts, and I are posting the following to acquaint readers with the Principles and also to respond to some criticism of one section of the Principles that creates, under certain circumstances, an implied warranty of no known material hidden defects in the software.

On May 19, the membership of the American Law Institute unanimously approved the final draft of the Principles of the Law of Software Contracts. As the Introduction to the project states, the Principles “seek to clarify and unify the law of software transactions.” The Principles address issues including contract formation, the relationship between federal intellectual property law and private contracts governed by state law, the enforcement of contract terms governing quality and remedies, the meaning of breach, indemnification against infringement, automated disablement, and contract interpretation.

The Introduction to the Principles explains further that “[b]ecause of its burgeoning importance, perhaps no other commercial subject matter is in greater need of harmonization and clarification. . . . [T]he law governing the transfer of hard goods is inadequate to govern software transactions because, unlike hard goods, software is characterized by novel speed, copying, and storage capabilities, and new inspection, monitoring, and quality challenges.” Many of the rules of Article 2 of the UCC therefore apply poorly to software transactions or not at all, and the Principles are intended to fill the void.

The Principles are not “law,” of course, unless a court adopts a provision. Courts can also apply the Principles as a “gloss” on the common law, UCC Article 2, or other statutes. Nor do the Principles attempt to set forth the law for all aspects of a transaction, but instead rely on sources external to the Principles in many areas.

The Principles apply to agreements for the transfer of software or access to software for a consideration, i.e., software contracts. These include licenses, sales, leases, and access agreements. The project does not apply to the exchange of digital media or digital databases. It applies a predominant purpose test to determine applicability to transactions involving embedded software or software combined in one transfer with digital media, digital databases, and/or services.

We are the Reporter and Associate Reporter of the software principles. We have been greatly aided by our advisors, consultative group members, ALI Council members, liaisons from the National Commissioners on Uniform State Law, Business Software Alliance, and the American Bar Association, and many additional lawyers from industry and other groups who, over the last five and one-half years, have met with us, talked with us on the phone, and exchanged e-mails with us. We believe the project moved along smoothly largely because of the efforts of all of these groups and individuals.

Nevertheless, in the two weeks leading up to approval in May, we received communications from a few software providers evidencing concern largely with one section of the Principles. Section 3.05(b) creates a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” The section only applies if the transferor receives “money or a right to payment of a monetary obligation in exchange for the software.” Because the section may be the most controversial provision, we devote the rest of this post to the issue.

Despite concerns that section 3.05(b) creates “new law,” it simply memorializes contract law’s disclosure duties and tort’s fraudulent concealment law. The section makes clear that these rules apply to software transfers in order to allocate the risk to the party best able to accommodate or avoid the costs of materially defective software. Obviously this is the transferor in situations where only it knows of the material defect and the transferee cannot protect itself. The section requires that the transferor knows of the defect at the time of the transfer (negligence in not knowing is not enough to trigger liability), the defect is material, and it is hidden.

A few software providers have concerns that the concepts of “hidden,” and “material defect” are obtuse and will “increase litigation” or require a flood of “detailed notices” to prospective users. These concepts, however, are hardly unknown to the law. A comment to section 3.05(b) says that a “hidden” defect occurs if the “defect would not surface upon any testing that was or should have been performed by the transferee.” This is nothing new. See, e.g., UCC 2-316(3)(b) (”there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to [the buyer]“).

A few software providers also worry about the meaning of “material defect.” The comments to section 3.05(b) point out that the section simply captures the principle of material breach: Does the defect mean that the transferee will not get substantially what it bargained for and reasonably expected under the contract? The criticism that “materiality” is too vague, if accurate, would mean that contract law would have to abolish its material breach doctrine too.

Putting together the requirements of actual knowledge of the defect at the time of the transfer, that the transferee reasonably does not know of the defect, and that the defect constitutes a material breach means that a transferor would be insulated from liability in situations identified by the concerned software providers as problematic. These include where the transferor has received reports of problems but reasonably has not hadtime to investigate them, where the transferee’s problems are caused by uses of which the transferor is unaware, where the transferor learns of problems only after the transfer, and where the problems are benign or require reasonable workarounds to achieve functionality. The best example of when section 3.05(b) would apply is, as comment b to the section says, where the transferor already knows at the time of the transfer that the software will require “major workarounds . . . and cause[] long periods of downtime or never [will] achieve[] promised functionality,” the transferee cannot discover this for itself, and the transferor chooses not to disclose the defect.

As we have already said, the section simply memorializes existing law. Under the common law, a contracting party must disclose material facts if they are under the party’s control and the other party cannot reasonably be expected to learn of the facts. Failure to disclose in such circumstances may amount to a representation that the facts do not exist and may be fraudulent. See, e.g., Shapiro v. Sutherland, 76 Cal. Rptr. 2d 101, 107 (Cal. Ct. App. 1998) (”Generally, where one party to a transaction has sole knowledge or access to material facts and knows that such facts are not known or reasonably discoverable by the other party, then a duty to disclose exists.”); Hill v. Jones, 725 P.2d 1115, 1118-19 (Ariz. Ct. App. 1986) (”[U]nder certain circumstances there may be a ‘duty to speak.’ . . .  [N]ondisclosure of a fact known to one party may be equivalent to the assertion that the fact does not exist. . . . Thus, nondisclosure may be equated with and given the same legal effect as fraud and misrepresentation.”). The Restatement (Second) of Contracts section 161(b) states that “[a] person’s non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist . . . where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.” Section 161, comment d of the Restatement (Second) adds “In many situations, if one party knows that the other is mistaken as to a basic assumption, he is expected to disclose the fact that would correct the mistake. A seller of real or personal property is, for example, ordinarily expected to disclose a known latent defect of quality or title that is of such character as would probably prevent the buyer from buying at the contract price.”

One concern of a commentator is that fraudulent concealment is a tort, implying that it has no place in the Principles. But the principle appears prominently in the Restatement (Second) of Contracts section 161. And why not memorialize a principle that discourages a party in a contract setting from hiding material facts that the other party reasonably does not know? The commentator notes that fraudulent concealment requires intent to deceive, but wouldn’t that be the usual inference if a transferor licenses software it knows is materially defective and knows the transferee cannot discover it?

A few organizations also are concerned that section 3.05(b) cannot be disclaimed. But there are plenty of cases that do not allow a party to contract away liability for concealment. One critic wonders why a statement such as “I am not giving any assurances about there being no defects in this software,” should not insulate a transferor from liability. A reasonable licensee, assuming the good faith of the licensor, would believe that this licensor does not intend to make any express warranties or implied warranties of merchantability or fitness, not that the licensor knows that the software is materially defective so that the software will be largely worthless to the licensee. A transferor playing this game is surely in bad faith and, frankly, engaging in reprehensible conduct. But there is a way to ensure no liability under this section, namely to disclose material hidden defects. In effect, disclosure is the disclaimer.

Bob Hillman and Maureen O’Rourke
June 2, 2009

The Concurring Opinions post -- which Bob asked me to re-post, with the blessings of the Concurring Opinions folks -- has provoked several comments and has been the subject of a follow-up post by David Hoffman, one of Concurring Opinions's thirteen regular contributors.  Dave's post has generated its own comments.  While we here at ContractsProf might have a vested interest in generating site traffic, it may be more efficient to funnel feedback through a single conduit.  Because Concurring Opinions got the ball rolling, feel free to comment, or to respond to existing comments, there.

[Keith A. Rowley]

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: keith.rowley@unlv.edu.  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]

Reminder: Annual Meeting Panel

For those of you attending this week's AALS annual meeting, please remember the Contracts Section's program Friday, January 9, 2009, at 8:30 am in Marina Salon G, South Tower/Level 3, San Diego Marriott Hotel & Marina.  The program features a panel of speakers -- Kenneth Ayotte (Northwestern), Robert P. Bartlett, III (Georgia), and Tom Joo (UC-Davis) -- addressing "Immutable Rules and Contract Law."  Click here for more details.  A brief business meeting will follow the panel.

[Keith A. Rowley]

Dick Speidel Tribute at AALS Annual Meeting

From our friend Mike Kelly at the University of San Diego:

Northwestern University School of Law and the University of San Diego School of Law are hosting a reception honoring the career of Richard Speidel, who passed away this past semester. Dick was a major figure in contracts, commercial law, and international arbitration.

The reception will be held at the AALS Annual Meeting in San Diego on Friday, January 9, from 6:30 to 8:30 p.m. in the Warner Center Room, 4th floor, south tower of the San Diego Marriott Hotel & Marina, with a short program beginning at 7:00 p.m.  We will also videotape remarks from those who knew Dick or his work and will provide a copy to Dick's family.

Update: Professors Jim White (Michigan) and Bob Summers (Cornell), Dick's long-time collaborators, and Deans Kevin Cole (San Diego) and David Van Zandt (Northwestern) are confirmed speakers.

[Keith A. Rowley]

Contracts Panel at AALS Annual Meeting

Please plan to attend the Contracts Section's program and business meeting at the AALS Annual Meeting in sunny San Diego. The topic for this year's panel is "Immutable Rules and Contract Law."

Chosen from among those who the planning committee invited to submit a proposal and those who submitted a proposal in response to a general call for papers I posted to this web site and sent to the AALS Contracts listserv in September, this year's presenters are Kenneth Ayotte (Northwestern), Robert P. Bartlett, III (Georgia), and Tom Joo (UC-Davis), who will be speaking about the following topics:

Kenneth Ayotte & Patrick Bolton (Columbia-Business), "Optimal Property Rights in Financial Contracting"

In this paper we propose a theory of optimal property rights in a financial contracting setting.  Following recent contributions in the property law literature, we emphasize the distinction between contractual rights, that are only enforceable against the parties themselves, and property rights, that are also enforceable against third parties outside the contract. Our analysis starts with the following question: which contractual agreements should the law allow parties to enforce as property rights? Our proposed answer to this question is shaped by the overall objective of minimizing due diligence (reading) costs and investment distortions that follow from the inability of third-party lenders to costlessly observe pre-existing rights in a borrower’s property. Borrowers cannot reduce these costs without the law’s help, due to an inability to commit to protecting third-parties from redistribution. We find that the law should take a more restrictive approach to enforcing rights against third-parties when these rights are i) more costly for third-parties to discover, ii) more likely to redistribute value from third-parties, and iii) less likely to increase efficiency. We find that these qualitative principles are often reflected in observed legal rules, including the enforceability of negative covenants; fraudulent conveyance; corporate veil-piercing; and limits on assignability. In this paper we propose a theory of optimal property rights in a financial contracting setting.

Robert P. Bartlett, III & Victoria Plaut (Georgia-Psychology), "Blind Consent? A Social Psychological Investigation of Non-Readership of Click-Through Agreements"

Across two studies we aimed to measure empirically the extent of non-readership of clickthrough agreements (CTAs), identify the dominant social representations that exist about CTAs, and experimentally manipulate these representations in order to decrease automatic non-reading behavior. In our initial questionnaire study (Study 1), as predicted, the vast majority of participants reported not reading CTAs and the most prevalent social representations of CTAs contributing to non-readership included: they are too long and time-consuming, they are all the same, they give one no choice but to agree, they are not important, the companies are reputable, and they are irrelevant. Manipulating these representations on a simulated music web site (Study 2) revealed an increase in readership. The greatest effect on comprehension of CTA terms and rates of rejection came from manipulating the length representation. These results demonstrate support for the influence of social representations on CTA readership, provide evidence against the common "limited cognition" perspective on non-readership, and suggest that presenting CTAs in a shorter, more readable format can increase CTA readership and comprehension as well as shopping of CTA terms.

Tom Joo, "The Immutable Role of the Court in Contract Law"

It is routinely stated that the defining aspect of contract law is that parties control their obligations.  But in fact the most fundamental, and immutable, rule of contract law points in the opposite direction: every "contractual" arrangement of the parties is potentially subject to broad judicial review.  The law empowers courts to supply critical aspects of incomplete contracts.  This power is commonly described as the passive facilitation of the parties' intent.  But "contract law" includes the potential that a court, in some extreme cases, will abrogate party intent by rewriting or refusing to enforce agreements to which parties did agree. Moreover, even run-of-the-mill "contract law" cases often turn on questions as to which which the contracting parties' intent cannot be discerned. In such cases, the fundamental "objective theory" of contract holds that subjective agreement of the parties is not necessary, as long as a court believes parties' actions should be "objectively" interpreted to manifest consent.

Analyzing the legitimacy of this broad court power lies in recognizing the implicit policy judgments courts apply. This is made difficult by the fact that these judgments tend to be cloaked in rhetoric that invokes notions of consent.  For example, the "objective theory" consistently uses the term "consent" even while conceding that subjective agreement is unnecessary.  Recognizing courts' implicit policy judgments then demands an explanation of whether courts are qualified to make them.  Conservative market economics offers a theoretical explanation for the importance of the parties in contract -- their purportedly unique ability to value entitlements and trade them in utility-enhancing ways.  A realistic modern theory of contract must recognize that parties do not control contracts and thus requires a theoretical explanation for judicial role.

My argument also suggests that the discourse about mandatory and default rules in contract may incorrectly framed.  It assumes there are two kinds of rules: those that the parties can agree to change, and those that they may not.  Starting from the normative assumption that parties should presumably be able to change rules, and the descriptive assumption that they can change most rules, it asks for descriptive and normative explanations of exceptions.  But as a descriptive matter, true "default rules" may not exist in contract law.  That is, because courts always have the power to review any agreement, even an agreement to opt out of court review, there is no way for parties to make a self-enforcing commitment to opt out.

The program begins Friday, January 9, 2009, at 8:30 am in Marina Salon G, South Tower/Level 3, San Diego Marriott Hotel & Marina, and will be followed by a brief business meeting.  We hope to see you there.

[Keith A. Rowley]

Call for Papers: AALS Annual Meeting

The AALS Section on Contracts solicits papers and proposals for our 2009 Annual Meeting program on “Immutable Rules and Contract Law,” scheduled for Friday, January 9, from 8:30-10:00 a.m.

In the last three decades, legal scholars have paid considerable attention to conceptualizing and prudentially designing contractual rules.  Most of this attention has been placed on default rules (e.g., Should we prefer "majoritarian" rules that mimic the likely intent of the parties or "penalty" rules that purportedly force information revelation?).  Part of this concentration on immutable rules has been due to a sense that the rationales for immutable rules were well understood and widely accepted.  In recent years, important contributions within legal scholarship, humanities, and the social sciences have alerted us to a number of ways that contracting may fail (due to transaction costs, cognitive failure, externalities, path dependence, etc), which in turn reasserts the importance of understanding the role of immutable rules.  This panel is intended both to survey and to evaluate the set of immutable rules within a system of contract and commercial law, concentrating on three questions: (1) What are the key immutable rules within contract law?  (2) What are the principal policy rationales behind immutable rules in contract law?  (3) How well equipped is contract law (compared to other areas of law) to contend with these policy concerns.

If you are interested in participating, please e-mail your paper or proposal to etalley@law.berkeley.edu not later than Monday, September 29, 2008.

[Keith A. Rowley]

Back to the Future

Hard as it may be for law students to believe, there was a time when the point of law schools was actually to train lawyers.  For generations, however, our beloved Mother Ship -- the Association of American Law Schools -- has been working to focus law schools on more important things:  generating more law review articles; getting faculty in other departments to recognize that we really are, too, scholars, not Hessian trainers; and cutting teaching loads for tenure-track faculty. 

Is the AALS rethinking its mission?  Well, maybe.  President Nancy Rogers (Ohio State), in an op-ed piece in the National Law Journal, notes that a lot of people have been calling for changes in the way law schools go about actually preparing students for practice.  That, she says, will be one of the things talked about at this year's annual AALS Bean Feed and Wiener Roast in New York City, when 3,000 of the Best and Brightest will gather to talk legal education and eat at good restaurants on expense accounts.

We may disagree about how to go about fixing the problem -- fewer law review articles and more time teaching and mentoring don't seem to be on anyone's agenda -- but we can expect the attendees to agree with Rogers that Congress needs to offer some debt relief to students so we can keep charging them really high fees while teaching only nine to twelve semester hours a year.

[Frank Snyder]

Disclaimer:  We want to remind everyone that the comments on this blog are not the opinions of the Association of American Law Schools, or the Section on Contract Law -- which are obviously fictitious entities which couldn't have any opinions in the first place -- or of the editors of this blog, or of the writers, or possibly of anyone at all.

AALS: What I Really Hate About Commercial Law

The AALS Contracts Section's program is, as we've mentioned before, scheduled for Saturday, January 7, 2006.  But there's a great warm-up planned for Friday, when our sister Section on Commercial and Related Consumer Law presents Commercial Calamities.  An A-list of commercial law scholars -- most of them also active Contracts Section members -- will present the Dark Side of Commercial Law.

Three papers are particularly interesting to Contracts folks.  Victor Goldberg (Columbia) will tee off on Wood v. Lucy, Lady Duff Gordon. and its unfortunate effect on UCC 2-306.  Bob Hillman (Cornell) will take a 9-iron and work over UCC 2-209 (the one on modification, rescission, and waiver), an "example of both substantive chaos and drafting disaster."  Bob Scott (Virginia) will take on that casebook staple, Hoffman v. Red Owl.  Also on tap are Amy Boss (Temple) and Jim White (Michigan).  Larry Garvin (Ohio State) will moderate.  Here's the official description.

Despite, or perhaps because of, the brilliance of its framers and the interests of its users, commercial law has at least its share of errors, omissions, archaisms, peculiarities, and downright stupidities. Our session is devoted to airing our favorite annoyances about commercial law, ranging from problems with specific provisions to problems with structure and form. Our aim here is not to be particularly constructive but rather to be interestingly critical, though in the course of criticism doubtless some hints toward improvement will emerge.

Today’s panelists are drawn from a larger group whose accumulated grievances will be collected in a symposium to be published in the Ohio State Law Journal. Each participant will present a pet peeve, with plenty of time for Section members to add their own (or, at whatever peril, to defend a cherished doctrine or structure against the attacks of others).

The session is scheduled for 1:30 to 3:15.  The Section business meeting will take place at the conclusion.

[Frank Snyder]

Contracts Subject of Transactional Panel

There are some things of interest to Contracts profs (besides our own annual session) at the AALS Annual Meeting, slated for January 3-7, 2006, at the Marriott Wardman Park in D.C.  On Wednesday, January 4, there's a program on transational law.  Breakout panels include two sessions on Contracts -- Aribtation, Comparative Concepts (Remedies).  Speakers will include Janet Levit (Tulsa), Hannah L. Buxbaum (Indiana-Bloomington). William S. Dodge (Cal-Hastings), Ruth E. Gordon (Villanova), Andrea K. Bjorklund (Cal-Davis), David V. Snyder (Tulane), and Kellye Y. Testy (Seattle).

[Frank Snyder]

Cyberspace Fete Slated

The ABA Cyberspace Law Committee's Winter Working Meeting will take place at the offices of Potter Anderson & Corroon LLP in Wilmington, Delaware, on Friday and Saturday, January 27-28, 2006.  The group historically has been involved in some interesting and important project, and they're always interested in getting more academics involved.  According to the organizers:

The Winter Working Meeting attracts Internet and technology lawyers from around North America. If you have not attended the Committee's "WWM" in the past, it is not to be missed -- this is where we roll up our sleeves and get some real work done with our colleagues without a heavy schedule of Section and Association gatherings. We especially encourage everyone who has joined the Cyberspace Law Committee this year to attend the Winter Working Meeting.
A block of rooms at the Hotel DuPont will be available at a discounted rate. Hotel reservations must be made by January 5, 2006 to take advantage of the ABA group rate. The Committee will also hold its traditional Friday evening dinner, which is always great fun and a good opportunity to connect with Committee members and guests. The deadline to register for the meeting and dinner is January 13, 2006.

To find out about membership, and to sign up for the meeting, you can visit the Committee Web Site.

E-Contracts group to meet at ABA

The ABA Cyberspace Law Committee’s Working Group on Electronic Contracting Practices is inviting those interested in, well, Electronic Contracting Practices, to join them at the Annual Meeting in Chicago this week. The ABA Annual Meeting starts Thursday, August 4, and the Committee meeting will be Sunday, August 7, at 3:30.  Details are here.  The rest of the interesting stuff going on at the meeting is available from the ABA Cyberspace Law Committee Blog.

Forum on Franchising set for October

This Sunday, July 31, is the deadline for Early Bird registration at the ABA's 28th Annual Forum on Franchising, which will be held October 19-21, 2005, in Orlando.  Click on "continue reading" for the conference details.

DON'T MISS THE EARLY BIRD DEADLINE!
Register by July 31 and save $70
on your program fees.

                       Bridging the Divide:
     The 28th Annual Forum on Franchising
                      October 19 - 21, 2005
           JW Marriott Grande Lakes Resort
                              Orlando, FL

This year's program will offer an unprecedented variety of educational options covering almost every franchise law topic "under the sun."

Three intensive afternoon programs on Wednesday, including the Fundamentals of Franchising program - essential for newcomers and those seeking a refresher on franchise law issues

Two plenary sessions, including a presentation on the proposed changes to the FTC Rule, as well as the signature event of every program, the Annual Franchise and Distribution Law Update

Forty-eight workshops on twenty-four different topics such as arbitration, noncompetition covenants, electronic discovery, and advanced issues under the proposed FTC rule

Fun-filled networking events for attendees and their families - including our very own private show with Shamu at Sea World, a dinner reception at Universal's City Jazz Club, spouse/family tour to Kennedy Space Center, and golf

The Corporate Counsel Division and the Women's Caucus are not only sponsoring their traditional breakfasts, but a community service event at Give Kids the World Village as well

Fun, friends and franchising - that's what we can all expect at the 28th Annual Forum on Franchising in Orlando. Register today at www.abanet.org/forums/franchising/annual_meeting/

Deadline for ABA is today

Today (Friday) is the deadline for advance registration for the American Bar Association Annual Meeting in Chicago, August 4-9. The lead speakers (Justice Stevens, Justice Ginsburg, Attorney General Gonzalez, and Senator Clinton) aren’t likely to talk much about contracts issues, but the Business Law Section has lots of good program. Registration is here.

If you're going to be in the Windy City, remember that Thursday night, Aug. 4, is the Birthday Bash at Buddy Guy’s Legends, one of the world’s great blues clubs.  In celebration, from Lonnie Johnson's Chicago Blues:

Chicago's all right to visit,
But please don't hang around.
You'll find the cool chicks and high slicks
And, boy, all those mellow fellows.
But when your bankroll is gone,
You're just another chump
That's dropped into town.

My first night in Chicago,
My friends really treated me fine.
Then overnight they all changed,
Like Daylight Savings Time.
And everything I wanted
I had to lay my money down on the line.

Big E-Commerce stuff slated for Chicago

The ABA's Cyberspace Law Committee is planning a big meeting at the ABA annual summer bean feed, scheduled for this for August 4-9 in year in Chicago.  The Committee -- a bunch of the nicest and most welcoming folks you're likely to work with -- is always drumming for more members, particularly law school professors and scholars interested in aspects of e-commerce, whether doctrinal, theoretical, or technical.  And they're always happy to let you crash their committee meetings to see if you're interested.

Click on the "read more" link for Chair Vince Polley's invitation and outline of the festivities.   Click here to register.  Tomorrow, July 7, is the last day to submit reservations to ensure you get to attend the semi-legendary Cyberspace Dinner!

             CYBERSPACE LAW COMMITTEE
                         ANNUAL MEETING

Once again this year, developments in law (e.g., the Grokster decision) and technology will make for a full and varied agenda for the Cyberspace Law Committee at the 2005 ABA Annual Meeting.  The Annual Meeting will be held August 4 9 in Chicago.  Cyberspace meetings and programs begin on Friday, August 5.

We will have our traditional Committee dinner on Saturday, August 6th, when we plan to present the third ABA Cyberspace Law Excellence Award (details below).  As always, there are also a myriad of projects that could use more volunteers, as well as opportunities to launch new projects where Committee members share common interests.

                            A. CLE Programs

The Cyberspace Committee will sponsor or co sponsor seven CLE programs in Chicago.  All CLE programs presented by Cyberspace will be held in the Westin Michigan Avenue.  Two of the co-sponsored programs (as noted below) will be held the Drake Hotel.

1. Friday, August 5 – 10:00 a.m. – 12:00 p.m.
Outsourcing:  Doing It Right the First Time and Every Time
Governor’s Suite, 3rd Floor
Program Chair:  Steven N. Hollman
Presented by the Technology Committee
Co Sponsored by the Cyberspace Law Committee

2. Saturday, August 6 – 8:30 a.m.** – 10:00 a.m.
Committee Forum:  Hot Topics in Cyberspace
Consort Room, 16th Floor
Forum Co Chairs:  Candace M. Jones and John B. Lunseth, II
Presented by the Cyberspace Law Committee

**NOTE:  The Committee Forum will begin at approximately 8:30 a.m. (during the time scheduled for the full Committee Meeting in the same location).  The Section Program materials list the official 9:00 a.m. start time.

3. Saturday, August 6 – 10:30 a.m. – 12:30 p.m.
Information Security and Dealing with Security Breaches
Cotillion Ballroom North & South, 2nd Floor
Program Chair:  Joan P. Warrington
Presented by the Consumer Financial Services Committee
Co Sponsored by the Committee on Banking Law and the Cyberspace Law Committee

4. Saturday, August 6 – 2:30 p.m. – 4:30 p.m.
Data Governance for Company Directors
Wellington Ballroom Two, 2nd Floor
Program Co Chairs:  Roland Trope and Michael Power
Presented by the Cyberspace Law Committee

5. Sunday, August 7 – 8:00 a.m. – 10:00 a.m.
Protecting Organizations’ Intellectual Property and Confidential Data in Outsourcing Transactions
The Drake Hotel,
Michigan Room, West Mezzanine
Program Chair:  Patrick J. Whalen
Presented by the Intellectual Property Committee
Co Sponsored by the Cyberspace Law Committee

6. Sunday, August 7 – 2:30 p.m. – 4:30 p.m.
RickEContracts:  How On Line Consumer Contracts are Treated in Foreign Jurisdictions
Wellington Ballroom Two, 2nd Floor
Program Co Chairs:  John Gregory and Don Clifford
Presented by the Cyberspace Law Committee

7. Monday, August 8 – 2:30 p.m. – 4:30 p.m.
The Wonderful – And No Longer Exotic – World of Electronic Payment
The Drake Hotel
Drake Room, Upper Level
Program Chair:  Martin Fingerhut
Presented by the Developments in Business Financing Committee
Co-Sponsored by the Cyberspace Law Committee

                        B. Other Meetings and Items

1. Full Committee Meeting and Hot Topics.  In addition to the CLE programs, a meeting for the full membership of the Committee will be held on Saturday morning beginning at 8:00 a.m. in the Consort Room, 16th Floor.  We will end the Committee business segment of the meeting at approximately 8:30 so that we have extra time for the Committee Forum.  The Forum will be an expanded version of our Hot Topics presentations which will cover the “malware,” recent cases affecting e-evidence, e-commerce patents, Internet governance talks at the U.N. and the Supreme Court’s recent decision in Grokster.

2. Leadership Meeting.  A meeting for the leadership of the Committee will be held on Monday afternoon from 2:00 p.m. – 3:00 p.m. in the Huron Room (3rd Floor) of the Westin Michigan Avenue.

3. Subcommittee Forum.  The Connectivity, Storage and Computing Infrastructure Subcommittee will hold a Subcommittee Forum during its meeting on Friday, August 5 from 3:00 p.m. – 4:00 p.m.  David Satola, Senior Legal Advisor to the U.N. Working Group on Internet Governance, will give an insider’s report about the work of WGIG to date and its likely recommendations to the U.N. World Summit on Information Society to be held in November 2005.

4. List of Meetings.  Subcommittee, Working Group and Task Force meetings are also planned from Friday afternoon through Monday.  [A complete chronological list of the various meetings is below.]

                           C. Cyberspace Dinner

This year, the Cyberspace Committee dinner will be held Saturday, August 6, beginning at 7:30 p.m.  Dinner is scheduled to allow meeting participants to attend the Business Law Section reception at 6:00 p.m. at the Drake Hotel.  The Committee dinner will be held at Wildfire Restaurant at 159 W. Erie Street.  For more information about Wildfire, visit the restaurant’s Website.

The Committee dinner will also feature (for the third time) presentation of the ABA Cyberspace Law Excellence Award.  The recipient of this year’s Award is Marc Rotenberg, Executive Director of EPIC (the Electronic Privacy Information Center).

Our dinner this year is sponsored by Gordon & Glickson, a premier Chicago law firm celebrating 25 years of specialized IT law.  With the generous support of Gordon & Glickson, we are able to offer dinner at a cost of $50 per person (continuing our tradition of the lowest cost, purest-fun of all the Section’s Committee dinners!).  Please join us for a great dinner and some of the best company and conversation conceivable.

It is important that you register for the Committee dinner no later than Thursday, July 7, 2005, You may complete and return to the ABA the reservation form (attached as the last page of this letter) or register online at http://www.abanet.org/annual/2005.  There is no guaranty that tickets will be available on site at the meeting.  If you miss the registration deadline, however, you may be able to purchase tickets on site at the Business Law Section satellite registration desk in the Drake Hotel.

As always, we welcome your participation in the many Subcommittee and Working Group projects.  I’m sure you will find several projects interesting and relevant to your practice.  As you plan your schedule, you may also want to take a few minutes to visit the area of the ABA Website concerning the Annual Meeting at http://www.abanet.org/annual/2005. From there you can download registration forms, hotel information, a complete brochure and meeting schedule for all CLE programs.  If you plan to attend the Annual Meeting and have not yet registered, I urge you to do so soon.

We look forward to seeing you in Chicago

Vince Polley
Cyberspace Law Committee Chair
Email Vince

          CYBERSPACE LAW COMMITTEE MEETINGS AND PROGRAM
                           2005 ANNUAL MEETING – CHICAGO
                                      As of June 27, 2005

Except as noted, all CLE programs and Committee/Subcommittee meetings will be held at the Westin Michigan Avenue.

Friday, August 5, 2005

10:00 a.m.-
12:00 p.m.
Program:  Outsourcing:  Doing it Right the First Time and Every Time
Westin Michigan Avenue
Governor’s Suite, 3rd Floor

1:00 p.m. –
2:00 p.m. Working Group on Electronic Evidence
Westin Michigan Avenue
Windsor Room, 2nd Floor

2:00 p.m. –
3:00 p.m. Electronic Payment Systems Working Group
Westin Michigan Avenue
Windsor Room, 2nd Floor

3:00 p.m. -
4:00 p.m. Connectivity, Storage and Computing Infrastructure Subcommittee
Westin Michigan Avenue
Windsor Room, 2nd Floor
**Subcommittee Forum:  Internet Governance

4:00 p.m. –
5:00 p.m. International Policy Working Group
Westin Michigan Avenue
Windsor Room, 2nd Floor

Saturday, August 6, 2005

8:00 a.m. –
9:00 a.m. Cyberspace Law Committee
Westin Michigan Avenue
Consort Room, 16th Floor
**Committee Forum will begin at approximately 8:30 a.m.

9:00 a.m. -
10:00 a.m. Committee Forum:  Hot Topics in Cyberspace
Westin Michigan Avenue
Consort Room, 16th Floor

10:00 a.m. –
11:00 a.m. Internet Jurisdiction and Global E Commerce Subcommittee
Westin Michigan Avenue
Consulate Room One, 2nd Floor

10:30 a.m.-
12:30 p.m.
Program:  Information Security and Dealing with Security Breaches
Westin Michigan Avenue
Cotillion Ballroom North & South, 2nd Floor
Presented by the Consumer Financial Services Committee

10:00 a.m. –
11:00 a.m. Transferability of Electronic Financial Assets Joint Working Group
Westin Michigan Avenue
Windsor Room, 2nd Floor

11:00 a.m. –
12:00 p.m. Working Group on Consumer Protection
Westin Michigan Avenue
Michigan Room, 3rd Floor

1:00 p.m. –
2:00 p.m. Electronic Commerce Subcommittee
Westin Michigan Avenue
Michigan Room, 3rd Floor

2:30 p.m. –
4:30 p.m. Program:  Data Governance for Company Directors
Westin Michigan Avenue
Wellington Ballroom Two, 2nd Floor

Sunday, August 7, 2005

8:00 a.m. –
9:00 a.m. Intellectual Property Subcommittee
Westin Michigan Avenue
Huron Room, 3rd Floor

8:00 a.m.-
10:00 a.m.
Program:  Protection Organizations’ Intellectual Property and Confidential Data in Outsourcing Transactions
The Drake Hotel
Michigan Room, West Mezzanine

8:00 a.m. –
10:00 a.m. Joint Privacy Task Force
Westin Michigan Avenue
Wellington Ballroom One, 2nd Floor

9:00 a.m. –
10:00 a.m. Programs and Publications
Westin Michigan Avenue
Consort Room, 16th Floor

1:00 p.m. –
2:00 p.m. Electronic Financial Services Subcommittee
Westin Michigan Avenue
Michigan Room, 3rd Floor

1:30 p.m. –
2:30 p.m. Privacy, Security & Data Management Subcommittee (formerly, the Task Force on Cyberspace and Privacy)
Westin Michigan Avenue
Ontario Room, 3rd Floor

2:30 p.m. –
4:30 p.m. Program:  RiskEContracts:  How On Line Consumer Contracts are Treated in Foreign Jurisdictions
Westin Michigan Avenue
Wellington Ballroom Two, 2nd Floor

4:30 p.m. –
5:30 p.m. Electronic Contracting Practices Joint Working Group
Westin Michigan Avenue
Windsor Room, 2nd Floor

Monday, August 8, 2005

8:00 a.m. –
9:00 a.m. Internet Law Subcommittee
Westin Michigan Avenue
Consulate Room One, 2nd Floor

8:00 a.m. –
9:00 a.m. Model Trading Partner Agreements Joint Working Group
Westin Michigan Avenue
Ontario Room, 3rd Floor

9:00 a.m. –
10:00 a.m. Malware Working Group (formerly, the SPAM and Unsolicited Electronic Marketing Working Group)
Westin Michigan Avenue
Consulate Room One, 2nd Floor

10:00 a.m. –
11:00 a.m. Corporate Aspects of Information Technology
Westin Michigan Avenue
Regent Room One, 3rd Floor

1:00 p.m. –
2:00 p.m. Task Force on Safeselling Project
Westin Michigan Avenue
Consulate Room One, 2nd Floor

2:00 p.m. –
3:00 p.m. Meeting of Subcommittee and Working Group Chairs and Administrative
Westin Michigan Avenue
Huron Room, 3rd Floor

2:30 p.m. –
4:30 p.m. Program:  The Wonderful – And No Longer Exotic – World of Electronic Payment
The Drake Hotel
Drake Room, Upper Level
Presented by the Developments in Business Financing Committee

American Bar Association ? Section of Business Law
Cyberspace Committee Dinner

Wildfire Restaurant
159 W. Erie Street
Chicago, IL

Saturday, August 6, 2005
7:30PM

DINNER RESERVATION FORM
Name:   Firm:
Address:
City:   State:   Zip:
Business Telephone:   Fax:
Accompanied by:
Are special arrangements needed for the physically challenged?

DINNER FEE

a)

METHOD OF PAYMENT
   Enclosed check (made payable to the American Bar Association)
   MasterCard   Visa   American Express
Card #:     Exp. Date:      
  Signature:         

Please return this registration form and your payment no later than July 7, 2005; 5:00PM Central Standard Time to: 
ABA/ITS Group Chicago 2005
108 Wilmot Road
P.O. Box 825
Deerfield, IL 60015-0825
800-521-6017 (Fax)
www.abanet.org/annual/2005

For questions, call  (312) 988-5564
(Faxed reservations must include credit card payment)

Refund Policy: Requests for refunds on ticketed events will be granted only if the request is received in writing prior to Wednesday, August 3rd. No refunds will be granted after that date.  To request a refund, please contact ITS at (800) 421-0450 or via email here.  Please note that you must be registered for the ABA Annual Meeting in order to purchase tickets for this Committee Dinner.

ABA BusLaw session set for Windy City

The ABA's Business Law Section will be holding its Annual Meeting in Chicago, August 5-9.  The brochure for the event is now available here.

Cyberspace in Music City

The ABA's Cyberspace Law Committee will be involved in a lot of things at the upcoming meeting in Nashville, and they'd love to have more law professors get involved.  They're involved in a wide range of activities, including issues of electronic contracting.  One panel of particular interest, which includes Chris Kunz and Dan Kleinberger of William Mitchell, will deal with indemnification clauses, and there's an excellent intro section for those who want a grounding in the basics of the e-commerce phenomenon.  For Committee Chair Vince Polley's invitation, click below.

From Vince Polley,
ABA Cyberspace Law Committee

Earlier this week, the Business Law Section circulated the program book for Nashville. As you plan your calendar, I encourage you to include all of the programs sponsored by the Cyberspace Committee or planned by our Committee colleagues. (Spring Meeting registration information, program schedules, and more is at http://www.abanet.org/buslaw/2005spring/.) For your convenience, I’m including the program times and descriptions below.

For newer lawyers—and lawyers new to cyberspace practice—the Cyberspace Committee will present a "basics" panel at the Young Lawyers Institute.  The ABCs of "E" (and "D")—What Every Business Lawyer Should Know About the Law of Electronic Commerce (and Discovery) will survey the basics of electronic contracting, jurisdiction, privacy, intellectual property, security and discovery. The ABCs program will be Thursday, March 31, 2005 from 11:30 a.m.-1:00 p.m. Renaissance Hotel, Fisk Room One, 2nd Floor.

Also, bring your laptops and your Wi-Fi cards. The Section will again be wiring the Spring Meeting hotel for Wi-Fi. If you don't bring a laptop, the Section will be providing a computer lab with high speed Internet access and printers for free, but there may be a wait during peak hours.

And, not to be missed, the Cyberspace Committee Dinner at the famous Wildhorse Saloon. The Committee Dinner will be Saturday, April 2, 2005 beginning at 6:30. The Wildhorse Saloon is renowned for the very best in live country entertainment, and the menu will include Wildhorse’s award winning smoked BBQ Pulled Pork Shoulder. Bring your best dancing shoes—free line dancing lessons will be offered all night. The Wildhorse promises "It’s country that kicks!" Dinner will be $45 per person and a cash bar will be located in our room.

We look forward to seeing you in Nashville.

                   Events

Thursday, March 31, 2:30-4:30 p.m., Convention Center 2d Floor, Room 209.
Cyberspace Law Committee members should take particular note of the UCC Committee program Pitfalls of Indemnification Clauses.  Chaired by Chris Kunz, the panel will focus largely on commercial indemnification clauses, including quite a bit of material on cyberspace and licensing issues contributed by Kate Andresen, who has considerable expertise about application service providers, and Joe Beckman, who is outside counsel for Digital River. The panel also includes Paula Duggan Vraa, an insurance law expert, and Prof. Daniel Kleinberger, who has been a reporter on the Uniform Limited Partnership Act and the Uniform LLC Act, in addition to his previous expertise in UCC Sales law and plain language contract drafting. It promises to be a lively panel, with no shortage of stories about what to guard against to keep your indemnification clauses from going awry.

Friday, April 1, 9:00-10:00 a.m., Convention Center 2d Floor, Room 204. Plenary Committee Meeting. During this plenary session we will have two "Hot Topics" presentations:
* RiskE Contracts: Threats to your online contracts in Europe by John Gregory and Don Clifford. This presentation will explore why 30 of the provisions of AOL France’s subscriber agreement were invalidated by a French court and explain how four European Union Directives could broaden the threat to 24 other countries.
* Director’s Guide on Data Governance by Roland Trope and Michael Power. This presentation will review directors’ emerging obligations for data governance (e.g., maintaining appropriate/adequate security measures) and identify topics that directors should discuss with senior management in order to fulfill such obligations and avert the risks of liability for material deficiencies in their organization’s digital security.

Friday, April 1, 10:00 a.m.-12:00 p.m., Convention Center 2d Floor, Room 204.
The Life Story of a Prepaid Card Program. Richard Hackett and Robert Ledig co-chair will this program addressing the legal, regulatory and strategic considerations associated with the development, structuring, implementation, operation and termination of two popular types of prepaid card programs: payroll cards and open system gift cards. The program will highlight the range of issues that face banks, non-banks and other card issuance participants in designing these products. This program is co-sponsored by the Consumer Financial Services Committee.

Friday, April 1, 2:30-4:30 p.m., Convention Center 2d Floor, Room 204.
Strategies for Modifying Electronic Agreements and Policies.  Kathleen Porter and Chris Kunz will co-chair this program offering helpful and practical strategies for modifying electronic standard-form agreements, such as click-through and browse-wrap agreements. The panelists will discuss key issues involved in modifying terms of use and other electronic agreements.

Saturday, April 2, 8:00-10:00 a.m., Convention Center 2d Floor, Room 209.
Spam-Fighting Technologies and Their Legal Implications.  Elizabeth Bowles chairs this program examining SPAM and "malware," which continue to plague the Internet, and the automated technology to which many have turned to stem the flood. Unfortunately, in blocking the bad, these potent technologies may also unintentionally block, destroy or delay crucial legitimate communications. This program examines current anti-spam technologies and the potential legal implications and pitfalls of their unintended effects.