SelectedWorks @ Widener University Commonwealth Law School
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“Intelligence” Searches and Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of Intelligence-Gathering
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What’s Software Got to Do with it? The ALI Principles of the Law of Software Contracts
No full textIn May, 2009, the American Law Institute (“ALI”) approved its Principles of the Law of Software Contracts (“Principles”). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (“UCC”) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (“UCITA”) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states enacting “bomb shelter” provisions to ensure that UCITA would never enter those states by way of a choice of law clause. Although the Principles were conceived, in part, as a counterweight to UCITA, the latter was dead in the water by the time the Principles project became active. Nevertheless, the Principles project proceeded apace. This Article examines the results of that decision.The proponents of efforts to formulate a body of law for software contracts tend to insist that such a body of law is necessary because software transfers, as transfers of copies of information, are different from transfers of goods, and these differences make the common law of contracts and Article 2 of the UCC inappropriate bodies of law to govern software contracts. The ALI Principles constitute the latest attempt at such unification, and in this article, we argue that there is little in the Principles that addresses any unique characteristics of software. Neither one of us was involved in the Article 2B/UCITA project, so we approach this problem by looking at the law as it existed at the time the Principles project started instead of looking at the law at the time Article 2B was conceived
Making Effective Use of Practitioners\u27 Briefs in the Law School Curriculum
No full textThis article explains how practitioners’ briefs filed in cases law students are currently studying can be used in the classroom to enhance legal education. It provides pedagogical reasons, such as increased student interest and richer appreciation of the legal process, for why these documents should become part of the law school curriculum. It discusses the goals Roy Stuckey proposed for legal education in Best Practices for Lawyers and argues that by uniting theory with practice, the use of practitioners’ briefs would help law schools attain those goals. The article provides different ways that practitioners’ briefs can be used in the legal writing classroom. It gives examples of how practitioners’ briefs, filed in cases students use when writing their trial briefs and appellate briefs, can be used to teach persuasive writing. It also suggests ways to use these documents in casebook classes such as Constitutional Law and Criminal Procedure. Finally, this article examines potential pitfalls in using practitioners’ briefs in classes and suggests ways to avoid those pitfalls
Electronic Contracting Cases 2009-2010
No full textThis article, our sixth annual survey of electronic contracting cases, discusses the significant electronic contracting cases decided between June 15, 2009 and June 15, 2010. Over the past six years, the law of electronic contracts has matured, and the cases we discuss in this article show this maturation. The survey covers contract formation by the use of shrinkwrap, clickwrap and browsewrap terms, and contract formation by the exchange of e-mail messages
Tort Law\u27s Flaws
No full textThis succinct paperback on tort reform lays bare one of the most important recent movements in the civil justice field. It begins with a brief overview of central themes and issues and then presents a series of original essays and comments by preeminent scholars, lawyers, and leaders in Tort Reform. The essays are followed by fictional narratives written from the standpoint of plaintiffs, defendants, and policymakers; a simulation; and a selection of carefully edited articles, government documents, interest group position papers, and cases. Comments, notes, and questions are interspersed throughout the text
Warranting Data Security
No full textMassive data security breaches have grabbed headlines in the past few years. The data thieves responsible for these breaches have stolen the credit and debit card data of customers of retailers such as TJ Maxx, DSW Shoe Warehouse, BJ’s Wholesale Club, and the Hannaford grocery store chain. A thief in control of this payment card data, which can include debit and credit card numbers, expiration dates, security codes and personal identification numbers, has the ability to open new credit accounts and make charges on existing consumer accounts. These data breaches leave individuals fearful that their personal information will be used in ways that will disrupt their financial transactions and damage their credit.Consumers affected by data breaches understandably feel exposed to serious financial harm, even in the absence of liability for fraudulent charges. A consumer’s credit score affects her ability to finance important purchases, and the events that occur in aftermath of a data breach can negatively affect that score. Because these losses are not addressed by existing privacy and payment system statutes, consumers have attempted to recover them using various common law theories, but have uniformly failed in recovering anything for these losses. In this paper, prepared for a symposium on Data Security and Data Privacy in the Payment System, I will discuss the cases in which consumers have been denied recovery for losses arising out of data breaches, and then focus on one argument made by the plaintiffs in the Hannaford case, the argument that, under Article 2 of the Uniform Commercial Code (U.C.C.), every time a retailer accepts a payment card from a buyer, it warrants that its payment system is secure.While a warranty of data security might be a good idea, Article 2, because of its limitation to the sale of goods, is not the best place for it. Instead, courts could impose a common law warranty of data security, under which all sellers would warrant that their chosen payment system is secure. Below, I will make some arguments supporting a non-waivable common-law warranty of data security that is drawn both from the Article 2 warranties and the warranties in Articles 3 and 4 of the U.C.C., which apply to negotiable instruments and the check collection system. I will then compare the problem of ensuring safe data transactions today to the problem of ensuring the habitability of rental housing in the mid-20th century, which judges addre
Making the States Full Partners In a National Climate Change Effort: A Necessary Element for Sustainable Economic Development
No full textThis article explains why states and localities need to be full partners in a national climate change effort based on federal legislation or the existing Clean Air Act. A large share of reductions with the lowest cost and the greatest co-benefits (e.g., job creation, technology development, reduction of other pollutants) are in areas that a federal cap-and-trade program or other purely federal measures will not easily reach. These are also areas where the states have traditionally exercised their powers—including land use, building construction, transportation, and recycling. The economic recovery and expansion will require direct state and local management of climate and energy actions to reach full potential and efficiency. This article also describes in detail a proposed state climate action planning process that would help make the states full partners. This state planning process – based on a proven template from actions taken by many states -- provides an opportunity to achieve cheaper, faster, and greater emissions reductions than federal legislation or regulation alone would achieve. It would also realize macroeconomic benefits and non-economic co-benefits, and would mean that the national program is more economically and environmentally sustainable
Pro Bono in Action: An Immigrant\u27s Need for Representation
No full textLegal representation always matters, but the need for representation intensifies when the most basic rights are atstake. In immigration removal (deportation) cases, the federal government adjudicates whether an individual maylive and work in the United States, or whether that person must relocate to another country. Reasons for wantingto be in the United States vary, from a desire to remain with family to a fear for one\u27s life in a home country. In these immigration proceedings, an executive branch employee, an immigration judge, applies the Immigration and Nationality Act, a body of statutes long recognized to rival the income tax code in complexity. With so much at stake and with laws so complex, attorney representation is essential