‘Children not trophies’: an ethnographic study of private family law practice in England

The welfare of the child in the context of private family law proceedings is of significant international interest. This paper presents findings from an ethnographic study of private law proceedings in England, which explored legal professionals’ experiences of and practice within space and place. Data are derived from interviews with professionals, and observations from the waiting areas, canteens, interview rooms and offices of lawyers who represent parents in private family law proceedings. The paper focuses on winners and losers in the area of private family law, and the ‘trophy’, the child, who appears to be lost in the battleground of legal proceedings, but remains the ultimate prize. The concept of space is explored before moving to reflect upon the data from the interviews. The themes that emerge from the data are the relationships between the public space of the court and the vulnerability of the parties as they attempt with greater or less ease, to navigate the complexities of this formal and procedurally driven space. This paper explores the idea of the child as the ultimate ‘trophy’ within private law proceedings to consider its significance for family justice practice in England, and to elicit a greater understanding of the importance of space and place in private law proceedings that have remained largely unexplored

The Software Licensing Dilemma

This Article makes two arguments. First, the dilemma posed by software transactions-sales or licenses?-should be answered by dynamic contract law. Dynamic contract law has as its objective effectuating the intent of the parties but weighs that objective against policy considerations. Second, the validity of a license grant should not be inextricably tied to the validity of the contract as a whole. The problem with relying on contract doctrine in the context of software licensing is that, too often, the application of that doctrine is static and formalistic. A new doctrine is not necessary to address software licensing issues; rather, the old doctrine needs to be reinvigorated to address changes in the marketplace. A license grant is not solely and exclusively a contractual term, the validity of which depends on the validity of the contract in its entirety; rather, in the event that a software license fails as a contract, the license grant may be considered-separate from the contract as a whole-as a promise made by the licensor that is contingent on the licensee\u27s performance and adherence to its terms. Part II discusses the implications of the licensing dilemma and the ramifications that flow from a determination of the transaction as either a license or a sale. Part III summarizes existing approaches to the software licensing dilemma and proposes a dynamic contracts approach to examining software transactions. A dynamic contracts approach identifies the nature of the transaction as relevant to determining the intent of the parties. Part III also proposes several criteria for distinguishing a sales transaction from a licensing transaction and acknowledges that most software transactions contain aspects of both. In addition, Part III discusses the effect of written terms that accompany a product in both a licensing and a sales transaction. Because software license agreements are contracts, their validity and enforceability should depend first and foremost on their validity and enforceability as contracts; however, rather than examining the written agreement in order to characterize the transaction, we should look to the transaction to determine how to interpret the written terms. In a sales transaction, the license grant is effective as a promise independent from the other terms contained in the contract. Recognizing the independence of license grant provisions exposes the binary proposition of license versus sale as a false dichotomy. Part IV examines two common license restrictions and discusses how each should be interpreted using a dynamic contracts approach. Part V discusses and responds to anticipated objections to this approach. This Article concludes that the software licensing dilemma is a red herring. Technology has created challenges for software producers, but those challenges are not unique to the software industry. Before we distort existing legal doctrine in an effort to accommodate the perceived needs of a specific market segment, we should carefully consider the impact of doing so on other market segments. It would be much wiser to take the long view to address technological changes than to create exceptions that morph into rules with regrettable implications

Boilerplate and Consent

In Margaret Jane Radin\u27s book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask how it affects the well being and satisfaction of consumers who buy products co-packed with boilerplate.” According to Ben-Shahar, boilerplate apologists believe that boilerplate is welfare-enhancing because it reduces transaction costs and, presumably, prices. Therefore, he argues, boilerplate is what consumers want anyway – a generalization that Radin disputes. More importantly, it ignores the larger questions raised by Radin’s book regarding the limits of consent: Even assuming that consumers want boilerplate, how much does that matter? Or, to put it differently, Are there limits to consent? Are there some things to which we, as a civilized society, should not permit consumers to consent? This Essay does not attempt to answer those questions. Rather, it posits that they are unanswerable without a better, more nuanced definition of consent – one that takes into account contracting realities such as contracting environment, contract presentment, the nature of rights affected, and the burdens created by boilerplate

Two Alternate Visions of Contract Law in 2025

Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered by courts that understand the diversity of marketplace needs, acknowledge contracting realities, and consider the context of transactions in applying doctrinal rules. This essay concludes that the strength of contract law lies is in its flexibility, but its relevance depends upon how courts use that flexibility to guide its development

Evolving Business and Social Norms and Interpretation Rules

Rapid societal and technological changes - such as the rise in electronic commerce, increasing diversity and globalization - create contract interpretation issues that require a dynamic approach. While many modern contractual disputes arise from a confluence of factors, contract doctrine has tended to adopt a unitary approach to problems with an emphasis on interpretation of words. This article argues that non-intuitive interpretation rules work to the disadvantage of language and cultural minorities and should only be used if their purpose is to determine the intent of the parties or to uphold a policy or legislative objective. A dynamic approach is best suited to address evolving social norms and needs. This article proposes a dynamic approach to contract interpretation which shifts focus away from the meaning of written words to a determination of the intent of the parties

Imposing Tort Liability on Websites for Cyber Harassment

Several female law students were the subject of derogatory comments on AutoAdmit.com, a message board about law school admissions. When one of the women asked the website administrator to remove certain comments, the administrator discussed her request in an online post, prompting further attacks. An undergraduate student’s rape was revealed on a gossip site, JuicyCampus.com, where posters engaged in a cruel session of “blame the victim.” Another student on that site was falsely identified, by name, as being a stalker, bi-polar, and suicidal. When officials at her university asked JuicyCampus.com to remove the most egregious posts, the company refused. These recent examples have brought the vexing problem of cyber-harassment to the public’s attention. Under § 230 of Title 47 of the U.S. Code,4 websites are not liable as publishers for the content on their sites so long as they are not involved in the creation of the objectionable content. Accordingly, much of the relevant scholarship has focused on repealing §230 or imposing liability upon posters

Mistakes, Changed Circumstances and Intent

This is the published version

Website Proprietorship and Online Harassment

Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content. Given the unique nature of online harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon Web site sponsors who fail to adopt reasonable measures to prevent foreseeable harm, such as online harassment. I also introduce several proposals to deter online harassment that would qualify as reasonable measures. These proposals incorporate contractual and architectural restraints, limits on anonymity, and restrictions on posting certain types of digital images