From Lord Coke to Internet Privacy: The Past, Present, and Future of Electronic Contracting

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract law also must be able to handle changing social and economic circumstances, changes that occur at an ever-increasing speed. Contract law, originally designed to handle agreements reached by persons familiar with one another, evolved over time to solve the problems posed by contract formation that was done at a distance — that is, contract law had developed to handle first paper, then telegraphic, and finally telephonic communications. It has handled those changes very well. In the 1990s, however, things began to change. The rise in computer use by individuals coupled with the advent of the World Wide Web gave rise to two parallel developments, both of which challenged the law of contract formation. Increased computer use created a demand for software programs designed for the consumer market, and those programs were commonly transferred to users by way of standard-form licenses that were packaged with the software and thus unavailable before the consumer paid for the software. Also, parties in large numbers began to use electronic means — the computer — to enter into bargained-for relationships. The turn of the millennium brought two electronic contracting statutes, the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”), which removed any doubts that contracts entered into electronically could satisfy the Statute of Frauds. Encouraged by the certainty given by those statutes, internet businesses started offering contract terms on their websites, asking customers to consent to terms by clicking an icon, or by not seeking express assent at all by presenting terms of use by hyperlink. The ease of presenting terms comprised of thousands of words by an internet hyperlink makes it easy for a vendor in its terms of use and terms of service to ask us to give up privacy rights and intellectual property rights. Modern communications technologies therefore make it easier for parties to engage in risky transactions. Nevertheless, we believe that, with few exceptions, the common law of contracts is sufficiently malleable to address the problems arising out of that behavior and where it is not, regulation of contract terms is appropriate. This Article examines those developments

A Planner\u27s Primer

Anyone undertaking an assignment to write within a few pages under this comprehensive title must limit his coverage. This general article on a subject as intangible as estate planning omits entirely or gives short treatment to many considerations which may be of great importance to the conscientious planning of relatively complicated estate situations. Emphasis will be placed on the tax aspects of estate planning, particularly federal taxes, but consideration will be given to other aspects which may be of equal or even greater importance. This deliberate emphasis is certainly not intended to add to the misleading impression, too frequently held, that the purpose of estate planning is merely to devise schemes to save taxes. It should be borne in mind that the estate being planned is the family economic fortune in its present form as well as the property which will pass at the owner\u27s death. They may be quite dissimilar. It is the living estate owner who is to be helped with his planning through action to be taken by him currently. About the only planning done after death is the upsetting of prior planning or lack of planning. The owner of an estate should not sacrifice his own security and that of his family as it is now constituted by an excessive regard for members who may survive him. He may turn out to be the one surviving them. Many plans have produced adverse consequences because death refused to follow in the planned sequence. This does not mean that estate planning should disregard all possibilities for betterment merely because the unexpected might happen. Reasonable probabilities should be acted upon, but all possible consequences must be carefully considered

A Case Study in the Superiority of the Purposive Approach to Statutory Interpretation: \u3cem\u3e Bruesewitz v. Wyeth \u3c/em\u3e

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite these Justices’ common approach to statutory interpretation, they reached diametrically opposite conclusions in opinions that dissected the statutory language and quarreled over the meaning of “even though” and “if” clauses. In contrast, Justice Breyer employed a purposive or “purposes and objectives” approach to statutory interpretation. Rather than obsessing over the meaning of each and every phrase, Breyer looked at Congress’s goals in passing the Act. He recognized that Scalia’s conclusion was correct, not because of the supposedly “plain” meaning of specific language, but because this interpretation was the only one that enabled the alternative compensation system to function as Congress envisioned. Other scholars have analyzed Bruesewitz as a preemption case, but despite statutory interpretation’s inherently decisive role in express preemption cases, this is the first Article to highlight Bruesewitz as an illustration of the emptiness of textualism

Appellate Justice Bureaucracy and Scholarship

Many of the other Articles in this Symposium demonstrate that a single great piece of legal scholarship can have an enormous impact on the development of legal doctrine. This Article differs in two respects. First, it focuses not on a single seminal work, but rather on a developing literature authored by a large group of scholars. Second, it attempts to assess the impact of that literature not on the growth of legal theory, but on the development of a single legal institution-the United States Courts of Appeals

Prologomenon to an Empirical Restatement of Conflicts

Symposium: Preparing for the Next Century-A New Restatement of Conflicts