Performance Risk, Form Contracts and UCITA

No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the information economy would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the Conference ) has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ( UCITA )--drafted to provide the background law for many of the most significant transactions in the information age--simply accepts as holy writ the duty to read tradition that has been handed down by our forefathers. Specifically, § 113 of UCITA provides that the Act\u27s default rules can be varied by agreement and §§ 112 and 208 provide that manifested assent to a standard form (by, for example, use of the product) constitutes assent to each term of that form. The Conference proclaims that the Act is a statute for our time; setting forth uniform legal principles applicable to computer information transactions. This article considers whether the several States should adopt the Act as drafted, when it continues a fiction that condones economic inefficiency and unfair resolution of disputes. Concluding that UCITA cannot profess to be a coherent contract law framework for analyzing a license ... the dominant contractual framework for commerce in computer information without a more uniform treatment of performance problems in form transactions, I propose an alternative treatment based on efficient risk management principles.[...] This Article is limited to UCITA\u27s treatment of performance problems in the context of form contracts used in transactions between commercial (i.e. non-consumer) parties. Part II will describe the scholarship regarding form contracts in particular-scholarship that apparently has been rejected or ignored by the Conference. Part II also analyzes whether shrinkwraps and clickwraps, as prototypical UCITA contracts, present any particular basis for rejecting scholarly analysis. Part III examines in detail the most relevant provisions of UCITA and the Official Comments supporting those provisions. True to its word, UCITA\u27s formalistic freedom of contract approach would enforce standardized contractual terms regarding performance obligations and remedies, despite any empirical basis for finding a meeting of the minds or any persuasive demonstration that presumed assent is consistent with public norms. Part IV explains an approach that focuses on risk bearing and spreading and demonstrates why that approach is more efficient and fair. I present a model statute that would implement such an approach. The statute breaks down the problem into five parts: definitions, specification of product performance standards, tests for determining whether those standards were met, remedies for performance failure, and a deferred effective date. I then apply UCITA and the model statute to the foregoing hypothetical cases to analyze the difference in outcomes and incentives. I conclude Part IV with a consideration of how the model statute would have applied if Y2K had lived up to its billings, and how it might affect innovation in information technology

Performance Risk, Form Contracts and UCITA

No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the information economy would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the Conference ) has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ( UCITA )--drafted to provide the background law for many of the most significant transactions in the information age--simply accepts as holy writ the duty to read tradition that has been handed down by our forefathers. Specifically, § 113 of UCITA provides that the Act\u27s default rules can be varied by agreement and §§ 112 and 208 provide that manifested assent to a standard form (by, for example, use of the product) constitutes assent to each term of that form. The Conference proclaims that the Act is a statute for our time; setting forth uniform legal principles applicable to computer information transactions. This article considers whether the several States should adopt the Act as drafted, when it continues a fiction that condones economic inefficiency and unfair resolution of disputes. Concluding that UCITA cannot profess to be a coherent contract law framework for analyzing a license ... the dominant contractual framework for commerce in computer information without a more uniform treatment of performance problems in form transactions, I propose an alternative treatment based on efficient risk management principles.[...] This Article is limited to UCITA\u27s treatment of performance problems in the context of form contracts used in transactions between commercial (i.e. non-consumer) parties. Part II will describe the scholarship regarding form contracts in particular-scholarship that apparently has been rejected or ignored by the Conference. Part II also analyzes whether shrinkwraps and clickwraps, as prototypical UCITA contracts, present any particular basis for rejecting scholarly analysis. Part III examines in detail the most relevant provisions of UCITA and the Official Comments supporting those provisions. True to its word, UCITA\u27s formalistic freedom of contract approach would enforce standardized contractual terms regarding performance obligations and remedies, despite any empirical basis for finding a meeting of the minds or any persuasive demonstration that presumed assent is consistent with public norms. Part IV explains an approach that focuses on risk bearing and spreading and demonstrates why that approach is more efficient and fair. I present a model statute that would implement such an approach. The statute breaks down the problem into five parts: definitions, specification of product performance standards, tests for determining whether those standards were met, remedies for performance failure, and a deferred effective date. I then apply UCITA and the model statute to the foregoing hypothetical cases to analyze the difference in outcomes and incentives. I conclude Part IV with a consideration of how the model statute would have applied if Y2K had lived up to its billings, and how it might affect innovation in information technology

Distributed Security: Preventing Cybercrime, 23 J. Marshall J. Computer & Info. L. 659 (2005)

This article focuses on the modern development of cybercrime and how the current law enforcement model is inadequate to prevent and enforce computer-mediated crime. Specifically the article argues that the nation-states can better control the problem of cybercrime by replacing the current law enforcement model with that of a system of “distributed” security that uses criminal sanctions to employ reasonable measures to prevent and the perpetration of cybercrime. The article begins by defining the terms “law enforcement”, “crime”, and “cybercrime” and then moves on to discuss how the current model of law enforcement, as it stands today, is inept to conquer the issue of cybercrime due to its unique composition. However, the article does not seek to completely abandon the current model of law enforcement, but instead seeks to use this model to deal with cybercriminals. Finally, the article explains how different individuals, and organizations can use this proposed model to prevent the occurrence of cybercrime

Civilians in Cyberwarfare: Conscripts

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation\u27s infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their cyberwarfare response structures if a state is to be able to respond effectively to cyberattacks. While many companies may voluntarily elect to participate in such an effort, others may decline to do so, which creates a need, in effect, to conscript companies for this purpose. This Article explores how the U.S. government can go about compelling civilian cooperation in cyberwarfare without violating constitutional guarantees and limitations on the power of the Legislature and the Executive

Symmetries and Elasticity of Nematic Gels

A nematic liquid-crystal gel is a macroscopically homogeneous elastic medium with the rotational symmetry of a nematic liquid crystal. In this paper, we develop a general approach to the study of these gels that incorporates all underlying symmetries. After reviewing traditional elasticity and clarifying the role of broken rotational symmetries in both the reference space of points in the undistorted medium and the target space into which these points are mapped, we explore the unusual properties of nematic gels from a number of perspectives. We show how symmetries of nematic gels formed via spontaneous symmetry breaking from an isotropic gel enforce soft elastic response characterized by the vanishing of a shear modulus and the vanishing of stress up to a critical value of strain along certain directions. We also study the phase transition from isotropic to nematic gels. In addition to being fully consistent with approaches to nematic gels based on rubber elasticity, our description has the important advantages of being independent of a microscopic model, of emphasizing and clarifying the role of broken symmetries in determining elastic response, and of permitting easy incorporation of spatial variations, thermal fluctuations, and gel heterogeneity, thereby allowing a full statistical-mechanical treatment of these novel materials.Comment: 21 pages, 4 eps figure

Population dynamics of a commercially harvested, non-native bivalve in an area protected for shorebirds: Ruditapes philippinarum in Poole Harbour, UK

The Manila clam Ruditapes philippinarum is one of the most commercially valuable bivalve species worldwide and its range is expanding, facilitated by aquaculture and fishing activities. In existing and new systems, the species may become commercially and ecologically important, supporting both local fishing activities and populations of shorebird predators of conservation importance. This study assessed potential fishing effects and population dynamics of R. philippinarum in Poole Harbour, a marine protected area on the south coast of the UK, where the species is important for oystercatcher Haematopus ostralegus as well as local fishers. Sampling was undertaken across three sites of different fishing intensities before and after the 2015 fishing season, which extends into the key overwintering period for shorebird populations. Significant differences in density, size and condition index are evident between sites, with the heavily dredged site supporting clams of poorer condition. Across the dredge season, clam densities in the heavily fished area were significantly reduced, with a harvesting efficiency of legally harvestable clams of up to 95% in this area. Despite occurring at significantly higher densities and growing faster under heavy fishing pressure, lower biomass and condition index of R. philippinarum in this area, coupled with the dramatic reduction in densities across the fishing season, may be of concern to managers who must consider the wider ecological interactions of harvesting with the interest of nature conservation and site integrity

Hall Normalization Constants for the Bures Volumes of the n-State Quantum Systems

We report the results of certain integrations of quantum-theoretic interest, relying, in this regard, upon recently developed parameterizations of Boya et al of the n x n density matrices, in terms of squared components of the unit (n-1)-sphere and the n x n unitary matrices. Firstly, we express the normalized volume elements of the Bures (minimal monotone) metric for n = 2 and 3, obtaining thereby "Bures prior probability distributions" over the two- and three-state systems. Then, as an essential first step in extending these results to n > 3, we determine that the "Hall normalization constant" (C_{n}) for the marginal Bures prior probability distribution over the (n-1)-dimensional simplex of the n eigenvalues of the n x n density matrices is, for n = 4, equal to 71680/pi^2. Since we also find that C_{3} = 35/pi, it follows that C_{4} is simply equal to 2^{11} C_{3}/pi. (C_{2} itself is known to equal 2/pi.) The constant C_{5} is also found. It too is associated with a remarkably simple decompositon, involving the product of the eight consecutive prime numbers from 2 to 23. We also preliminarily investigate several cases, n > 5, with the use of quasi-Monte Carlo integration. We hope that the various analyses reported will prove useful in deriving a general formula (which evidence suggests will involve the Bernoulli numbers) for the Hall normalization constant for arbitrary n. This would have diverse applications, including quantum inference and universal quantum coding.Comment: 14 pages, LaTeX, 6 postscript figures. Revised version to appear in J. Phys. A. We make a few slight changes from the previous version, but also add a subsection (III G) in which several variations of the basic problem are newly studied. Rather strong evidence is adduced that the Hall constants are related to partial sums of denominators of the even-indexed Bernoulli numbers, although a general formula is still lackin

Impact of shortened crop rotation of oilseed rape on soil and rhizosphere microbial diversity in relation to yield decline

Oilseed rape (OSR) grown in monoculture shows a decline in yield relative to virgin OSR of up to 25%, but the mechanisms responsible are unknown. A long term field experiment of OSR grown in a range of rotations with wheat was used to determine whether shifts in fungal and bacterial populations of the rhizosphere and bulk soil were associated with the development of OSR yield decline. The communities of fungi and bacteria in the rhizosphere and bulk soil from the field experiment were profiled using terminal restriction fragment length polymorphism (TRFLP) and sequencing of cloned internal transcribed spacer regions and 16S rRNA genes, respectively. OSR cropping frequency had no effect on rhizosphere bacterial communities. However, the rhizosphere fungal communities from continuously grown OSR were significantly different to those from other rotations. This was due primarily to an increase in abundance of two fungi which showed 100% and 95% DNA identity to the plant pathogens Olpidium brassicae and Pyrenochaeta lycopersici, respectively. Real-time PCR confirmed that there was significantly more of these fungi in the continuously grown OSR than the other rotations. These two fungi were isolated from the field and used to inoculate OSR and Brassica oleracea grown under controlled conditions in a glasshouse to determine their effect on yield. At high doses, Olpidium brassicae reduced top growth and root biomass in seedlings and reduced branching and subsequent pod and seed production. Pyrenochaeta sp. formed lesions on the roots of seedlings, and at high doses delayed flowering and had a negative impact on seed quantity and quality

XELOX vs FOLFOX-4 as first-line therapy for metastatic colorectal cancer: NO16966 updated results

BACKGROUND: We report updated overall survival (OS) data from study NO16966, which compared capecitabine plus oxaliplatin (XELOX) vs 5-fluorouracil/folinic acid plus oxaliplatin (FOLFOX4) as first-line therapy in metastatic colorectal cancer. METHODS: NO16966 was a randomised, two-arm, non-inferiority, phase III comparison of XELOX vs FOLFOX4, which was subsequently amended to a 2 x 2 factorial design with further randomisation to bevacizumab or placebo. A planned follow-up exploratory analysis of OS was performed. RESULTS: The intent-to-treat (ITT) population comprised 2034 patients (two-arm portion, n = 634; 2 x 2 factorial portion, n 1400). For the whole NO16966 study population, median OS was 19.8 months in the pooled XELOX/XELOX-placebo/XELOX-bevacizumab arms vs 19.5 months in the pooled FOLFOX4/FOLFOX4-placebo/FOLFOX4-bevacizumab arms (hazard ratio 0.95 (97.5% CI 0.85-1.06)). In the pooled XELOX/XELOX-placebo arms, median OS was 19.0 vs 18.9 months in the pooled FOLFOX4/FOLFOX4-placebo arms (hazard ratio 0.95 (97.5% CI 0.83-1.09)). FOLFOX4 was associated with more grade 3/4 neutropenia/granulocytopenia and febrile neutropenia than XELOX, and XELOX with more grade 3 diarrhoea and grade 3 hand-foot syndrome than FOLFOX4. CONCLUSION: Updated survival data from study NO16966 show that XELOX is similar to FOLFOX4, confirming the primary analysis of progression-free survival. XELOX can be considered as a routine first-line treatment option for patients with metastatic colorectal cancer