Computer mouseOur own Professor Bob Hillman and his collaborator Professor Maureen O’Rourke of the Boston University School of Law have a forthcoming article on the law of software contracts, which is available on SSRN's Legal Scholarship Network (LSN).  Professors Hillman and O’Rourke are not new to the topic: they are the Reporter and Associate Reporter for the American Law Institute’s (ALI) Principles of the Law of Software Contracts.  The Principles have been years in the making with a discussion draft submitted to the ALI back in 2007.  ALI membership unanimously approved the final draft in May 2009.  The current law of software contracts is a messy patchwork drawing from federal intellectual property law, common law, and Article 2 of the Uniform Commercial Code.  Thus, the Principles project seeks to “clarify and unify the law of software transactions” by addressing issues of contract formation, enforcement of terms, automated disablement, and contract interpretation, among other issues.

Now, while software and software law may seem mundane in today’s digitally-driven world, the Principles have not been without controversy, especially in the areas of indemnification and warranties.  Specifically, section 3.05, “Other Implied Quality Warranties,” has garnered attention.  The section 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.”  Software providers have expressed concern over the phrase “material hidden defects” and the meanings of the individual words.  There is a fear that litigation against them will increase.  Professor Hillman addresses the issue of section 3.05 in a thorough blog post last summer.  It is worth a read and there are several comments that readers should consider, too.  They highlight the notion that exciting controversy is not just the domain of constitutional law cases at the Supreme Court!

Elena KaganOn May 10, 2010, President Obama nominated Solicitor General Elena Kagan to fill the seat of retiring Supreme Court Justice John Paul Stevens.  Kagan is President Obama’s second nomination to the Court and, if confirmed, Kagan will be the fourth woman to serve on the nation’s highest court.  To learn more about Solicitor General Kagan and the Supreme Court nomination process, there are some high-quality resources on the web that one should access.  Both the Library of Congress (LOC)  and the Georgetown Law Library  have extensive guides.  Both sites provide access to Kagan’s writing, including her law review articles, congressional documents, and briefs and transcripts of her arguments before the Supreme Court.  The Georgetown site includes e-mails, press releases, and other writings from Kagan’s tenure as Dean of Harvard Law School.  Also available are documents prepared in Ms. Kagan’s capacity as Associate White House Counsel to President Clinton.  Of particular interest is the questionnaire—with responses—submitted to the Senate Judiciary Committee, which the Committee uses to begin gathering information about the nominee.

You can also access materials about the nomination process.  The Georgetown guide links to Congressional Research Service (CRS) reports on the roles and actions of the President, Judiciary Committee, and the Senate during the nomination process.  Nomination hearings transcripts back to 1971 are available, as well as this intriguing CRS Report  on nominations that the Senate did not confirm.  Be sure to check out the LOC guide for links to videos and blogs covering the Kagan nomination.

The end of the semester draws near, so it’s time to start thinking about whether you’ll need your law school Lexis and Westlaw accounts this summer.  Full access to Lexis and Westlaw is turned off May 31 and does not reactivate until August.  However, if you meet one or more conditions you can extend your password for the summer---maintaining the access you have while in school.  These conditions cover various non-commercial activities, including public interest work, working as a faculty research assistant, journal or moot court research, and bar review.  A major new development this year is the addition of Lexis’ ASPIRE program, which is specifically designed for students and graduates doing public interest work.

Passwords must be extended by May 31.  Basically, you’ll complete an online form indicating to Lexis and West why you need full access during the summer.  Complete extension details for both Lexis and Westlaw are provided here.

Scales of JusticeTwo items of particular interest on the U.S. Supreme Court came across my desk last week.  The first was a National Law Journal article titled “Does Thomas’ Silence Thwart Advocacy?” (thanks to Robert Ambrogi’s LawSites).  Author Tony Mauro notes that it has been four years since Justice Thomas has asked a question during oral argument and wonders if that is too long—does that reticence damage the Court, its decision-making, and Justice Thomas’s reputation?  Mauro highlights a recent law review note on the subject.

The second item I saw was a brand new article in Law Library Journal titled “Dissents from the Bench: A Compilation of Oral Dissents by U.S. Supreme Court Justices.”  Authors Jill Duffy and Elizabeth Lambert have sifted through various sources to compile oral dissents from the Burger, Rehnquist, and Roberts Courts, October Term 1969 to present.  The piece provides a fascinating look at the Court’s cases from the last 40 years that have stirred the most impassioned dissents.

To delve further into the Supreme Court, there are many resources available.  The Law Library offers two research guides, one on Supreme Court Records and Briefs and the other on Supreme Court Oral Arguments.  Be sure to visit the Oyez Project, an archive of oral argument audio files, and the SCOTUSblog, which tracks Supreme Court news.  In our Law Library print collection, you may want to check out “Oral Arguments Before the Supreme Court: An Empirical Approach” by Lawrence Wrightsman.  This book has a chapter on justices' questions and another on justice behavior during oral argument.  Another book, “Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court”, looks at voting and opinion behavior.

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