Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis

With the rise of intellectual property in the modern economy, bankruptcy treatment of intellectual property assets has taken on ever greater importance. The law in this area must balance different approaches to asset management. Viewing the world from an ex ante perspective, intellectual property laws seek to foster investment in research and development. Freedom of contract plays a central role in maximizing the potential value of intellectual property by encouraging a robust licensing market to exploit the value of intellectual creativity. By contrast, the bankruptcy system generally views asset management from an ex post standpoint, focusing narrowly on how to maximize the value of a failing or failed enterprise. Thus, bankruptcy law affords trustees and debtors substantial leeway to rescind contracts and reorder the affairs of the failed entity. This article examines the rather complex rules governing the treatment of intellectual property assets in bankruptcy and suggests various reforms that could better promote economic efficiency

Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements

This Article examines the rules of law governing implied assent, arguments for and against valid implied assent in the context of browse-wrap agreements, principles of contract law addressing implied assent in the paper world, and the application of these principles to the electronic contract setting. Based on the precedents discussed in this Article, as well as policy arguments, the authors posit that a user validly and reliably assents to the terms of a browse-wrap agreement if the following four elements are satisfied:(i) The user is provided with adequate notice of the existence of the proposed terms. (ii) The user has a meaningful opportunity to review the terms. (iii) The user is provided with adequate notice that taking a specified action manifests assent to the terms. (iv) The user takes the action specified in the latter notice.This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association