In recent years, abusive mortgage practices have proliferated. These abusive practices, which have prevented homeowners from building equity in their homes, harm not only the debtor, but also the debtor’s other creditors. Despite their behavior, however, home mortgage lenders who engage in these practices continue to receive favorable treatment in bankruptcy. In this paper, I argue that creditors should be denied special treatment in bankruptcy unless they behave in an “honest but unfortunate” manner. Judges can deny this special treatment by using a time-honored bankruptcy principle, the principle of equitable subordination, to subordinate the unsecured portion of a home mortgage loan to all secured and priority claims. While equitable subordination, by itself, will not solve the foreclosure crisis, it may, by reducing the claims of abusive mortgagees, deter abusive lending practices in the future.

Consumers affected by data breaches understandably feel exposed to serious financial harm, even in the absence of liability for fraudulent charges. A consumer’s credit score affects her ability to finance important purchases, and the events that occur in aftermath of a data breach can negatively affect that score. Because these losses are not addressed by existing privacy and payment system statutes, consumers have attempted to recover them using various common law theories, but have uniformly failed in recovering anything for these losses. In this paper, prepared for a symposium on Data Security and Data Privacy in the Payment System, I will discuss the cases in which consumers have been denied recovery for losses arising out of data breaches, and then focus on one argument made by the plaintiffs in the Hannaford case, the argument that, under Article 2 of the Uniform Commercial Code (U.C.C.), every time a retailer accepts a payment card from a buyer, it warrants that its payment system is secure.

While a warranty of data security might be a good idea, Article 2, because of its limitation to the sale of goods, is not the best place for it. Instead, courts could impose a common law warranty of data security, under which all sellers would warrant that their chosen payment system is secure. Below, I will make some arguments supporting a non-waivable common-law warranty of data security that is drawn both from the Article 2 warranties and the warranties in Articles 3 and 4 of the U.C.C., which apply to negotiable instruments and the check collection system. I will then compare the problem of ensuring safe data transactions today to the problem of ensuring the habitability of rental housing in the mid-20th century, which judges addres

The proponents of efforts to formulate a body of law for software contracts tend to insist that such a body of law is necessary because software transfers, as transfers of copies of information, are different from transfers of goods, and these differences make the common law of contracts and Article 2 of the UCC inappropriate bodies of law to govern software contracts. The ALI Principles constitute the latest attempt at such unification, and in this article, we argue that there is little in the Principles that addresses any unique characteristics of software. Neither one of us was involved in the Article 2B/UCITA project, so we approach this problem by looking at the law as it existed at the time the Principles project started instead of looking at the law at the time Article 2B was conceived.

Virtual worlds have captured the attention of legal and other scholars. The legal literature tends to focus on the application of real world laws to the virtual environment. Some have discussed how our property laws should apply in virtual worlds; others have questioned whether virtual worlds need their own governance institutions. In this article, I will take another approach. Rather than asking whether real world laws can or should apply to virtual worlds, I will discuss the ways in which the study of virtual worlds can contribute to real world law. Specifically, I will explain what the study of virtual world assets can do for property law.

In this paper, I argue that virtual world assets are significant because they graphically illustrate the different rights that persons can hold in an intangible asset. Once we see that intangible assets encompass the very same rights that are embodied in tangible assets, we can understand that the law should not permit the unfettered customization of property rights in intangible assets by standard form agreements, just as the law does not permit the unlimited customization of property rights in tangible assets and real property. My thesis is that a study of virtual world assets can help us understand why the numerus clausus principle should be more rigorously applied to rights in intangible assets and that the numerus clausus can, in turn, assist us interpreting the standard-form agreements that convey rights in these assets.