This summer will be the inaugural program in International Information Technology Law sponsored by Southwestern Law School, Los Angeles, The program will be held at the University College of London Law Faculty building (Bentham House) in the heart of the UCL campus and just off of Russell Square — in the heart of London.

We have an outstanding faculty:

* Prof. Susan Brenner, University of Dayton (International Cybercrimes)
* Prof. Ian Walden, Queen Mary School of Law, London (Comparative Information Privacy Law and Regulations)
* Prof. Michael Scott, Southwestern Law School, Los Angeles (Drafting Information Technology Agreements), and
* Dr. Julia Hörnle, Queen Mary School of Law, London (Comparative Electronic Commerce Law and Regulation).

The program will run from June 21-July 24, 2009. Students will stay in College Hall, a recently opened housing facility, which is only a short walk from the classrooms. Classes go from 9-1:10 from Monday-Thursday, giving students every afternoon to explore all that London has to offer, plus every weekend is a three-day weekend for those who would like to travel outside of London.

Due to space limitations, we can only accept 48 students. So if you are interested, or know someone who might be, please let them know.

1. Tell me about the new Information Technology (IT) Law Summer Program in London?

The program will allow students to earn six units of course credit while enjoying five incredible weeks in London. Each student will choose two of four courses: Comparative Electronic Commerce Law, Comparative Information Privacy Law, International Cybercrimes or Drafting Information Technology Agreements. Classes will be held from 9-1, Monday through Thursday, which makes every weekend a three-day weekend. Classes will be supplemented by field trips, guest speakers and various social events.

2. When did you develop the idea for the IT Summer Law Program?

I have been interested in expanding the school’s offerings in international technology law since I joined the full-time faculty in 2003. There are not a lot of professors in Los Angeles, or even the United States, that have expertise in this area. Because of the growing importance of the European Union, and the enactment of new IT laws in the EU, it made sense to locate the program within the EU where we can hire professors knowledgeable in comparative US-EU IT laws.

3. Is this the first program of its kind?

Yes. There have been summer abroad programs that offer one or two courses in IT law, but this is the only program that focuses exclusively on international IT law. This gives students interested in practicing in this field a great opportunity to learn from professors who are internationally recognized educators in the field. It should give students participating in the program a distinct advantage over other students in getting a job in the IT sector.

4. Why London?

I actually looked at several other cities in Europe first. I had a list of characteristics I was looking for in a host city. None of the other cities had all of those characteristics; London did. In London you have first class housing and classroom facilities, a great transportation system, plenty of cultural, social and educational opportunities, easy access to other European destinations, a safe environment, and the ability to attract a world-class faculty.

London is, in my opinion, the most exciting city in the world. Spending five weeks in London is a once-in-a-lifetime opportunity. There is a dizzying array of things to do in London, from watching tennis stars at Wimbledon to enjoying plays, musicals and outdoor concerts just down the street from the school. We are literally only blocks away from the British Museum, the British Library and numerous historical sites. Stonehenge, Oxford, the Edinburgh Festival (and many other destinations) are easily accessible by train or bus. In addition, most European cities are no more than an hour or two away. For example, there is a train within walking distance of the dorm that will whisk you to downtown Paris in just two hours. You can have lunch overlooking the Eiffel Tower and be back in London in time for dinner, or spend the entire weekend in Paris or another wonderful destination.

5. What makes this such an exciting and timely program?

The Internet and electronic commerce are the fastest growing business sectors worldwide. Every company, whether considered “high tech” or otherwise, understands the importance of being “online.” As a result, there is an enormous demand for tech-savvy attorneys, even when there is a downturn in the economy. These classes are unique and will provide students with an international perspective on IT law that is simply not available elsewhere.

6. How and why was each participating faculty member selected for the program?

Having practiced in the international IT law field for almost 30 years, I have had the opportunity to travel extensively and get to know IT lawyers and academics worldwide. When I was planning this program I contacted dozens of recognized experts in the field and asked them whom they thought were the best educators in IT law in the U.S. and the UK. That search led me to each of the professors who will be teaching in the program. As shown by their biographies, they are all accomplished authors, speakers and teachers. It is a truly an amazing faculty.

7. What are some of the biggest issues in IT law and how will this program help prepare students interested in the field?

When a company establishes a website, it is instantly doing business globally. That means that the company is potentially subject to the laws of every country in which its website is accessible, including contract law, privacy law, and criminal law. It is not sufficient for a company’s lawyers to understand only the laws of the country in which that company is located. They must understand the potential impact of foreign laws on their client’s business, and the potential liability that client may face around the world. This program will provide students with that global perspective.

According to the facts, Rogers Communications, Inc., a Canadian cable company, entered into an agreement with Aliant, Inc. to string Rogers’ cable lines on telephone poles for an annual fee of $9.60 per year. Rogers intended to have a contract with a minimum five year term at a fixed rate with five year renewals. The renewal periods were to be subject to a one-year notice of cancellation.

The contract language said that the agreement “shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.”

Aliant gave notice of termination during the first five year period. Rogers objected and the parties ended up before the Canadian Radio-television and Telecommunications Commission (CRTC). Aliant, armed with a book on proper English grammar, argued that the second comma made the termination provision applicable to both the initial and the subsequent renewal terms, not just the renewal terms. The CRTC agreed. “Based on the rules of punctuation,” the comma in question “allows for the termination of the [contract] at any time, without cause, upon one-year’s written notice.”

Aliant has proposed a rate increase from $9.80 per pole per year to $28.05 per pole per year, costing Rogers more than $2.13 million more than expected.

Should the regulators have relied on an English grammar book to find the meaning to be unambiguous, or should they have looked behind the contract at the intent of the parties? Should parol evidence have been admitted to show the intent of the parties?

One contract drafting expert had this to say on the issue:

“The CRTC’s analysis seems pedantic, in that it would be unreasonable to assume that drafters grasp the implications of every comma. But as a way of resolving a dispute, consulting a few books on punctuation is certainly quicker than delving into the intent of the parties. * * *

“The drafter would have been better off rewriting the provision. Here’s my version: ‘The initial term of this agreement ends at midnight at the beginning of the fifth anniversary of the date of this agreement. The initial term (including any extensions in accordance with this section 12) will automatically be extended by consecutive five-year terms unless no later than one year before the beginning of any such extension either party notifies the other in writing that it does not wish to extend this agreement.’”

And the questions on any transactional attorney’s mind — Does the careless use of a comma constitute malpractice? And will the law firm that represented Rogers in this contract negotiation be representing Rogers again in the future?

A consistent litany is that law students do not know how to write. Unfortunately, colleges are moving away from having students write lots of essays — it takes too much time to grade them. Instead, schools are moving more toward short-answer and multiple choice exams, even in English courses. My son graduated from a very good university only a few years ago with a degree in English and even he lamented that there were so few classes in which he was asked to write a paper.

If students don’t learn how to write in college, should it be up to law schools to teach them how to write? And if not law schools, should it be up to law firms to teach them how to write?

The dearth of writing opportunities (other than final exams) in law schools is leading many schools to include drafting courses in their curriculum. The course I teach, for example, requires both in-class and take-home writing assignments each week. It is a pain in the neck to grade all of those assignments, but it is satisfying to see most of the students improving their writing throughout the course. By the time they get to their last writing project, they are comfortable writing contract clauses, and most of them do an extremely credible job in drafting a full agreement. Indeed, the work they do is often better than what I saw coming from young associates when I was in private practice.

But, of course, a single, three hour class over 14-weeks is not going to solve the writing problems facing law firms. And it is not going to prevent the problem presented in the Rogers case from arising again in a different context.

The fact is, lawyers are pretty good writers in general, but are not grammatical experts. It is unreasonable to a court or government agency to focus on an issue of punctuation that probably only a few lawyers would even realize is a problem.

Where there are two possible interpretations of a contract clause, no matter what some expert grammatician says, the trier of fact should look behind the text to determine the party’s intent. That is the only way to do justice.

There were no casebooks available, nor any good books of any kind. So, the first thing was to prepare materials. Surprisingly, except for a few clauses that seem to be heavily litigated — warranty disclaimers, choice of laws, etc. — most clauses you are likely to find in a technology agreement have never been analyzed in any reported court decisions — either at the state or federal level. So the materials consisted mainly of selected provisions of the UCC, Restatement, state laws, the few court decisions that were available, and a number of articles that look at various boilerplate provisions. I supplemented those materials with excerpts from my book — Scott on Computer Law – which has several chapters devoted to contract clauses. That gave a good core of materials to teach from.

The second issue was how to teach a contract drafting course to students who had never read a contract, let alone drafted one. I decided to approach it like one would a foreign language — start with lessons on the “vocabulary” of contracts and some simple “grammars,” gradually introducing the students to more complex structures and eventually complete agreements. So we started with simple boilerplate clauses; ripped them apart and rebuilt them. We looked at multiple versions of the same clause and discussed the relative strengths and weaknesses of each version from the perspective of each of the parties to the transaction.

In each class, we had an in-class assignment, which consisted initially of having the students draft one or two boilerplate clauses based upon the facts of a short hypothetical. The facts prevented the student from just using an off-the-shelf clause. Their take-home assignments were to draft short agreements or sections of longer agreements (e.g., a non-disclosure agreement, a work-made-for-hire section of a software development agreement). Again, the writing assignment was based on a hypothetical fact situation, which prevented them from simply cribbing a form clause and not modifying it to fit the facts.

After 3-4 weeks, the students were ready to start drafting short contracts. In the meantime, the in-class discussions had moved from individual clauses to specific types of contracts. We dissected and analyzed a variety of common agreements, including licenses, development agreements, distribution agreements, employment agreements, web site terms of use, privacy policies, outsourcing agreement and website hosting agreements. We explored how the same or similar clauses showed up in virtually every agreement, and when the clauses were different, why there were different. We discussed the goal-oriented approach versus the confrontational approach to contract drafting, how contracts often create long-term relationships like marriages that need to allow for problems and disagreements along the way with dispute resolution mechanisms to avoid litigation.

We had two guest speakers along the way — one lawyer and one experienced business consultant — who provided valuable, real-world insights on the contract drafting process and how lawyers and clients can best work together to achieve businesses’ goals through that process.

Their final project was to draft and negotiate the terms of a computer systems acquisition agreement. The class was divided into “law firm” teams. Half the teams represented the vendor, while the other half represented the customer. Each law firm was provided basic information on the types of computer system being acquired plus several “internal memos” from their “client” telling them specific requirements, needs, concerns, of their client. Each team then had an opportunity to have a live presentation from their “client” and a Q&A session with the client. Then, each law firm prepared a Term Sheet and turned that Term Sheet into a full draft agreement. Each law firm then received a copy of an agreement drafted by a law firm for the other party and were given a week to compare their agreement with the other firm’s agreement and make a list of crucial changes that needed to be negotiated.

Each pair of law firms then had a three-hour negotiating session to see how many of the disputed terms could be agreed upon. The last assignment was to redline their draft agreements with the agreed-upon changes, and prepare a memo on the unresolved provisions and why the parties were unable to resolve them.

In a very short period of time, all of the students were able to turn out contract clauses, sections of contracts, and eventually entire agreements that were better than many I had seen drafted by “experienced” transactional lawyers. The students felt that they had not only learned a great deal about contract law and the contracting process, but that they had gained the confidence necessary to draft even the most complex documents by breaking them down into manageable clauses and groups of sections and then building those sections into a complete agreement. Every student felt that the hard work had been well worth it, and all of them said that they would recommend the course to their colleagues. A few said that this was the most useful course they had taken in law school.

So . . . if you are looking for a good law clerk or associate with contracting drafting experience, let me know.