Article

Defending Disclosure in Software Licensing

Robert A. Hillman

Edward H. Woodruff Professor of Law, Cornell Law School

Maureen O’Rourke

Dean, Professor of Law, and Michaels Faculty Research Scholar, Boston University School of Law

The authors thank George Hay, Stewart Schwab, and the faculties of Boston University School of Law and Cornell Law School for their comments. Daniel Forester provided excellent research assistance.

This Article surveys prominent kinds of disclosures in contract law—of facts, contract terms, and performance intentions. We show why the disclosure tool, although subject to substantial criticism, promotes important social values and goals, including efficiency, autonomy, corrective justice, fairness, and the legitimacy of the contract process. Further, proposals to replace disclosure with other alternatives are unrealistic because they are too expensive or complex. Our working example is the American Law Institute’s Principles of the Law of Software Contracts.

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