Joshua Yuvaraj, ‘Recentering Creativity in Copyright’

17 April 2026 | Author: steve

ABSTRACT
Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be ‘creative’ where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to cultivate it. In this paper I develop that scholarship with an ontological analysis of copyright’s relationship with creativity. Drawing on a recent meta-theory of creativity research, I demonstrate how creativity is phenomenological; that is, sociocultural and environmental factors are as important to creativity as individual cognitive processes. I then show that copyright law does not easily cohere with this phenomenological view of creativity: it has no role in some elements and is structured as to stymy others. While this analysis adds a further basis to the argument that we should not consider copyright law as a creativity-promoting legal framework, I use social contract theory to show that copyright can be regarded as having a secondary, facilitative role in the phenomenon of creativity. This analysis provides the theoretical framework for further research in three areas: (a) it challenges copyright expansionism; (b) it encourages examination of avenues to promote creativity beyond copyright law; and (c) it suggests the provision of property rights in respect of intellectual creations under copyright law should be revisited.

Yuvaraj, Joshua, Recentering Creativity in Copyright, IP Theory, volume 15, issue 2, article 4 (2026).

Posted in Intellectual Property | Leave a Comment

Pamela Samuelson, ‘The Scope of Software Copyrights Revisited’

17 April 2026 | Author: steve

ABSTRACT
This Article reviews the highs and lows of US copyright case law construing software copyright scope over the nearly 50 years since copyright protection was first extended to computer programs. When the amendment was passed in 1980, initial expectations were that the scope of copyright in computer programs would be quite thin; some early cases, however, interpreted that scope rather broadly. Subsequent decisions resisted this trend, as courts sought to refine the analysis of software copyright scope, applying the doctrines of merger and scenes a faire, as well as § 102(b), to filter out unprotectable elements. Fair use also has played a role in delimiting the scope of software copyright, most recently in the Supreme Court’s Google LLC v Oracle America, Inc decision.

Samuelson, Pamela, The Scope of Software Copyrights Revisited (April 3, 2026), UC Berkeley Public Law Research Paper (forthcoming); Stanford Technology Law Review (forthcoming).

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Orts and Schafhäutle, ‘Corporate Fiduciary Duties and the Climate and Biodiversity Crisis’

16 April 2026 | Author: steve

ABSTRACT
This Article argues that addressing one of the most urgent environmental challenges facing humanity today – the global climate and biodiversity crisis – calls for a transformation at the heart of corporate law: its fiduciary duties. After demonstrating how current corporate fiduciary duties are implicated in this crisis, we argue for reform of fiduciary duties operating at two levels: those governing directors and officers of business corporations, and those governing institutional investors and asset managers. We then distinguish between two general kinds of corporate fiduciary duties: permissive and mandatory. We contend that corporate law should accommodate a more expansive understanding of fiduciary duties by either explicitly permitting climate- and biodiversity-related considerations or requiring their translation into measurable actions. Such an expanded view of fiduciary duties would allow or, in some cases, require corporate directors and officers, as well as institutional investors and asset managers, to consider environmental risks and impacts and to identify strategic opportunities to mitigate or adapt to them, while continuing to advance long-term economic performance. We conclude by outlining existing corporate fiduciary duty frameworks that include broader environmental considerations and identifying the expanding landscape of non-financial disclosure, reporting, and due diligence regimes as a promising direction for their further development.

Orts, Eric and Schafhäutle, Sandra G, Corporate Fiduciary Duties and the Climate and Biodiversity Crisis (March 24, 2026).

Posted in Business Organisation, Equity and Trusts, Land use and Environment | Leave a Comment

Luna, Ballesteros and Dorantes, ‘Development of a Smart Contract for the Transfer of Copyrights in an Artwork Linked to an NFT’

16 April 2026 | Author: steve

ABSTRACT
Non-fungible tokens (NFTs) are transforming the commercialisation of digital art by establishing unique blockchain identifiers that ensure authenticity and certify subsequent transactions. However, the transfer of control over an NFT does not automatically include the transfer of the associated copyrights, thereby creating legal uncertainty as to what rights are actually acquired. This interdisciplinary project between engineering and law proposes the design of a smart contract, based on the ERC-721 standard, to manage the transfer of property rights linked to digital artworks represented as NFTs. The accompanying legal contract incorporates essential clauses covering the identification of the parties, a description of the artwork and its link to the token, pricing, royalties, and the terms of rights transfer. The proposal seeks to integrate blockchain technology with existing legal frameworks, offering an innovative solution that strengthens legal certainty in the transfer of copyright within digital environments.

William Fernando Martínez Luna, Ana María Moreno Ballesteros and Edgar José Ruiz Dorantes, Development of a Smart Contract for the Transfer of Copyrights in an Artwork Linked to an NFT, Laws, 2026, 15(2), 32. Published: 16 April 2026.

Posted in Contract, Intellectual Property | Leave a Comment

Maria Glover, ‘The Civil Justice Business’

16 April 2026 | Author: steve

ABSTRACT
Civil justice is a lofty set of ideals. Access to justice, no matter a party’s sophistication. Holding wrongdoers accountable, no matter their power. Achieving regulation of wrongdoing across the wide swath of substantive laws in an American ‘litigation state’.

Civil justice is also a business – now on both sides of the ‘v’. A new litigation finance industry has arisen: Institutional investors provide claimants with capital, in exchange for eventual profit. This industry approaches civil justice as a market, claims as assets, and case outcomes as returns on investment. And when civil justice looks like a business, it raises a host of concerns.

Current attempts to regulate this new civil justice actor – oriented formally or functionally around the prohibitions of ancient constructs and atomized civil justice rules and doctrines – largely aim towards preventing civil justice from becoming a business. These approaches constrain judges and lawmakers to a binary set of regulatory choices, deny the complex realities of modern civil justice, and hinder engagement with foundational civil justice concerns.

This Article develops a comprehensive framework for engaging with the civil justice business at the level of its core problematics. It conceptualizes and constructs along the lines of a series of critical relationships involved in claimant-funded litigation, drawing from modern strains of contract theory along relational lines. Applied to the three most heated debates in litigation finance – disclosure, claim control, and mass-dispute funding – the framework generates targeted regulatory pathways for judges, legislators, and scholars that depart markedly from dominant proposals.

More broadly, the analysis here synthesizes and extends prior work toward a unified theory of civil justice as realized law. This account centers on the civil justice system’s capacity to live up to its foundational ideal; to give substantive legal rights real meaning – or to leave them without it. Evaluated against this account, litigation finance – when constrained and clarified by this Article’s relational framework – can be harnessed to further those commitments. Importantly, situating litigation finance alongside and within these core civil justice commitments charts a course for harnessing all civil justice innovations, not just the ‘civil justice business’ in focus here, to effectuate the business of civil justice.

Glover, Maria, The Civil Justice Business (April 15, 2026), 101 New York University Law Review (forthcoming 2026); Georgetown University Law Center Research Paper Forthcoming (2026); Georgetown Law Faculty Publications and Other Works, 2697.

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Scott Fruehwald, ‘Theory-Induced Blindness in Legal Scholarship: A Critical Thinking Solution’

16 April 2026 | Author: steve

ABSTRACT
The truth matters, and, consequently, how scholars seek the truth matters. Scholars often use theory as a framework to help them attain the truth. Accordingly, a scholar’s theoretical approach must be accurate; it must not be tainted in any way. ‘Theory-induced blindness’ taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways.

This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars’ social constructionist arguments, and two professors’ defense of learning style theory. Finally, the conclusion will discuss the best solution for avoiding theory-induced blindness–evaluating theories with critical thinking.

Fruehwald, Scott, Theory-Induced Blindness in Legal Scholarship: A Critical Thinking Solution (January 11, 2026).

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Nwabueze and White, ‘Privacy law and the dead – a reappraisal (part II)’

16 April 2026 | Author: steve

ABSTRACT
In an earlier article, we argued that post-mortem privacy is not sufficiently protected in England and Wales. In this article, we draw from Boonin’s posthumous harm thesis and posthumous wrong thesis to develop a framework and rationale for justifying the recognition and enforcement of a privacy right post-mortem. Essentially, our theoretical framework suggests that, just as a living person can be harmed by an act that does not have any effect on their conscious experience, such as the frustration of their desires, the dead can also suffer unfelt harm. We test and illustrate the analytical and explanatory power of this theoretical framework with a USA post-mortem privacy case and five relevant practical examples. Furthermore, we examine some important cases in England and Wales, and some cases from the ECtHR, to show how the use of our framework could lead to the recognition and justification of a privacy right post-mortem.

Remigius N Nwabueze and Matthew White, Privacy law and the dead – a reappraisal (part II), Journal of Media Law. Published online: 15 April 2026.

See also: Nwabueze and White, ‘Privacy law and the dead – a reappraisal’

Posted in Defamation and Privacy, European Private Law, Fundamental or Human Rights | Leave a Comment

‘Less Freedom and More Equality’

16 April 2026 | Author: steve

Carla Spivack and Deborah Gordon, ‘Donative Freedom, Disrupted’, 91 Brooklyn Law Review (forthcoming, 2026), available at SSRN (5 February 2025). Donative freedom is the guiding principle of inheritance law. This is something that many of us who teach the subject tell students every semester, at the outset of a Wills and Trusts class. We keep repeating this truism because donative freedom turns out to be the answer to many of the questions we encounter, questions about why a certain rule exists or why a court case produces a certain result. What happens less frequently is sustained inquiry into the principle of donative freedom, its history, and the political economy supporting it … (more)

[Allison Anna Tait, JOTWELL, 16 April 2026]

Posted in Legal History, Property, Succession | Leave a Comment

‘Open consultation: Make Work Pay: misuse of non-disclosure agreements (NDAs)’

16 April 2026 | Author: steve

The government has introduced a measure through the Employment Rights Act 2025 which voids any provision in an agreement (such as a contract of employment or settlement agreement) between a worker and their employer that prevents a worker from speaking out about relevant harassment or discrimination. This consultation is seeking views on proposals regarding: (i) the conditions which need to be met for a non-disclosure agreement (NDA) to still be validly entered into (‘excepted agreement’) in cases of harassment and discrimination … (more)

[UK Department for Business and Trade, 15 April 2026]

Posted in Defamation and Privacy, Discrimination, Employment and Labour Law, Remedies and Procedure | Leave a Comment

Marc Moore, ‘Contract interpretation and the employment relation: from commercial to industrial common sense?’

16 April 2026 | Author: steve

ABSTRACT
The recent (2024) Supreme Court decision in Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers has attracted interest from across the legal community. For labour lawyers, the case provides a valuable opportunity to interrogate the legality of the controversial ‘fire and rehire’ practices that have become a constant of the industrial relations world in recent years. For contract and commercial lawyers, meanwhile, the case provides a new platform on which the continuing evolution of the common law jurisprudence on interpretation and implication of contract terms can continue to play out, while yet again proving a source of judicial disagreement. This article takes the present opportune moment to re-examine the continuously shifting approaches to commercial contract interpretation that have been adopted by courts over the course of the past half-century, both generally and specifically in relation to contractual disputes arising in the employment context. It seeks to demonstrate that, whilst the modern contextual approach to contract interpretation (along with its core, animating doctrine of commercial common sense) have seemingly receded in importance somewhat over the past decade, in very recent cases it seems to be making something of a comeback. Moreover, as the Tesco decision itself arguably demonstrates, we are today seeing fledgling signs of a bespoke employment-centred approach to contextual contract interpretation evolving, which is founded on what will be termed the Burrows-Simler doctrine of ‘industrial’ (in distinction from commercial) common sense. The article will further enquire as to the precise conceptual meaning of this term, along with its policy underpinnings and potential for future development.

€ (Westlaw)

Marc Moore, ‘Contract interpretation and the employment relation: from commercial to industrial common sense?’ [2026] Journal of Business Law (3) 288-306.

Posted in Contract, Employment and Labour Law, Interpretation | Leave a Comment