Roger Derrington, ‘Snark Hunting: A Search for Tracing’s Underlying Rationale’

The underlying rationale for tracing in equity is a much-debated topic and has seemingly resulted in more theories than there are commentators. For a relatively minor area of the law, it has attracted substantially more than its fair share of attention from academic theorists, each of whom vie to include it as part of their particular speciality. They include the restitutionalists; those who regard tracing as an inherent right of property; those who regard it as underpinned by the Roman Law notion of obligatio; and those who regard it as the enforcement of fiduciary duties. The intense debate necessarily reflects a lack of jurisprudential consistency in the authorities and there are myriad doctrinally diverse cases from which academics can choose to support their respective theories.

The Hon Justice Roger Derrington, The 23rd WA Lee Equity Lecture: Snark Hunting: A Search for Tracing’s Underlying Rationale, 43(1) University of Queensland Law Journal (2024). Published 27 March 2023.

Sirko Harder, ‘The Territorial Scope of Australia’s Unfair Contract Terms Provisions’

Section 23 of the Australian Consumer Law, which is sch 2 of the Competition and Consumer Act 2010 (Cth), invalidates unfair terms in particular types of contract. Section 5(1) of the Act extends the application of the Australian Consumer Law to conduct outside Australia by (among others) corporations carrying on business within Australia. In Carnival plc v Karpik (‘Ruby Princess’), the High Court of Australia held that s 5(1) applies to the unfair contract terms provisions without any further territorial limitation. The Court applied the provisions to a contract made in North America between a Canadian resident and a foreign company which was carrying on business in Australia through other transactions. This article investigates the territorial scope of the unfair contract terms provisions.

Sirko Harder, The Territorial Scope of Australia’s Unfair Contract Terms Provisions 43(2) University of Queensland Law Journal (2024).

Patrick Parkinson, ‘The Constitutional Constraints on Altering Property Rights After Relationship Breakdown’

Section 79(2) of the Family Law Act 1975 (Cth) provides that the court shall not make an order altering property rights unless it is just and equitable to do so. This article argues that s 79(2) is required by the constitutional foundations upon which the power to alter property rights rests. The discretion of trial judges may be wide, but it is constrained by the parameters of constitutionality and by the purposes for which Parliament may authorise the alteration of property rights. Because existing legal and equitable titles are the starting point for consideration in family property proceedings, courts must always ask whether there is a sufficient justification for stripping a party of their legal or equitable rights. The fact of relationship breakdown is insufficient. While the broad discretion given to courts to alter property rights was originally seen as a means of providing justice for women who took on the role of homemaker and parent, the practice of the family courts of giving little weight to legal title has often worked a profound injustice to women. An understanding of the constitutional constraints on judicial discretion is also very important to give effect to the assumptions that underpinned the marital relationship.

Patrick Parkinson, The Constitutional Constraints on Altering Property Rights After Relationship Breakdown 43(2) University of Queensland Law Journal.

Lemley and Holmes, ‘Authoring While Dead’

Bob Marley died in 1981. But he wrote a song in 2017 with The Killers. At least, that’s what the song credits say. Why? Because The Killers’ song included the two words ‘redemption songs’, the title of a classic Bob Marley hit. Rather than fight, The Killers agreed to add Marley as a co-author.

There is an increasing trend in the music industry toward resolving disputes over music copyright by granting co-authorship (or ‘interpolation’) credit to the claimant, no matter how weak the claim (as in Marley’s case), and even if they are dead (as in Marley’s case). Bob Marley and the Killers are not alone. Olivia Rodrigo agreed to add Paramore as a co-author despite the absence of any plausible copyright claim. Sam Smith did the same with Tom Petty. So did Beyoncé. They are all identified as co-authors of the songs they (generally falsely) alleged were infringing.

But they aren’t and can’t be authors under copyright law. Even if the copyright cases have merit – and they generally don’t – that would make the defendant an infringer, but it wouldn’t make the plaintiff a joint author. Instead, the deal for co-authorship credit appears to be a form of trolling. Under most music contracts it gives the complaining party an undeserved share of the royalties. If that was all it did, we might put up with it. After all, the parties agreed to it for whatever reason. But permitting retroactive co-authorship claims does harm to others and to the system as a whole. It creates problems for later understanding of authorship, for termination rights, and is a form of rights accretion that Jim Gibson warns us about. There is reason to worry that it will lead to a statutory interpolation right – a right to be credited for, get money for, and eventually to control songs that don’t infringe in the first place.

Lemley, Mark A and Holmes, Jr, Oliver Wendell, Authoring While Dead (July 9, 2024).

Peter Kutner, ‘Truth in the Law of Defamation’

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and ‘mixed’ legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, ‘contextual truth’ (‘incremental harm’), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

Kutner, Peter, Truth in the Law of Defamation (November 30, 2022), Rabels Zeitschrift, volume 87, no 2 (2023), pp 326-352.

Shyamkrishna Balganesh, ‘Interactional Ordering: Reconstructing Lon Fuller’s Theory of Private Law’

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed a robust theory of private law, best characterized as ‘interactional ordering’. Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking to realize their freedom socially. This horizontal normativity forms the very substantive and structural basis for the common law as a mechanism of enforcement, and emerges as the principal end that all other forms of legal and social ordering are ultimately structured around. This Article reconstructs the central tenets of interactional ordering from Fuller’s work and shows how it represents a sophisticated account of how private law normativity operates, one that abjures commitments to both Legal Positivism and Legal Realism, a move that was central to Fuller’s overall jurisprudential worldview.

Balganesh, Shyamkrishna, Interactional Ordering: Reconstructing Lon Fuller’s Theory of Private Law (June 12, 2024), American Journal of Jurisprudence, forthcoming 2025.

Griffin, Laskowski and Thumma, ‘How to Harness AI for Justice: A Preliminary Agenda for Using Generative AI to Improve Access to Justice’

This article highlights the extraordi­nary potential of generative artificial intelligence (AI) and the extraordi­nary risks it poses in the context of promot­ing access to justice. Here, ‘access to justice’ means any practice that helps litigants, especially in the nation’s civil courts, resolve their legal matters with minimal or no formal attorney representation. It also include efforts that help potential litigants avoid hav­ing to invoke the legal system in the first place as well as ways in which courts and other stakeholders can improve the legal system to better serve the public. The article starts by outlining generative AI’s most promising features, recogniz­ing that generative AI is so new that it is hard to offer more than a table­top exercise of how it might enhance access to justice. It then addresses concerns about using generative AI to advance such access and assist self-represented litigants. Finally, the article discusses how to measure the success of using generative AI to bridge the jus­tice gap. It concludes by noting that great care is needed in using generative AI to enhance access to justice, ensure its long-term success, and address a host of valid concerns.

Griffin, Christopher L and Laskowski, Casandra and Thumma, Samuel, How to Harness AI for Justice: A Preliminary Agenda for Using Generative AI to Improve Access to Justice (June 11, 2024), 108 Judicature 42 (2024).

Solove and Hartzog, ‘The Great Scrape: The Clash Between Scraping and Privacy’

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by ‘scraping’ – the automated extraction of large amounts of data from the internet. A great deal of scraped data is about people. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archival, and meaningful scientific research, scraping for AI can also be objectionable or even harmful to individuals and society.

Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this Article, we contend that scraping must undergo a serious reckoning with privacy law. Scraping violates nearly all of the key principles in privacy laws, including fairness; individual rights and control; transparency; consent; purpose specification and secondary use restrictions; data minimization; onward transfer; and data security. With scraping, data protection laws built around these requirements are ignored.

Scraping has evaded a reckoning with privacy law largely because scrapers act as if all publicly available data were free for the taking. But the public availability of scraped data shouldn’t give scrapers a free pass. Privacy law regularly protects publicly available data, and privacy principles are implicated even when personal data is accessible to others.

This Article explores the fundamental tension between scraping and privacy law. With the zealous pursuit and astronomical growth of AI, we are in the midst of what we call the ‘great scrape’. There must now be a great reconciliation.

Solove, Daniel J and Hartzog, Woodrow, The Great Scrape: The Clash Between Scraping and Privacy (July 3, 2024).

SI Strong, ‘International ADR: Commercial Courts and Commercial Arbitration: Why Have Both?’

While international commercial arbitration is frequently touted as the preferred method of resolving multinational business disputes, the process is not universally beloved. Instead, certain segments of the bench, bar, and academia believe that all legal disputes – including those in the cross-border commercial context – should be decided in court rather than in arbitration. Why is that? This article discusses possible rationales for the recent rise in international commercial courts, drawing on interdisciplinary studies and comparing the new courts to international commercial arbitration.

Strong, SI, International ADR: Commercial Courts and Commercial Arbitration: Why Have Both? (July 8, 2024), 42 Alternatives to the High Cost of Litigation (forthcoming October 2024); Emory Legal Studies Research Paper.

‘The EU AI Act has been published’

Artificial Intelligence (AI) has been a hot topic in recent years. Its development and use continue to grow, in all areas. It’s not uncommon to see images created by AI popping up all over the place (this Kat loves generating AI images). Today saw the publication of the long awaited Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence and amending … (more)

[Kevin Bercimuelle-Chamot, The IPKat, 12 July 2024]