Just published: Beckers et al eds, The Foundations of European Transnational Private Law

Since Anu Bradford’s groundbreaking book on the Brussels Effect there is a vastly evolving literature on the EU as a global regulatory actor as well as the global reach of EU law. This edited collection connects to this debate.

Yet, it shifts the focus from the currently predominant public law focus to investigating European and EU private law and to connecting to literature and research on transnational law. To that end, it proceeds first conceptually by introducing and giving shape to the notion of a ‘European Transnational Private Law’ through four conceptual contributions by the editors. Secondly, it focuses on several sectors (finance, taxation, investment, consumer law, labour law) and topics (climate litigation, global value chains, non-discrimination) to trace sector-specifically the role of EU private law in relation to transnational legal ordering.

The Foundations of European Transnational Private Law (Anna Beckers, Hans-W Micklitz, Rodrigo Vallejo and Pia Letto-Vanamo eds). Hart Publishing / Bloomsbury Publishing. 424pp. ISBN 9781509962921. Published 30 May 2024. Discount Price: £76. Order online at www.bloomsbury.com – use the code GLR BD8 to get 20% off.

Leslie Katz, ‘Yet Again, Anthony Trollope Fails to Steer his Little Bark Clear of the Rocks and Shoals of the Law; This Time, it’s the Rocks and Shoals of the Law of Injunctions’

In Phineas Redux, Phineas Finn is granted by the Court of Chancery an injunction prohibiting the publication of a libel, but at the date at which we’re to take it that such an injunction was granted, the Court of Chancery had no jurisdiction to grant injunctions prohibiting the publication of libels. Even if the court had had such jurisdiction, Trollope greatly exaggerates the effect of the injunction said to have been granted. He treats the injunction as a permanent one when it could only have been a temporary one. Further, in order to obtain the temporary injunction, Finn would have had to give the court an ‘undertaking as to damages’, something that he might have been unwilling to do, since it could have ruined him financially and put an end to his career if he was called upon to fulfil it.

Katz, Leslie, Yet Again, Anthony Trollope Fails to Steer his Little Bark Clear of the Rocks and Shoals of the Law; This Time, it’s the Rocks and Shoals of the Law of Injunctions (June 13, 2024).

Allison Tait, ‘The Haunting of Wealth Law’

Wealth law is full of ghosts, ghosts everywhere all at once. As a form of both preservation and disruption, a form of continuance as well as a form of interruption, ghosts are reminders of the past in its multiple forms. But they are also figures that prompt consideration of the present as well as speculation about the future. Jacques Derrida, who suggested the idea of ‘hauntology’, posited haunting and the ghostly as being ‘time out of joint’, a reference to Hamlet’s confused cry upon seeing his father’s ghost. Like ghosts, inheritance and wealth transfer laws represent ruptures in time, enabling the destabilizing presence of the past alongside the various possibilities for the present and future. It should come then as no surprise then that ghosts of many shades and stories populate the lawscape of inheritance. There are images of ghosts who return to monitor the afterlives of their wealth, full of fear and skepticism about how relatives will manage their legacies. These are the ghosts of decedents with property to control, ghosts concerned about legacies and the perpetuation of personal and family legacies. These ghosts are kindred to the ghosts, cadavers, and hoarders invoked by Karl Marx, tied to specters of asset creation and asset protection, buoyed by the enchantment of money and the magic of purchasing power. Accompanying and abetting these individual ghosts, there are more diffuse and ethereal ghosts, the ghosts of history and empire, the ghosts of dynastic rule and past property systems. This short Article represents a brief and not at all comprehensive attempt to analyze the various kinds of ghosts that haunt property and wealth transfer law and what messages they hold, both specifically for the legal regulation of inheritance law and, more broadly for the political economy of inheritance.

Tait, Allison Anna, The Haunting of Wealth Law (June 12, 2024), ACTEC Law Journal 49 (2023).

Alicia Solow-Neiderman, ‘Do Cases Generate Bad AI Law?’

There’s an AI governance problem, but it’s not (just) the one you think. The problem is that our judicial system is already regulating the deployment of AI systems – yet we are not coding what is happening in the courts as privately driven AI regulation. That’s a mistake. AI lawsuits here and now are determining who gets to seek redress for AI injuries; when and where emerging claims are resolved; what is understood as a cognizable AI harm (and what is not), and why that is so.

This Essay exposes how our judicial system is regulating AI today and critically assesses the governance stakes. When we do not adequately recognize how the generative AI cases being decided by today’s judges are already operating as a type of AI regulation, we fail to consider which emerging tendencies of adjudication about AI are likely to make good or bad AI law. For instance, litigation may do good agenda-setting and deliberative work as well as surface important information about the operation of private AI systems. But adjudication of AI issues can be bad too, given the risk of overgeneralization from particularized facts; the potential for too much homogeneity in the location of lawsuits and the kinds of litigants; and the existence of fundamental tensions between social concerns and current legal precedents.

If we overlook these dynamics, we risk missing a vital lesson: AI governance requires better accounting for the interactive relationship between regulation of AI through the judicial system and more traditional public regulation of AI. Shifting our perspective creates space to consider new AI governance possibilities. For instance, litigation incentives (such as motivations for bringing a lawsuit or motivations to settle) or the types of remedies available may open up or close down further regulatory development. This shift in perspective also allows us to see how considerations that on their face have nothing to do with AI – such as access to justice measures and the role of judicial minimalism – in fact shape the path of AI regulation through the courts. Today’s AI lawsuits provide an early opportunity to expand AI governance toolkits and to understand AI adjudication and public regulation as complementary regulatory approaches. We should not throw away our shot.

Solow-Neiderman, Alicia, Do Cases Generate Bad AI Law?, Science and Technology Law Review, 25(2) (2024). Published 5 June 2024.

Kosha Doshi, ‘US AI Laws – A State-by-State Study’

WASHINGTONSB5643 and its companion HB1616 – Proposed. Introduced on January 31, 2023, SB5643 and its companion HB1616, known as the People’s Privacy Act, aim to prohibit any covered entity or Washington governmental body from using or installing equipment with ‘artificial intelligence-enabled profiling’ in public spaces such as resorts, accommodations, gatherings, or amusement venues …

Kosha Doshi, US AI Laws – A State-by-State Study (EU Digital Partners) (19 June 2024).

Peter Hay, ‘On the Road to a Third American Restatement of Conflicts Law’

American private international law (Conflict of Laws, ‘Conflicts Law’) addresses procedure (jurisdiction of courts, recognition of judgments) as well as the choice of the applicable law. The last of these has been a mystery to many scholars and practitioners – indeed, even in the United States. Since 2014 the American Law Institute now seeks to draft a new ‘Restatement’ – the Third – of the subject, with the aim to clarify and perhaps to bring more uniformity to the resolution of conflict-of-laws problems. The following comments first recall the role of restatements in American law. The second part provides some historical background (and an assessment of the current state of American conflicts law, as it relates to choice of law) in light of the Second Restatement, which was promulgated in 1971. The third part addresses the changes in methodology adopted and some of the rules so far proposed by the drafters of the future new Restatement. Examples drawn from existing drafts of new provisions may serve to venture some evaluation of these proposed changes. In all of this, it is important to bear in mind that much work still lies ahead: it took 19 years (1952-1971) to complete the Second Restatement.

Hay, Peter, On the Road to a Third American Restatement of Conflicts Law (June 1, 2022).

Katrina Geddes, ‘How Art Became Posthuman: Copyright, AI, and Synthetic Media’

In response to the threats posed by new copy-reliant technologies, copyright law often expands in scope. Frequently this results in overzealous rights enforcement and the suppression of lawful user expression. Generative AI is shaping up to be no different. Owners of copyrighted training data have asked the courts to find AI outputs to be infringing in the absence of substantial similarity, and to prohibit unlicensed training despite its extraction of unprotectable metadata. Many service providers automatically block or modify user prompts that retrieve copyrighted content even though fair use is a fact-specific inquiry.

These trends threaten to undermine the democratic and egalitarian potential of generative AI. Generative AI has the capacity to democratize cultural production by distributing powerful and accessible tools to previously excluded creator communities. Ordinary individuals can now create sophisticated synthetic media by modifying, remixing, and transforming cultural works without any artistic training or skills. This radically expands the range of individuals who can engage in aesthetic practice, irrespective of the legal status or exchange value of the resulting output.

To date, however, the democratic and egalitarian character of generative AI has been relatively under-theorized. Lawmakers are focused on averting two possible outcomes: the extinction of human artists, or the flight of technological capital to low-IP jurisdictions. As copyright owners and technology firms dominate public discourse, relatively little attention is paid to the expressive interests of users. This Article remedies that neglect by directing scholarly attention to the democratizing effects of generative AI. It suggests that jurists should not rush to pacify owners of copyrighted training data by enjoining generative models, or pressuring service providers to adopt unnecessary use restrictions. Instead, Congress should embrace the democratic and egalitarian potential of generative AI by protecting users from the chilling effects of infringement liability. This Article canvasses a range of options directed towards this objective, including a non-commercial use provision, a compulsory licensing regime for commercial generations, a DMCA-style safe harbor for service providers, and a presumption of user authorship of AI generations.

Geddes, Katrina, How Art Became Posthuman: Copyright, AI, and Synthetic Media (June 14, 2024).

Estelle Derclaye, ‘The multifaceted influence of the Advocates-General on the Court of Justice’s copyright case law: legal secretaries, literature and language’

Over the years, the Court of Justice of the European Union has had an enormous influence on shaping EU copyright law. In turn, research has shown that Advocates-General strongly influence the Court. The influence of the legal secretaries on Advocates-General is less known. There is no research on what literature in what languages the Advocates-General rely on in their opinions and therefore which literature and languages influence the Court when it follows their opinions. This chapter fills these gaps in EU copyright law. First, it examines the cases where the Court followed in full or in part or has not followed the Advocates-General to determine trends in terms of Advocates-General, gender, topic, type of chamber. Second, it counts the references to the literature relied by the Advocates-General to determine how many of them cite and rely on literature in their opinions. Finally, the chapter shows that some languages are more relied on by Advocates-General and thus are more influential than others.

Derclaye, Estelle, The multifaceted influence of the Advocates-General on the Court of Justice’s copyright case law: legal secretaries, literature and language in E Rosati (ed), Routledge Handbook of European Copyright Law, Routledge, 2021, 443-471 (October 1, 2020).

Stéphane Sérafin, ‘The Contractual Basis of the Assignment of Contractual Rights’

It is a generally accepted feature of English law, and of the law of those jurisdictions that follow the English common law tradition, that the benefits of a contract may be ‘assigned’ to a third-party assignee without undermining the privity relationship between the original contracting parties. However, the precise nature of this operation has remained controversial. In this article, I suggest that what is typically termed an ‘assignment’ of contractual rights in common law jurisdictions is best understood to rest upon a contract by which a assignor undertakes to provide the assignee with the benefits due under another contractual transaction at some future point in time. The apparent ‘assignment’ that occurs between assignor and assignee then proceeds from the way in which equity’s intervention allows for the specific enforcement of a contract to assign rights. Rather than simply ordering the promisor to perform the contract to assign rights, the object of that contract means that equitable relief will take a somewhat unusual form. It requires that third parties with notice of the contract to assign rights, including the original promisor, treat the assignee as the party to whom performance of original contract is properly owed.

Sérafin, Stéphane, The Contractual Basis of the Assignment of Contractual Rights (February 29, 2024).

Allison Tait, ‘Family Property over Time’

Family property, as the other chapters in this volume have demonstrated, comes in a variety of shapes, sizes, and forms according to jurisdiction. Legal geography helps map out contours and comparisons with respect to family and marital property and the ‘where’ matters greatly as it shapes the rules. But while space and location play an important role in defining family property, so does ‘when’ or the element of time. This chapter is a brief attempt to make such an inquiry into legal time in order to explore the relationship between time, family property, and wealth inequality. In many ways, time is one of the most crucial building blocks of the family and kinship and family identity ‘do not exist without extension over time’, in that repetition, persistence, and continuity are key factors in forming and subsequently reinforcing the notion of inter-personal and inter-generational connection. The possession of family property over time is also a key component in building family identity. Time can consolidate family money just as it can erode it and what comes into focus through this analysis is that family as property and family property are shaped according to two completely different timeframes, using two completely different concepts of time, based on a family’s situatedness on the wealth spectrum.

Tait, Allison Anna, Family Property over Time (June 13, 2024) in Research Handbook on Family Property and the Law (Elgar 2024).