Showing papers on "Common law published in 2020"

Using machine learning to predict decisions of the European Court of Human Rights

Abstract: When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis of case law and machine learning) within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict (future) judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our (relatively simple) approach highlights the potential of machine learning approaches in the legal domain. We show, however, that predicting decisions for future cases based on the cases from the past negatively impacts performance (average accuracy range from 58 to 68%). Furthermore, we demonstrate that we can achieve a relatively high classification performance (average accuracy of 65%) when predicting outcomes based only on the surnames of the judges that try the case.

Criminal justice, artificial intelligence systems, and human rights

Abstract: The automation brought about by big data analytics, machine learning and artificial intelligence systems challenges us to reconsider fundamental questions of criminal justice. The article outlines the automation which has taken place in the criminal justice domain and answers the question of what is being automated and who is being replaced thereby. It then analyses encounters between artificial intelligence systems and the law, by considering case law and by analysing some of the human rights affected. The article concludes by offering some thoughts on proposed solutions for remedying the risks posed by artificial intelligence systems in the criminal justice domain.

Causation in Competition Law Damages Actions

Abstract: Competition law damages actions are often characterized by the uncertainty of the causal connection between the infringement and the harm. The damage consists in a pure economic loss flowing from an anticompetitive conduct. In such cases, the complexity of the markets structures, combined with the interdependence of individuals' assets, fuel this causal uncertainty. In this work, Claudio Lombardi elucidates the concept of causation in competition law damages actions and outlines its practical implications in competition litigation through the comparative analysis of the relevant statutory and case law, primarily in the European Union. This book should be read by practitioners, scholars, and graduate students with experience in competition law, as well as those interested in analyzing economic torts and causation in general.

Class Actions and Government

Abstract: The relationship between class actions and government makes for a nuanced and fascinating study. Government sets the scene by implementing and designing the regime, by choosing whether to act as a seed-funder for the regime, and by deciding to what extent it should regulate the regime against worldwide classes being litigated on its doorstep. It can then become a key player in the litigation itself. Government may be a representative claimant bringing the action, or a class member, or a potential financial beneficiary. Most commonly of all, it may be a defendant, being sued under the very regime which it enacted into law. With numerous opt-out class action regimes around the common law world in place, and others on the horizon, the book takes a comparative perspective throughout, and concludes with a series of recommendations, drawn from that comparative analysis of government's intricate interplay with class actions.

A Cultural Interpretation of the Genocide Convention

Abstract: This book critiques the dominant physical and biological interpretation of the Genocide Convention and argues that the idea of "culture" is central to properly understanding the crime of genocide. Using Raphael Lemkin’s personal papers, archival materials from the State Department and the UN, as well as the mid-century secondary literature, it situates the convention in the longstanding debate between Enlightenment notions of universality and individualism, and Romantic notions of particularism and holism. The author conducts a thorough review of the treaty and its preparatory work to show that the drafters brought strong culturalist ideas to the debate and that Lemkin’s ideas were held widely in the immediate postwar period. Reconstructing the mid-century conversation on genocide and situating it in the much broader mid-century discourse on justice and society he demonstrates that culture is not a distraction to be read out of the Genocide Convention; it is the very reason it exists. This volume poses a forceful challenge to the materialist interpretation and calls into question decades of international case law. It will be of interest to scholars of genocide, human rights, international law, the history of international law and human rights, and treaty interpretation.

Implementing human rights due diligence through corporate civil liability

Abstract: Since the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.

The Last Soldier Standing? Courts Versus Politicians and the Rule of Law Crisis in the New Member States of the EU

Abstract: The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.

Force Majeure and Hardship in the Age of Corona: A Historical and Comparative Study

Abstract: Force Majeure and Hardship provide legal tools to deal with the effect of unexpected future events and unforeseen changes in circumstances, particularly in long-term contracts. Given its global and unprecedented dimensions, its lethal potential and its drastic effects on international contracts the COVID-19 pandemic will generate years, if not decades, of post-pandemic litigation and arbitration focusing on the application of these two concepts. The paper examines the two concepts, from their historic origins over the different paths they took in civil and common law to modern transnational contract law as applied by international arbitral tribunals. Based on this historic and comparative analysis, the paper shows that in such extraordinary times, the doctrines of Force Majeure and Hardship assume the role of regular, rather than exceptional legal remedies, allowing for the risks emanating from the unprecedented crisis to be evenly distributed between the players in the global economy.

Arbitrary Decision-making and the Rule of Law : The Role of the Jurisdiction in Migrants’ Detention Proceedings – Between Discretion and Arbitrariness

Abstract: Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution

Medical negligence - Key cases and application of legislation

Abstract: Background Law entails precedent-based common law and parliamentary-legislation-based statutory law. Australian courts recognise civil wrongs, called torts. The most common tort worldwide is negligence. The first aim of the paper is to educate the Australian nursing community about medicolegal issues, statutes, important cases, legal applications, and negligence statistics pertaining to clinical practice. The second aim is to determine whether medicolegal negligence claim-numbers are commensurate with recorded statistics on adverse events. The third aim is to determine and discuss preventative approaches to minimise culpability. Materials and methods Relevant searches were done using Pubmed, Google Scholar, and Austlii. Data, negligence legislation, key cases, and law processes were collated and analysed based on court decision citations, legal impact, and relationships between legislation application and case law. Although New South Wales legislation was used throughout this paper, parallel statutes exist across Australian jurisdictions. Results The basics of the civil tort offence of negligence are explained with step-by-step explanations. Key judgments and application of legislation in key medical negligence cases are discussed. Relevant medicolegal issues and negligence statistics are discussed. The civil tort of negligence is elaborately discussed, step-by-step, with relevant Common Law and legislation relevant to NSW. The watershed cases of Hadiza Bawa-Garba and Nurse Amaro are summarised with the ramifications for doctors and nurses. Expedient strategies to assist doctors and nurses in minimising unlawful action are discussed. Conclusions Adverse medical events are high in Australia. However, new claims are decreasing. Negligence claim-numbers are disproportionate to statistics on adverse events. The Hadiza Bawa-Garba and Nurse Amaro cases have opened a legal can of worms with manifold negative ramifications for the nursing community.

Supranational courts in Europe: a moderately communitarian turn in the case law on immigration and citizenship

Abstract: Most interdisciplinary analyses intuitively depict the judiciary as an actor promoting post- or transnational conceptions of membership and equality in contemporary debates about citizenship and im...

Scientific Questions of Fact Between Free Evaluation of Evidence and Proof Beyond any Reasonable Doubt in the Criminal Trial

Abstract: In contemporary legal epistemology it is common to talk about the “ paradox of expert testimony ”, which can be formulated as follows: “how can the judge assess information provided by an expert witness if he needs him precisely because of his own lack of adequate specialist knowledge?”. The goal of the paper is to show that this paradox is only apparent. To pursue it I first of all review the history of the ideas of free evaluation of evidence and proof beyond any reasonable doubt in the civil law and common law traditions, in order to address the theoretical problem of their nature in contemporary law systems. Then I propose a taxonomy of the judicial approaches to the role of experts at trial, concluding that none of these approaches, except one (“the gatekeeper judge”), is consistent with both above-mentioned principles. Lastly, I look in depth at the gatekeeper judge approach, showing that a real assessment of expert information is possible, so that the paradox of expert testimony depends only on a faulty understanding of both activities.

Programming Away Human Rights and Responsibilities? “The Moral Machine Experiment” and the Need for a More “Humane” AV Future

Abstract: Dilemma situations involving the choice of which human life to save in the case of unavoidable accidents are expected to arise only rarely in the context of autonomous vehicles (AVs). Nonetheless, the scientific community has devoted significant attention to finding appropriate and (socially) acceptable automated decisions in the event that AVs or drivers of AVs were indeed to face such situations. Awad and colleagues, in their now famous paper “The Moral Machine Experiment”, used a “multilingual online ‘serious game’ for collecting large-scale data on how citizens would want AVs to solve moral dilemmas in the context of unavoidable accidents.” Awad and colleagues undoubtedly collected an impressive and philosophically useful data set of armchair intuitions. However, we argue that applying their findings to the development of “global, socially acceptable principles for machine learning” would violate basic tenets of human rights law and fundamental principles of human dignity. To make its arguments, our paper cites principles of tort law, relevant case law, provisions from the Universal Declaration of Human Rights, and rules from the German Ethics Code for Autonomous and Connected Driving.

The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien , Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!

Abstract: In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as – most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Art. 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom-of-expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exception. Nevertheless, the Luxembourg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally introduced flexibility (by means of complementing that already existing in the EU list of exceptions) could be harmful to copyright harmonization and legal certainty. Therefore, despite having taken a more favourable position on the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond the exhaustive list of limitations of Art. 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such a position of the CJEU that relies on the fact that the legislature has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.

The Constitutionality of Parallel Civil Forfeiture Proceedings and Criminal Prosecutions under the Double Jeopardy Clause in the United States

Abstract: In the Unites States the existence of statutes that allow to declare forfeiture of the property used in certain prohibited ways in civil proceedings without the general safeguards of criminal law is an extended legal practice This parallel law enforcement system, however, has raised several constitutional discussions One of these debates concerns the compatibility of the parallel system with the double jeopardy clause: does the double jeopardy clause bar the government from bringing a civil forfeiture proceeding against a defendant that has previously been convicted in a criminal court for the same offence? The aim of the present article is studying the evolution of the case law of the Supreme Court of the United States on the constitutionality of parallel civil forfeiture proceedings and criminal prosecutions under the double jeopardy clause, analysing the current state of the jurisprudence and its possible further developmentsÂ

The Legal Legacy of the Special Court for Sierra Leone

Abstract: This important book considers whether the Special Court for Sierra Leone (SCSL), which was established jointly through an unprecedented bilateral treaty between the United Nations (UN) and Sierra Leone in 2002, has made jurisprudential contributions to the development of the nascent and still unsettled field of international criminal law. A leading authority on the application of international criminal justice in Africa, Charles Jalloh argues that the SCSL, as an innovative hybrid international penal tribunal, made useful jurisprudential additions on key legal questions concerning greatest responsibility jurisdiction, the war crime of child recruitment, forced marriage as a crime against humanity, amnesty, immunity and the relationship between truth commissions and criminal courts. He demonstrates that some of the SCSL case law broke new ground, and in so doing, bequeathed a 'legal legacy' that remains vital to the ongoing global fight against impunity for atrocity crimes and to the continued development of modern international criminal law.

Sentencing disparities in the Czech Republic: Empirical evidence from post-communist Europe:

Abstract: Although there is an extensive literature on sentencing disparities in common law countries, there have been only a few empirical studies in continental countries and virtually none in post-communi...

Improving the Credibility of Empirical Legal Research: Practical Suggestions for Researchers, Journals, and Law Schools

Abstract: Fields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly available, and preregistering studies. Empirical legal research appears to be lagging behind other fields. This may be due, in part, to a lack of meta-research and guidance on empirical legal studies. The authors seek to fill that gap by evaluating some indicators of credibility in empirical legal research, including a review of guidelines at legal journals. They then provide both general recommendations for researchers, and more specific recommendations aimed at three commonly used empirical legal methods: case law analysis, surveys, and qualitative studies. They end with suggestions for policies and incentive systems that may be implemented by journals and law schools.

The association between independent directors and company value. Confronting evidence from two emerging markets

Abstract: The purpose of the paper is to advance the understanding of the links between the presence of independent directors (IDs) on boards and the company value in the specific context of concentrated ownership. The authors apply the framework of agency theory to identify the monitoring effect of IDs in two legal systems – common law and civil law.,The authors test formulated hypotheses using a unique sample of 50 Mauritian and Polish companies listed during the years 2007 to 2015, amounting to a total of 394 observations adopting the fixed effect panel model.,The results of the panel model show a negative relationship between independent directors on boards and company value. Specifically, the effect remains negative for companies operating in the civil law system, whereas the stronger protection offered by common law offsets the effect of concentrated ownership, resulting in a non-correlation between independent directors on board and firm value.,This study expands the understanding of the value added by independent directors, addressing their monitoring role in the unfavorable context of concentrated ownership. It also reveals that different legal frameworks of civil law and common law may impact the monitoring performed by independent directors.

Caught between a rock and a hard place-human rights, life imprisonment and gender stereotyping: A critical analysis of Khamtokhu and Aksenchik V. Russia (2017)

Abstract: Some countries prohibit the imposition of life imprisonment on women but allow it for men for the same offence (e.g. Albania, Azerbaijan, Russia and Belarus). In Khamtokhu and Aksenchik v. Russia (2017) the European Court of Human Rights rejected the claim that it was discriminatory to punish two Russian men convicted of murder to life imprisonment. Other than a handful of legal commentaries there have been no in-depth analyses of the case, in particular on the dangers of using gender stereotyping to limit life imprisonment. To address this gap, this chapter draws on criminological works on the gendered experience of life imprisonment, legal analyses of perpetual incarceration under human rights law and ECHR case law on gender stereotyping and on life imprisonment. This study critically discusses the Court’s assessment of gender stereotypes in the context of life imprisonment and considers whether its approach constitutes any improvement for women. In so doing, it illuminates how well-intended efforts to curtail some extreme forms of penal practices such as perpetual incarceration may have unintended and perverse consequences for women specifically and the landscape of punishment more generally.

The Unified Patent Court and the Frustrated Promise of IP Protection: Investors’ Claims in (Post-)Brexit Britain

Abstract: Tensions between the EU’s legal order and the international investment law regime are not exclusive to the Brexit era, but they certainly gained momentum in the aftermath of this referendum. By incautiously declaring that the UK will remain a party to the Unified Patent System regardless of Brexit, the British government arguably shaped (il)legitimate expectations on the part of investors who aimed at exploiting their intellectual property rights in the UK while benefitting from the judicial protection of the forthcoming Unified Patent Court as much as of the European institutions (and market) as a whole. Indeed, not only the System itself will undergo a process of major rebalancing after London’s departure from the EU, but more importantly, the UK will most probably be unable to retain its membership in the System after the actual delivery of Brexit. These complications trigger a wide spectrum of fundamental dilemmas investing the definition and scope of concepts such as unilateral declaration, indirect expropriation, reasonable expectation, estoppel, and public policy exception, under both EU law and international investment law. It is therefore essential to explore these intersections as to anticipate possible scenarios in the event of both domestic court and international arbitral claims lodged by patent investors pre- and post-Brexit, having due regard for competition concerns on the side of the EU, yet referring to recent Canadian case law which opened the gate to investor-State claims in the field of intellectual property.

Legal Iconography and Painting Constitutional Law

Abstract: Predominantly a European phenomenon, the study of legal iconography has expanded to the common law world and informed approaches to Anglo-American legal development. European painting, sculptures, and other artwork were used in forensic settings to channel behavior of judges, lawyers, and litigants. Such artwork often combined religious perspectives, such as depictions of the Last Judgement, but might also reflect more secular notions such as Justice. Cultural historians and theorists have supplemented these more traditional approaches by expanding the scope of the analysis of the relationship between image and law. This study illustrates the potential for legal iconography to offer deeper insights into law, legal institutions, justice, injustice, and legal change in modern society.

Common Law Tort of Negligence as a Tool for Deconstructing Positive Obligations under the European Convention on Human Rights

Abstract: This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umb...

Protecting the rule of law in the EU legal order : a constitutional role for the Court of Justice

Abstract: The rule of law as one of the core constitutional values of the EU legal order – The rule of law in the case law of the Court of Justice of the European Union – Jurisdiction of the Court on the basis of a combined reading of Articles 2 and 19 TEU – Protecting the rule of law in the Common Foreign and Security Policy – Protecting the rule of law in the member states in order to safeguard the structure and functioning of the EU legal order – Limits to the scope of application of EU law

Retreat from the Rule of Law: Locke and the Perils of Stand Your Ground

Abstract: John Locke presents self-defense in a way similar to American Stand Your Ground laws: lethal retribution in the name of individual freedom. Interrogating a common law distinction—justifiable versus...

Law and Society: Critical Approaches

Abstract: 1 Introduction: Approaches to Law and Society Some Directions from the US Experience The Social Construction of Law Defining Law by Approaches to the Study of Law Max Weber's Typology of Approaches to the Study of Law Alternative Sociological Approaches to Law 2 Law, Solidarity, and Social Organization Positivist Approaches Emile Durkheim: Law, Social Organization and Morality Law, Solidarity and Moral Boundaries 3 Liberal Society, Rationality, and the Rule of Law Classical Liberalism and the Rule of Law The Rule of Law and Rational Social Life Rationality and Types of Legal Decision Making The Rule of Law and Formal Rationality The Rule of Law and Corporate Capitalism 4 Law and the Logic of Capitalism Karl Marx: The Rule of Capital and the Rule of Law The Logic of Capital Alienated Labor Essential Legal Relations Law and the Political Relations of Capitalism Law and Ideology 5 Law and Power and Democracy The Rule of Law, Political Democracy and Economic Concentration Loan Guarantee Legislation and the Rule of Law Instrumentalism: Pluralist and Corporate Elite Approaches Structuralism: Alternatives to Pluralist and Corporate Elite Approaches A Dialectical Approach to Law and Power Contradiction and Crisis in the California Fisheries Power and the Implementation of Law Government Litigation and State Power 6 Law, Private Life, and Public Order Law, Society and the Public/Private Division Hannah Arendt: The Public/Private Division and Modern Society Critics of the Public/Private Division in Law and Society Law, the Public/Private Division, and Social Patriarchy Law, Society and Property: Between Public and Private Bankruptcy Law: From Personal Stigma to Social Condition 7 The Autonomy of Law: Society, Legal Institutions and Legal Reasoning Defining the Autonomy of Law Sources of Legal Autonomy Limits to Legal Autonomy Legal Autonomy and Legislative Law Making 8 The Social Construction of Labor Law Legal Definitions of Free and Unfree Labor Unions and Management: Labor Law at the Point of Production The Rule of Law and the National Labor Relations Act Public Rights Doctrine: Public Interests in Private Contracts The Workplace Contract: Ordering Conflict and Defining Roles During the "Glory Days" The Workplace Contract: Crisis and Directions for Renewal 9 Gender, Law, and the Meanings of Equality The Fourteenth Amendment: Race and Gender The Politics of the Equal Rights Amendment Gender, Law and Types of Inequality Law and Types of Gender Equality Law, Pregnancy and Family Care: Disability or National Condition? 10 Legitimacy, Lawmaking and Dispute Resolution Legitimacy, Consensus and Law Institutional and Popular Legitimacy in Legislative lawmaking Legitimacy and Types of Dispute Resolution Negotiation: Legal and Cognitive Legitimacy Legitimacy and Mediation Legitimacy and Arbitration Legitimacy and Adjudication 11 Conclusion: Postmodernism, Community, and the Changing Rule of Law Postmodernism and the Legal Individual: Michel Foucault Controversies around Postmodernism, Law and Society Community, Citizenship and Law

Private International Law

Abstract: The ability of a Slovene citizen to migrate from Slovenia to Australia or vice versa and engage with citizens in private activities is regulated by both states. Private International Law helps facilitate those private activities of a citizen such as marriage and divorce across international borders. This chapter demonstrates that citizenship is not the deciding factor when determining the choice of law and jurisdiction in private activities. It will also demonstrate how both jurisdictions have applied the legal principles of citizenship, residence and location (country) in private international law (marriage, divorce, paternity or maternity, maintenance, parental responsibility, international adoption, matrimonial property [immovable and common assets], inheritance and superannuation). Slovenia’s Private International Law and Procedures Act (PIL Act) provides the basis for determining the choice of laws and jurisdiction in private activities. Australia does not have equivalent legislation and that responsibility rests with the judiciary. This chapter does not examine the procedural laws or the dispositive and indicative (Dispositive laws describe the rules of law which determine the rules (national or domestic) that are applied in a matter. The indicative rules identify the legal system, and in this case it could be either the civil law or common law of either Slovenia or Australia) rules to ascertain the governing law.

From the PHOSITA to the MOSITA: Will “Secondary Considerations” Save Pharmaceutical Patents from Artificial Intelligence?

Abstract: Artificial intelligence systems are being increasingly employed in pharmaceutical R&D to develop new drugs and medical treatments In such a scenario, the patentability of new pharmaceutical inventions seems more and more problematic, given that the computational power of AI increases the likelihood that a new chemical composition is deemed to be obvious In this article I argue that with the advent of AI-generated inventions both EU and US patent law cannot rely exclusively on the traditional standard of the “person having ordinary skill in the art” to evaluate the non-obviousness condition of patentability However, I also maintain that a legislative reform is not necessary Rather, judges should start to more strongly consider the so-called “secondary considerations” of non-obviousness that have been intermittently and inconsistently applied both in US and EU case law

A New Common Law of Web Scraping

Abstract: The Clearview AI facial recognition scandal is a monumental breach of privacy that arrived at a particularly inopportune time A shadowy company reportedly scraped billions of publicly-available images from social media platforms and compiled them into a facial recognition database that it made available to law enforcement and private industry To make matters worse, the scandal came to light just months after the Ninth Circuit’s decision in hiQ v LinkedIn, which held that scraping the public web probably does not violate the Computer Fraud and Abuse Act (CFAA) Before hiQ, the CFAA would have seemed like the surest route to redress against Clearview This Article analyzes the implications of the hiQ decision, situates the Clearview outrage in historical context, explains why existing legal remedies give aggrieved plaintiffs little to no recourse, and proposes a narrow tort to empower ordinary Internet users to take action against gross breaches of privacy by actors like Clearview: the tort of bad faith breach of terms of service Part I argues that the Ninth Circuit’s hiQ decision marks, at least for the time being, the reascension of common law causes of action in a field that had been dominated by the CFAA Part II shows that the tangle of possible common law theories that courts must now adapt to cyberspace resembles the strained property and contract concepts that jurists and privacy plaintiffs reckoned with at the turn of the 20th century It suggests that modern courts, following the example some of their predecessors set over a century ago, may properly recognize some common law remedies for present-day misconduct Part III catalogs familiar common law claims to argue that no established property, tort, or contract claim fully captures the relational harm that conduct like Clearview’s wreaks on individual Internet users Part IV proposes a new tort, bad faith breach of terms of service, that can provide aggrieved plaintiffs with a proper remedy without sacrificing doctrinal fidelity or theoretical coherence