‘First Circuit dismisses Mount Ida student class action, incidentally limits emerging data protection theory’

“… I want only to highlight one important point: the court refused to recognize, in Massachusetts law, a fiduciary duty owed by university to student. The decision comports with multistate norms, but is nonetheless important in limiting an emerging doctrine of data protection in US common law tort. State courts that have recognized something like a data protection right in civil cases have used fiduciary duty to bootstrap their way there. Common law invasion of privacy is too stringent to get the job done, that is, to articulate a data protection right, for various reasons …” (more)

[Richard Peltz-Steele, The Savory Tort, 7 April]

‘Joint Authorship and the Judgment of the Court of Appeal in Martin v Kogan [2017] EWHC 2927′

“… Collaborative creativity presents a challenge for law. Those of you studying intellectual property (or IP as you probably come to know it by now) will appreciate that the author of a copyright work (as long as he or she retains copyright in that work) acquires a number of potentially valuable exclusive rights and also benefits from certain moral rights. But how does this work in the case of collaborative creativity? …” (video, transcript)

[Jonathan Griffiths, University of London Undergraduate Laws Blog, 7 April]

‘Rebecca Giblin on Copyright Contracts’

“In this episode, Rebecca Giblin, Associate Professor of Law at Melbourne Law School and Director of the Intellectual Property Research Institute of Australia, discusses her article Are Contracts Enough? An Empirical Study of Author Rights in Australian Publishing Agreements, which she co-authored with Joshua Yuvaraj and will be published in the Melbourne University Law Review. Giblin begins by describing what copyright termination or reversion rights are and how they are supposed to work. She explains that they don’t exist under Australian law and discusses her empirical study of publication contracts, which shows that contracts are no substitute …” (audio)

[Ipse Dixit Season 1, Episode 531 (7 April)]

‘Vicarious Liability in the Supreme Court: Can we finally say it is no longer on the move?’

“In Various Claimants v Catholic Child Welfare Society (CCWS) [2012] UKSC 56, Lord Phillips famously stated that ‘The law of vicarious liability is on the move’. This leading case also made it clear that two elements have to be shown before one person can be made vicariously liable for the torts committed by another: 1. a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other; and 2. a connection between that relationship and the tortfeasor’s wrongdoing …” (more)

[Paula Giliker, University of Bristol Law School Blog, 7 April]

Kevin Tobia, ‘Legal Concepts and Legal Expertise’

A recent wave of empirical legal scholarship reports surprising findings about various concepts of legal significance, including the concept of acting intentionally, causation, consent, knowledge, recklessness, reasonableness, and law itself. These studies typically examine laypeople, but often draw broader conclusions about legal experts or law. Findings about laypeople’s (‘ordinary’) concepts have been taken to reflect the concepts of trained legal theorists, reveal biases affecting judges’ decision-making, and clarify subtle doctrinal features.

This Article questions the validity of such inferences, from empirical findings about ordinary concepts to conclusions about the concepts of those with legal expertise. It presents a case study concerning what it means to act intentionally. An experiment examines the judgments of four populations (N = 774): lay people, law students, non-law students, and United States judges. Legal training affected judgments in three ways, all of which suggest the acquisition of a distinctive legal concept. This case study supports the Article’s broader conclusion: empirical evidence about laypeople’s ordinary concepts does not necessarily carry straightforward legal implications. This defuses provocative empirical challenges regarding biased judging, raises new questions about the relationship between judges and juries, and provides a broader proof of principle: The acquisition of legal concepts is an under-studied but central form of legal expertise.

Tobia, Kevin P, Legal Concepts and Legal Expertise (February 10, 2020).

‘Intellectual Property Rights, the Public Interest and COVID-19’

“In the grip of a world pandemic of COVID-19 when scientists are racing to develop a cure, the idea of anyone claiming intellectual property rights to the exclusive use of the cure may seem difficult to rationalise. Yet patents are intended to benefit the public by encouraging technological advancement through granting inventors a limited exclusive period to exploit their inventions. How could these two points intersect in the context of the present emergency? …” (more)

[Abbe Brown, Catherine Ng and Titilayo Adebola, University of Aberdeen School of Law Blog, 7 April]

‘The coronavirus crisis and EU adequacy decisions for data transfers’

“The coronavirus crisis has given rise to numerous initiatives by governments around the world to combat the pandemic by gathering, sharing, and transferring data, both personal and anonymized. A great deal of attention has been given to proposals for increased data gathering within the EU, and many statements have been issued about them by European institutions, data protection authorities, and academics. However, less attention has been given to the protection that personal data transferred from the EU receive in countries that have adopted such measures. These measures raise questions both about respect for the rights of privacy and data protection within the EU/EEA, discussed below, and about the protection that personal data transferred from the EU receive in third countries that have been found to provide ‘adequate protection’ based on EU standards, which is the subject of this comment …” (more)

[Maastricht University, 6 April]

Brian Cheffins, ‘Stop Blaming Milton Friedman!’

A 1970 New York Times essay on corporate social responsibility by Milton Friedman is often said to have launched a shareholder-focused reorientation of managerial priorities in America’s public companies. The essay correspondingly is a primary target of those critical of a shareholder-centric approach to corporate governance. This paper argues that it is erroneous to blame (or credit) Milton Friedman for the rise of shareholder primacy in corporate America. In order for Friedman’s views to be as influential as has been assumed, his essay should have constituted a fundamental break from prevailing thinking that changed minds with some alacrity. In fact, what Friedman said was largely familiar to readers in 1970 and his essay did little to change managerial priorities at that point in time. The shareholder-first mentality that would come to dominate in corporate America would only take hold in the mid-1980s. This occurred due to an unprecedented wave of hostile takeovers rather than anything Friedman said and was sustained by a dramatic shift in favor of incentive-laden executive pay. Correspondingly, the time has come to stop blaming him for America’s shareholder-oriented capitalism.

Cheffins, Brian R, Stop Blaming Milton Friedman! (March 11, 2020). University of Cambridge Faculty of Law Research Paper No 9/2020.

Giancarlo Frosio, ‘Intellectual Property and Extra-Contractual Liability’

This Chapter discusses intellectual property and extra-contractual liability by highlighting general comparative analysis issues within civil and common law systems, with some consideration given also to major theoretical clusters that might influence the different legal regimes. The Chapter focuses on emerging issues of extra-contractual liability for intellectual property infringement in the platform economy, with special emphasis on copyright and trademark infringement, seeking to coordinate miscellaneous approaches from the United States, the European Union and selected European countries’ experiences. In doing so, this Chapter highlights research and methodological issues related to limited harmonization at a regional level in secondary and extra-contractual liability doctrines when applied to IP. Finally, this Chapter describes the World Intermediary Liability Maps (WILMap) as an attempt to provide consistency within a fragmented research framework while also presenting other miscellaneous endeavours seeking the same goal.

Frosio, Giancarlo, Intellectual Property and Extra-Contractual Liability (March 10, 2020) in Handbook of Intellectual Property Research: Methods, Lenses, and Perspectives (Irene Calboli and Lillà Montagnani, eds, OUP, forthcoming 2020).

Cavallini and Gaboardi, ‘Should We Teach (A Bit Of) US Civil Procedure In the European Law Schools?’

The occasion for this article moves from several suggestions emerging by the research and teaching work, mostly spent in the graduate courses in (Italian) civil procedure. Therefore, the perspective stems from a continental scholar and teacher; it would mean the traditional research focus on the country-specific area, usually taught in the same manner. As we can see, it generally happens all over European Law Schools. The main output, probably due to the Bocconi University of Milan, one of the leading international universities in Europe, has been first the Law students’ interest in the common law procedural systems (the US one, mostly). That interest was spontaneous, even if the lectures proposed not a few references to the common law judiciary system. However, that interest has been continuous, and it is still daily growing, even the students come entirely from the civil law (European) legal tradition. It has been as much spontaneous wondering about that, and quite quickly, the question has been one. Are there serious reasons why (a bit of) US Civil Procedure should be taught in European Law Schools? The essay aims to explore the backgrounds of the positive response, and to some extent, to move toward a new season for the comparative civil procedure as well as an imperative mood of the legal education, even conscious of the limits set off by that traditional domestic area.

Cavallini, Cesare and Gaboardi, Marcello, Should We Teach (A Bit Of) US Civil Procedure In the European Law Schools ? (January 11, 2020) 2 Court and Justice Law Journal 2020, forthcoming.