Yan Kai Zhou, Review of Nicholas McBride, The Humanity of Private Law, Part I: Explanation

McBride, Nicholas, The Humanity of Private Law, Part I: Explanation, Oxford: Hart Publishing, 2019, xviii + 272 pp, hb £80.00. The concept of wellbeing is not a complete stranger to private law concepts. For example, the notions of ‘harm’, ‘interest’, and ‘rights’ that are relied upon in theories of tort, contract and property law, have natural underlying recourse to the notion of wellbeing: harm comprises a setback to wellbeing; an interest is an aspect of wellbeing; and rights (understood according to the ‘interest theory’) promote interests. It is therefore surprising that no‐one to date has written on the relationship between private law and wellbeing. At least, that was the case prior to McBride’s new book … (more)

Yan Kai Zhou, ‘McBride, Nicholas, The Humanity of Private Law, Part I: Explanation, Oxford: Hart Publishing, 2019, xviii + 272 pp, hb £80.00′, Modern Law Review. First published: 19 February 2020. https://doi.org/10.1111/1468-2230.12519.

Amir Paz‐Fuchs, ‘It Ain’t Necessarily So: A Legal Realist Perspective on the Law of Agency Work’

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.

Amir Paz‐Fuchs, It Ain’t Necessarily So: A Legal Realist Perspective on the Law of Agency Work, Modern Law Review. First published: 19 February 2020. https://doi.org/10.1111/1468-2230.12522.

Patricia Campbell, ‘University Inventions Reconsidered: Debunking the Myth of University Ownership’

Most universities today assert ownership rights over all patentable inventions (and many other types of intellectual property) created by members of the university community, including faculty, staff, students, visitors, and others. Universities then attempt to license that intellectual property (IP) to third parties, in order to generate revenue for the university and to give the public the benefit of innovations developed by the institution, often with the use of federal funds. This Article provides an evaluation of the technology transfer policies and practices of US universities. Part I surveys the IP policies of a representative group of universities, showing that most universities claim outright ownership of the invention rights of most members of the university community, while a few require present or future assignment of such rights to the university. Part II reviews the history of IP ownership and demonstrates that claims to ownership of university inventions evolved slowly over the course of the last 100 years, beginning with inventor ownership as the accepted model and culminating in the passage of the Bayh-Dole Act in 1980 and subsequent case law. Parts III and IV provide two proposals for addressing problems in the current ownership and technology transfer model. One is a more ‘modest’ proposal that could be implemented immediately by universities to bring their IP policies and agreements into line with relevant laws; the other is a long-term proposal for discussion and substantial change in which university inventors would have an option to retain ownership of their inventions, and universities could assume more natural and supportive roles as educators and facilitators.

Patricia E Campbell, University Inventions Reconsidered: Debunking the Myth of University Ownership, William and Mary Business Law Review volume 11 (2019-2020), issue 1 (2019).

Daniele Bruno, ‘Trust-Based Theories of Promising’

This paper discusses the prospects of a comprehensive philosophical account of promising that relies centrally on the notion of trust. I lay out the core idea behind the Trust View, showing how it convincingly explains the normative contours and the unique value of our promissory practice. I then sketch three distinct options of how the Trust View can explain the normativity of promises. First, an effect based-view, second, a view drawing on a wider norm demanding respect to those whom one has invited to something, and finally, as a new suggestion, a Normative Interest View. This view holds that promising is a normative power that serves our interest in facilitating or enabling the relationship of trust between promisor and promisee. I argue that only those embracing the third view can fully account for the distinctive obligation that results from the giving of a valid promise in all cases.

Daniele Bruno, Trust-Based Theories of Promising, The Philosophical Quarterly, https://doi.org/10.1093/pq/pqz086. Published: 20 February 2020.

Zahra Takhshid, ‘Retrievable Images on Social Media Platforms: A Call for a New Privacy Tort’

The recognition of a right of privacy in Warren and Brandeis’s famous article has long been celebrated and lamented. It is celebrated because privacy is a central feature of individual well-being that deserves legal protection. It is lamented because the protection they contemplated, and that is actually provided by the law, is quite modest. Modern technology, especially social media platforms, has only raised the stakes. Anytime one goes out in public, one risks having one’s image captured and shared worldwide, leaving us with little or no control over how we are perceived by others.

This Article argues for the recognition of a new privacy tort: the tort of unwanted broadcasting. It would allow a person whose image is, without permission, shared widely on one or more social media platforms that has an enduring retrievable character, to recover damages from a person who posts it. While in some respects novel and far-reaching, the unwanted broadcasting tort has a solid grounding in privacy theory and doctrinal roots in English case law. This Article also shows that this tort can be fashioned in a manner that renders it consistent with First Amendment principles.

Takhshid, Zahra, Retrievable Images on Social Media Platforms: A Call for a New Privacy Tort (February 6, 2020). Buffalo Law Review volume 68, no 1, 2020.

‘Case note – Fearn and Others v The Board of Trustees of the Tate Gallery

“The Neo Bankside development is a striking modern development designed by Richard Rogers and Partners (now Rogers Stirk Harbour + Partners). It is on the south side of the River Thames and is adjacent to the Tate Modern, Britain’s National gallery of international modern art, which is based in the former Bankside Power Station …” (more)

Guy Fetherstonhaugh and Elizabeth Fitzgerald, Falcon Chambers, 19 February. The case is reported here.

Call for applications: IP Researchers Europe Conference, Geneva, 26-27 June 2020

We welcome submissions from established academics as well as from more junior researchers including professors, associate professors, assistant professors, lecturers, academic fellows, post-doctoral fellows, and doctoral candidates enrolled in a PhD program or equivalent post-graduate degree. Applicants should be affiliated with an academic institution or scientific research centre, preferably on a full-time basis, at the time of submission of their application and at the time of the Conference … (more)

‘How the Law Expects and Accommodates Deceit in Courtship, Sex, and Marriage’

“This post turns to a new aspect of the legal history of intimate deception. When I started researching Intimate Lies and the Law, I suspected that judges might deny remedies to deceived intimates because they thought deception within intimacy was too trivial a subject to be worth judicial attention. However, I soon discovered that many judges deny remedies not because they think intimate deception is unimportant, but because they think it is vitally important. These judges are committed to preserving existing norms in courtship, sex, and marriage and convinced that those norms naturally – even inevitably – include pervasive deception. This view extends back decades …” (more)

[Jill Hasday, Legal History Blog, 19 February]

Alistair MacDonald, ‘Family Law – Past and Future’

“… What has however, undergone fundamental change over the past twenty five years is the nature and scope of the problems to which these stable legal principles must be applied in order to try to achieve resolution for children and families. This is a function of the central role played by family law in the life of a nation, touching as it does on a myriad of social, scientific, philosophical and religious aspects of life and, accordingly, necessarily always part of the vanguard in addressing the impact of societal changes nationally, regionally and globally. These national, regional and global changes over the past twenty five years that have influenced the type of issues the family justice systems in our jurisdictions are required to deal with are well known and contrast sharply with the relative stability of the cardinal family law principles …” (more)

The Hon Mr Justice MacDonald, ‘Family Law – Past and Future’, Four Jurisdictions Conference, 1 February 2020.

Joshua Hamlet, ‘Neglecting Responsibilities: The Uniform Probate Code’s Failure to Address Child Maltreatment and Poverty’

When a child or adolescent passes away, parents are typically stricken with grief and unable to cope with the devastation. Unfortunately, the emotional toll is not the only challenge parents face. Some are forced to handle legal battles regarding the administration of their deceased child’s estate. Since the majority of children do not have a will, state adoptions of the Uniform Probate Code dictate what happens to the child’s estate during these tragedies. But what happens in the event these parents abused or neglected their child while that child was still living? While the Uniform Probate Code advises that these malevolent parents should be blocked from inheriting, it does not always work out that way in reality. Furthermore, parents from disadvantaged socioeconomic backgrounds are more likely to abuse their children – children who, in turn, die intestate, creating a never-ending cycle of abuse and legislatively-driven inheritance which fails to account for deaths following lives marked by parental abuse or neglect. It is time to revise the Uniform Probate Code to protect children who die intestate so that abusive or neglectful parents will no longer be rewarded after mistreatment.

Joshua Hamlet, Neglecting Responsibilities: The Uniform Probate Code’s Failure to Address Child Maltreatment and Poverty, 28 Journal of Law and Policy 195 (2019).