Lionel Smith, ‘Parenthood is a fiduciary relationship’

Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. The goal of this article is to assess the characterization of parents as fiduciaries in the light of recent scholarship on fiduciary law. I argue that, while there are significant differences between the parent-child context and more established fiduciary categories, the characterization of the parent as a fiduciary toward his or her child nonetheless captures a central – indeed, a defining – element of the parent-child relationship, which is also a characteristic element of all established fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity for the benefit of another person. Every aspect of the traditional property-based fiduciary relationship finds its counterpart in the juridical relationship between a parent and his or her minor child. The ability of a parent to take account of his or her own interests in relation to some exercises of the parent’s decision-making powers is also found in many established fiduciary relationships. The recognition of parenthood as a fiduciary relationship leads to a better understanding of fiduciary relationships because it clarifies how such relationships are constituted, and it clarifies that they extend to any situation where one person is empowered and authorized to look after the interests of another, whether those interests be financial or entirely personal.

Lionel Smith, Parenthood is a fiduciary relationship, University of Toronto Law Journal. Published Online: June 29, 2020.

Vivien Chen, ‘Online Payday Lenders: Trusted Friends or Debt Traps?’

The recent Senate inquiry into credit and hardship underscored the prevalence of predatory conduct in the payday lending industry. The rise of digitalisation has increased consumer access to high-cost payday loans and the ensuing risk of debt spirals. The article examines the marketing strategies of online payday lenders, revealing that the effect of mandatory warnings on the risk of harm are often diminished through website layouts. At the same time, lenders commonly offer fast, convenient cash in tandem with blogs that provide advice on managing finances and living well on a budget, obfuscating the distinction between advertising and altruism. The findings highlight the need for regulatory enforcement of laws aimed at safeguarding vulnerable financial consumers. Emerging challenges from the increasing digitalisation of payday lending and social media marketing raise the need for reforms to address gaps in the regulatory framework.

Chen, Vivien, Online Payday Lenders: Trusted Friends or Debt Traps? (2020) 43(2) University of New South Wales Law Journal 674.

Lyria Bennett Moses, ‘Who Owns Information? Law Enforcement Information Sharing as a Case Study in Conceptual Confusion’

This article addresses the real impacts of conceptual confusion surrounding statutory language linking entities and information for purposes such as privacy, freedom of information, archiving, policing and evidence laws. The idea of ownership of information (which is assumed in the statutory allocation of powers of control and responsibilities) is captured in a confusing miscellany of terminology that differs across jurisdictions and contexts. It uses the example of information sharing for law enforcement purposes as a case study to highlight the practical challenges inherent in the diverse and vague statutory language linking entities and information. It then proposes a new taxonomy for attributing responsibilities and powers with respect to information that is consistent with the ephemeral nature of the subject matter.

Bennett Moses, Lyria, Who Owns Information? Law Enforcement Information Sharing as a Case Study in Conceptual Confusion (2020) 43(2) University of News South Wales Law Journal 615.

‘Reproductive Exceptionalisms’

Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019). Over the past four decades, people have increasingly turned to reproductive technologies to form their families. As technologies such as egg freezing, in-vitro fertilization, and pre-implantation genetic diagnosis have developed and improved, processes that were once left to chance are now subject to human control. As a result, what were once hopes – for instance, deferring childbearing until some point in the future, or having a male or female child – have transformed into expectations on the part of technology users … (more)

[Kaiponanea Matsumura, JOTWELL, 3 July]

Hao Jiang, ‘Chinese Tort Law in the Year of 2020: Tradition, Transplants, Codification and Some Difficulties’

Much of Chinese civil law is a product of Western legal transplants. However, when dealing with a country as old and sophisticated as China, one can easily miss the whole picture by focusing only on the written statutes. Appearances do not tell much. Chinese Civil Code was enacted on May 28th, 2020. This is the first Civil Code in the history of Communist China. This essay takes a comparative and historical look at the codified Chinese tort law, shows its promises and perils of its legal transplants and, most importantly, identifies some persistent problems. Some of these problems come from contradictions among doctrines borrowed from different legal systems, others from clash between legal transplants and the pre-existing social norms that are based on different philosophical ideas, others might be due to the tension between doctrinal innovations and the existing structures. Specifically, this essay examines the doctrinal innovation of having an independent personality rights law operating outside of tort law, the doctrinal uncertainty in determining the scope of protected rights and a rule of liability without fault that resonates with Chinese traditional moral philosophy.

Jiang, Hao, Chinese Tort Law in the Year of 2020: Tradition, Transplants, Codification and Some Difficulties (June 9, 2020) in Comparative Tort Law: Global Perspectives (2nd edition) (M Bussani, A Sebok eds, Edward Elgar Publishing, forthcoming).

Andrea Mulligan, ‘Protecting Identity In Collaborative Assisted Reproduction: The Right To Know One’s Gestational Surrogate’

Gestational surrogacy presents a unique form of parenthood: that which is biological but not genetic. This new form of parenthood demands a re-examination of the rights and duties that arise from the parent–child relationship. This article is concerned with the surrogate-born person’s right to know his or her gestational surrogate, an aspect of the right to identity. The springboard for this analysis is draft legislation in Ireland that proposes the creation of a legal right to trace one’s gestational surrogate. The purpose of this article is to interrogate the normative underpinnings of the legal right to know one’s gestational surrogate, exploring whether instrumental or deontological/rights-based justifications provide a better theoretical basis for the creation of a legal right. The article begins by exploring the link between the gestational relationship and identity formation, drawing on current scholarship on the metaphysics and physiology of pregnancy. It goes on to consider instrumental justifications for the creation of a legal right to know one’s surrogate, but argues that deontological or rights-based justifications provide the more compelling basis for creation of the legal right. The article concludes that this applies to all legal regimes that would seek to establish a legal right to know one’s surrogate, and is especially apt in the case of the draft Irish legislation, due to the requirement of mandatory disclosure.

Andrea Mulligan, Protecting Identity In Collaborative Assisted Reproduction: The Right To Know One’s Gestational Surrogate, International Journal of Law, Policy and the Family,

Mathews and Dallaston, ‘Reform of Civil Statutes of Limitation for Child Sexual Abuse Claims: Seismic Change and Ongoing Challenges’

Historically, civil statutes of limitation applied standard approaches to claims for injuries suffered through child sexual abuse. Due to the features of these cases, many survivors were unable to commence an action for compensation within time, and could not access the civil justice system. However, since 2015, influenced by the recommendations of state and national inquiries, every Australian state and territory has removed limitation periods for child sexual abuse claims prospectively and retrospectively, enabling commencement of a claim at any time, while retaining protections for defendants’ rights to a fair trial. The reforms are a landmark socio-legal development in the common law world. However, the legal principles are complex, and inconsistencies remain in the approaches adopted by the eight states and territories. This article analyses the nature of these reforms, considers their justifiability as public policy, identifies remaining legislative inconsistencies and challenges, and makes recommendations for reform and application.

Ben Mathews and Elizabeth Dallaston, Reform of Civil Statutes of Limitation for Child Sexual Abuse Claims: Seismic Change and Ongoing Challenges, University of New South Wales Law Journal, volume 43 no 2 (June 2020).

Benedict Coxon, ‘The Prospective (Ir)Relevance of Section 3 of the Human Rights Act: A Comparative Perspective’

This article suggests that the power conferred on United Kingdom courts by section 3(1) of the Human Rights Act 1998 (UKHRA) is legitimate as a matter of the interpretation of that provision. It sets out a contextual approach to the interpretation of section 3(1) consistent with general principles of statutory interpretation. This differs from most analyses of this provision, whether comparative or jurisdiction-specific, which tend to use constitutional theory as the framework for analysis. The article adopts a comparative perspective, applying the same approach to section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA). It concludes that the approach of New Zealand courts to section 6 is also correct as a matter of the interpretation of that provision. The different approaches of United Kingdom and New Zealand courts to these equivalent provisions is explained by a number of important differences between the UKHRA and NZBORA; including especially the context in which each statute falls to be interpreted. Some implications of this analysis for the development of the principle of legality in the United Kingdom in the event of repeal of section 3(1) of the UKHRA are briefly identified.

Benedict Coxon, The Prospective (Ir)Relevance of Section 3 of the Human Rights Act: A Comparative Perspective, Statute Law Review, Published: 29 June 2020.

Jafari v Tareem Limited [2019] EWHC 3119 (Ch)’

Summary: The High Court examined the relevance of an offer of compensation to the question of whether a landlord was in breach of the covenant for quiet enjoyment. Facts: The Appellant is the commercial tenant of a dentist’s surgery. The Respondent is the landlord, and was conducting a major renovation of the rest of the building to create a 134-bedroom hotel …” (more)

[Katie Gray, Tanfield Chambers, 30 June]

Griffin and Briffa, ‘Still Awaiting Clarity: Why Victoria’s New Civil Liability Laws for Organisational Child Abuse Are Less Helpful than They Appear’

In 2017 Victoria became the first Australian jurisdiction to initiate substantive reforms to its civil liability laws, to address barriers faced by plaintiffs seeking to hold institutions liable for child abuse. The new law, based on recommendations arising from a Victorian inquiry, establishes a statutory duty of care owed by organisations to take reasonable precautions against abuse of children under their care or supervision. On its face, the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) looks like a helpful clarification of this complex area of law. However, when viewed within the context of the work of the Royal Commission on Institutional Responses to Child Sexual Abuse, as well as common law principles – particularly strict liability in the areas of non-delegable duty and vicarious liability, and the High Court decision of Prince Alfred College Inc v ADC – we see that barriers and uncertainties remain.

Laura Griffin and Gemma Briffa, Still Awaiting Clarity: Why Victoria’s New Civil Liability Laws for Organisational Child Abuse Are Less Helpful than They Appear, Universty of New South Wales Law Journal, volume 43 no 2 (June 2020).