Monthly Archives: September, 2019

Fitzpatrick, Compton and Foukona, ‘Property and the State or “The Folly of Torrens”: A Comparative Perspective’

ABSTRACT Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title […]

Pappalardo and Meese, ‘In Support of Tolerated Use: Rethinking Harms, Moral Rights and Remedies in Australian Copyright Law’

ABSTRACT In this article, we propose a thought experiment: what if copyright law could better incorporate social and cultural norms around content engagement and re-use? We draw on empirical research that explores the norms of different creative communities when they reuse the work of others, and the norms of consumers around sharing. We outline how […]

Toy and Gunasekara, ‘Is There a Better Option than the Data Transfer Model to Protect Data Privacy?’

ABSTRACT The data transfer model and the accountability model, which are the dominant models for protecting the data privacy rights of citizens, have begun to present significant difficulties in regulating the online and increasingly transnational business environment. Global organisations take advantage of forum selection clauses and choice of law clauses and attention is diverted toward […]

Babie and Nikias, ‘The Renewal of the Old: Lionel Murphy’s Progressive-Relational Conception of Property’

ABSTRACT As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores and renews a significant aspect in the jurisprudence of this truly radical judge: the social relations or progressive view of property. Justice Murphy both identified and judicially expounded this view well before the American social relations or progressive schools. […]

‘von Hein, Kieninger and Rühl: How European is European Private International Law?

“Over the course of the last few decades, the European legislature has adopted a total of 18 Regulations in the area of private international law, including civil procedure. The resulting substantial legislative unification has been described as the first true ‘Europeanisation’ of private international law, and even as a kind of ‘European Choice of Law […]

Michael Pressman, ‘Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life’

ABSTRACT The ubiquitous corrective-justice goals of ‘making a party whole’ or ‘returning a party to the position she was in’ are typically understood in monetary terms, and in this context it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that […]

Dan Meagher, ‘Is There a Common Law “Right” to Freedom of Speech?’

ABSTRACT The recognition of political speech as a constitutional principle and the emergence of the principle of legality have driven the doctrinal evolution of freedom of speech at common law. The High Court now treats freedom of speech as something more than a residual liberty. Yet this doctrinal and taxonomic transformation is not complete. This […]

Brett Frischmann, ‘Nudging Humans’

ABSTRACT Behavioral data can and should inform the design of private and public choice architectures. Choice architects should steer people toward outcomes that make them better off (according to their own interests, not the choice architects’) but leave it to the people being nudged to choose for themselves. Libertarian paternalism can and should provide ethical […]

Vivi Tan, ‘Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice’

ABSTRACT This article seeks to explore some of the implications of integrating information and communications technology into judicial processes to resolve small civil claims. It argues that, as ODR moves from individual private-sector initiatives to widespread public sector institutionalisation, governance and value questions will need to be seriously considered. This is because questions regarding the […]

Samuelson and Hashimoto, ‘The Enigma of Digitized Property: A Tribute to John Perry Barlow’

ABSTRACT John Perry Barlow (1947–2018) was a seer as well as a great songwriter. His provocative prose in The Economy of Ideas, published in WIRED magazine in 1994, imaginatively surveyed the burgeoning activity in the relatively early days of cyberspace, focusing on what he described as the ‘enigma’ of digitized property: ‘[H]ow can we protect […]