Kara Swanson, ‘Inventing While a Black Woman: Passing and the Patent Archive’

This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of US invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of ‘inventor’. Exposing the patent system as raced and gendered terrain, it argues that marginalized inventors participated in invention and patenting by situational passing. It rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. It argues that marginalized inventors adopted this practice, risking the sanction of patent invalidity, to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained all marginalized inventors. Passing, while an act of creative adaptation, also entailed loss. Individual inventors gave up the public status of inventor and also, often, the full value of their inventions. Cumulatively, the practice amplified the patent gaps, systematically overrepresenting white men and thus reinforcing the biases marginalized inventors sought to avoid. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. This research provides needed context to the current effort to remedy patent gaps. Through its intersectional approach, it also brings patent law into broader conversations about how law has supported systemic racism and sexism and contributed to societal inequality.

Swanson, Kara W, Inventing While a Black Woman: Passing and the Patent Archive (2022), 25 Stanford Technology Law Review, forthcoming, Northeastern University School of Law Research Paper No 419-2022.

Richard Storrow, ‘Cross-Border Attestation and Interjurisdictional Wills’

After nearly two years of difficult effort to contain the coronavirus outbreak, remoteness is firmly embedded in the American psyche. Throughout the country, emergency orders permitting will execution and attestation to be conducted by simultaneous audio-visual transmission have allowed estate planning to proceed. There are currently bills in some state legislatures to make permanent the temporary emergency measures adopted during the pandemic. Remote execution and attestation may be here to stay, even in a world where electronic wills remain rare. This article addresses what is likely to become a more familiar manner of will execution in a post-pandemic world and will test the admissibility of interjurisdictional wills to probate against existing rules of probate jurisdiction, choice-of-law norms, case law, and the new directions in will execution forged during the coronavirus pandemic.

Storrow, Richard F, Cross-Border Attestation and Interjurisdictional Wills (December 21, 2021). ACTEC Law Journal, volume 47, p 121, 2021.

Martin Senftleben, ‘No Trademark Protection for Artworks in the Public Domain – A Practical Guide to the Application of Public Order and Morality as Grounds for Refusal’

With its 2017 landmark decision in Vigeland, the Court of Justice of the European Free Trade Association States (EFTA Court) has paved the way for the invocation of public order and morality as grounds for refusal when trademark protection is sought for cultural expressions in the public domain. Dealing with an attempt to register artworks of the famous Norwegian sculptor Gustav Vigeland as trademarks, the EFTA Court took this step to safeguard the public domain status of literary and artistic works after the expiry of copyright, shield cultural creations against ‘commercial greed’ and ensure the freedom of the arts. Trademark examiners and judges seeking to follow in the footsteps of the EFTA Court, however, may find it difficult to operationalize the Vigeland criteria and put corresponding arguments for refusal into practice. Against this background, the following analysis provides guidelines for the practical application of public order and morality arguments in cultural heritage cases. It describes problems arising from the grant of trademark rights in cultural public domain material (Section I) and the traditional reluctance of trademark offices and courts to rely on public order and morality considerations in this context (Section II). After this statement of the problem, the criteria following from the Vigeland decision will be introduced (Section III) before we explore the practical implementation of the EFTA Court’s morality (Section IV) and public order (Section V) arguments in more detail. The final Section VI summarizes the results of the analysis.

Martin Senftleben, No Trademark Protection for Artworks in the Public Domain – A Practical Guide to the Application of Public Order and Morality as Grounds for Refusal, GRUR International, volume 71, issue 1, January 2022, pages 3–17, https://doi.org/10.1093/grurint/ikab107.

Kotzé and Boggenpoel, ‘Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution’

The COVID-19 pandemic, with its concomitant ‘stay at home’ catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the COVID-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of ‘reasonableness’ in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties.

Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases ‘give and take’ and ‘live and let live’ arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case.

However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

Kotzé, Tina and Boggenpoel, Z, Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution (October 18, 2021), Potchefstroom Electronic Law Journal (PER / PELJ) 2021(24), http://dx.doi.org/10.17159/1727-3781/2021/v24i0a11169.

Sancho McCann, ‘Copyright Throughout a Creative AI Pipeline’

… I will first present the training and use of a creative program based on a neural network, a popular model that forms the basis of state-of-the-art creative AIs. Then, I will examine each of the issues just raised:

1. Does the person managing the automatic training of a neural network’s parameters obtain a copyright in the resulting trained parameters?

2. Does a person using a program that produces artistic output obtain a copyright in that output?

3. The automatic training of a neural network requires large amounts of example data (a training set). Can images from around the internet be copied for the purpose of training a neural network?

4. What if a person uses an AI to produce a work that looks substantially similar to one of the training examples? Is that an infringement? And who is infringing?

McCann, Sancho, Copyright Throughout a Creative AI Pipeline (January 13, 2021). 19 Canadian Journal of Law and Technology Forthcoming.

Heirbaut, Kotlyar and Lysenko, ‘“Lightning-fast” codification of Civil Law in Belgium: Civil Code 2020′

The present article covers the codification of Civil Law in Belgium, which has in record time led to the enactment of several books of the new 2020 Civil Code. The article expounds the background and the plan for the new Civil Law codification in Belgium, the system and drafting methods of the Civil Code, as well as its future perspectives. The article offers insight into the example of a ‘recodification’ process in the private law domain of an early 21st century West European state.

Dirk Heirbaut, Ilya A Kotlyar and Olga L Lysenko, ‘Lightning-fast’ codification of Civil Law in Belgium: Civil Code 2020, State and Law, issue 11, 145-163, 2021, https://doi.org/10.31857/S102694520017461-8. Published 3 December.

Goldberg and Zipursky, ‘Replies to Commentators’

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color.

John CP Goldberg and Benjamin C Zipursky, Replies to Commentators, Law and Philosophy. Published 10 January.

Chander, Abraham, Chandy, Fang, Park and Yu, ‘Achieving Privacy’

Is privacy a luxury for the rich? Remarkably, there is a dearth of literature evaluating whether data privacy is too costly for companies to implement or too expensive for governments to enforce. This paper is the first to offer a review of the costs of compliance and to summarize national budgets for enforcement. Our study suggests that, while privacy may indeed prove costly for companies to implement and may present a special burden for small and medium-sized businesses, it is not too costly for governments to enforce. Indeed, the European Union, seen as a global champion of privacy, expends less than a dollar a year per citizen on data protection enforcement. Effective data protection agencies are not prohibitively costly, even for small administrations, especially if they collaborate through regional bodies. This study will help inform governments as they fashion and implement privacy laws to address the ‘privacy enforcement gap’ – the disparity between privacy on the books and privacy on the ground.

Anupam Chander, Meaza Abraham, Sandeep Chandy, Yuan Fang, Dayoung Park and Isabel Yu, Achieving Privacy, 74 SMU Law Review 607 (2021).

Caitrin Ellen Kiley, ‘The Sudden Medical Emergency Defense in Connecticut: Insurers Benefit While The Innocent Insured Is Left To Suffer’

Every individual in the United States who purchases and registers a vehicle is involved with the automobile insurance industry. Like many other types of insurance, there is much longstanding debate regarding the difficulty associated with receiving the benefits one has paid for. This debate is particularly complicated in Connecticut. Unlike many other jurisdictions that have a no-fault automobile insurance system, Connecticut relies on a tort-based liability system for determining compensation for an injured party.

In Connecticut, when a driver or passenger is injured in a car accident as a result of the actions of another driver, damages are recovered by proving legal liability. Connecticut courts currently allow a defendant and their insurer to escape liability if the defendant driver caused the accident due to a ‘medical emergency’. When a defendant proves that they suffered a ‘medical emergency’, the plaintiff is also barred from recovering underinsured or uninsured motorist coverage under their own insurance policy. The injured person is left with the financial burden, despite the fact that both parties were covered by insurance.

This Note argues that Connecticut should, either through legislation or regulation, disallow automobile insurance companies from taking advantage of the Sudden Medical Emergency Defense as a way to deny providing coverage after an automobile accident. This would allow a plaintiff who was injured due to the incapacitation caused by a sudden medical emergency of another driver to recover from the other driver’s insurance company, up to their policy limits, and from their own insurance company if uninsured or underinsured motorist coverage applies.

Caitrin Ellen Kiley, The Sudden Medical Emergency Defense in Connecticut: Insurers Benefit While The Innocent Insured Is Left To Suffer (2021) 43 Western New England Law Review 78 (2021).

‘The Roberts Court’s Legacy in Class Action Jurisprudence’

Richard D Freer, ‘The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done’, 51 Stetson Law Review (forthcoming 2022), available on SSRN. The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice. Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade … (more)

[Jasminka Kalajdzic, JOTWELL, 10 January]