Slocum and Gries, ‘Judging Corpus Linguistics’

The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges. Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judge’s own intuitions. Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning, Thomas R Lee and Stephen Mouritsen argue that courts should ‘import’ into the law of interpretation computer-aided means (primarily, corpus analysis) of determining ‘the sense of a word or phrase that is most likely implicated in a given linguistic context’. In the view of Lee and Mouritsen, statutory interpretation is an ’empirical question’ (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics …

Slocum, Brian G and Gries, Stefan, Judging Corpus Linguistics (July 6, 2020). Southern California Law Review, 2020.

Pey-Woan Lee, ‘Form, Substance and Recharacterisation’

At common law, a court may ‘recharacterise’ a contract when it is satisfied that the transaction it embodies is substantially different from the label assigned to it by the parties. This process of recharacterisation is well-established in many legal spheres including those of employment, trusts, property, taxation and secured financing. Whether a transaction should be recharacterised is routinely said to depend on its ‘substance’. Typically, this refrain is made to underscore the point that a court will not be bound by the label or form selected by the parties. However, precisely what constitutes ‘substance’ is less clear. Generally, a party seeking to recharacterise a transaction may do so on one of two grounds: first, that the transaction was a sham and hence unenforceable; or secondly, that on a true construction of the document, the transaction belongs to a category different from that identified by the parties. So expressed, these techniques engender the impression that recharacterisation – the location of ‘substance’ – is largely a matter of doctrinal analysis free from value judgment. But a closer inspection will reveal that the process is more textured and fine-grained.

This chapter examines the jurisprudence of recharacterisations in the areas of tenancy, employment, trusts and financing arrangements. It argues that the characterisation of a transaction is always a question of law informed by policy considerations. Specifically, recharacterisations are concerned with avoidances so the central question is whether and to what extent parties are legally permitted to ‘contract out’ of a statutory regime or the legal incidents of a relationship. As such, the process of recharacterisation is neither reducible to the application of narrow legal doctrines nor merely an exercise in contractual interpretation. As will be observed, English courts generally incorporate policy considerations in this discourse but are accustomed to presenting them as ancillary (rather than primary) justifications in their reasoning. Only in legislative contexts such as those protecting tenants or employees where the policy underpinnings are unambiguous is a court likely to base a decision squarely on the pursuit of the legislative goal. In other cases, they are wont to retreat to the sanctuary of rules and doctrines. On the whole, therefore, the English judicial method in this context is more formal than substantive. This predilection is not objectionable or detrimental where the relevant substantive concerns are balanced and embedded in the formal rules. But formal reasoning may descend into formalistic reasoning if the rules so harden as to eclipse important substantive concerns. This chapter contends that this risk subsists in recharacterisation cases. To minimise that risk, it is critical that judges articulate the interplay of values, policies and doctrines resulting in a particular characterisation. Similarly, courts should develop the broad techniques of recharacterisation (viz, shams and construction) more flexibly to make room for the evaluation of substantive reasons.

Lee, Pey Woan, Form, Substance and Recharacterisation (September 31, 2018) in Andrew Robertson and James Goudkamp (eds), Form and Substance in the Law of Obligations, Oxford: Hart Publishing, 2019, 71-93, Singapore Management University School of Law Research Paper.

Rosemary Langford, ‘Use of the Corporate Form for Public Benefit: Revitalisation of Australian Corporations Law’

This article specifically addresses the theme of revitalisation of Australian law in the facilitation of purpose-based companies. It is the second of two articles on purpose-based governance in the charitable and for-profit spheres. Building on the first article, this article critically analyses relevant features of the Australian corporations law regime. It pays close attention to challenges relating to the application of directors’ duties where companies have multiple purposes and to the drafting of appropriate constitutional provisions. In so doing it draws on insights from overseas jurisdictions that have enacted legislation to enable purpose-based companies.

Rosemary Teele Langford, Use of the Corporate Form for Public Benefit: Revitalisation of Australian Corporations Law (2020) 43(3) University of New South Wales Law Journal.

‘Legal Theory Lexicon: Scalars and Binaries’

“The law frequently requires that we answer a question ‘yes’ or ‘no’. Was the plaintiff guilty? Was the defendant negligent? Was the trial court’s finding of fact clearly erroneous? These questions seem to demand a ‘yes’ or ‘no’ answer. When an issue must be resolved in one (and only one) of two possible ways, we can call that issue ‘binary’ …” (more)

[Lawrence Solum, Legal Theory Blog, 2 August]

Rosemary Langford, ‘Purpose-based governance: a new paradigm’

The permissibility of corporations pursuing purposes other than profit has been the subject of debate for a number of years. This debate has intensified recently with proposals to allow or mandate the adoption of purposes by corporations. At the same time, purpose is central to governance in the charitable sphere. This article proposes a model of ‘purpose-based governance’, which offers significant potential advantages in both the charitable and for-profit spheres, as well as forming the basis of a unifying governance paradigm.

Rosemary Teele Langford, Purpose-based governance: a new paradigm (2020) 43(3) University of New South Wales Law Journal.

K-Sue Park, ‘Conquest and Slavery as Foundational to the Property Law Course’

This chapter addresses the foundational place of the histories of conquest and slavery to American property law and the property law course. It begins by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. It then shows how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. This chapter suggests ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment – the land system that underpins its real estate market and its structural reliance on racial violence to produce value.

Park, K-Sue, Conquest and Slavery as Foundational to the Property Law Course (July 24, 2020).

‘David Simon: Trademark Law and Consumer Safety

“I was happy to read David Simon’s new article, ‘Trademark Law and Consumer Safety’, forthcoming in the Florida Law Review. Simon argues trademark law should pay more attention to the physical harms that products pose for consumers, rather than just economic harms. The conventional view is that trademark law exists to prevent consumer confusion and lower consumers’ search costs for finding the products they want. At the same time, trademark law protects sellers’ investments in product quality and advertising. Simon’s article argues that trademark law does, or should do, a lot more than this …” (more)

[Camilla Hrdy, Written Description, 30 July]

‘Australia’s “outdated” defamation laws are changing: but there’s no “revolution” yet’

“Australia’s defamation laws, so long criticised to so little avail, are finally changing. New South Wales Attorney-General Mark Speakman trumpeted this week: ‘Nation agrees to NSW-led defamation revolution’. His announcement followed July’s meeting of the Council of Attorneys-General, where all Australian jurisdictions approved amendments to the Model Defamation Provisions …” (more)

[Michael Douglas, Inforrm’s Blog, 31 July]

Sirena and Patti, ‘Smart Contracts and Automation of Private Relationships’

The aim of the present essay is to investigate whether and how blockchain technology platforms and smart contracts could be considered a modern form of private authority, which at least partially escapes the application of mandatory rules and traditional enforcement mechanisms. Blockchain technology presents itself as democratic in nature, as it is based on an idea of radical decentralization. This is in stark contrast to giant Big Tech corporations working over the internet in the fields of social networking, online search, online shopping, etc, with blockchain, technology users put their trust in a network of peers. Nevertheless, as happened with the internet, market powers could create monopolies or highly imbalanced legal relationships. In this sense, contractual automation seems to play a key role in understanding the potentialities and the risks involved in the technology. In general terms, one of the main characteristics of a smart contract is its self-executing character, which should eliminate the possibility of a breach of contract. But smart contracts may also provide for effective self-help against breaches of traditional contracts. Finally, when implemented on blockchain platforms, smart contract relationships may also benefit from the application of innovative dispute resolution systems, which present themselves as entirely independent from state authorities.

Sirena, Pietro and Patti, Francesco Paolo, Smart Contracts and Automation of Private Relationships (July 28, 2020). Bocconi Legal Studies Research Paper No 3662402, July 2020.