‘NASA Wants Its Moon Dust And Cockroaches Back – Now!’

“The space agency has asked Boston-based RR Auction to halt the sale of moon dust collected during the 1969 Apollo 11 mission that had subsequently been fed to cockroaches during an experiment to determine if the lunar rock contained any sort of pathogen that posed a threat to terrestrial life. The material, a NASA lawyer said in a letter to the auctioneer, still belongs to the federal government …” (more)

[Mark Pratt, Huffington Post, 23 June]

Allison Anna Tait, ‘Home of the Dispossessed’

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them – the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups – usually excluded from the realm of property ownership along lines of gender, race, and ethnicity – live on an axis of property precarity, persistently subject to the anxieties as well as the realities of dispossession.

This Article’s launching point to explore these dispossessions is Henry James’ novel, The Spoils of Poynton, which involves a dispute about the settlement of a father’s estate and describes the battle between mother and son over the furnishings of the family home, Poynton. On a descriptive level, The Spoils of Poynton is a novel about a wife’s dispossession and the gendered nature of inheritance. The novel is also, however, about the exclusions built into property theories of labor and personhood. Accordingly, this Article explicates tactics of dispossession inherent in traditional theories of property ownership, explores the legal claims made to property ownership by those who have been dispossessed, and analyzes the ways in which the meaning of property for these individuals and communities is reconstituted within the political imaginary.

The novel therefore tells the story not only of a property conflict between mother and son but also of how individuals who straddle the fragile boundary between personhood and objecthood both experience property as liminal fragments of the rightsholder they could have been and perform their property ownership as a political declaration. In this way, the novel tells the story of what it is like to live in the home of the dispossessed.

Tait, Allison Anna, Home of the Dispossessed (June 13, 2022). Michigan Journal of Gender and Law, volume 28, no 2, 2022.

Hilary Young, ‘Permanent Injunctions in Defamation Actions’

In the internet era, permanent injunctions prohibiting defamatory speech are increasingly being sought and ordered following a finding of liability. This may seem unproblematic since a court will have found particular speech to be unlawful – defamatory and likely false. However, there are good reasons to be cautious in permanently enjoining defamatory speech.

This article applies first principles of equitable relief to the modern defamation context. It shows how courts have recognized a de facto test for permanent injunctions in defamation cases based on a misinterpretation of the case law. This doctrinal confusion is enough reason to reconsider the approach to permanent injunctions in defamation cases, but societal changes are also relevant. Communications technology is an obvious change – one that makes injunctions potentially more useful in preventing additional reputational harm. But society’s view of the importance of free speech relative to reputation has changed too.

The article proposes a number of guidelines and principles for permanent injunctive relief in defamation actions. Most relate to ensuring that an injunction is actually necessary to prevent future reputational harm, while some are more innovative and perhaps controversial, such as requiring a likelihood of serious harm if the injunction isn’t granted, and not enjoining comment, as opposed to statements of fact. It is also a plea to lawyers and especially judges not to be too quick to seek or impose injunctions simply because defamatory speech is published online.

Young, Hilary, Permanent Injunctions in Defamation Actions (June 14, 2022).

Chatterjee and Debnath, ‘Why State Intervention is Required for Corporate Social Responsibility? An Indian Experience’

The paper is an attempt to address a much-debated question on the legitimacy of state intervention in Corporate Social Responsibility (CSR). At present, CSR has appeared as a topic of universal discussion. Although, the history of CSR and its origin dates back to the eighteenth century as a part of corporate philanthropy. The term CSR gained popularity since the second half of the twentieth century at the onset of the cold war and during the golden age of new social movements. Indian history has many instances of ethical and social responsibilities adopted by a few religious institutions and emperors. But, nonetheless, postcolonial India remains a mile away in achieving and accepting CSR as a part of business operations. With the Companies Act 2013, new hopes have been rekindled. The rising number of business entities brings about new challenges and new approaches towards CSR. State initiatives should not be restricted merely to legislate but opened to implementing the laws; holding continuous discussions and deliberations; and extending assistance to various other stakeholders that are the keys to success of CSR in India.

Chatterjee, Souvik and Debnath, Kunal, Why State Intervention is Required for Corporate Social Responsibility? An Indian Experience (2019). Amity Journal of Corporate Governance, volume 4, no 1, 2019, pp 28-42.

Peter Murrell, ‘Did the Independence of Judges Reduce Legal Development in England, 1600–1800?’

Conventional wisdom confers iconic status on the clause of England’s Act of Settlement (1701) mandating secure tenure for judges. This paper uses new databases of judges’ biographies and citations to estimate how the move to secure tenure affected the number of citations to judges’ decisions, a measure of the quality of decisions. Several strategies facilitate identification of the effect of secure tenure. A court-year panel permits use of a difference-in-differences framework. Controls capture judges’ human capital and amount of litigation. Historical evidence, tests of sensitivity to omitted-variable bias, and instrumental variables estimates support the findings on the effects of tenure arrangements derived from ordinary least squares estimates. Secure tenure had a strong deleterious effect on associate judges’ decisions and a smaller positive effect on chief judges’ decisions. The effect of all judges having secure tenure is negative, large, and statistically significant. The act had an effect opposite of that universally assumed …

Peter Murrell, Did the Independence of Judges Reduce Legal Development in England, 1600–1800?, Journal of Law and Economics: volume 64: no 3, article 4 (2021).

Jason Tashea, ‘Justice-as-a-Platform’

This landscape analysis is a snapshot of how technology and data are used to address the access to justice gap around the world. These innovations attempt to increase legal system efficiency, access to justice services, and the agency of civil and criminal legal system-involved people. While these projects may seem discrete or independent, they are in fact a part of a larger ecosystem of technology, data, and policy. For that reason, this report applies a novel conceptual framework and organizing metaphor: the digital platform. Doing so contextualizes each project within the justice technology ecosystem and how the project impacts end users, including citizens themselves and public employees. The report ends by discussing further areas of needed research to improve justice technology.

Tashea, Jason, Justice-as-a-Platform (December 7, 2021). MIT Computational Law Report 2021.

Luca Ottiero, ‘Good Faith and Pre-Contractual Liability in Commercial Contracts: A Comparative Analysis Between Italian and English Law’

The principle of good faith has always governed commercial relationships in civil law countries. However, the correct application and limits of this principle have always been debated. This paper firstly analyses how bona fide is interpreted in Italian contract law, concluding that it aims to preserve the utility of contracts and, unlike ordinary diligence, requires both parties to make a reasonable sacrifice to keep the contract alive. Secondly, the correct classification of culpa in contrahendo within the Italian legal framework is discussed. After considering different points of view, the paper discusses the most recent Italian Supreme Court’s decisions, which classify the culpa in contrahendo as a contractual liability arising from ‘qualified social contact’.

For comparative purposes, the analysis then focuses on the presence of good faith requirements in English law. While recognising the absence of a general principle of bona fide, this paper suggests that many remedies in English law often result in the same outcomes. Also, even if English Courts have consistently refused to affirm a good faith requirement in the negotiation stage of contracts (i.e., a culpa in contrahendo), parties are still protected by other means. In this sense, the paper concludes that the two legal systems are not as different as they appear at first sight and affirming that English law does not require parties to act in good faith could be misleading and not entirely correct.

Ottiero, Luca, Good Faith and Pre-Contractual Liability in Commercial Contracts: A Comparative Analysis Between Italian and English Law (May 15, 2022).

Chris Reinders Folmer, ‘Getting Systematic on Legal Apology’

The place that apologies (should) occupy in law continues to stir up emotions in the Dutch legal literature. Apologies are seen in this discussion either as an essential means of meeting victims’ needs or as something that poses legal risks, and should not be legalized. Nevertheless, much is unclear about the role apologies actually play in Dutch legal practice. In her recent book, Lianne Wijntjens offers important insight into this question, within the realm of civil law and medical disciplinary law. In doing so, she answers important open questions for the legal scholarly discussion on this topic, and offers promising leads for legal practice. This book review highlights the merits of this important work, and unlocks its conclusions for an English-speaking audience.

Reinders Folmer, Chris, Getting Systematic on Legal Apology (June 1, 2022). English translation of: CP Reinders Folmer, ‘Systematisch kijken naar excuses in het recht’, Recht der Werkelijkheid, 2022 (1), 88-93, DOI 10.5553/RdW/138064242022043001007.

Hilary Young, ‘Canadian Anti-SLAPP Laws in Action’

Strategic lawsuits against public participation (SLAPPs) are a pernicious problem affecting freedom of expression and public participation. To help combat this problem, Ontario enacted anti-SLAPP legislation in 2015. British Columbia followed suit in 2019. This article presents results of a qualitative study of lawyers’ experience with anti-SLAPP litigation in Ontario and British Columbia. I interviewed 15 litigators familiar with these motions. Most had a positive view of the new legislation. However, they also revealed several reasons for concern, including the motions being slow and expensive, and providing new tools for strategic litigation. This study provides food for thought for parties, litigators, courts and any province considering enacting similar law.

Young, Hilary, Canadian Anti-SLAPP Laws in Action (June 14, 2022).

Amy Kapczynski, ‘The Public History of Trade Secrets’

Rising inequality and increasing concentration of corporate power have brought renewed attention to questions of political economy, and to how law helps to construct private power and encase it from democratic rearrangement. This Article brings a political economy perspective to the law of commercial secrets, to show that changes in the scope and justification for trade secret law, operating in a context of rising importance of data and information, have set this law on a collision course with our democracy. An area of law that was once understood as focused on fair competition and commercial morality has been retheorized as a kind of ‘intellectual property’, following prevailing neoliberal arguments about the economics of information. Earlier limits on the scope of the law have been dissolved, so that companies today can claim that almost any confidential corporate information is a trade secret. The law has also been constitutionalized, so that a legislature disclosing corporate information – from the ingredients in cigarettes to the price of a drug – now face powerful challenges from corporations on the basis of the Takings Clause.

Some of the most basic functions of the modern regulatory state, including many mandated disclosures about commercial products to the public, would not have been possible if this view had reigned in earlier decades. Unsurprisingly, it did not. Several Supreme Court cases that have largely been forgotten show that courts even at the height of laissez faire were clear about the categorical priority of the public, and rejected trade secret claims when they conflicted with the public’s right to know. These cases, and earlier logics of trade secrecy that see it as an expression of values of fair competition and commercial morality, together form what I call the ‘public history of trade secrets’. Recalling this history can help us to defend a more democratic relation between the political and the economic in our age of informational capitalism. These cases also point to a clear legal principle that would, if recovered, reshape what legislatures and regulators are able to reveal to the public: The disclosure of corporate secrets can be made a condition of participation in markets whenever the information helps illuminate the nature of a product or service. Recognizing this would enable vastly more public insight into companies and their products – for example, enabling states to mandate disclosure of the algorithms that shape our social media feeds, and the secret data companies hold about the risks and benefits of consumer products.

Kapczynski, Amy, The Public History of Trade Secrets (January 2022). UC Davis Law Review, volume 55, 2022.