Frederick Schauer, ‘Constructing Interpretation’

This paper, a substantially revised version of a paper previously entitled (and posted as) ‘A Critical Examination of the Distinction between Interpretation and Construction’, argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of the distinction is undercut by the existence, following Hart and Searle, of constitutive legal language. When legal instruments, whether contracts or statutes or constitutions, create types of behavior that would otherwise not exist, as opposed to regulating antecedently existing behavioral possibilities, it becomes impossible to interpret the language that constitutes behavior without taking into account all of the legal goals and principles that proponents of the distinction would relegate to the ‘construction zone’. For such constitutive language, just as with technical language, all of the values, aims, and principles of law in general or of a particular legal provision pervade both sides of the distinction, sharply reducing the importance of the distinction for such language.

Schauer, Frederick, Constructing Interpretation (October 19, 2020). Boston University Law Review, forthcoming, Virginia Public Law and Legal Theory Research Paper No 2020-74.

Matthieu Dhenne, ‘COVID-19: Hope for a New World of IP?’

The COVID-19 pandemic is having a two-fold impact on the world of IP: after an initial retreat towards the classic utilitarian model, focused on the utility of property to its holder, the modern utilitarian model, focused on societal utilities of property, is rising in such a way that IP could now, more than ever, constitute a geopolitical tool as much as a potential economic lever.

Dhenne, Matthieu, COVID-19: Hope for a New World of IP? (October 19, 2020).

Mahr and Dickel, ‘Rethinking intellectual property rights and commons-based peer production in times of crisis: The case of COVID-19 and 3D printed medical devices’

“At the peak of the coronavirus disease 2019 (COVID-19) pandemic, in March 2020, the Hospital of Chiari (Brescia) was in a state of emergency. The stock of valves needed to operate ventilators was dwindling and the manufacturer was unable to supply them at short notice. Massimo Temporelli, founder of Fablab Milano and one of the 3D printing pioneers in Italy, with the help of the local press, called makers to the rescue. Cristian Fracassi, a young engineer from Brescia, and his colleague Alessandro Romaioli, who works in the world of 3D printing, rose to the challenge …” (more)

Dana Mahr and Sascha Dickel, ‘Rethinking intellectual property rights and commons-based peer production in times of crisis: The case of COVID-19 and 3D printed medical devices’, Journal of Intellectual Property Law and Practice, volume 15, issue 9, September 2020, pages 711–717, Published: 24 September 2020.

‘New article on “Transnational Contracts and their Performance during the COVID-19 Crisis: Reflections from India”’

“The outbreak of the COVID-19 or the coronavirus disease 2019 has severely impacted the performance of several contracts across the globe. In some situations, the outbreak may render the performance of contracts impossible as a result of governmental restrictions in the form of national lockdowns to curb its spread. Likewise, the pandemic may adversely impact the execution of the contractual obligations by dramatically affecting the price of the performance and, thus, resulting in hardship or commercial impracticability …” (more)

[Saloni Khanderia, Conflict of Laws .net, 26 October]

‘Copyright law trapped in the web of hyperlinking: the AG’s Opinion in the VG Bild-Kunst case’

“On September 10, 2020 the Advocate General (AG) Maciej Szpunar delivered his Opinion on the case of VG Bild-Kunst v Stiftung Preußischer Kulturbesitzanother (C‑392/19), a further case concerning the legality of linking. The assessment of linking from an EU copyright law perspective appears to be a labyrinthine legal exercise, since, following the seminal Svensson (C‑466/12) and GS Media (C-160/15) decisions, several factors have to be taken into account such as the initial lawful communication of the linked work, the application of access restrictions, the actual or constructive knowledge of the linker regarding whether the work has been initially communicated with the author’s consent, and the profit making activity of the linker …” (part I, part II)

[Tatiana Synodinou, Kluwer Copyright Blog, 22 and 26 October]

Cortelyou Kenney, ‘Reawakening the Law’

The legal system is designed not to prevent injustice, but to cure it after the fact, or restore what is referred to in lawyering terminology as ‘the status quo ex ante’. This design dates back millennia and reflects Biblical values of an ‘Eye for an Eye’ or ‘Tit for Tat’ and the notion that in order to deter wrongdoing we must punish it or provide restitution. However, research from victims’ rights advocates shows that violence only begets more violence, leading to repeated cycles of injustice. While legal scholars have sought to remedy these cycles through pointing to structural and doctrinal problems with the courts, lawyers, the federal government, private business, and capitalism itself, none of their proposed solutions offers a means to break the cycle and to prevent injustices rather than ‘remedying’ them after the fact.

This Article calls for the emergence of a new form of lawyering designed not to ‘cure’ injustice but to prevent it. To do so, we must reawaken the law to strategies based on win-win, or nonzero-sum, solutions and new forms of cooperation. While there is a robust literature on cooperation, the missing insight is that what is in the best interest of the individual and of society are aligned in the long run and in the proper environment. But recent pioneering work in computer science, evolutionary biology, and economics shows that pure cooperation can and does exist in theory and in nature. Cooperation also exists all around us among the pandemic and protests in communities aimed at promoting the wellbeing of their members – communities that are self-aware and self-conscious and focus on acknowledging the fundamental interconnectedness of their members.

This Article examines the features for flourishing these communities share and provides an artist’s sketch to transform law schools into incubators for social change. It calls on our legal educators to see the deep harmony, beauty, and joy amidst the chaos and to draw on it to create a new scholarship and activism that will one day pave the way for a new legal system based not on punishment and restitution, but on nonzero-sum or win-win solutions.

Kenney, Cortelyou C, Reawakening the Law (October 18, 2020).

‘Towards a new branch of law and economics?’

Yair Listokin, Law and Macroeconomics (2019). Not every day do we encounter a work of research that enables us to study the law through a whole new lens. Indeed, over the last fifty or so years, legal scholars have discovered new ways to apply well-established bodies of knowledge to the research of law, helping us to both give normative meaning to existing rules and formulate new ones. No better example of this ‘interdisciplinary revolution’ comes to mind than the world of law and economics, which in all fairness should be deemed the world of law and microeconomics. Prior to the publication of Yair Listokin’s book, Law and Macroeconomics, we as researchers have applied economic insight to legal research solely by examining specific actors’ response to incentives provided by law – a microeconomic perspective … (more)

[Ronen Avraham, JOTWELL, 26 October]

Vehar and Gils, ‘I’m sorry AI, I’m afraid you can’t be an author (for now)’

This article examines how works created by artificial intelligence (AI) systems, or with their support, are protected under copyright law and affiliated regimes. It first looks at the conditions under which copyright protection may be granted to such works from a German and Belgian perspective. Subsequently, the article deals with alternative IP protection mechanisms for such works. It then presents the current European Union policy initiatives and the World Intellectual Property Organization consultation in this regard. The article concludes by suggesting contractual protection mechanisms for AI-generated works and providing a blueprint for how these could look in practice.

France Vehar and Thomas Gils, I’m sorry AI, I’m afraid you can’t be an author (for now), Journal of Intellectual Property Law and Practice, volume 15, issue 9, September 2020, pages 718–726, Published: 22 October 2020.

Re’em Segev, ‘Continuity in Morality and Law’

According to the an influential and intuitively appealing argument (the Continuity Argument): (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when action is reasonable (as positive law sometimes does). In this paper, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong – even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are both reasons in favor and reasons against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous and specifically that it should be often continuous.

Segev, Re’em, Continuity in Morality and Law (May 2, 2020). Theoretical Inquiries in Law, forthcoming, Hebrew University of Jerusalem Legal Research Paper forthcoming.

Stephen Neville, ‘Eavesmining: A Critical Audit of the Amazon Echo and Alexa Conditions of Use’

The emergence of smart speakers and voice-activated personal assistants (VAPAs) calls for updated scrutiny and theorization of auditory surveillance. This paper introduces the neologism and concept of ‘eavesmining’ (eavesdropping + data mining) to characterize a mode of surveillance that operates on the edge of acoustic space and digital infrastructure. In contributing to a sonic epistemology of surveillance, I explain how eavesmining platforms and processes burrow the voice as a medium between sound and data and articulate the acoustic excavation of smart environments. The paper discusses eavesmining in relation to theories of dataveillance, the sensor society, and surveillance capitalism before outlining the potential contributions offered by a theoretical alignment with sound studies literature. The paper centers on an empirical case study of the Amazon Echo and Alexa conditions of use. By conducting a discourse analysis of Amazon’s End User Agreements (EUAs), I provide evidence in support of growing privacy and surveillance concerns produced by Amazon’s eavesmining platform that are obfuscated by the illegibility of the documents.

Neville, Stephen J, Eavesmining: A Critical Audit of the Amazon Echo and Alexa Conditions of Use (September 1, 2020). Surveillance and Society 18 (3): 343–56.