‘The Unified Patent Court. Do we finally have a predictable timeline?’

“After the Order of the German Federal Constitutional Court (FCC) dated 23 June 2021 it is now clarified that Germany is able to participate in the Agreement on a Unified Patent Court (UPCA) and the Protocol on the Provisional Application of the UPCA (the PAP-Protocol). In the process of full entry into force of the UPCA, there are some steps that need to be followed. The first step is Germany’s ratification of the PAP-Protocol. The German Federal President has already signed the ratification bill on 7 August 2021, promulgated on 12 August 2021. Although the German ratification has been of key importance for unlocking the process, it is not enough …” (more)

[Frantzeska Papadopoulou, The IPKat, 20 September]

‘Crisis Resilience of European Contract Law and the Covid-19 Pandemic: A Functional and Comparative Approach’

“The sanctity of contracts, a guiding principle of contract law in civil law systems, requires that all contracting parties be expected to meet their contractual obligations, thereby ensuring efficacy and efficiency of private ordering. In extraordinary circumstances, however, legal systems provide for mechanisms that may excuse contractual performance or lead to adaption or termination of contractual obligations. Since the coronavirus pandemic, these mechanisms have clearly gained traction …” (more)

[Valentin Jentsch, Oxford Business Law Blog, 20 September]

Worth – Netflix’s movie on the 9/11 victim’s compensation fund, and interviews with Ken Feinberg’

“To coincide with the 20th anniversary of the attacks on September 11, 2001, Netflix released a new movie called ‘Worth’. It is a dramatization of the story behind the 9/11 victims compensation fund, which was administered by Ken Feinberg. I recently watched the movie and I recommend it. It is not a thriller, nor a courtroom drama, but it does a good job of showing the every day inner workings of torts lawyers trying to figure out how to manage the type of compromise it takes to evaluate claims fairly …” (more)

[Alberto Bernabe, Torts Blog, 19 September]

Kristine Knaplund, ‘Reimagining Postmortem Conception’

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one’s gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents. And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception – a New York amendment effective in February 2021 – the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive. This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

Knaplund, Kristine S, Reimagining Postmortem Conception (2021). Georgia State University Law Review, volume 37, no 3, 2021, Pepperdine University Legal Studies Research Paper No 2021/22.

Joshua Sarnoff, ‘A Research Framework for Intellectual Property and Environmental Law’

The intersection of the fields of Intellectual Property Law (IPL) and Environmental Law (EL) is a multi-dimensional space requiring consideration not only of specialized areas and topics within each of these fields, but also of general law principles and a variety of approaches to analysis and critique. This chapter seeks to situate some methodologies for research at the intersection of IPL and EL within a broader context of methodological analyses that are brought to law and legal problems. These methodological forms include historical, doctrinal, theoretical, empirical (often economic, psychological, and sociological), and other types of analyses (including public choice theory and big data analyses). Nevertheless, I hope to note some unique aspects of how the two fields of intellectual property and environmental law exhibit common features and synergies, making for very fertile and productive research addressing very important social problems.

Sarnoff, Joshua D, A Research Framework for Intellectual Property and Environmental Law (August 3, 2021). Oxford Handbook of Intellectual Property Research, forthcoming.

‘Is US defamation law’s “actual malice” requirement still fit for purpose?’

“United States defamation law has made it famously difficult for claimants to win their cases. However, Supreme Court justices Neil Gorsuch and Clarence Thomas filed dissents in the case of Berisha v Lawson in July suggesting that a core precedent behind this difficulty is ripe for reconsideration. The precedent in question comes from New York Times v Sullivan, a 1964 Supreme Court case in which the Court ruled unanimously that, on account of freedom of speech provisions in the First Amendment, public officials in government cannot prove libel without firm evidence that the defendant acted with ‘actual malice’ …” (more)

[Georgia Scarr, Inforrm’s Blog, 18 September]

Elena Cooper, Review of Tanya Aplin and Lionel Bently, Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works

“In Global Mandatory Fair Use, Tanya Aplin and Lionel Bently make a bold claim: that the current international copyright system, which spans most countries of the world, mandates a ‘fair use’ exception to copyright infringement. This will be startling reading for copyright lawyers, as well as policy-makers and judges, all over the world. To date, the dominant norm concerning copyright exceptions in international instruments (principally the Berne Convention on Copyright and the Agreement on Trade Related Aspects of Intellectual Property Rights or TRIPs) has been understood to be the ‘three-step test’ which requires contracting states to confine exceptions: (1) to ‘certain special cases’; (2) which do ‘not conflict with a normal exploitation of the work’; and (3) which ‘do not unreasonably prejudice the legitimate interests of the author’ (art 9(2) Berne Convention, or as per art 13 TRIPs, ‘the legitimate interests of the right holder’). The radicalism of Global Mandatory Fair Use is that, in breathing new life into a much-neglected specific exception in the Berne Convention, to which the three-step test does not apply – art 10(1) concerning quotation – Aplin and Bently provide an alternative centre of gravity for debates about how to accommodate the interests of users into copyright law …”

€ (Westlaw)

Elena Cooper, ‘Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works‘ (2021) 137 Law Quarterly Review (Oct) 685.

Kumaralingam Amirthalingam, ‘Public prosecutors and the tort of misfeasance’

“The Canadian Supreme Court decision in Ontario v Clark, 2021 SCC 18 on prosecutorial immunity against civil claims for misfeasance in public office should be of interest to English lawyers. Canada and England share similar traditions in public prosecution, and their jurisprudence on tort liability of prosecutors has developed in tandem. Public prosecutors exercise considerable power in both jurisdictions, acting as gatekeepers of the criminal justice system. For constitutional reasons, prosecutorial discretion is subject to limited judicial review. Unchecked, prosecutorial misconduct can have grave consequences for accused persons and third parties. Some degree of transparency and accountability for prosecutorial discretion is maintained through judicial review, internal review processes, and prosecution guidelines …”

€ (Westlaw)

Kumaralingam Amirthalingam, ‘Public prosecutors and the tort of misfeasance’ (2021) 137 Law Quarterly Review (Oct) 553.

John Murphy, ‘The vitality of injurious falsehood’

When it comes to their range or the frequency with which they are invoked, some torts, like tides, seem to ebb and flow. The story concerning the expansion and contraction in the scope of the tort of negligence via the duty concept requires no re-telling. Almost as well known is the way that liability for harm caused by things liable to cause damage upon their escape waxed in the several decades that followed the landmark decision in Rylands v Fletcher, only to wane again during the second half of the 20th century before making a solid (if not quite roaring) comeback just before and just after the turn of the millennium in Cambridge Water Co v Eastern Counties Leather Plc and Transco Plc v Stockport MBC. Much the same story can be told of liability under the rule in Wilkinson v Downton, a tort, the existence of which, was severely challenged in Wainright v Home Office, only to be rejuvenated (with some reconfiguration) by the Supreme Court in O v Rhodes

€ (Westlaw)

John Murphy, ‘The vitality of injurious falsehood’ (2021) 137 Law Quarterly Review (Oct) 658.

Jordan English, ‘The nature of “promissory conditions”’

English lawyers are commonly told that in contract law a ‘condition’, in its promissory sense, is a term the breach of which gives the innocent party a ‘power to terminate’. Exercising the power discharges both parties from their unperformed obligations, but unless and until it is exercised the innocent party remains bound to perform. The precise justification for the ‘power to terminate’ remains unsettled, but its existence is rarely questioned. The problem is that conditions were not always thought of in this way. Traditionally, to say that a term of a contract was a ‘promissory condition’ or ‘promissory condition precedent’ was simultaneously to say: (i) that one party had promised to ensure that some event would occur (or that some fact were true); and (ii) that the performance (or fulfilment) of that promise was a condition of the other party’s obligation to perform …

€ (Westlaw)

Jordan English, ‘The nature of “promissory conditions”’ (2021) 137 Law Quarterly Review (Oct) 630.