‘How privacy’s past may shape its future’

“Continued expansion of human activities into digital realms gives rise to concerns about digital privacy and its invasions, often expressed in terms of data rights and internet surveillance. It may thus be tempting to construe privacy as a modern phenomenon – something our ancestors lacked and technological innovation and urban growth made possible. Research from history, anthropology, and ethnography suggests otherwise. The evidence for peoples seeking to manage the boundaries of private and public spans time and space, social class, and degree of technological sophistication. Privacy – not merely hiding of data, but the selective opening and closing of the self to others – appears to be both culturally specific and culturally universal …”

Alessandro Acquisti, Laura Brandimarte and Jeff Hancock, How privacy’s past may shape its future, Science volume 375 issue 6578 pp 270-272, 10.1126/science.abj0826 (20 January).

‘Using the Past’

Sarah A Seo, ‘A User’s Guide to History’, in Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, and Heinz Klug eds, 2021), available at SSRN. In ‘A User’s Guide to History’, Sarah A Seo offers a thoughtful and challenging assessment of the possibilities and pitfalls of using historical scholarship to guide our present. At the heart of her essay is a tension between needs and methods. We need to know the past to understand the present; we need to know what we’ve done before so we can make the right choices about policies today. But, as Seo strikingly puts it, ‘history’s methods seem unsuited for determining what, exactly, those policies should be’. To demand that history has a ‘practical use’, that it serves as ‘a tool for reform’, may be ‘something like a suicide mission’, putting at risk ‘the integrity of the discipline’ (p 465) … (more)

[Christopher W Schmidt, JOTWELL, 19 May]

Alvin See, ‘Dealing with a minor’s land in Singapore’

This article attempts to dispel the myth that a trustee holding land on trust for a minor could deal with it only with court approval. The source of this myth is a series of antiquated statutes suggesting that minors belong to a vulnerable group deserving of special protection. As the complex interpretive exercise reveals, much of the difficulty is in identifying the precise problem(s) intended to be addressed by these statutes, as this is not at all clear from their wording. Adding to the complexity is the location of the topic at the intersection between the old and the new, thus requiring attention to the divergences between Singaporean and post-1925 English laws, as well as the status of the general law within the Torrens system of title registration. As this discussion illustrates, the study of land law is often inextricably linked to the study of the history of land law.

Alvin W-L See, Dealing with a minor’s land in Singapore, Oxford University Commonwealth Law Journal, https://doi.org/10.1080/14729342.2022.2076969. Published online 18 May.

‘Proving Things 233: Assessing Evidence After 14 Years: The Cruel Concept Of Causation In Medical Negligence’

“This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial. The difficulties are made clear in the judgment of HHJ Emma Kelly in Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB). This is a tragic case and one where the claimant’s evidence was found to be honest and credible. Breaches of duty were established, causation was not …” (more)

[Gordon Exall, Civil Litigation Brief, 19 May]

Konstantinos Alexandris Polomarkakis, ‘Gendered Capital and Litigants in EU Equality Case-Law’

This article problematises the gendered dimension of litigation in EU equality case-law. Relying on feminist readings of Bourdieu’s concept of capital, it introduces the notion of gendered capital as an explanatory framework to illustrate and evaluate the distinct experiences between women and men litigants in the legal field. The article puts this framework to the test by undertaking a macro-level mixed-methods study of 352 preliminary references on EU non-discrimination law, drawing on the Equality Law in Europe: A New Generation database. The findings confirm the plausibility of this framework, with gendered capital varying depending on the period when and the Member State where the case was lodged, as well as on the ground of discrimination raised. As a result, by looking at the role of litigants’ gender in EU equality case-law, this article joins the emerging field of mixed-methods studies offering novel insights into the effectiveness of judicial decision-making.

Konstantinos Alexandris Polomarkakis, Gendered Capital and Litigants in EU Equality Case-Law, Modern Law Review, https://doi.org/10.1111/1468-2230.12745. First published 18 May.

Samuel Beswick, ‘Strike-out Appeals, Unjust Enrichment, and Discoverability: Insights from Kenya: Alba Petroleum Ltd v Total Marketing Kenya Ltd [2019] eKLR, Civ App 43 of 2015′

This note analyses a judgment of the Kenyan Court of Appeal that implicates issues that have been on the move in private law jurisprudence around the common law world. These issues are: (1) the interlocutory/final ruling distinction that appellate courts in Australia, Canada, Ghana, India, New Zealand, and elsewhere continue to grapple with; (2) when courts can reframe pleadings for breach of contract as claims in unjust enrichment, an issue recently considered by the Privy Council (2020); (3) the essentiality of ‘mistake’ for the purposes of benefitting from an extended limitation period – the subject of continued contention among unjust enrichment scholars; and (4) when mistakes are reasonably discoverable for limitation purposes, which has been the subject of major litigation before the United Kingdom Supreme Court (2020) and the Supreme Court of Canada (2021). The resolution of these issues in Alba Petroleum Ltd v Total Marketing Kenya Ltd could have been usefully informed by – and can inform – comparative common law jurisprudence.

Samuel Beswick, Strike-out Appeals, Unjust Enrichment, and Discoverability: Insights from Kenya: Alba Petroleum Ltd v Total Marketing Kenya Ltd [2019] eKLR, Civ App 43 of 2015, Common Law World Review, https://doi.org/10.1177/14737795211070838. First Published 18 May.

Yanni Goutzamanis, ‘Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal’s decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal’s decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court’s reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.

Yanni Goutzamanis, Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC, Modern Law Review, https://doi.org/10.1111/1468-2230.12744. First published 18 May.

‘Guest Book Review: Intellectual Property Risk Management

Intellectual Property Risk Management, Donal O’Connell’s third book, takes all the wisdom Donal has accrued from his experience managing intellectual property risk in-house and as a consultant. He has produced a text which is accessible, engaging, and informative. Reading through his painstakingly ordered text, his voice rings out clearly, as though he were sharing his knowledge in direct conversation …” (more)

[Ruth Soetendorp, The IPKat, 19 May]

Chao Xi, ‘Shareholder Voting and COVID-19: The China Experience’

Using state-of-the-art data mining and machine learning techniques, this research constructs a unique dataset comprising the votes cast by Chinese shareholders on 15,553 resolutions laid before 2,888 general meetings of Shanghai Stock Exchange-listed companies in the six-year period between 2015 and 2020. This research empirically depicts, for the first time, the manner in which minority shareholders exercise their rights to vote in China, presenting a counter-thesis to the conventional wisdom of shareholder passivity. In particular, this research offers a unique perspective on how the COVID-19 pandemic has influenced Chinese shareholders’ voting behaviour by focusing its empirical investigation on the 76-day time window from 23 January to 7 April, during which period in 2020 Wuhan, the epicentre of the COVID-19 outbreak in China, came under a mandatory lockdown order. Our findings offer strong empirical evidence that Chinese shareholders cast their votes in a characteristically more informed manner in the 2020 sample period than they did during the sample periods in the previous five years. The research highlights the potential of shareholder activism in economies where share ownership is concentrated. It also has implications for the ongoing discourse on virtual shareholder meetings and the shareholder franchise.

Xi, Chao, Shareholder Voting and COVID-19: The China Experience (December 1, 2021), Chinese Journal of Comparative Law (2021) volume 9 pp 125-156, The Chinese University of Hong Kong Faculty of Law Research Paper No 2021-76.

Fredrick Vars, ‘The Slayer Rule: An Empirical Examination’

Elmer Palmer murdered his grandfather. The undisputed motive was money. The grandfather’s will included a large gift to Elmer, which the grandfather was poised to eliminate. Elmer acted first. Under the law at the time, Elmer would inherit despite having intentionally killed his grandfather: the existing will controlled. Unfortunately for Elmer, the New York Court of Appeals announced a new equitable principle: Murderers cannot inherit from their victims. Since this famous decision in 1889, some version of the ‘slayer rule’ has been adopted by nearly every state and lauded by nearly every commentator. Still, important questions about the proper scope of the slayer rule remain unanswered. Case law and scholarship identify multiple rationales for the slayer rule, which push in different directions in difficult applications.

This study is the first to empirically test key assumptions underlying the slayer rule. Over a thousand survey respondents answered the question ‘What’s fair?’ or ‘What would the decedent want?’ in twelve different scenarios. Some of the most significant conclusions are that the slayer rule should not apply to assisted suicide, killings in self-defense, or killings due to mental illness. On the other hand, the slayer rule should be expanded beyond murder in some circumstances, such as elder abuse and neglect. And the slayer rule should be converted from a mandatory rule into a default rule, which testators could opt out of in their wills. Carefully probing what people think about the slayer rule illuminates its many aspects and points toward needed reforms.

Vars, Fredrick E, The Slayer Rule: An Empirical Examination (May 13, 2022). ACTEC Law Journal (forthcoming Spring 2023).