Gareth Davies, ‘The Relationship between Empirical Legal Studies and Doctrinal Legal Research’

ABSTRACT
This article considers how empirical legal studies (ELS) and doctrinal legal research (DLR) interact. Rather than seeing them as competitors that are methodologically independent and static, it suggests that they are interdependent activities, which may each be changed by interaction with the other, and that this change brings both opportunities and threats. For ELS, the article argues that DLR should properly be understood as part of its theoretical framework, yet in practice little attention is given to doctrine in empirical work. Paying more attention to DLR and legal frames generally would help ELS meet the common criticism that it is under-theorised and excessively policy oriented. On the other hand, an embrace of legal thinking, particularly of critical legal thinking, might lead to loss of status for ELS in policy circles and mainstream social science. For DLR, ELS offers a chance for it to escape the threat of insular sterility and irrelevance and to participate in a founded commentary on the world. The risk, however, is that in tailoring legal analysis to what can be empirically researched legal scholars become less analytically ambitious and more safe, and their traditionally important role as a source of socially relevant critique is weakened. Inevitably, in offering different ways of moving to normative conclusions about the law, ELS and DLR pose challenges to each other, and meeting those challenges will require sometimes uncomfortable self-reflection.

Davies, Gareth T, The Relationship between Empirical Legal Studies and Doctrinal Legal Research (June 3, 2020). Erasmus Law Review, forthcoming.

‘When does a communication to the public under EU copyright law need to be to a “new public”? A new research article’

“Over the past several years, the right of communication to the public in art 3(1) of the InfoSoc Directive has progressively and consistently taken centre stage in the EU copyright system. This has been so also given the great number of referrals (over twenty since the 2006 decision in SGAE) to the Court of Justice of the European Union (CJEU) …” (more)

[Eleonora Rosati, The IPKat, 2 July]

Steven Hazel, ‘Privacy Self-Help’

ABSTRACT
Today, millions of consumers practice privacy self-help. Some cover their laptop cameras; others communicate through encrypted messaging apps; still others delete sensitive documents. But while self-help has emerged as one of the primary ways that consumers manage privacy risks, it has attracted little scholarly attention.

To fill that gap, this Article offers a descriptive account of the relationship between privacy doctrine and self-help. As it turns out, privacy law relies on self-help to solve some of its most pressing problems. From the Fourth Amendment to the FTC’s unfairness authority, courts and regulators look to self-help to decide which disputes deserve attention and to conserve scarce resources. The upshot is that harnessing self-help has become a pervasive feature of modern privacy law.

Turning from the descriptive to the normative, this Article asks how law should respond to privacy self-help. Too often, self-help exposes the data it promises to protect. When self-help backfires, the conventional wisdom holds that courts and regulators should install legal remedies to replace it. But displacing self-help would disable the many doctrines that depend on it.

Challenging the conventional wisdom, this Article shows that legal institutions protect consumers best when they facilitate – rather than replace – self-help. By arming individuals with intelligence about self-help, courts and regulators can empower them to spot successful strategies and sidestep self-defeating ones. This approach promises to transform self-help from a popular yet unreliable practice into a potent weapon in the hands of millions of consumers.

Hazel, Steven, Privacy Self-Help (June 10, 2020). Berkeley Technology Law Journal, forthcoming.

Paras Sharma, ‘Economic Analysis of Tort Liability’

ABSTRACT
Tort law has been one of the first fields of law to be analyzed from an economic point of view. Tort law is majorly concerned with accidental injuries. Its purposes are twofold, viz, to compensate the victims and to deter unreasonably dangerous behavior. The economic theory of tort law emphasizes on the deterrence aspect of tort law. It is based on the impression that liability for accidental injuries should be allocated, so as to minimize the expected costs of accidents, including the harm suffered by victims and the cost of precautions by injurers and victims. This work is an attempt to simplify some of the existing work on the subject. This work aims to analyze the tort liability from an economic point of view. This work does not take into account each and every concept of tort law but only a selection of them which are more directly related to the tort law than others and all of them come together cohesively to form a seamless body of study as is the aim of this work This Work outlines a general economic approach of the tort law showing that all efficient rules must define negligent behavior as inefficient behavior and must hold an individual liable depending upon his liability. Further, this work also provides a brief insight into product liability under tort law from an economic point of view.

Sharma, Paras, Economic Analysis of Tort Liability (June 10, 2020). International Journal of Law, volume 6.3 (http://www.lawjournals.org/archives/2020/vol6/issue3/6-2-52).

Martin-Bariteau and Pontello, ‘Hashing Out Agreements: An Overview of “Smart” Contracts under Canadian Common Law’

ABSTRACT
Blockchain-based technologies are starting to permeate every aspect of the Canadian legal landscape. Blockchain is often solely associated with cryptocurrencies, such as Bitcoin; however, it has numerous applications beyond virtual currencies. Blockchain technology has the potential to provide numerous opportunities to those providing legal services, notably through smart contracts. However, some legal uncertainty remains with respect to smart contracts. The legality of smart contracts and their place of operation under Canadian law has yet to be researched. Potential risks for clients, as well as for lawyers – especially with respect to their ethical and professionalism duties – also need to be researched and highlighted.

This paper begins by providing an overview of smart contracts, including a brief history of the development of smart contracts, followed by a discussion of the underpinnings of blockchain-based applications. After forming an understanding of smart contracts, this paper will address the important technical and legal limitations that smart contracts face. Since blockchain-based smart contracts rely on blockchain technology and digitalization, this paper will explain how smart contracts can only be as ‘smart’ as its developer, and the computers running them.

This paper will then transition into a discussion of how the advent of cryptocurrencies and smart contracts relaunched decades-old debates about how society should regulate technology. Although we argue that legal frameworks must evolve with society, we will highlight that we do not need to rewrite or create new approaches to each technological innovation.

Subsequently, this paper will provide an overview of smart contracts under Canadian common law. As it currently stands, academics have not fully addressed the issue of whether smart contracts conform to our traditional contract law framework. This paper will address the legal status and remaining questions regarding the legal status of smart contracts and the enforceability of smart contract performance.

While there may be many barriers to the adoption of any new technologies, legal uncertainty – and therefore legal risks for clients and lawyers – should not be one of them. The key findings below present an overview of the academic research on the key legal questions facing smart contracts in Canada. The key findings are followed by an overview of some of the preliminary use cases of smart contracts in the legal field.

Martin-Bariteau, Florian and Pontello, Marco, Hashing Out Agreements: An Overview of ‘Smart’ Contracts under Canadian Common Law (December 20, 2020).

‘On Your Bike: Pedalling Your Way to Copyright Protection’

“In the recent case of Brompton Bicycle Ltd v Chedech/Get2Get, the Court of Justice of the European Union (CJEU) ruled that copyright protection can apply to a product shape where it is both functional and original. As a result, any product whose shape is at least in part necessary to obtain a technical result, such as the folding bicycle in this case, may be able to avail of copyright protection …” (more)

[Mason Hayes and Curran, 30 June]

Jeremy McClane, ‘Boilerplate Semantics: Judging Natural Language in Standard Deal Contracts’

ABSTRACT
Many corporate finance lawsuits involve the interpretation of commonly-used boilerplate contracts, the meaning of which is thought to be widely understood. In some cases, however, judges interpret these contracts in ways that upend market actors’ expectations about the meaning of terms and frustrate the presumed intent of the parties. Given this experience, and the legal profession’s long history with boilerplate, it is a source of frequent surprise that certain standard provisions continue to be used, sometimes almost verbatim, even after becoming notorious sources of conflict.

A number of persuasive explanations have been advanced for this phenomenon, but this Essay argues that an overlooked additional factor helps explain the persistence of trouble-making language. Many boilerplate clauses that become the subject of controversy share a type of ambiguous semantic structure that linguists know well, but that we as lawyers are rarely trained to identify. This type of structure lends itself well to boilerplate, but contributes to confusion and opportunistic reading of contract language. Semantically ambiguous constructions can seem straightforward enough to a drafting lawyer on first read, but they contain multiple layers of often-hidden meaning that provide fertile ground for later disputes.

Despite the confusion that these structures create, their ambiguities are difficult to spot and correct, especially using the interpretive processes that we lawyers are accustomed to using. Thus, even earnest attempts to correct problematic language can end up falling short. This Essay identifies these structures using three well-known boilerplate provisions whose interpretations have proved controversial. The Essay also discusses ways in which lawyers can learn to recognize these structures and suggests that algorithms designed to process natural language may be able to ‘see’ them even when humans struggle to do so.

McClane, Jeremy, Boilerplate Semantics: Judging Natural Language in Standard Deal Contracts (April 2, 2020). Wisconsin Law Review, volume 2020, forthcoming.

Schovsbo and Riis, ‘Concurrent Liability in Contract and Intellectual Property: Licensing Agreements in Light of Case C-666/18, IT Development SAS

ABSTRACT
It is the starting point in some jurisdictions that if a licensing agreement has been breached the licensor may choose to base her claims against the licensee on either contract or IPR. This article argues that such a starting point should not be upheld. Not least because of the developments in EU law, the IPR systems contain special remedies and procedures which are systematically and unilaterally to the benefit of just one of the parties to a contract, viz the rights holder (licensor). The freedom to choose IPR against a contractual party ought to be limited to the minimum, ie to those instances where this is prescribed by law. In the recent judgment of the CJEU, C-666/18 IT Development SAS, the Court holds that a copyright’s holder/licensor must be able to rely on the remedies and procedures of IPRED. Consequently, freedom of choice between contract and IPR is guaranteed. It is pointed out how this Judgment only deals with IPRED and does not have any broader effect for the basic question of choice between contract and IPR outside of the scope of the IPRED. Therefore, freedom of choice could still be limited, and licensees shielded against the special remedies and procedures which are at rights holders disposal outside of IPRED.

Schovsbo, Jens and Riis, Thomas, Concurrent Liability in Contract and Intellectual Property: Licensing Agreements in Light of Case C-666/18, IT Development SAS (16 4, 2020).

Teresa Scassa, ‘A Human Rights-Based Approach to Data Protection in Canada’

ABSTRACT
The rapidly changing digital and data landscape has placed increasing pressure on Canada’s existing data protection frameworks. Individual-oriented, consent-based mechanisms no longer seem adequate or appropriate to address the challenges posed by the ubiquitous and continuous harvesting of massive amounts of data through the Internet of Things, and its use in big data analytics, artificial intelligence and machine learning. This paper explores the potential for a shift in paradigm – to a human rights-based approach to data and privacy.

Scassa, Teresa, A Human Rights-Based Approach to Data Protection in Canada (June 5, 2020) in Dubois, E and Martin-Bariteau, F (eds), Citizenship in a Connected Canada: A Research and Policy Agenda, Ottawa, ON: University of Ottawa Press.