‘Asset Managers as Regulators’

“The corporation’s role in society is in flux. Previous generations saw government as an important bulwark against corporate harm. Today, by contrast, corporate America is thought to be a solution to government dysfunction around issues like inequality and the environment. In addition, the ‘Big Three’ asset manager giants that specialize in index funds – Vanguard, State Street, and BlackRock – have voiced concern over these same issues and promised that they will push companies to address them …” (more)

[Dorothy S Lund, Oxford Business Law Blog, 23 June]

Groza and Arcila, ‘Comments to the Data Act from the Law and Technology Group of Sciences Po Law School’

These are comments submitted by members of the Law and Technology Group of Sciences Po Law School to the Proposal for a Regulation of the European Parliament and the Council on harmonised rules on fair access to and use of data (‘Data Act’), open for open consultation and feedback from stakeholders from 14 March to 13 May 2022.

We welcome the Commission’s initiative and share the general concern and idea that data concentration and barriers to data sharing contribute to the concentration of the digital economy in Europe. Similarly, based on our own research we share the Commission’s diagnosis that legal and technical barriers prevent different actors to enter in voluntary data-sharing agreements and transactions.

In general, we believe the Data Act is a good initiative, that will flexibilize some of the barriers that exist in the European market to facilitate the creation of value from data by different stakeholders, and not only those who produce it. In this document, however, we focus on five key clarifications that should be taken into account to further achieve this goal: (1) relieving the user from the burden the ‘data-sharing’ mechanism, as this mechanism may be asking users to act beyond their rational capabilities; (2) the definition of the market as the one for related services fails to unlock the competitive potential of data sharing and might increase concentration in the primary markets for IoT devices; (3) service providers need to nudge users into sharing their data; (4) the difficulty of working with the personal – non personal data binary suggested by the act; and (5) the obligation to make data available to public sector bodies sets a barre that may be too hard to meet and may hamper the usefulness of this provision.

Groza, Teodora and Botero Arcila, Beatriz, Comments to the Data Act from the Law and Technology Group of Sciences Po Law School (June 13, 2022).

Jennifer Brobst, ‘Vicarious Liability for Systemic Risks of Sexual Violence in the United States: Not a Modest Proposal’

The author considers the intractability of legal remedies to the public health crisis of sexual violence in the United States, including the criminal justice system and federal anti-discrimination laws. She proposes, instead, as a systemic solution to a systemic problem, continued support for common law agency and tort theories of vicarious liability for businesses, municipalities, and the many leaders who create the spaces where sexual violence persists. Analysis includes a focus on the heightened duty of protection placed on common carriers, such as taxis and trains, and recent litigation in several states challenging the economically-motivated statutory exemptions for rideshare companies, despite the risk of sexual violence inherent in this mode of transportation.

Brobst, Jennifer A, Vicarious Liability for Systemic Risks of Sexual Violence in the United States: Not a Modest Proposal (June 16, 2022), 99 University of Detroit Mercy Law Review 233 (2022).

Geiger and Jütte, ‘The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law’

Research is essential for scientific, cultural, and social advancement and will be crucial for the economic and societal recovery in a post-pandemic world. Restrictions to access and use of information contained in copyright-protected expression however can constitute significant hindrances to conducting research efficiently, especially since modern research methods rely on accessing, storing and processing large amounts of digitized data. Over the last decade, copyright in the European Union (EU) has undergone a process of constitutionalization, which saw a growing importance of fundamental rights arguments in policy- and law-making, as well as in the jurisprudence of the Court of Justice of the European Union. However, research, as an activity that is indispensable to achieve the aims and objectives of the Union to enable technological, scientific, and cultural progress and work towards a sustainable future, has insufficiently featured in this constitutional discourse. The digital environment and its tremendous potential to enable new forms of research has accentuated the urgency of addressing the issue from a constitutional perspective under the heading of ‘digital constitutionalism’. It is therefore argued that a ‘right to research’ derived from international and European human and fundamental rights law can play an important role in the future to remove copyright barriers to research activities and to inform reforms towards more sustainable and research friendly copyright laws in the EU. Although a ‘right to research’ is not expressly included in any of the relevant human rights and fundamental rights instruments, it is so implicitly: in fact, the seeds of a right to research are already contained in a variety of fundamental rights at European and international level and in the aims and objectives of the Union’s constitutional order. Based on the relevant fundamental rights, this paper tries to identify the substance of the right to research, arguing that there is a constitutional imperative to create a paradigmatic shift in European union copyright law towards a copyright system that can help to achieve the programmatic goals of the Union such as sustainable development, innovation and justice that are the core of a regulated market economy. In order to help positioning research as a core priority of the European Union, this paper further proposes the introduction of a specific right to research in the Charter of Fundamental Rights of the EU as a precondition for the protection of the moral and material interests of creators, thus mirroring the international human rights justifications of copyright protection.

Geiger, Christophe and Jütte, Bernd Justin, The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law (June 19, 2022), forthcoming in Intellectual Property Rights in the Post Pandemic World: An Integrated Framework of Sustainability, Innovation and Global Justice (Taina E Pihlajarinne, Jukka Mähönen and Pratyush Upreti eds), Cheltenham, UK / Northampton, MA, Edward Elgar Publishing, 2022.

Fraser, Snoswell and Simcock, ‘AI Opacity and Explainability in Tort Litigation’

A spate of recent accidents and a lawsuit involving Tesla’s ‘selfdriving’ cars highlights the growing need for meaningful accountability when harms are caused by AI systems. Tort (or civil liability) lawsuits are one important way for victims to redress such harms. The prospect of tort liability may also prompt AI developers to take better precautions against safety risks. Tort claims of all kinds will be hindered by AI opacity: the difficulty of determining how and why complex AI systems make decisions. We address this problem by formulating and evaluating several options for mitigating AI opacity that combine expert evidence, legal argumentation, civil procedure, and Explainable AI approaches. We emphasise the need for explanations of AI systems in tort litigation to be attuned to the elements of legal ‘causes of action’ – the specific facts that must be proven to succeed in a lawsuit. We take a recent Australian case involving explainable AI evidence as a starting point from which to map contemporary Explainable AI approaches to elements of tortious causes of action, focusing on misleading conduct, negligence, and product liability for safety defects. Our work synthesizes law, legal procedure, and computer science to provide greater clarity on the opportunities and challenges for Explainable AI in civil litigation, and may prove helpful to potential litigants, to courts, and to illuminate key targets for regulatory intervention.

Henry Fraser, Aaron J Snoswell and Rhyle Simcock, AI Opacity and Explainability in Tort Litigation, in 2022 ACM Conference on Fairness, Accountability, and Transparency (FAccT ’22), June 21–24, 2022, Seoul, Republic of Korea, https://doi.org/10.1145/3531146.3533084.

O’Byrne and Levin, ‘It Shouldn’t be Small Potatoes: The Future of Civil Damage Awards under Canada’s Personal Information Protection Legislation. Part Two: Inadequate PIPEDA Damages and the Way Forward’

The Personal Information Protection and Electronic Document Act (PIPEDA) is well known as federal legislation governing the protection of personal information in the private sector. This article, published over two parts, focusses on a lesser explored but particularly concerning aspect of PIPEDA, namely the low damage awards (averaging between $3,000 to $5,000) granted by courts to applicants who establish a breach of the Act and the low number of actual applications (24 applications in 20 years). Chronically low monetary awards threaten PIPEDA’s legislative objective of recognizing the individual’s right of privacy in their personal information. As the low number of applications reflect, when it makes no economic sense to do so, otherwise deserving complainants will be discouraged from seeking damages or simply driven to pursue solutions such as class actions. PIPEDA’s damage provision thereby stands to wither away from disuse.

This article offers a three-fold solution to insufficient quantum and is inspired more generally by the functional approach to monetary damages presented by Justice Cromwell in an Isaac Pitblado lecture. First, damage quanta under PIPEDA must more rigorously reflect the status of personal information protection legislation, including its constitutional overlay and link to what have been termed ‘dignitary’ torts such as the common law privacy torts and defamation. Second, courts should measure quantum based on insights from torts closely related to breach of privacy under PIPEDA which reflect a higher quantum. Third, courts must firmly reject the Federal Court’s 2010 decision in Randall v Nubody’s Fitness Centres which held that damages under PIPEDA are only recoverable in ‘the most egregious situations’. Egregiousness is not an ingredient required by the Act and wrongly reduces its scope.

O’Byrne, Shannon and Levin, Avner, It Shouldn’t be Small Potatoes: The Future of Civil Damage Awards under Canada’s Personal Information Protection Legislation. Part Two: Inadequate PIPEDA Damages and the Way Forward (June 17, 2022). Forthcoming in the June 2022 issue of The Advocates’ Quarterly.

See also: O’Byrne and Levin, It Shouldn’t Be Small Potatoes: The Future of Civil Damage Awards Under Canada’s Personal Information Protection Legislation. Part One: The Nature and Enforcement of the Privacy Interest under PIPEDA (21 March 2022).

Cheong and Lee, ‘Rectification of Contracts Arising from Common Mistake: Sun Electric Pte Ltd v Menrva Solutions Pte Ltd [2021] 5 SLR 648′

This case note discusses the decision of the High Court in Sun Electric Pte Ltd v Menrva Solutions Pte Ltd [2021] 5 SLR 648 which originated from a contractual dispute between two companies that eventually claimed against each other for, inter alia, breach of contract. The decision illustrates the current Singapore position on rectification of contracts arising from common mistake and how the courts assess if the remedy ought to be granted. This note also discusses the ambiguity in the local application of rectification concepts, particularly in the area of common law rectification, and highlights the need to take into account the Evidence Act 1893 (2020 Rev Ed) when considering the applicability of common law concepts derived from foreign jurisdictions such as England.

Cheong, Ben Chester and Lee, Lidie Lydia, Rectification of Contracts Arising from Common Mistake: Sun Electric Pte Ltd v Menrva Solutions Pte Ltd [2021] 5 SLR 648 (June 10, 2022). Singapore Academy of Law Journal (SAcLJ) 2022.

Idris Adisa Odekunle, ‘Effect of Adverse Possession of Registered Land’

The operation of the doctrine of adverse possession particularly to registered land has been variously interrogated especially in its capability of defeating the notion of indefeasibility of title which is a fundamental characteristic of land registration, conflict with property right, unfairness and unjustness of it, and in terms of economic problems associated with it. The problems have sparked up waves of reform of the doctrine across jurisdictions and works by various scholars tailored towards eliminating or at least reducing the effects of the operation of the doctrine to registered land. This work, using the doctrinal methodology advances the arguments on effects of adverse possession of registered land and finds that adverse possession of registered land is unjust and unfair to registered land owners, incompatible with the concept of indefeasibility of title and conflicts with the concept of property right. The work recommends the application of restitution principle founded on unjust enrichment to the operation of adverse possession as a workable solution to deal with the negative effects of adverse possession of registered land in order to adequately protect the interest of registered land owners.

Idris Adisa Odekunle, Effect of Adverse Possession of Registered Land (2022) 4 International Review of Law and Jurisprudence (1).

Buckley and Jevglevskaja, ‘Australia’s Consumer Data-Sharing Regime: A World-Leading Reform’

The Consumer Data Right (‘CDR’) regime introduced in Australia in 2019 is worldleading and could promote much-needed competition in major sectors of the economy and reinvigorate a waning commercial morality. As with virtually all potentially transformative innovations, however, the challenges are many and, in this case, include the need to rigorously protect consumer data without imposing regulatory burdens that could deter new market entrants. The success of CDR will require a careful and ongoing balancing of risks and benefits. We analyse its extraordinary potential and argue for nuanced regulation and timely and extensive consumer education by government and industry.

Buckley, Ross P and Jevglevskaja, Natalia, Australia’s Consumer Data-Sharing Regime: A World-Leading Reform (January 1, 2022). University of New South Wales Law Journal, forthcoming, UNSW Law Research Paper No 22-2.

‘Bringing the Fiduciary Back In’

David Kershaw, ‘Delaware’s Fiduciary Imagination: Going Privates and Lord Eldon’s Reprise’, 98 Washington Law Review 1669 (2021). Wisdom sometimes is best recognized by a traveler. In ‘Delaware’s Fiduciary Imagination: Going Privates and Lord Eldon’s Reprise’, Professor David Kershaw of the London School of Economics revisits cases that we know very well, putting them in the context of British decisions, and elicits a distinction that appears obvious, yet comes as a bit of a surprise: There is a distinction between abuse of power and abuse of influence. These are two ideal types of the ‘source of obligation’ for fiduciaries … (more)

[Robert Rosen, JOTWELL, 22 June]