Volume 3, Issue 2

The impact of extreme power asymmetries has perhaps never been so keenly felt across the world, amidst war that holds the global economy hostage, the increasing encroachment of artificial intelligence and the rise of authoritarian governments. This edition of the Auckland Law School SSRN Research Paper Series features papers that explore this theme of power asymmetry in a variety of contexts: the asymmetry between government and citizenry as mediated by the ombuds office, the social minimum governing the way private law mediates relationships, the regulation of big technology companies in an  automated age, and the impact of healthcare data control.

I encourage you to explore these papers and other cutting-edge research at the University of Auckland’s SSRN Research Paper Series, featuring over 700 papers and abstracts.

- Joshua Yuvaraj, Academic Editor

Judicial Review of the Ombuds Office: Good for Administrative Justice?
Hanna Wilberg
Mark Aronson and Greg Weeks (eds) Controlling the Administrative State: Essays in Honour of Matthew Groves (Hart 2025)

Public sector Ombuds offices are an important part of the administrative justice system across common law jurisdictions today. They provide accessible and oft en effective recourse to persons who are aggrieved at public administrative decisions, and also broader systemic oversight of the conduct of public administration. But what happens when things go wrong  We can think of many examples. The Australian Ombudsman missed serious illegality in the infamous Robodebt scheme. A complainant may be aggrieved at their complaint being rejected at the initial triaging stage. An official may consider that they were wrongly criticised in an Ombuds office report. Should judicial review be available to address such issues? In some jurisdictions, the Ombuds office's work is protected by a privative clause. Should courts give any effect to such clauses? My frame of reference for addressing these questions is administrative justice. The question is what approach will promote good administrative decisionmaking, accessible and effective recourse for aggrieved individuals and effective implementation of the social objectives of administrative regimes. I propose a proportionality enquiry based on case law in other similar contexts. Applying that enquiry, I argue that, in terms of administrative justice, the disadvantages of judicial review of Ombuds office determinations outweigh the benefits in many contexts. Judicial review should be restricted or excluded in those contexts.

Feeding the Beast: Control of Healthcare Data as a New Indicator of Market Power?
Jaime King

As in nearly all aspects of modern life, artificial intelligence (AI) is poised to bring dramatic changes to healthcare. The literature has well documented the promise and perils of AI use in healthcare, yet few discussions consider the impact it will have on healthcare markets and competition. While the last two decades have seen the rise of healthcare systems and large national insurers as the dominant players in healthcare, we are now in the midst of a shift in power in healthcare markets from one focused on size and scope of health entities to one focused on information. Driven by the growing use of AI in healthcare, this shift has significant implications for antitrust enforcement and merger review which will require additional oversight to protect competition and consumers. The article proceeds in four parts. Part I will briefly review changes in healthcare markets and market power over the last twenty years. Part II analyzes the intersection of big data and AI with healthcare and illuminates the rise of information power. Part III considers the implications of this intersection for healthcare markets and consumers. Finally, Part IV provides some initial recommendations for expanded antitrust oversight including new notice and review requirements for partnerships, mergers, and acquisitions between healthcare and AI entities, expanded use of antitrust tools to address new cross-industry and market dynamics, and broader collaboration between governmental agencies to address quickly evolving AI capabilities. This article is a call for greater attention to and oversight of the rapid development of partnerships between industry giants in healthcare and technology to meet the demands for HealthAI and the implications these transactions have for competition, consumers, and the corporations that will hold our most intimate information.

Common law at the coal face: Smith v Fonterra and others
Vernon Rive
Camille Cameron, Patricia Galvão Ferreira and Riley Weyman (eds) Climate Change Litigation Cases in Context (Edward Eglar 2026)

Smith v Fonterra represents a pioneering attempt by a New Zealand Māori litigant to reshape tort law's engagement with climate harms, foregrounding indigenous legal perspectives and seeking to adapt longstanding common law tort doctrines to a 21st century context. Initiated by Māori climate leader Mike Smith, the case—still before the courts—seeks to hold corporate emitters liable for their contributions to anthropogenic climate change under the doctrines of public nuisance and negligence, and a novel ‘climate system damage’ tort. This chapter analyses the legal and normative contributions of the litigation, situating it within transnational developments in climate and tort law. It argues that whatever the ultimate outcome, the litigation serves a critical role in promoting corporate accountability and drawing attention to gaps in legal and political frameworks, thus contributing to more effective and equitable climate governance.

Delineating "Context of Use" for the Purposes of Trade Mark Infringement
Alexandra Allen-Franks
(2026) Intellectual Property Quarterly 1

The proposition that a judge should make a contextual assessment of the use of a defendant's sign for the purposes of assessing a likelihood of confusion for trade mark infringement under s.10(2) of the Trade Marks Act 1994 seems simple enough. However, as currently applied, "context" is a concept of potentially great breadth. This has negative consequences for proportionate justice. This discussion proposes therefore that the context of use of a defendant's sign should be conceptualised as including only those things close enough to the core of the defendant's sign to be consistently present with the sign and assumed to always be seen by the average consumer (an "irreducible core").

Dogs, Dons and Monkeys: Legal Liability for Domestic Animals
Warren Swain
Joe Sampson and Stelios Tofaris (eds) Essays in Law and History for David Ibbetson: Querella (Hart 2024)

Existing accounts of the history of liability of animals have tended to underplay the role of fault. Historically fault is a central component of liability. 

Private Law and the Social Minimum
Jodi Gardner
Oxford Studies in Private Law Theory Vol IV (Oxford University Press, forthcoming)

Unlike some areas of law, such as family and human rights law, it is often stated that private law should not care about the resources of the parties or consequences of the court’s decisions on their financial welfare. For example, in the arena of remedies private law is notoriously unconcerned with the impact of an award of damages on the individual defendant; they must place the claimant in the position they were before the harm occurred (in tort) or satisfy her expectations (in contract). In this sphere, the notion of justice at work is corrective justice. The approach taken is commonly justified on the grounds that concerns of poverty and financial hardship are matters for the State in its provision of welfare, or ones falling within the jurisdiction of insolvency processes and not the judiciary. This paper aims to challenge this belief, showing why private law can, and indeed should, care about these issues by highlighting the important role of the social minimum. There are three substantive sections. The first outlines the concept of the social minimum, including its definition and limits. The second shows how this concept is provided and maintained by the government. The third develops the relationship between the social minimum and private law. It highlights how judge-made law is already concerned with poverty and hardship by reviewing different cases in contract, tort, and property. This section finishes by sketching the benefits that flow from a more open and transparent recognition of the social minimum in judicial decision-making.

Reining in Big Tech Corporations: Why Platform Governance Requires Structural Regulation
Susan Watson
European Corporate Governance Institute Law Working Paper No 928/2026

This paper argues that modern corporations, particularly Big Tech Platform Corporations (BTPCs), should be understood not as private contractual arrangements but as artificial legal entities created and empowered by States. Through incorporation, corporations receive State-like attributes including perpetual existence, legal personhood, capital lock-in, and entity shielding, enabling them to accumulate and organise capital across time and space. The paper introduces the concepts of “Recursive Capital” and “Capital-Constituting Corporations” to explain how BTPCs extend beyond market participation to shape the very conditions under which economic activity becomes capitalisable. Drawing historical parallels with the English East India Company and Gilded Age monopolies, the paper contends that BTPCs now exercise infrastructural and governance power comparable to semi-sovereign actors. Existing antitrust and contractual theories are therefore inadequate. The paper concludes that platform governance requires structural regulation and a reassertion of democratic oversight to recalibrate the delegated powers States have granted corporations.

The Constitutionality of Class Inequality in Tonga: Fatai Helu and Paula Piveni Piukala v The Electoral Commission and Lord Nuku (AC 22/22) TOCA
Suliana Mone
(2025) 32 Comparative Law Journal of the Pacific 123

The case of Fatai Helu and Paula Piveni Piukala v The Electoral Commission and Lord Nuku (AC 22/22) TOCA examines the privileges accorded to nobles that are not available to the commoner class, specifically concerning being a candidate for a seat in Parliament. The ruling affirms that despite a constitutional guarantee of equality under the law for all classes, provisions that discriminate based on class will remain valid in Tonga.

L'affaire Fatai Helu and Paula Piveni Piukala v The Electoral Commission and Lord Nuku (AC 22/22) TOC, a permis à la Cour de statuer sur les privilèges accordés aux membres de la noblesse de Tonga dont ne beneficient pas les roturiers, en particulier celui de pouvoir se porter candidat à un siège de député au Parlement. Cette décision classes sociales devant la loi, les dispositions specifiques coutumieres qui discriminent certaines classes sociales demeurent en vigueur aux Tonga.