Volume 2, Issue 3
In a time of authoritarian impulses, rampant wealth inequality and a growing class of tech oligarchs, law reform takes on critical importance. In this edition of the Faculty of Law SSRN e-journal we have included a host of papers dealing with questions of how the law should be reformed in a variety of contexts: climate litigation, trade marks and freedom of expression, copyright and training artificial intelligence models, and the use of evidence in criminal proceedings.
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- Joshua Yuvaraj, Academic Editor
Wai 262 Response: Prioritising the Treaty Relationship to Design a Reconciliatory Procedural Framework
Jayden Houghton
(2024) 31 New Zealand Universities Law Review
Māori and the Crown are designing frameworks to address the Crown's breaches of its guarantee under Te Tiriti o Waitangi 1840 to allow Māori to exercise tino rangatiratanga (chiefly authority) over their taonga (tangible and intangible treasures), including mātauranga Māori (the body of knowledge originating from Māori ancestors, including the Māori worldview and cultural practices). This article argues that the substantive framework to address the Treaty breaches asserted in the Wai 262 claim should enable Māori and the Crown to reconcile on those breaches. The article also recommends that Māori and the Crown design the substantive framework in a reconciliatory procedural framework in which Māori and the Crown prioritise a renewed treaty relationship. It uses a Tullyesque approach to reconciliation to provide guidance for the design of such a procedural framework.
Deceit and the Creation of Life
Anna Broadmore
Kate Falconer, Kit Barker and Andrew Fell (eds) Life and Death in Private Law (Hart, 2024)
The purpose of this chapter is to demonstrate why judicial intervention in cases of reproductive deceit would be internally consistent with existing private law intervention into sexual relationships. It proceeds in five stages. First, the value of reproductive control is identified and compared to other interests that receive direct protection in private law. Second, the interest is extracted and distinguished from the interest in bodily integrity, and a remedial path to compensation identified through the tort of deceit. The third stage addresses the mantle of privacy and considers the circumstances in which courts are prepared to lift the mantle in order to remediate a wrong which occurs within our private lives. Fourth, the spectrum of conduct amounting to deceit is examined, and consideration given to whether private law should respond differently to different conduct falling within that spectrum. The final stage shifts attention to the interests of the child and considers whether these should trump remediation of the wrong that led to the child’s creation.
Opposite sides of the same coin: syndrome evidence, child abuse and the wrongful conviction of Peter Hugh McGregor Ellis
Carrie Leonetti
(2024) 31(4) Psychiatry, Psychology and Law
Introduction of evidence relating to the now-discredited behavioural-science syndrome known as 'child sexual abuse accommodation syndrome' in R v Ellis demonstrates the danger of syndrome reasoning in judicial fact finding. Comparable syndrome evidence is still used in the Family Court in the form of 'parental alienation syndrome'. Ellis should sound the death knell for all forensic applications of unreliable syndrome reasoning in the courts.
This submission to the Productivity Commission's request for information on whether changes are needed to Australia's copyright regime in response to the use of copyright-protected works to train artificial intelligence (AI) models, and whether a text and data mining exception should be inserted into the Copyright Act 1968 (Cth). The submission recommends the introduction of a moral right against an author's works being used to train AI models, further investigation of equitable remuneration for authorised use of works in this way, and that a TDM exception not be adopted. These recommendations are grounded in empirical evidence suggesting Australian creators are largely opposed to the use of their works to train AI models. Access to justice and creativity research provide frameworks by which this data is used to support the policy responses to the Productivity Commission's Interim Report.
Augmenting David's Slingshot: The Effectiveness of Unjustified Threat Provisions at Protecting Freedom of Expression
Rob Batty
Trade Marks and Freedom of Expression Workshop (UNSW)
Most trade mark disputes begin with a trade mark owner sending a cease and desist letter, and end with the recipient acceding to the demand to stop using an impugned sign. Where a trade mark owner’s cease and desist letter overreaches in its claim of infringement, this can be of concern from a freedom of expression perspective. In this chapter, I critically examine the statutory provisions in some British Commonwealth countries that provide for an “aggrieved” person threatened with an action for trade mark infringement to bring an action against the threatening party for an “unjustified threat”. I argue that the main benefit of such provisions is that they help create and express a norm against overreach in cease and desist letters. This norm is given some teeth by exposing trade mark owners to the risk of financial cost if they send an abusive cease and desist letter that overreaches. However, the norm additionally provides a valuable reference and rallying point. It expresses that such behaviour is unacceptable and provides something recipients of letters can point to in seeking to “push back” against threatening correspondence or by seeking to publicly “shame” those who abusively threaten infringement. Threat provisions also have drawbacks. In comparatively examining the sphere of operation of different threat provisions in British Commonwealth countries throughout the chapter, I also examine how certain jurisdictions have sought to mitigate such disadvantages and suggest potential solutions.
John Tiley and the Thunder of History
Michael Littlewood
Peter Harris and Dominic de Cogan, eds, Studies in the History of Tax Law, Volume 9, Bloomsbury, London, 2019, 55-91
The aim of this paper is twofold - first, to present a selective overview of the work undertaken in connection with the series of tax history conferences initiated in 2002 by the late Professor John Tiley and hosted by the University of Cambridge; and, secondly, to examine Joseph Schumpeter's claim that the 'thunder of history' can best be discerned by looking at taxation. In other words, the aim is to assess Schumpeter's claim by reference to the work of what might be called the Tiley School of Tax History.