Crackers

In Dynamite Games Pty Ltd v Aruze Gaming Australia Pty Ltd [2013] FCAFC 96 the Federal Court of Australia Full Court (FCAFC) has dismissed the appeal by Dynamite Games, a gaming product developer, against the FCA decision that revoked its innovation and standard patents.

Those patents related to Dynamite's electronic gaming apparatus and systems which have novel features for 'enhancing gameplay interest'.

The FCAFC states that

This appeal concerns the validity and infringement of a standard patent and an innovation patent relating to electronic gaming machines. The primary judge found the claims of both patents invalid in that they did not contain any inventive or innovative step (as applicable to the patent). As a result, the primary judge discussed but did not decide the other issues in the matter which were rendered hypothetical by his conclusions about lack of any inventive or innovative step. See Dynamite Games Pty Limited v Aruze Gaming Australia Pty Limited [2013] FCA 163; (2013) 100 IPR 86. 

The appellant, Dynamite Games Pty Ltd, contends that the primary judge erred in concluding that the patents lacked any inventive or innovative step as required. According to Dynamite, as the primary judge had not determined any of the other issues, including infringement, the appeal should be allowed and the matter remitted for determination in accordance with law. 

The respondents, Aruze Gaming Australia Pty Ltd and related entities, contend that the primary judge’s conclusions about lack of inventive and innovative step, as required, are correct. Aruze also contends, by notice of contention, that the primary judge’s orders may be sustained on the other grounds which were discussed by the primary judge including that, even if valid, there was no infringement of the patents. 

It follows that if Dynamite’s appeal, which raises only the issues of lack of inventive and innovative step, is unsuccessful, the orders of the primary judge must stand.

The FCAFC held that, properly understood, the decision of the FCA did not incorrectly apply the obviousness test which was rejected by the High Court of Australia in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; (2002) 212 CLR 411; (2002) 194 ALR 485; (2002) 77 ALJR 398

In GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 102 the FCAFC states that

The applicant, GlaxoSmithKline Australia Pty Ltd (GSK) seeks leave to appeal from an interlocutory judgment restraining it from exploiting its proposed liquid dispensing apparatus consisting of a bottle, a bottle neck liner and a syringe. The apparatus was to be used in conjunction with a leading paediatric analgesic known as Children’s Panadol 1-5 years. The Court ordered that the application for leave to appeal be heard by the Full Court together with the appeal. The primary judge accepted the submissions of the respondents (Reckitt) that there was a sufficiently strong prima facie case that GSK’s apparatus infringed claim 1 of Australian Patent No. 2003283537 (the Patent) and that the balance of convenience favoured the grant of interlocutory injunctive relief. His Honour delivered ex tempore reasons on 17 July 2013 and ordered that GSK be restrained from exploiting this apparatus with regard to its Children’s Panadol 1-5 years product (Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 2) [2013] FCA 736 (Reasons 2)). 

This syringe is referred to as GSK’s “new” or “alternative” syringe which GSK agrees is a “design-around” the apparatus in claim 1 of the Patent. This followed the grant on 28 May 2013 of an earlier interlocutory injunction to Reckitt concerning GSK’s original syringe (Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd [2013] FCA 583 (Reasons 1)). 

Although GSK’s application for leave to appeal is directed to the second interlocutory injunction and some related procedural orders made by the primary judge on 8 July 2013 – and not to the first interlocutory injunction – Reasons 2 should be read alongside Reasons 1, because they overlap.

Rolls

Big Brother Watch in the UK has released a report on Democratic value: Exposing the scale of the commercial sale of the edited electoral roll [PDF].

The report explains the difference between the Edited and Full Electoral Register:

The electoral register is the list of everyone who is registered to vote in a local area. There are two versions of the register – the full version, and the edited version. Individuals’ details will appear on the full version of the register, but you can choose to have your details excluded from the edited version when registering. The full register is used for elections, preventing and detecting crime, and checking applications for credit. The edited register is available for general sale and can be used for commercial activities such as marketing. 

The Edited Elector Register was introduced in 2002. Since then it has become clear it serves little purpose for the general public, several organisations have called for it to be abolished and millions of people have sought to opt-out of the system. The financial amounts involved for the 307 councils who have sold their EER is not a vital revenue stream (revenue was £256k across all 307 authorities) while the role undermines trust in the electoral register, makes it less attractive to register to vote and creates additional paperwork for electoral staff. 

We believe the EER should be abolished. This is a view shared by the Electoral Commission, the Association of Electoral Administrators and the Local Government Association. .... 

Since the Edited Electoral Register (EER) was introduced in 2002 it has been a controversial addition to the Electoral Register (ER). Unlike the Full Electoral Register (FER), which is used for electoral, credit reference and other limited purposes, anyone can buy the EER. It is this indiscriminate availability that has led to derision of the register by industry bodies, MP’s and the electorate. For those who believe that the EER should be abolished, it is the general belief that the fact that it is used for purposes other than elections acts as a dis-benefit and disincentive to person’s wishing to register as an elector. As a consequence, this leads to a lack of accuracy and completeness in the register and inhibits with the democratic process. A recent survey carried out by the Local Government Association and the Association of Electoral Administrators found that almost nine in ten electoral officers surveyed believed that the practice of selling the electoral register discouraged people from registering to vote.  Persons that have failed to register have cited not wanting to receive junk mail, personal security, and identity fraud fears, among others as being reasons for not registering. From this there is little doubt that if the ER was for exclusively electoral purposes, more people would register. Very limited public opinion research is available, but a MORI survey carried out for the Electoral Commission in 2003 found 79% of people were unaware of the provision allowing people to opt-out of the edited version when they register to vote. n addition, a qualitative research study from 2004/05 found that the level of awareness of the difference between the FER and the EER was low.

The report features the following findings regarding the period from 1 May 2007 to 1 May 2012 -

• At least 307 councils have sold information from the edited register over the five years covered by the report 
• There have been at least 2,742 sales of the edited register over the five years 
• Sale of the edited register amounted to at least £265,161.21. 
• The council with the most buyers was Westminster, which sold it 93 times 
• Four councils sold the edited register to more than 50 buyers 
• 19 councils sold the edited register to between 25 and 49 buyers o
• Very few people are aware they are able to permanently opt-out of the edited register. For example, 66,747 people (47.02%) chose to opt-out in Westminster in 2012, but none have chosen to do so permanently. 

Big Brother Watch comments that

The sale of personal information by public authorities, particularly for marketing purposes, is something that should never be routine. It undermines trust and confidence in the wider public sector’s ability to protect people’s privacy and potentially deters people from engaging in a critical part of our democracy. 

If the EER is to be retained, at the very minimum, the Cabinet Office should allow councils to include a permanent opt-out option on the electoral registration form, something currently not possible due to statutory provisions and the threat of legal action against councils doing so without a prior statutory change. 

Some councils, for example York, are trying to take steps to make it easier to exercise the permanent opt out and they should be applauded for these efforts. However they are forced to pursue this contrived effort because of the limits of existing legislation. Reform of this legislation should be a priority if the edited roll is to remain.

It consequently offers the following recommendations

• The edited register should be abolished.We wholly agree with the Electoral Commission, the Local Government Association and The Association of Electoral Administrators that the edited register should be abolished. We believe that the existence of the edited register impacts on election participation as people are concerned about their personal information being shared for marketing purposes and undermining trust in the electoral registration system.
• If the edited register is to remain, it should either be opt-in or at a minimum councils should be able to offer the permanent opt-out on registration forms. Polling shows 79% of people are unaware that they were able to opt-out of the EER. This is also reflected in the evidence that councils with more than 50,000 people opting out on an annual basis rarely see anyone opting out permanently. However, as this would require legislative change, an interim solution would be for the Electoral Commission to issue new guidance making clear councils can and should inform electors of the Section 11 permanent opt-out.

It suggests that

The Individual Electoral Registration (IER), will give people more control over whether to remain on the EER. Presently, whoever fills out the registration has control. The IER will allow voters to individually choose from themselves whether they want Electoral Registration Officers (ERO) to be able to sell their information to third parties in the form of the EER. ERO’s have a big part to play in the promotion of transparent and fair electoral practices, including the sharing of voter’s information. It should be every ERO’s responsibility to ensure that balances, consistent guidance is produced and issued to voters before they make the decision as to whether to be added or remain on the EER. The fact that voters have to re-state their choice every year and are not asked if they would like to permanently opt-out only undermines the ability of voters to exercise control over their personal information.

Innovation Indices

The 417 page Global Innovation Index report from INSEAD, the World Intellectual Property Organization and Cornell University states - whodathunkit - that "innovation is alive and well".

The Report offers metrics for innovation by country and discusses regional hubs. It's a rather eclectic compilation that features indices such as

• YouTube video uploads
• Feature Films
• Royalties and License Fee Receipts
• Daily Newspaper Circulation
• Venture Capital Deals
• Expenditure on Education
• Press Freedom
• Scientific and Technical Publications
• Wikipedia edits [!]

The top ten countries (with Australia at 19) are:

• Switzerland 
• Sweden 
• United Kingdom 
• Netherlands 
• United States of America 
• Finland
• Hong Kong SAR (China) 
• Singapore
• Denmark
• Ireland

Among 'make of it what you will' metrics are -

• Iceland is number 1 for 'Number of national feature films produced per million population 15–69 years old'
• China is 1 for 'Creative goods exports (% of total goods exports)', followed by Slovakia
• Iceland is 1 for 'Wikipedia monthly page edits per adult (per population 15–69)'
• Cyprus is 1 for 'Domestic credit to private sector (% of GDP)' 
• Togo is 4 for 'venture capital per investment location: Number of deals (per trillion PPP$ GDP)'

The top 25 for 'university/industry research collaboration' are -

• 1 Switzerland
• 2 United Kingdom 
• 3 United States of America
• 4 Finland
• 5 Singapore
• 6 Belgium
• 7 Sweden 
• 8 Israel  
• 9 Qatar 
• 10 Netherlands 
• 11 Germany
• 12 Australia  
• 13 Ireland 
• 14 Canada 
• 15 Japan 
• 16 Luxembourg 
• 17 Malaysia  
• 18 Norway 
• 19 Iceland 
• 20 Denmark 
• 21 Austria 
• 22 New Zealand
• 23 Hong Kong (China)
• 24 S Korea
• 25 United Arab Emirates

No ranking by number of Eurovision winners, number of drug-free footballers and other desiderata.

Sexting

The brief report of the Senate Select Committee on Cyber Safety - Options for addressing the issue of sexting by minors states that

The evidence provided to the committee during this inquiry indicates that sexting has become a regular activity for many minors (young people aged under 18 years). The emergence of new technologies has facilitated the creation and transmission of sexual content through electronic media. 

Much of this activity takes place between consenting young people and is therefore relatively benign. However, in some instances, sexting activities are coercive, exploitative or undertaken with malicious intent. It was argued by many submitters that the current legislative framework requires review to ensure that consensual sexting is not captured by those laws targeting child pornography. Evidence was also received which supported the introduction of changes to effectively address non-consensual sexting. 

The committee considers that the evidence it received demonstrated the serious and complex nature of sexting by minors. However, given the short timeframe in which it has had to undertake this inquiry, the committee was unable to fully explore all the issues raised in the evidence. In particular, the committee considers that the suggestions made in relation to changes to Commonwealth laws including amendments to the child pornography laws and the introduction of a new offence for non-consensual sexting require further, in-depth consideration. 

In addition, some submitters called for the creation of a national digital communications tribunal. The committee considers that further work is necessary to determine whether such a body could effectively provide access to remedies other than those that are already available under the current regulatory framework. 

The committee therefore considers that an inquiry into options for addressing the issue of sexting by minors be re-referred by the Senate in the 44th Parliament in order to investigate and deliberate further on the matters raised in evidence.

The report quotes a submission by Bruce Arnold and Benjamin Smith.

Policing, Parody and Productivity

There are some law enforcement ideas that are just so wrong it is hard for a legal analyst to know where to start in critiquing the nonsense.

The SMH reports - accurately or otherwise - on a proposal by controversial Liberal Party candidate Ray King for what the Herald characterises as "a radical new policing system in which criminal suspects would be injected with satellite-trackable microchips shot from a ''high powered sniper rifle''".

The supposed rationale for that stroke of genius is improving the "productivity" of the NSW Police Force.

King reportedly outlined his ideas in a 12 page paper 'Microchipping of human subjects as a productivity enhancement and as a strategic management direction of NSW Police' for a NSW  police leadership conference last year. Sadly, the paper doesn't appear to be publicly available but would appear to be a hoot and - if not meant to be tongue in cheek - poses some questions about the mindset of senior NSW Police officers.

The SMH quotes King as stating that -

 What has limited our effectiveness for decades has been the restriction on how police obtain information and having to prove before courts that we have acquired our information by legitimate means. What I propose and will endeavour to convince the reader of, is the implementation of microchip technology similar to that used in controlling the activity of domestic animals, will quantifiably enhance the success of law enforcement.

and that

I'm an advocate for this type of technology. I think we need to explore the use of microchips to help put criminals behind bars.

King is reported to have identified a Danish company - Empire North - as having patented the ''ID Sniper Rifle'' as the ''long-distance injector'' of the microchip. The SMH cruelly suggests that the company in fact does not exist, with the implication being that the ID sniper rifle  to be wielded by NSW cops is merely a feature of a Danish sci-fi docu-drama titled Empire North.

A superficial search of the net - and even of Wikipedia - would have revealed that the patented and trademarked rifle is a hoax, albeit one that's been embraced by the technologically illiterate and paranoid.

One fan site burbles

What is the ID SNIPER rifle?

It is used to implant a GPS-microchip in the body of a human being, using a high powered sniper rifle as the long distance injector. The microchip will enter the body and stay there, causing no internal damage, and only a very small amount of physical pain to the target. It will feel like a mosquito-bite lasting a fraction of a second. At the same time a digital camcorder with a zoom-lens fitted within the scope will take a high-resolution picture of the target. This picture will be stored on a memory card for later image-analysis.

Why use the ID SNIPER rifle?

As the urban battlefield grows more complex and intense, new ways of managing and controlling crowds are needed. The attention of the media changes the rules of the game. Sometimes it is difficult to engage the enemy in the streets without causing damage to the all important image of the state. Instead EMPIRE NORTH suggests to mark and identify a suspicious subject on a safe distance, enabling the national law enforcement agency to keep track on the target through a satellite in the weeks to come.

Let's unpack this. A chip that when shot from "long distance injector" (ie a rifle) causes the same sensation as a mosquito bite, presumably so little distress that the recipient isn't alerted and thus doesn't reach for tweezers, scissors, scalpel, pocket knife or other tool for removing the bug? It's a magic chip, apparently, one that doesn't bounce off the individual's skin or collar or cuffs. (Presumably we are not relying on productivity-obsessed NSW police officers hiding in the bushes near swimming pools with blowpipes or lurking in bathrooms for that moment when the suspect momentarily exposes their buttocks as a target for insertion of the chip.) A magic chip, indeed, that can apparently be tracked directly by satellite, in disregard of the physics for most RFIDs.

Given Mr King's reported enthusiasm for the magic chip I wonder why we need to rely on sniper rifles. Why not slip the chip into the baddies' milkshakes and hamburgers and muesli and pizza? Why not chip everyone, just like cats and dogs?

Apart from the zany misunderstanding of the technology, King's apparent misunderstanding of the law is either amusing or worrying. It is unclear who he regards as a suspect and whether his vision of improved "productivity" would be underpinned with special legislation. Would it be an offence to take your tweezers and remove the chip once you realised that you'd been stung by the NSW Police rather than a bee or mosquito? Would you have a claim when the chip - oops - was injected into an ear or ear and caused damage there or migrated to your heart or brain? You are, after all, a suspect rather than a convicted person and Australian law has not embraced the notion that either suspects or convicted people can be legitimately turned into pincushions by police with sniper rifles. Would the NSW Police pay for surgical removal of the chip once you were no longer a suspect?

The reporting is one of the more entertaining features of the election, along with the candidacy of a religious figure who appears to have claimed to brought three people back from the dead through healing powers. An earlier figure more modestly confined himself to resurrection of only one man, by the name of Lazarus (John 11: 13-44). It is impressive that in our age of "productivity" a pastor can bring the dead back to life on several occasions, although thousands of grieving parents, partners and children might ask why he is being selective and not resurrecting their loved ones.

Money

Two pieces by Frank Pasquale -

'Privacy, Antitrust, and Power' in (2013) 20(4) George Mason Law Review 1009 comments

When a dominant Internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level.

To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how it is using that information, to whom it is selling the data, and how it maintains the security of the data. Surveillance of these dominant firms’ practices could also allay fears of venture capitalists and innovators (who are loath to enter online markets knowing that a dominant firm could effectively cut off their air supply on a whim).

Monitoring should do to leading Internet companies what they do to their users each day: systematically study, categorize, and characterize their behavior. Routinely making information available about data collection will help develop the infrastructure and analytics necessary to bring antitrust enforcement into the twenty-first century by promoting rapid understanding of the corporate actions underlying complaints.

Rather than relying on antitrust law to promote the development of rivals to dominant Internet firms, we should rely on monitoring of data practices to help authorities regulate dominant firms. Only then can the FTC, DOJ, and other antitrust enforcers assure that companies that occupy such commanding heights in the Internet ecosystem do not treat firms operating in adjacent fields in an anti-competitive manner.

Pasquale's 'The Credit Scoring Conundrum' (University of Maryland Legal Studies Research Paper No. 2013-45) notes that

A bad credit score may cost a borrower tens of thousands of dollars, but it is not clear how it is calculated. The formula is a trade secret, immune from scrutiny. Lenders are moving beyond scoring to “credit analytics,” which tracks a consumer’s every transaction. Buy generic products instead of branded ones, and you may find your credit card’s interest rate rising and its limit falling.

This essay critiques automation in the consumer-facing side of the finance industry. Reputation systems are creating new (and largely invisible) disadvantaged groups, disfavored due to error or unfairness. You may be one of those affected, labeled in a database as “unreliable,” “high medical cost,” “declining income,” or some other derogatory term. Since it is nearly impossible to find out exactly how one has been categorized by data brokers and other information collectors, those disadvantaged by secret, automated processes can’t even organize for better treatment. This essay documents their plight, and how current law fails to help. I propose new principles to guide the Consumer Financial Protection Bureau, the Federal Trade Commission, and other regulators as they address the growth of unaccountable financial data sources.

Indescendibility

'Indescendibility' by David Horton in (2014) 102 California Law Review comments that

 Supposedly, one of the most important sticks in the bundle of property rights is the power to transfer an asset after death. This Article explores objects and entitlements that defy this norm. Indescendibility — property that cannot be passed by will, trust, or intestacy — lurks throughout the legal system, from constitutional provisions barring hereditary privileges, to statutes that prohibit decedents from bequeathing their valuable body parts, to the ancient but misty doctrine that certain claims do not survive the plaintiff, to more prosaic matters such as season tickets, taxi cab medallions, frequent flier miles, and social media accounts. The Article first identifies the common policy underpinnings of these diverse rules. It compares the related issue of market inalienability — property that can be given away but not sold — and concludes that indescendibility often serves unique objectives. In particular, forbidding posthumous transfer can avoid administrative costs. The Article then uses these insights to propose reforms to the descendibility of body parts, causes of action, and items made non-inheritable by contract. ... 

Indescendibility pops up throughout the legal universe. For instance, the U.S. Constitution and several of its state counterparts abolish the British custom of allowing noble titles and governmental positions to be inherited. Likewise, the Uniform Anatomical Gift Act (UAGA) prohibits decedents from transferring their organs and other human tissue: assets which can be worth hundreds of thousands of dollars. Similarly, under the ancient but troublesome doctrine of abatement, an array of legal claims do not survive the plaintiff, including allegations of defamation, personal injury, and constitutional violations under 42 U.S.C. § 1983 and Bivens. Finally, an expanding web of fine print prohibits the posthumous transfer of season tickets, frequent flier miles, and digital assets like email and social media accounts.

This Article explores this neglected room in the cathedral of private ordering. It begins by gathering and then critiquing the leading justifications for why we sometimes deny owners the ability to transfer assets after death. For starters, some courts, lawmakers, and commentators have assumed that indescendibility is simply a posthumous version of market inalienability: property that can be given away but not sold. Conversely, I argue that the policy foundations of market inalienability often do not apply to indescendibility. Consider human tissue, which is both market inalienable and indescendible. Policymakers exempt organs and similar biological resources from bargained-for exchanges to spare low-income individuals from pressure to enter into transactions they may later regret. Yet not only is such paternalism out of place in wills and trusts law—the dead do not experience regret — but the indescendibility of body parts disproportionately impacts poor families. Likewise, non-commodification rhetoric also drives the market inalienability of the human anatomy: perhaps allowing people to treat their bodies like the junk in their attic would coarsen our sense of what it means to be human. But again, this argument is much weaker when applied to the newly deceased, who are on the verge of being buried or cremated. Thus, indescendibility can be more difficult to justify than market inalienability.

Another common rationale for indescendibility is that a decedent cannot transfer certain things because they are “not property.” Again, body parts are the prime example, although the same logic explains why certain legal claims do not survive the plaintiff, and why a growing number of companies inform consumers that everything from points in loyalty programs to personal seat licenses to virtual currency is “not your property.” But because “property” is merely a label for a bundle of rights—including the power to transmit an item after death—the not property rationale is a spectacular circle. To say that something cannot be passed after death because it is not property does not address why the thing should not be descendible; instead, it cycles straight from the fact that the thing “is not property” to the conclusion that “[o]nly property . . . is descendible.”

Indescendibility also stems from the intuition that particular rights are too “personal” to pass to a decedent’s heirs and beneficiaries. For centuries, the abatement doctrine required judges to dismiss tort claims when the plaintiff died. The idea was that lawsuits for physical injuries were intimately tied to the plaintiff and thus should not enrich her loved ones. Today, every state has modified the abatement rule by passing a survival statute. But rather than clarifying matters, these wildly-divergent laws have only codified the confusion that existed at common law. In fact, some survival statutes been struck down for lacking a rational basis under the Equal Protection Clause—a testament to the bankruptcy of the “personal” logic. Indeed, the fixation on the plaintiff’s stake in the lawsuit was never a deliberate policy choice; instead, it reflected seventeenth-century judges’ conflation of tort and criminal proceedings.

After challenging these oft-cited justifications for indescendibility, I offer a qualified defense of the phenomenon. I contend that barring posthumous transfer can prevent what I call “administrability” problems. Allowing certain objects or entitlements to be inherited would create substantial management costs. For instance, because a decedent’s body parts must be harvested mere hours after her death, including them in her estate would require expensive medical procedures followed by a mad scramble to find transplant recipients. Likewise, descendible future causes of action, such as the right to sue for defamation of the dead, would saddle personal representatives with a duty of eternal vigilance: failing to pursue valid claims would expose them to liability for breach of fiduciary obligation, and distributing damage awards would grow harder as time passes and lines of consanguinity splinter. Some of these costs, such as the burden on the legal system of perpetual rights, are garden-variety negative externalities, and tip the scales toward stripping decedents of the power to transfer. At the same time, though, the majority of these expenses, such as organ harvesting and higher fiduciary fees, would be paid out of the estate. Arguably, then, decedents should be free to incur them in return for the benefits of inheritability. But here a unique aspect of wills and trusts law enters the equation. Succession is mandatory: once something is descendible, it must be passed on. Even decedents who would prefer not to transfer a descendible item—for example, people who object to organ harvesting on spiritual grounds, or whose bodies are worth less than the harvesting fees—would not be able to escape inheritance’s gravitational pull. Partial indescendibility can therefore be appropriate for assets that some decedents would strongly object to conveying.

Finally, I bring these insights to bear on three examples of contemporary indescendibility. First, I argue that although body parts should not be indescendible for the same reasons they are market inalienable, administrability costs counsel against making human tissue fully descendible. Thus, I propose that states be allowed to experiment with clear statement regimes that allow decedents to signal their wish to have their organic matter sold for the benefit of their loved ones. Second, I urge lawmakers to abolish the abatement doctrine—a relic that serves no purpose—and deem all existing causes of action to be assets of a decedent’s estate. Third, I explain how defining the contours of “pure” indescendibility can be helpful for the nascent problem of indescendibility by private agreement. Although virtually every issue in this area is unsettled, the unconscionability doctrine and the implied covenant of good faith and fair dealing are likely to emerge as the primary checks on non-inheritability clauses. These black-letter contract principles are heavily influenced by the reasonableness of consumers’ expectations and drafters’ motivations for deleting rights. By exploring these issues in the context of “pure” indescendibility, I hope to begin the conversation about limits on indescendibility by contract.

The Article contains three Parts. Part I introduces the overlooked phenomenon of indescendibility, focusing on constitutional provisions that prohibit hereditary privileges, statutes that bar decedents from conveying their body parts, legal claims that expire when the plaintiff dies, and the emerging area of contractually-mandated non-inheritability. Part II collects and criticizes the justifications that policymakers, courts, and scholars have offered for eliminating a decedent’s power to transmit property. Part III contends that indescendibility can be best understood as an attempt to limit administrability costs. It then uses this analysis to suggest reforms to the inheritability of body parts, causes of action, and rights made indescendible by fine print.