Emergencies, labels and restraint

Heydon J in Pape v Commissioner of Taxation [2009] HCA 23 at [551] quipped: 

 The truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought. Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions. Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use. The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste.”

Regulation

'A Robust Governance for the AI Act: AI Office, AI Board, Scientific Panel, and National Authorities' by  Claudio Novelli,  Philipp Hacker,  Jessica Morle, and  Luciano Floridi comments 

Regulation is nothing without enforcement. This particularly holds for the dynamic field of emerging technologies. Hence, this article has two ambitions. First, it explains how the EU´s new Artificial Intelligence Act (AIA) will be implemented and enforced by various institutional bodies, thus clarifying the governance framework of the AIA. Second, it proposes a normative model of governance, providing recommendations to ensure uniform and coordinated execution of the AIA and the fulfilment of the legislation. Taken together, the article explores how the AIA may be implemented by national and EU institutional bodies, encompassing longstanding bodies, such as the European Commission, and those newly established under the AIA, such as the AI Office. It investigates their roles across supranational and national levels, emphasizing how EU regulations influence institutional structures and operations. These regulations may not only directly dictate the structural design of institutions but also indirectly request administrative capacities needed to enforce the AIA.

'The False Choice Between Digital Regulation and Innovation' by Anu Bradford in (2024) 118(2) Northwestern University Law Review comments 

 This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. US lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution of the tech economy towards European values around digital rights and fairness. According to the EU’s critics, this far-reaching tech regulation has come at the cost of innovation, explaining the EU’s inability to nurture tech companies and compete with the US and China in the tech race. However, this Article argues that the association between digital regulation and technological progress is considerably more complex than what the public conversation, US lawmakers, tech companies, and several scholars have suggested to date. For this reason, the existing technological gap between the US and the EU should not be attributed to the laxity of American laws and the stringency of European digital regulation. Instead, this Article shows there are more foundational features of the American legal and technological ecosystem that have paved the way for US tech companies’ rise to global prominence—features that the EU has not been able to replicate to date. By severing tech regulation from its allegedly adverse effect on innovation, this Article seeks to advance a more productive scholarly conversation on the costs and benefits of digital regulation. It also directs governments deliberating tech policy away from a false choice between regulation and innovation while drawing their attention to a broader set of legal and institutional reforms that are necessary for tech companies to innovate and for digital economies and societies to thrive.

Parody

'The EU trade mark system’s lost sense of humour' by Sabine Jacques in (2024) 1 Intellectual Property Quarterly Journal 1 comments 

This article examines the use of EU registered trade mark signs by businesses, artists, advocacy groups, individuals, and politicians, with the aim of diverting these signs from their original meaning to create new expressions. Using empirical methods, the article evaluates how national courts handle trade mark parody cases, identifying instances of judicial pragmatism and highlighting remaining areas of contention. While some jurisdictions have introduced tests to safeguard parodic expressions, legal changes are incremental, necessitating further legislative intervention. Such intervention would contribute to the harmonisation goals within the European Union and demonstrate a stronger commitment to the right to freedom of expression. Finally, this article offers interpretative guidance for a fair and consistent treatment of humorous uses under trade mark legislation to ensure that the rights of trade mark holders and others’ interests are protected, whilst allowing true parodies and related genres to flourish.

Natural Law

'Natural Law with and without God' by Jonathan Crowe in (2024) 4 Australian Journal of Law and Religion 17 comments 

There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook. 

The natural law tradition in ethics, politics, and jurisprudence is widely associated with theistic authors such as Thomas Aquinas, who has been characterised as the paradigmatic natural law theorist. Several contemporary proponents of natural law theory, such as John Finnis, Mark Murphy, and Robert George, are also well known for their religious commitments (specifically, their Roman Catholicism). It is therefore perhaps unsurprising that natural law theory is widely viewed as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by critics who maintain that ethical, political, and legal theories should be acceptable to a range of religious and secular viewpoints. 

Natural law authors themselves differ on the role of theism within their theories. Theistic proponents of natural law take different views on whether their natural law views can be separated from their religious commitments. There are, roughly, three kinds of perspectives on this issue. Some authors maintain that natural law, being based on human rationality, is logically independent of theism. Some hold the contrary view that natural law is untenable outside a theistic framework. There is also a middle position: some authors maintain that natural law ideas, although logically independent of theism, cohere with it in such a way as to make both natural law and theism more appealing. I will ultimately defend a version of this third position in the present article. 

It is also important to note that the theological views of self-identified natural law authors are far from uniform. There is, as noted previously, a tendency for prominent defenders of natural law to be Roman Catholics, due no doubt in part to the long and venerable tradition of Catholic natural law thought and scholarship. However, Reformed natural law theories are currently undergoing a major revival. There are also some influential contemporary natural law authors who either prescind from theological positions or expressly situate their theories within an atheistic framework. 

This article explores the relationship between natural law theory and theism. I begin by discussing the characteristic features of the natural law outlook. I contend that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non- theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook.