Legal Realism

'The Legal Realists on Political Economy' by Dan Priel in (2024) Law and Social Inquiry (forthcoming) comments 

Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an “attack on the legitimacy of the market.” Other scholars challenged this view and argued there was no significant connection between legal realism and political economic ideas. I offer a corrective to both views. I first consider the work of five legal realists (Karl Llewellyn, Adolf Berle, William O. Douglas, Jerome Frank, and Thurman Arnold) and show that all held views that were well within the political-economic mainstream of their era, which did not challenge the legitimacy of market capitalism but wanted to see them better regulated. For many of them, there were important connections between their jurisprudential and political-economic ideas. I then turn to some neglected writings of Felix Co-hen, to show that he too saw a direct link between his legal and economic ideas. However, unlike the other legal realists discussed here, he was a radical critic of market capitalism. I use his political-economic writings for a reconsideration of his better known jurisprudential works. 

Identity

Mellor J in COPA v Wright [2024] EWHC 1198 (Ch) comments 

1. Dr Craig Steven Wright (‘Dr Wright’) claims to be Satoshi Nakamoto i.e. he claims to be the person who adopted that pseudonym, who wrote and published the first version of the Bitcoin White Paper on 31 October 2008, who wrote and released the first version of the Bitcoin Source Code and who created the Bitcoin system. Dr Wright also claims to be a person with a unique intellect, with numerous degrees and PhDs in a wide range of subjects, the unique combination of which led him (so it is said) to devise the Bitcoin system. 

2. Thus, Dr Wright presents himself as an extremely clever person. However, in my judgment, he is not nearly as clever as he thinks he is. In both his written evidence and in days of oral evidence under cross-examination, I am entirely satisfied that Dr Wright lied to the Court extensively and repeatedly. Most of his lies related to the documents he had forged which purported to support his claim. All his lies and forged documents were in support of his biggest lie: his claim to be Satoshi Nakamoto. 

3. Many of Dr Wright’s lies contained a grain of truth (which is sometimes said to be the mark of an accomplished liar), but there were many which did not and were outright lies. As soon as one lie was exposed, Dr Wright resorted to further lies and evasions. The final destination frequently turned out to be either Dr Wright blaming some other (often unidentified) person for his predicament or what can only be described as technobabble delivered by him in the witness box. Although as a person with expertise in IT security, Dr Wright must have thought his forgeries would provide convincing evidence to support his claim to be Satoshi or some other point of detail and would go undetected, the evidence shows, as I explain below and in the Appendix, that most of his forgeries turned out to be clumsy. Indeed, certain of Dr Wright’s responses in cross-examination effectively acknowledged that point: from my recollection at least twice he indicated if he had wanted to forge a document, he would have done a much better job. 

4. If Dr Wright’s evidence was true, he would be a uniquely unfortunate individual, the victim of a very large number of unfortunate coincidences, all of which went against him, and/or the victim of a number of conspiracies against him. 

5. The true position is far simpler. It is, however, far from simple because Dr Wright has lied so much over so many years that, on certain points, it can be difficult to pinpoint what actually happened. Those difficulties do not detract from the fact that there is a very considerable body of evidence against Dr Wright being Satoshi. To the extent that it is said there is evidence supporting his claim, it is at best questionable or of very dubious relevance or entirely circumstantial and at worst, it is fabricated and/or based on documents I am satisfied have been forged on a grand scale by Dr Wright. These fabrications and forgeries were exposed in the evidence which I received during the Trial. For that reason, this Judgment contains considerable technical and other detail which is required to expose the true scale of his mendacious campaign to prove he was/is Satoshi Nakamoto. This detail was set out in the extensive Written Closing Submissions prepared by COPA and the Developers and further points drawn out in their oral closing arguments.

Robots

'I, Robot have rights! Haven’t I? Conceptual and Normative Constraints on Holding Legal Positions' ( Lisbon Public Law Working Paper No. 2024-1) by Jorge Silva Sampaio comments 

This paper investigates whether AI robots can hold legal rights, exploring both conceptual and justificatory aspects of the issue. It distinguishes between two types of inquiries: conceptual (whether robots can have rights) and normative (whether they should). It argues that interest theories are more suitable for addressing the latter, while will theories may seem more suitable to the former but are limited in reaching necessary truths about rights. Grounded in the idea that legal positions are constituted by legal norms, the paper examines the relationship between will as intentional action, investigating its implications for determining who can hold legal positions and concludes that intentional action is necessary for legal positions involving action (e.g., duties, powers and liberties), while claim-rights or immunities can be conferred upon entities lacking this capacity. At the normative level, it explores reasons justifying the ascription of rights, focusing on the concept of interest. A suggested approach for the normative analysis required involves comparing robots’ interests with those of humans to justify their attribution of rights. 

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.