Freakonomics: Scholarship in the Service of Storytelling

Freakonomics: A Rogue Economist Explores the Hidden Side ofEverything by Steven D. Levitt and Stephen J. Dubner is certainlypopular. Indeed, my search for something comparable took meback more than 120 years.¹ Even with the uncertainty about whatconstitutes a best seller, it is clear that the book has reacheda huge audience, especially for a book about "economics." AsI write this, it has been on the New York Times best-sellerlist for 46 weeks, and having started on the Publisher’sWeekly Hardcover Nonfiction best-seller list in the 12th positionon April 25, 2005, it has hovered in the top ten thereafter.Moreover, as reported on the Freakonomics web site, the bookhas garnered a large international audience, and the book ison various "best of" lists. Levitt and Dubner have sought abroad and diverse audience for their collection of stories:Levitt has been on "The 700 Club" (a talk show by conservativebusinessman and religious broadcaster Pat Robertson) and "TheDaily Show with Jon Stewart" (a center–left parody ofthe news and news reporting) among other places. Both the authorswrite a column for the New York Times Magazine as well as participatein an active blog (just navigate from the book’s web siteto the URL http://www.freakonomics.com, where, among other things,they respond to a large number of readers’ inquiries²).The book comes complete with more than 20(!) pages of referencesand citations as diverse as a radio talk show caller’sunverified claim that her niece was named "Shithead" (pronouncedSHUH-teed) as well as Kenneth Arrow’s "A Theory of Discrimination"and includes a two-and-a-half page tabulation of average yearsof mother’s education by child’s first name. Theextensive footnotes should not mislead: Freakonomics does nottake its subjects very seriously. In Freakonomics, Levitt’sscholarship and the scholarship of others are put in the serviceof telling a "good story" rather than the other way around.Indeed, if the many reviews of the book are any guide, manyfind the book "entertaining" even if they felt that "Levitt’sonly real message is to encourage confrontational questions"(Berg, 2005). One reviewer found the stories so compelling thathe went so far as to suggest that "criticizing Freakonomicswould be like criticizing a hot fudge sundae" (Landsburg, 2005).     

Claim construction and the extent of patent protection: A comparative analysis of the Phillips en banc Federal Circuit decision

Legal context. The United Kingdom's House of Loads in Kirin-Amgenand the United States Court of Appeals for the Federal Circuitin Phillips addressed similar issues with respect to the methodologyof claim interpretation and the fundamental rules and policiesfor determining the extent of patent protection. This articlewill review Phillips and Kirin-Amgen from the comparative lawperspective. It will compare the UK and US rules and patentpolicies with their German and Japanese counterparts, discussingthe bases for these differences and examining them from theperspective of patent policies, specifically with respect tofair protection and legal certainty. Key points. Despite the use of the same rule and methodology,legal commentators and patent professionals emphasize the differencesin the extent of patent protection in different jurisdictions.Such differences result from the availability of the doctrineof equivalents. For jurisdictions such as the UK, the US andJapan, where courts seldom apply the doctrine of equivalents,the differences result from the way in which the courts conductclaim construction. These courts use the perspective of a hypotheticalperson to support a broad or narrow claim construction, reflectingthe weight given to the competing patent policies. Practical significance. This article cites key cases for claimconstruction and the doctrine of equivalents in four major patentjurisdictions: the UK, the US, Germany and Japan. Knowledgeof the case law trends in these jurisdictions is essential fordrafting patents documents and enforcing patents.     

Can We Protect How We Do What We Do? A Consideration of Business Method Patents in Australia and Europe

In the long history of monopolies, business method patents area novel and recent edition. In the Digital Age, where time ismoney and speed is everything, innovative methods for undertakingbusiness are as important to a business as the products or servicesit provides to its clients. In recent years several reviews,conducted in both Australia and internationally,⁴ have questionedthe appropriateness of patenting business methods. This paperreviews the availability of business method patents in Australiain light of the 2006 decision of the Full Court of the FederalCourt in Grant v Commissioner of Patents,⁵ which confirmed theneed in Australia for a ‘useful product’ to issuefrom the working of a method (business or otherwise) in orderfor the method to be patentable. This paper will review argumentsboth criticising and defending business method patents and considerwhether business methods warrant special treatment.     

Comparative advertising and celebrity photographs--fair dealing under the CDPA 1988

Legal context. Legal context. This article reviews the conceptof ‘fair dealing’ under Copyright Designs and PatentsAct 1988, section 30. It does so in the context of to recentcases concerning the fair dealing defence, IPC Media Ltd v NewsGroup Newspapers Ltd and Fraser Woodward Ltd v BBC are considered. Key points. The traditional approach of courts to ‘fairdealing’ is based upon a number of ‘factors’considered relevant in determining whether a use of a copyrightwork is fair. The article argues that there are a number ofproblems with this approach. In particular, it claims that theapproach is unsystematic and rests upon a number of questionableassumptions. It suggests that the decision of Hart J in IPCMedia Ltd demonstrates these problems to a very significantdegree. In contrast, that of Mann J in Fraser Woodward Ltd provideswelcome guidance on the application of the concept of fairnessin certain cases. Practical significance. The criticisms made in this articlehighlight a number of discrepancies in the existing case lawand suggest a need for closer consideration and greater disciplinein decision-making in this area.     

Comment on Forni's "Using Stationarity Tests in Antitrust Market Definition"

Economic analyses of prospective mergers must typically be undertakenwith limited data. Often prices are the only available data,so it is tempting to use their time series alone. Certainly,simple and robust measures of the extent of the market basedon limited data would aid merger analysis immensely. However,a couple of examples show how Forni's suggested methodologycan lead one astray. Consider a differentiated products market with demand systemln D_i(p_i, p_j) = 1 – ln p_i + ln p_j, i, j = 1, 2, i j,with associated constant marginal costs c₁ = _t c, c₂     

Gaining confidence in the law of confidence

Legal context. The recent case of EPI v Symphony has left theUK law of confidentiality in an uncertain state: the extentto which recipients of confidential information may be permittedto ‘use’ mixtures of such information with publiclyavailable material remains unclear. The Court of Appeal in EPIfelt that it was hard to reconcile the principle that any claimin confidence must fail if the material in question is in thepublic domain with the ‘springboard’ doctrine; butis the distinction illusory? Key points. Issues raised in this case include considerationof what precisely is ‘use’ of confidential information,when mixed with public information, and whether a confider shoulddo more than rely on confidentiality obligations to protectthe fruits of his/her disclosures. This article asks how confidentialityobligations may be aligned with the control of statutory intellectualproperty rights. It considers whether the Court of Appeal inMarkem v Zipher has confused the issue and speculates as tohow far the general law of contract can assist the confider. Practical significance. Finally, this article discusses whichlegal tools will best assist the confider seeking to protectits intellectual property.     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.     

Inter Partes Proceedings and the Reform of the Community Trade Mark Implementing Regulation

Legal and practical context. Commission Regulation 1041/2005of 29 June 2005, which amends the Community Trade Mark ImplementingRegulation, entered into force on 25 July 2005. Substantialamendments are brought to inter partes proceedings, that isoppositions and applications in revocation or in invalidity,and appeal procedures. Key points. The rules governing the substantiation of the earlierrights and time limits are now stricter. Also, the new regimeaims at circumscribing the consequences of the rather broadinterpretation which the Court of First Instance gave over thelast two years to the notion of functional continuity betweenthe opposition division and the Boards of Appeal. Practical significance. The authors analyse the new provisionscontained in the Community Trade Mark Implementing Regulationin the light of the latest case law of the Court of First Instance,in order to provide practitioners with a simplified guide.     

Evaluating the Role of Brown v. Board of Education in School Equalization, Desegregation, and the Income of African Americans

The public profile of the Brown v. Board of Education decisiontends to overshadow the well-established fact that racial disparitiesin school resources in the South began narrowing 20 years beforethe Brown decision and that school desegregation did not beginon a large scale in the Deep South until ten years after theBrown decision. We instead view Brown as a highly visible markerof public policy’s mid-century reversal on matters ofrace. When we examine the labor market outcomes of male workersin 1990, we find that southern-born blacks who would have finishedtheir schooling just before effective desegregation occurredin the South fared poorly compared to southern-born blacks whofollowed behind them in school by just a few years, relativeto northern-born blacks in same age cohorts.     

Who controls the Naomi Campbell information flow? A practical analysis of the law of privacy

Legal context. The House of Lords held that the medical privacyof the glamorous supermodel Naomi Campbell was violated by publicationof details of her drug addiction treatment and a paparazzi picture.English law is developing under the influence of Article 8 (theright of privacy) and Article 10 (the right of freedom of expression)of the European Convention of Human Rights. The court explainedhow the action for breach of confidence protects privacy. So,who controls the Naomi Campbell information flow? Key points. Primarily, the courts control the flow of privateinformation. They do so through the cause of action of breachof confidence and remedies. In deciding liability, the courtsshould ask whether the benefit of publication is proportionateto the harm done by the invasion of privacy. To answer the question,they must balance the public interest in the right of privacyagainst the public interest in the right of freedom of expression.They may settle on a Reynolds type test by considering a numberof non-exhaustive factors. The article examines seven suggestedfactors and the remedies which can be deployed by the courts.Judgments from the English courts and the European Court ofHuman Rights are considered, including Campbell v MGN (HL),Douglas v Hello! (CA), McKennitt v Ash (HC), Peck v UK (ECtHR),Édition Plon v France (ECtHR), and Von Hannover v Germany(ECtHR). Practical significance. There are an increasing number of privacyclaims against the media. The article includes a checklist ofseven factors to help determine where the balance lies betweenprivacy and freedom of expression.     

The ongoing design duty in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd Casting the scope of copyright infringement even wider

The Australian Federal Court case of Universal Music AustraliaPty Ltd v Sharman License Holdings Ltd (‘Sharman’)¹is the latest in a series of peer-to-peer (P2P) filesharingcases from various jurisdictions that has found the softwaredistributor/technology provider liable for copyright infringement.² Sharman followed a few months after the groundbreaking US SupremeCourt case of MGM Studios v Grokster Ltd ³ (‘Grokster’)that had acknowledged the Sony safe harbour for technology providersbut also introduced an inducement of infringement doctrine todeal with reprehensible conduct of infringers. While both cases involved similar technology and shared a numberof similarities on the facts and legal principles⁴, a closerexamination of Sharman shows that the net of copyright infringementin P2P filesharing is cast wider than that in Grokster. The effect of Sharman is an increased burden on the technologyprovider and the potentially tremendous consequences on innovationdue to the lack of a clear safe harbour as well as the wideningof the design obligation.     

The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children?

The writings of Goldstein, Freud and Solnit, particularly someof the concepts they developed, have exercised a profound influenceon our thinking about children. A new, revamped, final, authoritativeedition presents the opportunity for critical re-assessment.The author finds a partial analytical framework, a dated imageof children, a narrow concept of children's rights, triggersfor intervention which leave children dangerously exposed and,above all, a sense diat events have moved on leaving the mostinfluential text of this generation firmly rooted in the ideas,problems and concepts of the last. The publication in one revised volume of the landmark trilogyof Beyond, Before and In¹ provides an excuse, if one were needed,to assess the impact and re-evaluate the arguments containedwithin the three monographs and now compressed and updated.Whether or not one agrees with all, or even any, of the ideascontained within Best Interests (as I shall now call the collection),and I shall criticize both applications and implications, theconcepts have impressed themselves, perhaps indelibly, on ourthinking about children. Like it or not, anyone thinking aboutchild law or policy, the relation between parents and children,the state and family, has to grapple with concepts like ‘leastdetrimental alternative’, the ‘psychological parent’,a child's sense of time and others of the rich ideas which permeateBest Interests.²     

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

This article aims to extract from the jurisprudence of the InternationalCourt of Justice a basic theory of legal effects of unilateralinstruments of international organizations in public internationallaw. These effects can be divided into three categories. Thefirst is substantive effects. These include binding, authorizingand (dis)empowering effects. The second category is causativeeffects, whereby determinations of fact or of law bring substantiveeffects into existence. The third category is modal effects– how and when the substantive effects come into existence(e.g. immediate or deferred, retroactive or non-retroactive,reversible or irreversible effect). Each of these categoriesof legal effects behaves differently according to whether theeffects are intrinsic or extrinsic. Intrinsic effects are basedon the special treaty powers of the United Nations SecurityCouncil and General Assembly. In this hypothesis, all threecategories of effects exist to the full extent that the explicitand implicit powers of the adopting body allow for them. Extrinsiceffects are directly based on general international law, inparticular on the rules of formation of customary internationallaw. Here, there are no causative effects. Substantive effectsdo not strictly speaking exist; only pre-substantive ones do.And modal effects are always immediate, non-retroactive andreversible.     

Navigating the rocky waters of trade mark law

Kerly's Law of Trade Marks and Trade Names, 14th Edition ByDavid Kitchin QC, David Llewelyn, James Mellor, Richard Meade,Tom Moody-Stuart, David Keeling; with Consultant Editor: TheRt. Hon Sir Robin Jacob; Sweet & Maxwell, 2005 Price: £255,Hardback, ISBN: 0421860804, pp. 1,350   Until recently, trade mark practitioners in the United Kingdomhad to make do with the 13th edition of Kerly, the 1st editionof The Modern Law of Trade Marks, or the CIPA/ITMA Handbookwhen navigating the rocky waters of trade mark law and practice.The first two of these texts     

The no-conflict rule: the acceptance of traditional equitable values?

Boardman v Phipps is a leading authority on the no-conflictrule. The House of Lords maintained the strict rule that historicallyequity has imposed on a fiduciary. This article explores howthe dissenting judgment of Lord Upjohn in Boardman v Phippshas been preferred by the lower courts and why the courts haveadopted such a position. This has fuelled a more general debateas to whether the no-conflict rule should be harsh or more flexible.Recent cases including Bhullar v Bhullar are discussed to illustratethe present approach of the courts to the recurring issues surroundingpossible applications of the no-conflict rule.     

'Trade mark use' in Europe: revisiting Arsenal in the light of Opel and Picasso

Legal context: The European Court of Justice (ECJ) decision in the case ofArsenal Football Club v. Reed led to uncertainty regarding thepractical scope of a trade mark proprietor's property rights. Key points: The uncertainty resulted from a failure of the ECJ to addressclearly the issue of what constitutes infringing trade markuse. The ECJ ignored the question of the High Court as to whetheruse of a trade mark as an indication of origin is necessaryfor establishing infringement. They instead established an ambiguousstandard for what constitutes infringing trade mark use, suggestingthat only use that jeopardises the essential function of a trademark is an infringing use. This ambiguity has had problematicimplications for subsequent interpretations of trade mark law,particularly in the Court of Appeal in Arsenal and the Houseof Lords in R v Johnstone. Two relatively new ECJ cases may help clarify the issue. InOPEL, the ECJ suggested that infringing use of a trade markmust be use that is perceived by the relevant public as a designationof origin. The Picasso decision limits the effect of the Arsenaldecision on the relevance of confusion in non-sale situationsto the facts of Arsenal. In particular, it stresses the pointthat when assessing likelihood of confusion in the context ofan opposition to an application for registration the court shouldfocus on the perception of the relevant public at the pointof sale. Practical significance: The benefit of these two cases is that they create some clarityfor legal practitioners and the Courts when addressing the questionof what constitutes infringing trade mark use.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion

In Mara'abe v. Prime Minister of Israel (September 2005), Israel'sHigh Court addressed the effect which it should give to theInternational Court's Legal consequences of the constructionof a wall in Occupied Palestinian Territory advisory opinion.This had declared the wall illegal but, while affirming thatit shared the International Court of Justice's normative rulings,the High Court reiterated that it thought the wall a lawfulsecurity measure. Rather than dissect the substantive treatmentof the issues involved, this article examines the structureand rhetorical techniques employed by President Barak in hisleading judgment in Mara'abe. He effected a skilful practicaldisregard of the International Court's normative findings throughan elision of argument by relying on the doctrine of res judicata—aconcept that has no relevance whatsoever to advisory opinions.     

The Spectre of Addis in Contracts of Employment in Canada and the UK

This article examines the legacy of the 1909 House of Lordsdecision in Addis in both Canada and the UK by closely analysinga key case from each jurisdiction: Wallace v United Grain Growersand Johnson v Unisys. It underlines the continuing strong tendencyto treat wrongful dismissal solely as breach of the notice termand considers the remedial consequences of that stance.