Pub Date : 2022-11-01DOI: 10.1017/S0008197322000538
M. Gibson
scious copying or in determining whether substantial part is taken, is unclear. Goold goes on to discuss the various stages at which the negligence liability should be introduced, such as licensing, infringement, defences, and remedies (pp. 97–105). The difference between introducing negligence liability into the infringement doctrine and the defences is one of burden of proof, and Goold seems to falter on this point. If IP infringement is to remain truly a negligence-based liability, the primary burden of proof to establish negligence must rest on the person claiming negligence, i.e. the IP owner (usually the claimant). On the other hand, if exercising due care (i.e. the lack of negligence) were to be available as a defence, then the burden of proof would rest on the person claiming that due care was exercised, which is the user (normally the defendant). Goold recognises that in ordinary negligence, the reasonable care and therefore, negligence analysis features within the prima facie case being established (p. 99). This appears to suggest that the burden of proof is on the IP owner to prove a prima facie case by showing that the user’s lack of care led to an IP right being infringed. However, he goes on to argue that if the IP owner establishes a prima facie case of infringement (i.e. that the user copied the work or used the patented invention), then a rebuttable presumption in favour of liability would operate, and only if the user introduces evidence that she exercised all reasonable care should the court not hold her liable (p. 100). This appears to suggest that in infringement cases the burden of proof rests entirely on the user to prove that she took all reasonable care, as if it were a defence rather than a component of the tort of infringement itself. A more coherent exposition of the burden of proof would have helped. It appears to make sense to place the burden on the IP owner from an efficiency viewpoint. If the IP owner is the one bearing the burden of proving that reasonable care was not exercised, then the IP owner will be more cautious in ensuring that their valuable creations are registered where possible, and bear the appropriate markings, making their rights discoverable. In summary, however, Goold’s work is a bold effort in addressing an extremely complex area of law, presented in an historical context, enriched by arguments of economic efficiency. Situated at the intersection of IP and private law, Goold’s work is remarkable in demonstrating the role of core doctrines of private law in addressing some of the most pressing issues in IP.
{"title":"Criminalizing Sex: A Unified Liberal Theory. By Stuart P. Green. [Oxford University Press, 2020. xxvi + 382 pp. Hardback £22.99. ISBN 978-0-197-50748-3.]","authors":"M. Gibson","doi":"10.1017/S0008197322000538","DOIUrl":"https://doi.org/10.1017/S0008197322000538","url":null,"abstract":"scious copying or in determining whether substantial part is taken, is unclear. Goold goes on to discuss the various stages at which the negligence liability should be introduced, such as licensing, infringement, defences, and remedies (pp. 97–105). The difference between introducing negligence liability into the infringement doctrine and the defences is one of burden of proof, and Goold seems to falter on this point. If IP infringement is to remain truly a negligence-based liability, the primary burden of proof to establish negligence must rest on the person claiming negligence, i.e. the IP owner (usually the claimant). On the other hand, if exercising due care (i.e. the lack of negligence) were to be available as a defence, then the burden of proof would rest on the person claiming that due care was exercised, which is the user (normally the defendant). Goold recognises that in ordinary negligence, the reasonable care and therefore, negligence analysis features within the prima facie case being established (p. 99). This appears to suggest that the burden of proof is on the IP owner to prove a prima facie case by showing that the user’s lack of care led to an IP right being infringed. However, he goes on to argue that if the IP owner establishes a prima facie case of infringement (i.e. that the user copied the work or used the patented invention), then a rebuttable presumption in favour of liability would operate, and only if the user introduces evidence that she exercised all reasonable care should the court not hold her liable (p. 100). This appears to suggest that in infringement cases the burden of proof rests entirely on the user to prove that she took all reasonable care, as if it were a defence rather than a component of the tort of infringement itself. A more coherent exposition of the burden of proof would have helped. It appears to make sense to place the burden on the IP owner from an efficiency viewpoint. If the IP owner is the one bearing the burden of proving that reasonable care was not exercised, then the IP owner will be more cautious in ensuring that their valuable creations are registered where possible, and bear the appropriate markings, making their rights discoverable. In summary, however, Goold’s work is a bold effort in addressing an extremely complex area of law, presented in an historical context, enriched by arguments of economic efficiency. Situated at the intersection of IP and private law, Goold’s work is remarkable in demonstrating the role of core doctrines of private law in addressing some of the most pressing issues in IP.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"690 - 694"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43782571","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000800
Maxence Rivoire
difficult to identify. The complexity in this area has been furthered in recent years through the introduction of various public policy exceptions to Rule 3, which Sir Julian Flaux C. in Solo Capital Partners suggested should be extended to major international fraud (at [146]). As a result of these exceptions, the rule does not apply in some instances where any plausible rationale for it would suggest it should. All this complexity suggests that, if there is some simpler mechanism by which the same outcomes can be achieved, there may be good reasons to abandon Rule 3. The doctrine of forum non conveniens might be that simpler mechanism. Where a claim is brought before an English court, the court can decline to exercise its jurisdiction where a different forum is clearly and distinctly more appropriate for the trial of the dispute. The objection to the availability of the English forum in most cases in which reliance on Rule 3 has been successful is that such claims should properly be brought in the courts of the countries the law of which the claimant is trying to enforce. Channelling this reasoning through forum non conveniens would help rationalise the haphazard applicability of Rule 3.
难以识别。近年来，由于对规则3引入了各种公共政策例外，这一领域的复杂性进一步加深，Solo Capital Partners的Julian Flaux C.爵士建议将其扩展到重大国际欺诈(见[146])。由于这些例外情况，该规则在某些情况下不适用，尽管任何合理的理由都表明该规则应该适用。所有这些复杂性表明，如果存在某种更简单的机制，可以实现同样的结果，那么就有很好的理由放弃规则3。不方便法庭原则可能是一种更简单的机制。如果一项索赔是在英国法院提出的，法院可以拒绝行使其管辖权，而另一个法院显然更适合审理该争议。反对在大多数依靠规则3获得成功的案件中使用英文法庭的理由是，这种索赔应适当地在索赔人试图执行其法律的国家的法院提出。通过不方便地进行推理将有助于使规则3的随意适用性合理化。
{"title":"EXCLUSIVE JURISDICTION IN PATENT ENTITLEMENT AND OWNERSHIP DISPUTES UNDER THE RECAST BRUSSELS I REGULATION","authors":"Maxence Rivoire","doi":"10.1017/S0008197322000800","DOIUrl":"https://doi.org/10.1017/S0008197322000800","url":null,"abstract":"difficult to identify. The complexity in this area has been furthered in recent years through the introduction of various public policy exceptions to Rule 3, which Sir Julian Flaux C. in Solo Capital Partners suggested should be extended to major international fraud (at [146]). As a result of these exceptions, the rule does not apply in some instances where any plausible rationale for it would suggest it should. All this complexity suggests that, if there is some simpler mechanism by which the same outcomes can be achieved, there may be good reasons to abandon Rule 3. The doctrine of forum non conveniens might be that simpler mechanism. Where a claim is brought before an English court, the court can decline to exercise its jurisdiction where a different forum is clearly and distinctly more appropriate for the trial of the dispute. The objection to the availability of the English forum in most cases in which reliance on Rule 3 has been successful is that such claims should properly be brought in the courts of the countries the law of which the claimant is trying to enforce. Channelling this reasoning through forum non conveniens would help rationalise the haphazard applicability of Rule 3.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"480 - 484"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49004663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000782
J. Russell
{"title":"CUSTODIAL DUTIES IN THE COURT OF APPEAL","authors":"J. Russell","doi":"10.1017/S0008197322000782","DOIUrl":"https://doi.org/10.1017/S0008197322000782","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"474 - 477"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48971717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/s0008197322000617
Johan David Michels
{"title":"CLJ volume 81 issue 3 Cover and Back matter","authors":"Johan David Michels","doi":"10.1017/s0008197322000617","DOIUrl":"https://doi.org/10.1017/s0008197322000617","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"b1 - b14"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46158276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000836
B. Plant
{"title":"AN EXCEPTION TO DIPLOMATIC IMMUNITY FOR CLAIMS INVOLVING MODERN SLAVERY","authors":"B. Plant","doi":"10.1017/S0008197322000836","DOIUrl":"https://doi.org/10.1017/S0008197322000836","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"491 - 494"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44956806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000824
Aarushi Sahore
for itself the question of proportionality and necessity in care proceedings cases (Re B, at [116]–[127] (Lord Kerr J.S.C.), [204]–[205] (Lady Hale J.S.C.)) should be preferred. In line with this, it would have been better if the Supreme Court had undertaken its own proportionality assessment on the facts of Re H-W and made supervision orders instead of remitting the case for rehearing before a different judge (at [64]). Doing so would avoid delays in settling arrangements for the family involved and uphold the “central principle of the Children Act 1989” that delays are not in the children’s interests (J. Doughty, “Remote Justice – Family Court Hearings during the Pandemic” (2020) 42(3) Journal of Social Welfare and Family Law 377, 377). At the end of the day, there is no doubt that Re H-W was “a difficult case” (at [28]). Indeed, decisions made for the removal of children into public care have profound effects and should be carefully scrutinised (at [32]). However, the appellate court’s approach should, as far as possible, strike a balance with the avoidance of delays in the interests of the children’s welfare. Whilst the Supreme Court acknowledged that the perspectives of both the majority and the minority of the Court of Appeal were “understandable in family law terms” (at [32]), it ultimately concluded that the proportionality assessment at first instance was flawed (at [62]) but nonetheless declined to undertake its own assessment (at [63]). With the case being remitted for rehearing before a different judge, one can only hope that it will not be “a lengthy process” before arrangements are finally settled for the family involved (at [64]).
就其本身而言，护理诉讼案件中的相称性和必要性问题（Re B，见[116]-[127]（Lord Kerr J.S.C.），[204]-[205]（Lady Hale J.S.C。根据这一点，如果最高法院对Re H-W的事实进行自己的相称性评估，并下达监督令，而不是将案件移交给另一名法官重审，情况会更好（见[64]）。这样做可以避免延迟为相关家庭安排，并维护“1989年《儿童法》的核心原则”，即延迟不符合儿童的利益（J.Doughty，“疫情期间的远程司法-家庭法院听证会”（2020）42（3）《社会福利和家庭法杂志》377377）。最后，毫无疑问，Re H-W是“一个困难的案例”（见[28]）。事实上，将儿童转移到公共护理机构的决定具有深远的影响，应该仔细审查（见[32]）。然而，上诉法院的做法应尽可能在避免延误儿童福利方面取得平衡。虽然最高法院承认上诉法院多数人和少数人的观点“从家庭法的角度来看是可以理解的”（见[32]），但它最终得出结论，一审的比例评估存在缺陷（见[62]），尽管如此，它还是拒绝进行自己的评估（见[63]）。随着案件被移交给另一位法官重审，人们只能希望，在最终解决相关家庭的安排之前，这不会是一个“漫长的过程”（见[64]）。
{"title":"LIGHTS, CAMERA, NO ACTION: THE INTERFACE BETWEEN CONTRACT LAW AND UNJUST ENRICHMENT","authors":"Aarushi Sahore","doi":"10.1017/S0008197322000824","DOIUrl":"https://doi.org/10.1017/S0008197322000824","url":null,"abstract":"for itself the question of proportionality and necessity in care proceedings cases (Re B, at [116]–[127] (Lord Kerr J.S.C.), [204]–[205] (Lady Hale J.S.C.)) should be preferred. In line with this, it would have been better if the Supreme Court had undertaken its own proportionality assessment on the facts of Re H-W and made supervision orders instead of remitting the case for rehearing before a different judge (at [64]). Doing so would avoid delays in settling arrangements for the family involved and uphold the “central principle of the Children Act 1989” that delays are not in the children’s interests (J. Doughty, “Remote Justice – Family Court Hearings during the Pandemic” (2020) 42(3) Journal of Social Welfare and Family Law 377, 377). At the end of the day, there is no doubt that Re H-W was “a difficult case” (at [28]). Indeed, decisions made for the removal of children into public care have profound effects and should be carefully scrutinised (at [32]). However, the appellate court’s approach should, as far as possible, strike a balance with the avoidance of delays in the interests of the children’s welfare. Whilst the Supreme Court acknowledged that the perspectives of both the majority and the minority of the Court of Appeal were “understandable in family law terms” (at [32]), it ultimately concluded that the proportionality assessment at first instance was flawed (at [62]) but nonetheless declined to undertake its own assessment (at [63]). With the case being remitted for rehearing before a different judge, one can only hope that it will not be “a lengthy process” before arrangements are finally settled for the family involved (at [64]).","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"487 - 490"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42754667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000587
Derek Whayman
1990s) is one where comparativists like Legrand have broken free of the authority paradigm. And so, what Fekete claims to be doing is applying a “light” version of Kuhn’s theory, thus avoiding the problem of incommensurability between competing paradigms. What Kuhn offers, says Fekete, is “a conceptual vocabulary to tame the complexity of scholarly development” (p. 164). Yet it is not evident that he really needs this vocabulary. His five “paradigm” periods would be just as understandable if he were to use the vocabulary of social science – programmes, schemes of intelligibility, poles and orientations – and it (they) would surely suffice as a framework for his excellent discussion of the comparatists he regards as key in the history of comparative law. To employ Kuhn suggests that law is a science in the natural science meaning of the term; this is something that a good many comparatists would not just contest but see as very dangerous.
{"title":"The Law of Tracing. By Mohammud Jaamae Hafeez-Baig and Jordan English. [Alexandria, NSW: The Federation Press, 2021. xxi + 276 pp. Hardback $180.00. ISBN 978-1-76002-306-5.]","authors":"Derek Whayman","doi":"10.1017/S0008197322000587","DOIUrl":"https://doi.org/10.1017/S0008197322000587","url":null,"abstract":"1990s) is one where comparativists like Legrand have broken free of the authority paradigm. And so, what Fekete claims to be doing is applying a “light” version of Kuhn’s theory, thus avoiding the problem of incommensurability between competing paradigms. What Kuhn offers, says Fekete, is “a conceptual vocabulary to tame the complexity of scholarly development” (p. 164). Yet it is not evident that he really needs this vocabulary. His five “paradigm” periods would be just as understandable if he were to use the vocabulary of social science – programmes, schemes of intelligibility, poles and orientations – and it (they) would surely suffice as a framework for his excellent discussion of the comparatists he regards as key in the history of comparative law. To employ Kuhn suggests that law is a science in the natural science meaning of the term; this is something that a good many comparatists would not just contest but see as very dangerous.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"684 - 687"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41676618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/s0008197322000605
{"title":"CLJ volume 81 issue 3 Cover and Front matter","authors":"","doi":"10.1017/s0008197322000605","DOIUrl":"https://doi.org/10.1017/s0008197322000605","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":" ","pages":"f1 - f2"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44411349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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