Legal Studies Research Paper Series Vol. 11, No. 1

The Faculty has published Volume 11 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

John Liddicoat, Kathleen Liddell & Mateo Aboy: The Effects of Myriad and Mayo on Molecular Test Development in the US and Europe: Interviews from the Frontline (33/2019)

The US Supreme Court decisions in Mayo Collaborative Services v. Prometheus Laboratories and Association for Molecular Pathology v. Myriad Genetic Inc. introduced significant divergences between US and European patentable subject matter law. Both cases related to molecular test technology and changed decades of patent practice. Whether the decisions adversely affect the development of molecular tests has been a matter of much speculation but limited empirical investigation. This interview-based study has three main findings. First, it provides evidence that Myriad and Mayo have negatively affected the development of some molecular tests. Notably, several organizations decided not to develop tests, and many have found the legal uncertainty following the cases problematic. Second, the results show that small, “patent precarious” organizations that rely heavily on patents for competitive advantage have been most affected. Third, the study indicates that US headquartered organizations have been more affected by 35 USC § 101 case law developments than European organizations, even though both types of organizations file for US patents.

Brian Sloan: Adoption vs Alternative Forms of Care (34/2019)

This chapter considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea.

Tamar Megiddo & Eyal Benvenisti: Inclusion and Representation in the Settlement of Property Claims in the Aftermath of Armed Conflict (35/2019)

This article examines the authority of states to settle individual private property claims in post-conflict negotiations towards settlement. We analyze this question by exploring the limits of states’ authority to take or limit private property rights for the public good. We argue that this authority rests on two cumulative justifications: the inclusion of the property owners among the public that stands to benefit from the public good, and their representation by the government that decides on the taking of the property. In post-conflict settlement, the negotiating states may redistribute both private property and the public good between and within their respective communities. Their authority to redistribute continues to rests on the same justifications of inclusiveness and representation. Hence, their authority extends only to the redistribution of property of owners who are members of the respective communities that negotiate the agreement, and who are represented by a negotiating government.

Eyal Benvenisti: The Applicability of the Law of Occupation to UN Administration of Foreign Territory (36/2019)

This contribution seeks to critically examine the UN position with respect to the legal status of the administration of territory by UN-authorised actors. The essay first explores whether the law of occupation applies to direct administration of foreign territory by the UN or its authorized organs. It then examines as a case study the practice of the UN administration of Kosovo. The essay argues that unfettered discretion for civil servants, even international civil servants, undermines the functionality of any administration. Embracing the discipline of accountability embedded in the law of occupation to UN-led administration of territories is therefore required. This discussion provides the grounding for the argument that as a matter of both lex lata and lex ferenda any administration of territories without a valid sovereign consent, even when exercised by the UN, qualifies as an occupation, and is hence subject to the requirements of law of occupation.

David Erdos: Disclosure, Exposure and the ʻRight to be Forgottenʼ after Google Spain: Interrogating Google Search’s Webmaster, End User and Lumen Notification Practices (1/2020)

This paper argues that Google’s essentially blanket and unsafeguarded dissemination to webmasters of URLs deindexed under the Google Spain judgment involves the disclosure of the claimant’s personal data, cannot be justified either on the purported basis of their consent or that this is legally required but instead seriously infringes European data protection standards. Disclosure of this data would only be compatible with the initially contextually sensitive context of collection where it was (i) reasonably necessary and explicitly limited to the purposes of checking the legality of the initial decision and/or bona fide research and (ii) was subject to effective safeguards that prevented any unauthorised repurposing or other use. Strict necessity thresholds would need to apply where disclosure involved special category data or was subject to reasoned objection by a data subject and international transfers would require appropriate safeguards as provided by the European Commission’s standard contractual clauses. Disclosing identifiable data on removals to end users would directly and fundamentally undermine a data subject’s rights and, therefore, ipso facto violate purpose limitation and legality, irrespective of a data subject claims rights in data protection, defamation or civil privacy. The public’s legitimate interests in receiving information on personal data removals should be secured through safeguarded scientific research that the search engines should facilitate and promote.

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