Response to ‘Exploring the Textual Alchemy of Legal Gender’

Commentary on Grabham.&nbsp

Dignity again

Two recent contributions to this journal discuss a challenge to Stanford's time-lapse embryo monitoring patent, currently before the European Patent Office (EPO). Sterckx, Cockbain and Pennings (2017) would like to keep the morphokinetics of embryo division in the public domain; they argue that time-lapse monitoring (TLM) is a diagnostic method in the sense of European patent law and therefore unpatentable. In response, Pearce (2017) suggests that the jurisprudence of the EPO unambiguously says that TLM is not a diagnostic method. This commentary proposes an alternative legal ground for challenging patents relating to the principle of TLM, a ground that could be invoked before national courts and, ultimately, the Court of Justice of the European Union: TLM is not a diagnostic procedure but a process of selection that breaches the criterion of dignity in European patent law

Lexical properties: Trademarks, dictionaries, and the sense of the generic

The third edition of Webster’s International Dictionary, first published in 1961, represented a novel approach to lexicography. It recorded the English language used in everyday life, incorporating colloquial terms that previous grammarians would have considered unfit for any responsible dictionary. Many were scandalized by the new lexicography. Trademark lawyers were not the most prominent of these critics, but the concerns they expressed are significant because they touched on the core structure of the trademark as a form of property in language. In the course of eavesdropping on everyday usage, Merriam-Webster’s lexicographers picked up on the use of trademarks as common nouns: “thermos” as a generic noun for any vacuum flask, “cellophane” as a term for transparent wrapping, and so on. If Webster’s Third were to be taken as sound evidence of the meaning of words, then the danger was that some of the most familiar marks in the USA would be judged “generic” in the legal sense, and would thereby cease to be proprietary. In this article, we explore the implications of this encounter between law and lexicographic technique

Smoke, curtains and mirrors: the production of race through time and title registration

This article analyses the temporal effects of title registration and their relationship to race. It traces the move away from the retrospection of pre-registry common law conveyancing and toward the dynamic, future-oriented Torrens title registration system. The Torrens system, developed in early colonial Australia, enabled the production of ‘clean’, fresh titles that were independent of their predecessors. Through a process praised by legal commentators for ‘curing’ titles of their pasts, this system produces indefeasible titles behind its distinctive ‘curtain’ and ‘mirror’, which function similarly to magicians’ smoke and mirrors by blocking particular realities from view. In the case of title registries, those realities are particular histories of and relationships with land, which will not be protected by property law and are thus made precarious. Building on interdisciplinary work which theorises time as a social tool, I argue that Torrens title registration produces a temporal order which enables land market coordination by rendering some relationships with land temporary and making others indefeasible. This ordering of relationships with land in turn has consequences for the human subjects who have those relationships, cutting futures short for some and guaranteeing permanence to others. Engaging with Renisa Mawani and other critical race theorists, I argue that the categories produced by Torrens title registration systems materialise as race

Book review: Marilyn Strathern: “a truly inspirational and trailblazing anthropologist”

This recent collection of original and accessible essays on the work of Marilyn Strathern represents an accessible introduction to the work of one of the world’s leading anthropologists. Alain Pottage reflects on what this means for knowledge production and the ‘impact’ of scholarship. Recasting Anthropological Knowledge: Inspiration and Social Science. Jeanette Edwards and Maja Petrović-Šteger (eds), Cambridge University Press. September 2011. 206 pp

No (more) logo: plain packaging and communicative agency

The tobacco industry’s archives suggest that the global campaign for the plain packaging of tobacco products originated in 1986, when the Canadian Medical Association passed a resolution calling for cigarettes to be sold in packages bearing only a brand name and the health message ‘this product is injurious to your health’. In most jurisdictions, regulations requiring the apposition of health warnings to cigarette packs have been in force for decades. Proposals for plain packaging aim to go further, and eliminate the visual and tactile features that turn cigarette packs into ‘badge’ wrappers, and which express the subliminal messages that diminish or subvert the effect of even the most uncompromising health messages. Given that effective plain packaging regulations would severely restrict the tobacco companies’ ability to exploit their trademarks or rights in trade dress, the question of the domestic or international ‘constitutionality’ of such restrictions has become an essential ground for the industry’s contestation of plain packaging measures. When it passed the Tobacco Plain Packaging Act of 2011, which came into force on December 1 2012, Australia became the first nation in the world to impose a mandatory scheme of plain packaging, and, in the process, the first jurisdiction to adjudicate on the constitutionality of plain packaging. Plain packaging legislation raises a number of engaging theoretical and practical questions: about the legal qualities of the intellectual property rights that articulate branding strategies, about the relationship between the regimes of international trade law and world health policy, and about the history of regulatory initiatives to address the public health implications of smoking. Here, I am interested questions about the communicative agency of the mass media: what does the example of Australia’s plain packaging laws tell us about the role played by the surfaces of material wrappers and packages in branding practices?; how do brands articulate with the other strands of the mass media

Holocene Jurisprudence

We are now accustomed to thinking of the Holocene as an epoch that we have left behind. But from what perspective do we close the Holocene and begin describing the Anthropocene? Academic disciplines have their own geology: epistemic or medial strata, sediments or condensations, which condition the apprehension and communication of fresh insight. The phrase ‘Holocene jurisprudence’ draws attention to a particular epistemic sediment: the figure of appropriation or ‘taking’, which is reactivated in many critical commentaries on the Anthropocene. And if, speaking figuratively, one were to identify an index fossil that compellingly expresses the epistemic traditions and potentialities that are sedimented into the Euro-American figure of appropriation, then Carl Schmitt's Nomos of the Earth would be a good candidate