RIS ID

83913

Publication Details

Leiboff, M. (2013). Talkin ‘bout law’s generations: pop culture, intellectual property and the interpretation of case. Law in Context, 29 (1), 95-116.

Abstract

This article takes a very different path through which to explore the challenges affecting and shaping innovation and communications law. It reports on a facet of an empirical pilot study into generational differences in legal interpretation that revealed the porosity and friability of doctrine. The article focuses on one facet of the study apposite to this special issue: a fleeting reference by Finkelstein J to icons of pop culture in an otherwise unremarkable passing off I misleading and deceptive conduct case - Hansen v Bickfords - involving the marketing of an energy drink. As the responses of lawyer and law student participants to these references show, the courts and legal interpreters draw on a reserve of tacit knowledge through which their reading and the interpretation of the law is filtered. The explicit reference in a judgment to such tacit knowledge (in the form of the pop cultural) allows us to glimpse the ways in which technocratic law is read through a range of filters that are presumed to form no part of the process of legal interpretation, revealing just how generationally inflected legal interpretation is, showing how much haphazard, everyday misconceptions and trivialities can actively shape the understanding and deployment of law by its practitioners.

Link to publisher version (URL)

Law in Context – Federation Press

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