14 April 2012

Comparative Family Law

The Rise and Decline of Legal Families' by Mariana Pargendler in 60(3) American Journal of Comparative Law (2012) comments that -
The effort to group jurisdictions around the world into a handful of legal families based on common characteristics of their laws has traditionally occupied a central role in the comparative law literature. This Article revisits the intellectual history of comparative law and surveys the evolution of legal family taxonomies from the first efforts at classification in the late-nineteenth century to the influential categorizations advanced by René David and Zweigert and Kötz in the 1960s. The early taxonomies differed from their modern counterparts in important ways. Although the nineteenth century is usually viewed as the apex of the common-civil law dichotomy, this distinction was conspicuously absent from legal family classifications until the twentieth century. A number of economic and political factors – ranging from economic liberalism to anti-colonialist sentiment – likely played a role in minimizing the salience of legal traditions in nineteenth-century legal thought. 
 Pargendler concludes that
The relatively recent vintage of legal family classifications as we know them today raises several questions. Why did prevailing conceptions about the origins and affiliations of legal systems undergo such a major transformation over time? To what extent did shifting taxonomies track changes in legal developments on the ground? Were early comparativists simply less sophisticated and knowledgeable about foreign legal systems, and did they thus fail to grasp the true nature of their object of study? Or could it be that the variation in taxonomies over time was attributable to corresponding differences in underlying legal phenomena? While this study cannot provide definitive answers to these questions, it offers some tentative thoughts that underscore the importance of pursuing this line of inquiry. Clearly, one cannot take legal family classifications – present or historical – as precise assessments of an underlying reality. Yet, it would also be wrong to dismiss the early authors’ groupings of legal systems as hopelessly flawed and lacking any instructive value about the then-contemporary legal systems that they sought to describe. While the first comparativists of the nineteenth century did not enjoy the benefit of subsequent theoretical advances, they had the comparative advantage of greater proximity to the legal systems and worldviews that their classifications sought to capture compared to twentieth-century observers.
There are reasons to believe that there is a mutually reinforcing relationship between legal family classifications and surrounding legal developments. On the one hand, one can expect classificatory schemes to reflect, even if only partially and imperfectly, the character of legal systems around the world as contemporary observers perceived them. On the other hand, because law is a social and cultural phenomenon, existing understandings about legal systems and traditions may in turn impinge on subsequent legal developments. In this view, the nineteenth-century comparativists’ lesser degree of attention to the civil-common law dichotomy was in part a product of the more cosmopolitan orientation of law and culture in that period. In turn, by de- emphasizing the importance of deep-rooted legal traditions, the existing theoretical framework likely facilitated legal borrowings from a broader array of jurisdictions, thus reinforcing the reigning belief in the desirability and feasibility of legal convergence.
A variety of factors may have contributed to a lesser degree of deference to, or consciousness of, legal traditions in the nineteenth century compared to the twentieth century. First, and most obviously, there was significant theoretical confusion in the nineteenth century about the meaning and origins of different legal systems – as exemplified by the existing diversity of classificatory schemes, as well as the frequent statements by prominent English and U.S. authors that English law stemmed from Roman law. An excellent study by Michele Graziadei examines the “change in the image” in the nineteenth century from the early understanding of English law as originating from Roman law to a later conception of the common law as the source of a distinct legal tradition. In his words, theoretical developments in nineteenth-century England (which were, paradoxically, inspired by contemporary doctrinal developments in Germany) “transformed the perception of the historical background of the law and eventually produced a new awareness of the distinctive character of the common law tradition.”
Second, conceptions about legal tradition and the appropriate sources for one country’s law were intimately intertwined with the search for identity – including legal identity – by the various nations that had then recently acquired independence. New countries were reluctant copycats, and wholesale legal transplants from one legal system seemed more dangerous to one’s identity and autonomy than a combination of numerous foreign sources. Relatedly, anti-colonialist sentiment was very much alive in many newly independent nations, which made them despise the notion of legal continuity from colonial times and thus view the idea of legal tradition rather unfavorably. For instance, in the United States, Chancellor Kent famously resorted to continental sources to legitimize certain common-law concepts in light of the “unpopularity of things English.” In his words, “[t]he judges were Republicans and very kindly disposed to everything that was French, and this enabled me, without exciting any alarm or jealousy, to make free use of such authorities and thereby enrich our commercial law.” That is, the argument that rendered English law an acceptable source was not that it was part of the U.S. particular legal tradition, but quite the opposite: English law was more legitimate to the extent that its precepts were the same as those of French and Roman law.
Third, the nineteenth century was the heyday of economic liberalism and the free trade of goods, persons, and ideas. Just like the globalization movement of the late- twentieth century, the late nineteenth century’s own (arguably just as profound) period of globalization generated significant pressures for cross-border legal convergence and integration. Such an intense degree of international trade and economic integration, in turn, created demand for legal harmonization and lessened the importance of local peculiarities. For instance, a 1862 free trade agreement between England and France pushed France to relax authorization requirements to incorporations along the lines of the English Companies Act in order to avoid putting French firms at a competitive disadvantage. In Brazil, the economic connections to Britain arguably generated more reliance on Anglo-Saxon legal institutions in the nineteenth than in the twentieth century. Yet each of these factors that downplayed the salience of legal traditions in the nineteenth century lost significance in the twentieth. The rise of comparative law as a discipline and the greater sophistication of comparative and historical studies cleaned up some of the existing confusion about the origins of legal systems in the Middle Ages. Roman and common law were then increasingly understood as not only lacking a common root but also as largely impervious to mutual influence, despite what were seen as sparse and isolated instances of legal borrowings. In addition, as memory of colonial times receded, legal traditions came increasingly to be viewed in a more favorable light.
Moreover, changes in world’s balance of power facilitated the solidification of legal traditions. Following decolonization, declining powers such as France and Great Britain viewed legal imperialism and the export of legal culture as a substitute for de facto occupation. From the perspective of the periphery, the return to legal traditions in the twentieth century often had the effect of strengthening a country’s sense of independence and identity in the face of American and Soviet economic and political hegemony. Finally, the turn towards autarkic policies and economic nationalism after World War I put an end to the earlier age of globalization and, in decreasing international trade, created an environment more favorable to legal nationalism (and to the ingrained and persistent differences across legal systems that legal families implied) and less conducive to legal convergence. ...
Comparativists have insistently debated the extent of the decline of legal family distinctions, but little attention has been paid to the rise of now-conventional understandings about legal families and traditions. By offering a brief intellectual history of the taxonomic efforts in the comparative law literature, this Article suggests that legal family categories followed a parabolic, rather than linear, path. Contrary to conventional understandings, the reification of a strong common-civil law dichotomy may have peaked in the twentieth century – after the end of the first globalization in 1914 but before the second globalization of the latter half of that century. In this light, the recent call by comparative law scholars for the abandonment of legal family classifications is a far less radical move than it may seem.
The view of the nineteenth century as a period dominated by a particularly strong and conscious dichotomy between civil law and common law is wrong. A variety of factors – ranging from theoretical underdevelopment to anti-colonialism and free trade – circumscribed the role of legal tradition in that period. Perhaps more important, many critical choices that would eventually shape legal family affiliations had not yet been made in the nineteenth century. Take, for example, Germany and Brazil which are today solidly in the civil law tradition but which had then not yet adopted one of the very hallmarks of that tradition, i.e., a civil code. Germany’s Bürgerliches Gesetzbuch came into force in 1900, while Brazil’s first Código Civil was not enacted until 1916. In both cases, the delay was not accidental, but rather the result of genuine disagreement about the desirability of a code and the suitability of existing models.
Ultimately, the development of legal family categories cannot, as is usually assumed, be explained by long-standing historical traditions alone; it was also profoundly shaped by trends in politics and economics. As the bulk of the comparative law literature has focused on the extent to which legal families are still relevant, the inquiry into the causes and consequences of strong conceptions of legal traditions provides interesting avenues for future research.

13 April 2012

Lights and IP Statistics

'Illuminating Innovation' (Hofstra University Legal Studies Research Paper No. 12-08) by Lea Shaver comments that
The central justification offered for patent protection is the need to incentivize technological innovation. Yet to date there is little empirical evidence that this aim is achieved. This Article argues that historical case studies, exploring the impact of patent law on particular fields of technological innovation, can be especially helpful in providing an empirical foundation for patent scholarship. The Article then proceeds to offer one such case study, focused on one of the most important technological revolutions of the past two centuries: electrification. Although Thomas Edison and “the incandescent lamp” have been extensively studied, so far no one has asked what light this lamp can shed on patent law and innovation policy. 
This Article develops two primary lessons of this case study. First, the lightbulb is used to test and refine recently articulated theories of “patent racing” as a justification for patent protection. I conclude the racing metaphor captures an important dynamic, but insufficiently accounts for the incremental nature of innovation and the subjectivity involved in judging patent disputes. Edison’s experience suggests the better analogy is the board game Risk! Second, the case illuminates a neglected dimension of patent law: the close relationship between patents and public relations. Edison masterfully manipulated the publicity value of his patents, and leveraged an intensive public relations campaign to influence the interpretation of his patent rights. 
In the end, the untold legal history of the lightbulb is a cautionary tale about relying on patents to promote technological innovation. In contrast to the conventional account of patent law as an objective, market-based system for rewarding investments in innovation, this empirical case study reveals a legal system that is messy, manipulable, and fundamentally shaped by myth. Further research on this and other technologies will be necessary to determine whether the case of the lightbulb is a representative or exceptional case and to draw more general conclusions about patent law’s impact of technological innovation. This Article, however, lays out a model for how such research might be approached.
The US Commerce Department’s Economics and Statistics Administration and the Us Patent and Trademark Office have meanwhile released Intellectual Property and the U.S. Economy: Industries in Focus, which claims that intellectual property intensive industries support at least 40 million jobs in the US and contribute more than US$5 trillion (34.8%) to the U.S. gross domestic product (GDP).

The 63 page report [PDF] is promoted as the "first of its kind" and showing
that IP-intensive industries have a direct and significant impact on our nation’s economy and the creation of American jobs. When Americans know that their ideas will be protected, they have greater incentive to pursue advances and technologies that help keep us competitive, and our businesses have the confidence they need to hire more workers. ...  While IP is used in virtually every segment of the U.S. economy, the report identifies the 75 industries that use patent, copyright, or trademark protections most extensively. These “IP-intensive industries” are the source – directly or indirectly – of 40 million jobs. That’s more than a quarter of all the jobs in this country. Some of the most IP-intensive industries include: Computer and peripheral equipment, audio and video equipment manufacturing, newspaper and book publishers, Pharmaceutical and medicines, Semiconductor and other electronic components, and the Medical equipment space.
Findings include -
  • IP-intensive industries contributed $5.06 trillion to the U.S. economy or 34.8% of GDP in 2010
  • a substantial share of IP-intensive employment was in the 60 trademark-intensive industries, with 22.6 million jobs in 2010. The 26 patent-intensive industries accounted for 3.9 million jobs in 2010, while the 13 copyright-intensive industries provided 5.1 million jobs.
  • 40 million jobs, or 27.7% of all jobs, were directly or indirectly attributable to the most IP-intensive industries in 2010
  • Due primarily to historic losses in manufacturing jobs, overall employment in IP-intensive industries lagged other industries during the past two decades. While employment in non-IP-intensive industries was 21.7% higher in 2011 than in 1990, overall IP-intensive industry employment grew 2.3% over this same period. Because patent-intensive industries are all in the manufacturing sector, they experienced relatively more employment losses over this period, especially during the past decade. While trademark-intensive industry employment had edged down 2.3% by the end of this period, copyright-intensive industries provided a sizeable employment boost, growing by 46.3% between 1990 and 2011
  • Between 2010 and 2011, the economic recovery led to a 1.6% increase in direct employment in IP-intensive industries, faster than the 1.0% growth in non-IP-intensive industries.
  • Merchandise exports of IP-intensive industries totaled $775 billion in 2010, accounting for 60.7% of total U.S. merchandise exports.

11 April 2012


Robert Leckey in 'Must Equal Mean Identical' questions -
the assumption from formal equality that the best way to remedy law's neglect of same-sex couples was to extend to them access to marriage with its existing economic framework. The greater sharing of housework and finances and lesser frequency of child rearing signal the potential unsuitability, in the same-sex context, of rules designed for male-female couples with intense specialization of labour. The paper also flags methodological difficulties with the enterprise of looking to research in order to assess marriage law’s fitness for gay and lesbian couples. The existing social-science research focuses on recognition of same-sex couples by third parties more than on the rightful duties as between partners, particularly on a relationship’s winding down. A better approach might unbundle third parties’ recognition of same-sex spouses from the partners’ duties one to another. Yet given the sway of formal equality, is it even thinkable that the equal status of marriage should presumptively lead, for same-sex couples, to a less onerous property regime?
Leckey comments that -
Formal equality holds that the way to treat gay men and lesbians with dignity and equal respect is to give them access to marriage (or something almost identical under a different label). For legal, political, and social reasons that vary by jurisdiction, this claim for recognizing same-sex relationships has emerged as the champion. Where judicial or legislative efforts carry out formal equality‘s prescription, critique arises from conservative perspectives. It also emerges from feminist, queer or other left viewpoints. One such objection is that same-sex marriage would exacerbate the inequality between more and less privileged members of sexual-orientation minorities. But remarkably little scholarship has studied how well the financial frameworks which govern marriage and divorce, henceforth available to same-sex couples, serve their catchment group. The question of fit should not, however, be taken for granted. An obvious reason is that marriage traditionally bore women‘s economic dependency on men 'embedded deep within' and it is possible that reforms implementing gender neutrality have not extirpated all gendered assumptions. Nor has much attention been paid, methodologically, to the difficulties entailed by examining the matter. This paper advances work on those neglected matters. ... 
This paper presses back against the rhetoric of formal-equality-as-sameness by exploring whether the economic lives of same-sex couples differ from those of different-sex married spouses in potentially relevant ways. By underscoring the distinction between the claim for recognition by third parties and the call for automatic application of existing property rules, it posits that same-sex couples may be situated similarly to heterosexual couples so as 'to deserve the right to marry' without that similarity determining their appropriate patrimonial relations. 
 A timid reading of the argument might observe that the economic consequences of marriage and civil union can be onerous and that partners should inform themselves in advance. If the regimes on offer are uncongenial, they should conclude a marriage contract within allowable limits! A bolder reading might express regret if the push for gay and lesbian relationship recognition has intensified marital status‘ significance for family law, deflecting policy makers‘ attention from potentially more reliable proxies for intense interdependence such as the presence of children. Has the discourse of formal equality—fused with the unitary view of marriage—forestalled a rethinking of law‘s regulation of the economic dimensions of intimate relations more generally, in a way that would reach beyond same-sex couples to different-sex couples and other kinship configurations? If so, that bodes badly, not only for those for whom the marriage model offered is a poor fit, but also for those whose kinship claims are neither subsumable under formal equality nor articulable as a bid for marriage.

10 April 2012

Asian IP Values?

'Intellectual Property and Asian Values' by Peter Yu in 16(2) Marquette Intellectual Property Law Review (2012) 101-171  comments that
From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy. 
Commissioned for the Inaugural International Intellectual Property Scholars Series, this article fills the void by examining intellectual property developments in relation to the decades-old 'Asian values' debate. Drawing on the region's diversity in economic and technological developments and the continuous rivalry among the different regional powers, the article contends that one can neither locate any distinct values, approaches, or practices on intellectual property law and policy nor identify any established pan-Asian positions in the area.
The article further explores the role Asian countries will play if these emerging countries exert more influence on the development of the international intellectual property system. It points out that, although Japan and South Korea are unlikely to join others to form a united front for the Asian developing world, China, India, and ASEAN members may be willing to work together to form a normative community. This article concludes with a discussion of ten key items that will find their way to the community's common policy agenda if such a community indeed exists.
Those items are
1. Enforcement
2. Traditional Knowledge and Cultural Expressions 
3. Geographical Indications 
4. Access to Essential Medicines 
5. Internet and Other New Technologies 
6. Climate Change 
7. Alternative Innovation Models 
8. Special and Differential Treatment 
9. Uneven Economic and Technological Developments 
10. Abuse of Rights and Restraint on Trade  
Yu suggests that -
in the area of intellectual property law and policy, one can neither locate any underlying distinct values, approaches, or practices nor identify established pan-Asian positions. Nevertheless, the middle- and low-income Asian countries may be able to work together to foster regional positions to influence future international intellectual property negotiations. While Japan and, to some extent, South Korea are unlikely to join other Asian countries in taking a strong pro-development stand for Asia, China, India, and ASEAN could team up to maximize their leverage and voice in the international intellectual property arena. They could help shape the development of a powerful regional normative community. 
Although the positions and interests of the twelve members of Chindiasean continue to differ, developing a united front for these countries most certainly will help ensure a more desirable bargaining outcome in areas that range from the reshaping of global intellectual property enforcement norms to the protection of traditional knowledge and cultural expressions to the promotion of access to essential medicines. Having unified positions among these countries may also set alternative paths for other less developed countries outside Asia. Thus, from the standpoint of international intellectual property policymaking, the growing intellectual property developments in Asia deserve our greater scholarly attention, even if this century does not end up becoming an Asian century.

08 April 2012

One Cup of Regret

Last year I noted criticisms of high profile US philanthropist Greg Mortenson, author of a delightful work of faction titled Three Cups of Tea and the target of legal action by disgruntled donors.

The Montana Attorney General has now released a 44 page report [PDF] that comments
Mortenson’s pursuits are noble and his achievements are important. However, serious internal problems in the management of CAI [Mortenson's charity the Central Asia Institute] surfaced. As Attorney General, I’m tasked with overseeing nonprofit charities operating in Montana. Through our investigation, the Montana Department of Justice sought to determine whether Mortenson and the leadership of his organization had violated the law governing nonprofit corporations.
Our investigation centered on whether CAI’s officers and directors satisfied their legal duties with regard to Mortenson’s books and speaking engagements, and in managing the financial and operational affairs of the organization. We concluded that the board of directors failed to fulfill some of its important responsibilities in governing the nonprofit charity. Further, Mortenson failed to fulfill his responsibilities as executive director and as a member of the board.
Despite policies that committed him to do so, Mortenson failed to make contributions to CAI equal to the royalties he earned on the books the organization purchased. Nor did he and CAI devise an equitable way to split the costs to advertise and promote the book, which was required by his 2008 employment agreement. Mortenson also accepted travel fees from event sponsors at the same time that CAI was paying his travel costs. Moreover, he had significant lapses in judgment resulting in money donated to CAI being spent on personal items such as charter flights for family vacations, clothing and internet downloads.
Despite consistent and repeated warnings about a lack of financial controls for the money CAI spent abroad and here at home, the board of directors failed to close those gaps over a period of nearly ten years.
Nonprofits are big business in America. Charitable giving exceeds $300 billion a year. Americans continue to donate their money despite weathering challenging economic times. When charities take the money people give for specific purposes, it is essential that the money be spent as intended. When it is not, the underlying public trust erodes and can be difficult to restore.
Greg Mortenson and the Central Asia Institute can learn from their missteps. The settlement we negotiated provides an opportunity to make meaningful changes and reestablish the charity going forward. Despite the severity of their errors, CAI is worth saving. Its pursuit remains admirable, and it still has significant assets to advance its cause and fulfill the donors’ intent. As a nonprofit organization, it should be able to execute its mission well into the future.
That’s why the Montana Attorney General’s Office, under my direction, ultimately sought a resolution that would enable this organization to move beyond its troubles. We entered into a settlement agreement with Mortenson and CAI which guarantees in excess of $1 million in restitution from Mortenson for his past financial transgressions. We have also implemented stricter organizational and financial controls within CAI that will help ensure charity dollars are spent as intended so that the donating public’s trust can be restored.
This includes removing Mortenson from any position of financial oversight and as a voting member of the board of directors. He will be allowed to continue in a role that best complements his goals as they pertain to CAI’s mission. A new executive director will be hired to better manage the day-to-day operations. After a transitional period of 12 months, the settlement also calls for the two remaining board members to step down while, in the meantime, a new board consisting of at least seven members will be appointed.
CAI’s mission is worthwhile and important. Its accomplishments, driven by the vision and dedication of Mortenson, are significant – as even their harshest critics acknowledge. It has substantial assets which, if properly managed, can be used to pursue the charity’s mission and, in the process, improve the lives of people in a very challenging and complex region of the world. The settlement agreement allows CAI to move forward positively in pursuit of its mission. It includes monitoring provisions that will allow the Montana Attorney General to assure that the agreed-upon corrective measures are effectively implemented and that will allow donors to be confident that their contributions are being used properly.
The next chapter in this deeply unedifying saga is presumably Mortenson's reappearance, after time out of the limelight in the traditional period of repentance and reflection with his family, in a round of talkshows and media interviews and perhaps even a bestselling book about he learned from adversity and has become a stronger, better person.

It's worth recalling Krakauer's comment last year -
Mortenson's books and public statements are permeated with falsehoods. The image of Mortenson that has been created for public consumption is an artifact born of fantasy, audacity and an apparently insatiable hunger for esteem. Mortenson has lied about noble deeds he has done, the risks he has taken, the people he has met, the number of schools he has built. Three Cups of Tea has much in common with A Million Little Pieces, the infamous autobiography by James Frey that was exposed as a sham. But Frey, unlike Mortenson, didn't use his phony memoirs to solicit tens of millions of dollars in donations from unsuspecting readers, myself included. Moreover, Mortenson's charity, the Central Asia Institute, has issued fraudulent financial statements, and he has misused millions of dollars donated by schoolchildren and other trusting devotees. "Greg", says a former treasurer of the organisation's board of directors, "regards CAI as his personal ATM".
It is unclear whether Mortenson will take defamation action against Krakauer, the producers of 60 Minutes and other critics.


In a May 2012 postscript US federal judge Sam Haddon in Montana (Case 9:11-cv-00072-SEH) dismissed the class action - fraud and racketeering - against Mortensen and his publisher, based on the claim that they had conspired to fraudulently represent Mortenson as a hero in order to sell books and raise money.
Essentially, Plaintiffs contend that Defendants knew the truth, but portrayed Mortenson into a hero in order to persuade people to buy the Books, which financially benefitted the Defendants. ... Plaintiffs assert they suffered concrete financial loss when they paid full price for a nonfiction book when it was fiction. The financial loss is alleged to be "the out-of-pocket loss, ... minus the value of the false and fraudulent "nonfiction" books, which is [characterized as] zero.".
The court did not rule on the truthfulness of Three Cups of Tea. Instead it held that the class action fell short because it failed to identify the racketeering activity and failed to identify each defendant's role in the alleged fraud.

Haddon commented -
The RICO claims are fraught with shortcomings, including failure to satisfy causal elements, failure to specify the roles of the Defendants, not adequately pleading enterprise theories, and failure to specify an actionable, identifiable racketeering activity. Failure to adequately address the causal elements is the ultimate and fatal flaw.
Haddon criticised the argument that the plaintiffs suffered financial loss for paying “full price for a nonfiction book when it was fiction”, noting that they failed to address whether they would have purchased the same book as fiction.
Plaintiffs overly broad statements that they paid approximately $15 for the Books because they were represented as true does not suffice. Additionally, Plaintiffs fail to allege when they purchased the Books,which is crucial in analyzing this case. 
In fact, Plaintiffs never allege they visited CAI's website or saw or heard any statements made by it before purchasing the Books. The Complaint likewise does not differentiate allegations against each Defendant, nor does it inform Defendants separately of the allegations surrounding any alleged participation in the fraud. General statements that the enterprise caused Mortenson to make various false statements relating to his life experiences do not satisfy Twombly and Iqbal standards.
Pleaded examples of how the enterprise marketed and promoted the Books also fail to satisfy appropriate pleading standards. Members of the enterprise cannot be expected to defend against Plaintiffs claims, when each participants role is only vaguely described, if at all. ...
The Court has not found and the parties have not referenced controlling authority or persuasive case law in the Ninth Circuit directed to privity of contract between an author or publisher of abook and a reader who purchased such book. The Second Circuit's principle that a news publisher is not in privity with the publication's purchasers, absent "fraud amounting to deceit, libel, or slander" is, however, persuasive. ...
The Court cannot accept as true, and as a matter of sufficiency of pleading, Plaintiffs conclusory statement that "[b]y writing, publishing, advertising,marketing, and promoting (the Books] as nonfiction and true stories, the characteristics of said books became an implied contractual condition of sale." More is necessary if an implied contract is to be found....
In short, the Complaint fails and is deficient on several fronts. The RICO, fraud, and deceit claims are not pled with the requisite level of particularity. Plaintiffs fail to satisfy causal elements of RICO, do not identify each Defendant's role in the frauds, present highly questionable enterprise theories, do not adequately identify the alleged racketeering activity, and fail to identify the specific representations and materiality of such representations relied upon. An express contract is not pleaded. An implied contract is not found, as consent and consideration are missing. In the absence of adequate allegations of reliance, cognizable injury, and misconduct against the Defendants, the remaining claims fail. ... The case has been pending for almost a year. Thc Complaint before the Court is the fifth pleading filed. Plaintiffs have been accorded every opportunity to adequately plead a case, if one exists. Moreover, the imprecise, in part flimsy, and speculative nature of the claims and theories advanced underscore the necessary conclusion that further amendment would be futile.
One conclusion from an Australian perspective is that legal drafting matters. So does procedure.