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Law in Context

Abstract from Volume 29 No 1 (2013) Intellectual Property and New Technologies

Talkin’ ‘Bout Law’s Generations: Pop Culture, Intellectual Property and the Interpretation of Case Law

Marett Leiboff is an Associate Professor in the School of Law at the University of Wollongong. She is a member of the Law and Popular Cultures Group at the Legal Intersections Research Centre, and Vice President of the Law Literature and Humanities Association of Australasia. She is currently investigating generational and intergenerational interpretative practices drawing on the use of pop culture references in judgments through an ongoing project titled Talkin’ ‘bout Law’s Generations.

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/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.

(2013) 29(1) Law in Context 95

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