11 December 2017

Nudges

'The Folly of Categorization: Why Nudges are Even More Defensible than Their Advocates Suppose' by Douglas Husak in (2016) 14 The Georgetown Journal of Law and Public Policy comments
Count me among those philosophers who believe that most of the normative controversies about nudging or so-called libertarian paternalism are vastly overblown. I hope we are many, but it is hard to be sure. Nearly all of the worries brought against nudges qua nudges expressed by or attributed to moral philosophers are misdirected and/or exaggerated. My modest goal is to support this claim by attempting to show that Cass R. Sunstein—who almost certainly is the most well-known champion of nudges or libertarian paternalism—takes several of the philosophical objections to his proposals too seriously and responds to them less forcefully than he might.

Witches and Institutional Capacity

'Taxes, Lawyers, and the Decline of Witch Trials in France' (GMU Working Paper in Economics No. 11-47, 2012) by Noel D. Johnson and Mark Koyama comments
 How is rule of law established? We address this question by exploring the causal effect of increases in fiscal capacity on the establishment of well enforced, formal, legal standards in a pre-industrial economy. Between 1550 and 1700 there were over 2,000 witch trials in France. Prosecuting a witch required a significant deviation from formal rules of evidence by local judges. Hence we exploit the significant variation across time and space in witch trials and fiscal capacity across French regions between 1550 and 1700 to show that increases in fiscal capacity caused increased adherence to the formal rule of law. As fiscal capacity increased, local judges increasingly upheld de jure rules and the frequency of witch trials declined.

Markets and Corporate Personhood

'The Institutions of Roman Markets' by Benito Arruñada in Giuseppe Dari-Mattiacci (ed.), Roman Law and Economics vol. 2 (Oxford University Press, 2018) comments
I analyze the basis of the market economy in classical Rome, from the perspective of personal-versus-impersonal exchange and focusing on the role of the state in providing market-enabling institutions. I start by reviewing the central conflict in all exchanges between those holding and those acquiring property rights, and how solving it requires reducing information asymmetry without endangering the security of property. Relying on a model of the social choice of institutions, I identify the demand and supply factors driving the institutional choices made by the Romans, and examine the economic circumstances that influenced these factors in the classical period of Roman law. Comparing the predictions of the model with the main solutions used by Roman law in the areas of property, business exchange and the enforcement of personal obligations allows me to propose alternative interpretations for some salient institutions that have been subject to controversy in the literature, and to conclude with an overall positive assessment of the market-enabling role of the Roman state.
'Brexit and Corporate Citizenship' by John Armour, Holger Fleischer, Vanessa Jane Knapp and Martin Winner  in (2017) 19(2) European Business Organization Law Review 225-249 comments 
The UK’s recent vote for Brexit has sparked a fierce debate over the implications for the rights of EU citizens living in the UK and UK citizens living in the rest of the EU. So far, however, there has been relatively little discussion of the implications of Brexit for legal persons – that is, corporate citizens of the EU, which may also be profoundly affected by consequent changes. The ECJ’s 1999 decision in Centros made clear that the freedom of establishment protects the entitlement of corporate persons formed in one EU Member State to carry on their business in another Member State. Since then, many entrepreneurs in continental European countries have chosen to form companies in the UK, while still carrying on their business in their home country. What will the consequences of Brexit be for such companies? 

28 November 2017

Contempt

The Legal and Constitutional Affairs References Committee report Law of contempt recommends 'that the submissions received to this inquiry be referred to any future Senate inquiry into contempt'.

The Committee was tasked in August 2017 with reporting by 25 November on
(a) the recommendations of the 1987 Australian Law Reform Commission report on contempt and, in particular, the recommendation that the common law principles of contempt be abolished and replaced by statutory provisions; 
(b) the recommendations of the 2003 New South Wales Law Reform Commission on contempt by publication and the need to achieve clarity and precision in the operation of the law on sub-judice contempt; 
(c) the development and operation of statutory provisions in Australia and overseas that codify common law principles of contempt; 
(d) the importance of balancing principles, including freedom of speech and expression, the right of fair trial by an impartial tribunal, public scrutiny of the operations of the court system and the protection of the authority, reputation and due process of the courts; and 
(e) any other related matters.
The committee received six submissions

The report states that
On 7 April 1983, the Australian Law Reform Commission (ALRC) was referred an inquiry which sought to consider the following forms of contempt:
• improper behaviour in court; 
• attempting to influence participants in proceedings; 
• failing to comply with a court order or an undertaking given to a court; and 
• contempt by publication.
In June 1987 the ALRC tabled its final report, Contempt, which made 124 recommendations. ... In essence, the ALRC recommended that the common law principles of contempt be abolished and replaced by statutory provisions which would govern all Federal Courts except the High Court of Australia. 
On 14 July 1998, the Law Reform Commission of New South Wales (NSWLRC) was asked to inquire into the law of contempt by publication. Specifically, the terms of reference were:
To inquire into, and report on, whether the law and procedures relating to contempt by publication are adequate and appropriate, including whether and in what circumstances, a person against whom a charge of contempt is found proven should be liable to pay, an addition to any criminal penalty, the costs (of the government and of the parties) of a criminal trial aborted as a result of the contempt
The report, Contempt by publication, was published in June 2003 and subsequently tabled in the NSW Parliament on 16 September 2003. The committee made 39 recommendations .... The report noted that to codify contempt by publication, while leaving the common law to regulate other forms of contempt, would not have the effect of achieving clarity over the operation of contempt laws. However, the report recommended significant legislative reform in the area of contempt by publication, 'while allowing the common law to continue to develop.'
Codification of the law of contempt 
The views of submitters relating to whether or not contempt laws should be codified were mixed. The Legal Service's Commission of South Australia (LSC) supported the codification of contempt laws arguing that this would achieve greater clarity for defendants and consistency in the manner in which sanctions were being imposed. The LSC made the following suggest[ion]s if contempt laws were to be codified:
• that a catch all provision be included in the definition of contempt so that unforeseen incidents of contempt are not excluded; 
• that contempt in the Family Courts take into account its unique role and be tailored to its unique priorities, such as the welfare of children; and 
• if contempt is to be dealt with entirely in the criminal courts, then it should not be dealt with summarily and the defendant have the right to request the matter be heard by a different judicial officer.
The Law Council of Australia (Law Council), expressed the view that contempt laws currently operate 'satisfactorily', although it was not opposed to the codification of contempt laws in line with the recommendations of the ALRC and the NSWLRC reports. However, in noting its broad support for the codification of the law of contempt, the Law Council explained the importance of retaining certain principals such as flexibility and freedom of expression: 
Despite its support for efforts to codify rules of contempt, the Law Council is conscious of the special role contempt plays in the judicial system and considers it to be critical that any measures to codify the law of contempt retain as much flexibility and discretion as possible to allow judicial officers to appropriately deal with issues arising from contempt of court on a case-by-case basis.
The nature of contempt demands a complex balancing of interests, most notably between freedom of expression on one hand and the integrity of the justice system on the other. In this regard, the Law Council emphasises the need for reform proposals to remain cognisant of the fundamental importance of the administration of justice and the contribution made by the law of contempt to preserving this. The reform proposals must also avoid unduly infringing principles of freedom of expression and open justice.  
Should reforms to the law of contempt proceed, the Law Council made the following recommendations:
• Any reform to the laws of contempt should be co-ordinated between the Commonwealth and the States to achieve uniformity; 
• The recommendations of the ALRC that common law principles of contempt be recast as criminal offences should be implemented, to the extent that they do not already overlap with the criminal law; 
• The recommendations of the ALRC that contempt in the face of the court be replaced with a series of criminal offences to be tried summarily should be implemented; 
• The recommendations of the ALRC that civil contempt be replaced with a statutory regime of non-compliance proceedings should be implemented; 
• A "substantial risk" test proposed by the NSWLRC should be uniformly implemented in relation to contempt by publication; 
• Summary trial procedures for sub-judice contempt should be retained; 
• if contempt is to be dealt with entirely in the criminal courts, then it should not be dealt with summarily and the defendant have the right to request the matter be heard by a different judicial officer. 
• The public interest defence recommended by the NSWLRC in relation to contempt by publication should be implemented; 
• The law of contempt by publication should be reviewed to ensure that it applies to circumstances where an Internet Service Provider or Internet Content Host has been made aware of the material but, thereafter, fails or refuses to remove it.
The Law Council also recommended that they be consulted prior to any reforms relating to the law of contempt being introduced. 
 The NSW Office of the Director of Public Prosecutions (ODPP) did not comment on the recommendations of the ALRC's report, however, stated that it 'supports the development of uniform statutory provisions governing the law of sub judice contempt.' The ODPP noted that since the NSWLRC's report of 2003, social media platforms such as Facebook and Twitter were launched, which have significantly changed the media landscape, including in the manner and form in which media is being reported. As such, the ODPP suggested that '[t]he proposed legislation will need to take account of the changing media environment to ensure that all manner of publications are covered by the sub judice provisions, including the new and emerging social media platforms.' 
While the International Commission of Jurists Victoria (ICJ) described the NSWLRC's report as 'an extremely useful and comprehensive tool in discerning the relevant issues with respect to contempt by publication laws…', it argued against the broad codification of contempt laws. The ICJ disagreed with criticism that the laws of contempt were difficult to determine and potentially lacking in procedural fairness. It noted that the flexibility of the current law allows the courts to appropriately tailor their responses and that courts have shown that they are able to apply their powers in a 'fair and nuanced way'. Finally, the ICJ argued that it was essential that courts are able to initiate contempt proceedings on their own motion as this is vital to the exercise of their independence. 
The NSW Office of the Director of Public Prosecutions (ODPP) did not comment on the recommendations of the ALRC's report, however, stated that it 'supports the development of uniform statutory provisions governing the law of sub judice contempt.' The ODPP noted that since the NSWLRC's report of 2003, social media platforms such as Facebook and Twitter were launched, which have significantly changed the media landscape, including in the manner and form in which media is being reported. As such, the ODPP suggested that '[t]he proposed legislation will need to take account of the changing media environment to ensure that all manner of publications are covered by the sub judice provisions, including the new and emerging social media platforms.' 
A couple of submitters did not offer a view as to whether or not the law of contempt should be codified, however made the following observations: 
• the right to freedom of expression and the right to have a fair hearing can sometimes compete with one another but freedom of expression should not be misused to prejudice the prospects of a person obtaining justice before the courts;
• that the point of view and lore of Australia's Aboriginal and Torres Strait Islander people be considered.
The committee thanks all organisations and individuals who made submissions to this inquiry, though it notes that the number of submissions received is far lower than it had anticipated. Having received such limited input, the committee does not feel that it is in a position to properly inquire into this complex issue, or to form a considered view as to whether the laws of contempt should be codified. However, having regard to the important and considered views expressed in the submissions received, the committee recommends that the submissions be referred to any future Senate inquiry into contempt.

26 November 2017

Emojis

'Surveying the Law of Emojis' (Santa Clara University Legal Studies Research Paper, 8-17) by Eric Goldman comments
Everyone loves emojis! It’s easy to see why. Historically, most online communications have emphasized text, and emojis add much-needed emotional content to text-driven communications—and often help people express themselves more precisely. Due to the enthusiastic embrace of emojis, we are witnessing a historic change in how we communicate online. 
This article surveys three significant ways the emoji revolution will impact the law. 
First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration. Most significantly, senders and receivers will unexpectedly see different versions of an emoji due to technological intermediation, leading them to make reasonable—but different—interpretations of the same communication, with potentially adverse consequences for one or both parties. The article will explore some steps that would reduce the risks of these misunderstandings. 
Second, emojis will often qualify for copyright and trademark protection. However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly. 
Third, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to fact-finders.

23 November 2017

Leaks

'Leak-Driven Law' by Shu-Yi Oei and Diane Ring in (2018) 65 UCLA Law Review comments
Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries. 
The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom is too simplistic. In addition to its clear benefits, leak-driven lawmaking carries distinctive risks, including the risk of agenda setting by third parties with specific interests and the risk associated with leaks’ capacity to trigger non-rational responses. Even where leak-driven lawmaking is beneficial overall, it is important to appreciate its distinctive downside risks, in order to best design policy responses. 
This Article is the first to thoroughly examine both the important beneficial effects of tax leaks, and their risks. It provides suggestions and cautions for making and enforcing tax law, after a leak, in order to best tap into the benefits of leaks while managing their pitfalls. 

08 November 2017

Postgrad Complaints

The NSW Ombudsman Discussion Paper Complaints about supervision of postgraduate students suggests steps that could be taken by universities to refine their policies and practices to specifically address conflicts that may arise in postgraduate supervisory arrangements.

The paper comments
The NSW Ombudsman has jurisdiction over all public universities in NSW – ten universities in all. We receive and investigate complaints from students about administrative actions relating to their enrolment, course progress, supervision and termination of their studies. At the Ombudsman’s office, we have worked with universities to develop tailored guidance for dealing with the unique issues that can arise in university complaints. An important stage in this work was in 2015 when we published, together with other Australian Ombudsman offices, Complaint Handling at Universities: Australasian Best Practice Guidelines. As the foreword to those guidelines observed about university complaints, ‘Mishandled complaints have a high potential cost, both financially and in damage to reputations’. For several years, we have been looking into complaints that relate to postgraduate supervision in NSW universities. We have received a steady number of these complaints and they are often complex and time consuming to examine. They are also often accentuated by career and personal concerns reflected in the breakdown of research relationships between postgraduate students and supervisors.
In January 2016, we released a draft discussion paper to university complaint handlers in NSW. There was strong interest in the topic, with submissions from universities and discussions between Ombudsman and university staff and with representatives from postgraduate student organisations.
We have now decided to take the issue a step further by publishing a revised discussion paper that will be made more widely available on our website. This revised paper builds on the consultation that has occurred to date. It includes a number of We invite submissions or comments from any interested parties by 31 January 2018 particularly examples of initiatives that have successfully resolved conflicts in postgraduate supervision. We will then decide if further action is needed to develop best practice guidelines or share practical examples and ideas among universities. ....
This project arose from the steady number of complaints the NSW Ombudsman has received over many years about postgraduate supervision in NSW universities. These complaints can be complex and take time and resources to examine. They often also have a personal aspect which makes them especially challenging to deal with.
In January 2016, we published a draft discussion paper for university complaint handlers and received many helpful submissions in reply. We also reviewed relevant university policies, surveyed all NSW universities, conducted follow-up interviews with university staff at each institution, and spoke with representatives of several postgraduate student organisations. This current discussion paper has resulted from those conversations and the strong interest that we have encountered on this topic.
Universities in NSW have told us that complaints by postgraduate students are not overall more frequent than other kinds of student complaints. Allegations of academic or non-academic misconduct in postgraduate supervision are not sustained after investigation any more often than other student allegations. However, universities generally recognise that there is a potential for postgraduate complaints to be complex and bitterly-contested and significant resources can be spent in dealing with them.
This discussion paper aims to help all those involved share what they feel to be best practice in complaint handling in this field. This will hopefully facilitate a constructive exchange of ideas and experience. There is no implicit suggestion in this project that universities have dealt poorly with these matters in the past, or that some universities have performed poorly compared to others. A number of universities have commented that the conversations leading to this discussion paper have been beneficial. For example, one university found that useful information it had published about dealing with conflicts between supervisors and students on a FAQ page on its website appeared only in the ‘for supervisors’ version of the page.
Universities have also moved of their own accord to address issues in response to the questions raised in our survey and follow-up interviews with interested parties. For example, some universities found that their policies were not as clear as they could be and have undertaken to revise them.
The paper comments that ' Difficulties and conflicts will always arise between postgraduate students and supervisors. The sensible path forward is therefore to develop a structured framework that acknowledges this possibility and implements steps to avoid or deal with it'. It accordingly suggests  ten strategies for inclusion in such a structured framework:
1. Universities should prepare accessible written guidelines for students and supervisors on dealing with conflicts and disputes – including counselling, appointing a new supervisor, and referring disputes for conciliation. These guidelines should advise students and supervisors that problems can arise in all supervisory relationships that are not the fault of either party.
2. Universities should consider developing or continuing a structured training program for supervisors on the skills of supervision. This training should contain practical advice on dealing with problems in the supervisory relationship, such as ‘having difficult conversations’.
3. Members of supervisory panels should be advised when they start their role to take note of signs of deterioration in supervisory relationships, and report these to the conflict resolution officer in postgraduate administration or the ‘mentor’ if one has been appointed to the panel.
4. Students and supervisors should be encouraged to keep a written record of their supervisory arrangements, expectations and mutual responsibilities. Both could be encouraged to co-sign any important records.
5. Universities should implement a procedure whereby a student, after their annual performance review, can submit a confidential report on perceived problems in their supervisory relationship.
6. Universities should nominate a designated officer – a ‘go-to’ person – that a student or supervisor can speak to if they are experiencing significant difficulties in a supervisory relationship. This designated officer (or panel of officers) could be located or administered by the central university office responsible for postgraduate administration. They could be given a recognisable title, such as ‘conflict resolution officer’.
7. A designated student ‘mentor’ could be appointed to the supervisory panel for each student who has changed their principal supervisor more than once – with the exception of changes arising from matters such as the death, illness, resignation or retirement of a supervisor. The mentor’s role would be to monitor the general supervisory relationship, independent of the substance of the research project. It should also be understood that the appointment of a mentor is not seen as a negative or punitive response to the changes in supervisory arrangements.  Universities could also consider, on an individual basis, whether a ‘mentor’ should be appointed to a supervisory panel in other special circumstances. For example, if the principal supervisor is undertaking supervision for the first time – or the principal supervisor was involved previously in a sustained formal grievance process or was the subject of serious allegations of bullying or harassment. Including the mentor on the supervisory panel should be seen as a safeguard measure to minimise potential problems and provide independent feedback to the supervisors – not as a performance management measure that reflects on the supervisor’s suitability.
8. Universities should consider establishing a panel of internal university mediators, conciliators or trained dispute-resolution specialists who are available – with the consent of the parties – to deal with unresolved conflicts between students and supervisors.
9. Universities should consider implementing a structured program for contacting students by email at designated stages of a research project, and inviting them to raise or discuss on a confidential basis any issues they may be experiencing with their supervision. The following is suggested text to include in the email:
The university recognises that postgraduate study can be stressful. The stress will be greater if you feel you have an unsatisfactory academic relationship with your supervisor. You may raise any concerns you have by replying to this email. Other options and procedures for dealing with problems you may be facing with your supervisor are outlined in the university’s guidance on postgraduate supervision, which is available at the following link: [a link to information on the university’s dispute–resolution or conciliation process]. If you believe your supervisor is acting improperly or unethically, you have the right to submit a formal grievance. The procedure for doing this is outlined in the university’s guidance on postgraduate supervision. The university will receive any concerns you raise on a confidential basis. However, it may be necessary to discuss an issue with your supervisor or members of the supervisory panel if we are going to further investigate your complaint. We will discuss this with you before contacting your supervisor.
10. Students should be made aware – both in their induction material and through other accessible policies or guidance material – of the independent complaint and appeal mechanisms that are available to them. This includes the right to complain to the NSW Ombudsman, the Australian Research Integrity Committee, The Anti-Discrimination Board of NSW, the Human Rights and Equal Opportunities Commission, the Tertiary Education Quality and Standards Agency, and the Independent Commission Against Corruption – as well as professional bodies, schools or boards that regulate careers in certain occupations.