24 February 2018


'Employing AI' (Seton Hall Public Law Research Paper) by Charles A. Sullivan comments
Imagine that, today or in the not-so-distant-future, a company desires to take full advantage of the developments of artificial intelligence by effectively delegating all its hiring decisions to a computer. It gives the computer only one instruction: “Pick good employees.” Taking “Big Data” to the logical extreme, the computer is also provided with all the employer’s available data and empowered to find whatever data it might consider relevant on the web. 
Thought experiments, such as this one, can be useful not only in exploring new concepts but also in bringing interesting perspectives to bear on old problems. “People analytics,” perhaps someday leading to use of artificial intelligence in selecting and managing employees, offers an opportunity to do both. 
One disturbing conclusion from analyzing this scenario is that the current disparate treatment paradigm does not seem to reach even the explicit use of race, sex, or other “protected classes” as selection criteria when deployed by artificial intelligence. That sheds some interesting light on the limitations of current law, entirely apart from actual developments in AI. 
Equally important, applying disparate impact theory to artificial intelligence’s use of correlations between any of a number of variables and various measures of job performance poses challenges for long-standing ways of viewing the job relation/business necessity defenses to a showing that a particular employment practice has a disparate impact.


'HLA Hart’s secondary rules: what do ‘officials’ really think?' by David Howarth and Shona Wilson Stark in (2018) 14(1) International Journal of Law in Context 61-86 comments
The impact of HLA Hart’s The Concept of Law on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? In Concept, Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (ie whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart’s statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

23 February 2018

Bad, Mad or Sad Health Practitioners

'Mind the Information Gap: Quantifying the Courts’ Role in Responding to Patient Harm, 1989 to 2013' by Wendy Bonython and Bruce Baer Arnold in (2018) 25(2) Journal of Law and Medicine 549-571 comments
 An empirical critique of Australia’s medical indemnity “crisis” challenges assumptions about the role of the courts through determination of civil liability for medical negligence, occupational discipline and criminal liability. Courts were identified as a cause of a “crisis” in the 2000s that triggered extensive legislative reform of medical negligence law, absent adequate empirical data substantiating either criticisms of the courts or supporting the reforms. Changes to the occupational discipline framework for health practitioners were less controversial but have resulted in increasingly legalistic responses. 
Using a detailed longitudinal analysis across all jurisdictions this article examines the role of the courts in responding to patient harm across the relevant 25-year period encompassing these reforms, to determine whether the courts did “cause” the medical indemnity crisis, what effect the reforms had and what other roles the courts play in responding to patient harm.

19 February 2018

Biometric Data Sharing

The Identity-matching Services Bill 2018 (Cth) - A Bill for an Act about dealing with information for providing identity‑matching services and for carrying on certain identity or community protection activities, and for related purposes - is intended to give effect to the intergovernmental agreement on the National Driver Licence Facial Recognition Solution (NDLFRS), ie the sharing of biometric and other data associated with driver licences.

The Bill provides that
The Secretary of the Department may develop and operate:
(a) the interoperability hub, which relays electronic communications between bodies and persons requesting and providing identity‑matching services; and 
(b) the NDLFRS, which includes a database of identification information from State and Territory authorities and may be used to provide identity‑matching services.
The Department may collect identification information through the interoperability hub or NDLFRS for any of the following purposes:
(a) providing or developing identity‑matching services for identity or community protection activities; 
(b) developing, operating or maintaining the NDLFRS; 
(c) protecting the identities of persons who have legally assumed identities or are under witness protection.
The Department may use or disclose for any of those purposes information so collected (regardless of the purpose for which it was collected). Generally, identity‑matching services involve requests for electronic comparison of identification information about an individual to identify the individual, verify the individual’s identity, check whether the individual has more than one State or Territory government identification document of a particular kind, or manage identification information about the individual in the NDLFRS. 
Identity or community protection activities mostly relate to identity‑related fraud, law enforcement, proceeds of crime, security and safety. Persons who work for the Department, and contractors whose duties relate to the interoperability hub or the NDLFRS, may commit an offence for unauthorised disclosure or recording of certain information held in, generated using or relating to the interoperability hub or the NDLFRS. The Minister must report to Parliament annually on the use of most of the identity‑matching services.
Section 5(1) of the Bill, dealing with identification information, provides
(1) Identification information about an individual (whether living, dead, real or fictitious) is any of the following:
(a) a name by which the individual is or has been known; 
(b) a current or former address of the individual; 
(c) the place or date the individual was born; 
(d) the age of the individual (whether expressed by reference to a range or not); 
(e) the current or former sex, gender identity or intersex status of the individual; 
(f) information about whether the individual is alive or dead; 
(g) any information that is: (i) contained in a driver’s licence (however described) issued by or on behalf of an authority of a State or Territory in a name of the individual; or (ii) otherwise associated with the licence by the authority; 
(h) any information that is: (i) contained in any other licence (however described), or any document issued to assist the individual to prove his or her age or identity, that contains a photograph purporting to be of the individual and is issued by or on behalf of an authority of a State or Territory in a name of the individual; or (ii) otherwise associated with such a licence or document by or on behalf of the authority; 
(i) any information that is: (i) contained in a document issued to the individual, as a person who is not a Australian citizen, by the Department administered by the Minister administering the Migration Act 1958 to assist the individual to prove his or her identity; or (ii) otherwise associated with such a document by that Department; 
(j) any information that is: (i) contained in an Australian travel document (within the meaning of the Australian Passports Act 2005), or a foreign travel document (within the meaning of the Foreign Passports (Law Enforcement and Security) Act 2005), issued in the name of the individual; or (ii) otherwise associated with the Australian travel document by the Minister administering the Australian Passports Act 2005 or the Department administered by that Minister; or (iii) otherwise associated with the Australian travel document or foreign travel document by an authority of the Commonwealth or of a State or Territory by which the travel document may be inspected or seized under a law of the Commonwealth or of a State or Territory; 
(k) the individual’s current or former citizenship; 
(l) information about a visa the individual holds or held; 
(m) a facial image of the individual, a biometric template derived from such an image or a result of biometric comparison involving such an image; 
(n) any information that is prescribed by the rules and relates to the individual.

18 February 2018


'The Question That Killed Critical Legal Studies' by Richard Michael Fischl in (1992) 17(4) Law and Social Inquiry 779 comments
A short while ago, I attended the 25th reunion of my eighth-grade graduation class. I had been looking forward to getting together with the 70 or so folks with whom I had experienced parochial school during the late 1950s and early 1960s for a host of reasons-not the least of which was that I expected to see my "first love," to whom I had not spoken in well over 20 years. I had long since blown that candle out, but I was intrigued by reports from mutual friends and acquaintances suggesting that she and I had followed remarkably parallel life paths. She, too, had gone to law school; she, too, had gone on to teaching after a stint in practice; she, too, had come to love the classroom and to enjoy scholarly life; and she, too, had evidently succumbed to the entreaties of her colleagues to undertake a multitude of thankless institutional-service tasks - the last a pattern of behavior that perhaps only unexpurgated Catholic guilt could explain. So I was dying to know: Did she still go to church? The Church? To confession? Did she take communion during the Eastertide? Eat meat on Fridays? 
When the moment of truth at last arrived, she had a different agenda. "So," she said after a warm hello, "I hear you're a crit." My mind raced for a response. I couldn't deny it - not, in any event, in this setting, where there was a serious possibility that even a single evasive maneuver might prompt a nearby cock to crow at dawn's first light. Besides, I suspected that she had a highly credible source: a classmate with whom we'd both kept in touch over the years, who is a disciple of the late Allan Bloom and has had a bit of a closed mind himself with respect to my longstanding association with critical legal studies. I opted instead for confession and avoidance, intended primarily to get us off the subject fast. "Relax," I replied, "We're no threat to anyone anymore. Greetings from the dustbin of history." 
"It was bound to fail, Michael," she continued, in the patient and sympathetic tone that has no doubt helped make her the great teacher that by all accounts she has become. "The problem with critical legal studies is that it didn't offer any alternative program. Now I'm no great defender of the rule of law, but what would you put in its place?" "If cls is dead," I replied, "that's the question that did us in." I didn't try to explain, and she didn't seem to mind. (Someone ought to write something about the ways in which the supposedly distinct rhetorical structures of cocktail banter and the Socratic method in some missing mirror meet). Mercifully, the conversation moved on to other and far more agreeable topics, and all of us to a truly remarkable weekend of rich reminiscence and powerful reconnection. But my classmate's question and the kernel of truth contained in my glib response have stuck with me since. This essay, then, is about that question - What would you put in its place? -  and the role that it has played in the reaction of many mainstream legal academics to the critical legal studies movement.
Truth be told, a number of close friends from within cls tried to con- vince me to select a different title for this piece, fearing that irony might be mistaken for eulogy - particularly among those who, for one reason or another, might not mourn for a moment the movement's passing. So let the record show that the rumors of our demise are greatly exaggerated: Having in many ways set the intellectual agenda for legal theory in the 1980s cls scholars and those working in kindred critical/progressive traditions are alive and well, rethinking old issues, exploring new ones, and doing what is for my money the most interesting and important work in legal scholarship today. But if the title is thus somewhat hyperbolic, it nevertheless captures something very real about the relationship between critical legal studies and the rest of the profession. By my estimate, the average non-cls academic will converse politely with a crit for about three minutes before asking - pointedly - some version of my eighth-grade classmate's question. Published reactions to and assessments of our work are scarcely more patient.