02 June 2018

Ag Surveillance

The NSW Legislative Council has established a Select Committee On Landowner Protection From Unauthorised Filming Or Surveillance.

The Committee, chaired by the Hon Robert Borsak MLC (of the Shooters, Fishers and Farmers Party), states that it
was established to investigate concerns about intrusion and trespass taking place on farms for the purpose of capturing unauthorised surveillance material and disseminating it through traditional and social media. 
Its media release states
Mr Borsak said “there is an increasing issue of animal welfare advocates trespassing on land to try expose animal cruelty, which can have a significantly detrimental impact on farming businesses. This committee will examine this complex issue to determine how the welfare of animals and the rights of land and business owners can both be protected.”  
Mr Borsak continued “the inquiry will examine the extent of existing protections for landowners, the appropriateness of penalties for offenders, and the self-incrimination implications for individuals who disclose unauthorised surveillance material to authorities.” 
The committee will also investigate the impact of the rapidly changing media environment of surveillance activity for landholders. 
Mr Borsak said “social media platforms like Facebook Live have changed the way unauthorised recordings and surveillance material can be disseminated and the committee will look into the implications of this.”
The Committee's Terms of Reference are
That a select committee be established to inquire into and report on the extent of protection for landowners from unauthorised filming or surveillance and in particular:
(a) the nature of protection for landholders from unauthorised filming or surveillance, including but not limited to installation, use and maintenance of optical surveillance devices without consent under the Surveillance Devices Act 2007,
(b) the extent and appropriateness of penalties for unauthorised filming or surveillance, including but not limited to on-the-spot fines and/or relevant penalties under the Summary Offences Act 1988,
(c) the implications with regard to self-incrimination of the request of disclosure by a person of any recordings made by that person,
(d) the implications of rapidly changing media environment, including social media platforms such as Facebook Live, and
(e) any other related matter.

ALRC Class Actions Discussion Paper

The Australian Law Reform Commission discussion paper regarding its Inquiry into Class Action Proceedings and Third-Party Litigation Funders features the following  Proposals and Questions -
1. Introduction to the Inquiry 
Proposal 1–1 The Australian Government should commission a review of the legal and economic impact of the continuous disclosure obligations of entities listed on public stock exchanges and those relating to misleading and deceptive conduct contained in the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) with regards to:
  • the propensity for corporate entities to be the target of funded shareholder class actions in Australia; 
  • the value of the investments of shareholders of the corporate entity at the time when that entity is the target of the class action; and 
  • the availability and cost of directors and officers liability cover within the Australian market. 
3. Regulating Litigation Funders 
Proposal 3–1 The Corporations Act (2001) (Cth) should be amended to require third-party litigation funders to obtain and maintain a ‘litigation funding licence’ to operate in Australia. 
Proposal 3–2 A litigation funding licence should require third-party litigation funders to:
  • do all things necessary to ensure that their services are provided efficiently, honestly and fairly; 
  • ensure all communications with class members and potential class members are clear, honest and accurate; 
  • have adequate arrangements for managing conflicts of interest; 
  • have sufficient resources (including financial, technological and human resources); 
  • have adequate risk management systems; 
  • have a compliant dispute resolution system; and · be audited annually. 
Question 3–1 What should be the minimum requirements for obtaining a litigation funding licence, in terms of the character and qualifications of responsible officers? 
Question 3–2 What ongoing financial standards should apply to third-party litigation funders? For example, standards could be set in relation to capital adequacy and adequate buffers for cash flow. 
Question 3–3 Should third-party litigation funders be required to join the Australian Financial Complaints Authority scheme? 
4. Conflicts of Interest 
Proposal 4–1 If the licensing regime proposed by Proposal 3–1 is not adopted, third-party litigation funders operating in Australia should remain subject to the requirements of Australian Securities Investments Commission Regulatory Guide 248 and should be required to report annually to the regulator on their compliance with the requirement to implement adequate practices and procedures to manage conflicts of interest. 
Proposal 4–2 If the licensing regime proposed by Proposal 3–1 is not adopted, ‘law firm financing’ and ‘portfolio funding’ should be included in the definition of a ‘litigation scheme’ in the Corporations Regulations 2001 (Cth). 
Proposal 4–3 The Law Council of Australia should oversee the development of specialist accreditation for solicitors in class action law and practice. Accreditation should require ongoing education in relation to identifying and managing actual or perceived conflicts of interests and duties in class action proceedings. 
Proposal 4–4 The Australian Solicitors’ Conduct Rules should be amended to prohibit solicitors and law firms from having financial and other interests in a thirdparty litigation funder that is funding the same matters in which the solicitor or law firm is acting. 
Proposal 4–5 The Australian Solicitors’ Conduct Rules should be amended to require disclosure of third-party funding in any dispute resolution proceedings, including arbitral proceedings. 
Proposal 4–6 The Federal Court of Australia’s Class Action Practice Note (GPN-CA) should be amended so that the first notices provided to potential class members by legal representatives are required to clearly describe the obligation of legal representatives and litigation funders to avoid and manage conflicts of interest, and to outline the details of any conflicts in that particular case. 
5. Commission Rates and Legal Fees 
Proposal 5–1 Confined to solicitors acting for the representative plaintiff in class action proceedings, statutes regulating the legal profession should permit solicitors to enter into contingency fee agreements. This would allow class action solicitors to receive a proportion of the sum recovered at settlement or after trial to cover fees and disbursements, and to reward risk. The following limitations should apply:
  • an action that is funded through a contingency fee agreement cannot also be directly funded by a litigation funder or another funding entity which is also charging on a contingent basis; 
  • a contingency fee cannot be recovered in addition to professional fees for legal services charged on a time-cost basis; and 
  • under a contingency fee agreement, solicitors must advance the cost of disbursements and indemnify the representative class member against an adverse costs order. 
Proposal 5–2 Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to provide that contingency fee agreements in class action proceedings are permitted only with leave of the Court. 
Question 5–1 Should the prohibition on contingency fees remain with respect to some types of class actions, such as personal injury matters where damages and fees for legal services are regulated? 
Proposal 5–3 The Federal Court should be given an express statutory power in Part IVA of the Federal Court of Australia Act 1976 (Cth) to reject, vary or set the commission rate in third-party litigation funding agreements. If Proposal 5–2 is adopted, this power should also apply to contingency fee agreements. 
Question 5–2 In addition to Proposals 5–1 and 5–2, should there be statutory limitations on contingency fee arrangements and commission rates, for example:
  • Should contingency fee arrangements and commission rates also be subject to statutory caps that limit the proportion of income derived from settlement or judgment sums on a sliding scale, so that the larger the settlement or judgment sum the lower the fee or rate? or 
  • Should there be a statutory provision that provides, unless the Court otherwise orders, that the maximum proportion of fees and commissions paid from any one settlement or judgment sum is 49.9%? 
Question 5–3 Should any statutory cap for third-party litigation funders be set at the same proportional rate as for solicitors operating on a contingency fee basis, or would parity affect the viability of the third-party litigation funding model? 
Question 5–4 What other funding options are there for meritorious claims that are unable to attract third-party litigation funding? For example, would a ‘class action reinvestment fund’ be a viable option? 
6. Competing Class Actions 
Proposal 6–1 Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended so that:
  • all class actions are initiated as open class actions; 
  • where there are two or more competing class actions, the Court must determine which one of those proceedings will progress and must stay the competing proceeding(s), unless the Court is satisfied that it would be inefficient or otherwise antithetical to the interest of justice to do so; 
  • litigation funding agreements with respect to a class action are enforceable only with the approval of the Court; and 
  • any approval of a litigation funding agreement and solicitors’ costs agreement for a class action is granted on the basis of a common fund order. 
Proposal 6–2 In order to implement Proposal 6-1, the Federal Court of Australia’s Class Action Practice Note (GPN-CA) should be amended to provide a further case management procedure for competing class actions. 
Question 6–1 Should Part 9.6A of the Corporations Act 2001 (Cth) and s 12GJ of the Australian Securities and Investments Commission Act 2001 (Cth) be amended to confer exclusive jurisdiction on the Federal Court of Australia with respect to civil matters, commenced as representative proceedings, arising under this legislation? 
7. Settlement Approval and Distribution 
Proposal 7–1 Part 15 of the Federal Court of Australia’s Class Action Practice Note (GPN-CA) should include a clause that the Court may appoint a referee to assess the reasonableness of costs charged in a class action prior to settlement approval and that the referee is to explicitly examine whether the work completed was done in the most efficient manner. 
Question 7–1 Should settlement administration be the subject of a tender process? If so: · How would a tender process be implemented? · Who would decide the outcome of the tender process? 
Question 7–2 In the interests of transparency and open justice, should the terms of class action settlements be made public? If so, what, if any, limits on the disclosure should be permitted to protect the interests of the parties? 
8. Regulatory redress 
Proposal 8–1 The Australian Government should consider establishing a federal collective redress scheme that would enable corporations to provide appropriate redress to those who may be entitled to a remedy, whether under the general law or pursuant to statute, by reason of the conduct of the corporation. Such a scheme should permit an individual person or business to remain outside the scheme and to litigate the claim should they so choose. 
Question 8–1 What principles should guide the design of a federal collective redress scheme?
The ALRC's Terms of Reference are -
having regard to:
  • the increased prevalence of class action proceedings in courts throughout Australia, and the important role they play in securing access to justice; 
  • the importance of ensuring that the costs of such proceedings are appropriate and proportionate;
  • the importance of ensuring that the interests of plaintiffs and class members are protected, in particular in the distribution of settlements and damages awards; 
  • the role that third party funding entities play in enabling the commencement and maintenance of class action proceedings; 
  • the role of third party funding entities in enabling the commencement of other classes of legal proceedings, including but not limited to arbitral proceedings;
  • the potential for conflicts of interest between the professional obligations of lawyers and the commercial imperatives of third party funding entities; 
  • the fact that third party funding entities are not bound by professional ethical obligations, such as a lawyer’s duties to the court and the client; 
  • the absence of a requirement that third party funding entities (or, where the entity is a corporate entity, its officers) satisfy character requirements or meet other antecedent criteria before being permitted to act as third party litigation funders; and 
  • the absence of comprehensive Commonwealth or State and Territory regulation to address the structure, operation and terms on which third party funding entities participate in the Australian legal system.
the ALRC is to consider  whether and to what extent class action proceedings and third party litigation funders should be subject to Commonwealth regulation, and in particular whether there is adequate regulation of the following matters:
  • conflicts of interest between lawyer and litigation funder; 
  • conflicts of interest between litigation funder and plaintiffs; 
  • prudential requirements, including minimum levels of capital; 
  • distribution of proceeds of litigation including the desirability of statutory caps on the proportion of settlements or damages awards that may be retained by lawyers and litigation funders; 
  • character requirements and fitness to be a litigation funder; 
  • the relationship between a litigation funder and a legal practice; 
  • the costs charged by solicitors in funded litigation, including but not limited to class action proceedings; and any other matters related to these Terms of Reference

01 June 2018

Law Schools

Too many law schools and too many grads? 'The Multiple Dynamics of Isomorphic Change: Australian Law Schools 1987–1996' by Peter Woelert and Gwilym Croucher in (2018) 56 Minerva comments
The theory of institutional isomorphism has been criticized for overemphasizing organizational convergence and neglecting organizational divergence. Drawing on a range of empirical data, this paper shows that multi-dimensional accounts of isomorphic change are not necessarily incompatible with accounts emphasizing divergence as a typical form of organizational response to environmental uncertainties. The specific case investigated is the proliferation of academic organizational units teaching law at Australian universities over a ten-year period (1987–1996) that saw far-reaching structural transformations of the Australian university system. The key heuristic strategy employed in this paper is to scrutinize (a) when isomorphic responses appear to occur, and (b) which specific organizational form they take. In the empirical case examined, scrutiny of each of these dimensions strongly suggests that at least some isomorphic responses of universities were driven by a dual agenda of manifesting not only similarity but also distinction.
The authors state
There is a long tradition of research in the social sciences exploring processes of organizational change, including organizational homogenization. One enduringly influential approach that has been frequently applied to the organizational analysis of universities (e.g., Croucher and Woelert 2016; Diogo et al. 2015; Meyer et al. 2007; Stensaker and Norga ˚ rd 2001; Gumport 2000; Marginson and Considine 2000; Townley 1997) has been the so-called ‘new’ sociological institutionalism (Powell and DiMaggio 1991). One core tenet of this institutionalism is that processes of organizational homogenization stem from the institutionalization of specific ideas and models of ‘proper’ organizational forms and practices and the associated concerns around legitimacy. This institutionalization, so the argument goes, leads to institutional isomorphism. Several studies suggest that over recent decades universities have been particularly prone to such isomorphism as they respond to the uncertainties and pressures arising from changes in government policy and funding (e.g., Croucher and Woelert 2016; Stensaker and Norgard 2001; Marginson and Considine 2000; Townley 1997; Meek 1991 ). This is despite a widespread public policy agenda of transforming universities into organizations strategically pursuing competitive advantages through acquiring distinctive organizational forms, capacities and missions (Thoenig and Paradeise 2016; Whitley 2008 ; Krucken and Meier 2006). It has been argued that a number of specific conditions have contributed to this phenomenon. First, the knowledge-intensive work of universities is characterized by substantial uncertainty regarding the relationship between inputs and outputs (see Whitley 2008), with the associated missions and objectives of universities often being ambiguous and multifaceted (Fumasoli et al. 2015; Krucken and Meier 2006; Gumport 2000; Kerr 19 63). According to the classic account of institutional isomorphism presented by DiMaggio and Powell (1983: 154–155), such uncertainties are conducive to mimetic processes of isomorphism driving organizations to emulate other, ostensibly more successful and legitimate, organizations. Second, the continuing dependency of universities on government funding and policy setting makes them more likely to adopt specific organizational forms ‘‘to avoid sanctions available to organizations on which they are dependent’’ (Greenwood et al. 2008 : 7). This organizational response is summarized under the rubric of coercive isomorphism (DiMaggio and Powell 1983: 150). Third, universities continue to be professionalized organizations, mostly because in the selection of staff, considerable weight is given to academic credentials. According to DiMaggio and Powell, professionalization is a major driver for normative processes of isomorphism (1983: 155). There is an established body of research examining isomorphic dynamics in the organizational field of universities ranging from a global perspective (e.g., Schofer and Meyer 2005) down to the level of individual institutions (e.g., Stensaker and Norgard 2001). Some of this research has employed a longitudinal approach to detect and track salient diversification and homogenization dynamics within (and across) entire university systems (e.g., Reihlen and Wenzlaff 2016; Brint et al. 2011; Schofer and Meyer 2005; Skoldberg 1991), using relevant quantitative data sets where available. If carefully designed, such longitudinal studies can add to the understanding of institutional isomorphism in the university sector in at least two important ways. First, they provide a clearer picture of the various dynamics through which isomorphism progressively occurs, thus providing a corrective to those empirical analyses that examine institutional isomorphism in more static terms (see Boxenbaum and Jonsson 2008; also Hirsch 1997). Second, they allow for identification of variation in the ways in which organizational actors belonging to one organizational field – in this case universities – respond to isomorphic pressures over an extended period of time. 
Importantly, the findings generated by such longitudinal empirical analysis may serve as a corrective to the tendency to posit isomorphism as a typical response of universities without checking empirically for any variations, in timing or otherwise, of such response. Moreover, taking seriously the dynamics of, and variations in, isomorphic forms of response may help to rectify the tendentiously passive and ‘mindless’ view of organizations underlying many empirical studies of isomorphism (Powell 1991: 194; see also Lounsbury 2008; Scott 2014) – including some of the research examining isomorphism in universities. Finally, in shedding light on variation within isomorphic forms of response, this sort of empirical analysis may also enhance our understanding of the complex links between isomorphic and divergence tendencies in university systems more broadly. 
Building upon these reflections, this paper analyzes change dynamics pertaining to academic organizational units (AOUs) teaching law at Australian universities over the period of 1987–1996 as a discrete manifestation of broader isomorphic dynamics. This specific period saw sweeping structural changes to the Australian university sector, most of which can be linked to a set of radical national policy reforms occurring in 1988. These reforms paved the way for significant expansion of the number of universities over the coming years, and they created environmental conditions that can be deemed conducive to isomorphism (see ‘Research Design’ and ‘Empirical Context’ sections for more detail). 
The field of law and law AOU s are the analytical focus for three reasons. First, previous research has identified the proliferation of law faculties and departments as one of the mor e salient manifestations o f isomorphism in the Australian university system (Croucher and Woelert 2016; Barker 2013). Second, the consequences of this proliferation have been enduring – all the law AOUs newly created over the period of investigation have survived to this day in one form or another; and the creation of additional law schools after 1996 means that today there remains only one comprehensive university in Australia not featuring a comprehensive law AOU. Third, changes to law AOUs are of particular interest because these organizational units are import ant to universities financially and in terms of the institutional prestige and legitimacy they may yield (see Espeland and Sauder 2007). 
Empirically, this paper investigates, first, the distribution and organizational forms of law AOUs across all Australian universities and within selected university groupings over the period of 1987–1996. Second, it tracks and analyzes the corresponding changes in student numbers at each AOU. The changes in the distribution and organizational forms of law AOUs are proxy for tracking formal dimensions of institutional change. Changes in law student numbers provide the means for assessing the extent to which changes in formal structure correspond to changes in the actual activity structure of law AOUs (see Meyer and Rowan 1977). These sorts of data and analyses allow the identification of salient patterns of convergence and divergence among key types of universities , including any striking variations in isomorphism. Analysis of these variations in turn enables inferences regarding universities’ potential motivations for making changes to their law offerings. The data does, however, not allow for a causal explanation of why specifically some universities decided to establish or expand their law AOUs and others did not. In terms of findings, the 10-year longitudinal empirical analyses presented in this paper illustrate how broader isomorphic change dynamics in the organizational field of universities accommodate more localized divergence tendencies and differential patterns of institutional response to isomorphic pressures. Moreover, the specific patterns of variation in universities’ apparent responses to isomorphic pressures suggest that some isomorphic responses, at least, were driven by a dual agenda of manifesting not only similarity but also distinction

31 May 2018

Consensual Assault

The Tasmania Law Reform Institute Consensual Assault report discusses s 182(4) of the Criminal Code 1924 (Tas) and examines whether there is a need to reform the provision.

The report comments
Section 182(4) governs what is commonly known as ‘consensual assault’, which refers to circumstances where an assault has been committed but the victim has consented to the act in question. Due to the wide definition of assault, the situations where questions of consent can arise are quite varied, from mutually agreed brawls and sporting contests to some forms of sexual activity. 
Prosecutions of assaults and other serious offences of violence are commonplace in the criminal courts. As a rule, such cases involve a non- consenting victim. However, occasionally, cases involving a consenting ‘victim’ also make it to court. These are cases where the parties involved have willingly exchanged blows or inflicted violence upon each other, for example, where two individuals resort to a fist fight to resolve a disagreement. Section 182(4) of the Criminal Code sets out that where a person consents to an assault, then that assault will not be unlawful, save for certain circumstances where the Code sets out that consent will not be valid. 
This section poses difficulties for the criminal justice system and legal scholars alike. The language used is archaic and open to wide interpretation, and case law provides at times contradictory guidance. In the search for a principled distinction between lawful and unlawful consensual assault, courts and legislatures have been obliged to balance public policy justifications for refusing to condone violence regardless of consent against competing claims of personal autonomy. This has proved to be no easy task, particularly in Tasmania. 
This Final Report examines the current law on consensual assault in Tasmania which is contained in s 182(4) of the Criminal Code. It traces the history of this provision from its roots in the common law, and explains how successive common law authorities have informed the judicial interpretation of the provision. The Report contends that some aspects of s 182(4) lack clarity and do not reflect current concerns about when the law might appropriately negate consent to assault. It also expresses concern that the provision reflects an outmoded view of when consent should or should not operate as a defence to assault and leaves those who are particularly vulnerable to violence in the home outside the protection of the law.  The Report subsequently lays out a number of recommendations, attempting to strike an appropriate balance between respecting the personal liberty and autonomy of citizens and the public interest in preventing and condemning violence.
The Institute recommends
R1 s 182(4) of the Tasmanian Criminal Code 1924 should be reformed to modernise its operation and scope and to remove uncertainties as to its application and interpretation. 
R2  s 53(c) of the Tasmanian Criminal Code 1924 should be amended to modernise its language by deleting the phrase ‘maim injurious to the public’ and replacing it with ‘grievous bodily harm, disfigurement or a disabling injury’. S 182(4) should be amended to proscribe consent to assaults committed by adults in private in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults. 
R3   s 182(4) not be repealed but that instead it be reformed, with  s 2A amended to specify that a person does not freely agree to an act if that act occurs in circumstances of family violence within the meaning of the Family Violence Act 2004 (Tas). 
R4  s 182(4) should be amended to remove the conditions that currently abrogate consent to assault — that the assault be ‘otherwise unlawful’, ‘injurious to the public’ and ‘a breach of the peace’. Section 182(4) should be amended to provide that consent will not be a defence in respect of assaults committed by adults in private, where they occur in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; in respect of assaults committed in public, where they are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; or where the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted. For the sake of clarity, s 182(4) should also provide that nothing in that section is intended to deprive people of the ability to consent to medical and surgical treatment or of the ability to participate in sporting activities, ordinary rough play and lawful public entertainments.
R5 The Institute does not, at this stage, recommend amending the Family Violence Act 2004 (Tas) to make violent conduct engaged in in the presence of children a family violence offence. Such reform should only occur following a dedicated study that draws on the experience and views of a wide pool of stakeholders, a pool that includes a large number of advocates against, and experts in, family violence. 
With the 'Spanner' jurisprudence - eg R v Brown [1994] 1 AC 212 - in mind the Institute states
As it currently stands, consensual violence will be unlawful if the Crown proves that the assault is ‘injurious to the public’ (as well as each of the other requirements of s 182(4)). This does not mean that the Crown is required to establish that the activity is positively harmful, merely that it has no social utility.167 However, this position, that private violence, which risks harm only to the consenting participants, must have positive social consequences if it is to escape penalisation, is by no means compelling. Arguably, the appropriate question for the court is not, ‘has the prosecution proved that the activity serves no beneficial social purpose’ but rather, ‘has the prosecution proved that the activity is positively harmful’.
It goes on to comment
It is the Institute’s position that s 182(4) should be amended to incorporate updated language, and to bring it into line with contemporary societal expectations. As discussed earlier in this Report, in addition to archaic wording, judicial construction has resulted in inconsistent interpretations of s 182(4). Proceeding from an understanding that s 182(4) does have a valid role to play in relation to consent to assault, it follows that it should work in all contexts where consent to assault may be a matter of concern, including in both the public and private spheres. At present, it is apparent that s 182(4) has a limited role, if any, to play in the private arena. This discrepancy should be resolved.
The Institute recommends against absolutely disallowing consent in family violence contexts. Such an approach is unjustifiably paternalistic, and would amount to the Code providing as a matter of law that all relationships involving family violence are inherently the same. Given the earlier discussion on the typologies of family violence, such a position is not tenable. Individual family circumstances differ significantly. Consequently, the possibility of consent in family violence scenarios not amounting to free agreement should be dealt with by reference to s 2A.
The Institute is mindful of the need to avoid abrogating consent to assault too broadly and capturing generally acceptable behaviour. For example, while the Institute agrees with submissions that the question of consent to assault between adults in private should largely be governed by s 2A of the Code, where such violence occurs before children, there is merit in abrogating consent under s 182(4) unless the assault is beneficial to the person assaulted in a way that goes beyond mere gratification of that person’s desire to participate in the assault. A reform couched in these terms will target the unacceptable quality of the violence (the fact that it is perpetrated in the presence of children) while avoiding criminalising acceptable conduct, such as sporting events, legitimate entertainment and beneficial personal contacts.
As explained earlier, the ‘otherwise unlawful’ requirement in s 182(4) creates a barrier to its operation in private contexts and is the main impediment to s 182(4) operating consistently in both the public and private spheres.
However, removal of this requirement may result in some conduct being criminalised when, perhaps, it should not be. An example would be consensual sadomasochistic sexual activity. To this end, the Institute suggests that any reform should avoid terms that are vague and open to widely varying interpretations which may enable biased or discriminatory views such as those evident in Brown’s Case to inform decisions about whether consent is lawful. Accordingly, the Institute takes the view that where there is genuine consent, that consent should be abrogated only where there is some aggravating circumstance that justifies the law intruding into the matter. For assaults in private, such a circumstance is supplied where the assault occurs in the presence of children and it is not performed for the benefit of the person assaulted, or otherwise than to gratify the combatants desire to participate in violent behaviour. The latter circumstance also supplies public fighting with an element of wrongfulness that might otherwise not exist where there is consent.
Accordingly, the approach recommended by the TLRI resembles that advocated by the Director of Public Prosecutions. However, the Institute suggests a slightly different reform for s 182(4). Where assaults between adults in private are concerned, the question of consent should be governed almost entirely by s 2A. There should be an exception where the assault occurs in the presence of children and it is of no benefit to the person assaulted beyond mere gratification of that person’s desire to participate in the assault. This approach avoids criminalising conduct of the kind that occurred in Brown’s Case as well as legitimate private sporting or entertainment activities. It also accords with submissions to the Institute that recommended that consent should be immaterial in relation to assaults committed in private in the presence of children. With regard to assaults in public places, the Institute suggests abrogating consent where the assault is of no benefit to the persons assaulted beyond mere gratification of their desire to participate in the assault. Again, this avoids criminalising sporting contacts, acceptable entertainment, and beneficial personal contacts. An example of the last might be where one person thumps another on the back during a coughing fit or performs Heimlich’s manoeuver to prevent someone choking. Additionally, the Institute agrees with the Director of Public Prosecutions that consent should be immaterial in relation to assaults perpetrated in public or private with the intention of causing serious non-beneficial personal injury. That intention also supplies an element of wrongfulness that might otherwise be absent where there is consent. If reformed according to these recommendations, s 182(4) might read:
Except in cases in which it is specially provided that consent cannot be given, or shall not be a defence, an assault is not unlawful if committed with the consent of the person assaulted, unless: 
(a) the assault is committed by an adult and occurs on private premises in the presence of a child or children and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or 
(b) the assault occurs in a public place and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or 
(c) the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted.
The Institute acknowledges that some kinds of rough play between children, and between children and their family members such as a son wrestling with his father, could potentially be criminalised by this reform despite such behaviour being understood to be acceptable and in some cases even beneficial to participants. It is not the Institute’s intention to extend the operation of the law of assault into this kind of play, and instead suggests that the risk of criminalisation is minimised. It may be the case that rough play is already covered by s 182(3) of the Code, in the sense that it constitutes part of normal human interaction. If this is not the case, the benefit element of the recommendation could reasonably preclude the criminalisation of rough play. The recommendation incorporates a test that assesses whether or not the act in question is of some benefit to the alleged victim, a test that could exclude rough play. If there were fears of an unintended operation of the provision, it would be open to have s 182(4) specify that rough but non-hostile play is excluded.
The Institute also recommends that for the sake of clarity, it may be wise to provide that nothing in s 182(4) is intended to deprive people of the ability to consent to medical and surgical treatment or to participate in sporting activity and lawful public entertainment.
The ultimate purpose of this reform is modernisation and consistency. It seeks to eliminate archaic language, but also seeks to eliminate the disparity between public and private assaults in the current consensual assault scheme. By introducing a new test that is common between public and private spheres, the recommendation will essentially close the gap and create more predictable outcomes in cases. Further, the reform is intended to provide a means of addressing children being exposed to unacceptable violence, even where the participants allegedly consent to that violence.

Blockchain

'Legal Engineering on the Blockchain: ‘Smart Contracts’ as Legal Conduct' by Jake Goldenfein and Andrea Leiter in (2018) Law and Critique comments
A new legal field is emerging around blockchain platforms and automated transactions. Understanding the relationships between law, legal enforcement, and these technological systems has become critical for scaling blockchain applications. Because ‘smart contracts’ do not themselves constitute agreements, the first necessary ‘legal’ development for transacting with these technologies involves linking computational transactions to natural language contracts. Various groups have accordingly begun building libraries of machine readable transaction modules that correspond to natural language contracting elements. In doing so, they are creating the building blocks for ever more complex transactions that will ultimately define the entire envelope of computational legal conduct in these environments, and likely standardise the field. However, also critical to emerging blockchain ‘legalities’, is the capacity for dispute resolution and legal enforcement. Beyond the performance of parties, or the quality of goods and services transacted, new mechanisms are also needed to address the performance of the computational transaction systems themselves. These are necessary to address the reality that smart contracts cannot be forced to perform actions beyond the parameters of their coding, even by a judicial order. Legal tools, both technological and institutional, are thus being developed to ‘soften’ the effects of self-executing transactions. In this article we treat these developments as law-making practices that are constitutive of an emerging legal field. Legal engineering exercises of this kind are not novel, and by drawing on historic examples from the common law and international arbitration, we gain insights into the competitive dynamics likely to be shaping legal engagements on the blockchain.

Speech

'Free Speech is a Triangle' by Jack Balkin in (2018) Columbia Law Review comments
The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.
The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation states and the European Union. On the second corner are privately-owned Internet infrastructure companies, including social media companies, search engines, broadband providers, and electronic payment systems. On the third corner are many different kinds of speakers, legacy media, civil society organizations, hackers, and trolls.
Territorial goverments continue to regulate speakers and legacy media through traditional or "old-school" speech regulation. But nation states and the European Union also now employ "new-school" speech regulation that is aimed at Internet infrastructure owners and designed to get these private companies to surveil, censor, and regulate speakers for them. Finally, infrastructure companies like Facebook also regulate and govern speakers through techniques of private governance and surveillance.
The practical ability to speak in the digital world emerges from the struggle for power between these various forces, with old-school, new-school and private regulation directed at speakers, and both nation states and civil society organizations pressuring infrastructure owners to regulate speech.
If the characteristic feature of free speech regulation in our time is a triangle that combines new school speech regulation with private governance, then the best way to protect free speech values today is to combat and compensate for that triangle’s evolving logic of public and private regulation. The first goal is to prevent or ameliorate as much as possible collateral censorship and new forms of digital prior restraint. The second goal is to protect people from new methods of digital surveillance and manipulation—methods that emerged from the rise of large multinational companies that depend on data collection, surveillance, analysis, control, and distribution of personal data.
This essay describes how nation states should and should not regulate the digital infrastructure consistent with the values of freedom of speech and press; it emphasizes that different models of regulation are appropriate for different parts of the digital infrastructure. Some parts of the digital infrastructure are best regulated along the lines of common carriers or places of public accommodation. But governments should not impose First Amendment-style or common carriage obligations on social media and search engines. Rather, governments should require these companies to provide due process toward their end-users. Governments should also treat these companies as information fiduciaries who have duties of good faith and non-manipulation toward their end-users. Governments can implement all of these reforms—properly designed—consistent with constitutional guarantees of free speech and free press.

Propertisation

'What We Don’t See When We See Copyright as Property' (University of Michigan Law and Econ Research Paper No 18-014) by Jessica Litman comments
It is becoming increasingly clear that the supposed copyright wars that copyright scholars believed we were fighting – nominally pitting the interests of authors and creators against the interests of readers and other members of the audience – were never really about that at all. Instead the real conflict has been between the publishers, record labels, movie studios, and other intermediaries who rose to market dominance in the 20th century, and the digital services and platforms that have become increasingly powerful copyright players in the 21st. In this essay, adapted from the 13th annual University of Cambridge Center for Intellectual Property and Information Law International Intellectual Property Lecture, I argue that it would make good sense for at least some of us to leave the fight between 20th century publishers and 21st century platforms to the many lawyers that represent both sides, and to focus on some of the issues that aren’t as likely to attract their attention. While copyright scholars have been writing about whether authors’ interests or readers’ interests should be paramount, we’ve missed the opportunity to look more closely at the issues that the copyright wars obscured. Here is one: For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximize their own revenue while shrinking their payouts to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.

29 May 2018

Compensation

The Queensland Civil and Administrative Tribunal (QCAT) has awarded $5,000 compensation under the Information Privacy Act 2009 (Qld) for a breach by WorkCover Pty Ltd of the state's Information Privacy Principles.

In PB v WorkCover Pty Ltd (2018] QCAT 138 WorkCover conceded that it breached IPPs 1, 3 and 11 regarding the collection and disclosure of PB’s medical records in relation to a workers’ compensation claim. QCAT stated that 'WorkCover made a litany of errors in the course of processing his claim. Many of these errors were trivial, although some had more serious consequences'. QCAT concluded that there had also been breaches of IPPs 2 and 4. It ordered WorkCover to pay $5,000 to the complainant. In the event that WorkCover holds any of the original medical records it was return them to the respective medical practices.

QCAT characterised WorkCover’s breaches as ‘careless rather than malicious’.

In relation to costs QCAT states
I am not prepared to order WorkCover to reimburse PB for his expenses. The manner in which the proceeding has been run before the Tribunal has stemmed in large measure from the extravagant and exorbitant compensation claim made by PB. PB initially claimed compensation in the vicinity of $4 million, notwithstanding the statutory maximum of $100,000 clearly set out in s 178(a)(v). Had PB applied an element of sobriety to his claim, or at least claimed compensation within the statutory limit, it is likely that he and WorkCover would have been spared considerable expense in the conduct of the proceeding.
QCAT notes that this is the second case in the Queensland privacy jurisdiction with an award of financial compensation by QCAT. In RM v Queensland Police Service, QCAT described the Service’s breach as having been ‘careless rather than malicious’. It ordered compensation of $5,000.

28 May 2018

Imaging

'Offensive but not Invasive? Imaging and Privacy in the ACT' by Bruce Baer Arnold in (2018) 15(3) Privacy Law Bulletin 47 comments
A recent ACT Supreme Court judgment has demonstrated the limits of the 2014 amendments to the Crimes Act 1900 (ACT) meant to protect privacy by prohibiting upskirting and downblousing. The ACT has grappled with balancing dignity and practicality regarding privacy as a matter of freedom from interference in public and private places. The territory government has also grappled, less successfully, with difficulties in statutory drafting and policy development. Those challenges are evident in a number of recent court decisions, particularly Stroop v Harris in which the court concluded that photographing the clothed genital area of women in a public area was not an invasion of privacy. This article considers that judgment and its implications for privacy protection in public spaces across Australia.

27 May 2018

Doctoral Mental Health Problems

'Work organization and mental health problems in PhD students' by Katia Levecque, Frederik Anseelab, Alain De Beuckelaer, Johan Van der Heyden and Lydia Gisle in (2017) 46(4) Research Policy comments
Research policy observers are increasingly concerned about the potential impact of current academic working conditions on mental health, particularly in PhD students. The aim of the current study is threefold. First, we assess the prevalence of mental health problems in a representative sample of PhD students in Flanders, Belgium (N = 3659). Second, we compare PhD students to three other samples: (1) highly educated in the general population (N = 769); (2) highly educated employees (N = 592); and (3) higher education students (N = 333). Third, we assess those organizational factors relating to the role of PhD students that predict mental health status. Results based on 12 mental health symptoms (GHQ-12) showed that 32% of PhD students are at risk of having or developing a common psychiatric disorder, especially depression. This estimate was significantly higher than those obtained in the comparison groups. Organizational policies were significantly associated with the prevalence of mental health problems. Especially work-family interface, job demands and job control, the supervisor’s leadership style, team decision-making culture, and perception of a career outside academia are linked to mental health problems.
Salient findings are
  • One in two PhD students experiences psychological distress; one in three is at risk of a common psychiatric disorder.
  • The prevalence of mental health problems is higher in PhD students than in the highly educated general population, highly educated employees and higher education students.
  • Work and organizational context are significant predictors of PhD students’ mental health.
In answering 'Why is the mental health of PhD students important for research policy?' the authors comment
While a genuine concern for individual well-being is probably the most important reason why policymakers should pay attention to mental health problems, we argue that mental health of PhD students should be of concern for three additional main reasons. First, the work of PhD students themselves constitutes a major source of scientific advancement, as a doctoral dissertation requires an original contribution to the scientific knowledge base. Furthermore, the publication of dissertation results is a prerequisite for an academic career (Roach and Sauermann, 2010), making dissertation work a major contributor to academic output (Hagen, 2010; Miller, 2013). Given the compelling evidence for the effects of mental health problems on individuals’research output (Danna and Griffin, 1999), it is to be expected that a sizable cohort of PhD students suffering from mental health problems may affect the overall quality and quantity of individuals’ research output. Second, as most PhD students are part of larger research teams, whose composition determines scientific impact (Leeetal., 2015), PhD students with mental health issues may pose a considerable cost to research institutions and teams. To date, research policy efforts seemed to have focused more on‘hard outcomes’ such as publications, impact factors and patents,while ignoring the health effects of‘soft’policy outcomes, such as stress. However, soft outcomes may create serious financial costs for research institutions,and they will impact the functioning of the larger research teams that the individual researchers are part of, thus also determining ‘hard’ outcomes (see eg. Goh et al., 2015a,b). Third, mental health problems of PhD students impact both the supply and entrance to the research industry.Organizational policies that are linked to mental health problems will lead individuals to quit their PhD studies or leave the research industry altogether (Podsakoff et al., 2007). Several studies of PhD students suggest that the dropout numbers range from 30 to 50 percent, depending on the scientific discipline and country (Stubb et al., 2012). Such high turnover will make it difficult for the industry to attract new talent (Lievens and Highhouse, 2003), thus threatening the viability and quality of the academic research industry. Because economic competition between countries is heavily dependent on the nation’s scientific advancement and cognitive ability (Rindermann and Thompson, 2011), the prospects of having trained academic researchers not further pursuing a research career because of mental health problems should be a major concern for research policy. In sum, given the potential importance of mental health problems for research policy,there is an urgent need for systematic empirical data rather than anecdotal information on their prevalence and the organizational policies that are linked to them. Given the current lack of an empirical basis for mental health concerns and solutions, the current study has three aims. First, we aim to inform research policy by assessing mental health prevalence in a large-scale representative sample of PhD students in Flanders, Belgium. Second, to assess the scope of the problem, we compared the mental health of PhD students with that of three other samples, a group of highly educated adults in the general population, a group of highly educated employees and a group of higher education students. Third, with the aim of better understanding how research and organizational policies may relate to mental health, we examined PhD students’ perceptions of the academic environment and linked them to mental health problems.

Passing

With news that controversial figure Rachel Dolezal has been charged with welfare fraud I have revisited 'Reverse Passing' by Khaled A. Beydoun and Erika K. Wilson in (2017) 64 UCLA Law Review 282.

The authors comment
Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political, and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form, the inverse process of reverse passing—the process in which whites conceal their true racial identity and present themselves as nonwhite—has not been closely investigated within legal scholarship. 
Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal—an Africana Studies Instructor and head of the Spokane, Washington NAACP—was outed as being white after years of phenotypically and culturally presenting herself as a Black woman. Dolezal’s “outing” generated much popular debate and scholarly discourse, most of which tended to frame her actions as a one-off occurrence by a deviant actor. This Article argues instead that her actions were evidence of a deeper structure of incentives rooted in the U.S. Supreme Court’s affirmative action jurisprudence. Though reverse passing is often framed as deviant or irrational, this Article demonstrates how the Supreme Court’s affirmative action jurisprudence creates tangible and intangible incentives for white actors to identify as nonwhite. It suggests that the Court’s entrenchment of the diversity rationale as the primary compelling state interest that can be used to justify race-conscious affirmative action programs generated situational value in nonwhiteness. That situational value in nonwhiteness now creates incentives that previously did not exist for whites to reverse-pass in order to obtain access to opportunities in education, employment and beyond. 
This Article is the first to coin, analyze, and propose a theory of reverse passing. It also deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Finally, given the reconsideration of the diversity rationale by the Supreme Court in Fisher v. University of Texas at Austin, this Article also provides an opportunity to critically examine the merits and shortcomings of the diversity rationale.
They state
American history, and legal literature, is saturated with analysis of the customary “passing” narrative. Passing is the phenomenon whereby nonwhites present themselves as white, while their “underlying identity is not altered, but hidden.” Since the inception of slavery through the present day, passing has been prominent within the scholarly literatures, popular media, and indeed, the collective American imagination. 
Until recently, racial passing in the other direction—from white to nonwhite—has garnered little to no attention, particularly by legal scholars and commentators. Although precedents for “reverse passing” exist, Rachel Dolezal and her outing as a white woman thrust this burgeoning phenomenon and its corollary questions about and the fluidity of racial identity and the concept of “transracialism” to the forefront. Through this tragic archetype, the process of reverse passing was broadly exposed, became the subject of unprecedented attention, and sparked novel questions about the fluidity of race and the malleability of racial identity. 
To be sure, Rachel Dolezal provides a noteworthy case study. Dolezal was born a white woman. The daughter of two white parents from Lincoln County, Montana, Dolezal’s ancestry was “Czech, German and a few other things.” By her own account, Dolezal was fascinated by and identified with Black  culture from a very early age. She eventually obtained a graduate degree in fine arts with a focus on Black narrative painting from Howard University—a historically Black university in Washington, D.C. 
Despite her purported identification with Black culture, Dolezal’s tenure at Howard University was marred by controversy. She sued the University for discrimination, alleging that she was denied teaching positions and scholarship aid, received less favorable placements for her artwork, and was subject to a racially hostile environment because she was white. Dolezal’s lawsuit was ultimately dismissed after the Court of Appeals found that she failed to demonstrate that the treatment she received was because of her race, or that she was subject to a racially hostile work environment. 
After her lawsuit was dismissed, Dolezal’s relationship with Black culture shifted markedly from one of purported identification to one of full-fledged assumption. She gradually shed her white identity for one of a “light-skinned black woman,” but devoid of the ancestry, biological ties, and the “lived experience” associated with the latter. Dolezal left her past, parents, and former life behind, strategically piecing together a new identity with the experiences, opportunities, and profile “identifying as Black” offered. Exit Rachel Dolezal the white woman. 
Enter Rachel Dolezal the Black woman. Dolezal tanned her skin, rotated through several hairstyles traditionally associated with Black womanhood, helmed the Spokane chapter of the National Association for the Advancement of Colored People (NAACP), and obtained an adjunct lecturer position at Eastern Washington University in Africana Studies.19 She held herself out to the world as a Black woman. Short of explicit declarations of Blackness, her myriad roles and associations bespoke a racial identity that she was not assigned at birth. Dolezal’s racial presentation was successful until she was publicly outed on June 11, 2015 by a Spokane, Washington reporter who produced a picture of Dolezal’s parents and presented it to her on camera. This caused Dolezal to retreat from the lens, and in the coming days recoil from the racial duplicity she maintained for years. 
Even after being outed as white, Dolezal maintained—without biological or ancestral basis—that she was Black. “It’s not a costume . . . It’s not something that I can put on and take off anymore,” she proclaimed days after her public outing. On NBC’s Today Show, Dolezal stated that, “I identify as Black,” to Matt Lauer and a captive American audience, marking that her campaign to reverse pass—from white to Black—was complete. For Dolezal, Blackness is more than a racial costume. It is an identity she can fully assume on account of some deep-seated, existential affinity. Presumably, it is also an identity she can shed if her affinity towards Blackness wanes, or is trumped by a competing identity. 
The authors continue
Dolezal’s turbulent racial journey is arguably the most prominent and examined reverse passing vignette in American history. But it is hardly the only one. As illustrated in this Article, the Dolezal passage is one of many reverse passing stories and, moreover, is representative of only one form of many modalities of reverse racial deception. 
Reverse passing, this Article advances, is the process by which whites shed their white racial identity in exchange for a nonwhite racial identity. As noted by other legal scholars, most notably Cheryl I. Harris, whiteness confers tangible economic, social, and political benefits to those who are classified as white. Indeed, an institutional racial hierarchy exists “in which the closer one can approximate whiteness, the better off one is economically and socially.” Put another way, a racial hierarchy and valuation system exists in which white racial classifications are afforded the highest placement and value within the hierarchy while racial classifications that are the farthest away from whiteness, such as Blackness, are afforded the lowest placement and least value. 
Given this racial hierarchy, “passing” has traditionally been a process by which nonwhites have sought to perform and present themselves as white in order to escape slavery, circumvent racism, access new worlds of economic and employment opportunity, shop and dine, investigate lynching, and, for many passers, to seek liberation and ensure survival. Due to the tangible benefits associated with whiteness and the negative value associated with nonwhiteness, persons who are able to racially identity as white have every incentive to do so in most contexts. 
This Article suggests that there has been a shift in the valuation scheme within the racial hierarchy caused in part by modern affirmative action jurisprudence. The shift is a situational one in which — at certain times and in certain spaces — racial diversity is perceived as a valuable commodity. Importantly, within this framework, “racial diversity” is conceptualized to mean increasing the number of nonwhite persons in a particular space, particularly with respect to coveted university seats and employment opportunities. As Nancy Leong observes, the concept of racial diversity (or increasing the presence of nonwhite persons) gained widespread societal value as a result of the U.S. Supreme Court’s Fourteenth Amendment affirmative action equal protection jurisprudence. 
In particular, in the seminal affirmative action case Regents of the University of California v. Bakke, the Court held that rather than remedying the generalized lingering effects of past societal discrimination, diversity is the compelling state interest that justifies the consideration of race in college admissions programs. In reaching this conclusion, the Court extolled the virtues of racially heterogeneous groups while diminishing the relevance and propriety of using affirmative action programs as a remedial measure for historic discrimination against minority groups. Subsequent Supreme Court decisions grappling with affirmative action in higher education, namely Grutter v. Bollinger and Fisher v. University of Texas at Austin (Fisher I), reified the notion that racial diversity, rather than remedying the effects of lingering past societal discrimination, is the appropriate compelling state interest that justifies the use of race in college admissions programs. 
The Supreme Court’s affirmative action jurisprudence narrows the consideration of race, and more specifically, nonwhite racial identities, finding it compelling only for purposes of diversifying a student body. Indeed, recent Supreme Court jurisprudence addressing race generally, and affirmative action specifically, readily ignores the salience of race and the differences in lived experiences resulting from differing racial classifications. By supplanting discrimination remediation with diversity as the sole compelling state interest, the Supreme Court removed the import of actual “lived experiences,” particularly lived experiences of marginalization and discrimination experienced by people of color. The Court instead reduced nonwhite racial identity into phenotype and culture. 
Thus, identity-correlated cultural traits, along with phenotypes that appear to result in “adequate” racial representation—rather than the lived experiences marred by marginalization and discrimination—became the marker of access to the benefits afforded by affirmative action programs. Such a reduction of nonwhiteness makes it an identity that some whites can easily perform and present for purposes of capitalizing on racial identities coveted by diversity-driven programming. 
Today, because of the emphasis placed on racial diversity by the Supreme Court in its affirmative action jurisprudence, nonwhite racial classifications have increased in value to the extent they can be capitalized upon to bring about representational diversity. A critical mass of nonwhites is thought to add value through its performative contributions to classrooms, campuses, and society. These performative contributions are divorced from the broader lived and existential dimensions that remedial affirmative action programs previously took into consideration when considering nonwhite applicants for university admission. Before Bakke, university affirmative action programs for example often took measures to consider how membership in a particular racial or ethnic group affected an applicant’s life experience and opportunities. In particular, such programs sought to level the playing field by taking into consideration the effect that discrimination likely had on the applicant’s lived experience. As a result, these performative contributions flattened the meaning of nonwhite racial identities, and converted them into more accessible forms for whites to perform and into which they can pass. In short, prevailing affirmative action doctrine, by narrowing the applied definition of nonwhite racial identity, incentivizes whites who believe they can pass as nonwhites to do so to access coveted opportunities, particularly in education and employment. 
Consequently, the stakes to “reverse pass” are high for whites. Such “reverse passers” seek to access the associated (and perceived) legal and cultural benefits of nonwhite identity concomitant with increased mandates for more diversity. Although not an entirely new phenomenon, recent events—including the outing of Rachel Dolezal—highlight the possibilities for increased incidences of reverse passing. While discursively viewed in the media and by many scholars as a phenomenon born out of individual autonomy or “transracial” options and possibilities, this Article investigates the law’s—and specifically the Supreme Court’s affirmative action equal protection jurisprudence’s—role in enabling and incentivizing reverse passing. 
Notably, this Article is the first to formally define reverse passing and conceptualize its operation within the legal and cultural realms. Building on the rich legal and social science literature on traditional passing, where the “classic racial passer in the United States has been the ‘white Negro,’” this Article analyzes the process by which whites assume nonwhite identities to access valuable educational or employment opportunities, and spaces and communities preferring nonwhites, and to build nonwhite public profiles that augment political influence or social prestige. 
By introducing reverse passing—as concept and process—into the legal literature, this Article deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Several legal commentators, most notably Devon Carbado and Mitu Gulati, Kenji Yoshino, Camille Gear Rich, and Nancy Leong, have made significant contributions to the modern literature on racial performance theory. As such, their work is critical to this Article. Certainly, as affirmative action continues to be debated within the courts, including in the recent decision in Fisher v. University of Texas II, reverse passing—as a matter of scholarly, practical, and popular concern—will only become more pressing and prominent. 
This Article proceeds as follows. The construction of racial hierarchy and reverse passing theory are the focuses of Part I, which includes a description of the two primary forms of reverse passing: legal and cultural. Part II analyzes prevailing Fourteenth Amendment equal protection jurisprudence in relation to affirmative action, which extends the legal catalyst incentivizing reverse passing. Part III examines the principal forms of reverse passing—legal and cultural—through an analysis of prominent case law and pressing case studies. Part IV examines the dialectic between the law and transracialism, a theory of racial mobility that justifies reverse passing but practically restricts passing in the other direction (nonwhite to white).

EU Data Protection Handbook

A new edition of the Handbook on European data protection law from the Council of Europe, European Union Agency for Fundamental Rights (FRA) and European Data Protection Supervisor (EDPS) is now online.

It is particularly valuable for coverage of the modernisation of Convention 108, the applicability of the new data protection framework of the European Union (GDPR and Police and Justice Directive), and recent judgments of the European Court of Human Rights and Court of Justice of the European Union.

In discussing the GDPR the Handbook comments
European Union data protection law is composed of primary and secondary EU law. The treaties, namely the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), have been ratified by all EU Member States; they form ‘primary EU law’. The regulations, directives and decisions of the EU have been adopted by the EU institutions that have been given such authority under the treaties; they constitute ‘secondary EU law’.
Data protection in primary EU law
The original treaties of the European Communities did not contain any reference to human rights or their protection, given that the European Economic Community was initially envisaged as a regional organisation focused on economic integration and the establishment of a common market. A fundamental principle underpinning the creation and development of the European Communities – and one which is equally valid today – is the principle of conferral. According to this principle, the EU acts only within the limits of the competences conferred upon it by the Member States, as reflected in the EU treaties. In contrast to the Council of Europe, the EU treaties include no explicit competence on fundamental rights matters. As cases came before the CJEU alleging human rights violations in areas within the scope of EU law, however, the CJEU provided an important interpretation of the treaties. To grant protection to individuals, it brought fundamental rights into the so-called general principles of European law. According to the CJEU, these general principles reflect the content of human rights protection found in national constitutions and human rights treaties, in particular the ECHR. The CJEU stated that it would ensure compliance of EU law with these principles. In recognising that its policies could have an impact on human rights and in an effort to make citizens feel ‘closer’ to the EU, the EU in 2000 proclaimed the Charter of Fundamental Rights of the European Union (Charter). It incorporates the whole range of civil, political, economic and social rights of European citizens, by synthesising the constitutional traditions and international obligations common to the Member States. The rights described in the Charter are divided into six sections: dignity, freedoms, equality, solidarity, citizens’ rights and justice.
Originally only a political document, the Charter became legally binding27 as EU primary law (see Article 6(1) of the TEU) when the Lisbon Treaty came into force on 1Decembe 2009.The provisions of the Charter are addressed to EU institutions and bodies, obliging them to respect the rights listed therein while fulfilling their duties. The Charter’s provisions also bind Member States when they implement EU law.
The Charter not only guarantees the respect for private and family life (Article 7), but also establishes the right to the protection of personal data (Article 8). The Charter explicitly raises the level of this protection to that of a fundamental right in EU law. EU institutions and bodies must guarantee and respect this right, as do Member States when implementing Union law (Article 51 of the Charter). Formulated several years after the Data Protection Directive, Article 8 of the Charter must be understood as embodying pre-existing EU data protection law. The Charter, therefore, not only explicitly mentions a right to data protection in Article 8(1), but also refers to key data protection principles in Article  (2). Finally, Article 8(3) of the Charter requires an independent authority to control the implementation of these principles. The adoption of the Lisbon Treaty is a landmark in the development of data protection law, not only for elevating the Charter to the status of a binding legal document at the level of primary law, but also for providing for the right to personal data protection. This right is specifically provided for in Article 16 of the TFEU, under the part of the treaty dedicated to the general principles of the EU. Article 16 also creates a new legal basis, granting the EU the competence to legislate on data protection matters. This is an important development because EU data protection rules – notably the Data Protection Directive – were initially based on the internal market legal basis, and on the need to approximate national laws so that the free movement of data within the EU was not inhibited. Article 16 of the TFEU now provides an independent legal basis for a modern, comprehensive approach to data protection, which covers all matters of EU competence, including police and judicial cooperation in criminal matters. Article 16 of the TFEU also affirms that compliance with data protection rules adopted pursuant to it must be subject to the control of independent supervisory authorities. Article 16 served as a legal basis for the adoption of the comprehensive reform of data protection rules in 2016, i.e. the General Data Protection Regulation and the Data Protection Directive for Police and Criminal Justice Authorities (see below).
The General Data Protection Regulation
From 1995 until May 2018, the principal EU legal instrument on data protection was Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive).It was adopted in 1995, at a time when several Member States had already adopted national data protection laws, and emerged from the need to harmonise these laws to ensure a high level of protection and the free flow of personal data among the different Member States. Free movement of goods, capital, services and people within the internal market required the free flow of data, which could not be realised unless the Member States could rely on a uniform high level of data protection.
The Data Protection Directive reflected the data protection principles already contained in national laws and in Convention 108, while often expanding them. It drew on the possibility, provided for in Article 11 of Convention 108, of adding on instruments of protection. In particular, the introduction in the directive of independent supervision as an instrument for improving compliance with data protection rules proved to be an important contribution to the effective functioning of European data protection law. Consequently, this feature was incorporated into CoE law in 2001 by the Additional Protocol to Convention 108. This illustrates the close interaction and positive influence of the two instruments upon one another over the years.
The Data Protection Directive established a detailed and comprehensive data protection system in the EU. However, in accordance with the EU legal system, directives do not apply directly and must be transposed into the national laws of the Member States. Inevitably, Member States have a margin of discretion in transposing the directive’s provisions. Even though the directive was meant to provide complete harmonisation31 (and a full level of protection), in practice it was transposed differently in the Member States. This resulted in the establishment of diverse data protection rules across the EU, with definitions and rules interpreted differently in national laws. The levels of enforcement and the severity of sanctions also varied across the Member States. Finally, there were significant changes in information technology since the drafting of the directive in the mid-1990s. Taken together, these reasons prompted the reform of EU data protection legislation.
The reform led to the adoption of the General Data Protection Regulation in April 2016, after years of intense discussion. The debates on the need to modernise EU data protection rules began in 2009, when the Commission launched a public consultation about the future legal framework for the fundamental right to personal data protection. The proposal for the regulation was published by the Commission in January 2012, starting a long legislative process of negotiations between the European Parliament and the Council of the EU. After adoption, the General Data Protection Regulation provided for a two year-transitional period. It became fully applicable on 25 May 2018, when the Data Protection Directive was repealed.
The adoption of the General Data Protection Regulation in 2016 modernised EU data protection legislation, making it fit for protecting fundamental rights in the context of the digital age’s economic and social challenges. The GDPR preserves and develops the core principles and rights of the data subject provided for in the Data Protection Directive. In addition, it introduced new obligations requiring organisations to implement data protection by design and by default; to appoint a Data Protection Officer in certain circumstances; to comply with a new right to data portability; and to comply with the principle of accountability. Under EU law, regulations are directly applicable; there is no need for national implementation. The General Data Protection Regulation thus provides for a single set of data protection rules across the EU. This creates consistent data protection rules throughout the EU, establishing an environment of legal certainty from which economic operators and individuals as “data subjects” may benefit.
However, even though the General Data Protection Regulation is directly applicable, Member States are expected to update their existing national data protection laws to fully align with the regulation, while also reflecting a margin of discretion for specific provisions in recital 10. The main rules and principles established in the regulation, and the strong rights it affords to individuals, form a large part of the handbook and are presented in the following chapters. The regulation has comprehensive rules on territorial scope. It applies to businesses established in the EU, and also applies to controllers and processors not established in the EU that offer goods or services to data subjects in the EU or monitor their behaviour. As several overseas technology businesses have a key share in the European market and millions of EU customers, subjecting these organisations to EU data protection rules is important to ensure the protection of individuals, as well as to ensure a level playing field.

Governance

'Saving Governance-by-Design' by Deirdre K. Mulligan and Kenneth A. Bamberger in (2018) 106 California Law Review 697 comments
 Governing through technology has proven irresistibly seductive. Everything from the Internet backbone to consumer devices employs technological design to regulate behavior purposefully by promoting values such as privacy, security, intellectual property protection, innovation, and freedom of expression. Legal and policy scholarship has discussed individual skirmishes over the political impact of technical choices—from whether intelligence and police agencies can gain access to privately encrypted data to debates over digital rights management. But it has failed to come to terms with the reality that “governance-by-design”—the purposeful effort to use technology to embed values—is becoming a central mode of policymaking, and that our existing regulatory system is fundamentally ill-equipped to prevent that phenomenon from subverting public governance.
Far from being a panacea, governance-by-design has undermined important governance norms and chipped away at our voting, speech, privacy, and equality rights. In administrative agencies, courts, Congress, and international policy bodies, public discussions about embedding values in design arise in a one-off, haphazard way, if at all. Constrained by their structural limitations, these traditional venues rarely explore the full range of other values that design might affect, and often advance, a single value or occasionally pit one value against another. They seldom permit a meta-discussion about when and whether it is appropriate to enlist technology in the service of values at all. And their policy discussions almost never include designers, engineers, and those that study the impact of socio-technical systems on values.
When technology is designed to regulate without such discussions—as it often is—the effects can be even more insidious. The resulting technology often hides government and corporate aims and the fundamental political decisions that have been made. In this way, governance-by-design obscures policy choices altogether. Such choices recede from the political as they become what “is” rather than what politics has determined ought to be.
This Article proposes a detailed framework for saving governance-by-design.
Through four case studies, the Article examines a range of recent battles over the values embedded in technology design and makes the case that we are entering an era of policymaking by “design war.” These four battles, in turn, highlight four recurring dysfunctions of governance-by-design:
First, governance-by-design overreaches by using overbroad technological fixes that lack the flexibility to balance equities and adapt to changing circumstances. Errors and unintended consequences result. 
Second, governance-by-design often privileges one or a few values while excluding other important ones, particularly broad human rights. 
Third, regulators lack the proper tools for governance-by-design. Administrative agencies, legislatures, and courts often lack technical expertise and have traditional structures and accountability mechanisms that poorly fit the job of regulating technology. 
Fourth, governance-by-design decisions that broadly affect the public are often made in private venues or in processes that make technological choices appear inevitable and apolitical.
If we fail to develop new rules of engagement for governance-by design, substantial and consequential policy choices will be made without effective public participation, purposeful debate, and relevant expertise. Important values will be sacrificed—sometimes inadvertently, because of bad decisions, and sometimes willfully, because decisions will be captured by powerful stakeholders.
To address these critical issues, this Article proposes four rules of engagement. It constructs a framework to help decision makers protect values and democratic processes as they consider regulating by technology. Informed by the examination of skirmishes across the battlefields, as well as relevant Science and Technology Studies (STS), legal, design, and engineering literatures, this framework embraces four overarching imperatives:
1. Design with Modesty and Restraint to Preserve Flexibility 
2. Privilege Human and Public Rights 
3. Ensure Regulators Possess the Right Tools: Broad Authority and Competence, and Technical Expertise 
4. Maintain the Publicness of Policymaking
These rules of engagement offer a way toward surfacing and resolving value disputes in technological design, while preserving rather than subverting public governance and public values.

Populism

'The Legal Face of Populism: From the Classroom to the Courtroom' (Jean Monnet Working Paper 9/17) by Myriam Hunter-Henin comments
This article examines the normative-conceptual contrast between populism and radical democracy against the specific backdrop of two case-studies – the Fundamental British Values discourse in the UK and the French burqa ban. The goals of the article are twofold. First, to enrich the understanding of populism by analysing the interactions between populism, democracy and legal reasoning. Secondly, to offer ways of resisting a populist turn in legal reasoning. I will argue that law’s response to populism should embrace the ideals of radical democracy, namely deliberation and inclusiveness. In order to enhance deliberation and ensure its inclusiveness, I will submit that law should both retreat (from the classroom) and actively riposte against populism (in the courtroom). 
Hunter-Henin argues
Donald Trump’s victory in the US and the Brexit referendum in the UK have been praised or criticised as a populist turn. Both expressed the voices of those who feel let down by the so-called elites and think that the solution is an authoritarian figure strong enough not to care what a biased establishment thinks about him. Flamboyant and extreme, populism has attracted the attention of many scholars. For most, populism can best be approached in relation to what it rejects: populism has thus been described as anti-elitist, anti-constitutionalist, anti-institutional, antirepresentative and anti-democratic. A debate has ensued as to whether this hostile stance is inherently harmful or can act as a corrective to democracy, or at least as a useful barometer of democracy’s (ill) health. Despite the great divergence of approaches to capture populism, most scholars converge on one point: namely that populism is short-lived in its individual manifestations. Even if it is inherently hostile to democracy, ts damaging effects should not therefore, the argument goes, be exaggerated. Once in power, populist leaders would not be likely to change institutions and their policies would not outlive the populist leader. Moreover populist leaders, once in power, may struggle more than others to maintain their popularity. Amongst these reassuring authors, a notable exception is Jan-Werner Müller, whose work has demonstrated how populist leaders and parties may use the language of democratic values to deform democracy.
However, little attention has been paid thus far to the full implications of populism on law. Most recent scholarship has revealed that populism cannot be properly understood as a (mere) reaction against representative democracy and institutional constitutionalism. It is more positively an ideology which seeks to curtail pluralist political debate. Yet the broader definition of populism as an ideology, rather than as an anti-institutional stance, has so far had little impact on how the consequences of populism are assessed. The consequences of populism are still too often measured in light of their relative low impact on representative mechanisms and institutions. But if populism is, beyond representative politics, about conveying a monolithic discourse and muffling the voices of those who are characterized as “outsiders”, its consequences as I will argue, cannot merely be measured in institutional and representative terms. The assessment must include, more broadly, considerations of how populism might undermine access to and freedom of the political debate. As this article will demonstrate, the concept of populism (as well as its implications) is therefore best understood by contrast to a radical conception of democracy, which goes beyond majority rules and aggregation of interests, to include broader conditions of participation and deliberation. Against this background of radical democracy, it will be argued that if individual instances of populism can be short-lived, their implications are nevertheless likely to have long-lasting and damaging effects, both on law and democracy. By restraining its deliberative and inclusive characters, populism threatens both the very core of democracy and legal reasoning itself. 
The main aims of the article are twofold. First, it will seek to enrich the understanding of populism by analysing the interactions between populism, legal reasoning and democracy Secondly, having identified the full facets of populism, it will suggest ways of resistance. Scholarship thus far has paid little attention to the issue, either because populism has been seen as part of democracy itself or because fighting populism would paradoxically seem to be anti-democratic. When remedies have been sought, the focus has been on reforms to the electoral system. However, it will be argued that as populism manifests itself in a myriad of ways, well beyond issues of representation, a much broader reaction is required. A deliberative conception of democracy will be used to offer ways of reacting against populism and ensure that civil society and courts are more protective of the inclusiveness of the political landscape. The article will be structured as follows. In a first part, I will select two recent legal manifestations of populism in two distinct European countries: the rhetoric of “Fundamental British Values” in the UK and the French 2010 legislative ban on the full covering of the face in the public sphere. These examples have been selected because they deal with areas which are not immediately associated with populism: they do not relate to issues of political representativeness nor do they directly embody the antiimmigration agenda which has become symptomatic of populism in Europe. The Fundamental British Value (FBV) discourse indirectly relates to anti-terrorism (which the fight against extreme ideologies, through the teaching of FBV is supposed to bolster) and education (as schools, universities and nurseries are now under a duty to actively promote FBV). The French ban on the full covering of the face deals with religious freedom and an extensive conception of secularism. Through the broad spectrum of areas that they touch upon, and the distinct legal cultures and constitutional orders that they emanate from, these examples illustrate that populism can take many forms, across legal disciplines.
Having identified how these two examples can be characterized as instances of a populist turn of law and analysed their implications for law and democracy, I will then, in a second part, suggest ways of resistance, building on theories of deliberative democracy.