27 July 2018


'Judith Shklar's Critique of Legalism' by Seyla Benhabib and Paul Linden-Retek in The Cambridge Companion to the Rule of Law (Cambridge University Press, Forthcoming)  comments 
 The origins, social function, and the legitimacy of law were life-long pre-occupations for Judith Shklar. She was one of the first political philosophers of the post-WWII period in the Anglo-American tradition to devote intense attention to the role of law in liberal-democratic societies. In this respect, her work is more in line with European thinkers such as Max Weber, Franz Neumann and Harold Laski, and of course, her adviser, Carl Friedrich, who was the first to recommend to her that she consider the topic of legalism. From her 1964 book on Legalism to her 1987 essay on “Political Theory and the Rule of Law”, Shklar develops a contextualist analysis of law that situates it within socio-historical and cultural conditions, while seeking to avoid the normative scepticism to which such contextualism might lead. This tension between the socio-historical function of law and its normative content are the two poles around which her reflections vacillate, without quite reaching an equilibrium. In her work, “the facticity” and “the validity” of the law face each other as unreconciled dimensions. In this chapter we first consider Shklar’s early book on Legalism in which she distinguishes among aspects of legalism as ideology, creative policy, and an ethos of the law. Shklar’s critique of international criminal law, to which the second half of Legalism is devoted, is being revived today by those who share her scepticism. But this revival misrepresents the subtleties of her position and needs to be balanced against her full-throated defence of the legitimacy of the Nuremberg Trials, which, we will argue, merits consideration along with Hannah Arendt’s Eichmann in Jerusalem. Over the years, Shklar sought to differentiate more precisely between ‘the rule of law’, which she continued to defend rigorously and ‘legalism’ as a mistaken theory and practice of it. The scepticism of her early work was tempered by her more nuanced analysis of the rule of law in later writings. We turn to an elaboration of this distinction in the latter half of this essay.

Student Equity

Equity Performance and Accountability (2017 Equity Fellowship Report) by Matt Brett for the National Centre for Student Equity in Higher Education comments 
Australian governments have actively enabled the transition from an elite to a highparticipation higher education system that now places higher education within reach of all capable students. However, some groups are underrepresented in higher education compared to their representation in broader society. The Australian Government allocates significant public funding to redress underrepresentation and to support the participation of capable students who experience barriers to participation in higher education. 
Public investment in student equity is inescapably tied to public accountability. Public funding for student equity is substantial and spans a range of equity-specific and general funding programs. Equity-specific programs such as the Higher Education Participation and Partnerships Program (HEPPP) represent around $300 million of annual Commonwealth investment. Programs that support the participation of all students are also relevant to student equity. The Commonwealth Grants Scheme, income contingent loans and student income support represent billions of dollars in public investment that support equity goals. 
The Fellowship research sought to better understand how accountability for performance against equity policy goals and funding operates across the Australian higher education system. This entailed consideration of: how equity goals are defined; who defines equity goals; how equity goals are resourced; how performance against equity goals is monitored and reviewed; and what consequences arise from a level of equity performance. 
Optimising accountability for public expenditure on student equity in higher education is a major challenge. There are numerous stakeholders, equity groups, programs and institutions. Securing consensus on reform is difficult. 
The best way of securing bi-partisan support in Australian government is to provide a sound strategic case for good public policy-based on the efficiency and effectiveness of public expenditure. Collaboration and consultation with all stakeholders may achieve a consensus around which reform can be achieved. 
The report seeks to understand, reconcile and integrate legitimate different perspectives from a range of system stakeholders. Accountability at a system level is contentious because it throws a spotlight on the operations and performance of multiple stakeholders. However, all parts of the system can improve the role they play in student equity. 
To improve accountability in student equity, there must be greater clarity around student equity objectives to provide a reference point for policy across the system. This requires high levels of transparency so that stakeholders are aware of the equity goals, how they are embedded across the system, and how elements of the system are performing. 
The Australian Government needs to take the lead in bringing stakeholders with diverse interests together to develop an equity in higher education narrative that will strengthen the education system as well as contribute to a more productive and socially mobile society. The Commonwealth is best placed to facilitate strong working relationships with schools, training, innovation, industry and public sectors, and to achieve a more ‘joined up’ policy framework than that currently in place today. 
To better understand how accountability for performance against equity policy goals and funding operates across the Australian higher education system, this research involved four strands of activity:
1. Theoretical perspectives on equity and accountability, through a review of the literature. This process informed research design, data collection and analysis. 
2. Analysis of secondary data to identify how equity and accountability is embedded within relevant legislation, regulation, statistics, strategic plans and annual reports. 
3. Interviews with leaders from across the sector, including current and former ViceChancellors, to understand their perspectives on student equity and accountability. 
4. Surveys of managers from across the sector to understand the perspectives of staff within institutions on equity and accountability.
Challenges Identified in the Research 
The research identified six challenges for accountability in equity in higher education: 
1. Student equity is framed at system, group, local and individual levels but accountability for student equity is not Student equity is framed as a general principle (an accessible system for all), as concern for the participation of underrepresented groups (such as regional students), at a local level (such as a university’s local community), and at an individual level focused on participation of marginalised and disadvantaged people. Accountability for equity is primarily focused on designated equity groups, with limited consideration of the relevance of how equity fits to higher education accountability at a system, local and individual level. Conceptualisations of equity do not appear to have adjusted to universal rates of participation. 
2. There is inconsistent alignment between equity group goals, and their resourcing, measurement and evaluation Australian higher education equity policy is focused on designated equity groups. There is inconsistent alignment of funding, measurement and evaluation by equity group. Participation for some groups is supported through equity-specific programs. The participation of some groups is not linked to a specific program, which are instead enabled through general funding programs that are available to all students. Commonwealth and institutional performance reports are inconsistent in the equity groups included for analysis. There is no systematic approach to resourcing, measurement and evaluation of equity at a local and individual level. 
3. There is consensus around legitimacy of some groups, but opinions differ as to whether other groups warrant equity group status There is broad consensus on the legitimacy of policy attention on representation of some groups, particularly Indigenous, low socioeconomic status, regional and remote, and disability. Some sector leaders questioned the relevance of women in non-traditional areas and non-English speaking background. Some sector leaders proposed groups based on different characteristics (e.g. religion or sexual orientation). 
4. Equity is shaped by many institutions and different timeframe considerations outside of higher education Sector leaders recognised that there were many components to equity policy that spanned Commonwealth and state governments, school, early childhood and vocational education systems, and higher education institutions. This complexity of these stakeholders contributes to challenges in aligning equity policy, performance and accountability. 
5. Public investment in financing student equity is not well understood Interviews with sector leaders and surveys of institution managers highlighted uncertainty about the full extent of Commonwealth funding for student equity, or the proportion of institutional income linked to student equity. Knowledge of equity-specific program funding is far better than knowledge of other forms of public expenditure in support of equity. Accountability for equity can be consigned to lower order importance where focus is placed on equity-specific revenues, which in many cases represent a low proportion of institutional financing. 
6. Student equity is not a sufficiently prominent feature of the higher education regulatory environment Interviews with sector leaders highlighted support for the new Higher Education Standards Framework, but with reservations around the role that the Tertiary Equity Quality and Standards Agency (TEQSA) might play in accountability for student equity. There is scope for TEQSA to increase the level of attention given to student equity. Leaders highlighted limits to the regulator’s influence in matters of student equity and the importance of embedding student equity in institutional governance to progress student equity goals and enhance accountability for student equity. 
Strategic Priorities for Change 
There is a case to strengthen accountability given public policy importance of student equity, the magnitude of public investment, and challenges identified around accountability for equity. The strengthening of accountability is best seen as a system level challenge, resolved by progressively and collaboratively embedding strategic equity goals across the system when opportune to do so. 
1. Refine equity goals 
The current equity groups were first identified over 30 years ago and since then both Australian society and higher education have changed significantly. The Department of Education and Training is currently reviewing equity groups and changes are likely to be made to their composition. In addition to national equity groups recognised by the Australian Government, some institutions have developed their own equity priorities, often shaped by local circumstances and needs. Balancing national agendas and local autonomy is a challenge. We must also not lose sight of the individual and diverse support needs. A strategic priority for change is to integrate these tiers within a coherent system of equity, performance and accountability. A multi-tiered approach could form the basis of a new way of thinking about equity. The top tier would represent the core national priorities, linked to specific funding and other policy interventions. Below may be groups and circumstances that do not fit criteria of national priorities but have relevance at a local level and warrant continued monitoring, and are supported by general programs that support the participation of all students. Below this, policies that ensure that individuals who experience educational disadvantage are well supported could be made more explicit. The cyclical review of the tiers may assist the reprioritisation of equity groups over time, creating a dynamic feedback loop rather than the intermittent inquiry-based approach to change with perceived winners and losers. 
2. Improve information management 
The collection of the right data is a critical enabler of transparency and accountability for equity in higher education. While there is a growing body of data on equity in higher education, there are many gaps in information, and student equity is described in diverse ways within policy and planning documents. A fragmented approach to student equity makes it more difficult to assess system and institutional performance against student equity goals. One cannot, for example, readily identify base funding for the participation of students from equity groups. Public accountability for student equity is eroded if the full extent of public investment is opaque. Any changes to equity goals, such as the multi-tiered approach described above, will have implications for higher education information management. There is a need to harmonise reporting, and reporting standards and definitions, to enable researchers and policymakers to investigate student equity more effectively. This means clarifying what data is collected, improving how it is managed, and making better use of the data that is already collected. One challenge in improving information management is the tension between balancing institutional autonomy with consistency in reporting across institutions. Claims to institutional autonomy and regulatory burden can be used to thwart attempts to strengthen and standardise data collection and such claims need to be assessed on their real merits. Similar issues and challenges arise in relation to privacy. There is also a process issue with data collection — who is engaged in data collection policy and what is the process for discussing and debating change in data acquisition? 
3. Embed student equity goals across the higher education system 
Student equity is moderately embedded across the higher education system at national, local and individual levels. Challenges such as misalignment of goals, performance measurement and reporting, and transparency of full public funding suggest that more could be done to embed current equity goals across the system. Any refinement of equity goals will need to be integrated within a complex variety of policy instruments. There is limited visibility over how institutions comply with current equity-related administrative or funding requirements. Much of this compliance is left to institutional governance processes, cyclically assessed by TEQSA. Student equity does not currently feature in TEQSA’s risk framework, and institutions are unlikely to face regulatory consequences-based on their equity compliance regime, profile and performance, particularly where equity commitments are voluntary responses to local need. More could be done to leverage the full public investment in student equity in pursuit of student equity goals. Public subsidies should flow to those institutions who can deliver accessibility and quality. However, under current funding arrangements, prestige and exclusivity confer financial rewards for which comparatively few students from equity groups benefit from. The Australian Government is moving towards some performance funding and these reforms will provide lessons and opportunities to further embed equity as a design feature of a fair, accessible high-quality system. 
4. Analyse, report and communicate outcomes 
To improve equity outcomes, we need better reporting of data, better analysis of broader datasets and better communication of the outcomes of data analysis to all stakeholders. Because reporting is so fragmented, we are not sure what best practice looks like and there is a need for a conversation about what this means and how we reach it sector-wide. The Australian Government can play a key role in this area. It is already the custodian of important national datasets and how they interlink. It can set the parameters by which data is collected and reported. This can extend from articulating specific requirements for information within the Higher Education Information Management System (HEIMS) and Quality Indicators for Learning and Teaching (QILT) to more subtle expectations around what elements a strategic plan or annual report should include. There is also some need to think more broadly about the ways in which data is comparable or can be linked across sectors. The transition from school or TAFE to university should not mean entirely new conceptualisations of equity and how it is measured and tracked. These are some of the challenges and implications that could be addressed by an Operational Framework for Equity and Accountability, as illustrated in the report. 
In looking at systemic changes to the way in which equity in higher education can be advanced, the report does not focus on isolated recommendations of an incremental nature — instead, it proposes a framework through which four priorities for change can unleash significant and continuous system-wide reforms. The Australian Government is the only authority that can lead this process, one that requires cooperation and coordination in a process-based consultation and consensus building exercise with all stakeholders. 
The report has just two significant recommendations consistent with this position:
1. The Australian Government adopts an Operational Framework for Student Equity that integrates system, national, local and individual dimensions of student equity across Australian higher education. 
2. Processes for developing pathways for each of the four strategic priorities for change be developed and implemented, with reference to each other, and in consultation with all stakeholders.

26 July 2018

Online Law Students

'The world at their fingertips? The mental wellbeing of online distance-based law students' by  Emma Jones ORCID Icon, Rajvinder Samra and Mathijs Lucassen in (2018) The Law Teacher comments
  n recent years there has been an increased interest in student mental wellbeing within higher education. In terms of legal education, much of this has been focused upon the United States (US) and Australia, with a lack of United Kingdom (UK)-based empirical data available. Although there is now extensive provision of online distance learning options available to UK (and other) law students, there is a notable lack of research into the possible challenges which are specific to this form of tertiary offering. This paper seeks to contribute to the development of research in this area by reporting upon, and analysing, preliminary data gathered from an empirical study of the mental wellbeing of online distance learning law students.
The authors state
The focus of this paper is on a mixed methods study carried out at The Open University Law School involving students in the final stage of their LLB degree. The data obtained, via an online survey, provides a snapshot of the respondents’ mental wellbeing and indicates that a majority have had a positive law school experience and fall within the “normal range” in terms of their mental wellbeing. However, the findings also suggest that a sizeable minority are experiencing issues in terms of their mental wellbeing and are likely to need professional help. The quantitative results are contextualised and expanded upon with qualitative responses provided by students; with comparators to previous studies on law student wellbeing; and by a consideration of the role and influence of online distance learning. 
The development of online distance education in law
The overall global demand for online distance education – also sometimes termed as open, flexible or e-learning – has “grown exponentially” in recent years.  This encompasses a vast range of formats, from Massive Open Online Courses (MOOCs), offered as a form of informal or badged learning by universities to members of the public, to bespoke tailor-made modules for corporate organisations. Within higher education in the UK the picture is a little more complex, as the number of formal fee-paying distance learners has declined (arguably due to an overall decrease in part-time students in the country).  However, there are still a range of institutions (such as The Open University) that focus on providing online distance learning courses. This commonly involves students studying in their home environment, at times of their choosing, using largely online materials and resources, with tutor and other administrative and pastoral support provided by telephone, email or other online means. At selected time points, face-to-face tutorials (or other similar learning events) may also be offered, but the focus is predominantly online in format. 
In addition, although increasingly less common, there are courses which are predominantly conducted offline (for example, through the provision of hard copy materials) but which retain a distance learning format. There are also many traditional universities which have added an online component to their usual face-to-face offerings, generating different forms of blended learning. This means that many students will encounter some form of distance or online learning during their studies. 
In relation to law specifically, the idea of distance learning is not a new one. For example, during the Second World War, the Law Society (with the assistance of other bodies) ran a legal studies correspondence course for men serving in the forces, and some prisoner-of-war camps allowed their detainees to take the professional examinations for entry into the legal profession.  However the development of distance learning provision has been somewhat uneven globally, for example, Bennett in 2014 was still referring to a “refusal to accept broader use of distance learning” in the US whilst arguing that this would (and should) change. In the UK overall, the increasing use of innovative teaching techniques within law, such as the “flipped classroom” and technology-based simulations  have also encouraged the development of a wide range of blended programmes. 
With a sizeable number of law students now engaged in some form of online or distance learning, there is an increasing need for research into the various facets of their student experience, including the most effective pedagogies, teaching techniques and materials to apply. Whilst there is a sizeable body of work on distance and online learning as generic forms of education, there remains relatively little written specifically in relation to legal education. One area where this is particularly notable is in relation to law student mental wellbeing. Despite a sizeable body of work on this topic generated in both the US and, more recently, Australia, this has largely focused on (or at least assumed) the presence of a traditional, face-to-face law school setting. This article adds to the field of law student mental wellbeing and seeks to explore the experiences of online distance learning law students. It does so by drawing upon empirical data and providing comparisons with prior work on the mental wellbeing of law students studying in a more traditional university environment.  Although it would require further investigation to establish whether the experiences of online distance learners are replicated within blended learning environments, the findings are likely to be of interest to educators seeking to incorporate or develop distance or online elements within legal education. 
Wellbeing and law schools 
The concept of wellbeing has increasingly become a part of popular vocabulary, albeit often applied in a somewhat nebulous and ill-defined manner, with even the spelling provoking some contention (with variations including wellbeing, well-being or well being – and wellness as an alternative). This debate over its meaning can be traced back to arguments over the Aristotelian notion of eudaimonia, which is commonly translated as wellbeing (or flourishing), and whether this stems from the parts of the soul dealing with reason or emotion.  Since then the history of the concept has been closely aligned to the human race’s search for happiness, from the aspirations of the Enlightenment to the pursuit of freedoms of classic liberal thought.  Today, there are a variety of approaches taken to “wellbeing”, including framing it in economic terms, in relation to income and pricing, or measuring it in objective terms through the identification of specific attainments (for example, educational and social).  However, this paper focuses on subjective mental wellbeing, in other words, focusing on a “mental-state” account of wellbeing which explores an individual’s psychological state.  A helpful contemporary definition (and the one provided to participants within the current study) of optimal mental wellbeing is provided by the World Health Organization, which refers to it as being:
… a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community. 
Within the legal literature, there is no one definition of the term “subjective wellbeing” and it has been used in a number of different contexts, to refer to issues with physical health, psychological/mental health,  spiritual health  and social connectedness  (a spread of usage probably indicative of the close links between all of these factors or constructs). Despite the lack of a single definition, there are some key commonalities between empirical work on law student wellbeing that has been conducted in both the US and Australia to date. In terms of methodology, the standardised self-report measure titled the Depression, Anxiety and Stress Scales 21 (“DASS-21”), which is a shortened version of the full 42 item scales, is frequently used as a clinical assessment to ascertain a range of psychological symptoms. In terms of empirical findings, these have consistently indicated that law students are suffering from elevated levels of stress, anxiety and depression, which are higher than those found within the general population. For example, Sheldon and Krieger’s seminal longitudinal study, conducted at two law schools in the US, followed a single student cohort through three years of their (postgraduate) legal study at a single law school (Study 1), and also explored the effect of law school on a first year cohort at another law school by comparing scores at the beginning and the end of the first year (Study 2). In relation to Study 1, the authors found that the students appeared “quite happy and healthy” at the beginning of their (postgraduate) law degree. However, they then experienced “declining happiness and well-being” during their first year at law school, such that this included “large reductions in positive affect, life satisfaction, and overall SWB [subjective wellbeing], and large increases in negative affect, depression, and physical symptoms [of ill-health]”. At the same time, the first year cohort experienced decreases in the relative importance of their intrinsic values (for example, prosocial values such as helping others and personal growth) compared to their extrinsic values (such as achieving status or impressing others). Students also reported decreases relating to their sense of self-determination (the capacity to autonomously pursue goals or interests). The declines in subjective wellbeing and the lowered importance of intrinsic values remained constant at this reduced level throughout years 2 and 3 of law school for the students who completed the follow-up questionnaires. In Study 2, the first year law student survey was replicated at a different law school and results demonstrated similar declines in mental wellbeing and decreased feelings of self-determination. Overall, the results suggest a link between changes in student values and motivation and their declining mental wellbeing. This, in turn, supports the hypothesis of self-determination theory, which posits that individuals struggle to grow when they feel they are unable to act autonomously. The importance of self-determination was further emphasised in another three-year study published in 2007 of two law school cohorts, where the two law schools in question had differing educational philosophies, with one being viewed by the researchers as markedly more encouraging of student autonomy than the other. Based on the findings, it was concluded that:
… to maximize the learning and emotional adjustment of its graduates, law schools need to focus on enhancing their students’ feelings of autonomy. Why? Because such feelings can have trickledown effects, predicting changes in students’ basic need satisfaction and consequent psychological well-being, effects that may also carry forward into the [student’s] legal career. 
These findings are of particular interest when considering online distance law students, as distance education is designed to foster and create autonomous individuals, with learners choosing when, how and where they study. In fact, this form of autonomy is arguably essential for a student to succeed as a distance learner.Therefore, Sheldon and Krieger’s results could be used to support the idea that online or distance learning (or any flexible method) of law study may potentially help support student wellbeing, in contrast to the idea of a controlling and restrictive law school that may decrease satisfaction, career motivation and student mental wellbeing. 
The first large-scale Australian study by Kelk and others, conducted across 13 universities and including nearly 2000 members of the legal profession, concluded “that law students and members of the legal profession exhibit higher levels of psychological distress and depression than do community members of a similar age and sex”. For example, the questionnaire administered by these researchers identified that 35.4% of the law students surveyed reported suffering high or very high levels of psychological distress in the last 30 days, compared to 13% of 18- to 34-year-olds overall in Australia. These findings of compromised mental wellbeing in law students have subsequently been broadly supported by more recent studies in Australia too.  
The reasons for these lower levels of mental wellbeing are thought to be multifactorial. Factors commonly emphasised within both the US and Australian studies include: the lack of autonomy experienced (which has already been discussed);  academic pressures and the workload involved in studying law; the impact of studying law on thinking styles, attitudes and values;  a focus on extrinsic motivations coupled with a decline in intrinsic motivation, values and goals;  There is less consensus around whether or not law students suffer from lower levels of wellbeing and higher levels of psychological distress than other university students in different disciplines. The majority of earlier studies have concluded that there is something specific to the law school experience which generates particular mental health concerns. For example, in the Australian context, Skead and Rogers have conducted a quantitative empirical study on the levels of self-reported anxiety and depression experienced by both law and psychology students (94 students from each discipline). They conclude that the results “reinforce the well-documented fact that law students experience higher levels of stress, anxiety and depression than university students in other disciplines, particularly psychology”, a finding they attribute (in relation to anxiety) to the greater demands placed on students by the study of law.  However, work by Larcombe and others (comparing law and psychology students) has questioned this conclusion (although acknowledging that there is an issue here in terms of mental wellbeing to be tackled in both disciplines).  
In the UK, the issue of law student wellbeing has only recently been acknowledged and hence there is relatively little published work on this topic. A recent report for the Institute for Public Policy Research identified that as a population “Students experience lower wellbeing than young adults as a whole, and experience lower wellbeing than was the case in previous years” with nearly five times as many students reported as disclosing a mental health condition in 2015/16 compared to 2006/07. Specifically, 2% of first-year students reported this in 2015/16, up from 0.4% in 2006/07.  Law students have been included in some wider university surveys on wellbeing, for example, Macaskill undertook a study of 1197 undergraduate students at a post-1992 English university, studying a range of courses (10 including law). She found an overall instance of “psychiatric caseness” (in other words, meeting the criteria for a psychiatric disorder to be diagnosed) amongst these students was 17.3%, which was comparable with 17.6% in the UK population overall, with the figure peaking midway through the second year at 23.1%.  
In terms of the wellbeing of distance learning law students, the authors were only able to identify a handful of published empirical studies undertaken on online distance students in general. They were unable to identify any empirical studies focusing specifically on online distance LLB students. s Overall, the ways in which students interact with, and respond to, their online environment has been missed or overlooked in the specific literature on wellbeing. There appears to be an assumption that online distance learning is an exact equivalent for face-to-face or traditional teaching methods – but there is an absence of any evidence to support this notion. However, what is striking in the literature in relation to online distance learning is the acknowledgement of the way in which the affective domain (i.e. emotions, feelings and moods) impacts on various aspects of online experiences, including learning.  Not only do students bring their own emotions to the online environment, but they also have to try and interpret and understand those of others (for example, tutors and peers) without the use of non-verbal cues, and deal with the emotions generated by this, which could potentially include distrust, isolation and loneliness. This is an interesting contrast to the way that online distance learning is commonly portrayed by its proponents – praising its flexibility, easy access and inclusivity, thus suggesting that there is much to explore in relation to online distance law student wellbeing.


'Legal Unity as Political Unity? Carl Schmitt and Hugo Krabbe on the Catalonian Constitutional Crisis' by Jeroen Kiewiet in (2018) 34(1) Utrecht Journal of International and European Law 56–72 comments 
This article offers an analysis of how theories on constitutional revision can help understand crises that threaten legal unity. The Catalonian crisis represents the case study, and is discussed from the perspective of constitutional theory. The article starts out from a conceptualisation of ‘legal unity’ as the organisational as well as political claim of constitutions to provide unity within a certain legal order, which in the end comes close to the idea of a unified national state. The article refers to the constitutional theories of Carl Schmitt and, the lesser-known Hugo Krabbe, to help increase the understanding of constitutional change and, to connect these insights to the Catalonian case. Schmitt’s claim is that constitutional law is indeterminate and thus in need of the sovereign’s decision. In this analysis, it is made clear that Schmitt’s argumentative scheme in which a distinction is made between friends and enemies in political conflict is unhelpful in addressing the Spanish crisis. Indeed, Schmitt moves beyond descriptive and explanatory goals to defend a normative rejection of liberal political decision-making. By contrast, Krabbe argues for the determinacy of constitutional law. According to Krabbe, constitutional law is finally embedded in ‘legal consciousness’, inherent to all human beings, and which can be determined by majority rule. Even if this answer may not be entirely convincing, it is maintained that this theoretical perspective could nevertheless benefit cases such as the Catalonian constitutional crisis, if as a consequence claims of both the Catalan as well as the Spanish sides based on the idea of ultimate sovereignty over a demarcated territory were dropped. 


Beyond Disruption: How Tech Shapes Labor Across Domestic Work and Ridehailing by Julia Ticona, Alexandra Mateescu and Alex Rosenblat examines
the promises and practices of labor platforms across the ridehail, care, and cleaning industries in the US. Between Spring and Winter 2017, we conducted over 100 qualitative, semi-structured interviews with ridehail app drivers, in-home child and elder care workers, and housecleaners who use platforms to find work in primarily in New York, NY, Atlanta, GA, and Washington, DC. During this period, we also observed the online communities that these workers have formed to discuss occupational or platform-based issues. Although there is a growing body of research on platform-based work, few ethnographic studies exist, and public understanding of this area is shaped largely by journalistic and corporate-produced narratives about who workers are, what motivates them, and how they understand their work. This study contributes new insights on the operation of labor platforms in different low-wage industries and raises new questions about the role of technology in restructuring work.
The authors summarise their  findings
 it’s not all about “uberization:” 
The dominance of Uber in public understandings of on-demand labor platforms has obscured the different ways technology is being used to reshape other types of services – such as care and cleaning work – in the “gig” economy. In particular, the Uber model doesn’t illuminate differences in regulation, workforce demographics, and legacies of inequality and exploitation that shape other industries. 
labor platforms don’t all do the same things: 
Labor platforms intervene at different points in relationships between workers and clients. We identify two main types of platforms: “on-demand” and “marketplace” platforms. While on-demand platforms (like Uber) indirectly manage workforces through “algorithmic management” to rapidly dispatch them to consumers, marketplace platforms (like many care services) primarily impact the hiring process through sorting, ranking, and rendering visible large pools of workers. Some platforms (like many cleaning services) mix elements from both types. 
platforms shift risks and rewards for workers in different ways: 
Marketplace platforms incentivize workers to invest heavily in self-branding, and disadvantage workers without competitive new media skills; meanwhile, on-demand platforms create challenges for workers by offloading inefficiencies and hidden costs directly onto workers. 
platforms create hard trade-offs between safety and reputation: 
Workplace safety is an important issue for workers across care, cleaning, and driving platforms. While some labor platforms provide helpful forms of accountability, company policies also exacerbate risks for workers by placing pressures on them to forego their own safety interests in the name of maintaining reputation or collecting pay. Race and gender shape workers’ vulnerability to unsafe working conditions, but platform policies don’t account for the ways that marginalized workers’ face different challenges to their safety. 
online communities create weak ties in a fragmented workforce, for some: 
Workers on labor platforms use social media and other networked communication to find one another, share pointers, laughs, complaints, and to solve problems. However, while these groups excel at ad hoc problem solving, they struggle to address larger structural challenges, and may exclude significant populations of workers.

25 July 2018

US Personality Rights

'The Right of Publicity: Privacy Reimagined for New York?' by Jennifer E. Rothman in (2018) 36(3) Cardozo Arts and Entertainment Law Journal comments 
 This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s  symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent right of publicity law, at least not the versions thus far proposed. 
The essay begins by busting a host of myths about the development of privacy law in New York and across the nation. The tort-based right of privacy was, and remains, the original right of publicity, and was even referred to as a right to stop “unwarranted publicity.” Privacy laws, from the beginning, protected the famous and anonymous alike, and allowed for recovery of economic and business damages, as well as of emotional distress and reputational harms. 
In the essay, I debunk the common, albeit erroneous, claim that the right of publicity was created in 1953 by the Second Circuit Court of Appeals in Haelan Labs. v. Topps Chewing Gum. Instead, the turn to a transferable and independent (of privacy) right of publicity actually occurred later, and was driven in part by Hollywood lawyers and heirs of celebrities who saw the advantages of a transferable property right in a person’s identity. Such a shift, however, is often at the expense of the very individuals the right of publicity is supposed to protect. The essay concludes with some recommendations for New York, and for right of publicity and privacy laws more generally.


And from today's Australian 
University of Canberra assistant law professor Bruce Arnold also drew comparisons to the UK, saying the government had learnt nothing from the UK “trainwreck”. 
“In the UK patients, health practitioners, IT specialists and privacy lawyers alike condemned inadequate governance, misunderstanding of risk and disregard for patient autonomy,” Prof Arnold said. 
He said the UK had “belatedly heeded those criticisms” but Australia had not. 
“The risks of an insecure system that conscripts patients — and assumes de-identification will enable problem-free sale of bulk health data — greatly outweigh those benefits,” he said. 
Prof Arnold said the legal protection for patient privacy and the IT framework was “inadequate”. 
“Official expectations that many patients will understand security settings are naive,” he said. 
“MyHR has been sadly oversold. There’s been little effort to provide patients with the basis for meaningfully informed consent. 
“That threatens the most fundamental aspect of public health: trust.”
As I've indicated in pieces such as that here and on Twitter, there's a compelling public good in a coherent, respectful and effective national e-health system. Regrettably MyHR is not that system and we need to think hard about fundamental deficiencies in its design and implementation.