15 June 2019

Inferences

'Filling Gaps and Verifying Facts: Assumptions and Credibility Assessment in the Australian Refugee Review Tribunal' by Rebecca Dowd, Jill Hunter, Belinda Liddell, Jane McAdam, Angela Nickerson, and Richard Bryant in (2018) 30(1) International Journal of Refugee Law 71–103 comments
This study investigates the assumptions made by decision makers in Australia when adju- dicating claims for refugee status and/or complementary protection. By analysing 50 randomly selected cases of the Refugee Review Tribunal, it provides a systematic evaluation of the frequency and importance of assumptions made by Australian Tribunal members, partly replicating an earlier United Kingdom study published in this journal. As a multi-disciplinary team of lawyers and psychologists, the authors investigate how Tribunal members’ assumptions about human behaviour pervade credibility assessments, and how they shape overall decision making in the asylum context. This study examines the extent to which Tribunal members take account of credibility guidelines and the psychological evidence base to give protection applicants the benefit of the doubt when their claims cannot be verified. Since asylum seekers’ futures are determined by the outcome of these decisions, it is argued that the Tribunal should provide a greater level of predictability and consistency in the approach taken in the assessment of their cases. 
 The authors argue
This study investigates the assumptions made by members of the former Refugee Review Tribunal1 when adjudicating claims for refugee status and/or complemen- tary protection in Australia. It analyses 50 randomly selected cases determined by the Refugee Review Tribunal (Tribunal) in 2015. In doing so, it responds to the call by United Kingdom (UK) researchers Herlihy, Gleeson, and Turner for further systematic evaluation of the frequency and importance of assumptions made by refugee decision makers, following their own 2010 UK study. 
The UK study explored refugee decision makers’ assumptions in 30 cases as they related to three broad themes: ‘there’ (the period prior to the applicant’s entry to the UK, focusing on how others behaved); ‘here’ (the period in which the applicant navi- gated the UK asylum process, focusing on how appellants presented themselves and their evidence, as well as their knowledge of the asylum system); and what can be termed ‘now’ (the period during the tribunal hearing itself, when the decision maker evaluated the truthfulness of an appellant’s account in light of factors such as consistency, detail, and demeanour). Decision makers’ assumptions typically fed into credibility determinations in the adjudication process. 
In replicating this important study in Australia, the ‘here’, ‘there’, and ‘now’ typ- ology has been maintained. This underscores the cross-cultural, linguistic, and related challenges that Tribunal members face when adjudicating applicants’ accounts of per- secution, their flight from apparent danger, their understanding of expectations in a new culture and society, and their ability to navigate Australian refugee determination processes. How do Tribunal members, with their own cultural norms, expectations, belief structures, and experiences, understand ‘there’, the distinctly different refugee-producing world of the applicant? ‘Here’ and ‘now’ considerations arise in contexts that are familiar to Tribunal members but unfamiliar to applicants, who are outside their comfort zone. 
This study, like the UK study, found that decision makers variously make assumptions about applicants, family members, and government officials. Inevitably, the deter- mination process requires decision makers to imagine themselves in other people’s lives and circumstances, and such assumptions are used to fill gaps in diverse ways. There is always leeway for choice, and the robustness of an assumption depends upon a decision maker’s approach and whether, and when, he or she chooses to give the applicant the benefit of the doubt. For instance, whereas there may be documentary evidence avail- able to substantiate a claim that a particular road, bridge, or checkpoint was unsafe at a particular time, issues relating to personal relationships, honour killings, and the like, cannot be verified in the same way. Given the frequent lack of corroborating evidence, it is critical to understand decision makers’ pervasive assumptions since these may be used to fill the void. As Herlihy, Gleeson, and Turner observed, in a personal injury claim, a wealth of external material, such as health and police records, is available, yet ‘[i]n asylum cases, there are often only the narratives from applicants themselves’. Even in cases where there is additional evidence to support the applicant’s account, his or her personal narrative remains pivotal. In such contexts, any rejection of the applicant’s explanation should be based on contradictory information, not just surmise. 
This study, like its UK predecessor, sits, both generally and specifically, in the context of a significant body of literature on credibility evaluation that examines credibility assessment issues in refugee status determination. Notably, the tenor of this literature has been endorsed in Federal Court of Australia judgments, and, at the time when the cases selected for this study were decided, Tribunal Guidelines on credibility matters were consistent with this body of research. This study assumes that there is a body of accepted ‘best practice’ regarding credibility assessment, and it analyses the sam- ple cases to identify the extent to which applicants’ accounts are scrutinized, and the nature of that scrutiny. In particular, it investigates the ways in which Tribunal members’ assumptions about human behaviour pervade credibility assessments, and how they shape overall decision making in the asylum context. 
The study sets out assumptions in the abstract, rather than in the context of the full decision. This does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence pre- sented to Tribunal members. While an examination of the full Tribunal file in each case, including the evidence submitted and any records of the hearing itself, may have pro- duced a fuller picture of how decision makers analyse assumptions, such files are not publicly available and records of a third party are difficult (if not impossible) to obtain via freedom of information requests. The authors acknowledge this limitation, but stress that the goal of the study was to explore the evidence relied upon and articulated by Tribunal members in their decisions, together with their explanations and justifica- tions for their credibility findings in this context.

Consent

The short 'Informed Consent Requires Understanding: Complete Disclosure Is Not Enough' by Thaddeus Mason Pope in (2019) 19(5) American Journal of Bioethics 27 comments
Beskow and Weinfurt tackle one of the most important yet under-examined issues in bioethics: the relationship between clinician disclosure and non-clinician understanding. They explore this relationship in the research ethics context, addressing four key questions. First, do research subjects understand basic aspects of the studies in which they are enrolled? Second, should we set minimum thresholds for research subject comprehension? Third, how and where should we set those minimum thresholds? Fourth, what consequences should we impose when subjects do not meet the minimum thresholds? 
These are important inquiries for research ethics and human rights. But they are even more critical in the treatment context. Remarkably, we are not yet asking, much less answering, these questions about patients making decisions among treatment options. For example, a member of Beskow and Weinfurt’s multidisciplinary expert panel observes: “We don’t do comprehension testing anywhere else in medicine, so I don’t know why we’d do it here.” The panelist is right. There should be symmetry and harmony in how we treat understanding in the research and treatment contexts. In the following, I extend Beskow and Weinfurt’s four questions to address the proper role of comprehension in clinical informed consent.

Positivism

'The British Tradition of Legal Positivism' by Gerald J. Postema in Torben Spaak and Patricia Mindus (eds) A Companion to Legal Positivism (Cambridge University Press, forthcoming) comments
 This essay traces a thematic thread through broadly Anglophone legal philosophy since the seventeenth century. Ownership of the title “positivism” is contested in contemporary Anglophone jurisprudence. If we to take the core theses embraced by contemporary legal positivists to identify the key figures in their tradition the story would be very brief, starting, perhaps, with Hart. Hence, rather than tracing a line of development of a coherent jurisprudential tradition, this essay sketches in broad outlines the transformation of Anglophone legal philosophy since Hobbes. However, it begins with a brief discussion of the headwaters of Anglophone positivist tradition in the “thetic” tradition of legal theory in late medieval jurisprudence and in the practice and theory of English common law and ends with a discussion of Salmond and other twentieth-century jurists who paved the way for Hart’s contemporary version of legal positivism.
Postema's 'Trust, Distrust, and the Rule of Law' in Paul B. Miller and Matthew Harding (eds.) Fiduciaries and Trust: Ethics, Politics, Economics and Law (Cambridge University Press, forthcoming) comments
 The rule of law is about the law’s ruling. Law rules when it provides protection and recourse against the arbitrary exercise of power through the distinctive instrumentalities, powers and capacities of law; but law can rule in a political community only when its members, official and lay members alike, take responsibility for holding each other accountable under the law. An ethos of fidelity is fundamental to the vitality of the rule of law. However, it is often argued that a culture of accountability generates a culture of suspicion and distrust. Accountability, they say, drives out trust. The demand for accountability stems from and publicly expresses distrust. But, then, if accountability is at the heart of the rule of law, and distrust is the condition and consequence of accountability, we cannot look to the rule of law to underwrite a robust program of controlling the exercise of ruling power. This the “trust challenge” to the rule of law. In this paper, I argue that the trust challenge can be met, that accountability does not depend on or express distrust. On the contrary, I argue, accountability is a key component of trust-supporting moral and social relationships. Fidelity and trust are compatible and mutually supporting.

Pleasure

'Sex Wars as Proxy Wars' by Aya Gruber in (2019) 6 Critical Analysis of Law comments
The clash between feminists and queer theorists over the meaning of sex — danger versus pleasure — is well-trodden academic territory. Less discussed is what the theories have in common. There is an important presumption uniting many feminist and queer accounts of sexuality: sex, relative to all other human activities, is something of great, or grave, importance. The theories reflect Gayle Rubin’s postulation that “everything pertaining to sex has been a ‘special case’ in our culture.” In the #MeToo era, we can see all too clearly how sex has an outsized influence in public debate. Raging against sexual harm has become the preferred weapon of those attacking heterogenous power differentials. Focusing on sex, advocates wage proxy wars for other values, from equality in professor-grad student relationships to gender diversity on corporate boards. However, when we have our sex blinders on, it is difficult to seek remedies to — or even see — the problems for which sexual harm stood in as a proxy. In this essay, I make the case that combining queer-theoretical methods with a distinctly sex-indifferent stance brings a useful perspective to some of the thornier aspects of the contemporary debate over sex regulation.

Prediction Machine?

dentification of practitioners at high risk of complaints to health profession regulators' by Matthew J. Spittal, Marie M. Bismark and David M. Studdert in (2019) 19 BMC Health Services Research 380 comments
Some health practitioners pose substantial threats to patient safety, yet early identification of them is notoriously difficult. We aimed to develop an algorithm for use by regulators in prospectively identifying practitioners at high risk of attracting formal complaints about health, conduct or performance issues. 
Methods 
Using 2011—2016 data from the national regulator of health practitioners in Australia, we conducted a retrospective cohort study of 14 registered health professions. We used recurrent-event survival analysis to estimate the risk of a complaint and used the results of this analysis to develop an algorithm for identifying practitioners at high risk of complaints. We evaluated the algorithm’s discrimination, calibration and predictive properties. 
Results 
Participants were 715,415 registered health practitioners (55% nurses, 15% doctors, 6% midwives, 5% psychologists, 4% pharmacists, 15% other). The algorithm, PRONE-HP (Predicted Risk of New Event for Health Practitioners), incorporated predictors for sex, age, profession and specialty, number of prior complaints and complaint issue. Discrimination was good (C-index = 0·77, 95% CI 0·76–0·77). PRONE-HP’s score values were closely calibrated with risk of a future complaint: practitioners with a score ≤ 4 had a 1% chance of a complaint within 24 months and those with a score ≥ 35 had a higher than 85% chance. Using the 90th percentile of scores within each profession to define “high risk”, the predictive accuracy of PRONE-HP was good for doctors and dentists (PPV = 93·1% and 91·6%, respectively); moderate for chiropractors (PPV = 71·1%), psychologists (PPV = 54·9%), pharmacists (PPV = 39·9%) and podiatrists (PPV = 34·0%); and poor for other professions. 
Conclusions 
The performance of PRONE-HP in predicting complaint risks varied substantially across professions. It showed particular promise for flagging doctors and dentists at high risk of accruing further complaints. Close review of available information on flagged practitioners may help to identify troubling patterns and imminent risks to patients.

Neurobionics

"Neurobionic Revenge Porn and the Criminal Law: Brain-Computer Interfaces and Intimate Image Abuse' by Allan McCay in Nicole Vincent, Thomas Nadelhoffer and Allan McCay (eds), Neurointerventions and the Law: Regulating Human Mental Capacity (Oxford University Press, Forthcoming) comments
 Brain computer interfaces make possible a form of neurobionic agency in which people interact with the internet by mental action, without the need for a bodily movement. In this paper I consider the possibility of someone uploading intimate images of another person, without their consent, onto social media by way of brain-computer interface. I do this in order to highlight the novel, and perhaps problematic nature, of the options for response to such offending (given current doctrine) that are available to the criminal law. I use the example of revenge porn as a case study, in order to very tentatively consider the criminal law’s response to neurobionic offending more generally. 
Methodologically, my paper is somewhat different to much of the work that has been done on criminal responsibility in the context of brain computer-interfaces, insofar as the paper significantly engages with legislation, and to some extent case law, with reference to a hypothetical scenario. Previous work has generally considered the issues in more abstract terms and I argue there are some advantages to my more applied approach. 
Whilst the law has criminalized bodily actions, omissions and certain kinds of status, neurobionic agency falls into none of these traditional categories, and some issues flow from this failure. I will argue that neurobionic revenge porn would present a challenge to the criminal law relating to the determination of the conduct which constitutes the actus reus. Thus, I argue that if the courts are required to respond to this kind of offending; it will raise questions about a concept that is currently central to the criminal law.

Cloud Robotics

'Cloud Robotics Law and Regulation' (Queen Mary School of Law Legal Studies Research Paper No. 295/2018) by Eduard Fosch Villaronga and Christopher Millard states
 This paper assesses some of the key legal and regulatory questions arising from the integration of physical robotic systems with cloud-based services, also called “cloud robotics.” The literature on legal and ethical issues in robotics has a strong focus on the robot itself, but largely ignores any background information processing. Conversely, the literature on cloud computing rarely addresses human-machine interactions, which raise distinctive ethical and legal concerns. In this paper we investigate, from legal and regulatory perspectives, the growing interdependence and interactions of tangible and virtual elements in cloud robotics environments. We highlight specific problems and challenges in regulating such complex and dynamic ecosystems, and explore potential solutions. To illustrate practical challenges, we consider several examples of cloud robotics ecosystems involving multiple parties, various physical devices,and various cloud services. These examples illuminate the complexity of interactions between relevant parties. By identifying pressing legal and regulatory issues in relation to cloud robotics we hope to inform the policy debate and set the scene for further research.

Consumers

'The Responsible Consumer in the Digital Age: On the Conceptual Shift from ‘Average’ to ‘Responsible’ Consumer and the Inadequacy of the ‘Information Paradigm’ in Consumer Financial Protection' by Cătălin Gabriel Stănescu in (2019) 24(1) Tilburg Law Review 49–67 comments
 The article argues that the ‘information paradigm’, within which the concept of ‘average’ consumer operates, is unfit to provide adequate financial protection to consumers in the aftermath of the 2008 financial crisis and in the wake of the digital age. As the complexity of financial and digital financial services increases, consumers are expected to educate themselves and become financially literate, while traders’ liability and state intervention are reduced to a minimum. ‘Average’ consumers are turned into ‘responsible’ ones. 
Using as examples the Mortgage Directive and European Securities and Markets Authority (ESMA)’s position on Initial Coin Offerings (ICOs), the article shows that the former ‘paternalistic’ attitude towards consumer protection in both EU legislation and policy making was replaced with a ‘self-help’ approach and contests the general wisdom regarding consumers’ ability to participate in financial markets or understand the risks posed by novel products and services facilitated by technical innovation and digitization. 
The article calls for a reconsideration of the information paradigm and for a pro-active approach of the EU regulatory bodies to provide consumers with efficient protection.
'Consumer Protection, Modern Regulation, Paternalism and the Nanny State: Understanding the Legitimacy Challenge' by Eric Windholz in (2018) 26 Competition and Consumer Law Journal 182 comments
 Regulation to protect consumers from making choices that may be harmful to themselves is common place in Australia. Yet commentary on such regulation can be both polarised and bi-polar. At one extreme are libertarian groups and business for whom much regulation is a reflection of government overreach and interference. ‘Nanny state’ is the label they oft attach to it, and to the experts that advocate it. Those experts on the other hand, describe such regulation as the epitome of the modern regulatory state - one that seeks to proactively shape a world in which people live healthy, wealthy and happy lives. And in the middle are people for whom discussion of consumer protection regulation produces contradictory impulses. Such extreme and variable views represent a challenge to the legitimacy of consumer protection regulation. This paper examines developments specific to the consumer protection regulatory landscape to understand the underlying causes of this legitimacy challenge. It is only by understanding those causes that governments can hope to navigate a path to better legitimacy.
'ASEAN Consumer Law Harmonisation and Cooperation: Backdrop and Overarching Perspectives' (Sydney Law School Research Paper No. #19/32) by Luke Nottage, Justin Malbon, Jeannie Marie Paterson and Caron Beaton-Wells comments
 This paper is adapted mainly from the manuscript version of the introductory chapter for the forthcoming Cambridge University Press volume, ASEAN Consumer Law Harmonisation and Cooperation: Achievements and Challenges, by Luke Nottage, Justin Malbon, Jeannie Marie Paterson and Caron Beaton-Wells. Included in the series on “Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration”, our book is the first Western-language research monograph detailing significant developments in consumer law and policy across the Association of Southeast Asian Nations, underpinned by a growing middle class and implementation of the ASEAN Economic Community from 2016. Eight chapters examine consumer law topics within ASEAN member states (such as product safety and consumer contracts) and across them (financial and health services), as well as the interface with competition law and the nature of ASEAN as a unique and evolving international organisation. Insights are included from extensive fieldwork by the four authors, partly through several consultancies for the ASEAN Secretariat over 2013-5, to provide a reliable, contextual and up-to-date analysis of consumer law and policy development across the region. The volume also draws on and contributes to theories of law and development in multiple fields, including comparative law (with references also to consumer law developments in Australia, Japan and the EU), political economy and regional studies. 
The introductory chapter outlines the backdrop to the achievements and challenges experienced as ASEAN has intensified its program of harmonising minimum standards of consumer protection across Southeast Asia, especially over the last decade. A key factor outlined is economic integration both among ASEAN member states and with their wider regional and global economies. Yet diversity among member states (demographics, economic development, legal and political systems, NGOs and press freedom) arguably influences the timing and extent of consumer law reform and implementation in each country. The chapter ends with summaries of the scope and key lessons of the remaining substantive chapters in the volume (examining product safety regulation, consumer contracts, financial and health services, and interaction of consumer law with competition law) as well as the concluding chapter (adding proposals for enhancing more public-private ‘shared regional value’). This paper adds (in Part 1.4.2) an adaptation of four of the theoretical perspectives elaborated in chapter 2 of the volume, to understand better the trajectory of consumer law harmonisation across Southeast Asia, and the evolving nature of ASEAN itself. These include theories of comparative regionalism, transgovernmentalism, ‘trading up’, and legal transplants.

Trade Secrets

'To Be and Not to Be an IPR – The Protection of Trade Secrets in the EU' (University of Copenhagen Faculty of Law Research Paper No. 2019-71) by Jens Schovsbo and Thomas.Riis comments
 No international consensus has developed regarding the classification of trade secret as an Intellectual Property Right, a piece of property or something different. This article argues that one should not from the abstract classification of the nature of the protection of trade secrets seek to infer legal consequences and that classifying trade secrets could well be a matter of degrees; for some purposes, it might make sense to see trade secrets as an IPR whereas for other it does not. Using the example of the Enforcement Directive and TRIPS it is pointed out how these legal regimes classify trade secrets protection in different ways but also that they do so for the same purpose which is problematic.

Rights

'On No-Rights and No Rights' (University of Cambridge Faculty of Law Research Paper No. 13/2019) by Matthew H Kramer comments
 As is well known to everyone familiar with the analytical table of legal and moral relationships propounded by the American jurist Wesley Hohfeld, one of the eight positions in the table is that of the no-right. 
In most discussions of Hohfeld’s overall framework, no-rights have received rather little attention. Doubtless, one reason for the relative dearth of scrutiny is that Hohfeld devised a hyphenated neologism to designate no-rights. Each of the other positions in the Hohfeldian table is designated by a term with a solid grounding in everyday discourse and juristic discourse, whereas the hyphenated term “no-right” – in contrast with the unhyphenated phrase “no right” – does not have any comparable grounding either in ordinary discourse or in juristic discourse. That neologism is almost never employed by anyone outside the confines of discussions of Hohfeld’s categories, and it is often not employed even within those confines. Notwithstanding the enormous amount of philosophical and juristic attention bestowed on Hohfeld’s analytical framework since its elaboration in the second decade of the twentieth century, the term “no-right” has found little favor in philosophical or juristic circles. Moreover, on the rather rare occasions when the term is used rather than merely mentioned, it is almost always misused. The exploration of the correct use of that term in the first half of this paper may seem rather fussy, but the importance of that exploration for a satisfactory understanding of legal and moral relationships will become apparent in the second half of the paper.
'The Human Right to a Clean and Healthy Environment in Climate Change Litigation' (Max Planck Institute for Comparative Public Law and International Law (MPIL) Research Paper No. 2019-09) by Sam Varvastian comments
 This paper discusses a particular field of climate change law: climate change litigation based on claims stemming from the right to a clean and healthy environment under national and international human rights law. This field is coming under increased scrutiny of both legal scholars and practitioners. While the share of rights-based climate cases within the global body of climate change litigation is still very insignificant, a number of such cases have already been heard by courts all across the globe. The initial assessment of the existing case-law allows for cautious optimism that the use of rights-based claims, notably the right to a clean and healthy environment under national and/or international law, is justified and can yield at least some positive results.

11 June 2019

OECD AI Principles

The OECD Principles on Artificial Intelligence, adopted on 22 May 2019 by OECD member countries and adapted at the weekend by the G20 as 'human-centred AI Principles', are characterised as promoting "artificial intelligence (AI) that is innovative and trustworthy and that respects human rights and democratic values".

The OECD states that its AI Principles are
the first such principles signed up to by governments. Beyond OECD members, other countries including Argentina, Brazil, Colombia, Costa Rica, Peru and Romania have already adhered to the AI Principles, with further adherents welcomed. The OECD AI Principles set standards for AI that are practical and flexible enough to stand the test of time in a rapidly evolving field. They complement existing OECD standards in areas such as privacy, digital security risk management and responsible business conduct.
The "five complementary values-based principles for the responsible stewardship of trustworthy AI" are
  •  AI should benefit people and the planet by driving inclusive growth, sustainable development and well-being. 
  • AI systems should be designed in a way that respects the rule of law, human rights, democratic values and diversity, and they should include appropriate safeguards – for example, enabling human intervention where necessary – to ensure a fair and just society. 
  • There should be transparency and responsible disclosure around AI systems to ensure that people understand AI-based outcomes and can challenge them. 
  • AI systems must function in a robust, secure and safe way throughout their life cycles and potential risks should be continually assessed and managed. 
  • Organisations and individuals developing, deploying or operating AI systems should be held accountable for their proper functioning in line with the above principles. 
The OECD goes on to ask "What can governments do?", responding
Consistent with these value-based principles, the OECD also provides five recommendations to governments:
  • Facilitate public and private investment in research and development to spur innovation in trustworthy AI. 
  • Foster accessible AI ecosystems with digital infrastructure and technologies and mechanisms to share data and knowledge. 
  • Ensure a policy environment that will open the way to deployment of trustworthy AI systems. 
  • Empower people with the skills for AI and support workers for a fair transition. 
  • Co-operate across borders and sectors to progress on responsible stewardship of trustworthy AI.