Language and Afterlives

'The Construction of Homosexuality in New Zealand Judicial Writing' by Edward Clark in (2006) 37 Victoria University of Wellington Law Review 199 comments

This article examines the language used by New Zealand judges to describe homosexuality. It analyses the use of such language in judgments delivered after the decriminalisation of homosexual intercourse in 1986, examining the effect that judicial language has on rights claims made by homosexuals. 

The article argues that a significant number of judges are careless or ill-­informed in the language they use to refer to homosexuality and that the language used reinforces and repeats a number of negative stereotypes about homosexuality, constructing it as inferior to a heterosexual norm. This article criticises such careless or prejudiced language as incompatible with New Zealand’s human rights commitments and argues that this language constitutes a barrier to the full enjoyment of citizenship by homosexual New Zealanders.

The report by the ACT Legislative Assembly's Standing Committee on Environment and Transport and City Services regarding its inquiry into the management of ACT cemeteries. features the following recommendations

1 The Committee recommends the Government, in view of the diversification in burial and interment preferences in the ACT, ensure that the development and construction of a second crematorium in Canberra be considered a high priority. 

2 The Committee recommends the Government continue to monitor community preferences across a range of burial, cremation and interment practices and where possible make provision for emerging or alternative practices. 

3  The Committee recommends the management and operation of ACT cemeteries continue to be performed by the ACT Cemeteries Authority. 

4 The Committee recommends the management and operation of any future cemeteries or crematorium or any other interment facility be performed by the ACT Cemeteries Authority. 

5  The Committee recommends the Government reconsiders the planned extension of the Woden Cemetery in light of changes in planning for the Woden Town Centre and the views held by the local community. 

6 The Committee recommends that the Government agree to proceed with the current plans for the Southern Memorial Park and work with the ACT Cemeteries Authority to establish the facility as a matter of urgent priority. 

7  The Committee recommends that a review of the Cemeteries and Crematoria Act 2003 be undertaken to ascertain the feasibility and financial basis for adopting a renewable tenure scheme to replace the prevailing tenure provisions applying to ACT cemeteries. 

8  The Committee recommends that any review conducted in accordance with Recommendation 7 should seek to clarify the current definition of perpetuity, and examine the introduction of a renewable tenure regime with some form of increments and renewals allowed. 

9  The Committee recommends that any review conducted in accordance with Recommendation 7 should also include “for perpetuity” as a tenure option. 

10  The Committee recommends that any changes to tenure practices arising from the review conducted in accordance with Recommendation 7 are applied only to future burial sales and are not applied retrospectively to existing plot sites. 

11  The Committee recommends that an actuarial analysis of tenure options be undertaken as part of the review recommended in recommendation 7 to assess how best a renewable tenure scheme regime be structured to enable the ACT Cemeteries Authority to meet its financial liabilities over the long-term. 

12  The Committee recommends that where a recommendation made in this Report is adopted, that all aspects of the Cemeteries and Crematoria Act 2003 relating to that matter be given specific review in light of the Cemeteries and Crematoria Act 2003 enabling the Authority to implement the relevant reform.

Digital Rights

Last month's Digital Rights in Australia report by Gerard Goggin, Ariadne Vromen, Kimberlee Weatherall, Fiona Martin, Adele Webb, Lucy Sunman, and Francesco Bailo at the University of Sydney comments that

Australians are some of the world’s greatest users of social media and mobile broadband, and our nation is in the top ten globally for internet use. At a time when our use of these technologies is increasingly redefining aspects of our personal and professional lives, Digital Rights in Australia explores urgent questions about the nature of our rights now and into the future. 

 The report covers

rights issues in four areas: privacy, profiling and analytics; government data matching and surveillance; workplace change; and freedom of expression and speech regulation. It explores the ethical and legal challenges we face in using digital, networked technologies and the debates we are having about how to best manage their transformative impacts. 

Crucially this study examines the major role of private, transnational digital platforms in reshaping the way we work, study and conduct business, our interactions with government and with each other. 

This report draws on three sources of data: a national survey of the attitudes and opinions of 1600 Australians on key rights issues; focus group discussion of related rights scenarios; and analysis of legal, policy and governance issues, illustrated by case studies. 

It's core findings are -

 Privacy, Profiling, Data Analytics

• Australians are concerned about their online privacy. While two thirds of our respondents believe they personally have nothing to hide, only a small group (18%) think that more general concerns about online privacy are exaggerated. 

• A majority of our respondents do not feel in control of their privacy online. While a majority take active steps to protect their privacy (67%), and have changed settings on the social media they use most often (61%), a minority (38%) felt that they can control their privacy online. 

• Women experience the online world differently from men: they are more likely to agree that they actively protect their privacy online (71%, compared with 63% of men) and change their social media settings (63%, compared with 58% of men), but feel no more in control of their privacy (39%, compared with 38% of men). 

• There may be a significant group for whom the answer to questions relating to privacy online are: “it depends” (this contrasts with answers about governments and privacy). 

• Corporations were the major source of concern: 57% were concerned about their privacy being violated by corporations, although a substantial number were also concerned about privacy violations by government (47%) and other people (47%). 

• A large majority (78%) want to know what social media companies do with their personal data. 

• In the online focus group, participants’ views were mixed on the use of data in targeted advertising and price discrimination. But there was a consensus that content targeting for political purposes is different: for example, paying a social media platform to boost a negative opinion article about a rival party to users in marginal seats was seen as crossing a line.

Government Data Matching and Surveillance

• Nearly half of our respondents were concerned about government violating their privacy (47%). 

• A majority are opposed to government programs for phone companies and internet service providers to keep metadata on phone calls and web use. 79% of respondents considered retention of information about phone calls to be a privacy breach. A majority (58%) were also opposed to a policy for government-mandated retention of information about internet communications. 

• But a change in frame altered these numbers. When asked whether they favour law enforcement and security agencies being able to access metadata, the number in favour jumped up to 42% (47% opposed). Once framed as an anti-terrorism measure, government data-gathering about internet is supported by a majority of respondents (57%), while only 31% oppose a program described this way. 

• Our findings highlight the critical importance of the framing of questions when assessing public support for data collection and sharing, and interpreting survey results. 

• Respondents’ attitudes towards both government collection of communications data, and government data matching programs, varied significantly depending on political identification. Respondents who identified with the Coalition were significantly more likely to support programs; identification with the Greens made a respondent more likely to oppose such programs. 

• There is considerable ambivalence among the survey participants towards online government data matching programs. We found that 42% are in favour and 45% are opposed to a program that tracks citizen use of public services and benefits. Our online focus group was also sharply divided on a range of data matching scenarios put to them.

 Work

• Digital privacy at work matters. Most Australians do not think employers should look at their employees’ social media pages. While 37% agreed that it was acceptable for either prospective or current employers to look at public social media posts; only 20% agreed that it was ok for either current or prospective employers to look at private posts. 

• High school educated, those not working in professional/skilled work, and respondents over 40, were most concerned about employers accessing their social media posts. 

• Only 16% of people agreed that using social media was an important part of their job, but most workplaces (72%) they were in had a policy about using social media while at work. Most workplaces seem to recognize the everyday ubiquity of social media use and are attempting to govern it, though only 46% of respondents said their workplace had a policy on what they post online. 

• In this terrain of unclear directions over social media at work and employers’ rights to access posts, our online discussion groups reinforced that privacy boundaries are important, but also that employees needed to use their own “common sense”. 

• The encroachment of some new policy agendas, such as that seen in the case study of the Public Service Commission, needs to better reflect citizens’ desires for digital privacy at, and from, work. 

• The app driven, online gig economy presents a new space for digital rights analysis. Most respondents have heard of, but not used, a platform such as Uber, Airtasker or Deliveroo; and use is skewed towards those under 40 and the university educated. 

• Australians see gig work as providing workers with more flexibility, but at the same time a majority are also concerned about the financial insecurity of this kind of work. Over 60% believe that these new forms of work need new government regulations. Yet, as shown in the case study, institutionalising fairer regulations is fraught.

 Speech 

• Australians are not strongly wedded to the North American ideal of absolute speech freedom online. Just over a third (37%) of those surveyed agreed that they should “be free to say and do what I want online”, but 30% disagreed and a third expressed reservations about the idea. People were also less supportive of others having that absolute freedom than themselves. 

• 50% of Australians agreed that everyone should have the right to online anonymity or pseudonymity, a figure that increases to 57% for those under 40 years. Around a third of younger Australians said it was more likely that they would make honest and open comment on the news, talk about sensitive topics like sexuality or question others’ opinions if they had the opportunity to comment anonymously. 

• Men are more likely to assert their right to free expression than women, reflecting the male dominance of everyday speech online as much as of offline. 

• Gender is a key variable in understanding attitudes to social media regulation. Men were less likely than women to agree with the need to remove within 24 hours instances of sexual harassment, abuse targeted at an individual, or hate speech that encourages violence against others. Women were less supportive than men of the right to anonymity. 

• While most Australians had not experienced negative impacts from risky or harmful online speech, 39% have been affected by mean or abusive remarks and 27% have had personal content posted without consent. Our case study on image-based abuse emphasises the need for law reform and educational strategies to address new privacy and speech rights breaches. 

• More than was the case for either work or privacy issues, Australians agreed on the need for more regulation of online discussion environments. They flagged the need for increased involvement by social media platforms in content moderation and ‘easy’ complaints reporting. 

• There was a perception gap between people’s belief that harmful social media content was easy to get taken down, and the procedural reality that it is not always straightforward and may require regulatory intervention to persuade the host company to act, as the European Commission hate speech case study suggests.

Citizenship Shopping

'State Inc.' by Tsilly Dagan and Talia Fisher in (2018) Cornell Journal of Law and Public Policy comments

 Conventional wisdom holds that citizenship is not a consumer good and that the goods that the state confers upon its constituents - e.g., economic and social rights, access to its publicly provided goods, political voice and identity - are not for sale. In fact the relationships between states and actual or potential citizens is ideally conceptualized as standing in stark contrast to a seller-buyer relationship. The ideal type of state-citizen relationship is based in an entirely political sphere disconnected from the market. In accordance with this ideal conceptualization of the state-citizen relationship, the state is depicted as the legal guardian of citizenship entrusted with authority to determine who its members are and to exercise its powers in a manner that is compatible with the underlying normative values shared by its political members. It has an obligation to reinforce and represent the politically pronounced collective will. Being a citizen, according to this view, translates into being a member of a political community, participating in its deliberative process and as such bearing rights vis a vis the state and being entitled to the benefits it confers.

This ideal depiction of the relationship between the state and its actual or potential citizens is not, however, fully aligned with current reality where we are witness to gradual erosion of various dimensions of state-citizen relationship and an infiltration of market logic into this interaction. States seemingly desert their role as trustees of citizenship and assume a market player position, recruiting human capital and investments by putting their real and political assets up for grabs. They engage in the sale and barter of various aspects of membership in their polities and at times even in the sale or barter of full-fledged citizenship. Individuals as well, shop for citizenship, residency, work and other permits as well as for additional goods that states provide.

We argue that in order to fully account for this process of market infiltration into the realm of citizenship both on a descriptive and a normative level, one needs to widen the perspective through which state-citizen interaction is viewed. The ideal depiction of a distinct separation between the political sphere and the market realm fails to take into account the fact that the state-citizen relationship does not stand in a vacuum. Rather, it is part of a greater market order plagued with democratic and political deficits. In this decentralized order states themselves inevitably participate and function as market players vis a vis other states. They compete for capital and human resources by offering their public goods and political participation for sale. This market thus conflates monetary and political currency, and puts a price tag on political membership. At the same time, individuals and corporations compete for state-provided membership, rights, and public goods.

Competition does not only change the strategic positions of states and citizens in pursuing their goals. It percolates into the interaction between states and their subjects (their current citizenry as well as potential constituents) altering traditional roles of both states and citizens; it changes the kinds and quantities of public goods and entitlements being offered, it alters modes of democratic participation, schemes of distribution as well as the meanings and values underlying the state-citizen interaction.

The purpose of this Article is twofold: first, on a descriptive level we wish to uncover existing manifestations of the market infiltration into the state-citizen interaction. We will discuss how globalization reshapes this interaction’s phenomenology as well as the strategic goals of both states and citizens. Second, on the normative plane we explore and evaluate the marketization and fragmentation of the state-citizen relationship in light of central normative criteria--efficiency, distributive justice, autonomy identity and political participation.

Part A will focus on the descriptive dimension and unravel real world practices where state-citizen relationships are being marketized in full or in part. These examples of selling citizenship a-la carte will demonstrate the infiltration of the market into the political sphere and how market forces shape both the identity of the polity, and the formation of the collective will.

Against the backdrop of these markets for citizenship induced by state competition, part B will turn to the normative discussion evaluating the desirability of markets for citizenship.

Privacy and Open Justice

'Privacy As Protection of the Incomputable Self: Agonistic Machine Learning' by Mireille Hildebrandt comments

This paper takes the perspective of law and philosophy, integrating insights from computer science. First, I will argue that in the era of big data analytics we need an understanding of privacy that is capable of protecting what is uncountable, incalculable or incomputable about individual persons. To instigate this new dimension of the right to privacy I expand previous work on the relational and ecological nature of privacy and the productive indeterminacy of human identity. Second, I will explain that this does not imply a rejection of machine learning, based on a more in-depth study of the assumptions, operations and implications of the practice of machine learning – highlighting its alignment with purpose limitation as core to its methodological integrity. Instead of rejecting machine learning, I advocate a practice of ‘agonistic machine learning’ as core to scientifically viable integration of data-driven applications into our environments while simultaneously bringing them under the Rule of Law. This should also provide the best means to achieve effective protection against overdetermination of individuals by machine inferences.

'The Media's Standing to Challenge Departures From Open Justice' by Michael Douglas in (2016) 37 Adelaide Law Review comments

 Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure. This article addresses the standing of media organisations to challenge departures from open justice. In some jurisdictions, the issue is resolved by statute. However, the position is not uniform around Australia. The article explains the position under the differing statutes and at common law. It focuses on the common law position, where the standing of media organisations is controversial. It argues that at common law, media organ- isations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice. 

Douglas argues

 The principle of open justice is an essential characteristic of courts, but it is not an absolute principle. A court may depart from open justice by: closing proceedings to the public, concealing information from those present in court, or restricting publication of material arising from the proceedings. Superior courts have the power to depart from open justice in exercise of their inherent jurisdiction. Inferior courts and federal courts created by statute have the same power in exercise of analogous implied powers. Courts may also depart from open justice in exercise of statutory powers. When these powers are exercised, it is appropriate for those with the greatest stake in open justice to question whether the circumstances warrant the departure. Journalists, and the media organisations behind them, have the greatest stake in open justice in Australia. For some, this is an obvious truism. For others, this position is contentious. This article argues that when courts are closed, the media is aggrieved in a way that the remainder of society is not. The issue is important because in some cases it will determine whether an organisation that reports the news - a 'media organisation' - has standing to challenge a departure from open justice. 

To an extent, this was addressed by model legislation on suppression and non- publication orders developed by the Standing Committee of Attorneys-General in 2010. The model legislation was implemented by New South Wales in the Court Suppression and Non-publication Orders Act 2010 (NSW) and in a modified form in relation to federal courts via the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). Other jurisdictions did not implement the model legislation. For much of Australia, the standing of media organisations is an issue addressed by alter native legislation, or the common law. 

The common law position is contentious. In Western Australia, a majority of the Supreme Court held in Re Bromfield; Exparte WA Newspapers Ltd that a newspaper publisher had sufficient interest to establish standing before a magistrate to oppose the making of a suppression order. That decision is contrary to New South Wales Supreme Court decisions, including John Fairfax Group and Nationwide News Pty Ltd v District Court of New South Wales. This article argues that the majority in Re Bromfield ought to be followed, and that the weight of authority provides that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice. 

The article is structured as follows. Part II looks at legislation providing standing to challenge departures from open justice. The legislative provisions are then compared to the common law position. Part III explains how non-parties may become involved in adversarial proceedings, and addresses the controversy over the common law standing of media organisations in more detail. Parts IV-VI seek to resolve that controversy. Part IV is concerned with the jurisdiction of courts to permit non-parties to become involved in proceedings by way of 'intervening', and Part V explains the test for permitting intervention. Part VI applies the preceding analysis to media organisations.

Nudges and Capabilities

'The Folly of Categorization: Why Nudges are Even More Defensible than Their Advocates Suppose' by Douglas Husak in (2016) 14 The Georgetown Journal of Law and Public Policy comments

Count me among those philosophers who believe that most of the normative controversies about nudging or so-called libertarian paternalism are vastly overblown. I hope we are many, but it is hard to be sure. Nearly all of the worries brought against nudges qua nudges expressed by or attributed to moral philosophers are misdirected and/or exaggerated. My modest goal is to support this claim by attempting to show that Cass R. Sunstein—who almost certainly is the most well-known champion of nudges or libertarian paternalism—takes several of the philosophical objections to his proposals too seriously and responds to them less forcefully than he might.

'Working With And For Animals: Getting The Theoretical Framework Right’ by Martha Nussbaum in (2017) 94(4) Denver Law Review 609 comments

Friends of animals have lots to complain about and lots of work to do. To the familiar list of horrors—torture of animals in the meat industry, misery inflicted on puppies by puppy mills, the damages of research using animals, the manifold harms endemic to the confinement of apes and elephants in zoos, we have some further issues that have only become issues in the past few decades: depletion of whale stocks by harpooning, the confinement of orcas and dolphins in marine theme parks, the poaching of elephants and rhinos for the international black market, the illicit trafficking of elephants from Africa into U.S. zoos, the devastation of habitat for many large mammals through climate change. New issues arise all the time. The world needs an ethical revolution, a consciousness raising movement of truly international proportions. 

But bad behavior also needs law. No major crimes against sentient beings have been curbed by ethics alone, without the coercive force of law—although it typically takes an ethical movement to goad law into action. And so far, both in the U.S. and in the international community, law has been lagging behind the evolving ethical consciousness of humanity. Animals still lack standing under both U.S. and international law. They also lack any rights of ethical consideration. All human animals are treated as persons and ends (no matter how immature the human is), but all non-human animals are treated as mere things, as property. Law must find ways to make animals legal subjects and not mere objects. We need to move toward a world in which human beings are truly Friends of Animals, not exploiters or users. 

To make progress, we need theoretical approaches that are sound in terms of reality, grappling with what we know about animals, and that also direct law in a useful fashion. In this Article I will examine two extremely influential approaches to animal entitlements in philosophy, both of which have implications for law and policy: the “So Like Us” approach and the “Least Common Denominator” approach. I shall argue that both are defective intellectually, and also in terms of strategy. A version of the Capabilities Approach, an approach to justice for both humans and other animals that I have developed over the years, does far better in directing ethical attention. Does it also do better in directing legal strategy?

‘The Legal Status of Whales: capabilities, entitlements and culture’ by Rachel Nussbaum Wichert and Martha C. Nussbaum in (2016) 72 Sequência (Florianópolis) comments

Whales, among our planet's most majestic, mysterious, powerful, and intelligent beings, are profoundly endangered. International law has for some time attempted to protect them from extinction. Our paper addresses the legal status of whales and argues that they should be regarded as creatures with rights, not simply as commodities. Currently, international law does not recognize whales as creatures with rights. International organizations, particularly the International Whaling Commission (IWC) and its founding document, the International Convention for the Regulation of Whaling (ICRW), have focused on the issue of overfishing and have allowed exceptions to usual standards based both on the alleged needs of scientific research (in the case of Japan) and on the alleged claims of culture (in the case of aboriginal groups in the Arctic).

 The authors state

In a related paper, we have explored the moral basis of animal entitlements, in the context of evolving legal debates about whether animals can be granted "standing" to approach a court of law (through an advocate, as is now the case with human with severe disabilities)1. Many animal rights activists have urged that the best basis for legal (and moral) standing for animals is suffering, an approach that can be traced to Jeremy Bentham, the founder of Utilitarianism. While we support Bentham's radical extension of moral concern to all sentient beings, we argue that suffering is not the only relevant notion. Intelligence and the ability to be social are qualities that are at least as important. Indeed, there is a strong case for considering cetaceans "non-human persons" and according them legal rights, most importantly standing to sue in their own right. Whales cannot be said to be "like" humans in terms of DNA, but they have their own form of intelligence and deserve protection under the law. 

On the other hand, we reject as misguidedly anthropocentric the form of this argument that exalts intelligence above physical suffering. Each animal species has its own form of life, and each deserves opportunities to flourish in its own way. We argue that ultimately the best philosophical approach to these issues is an analysis of animal lives in terms of a range of distinct but related capabilities, intertwined into a form of life. This approach, however, has never been accepted in either domestic or international law, despite years of argument by environmental groups urging courts to treat marine mammals as creatures with moral and legal rights.

They conclude

If environmentalism and conservation are an important part of the IWC's mission, it is well placed to take action on the specific question of whale protection. It is the major organization specifically focused on whales. In the process, it should also consider the threat posed by climate change. If significant portions of the Arctic open up for commercial oil and gas drilling in the future, this will pose further dangers for the marine mammals who live there and for their entire ecosystem. 

The issue, then, ultimately comes back to the moral and legal question of standing. By now most of the international community agrees that the harms done by cultural traditions must be limited in the name of human rights. But they don't reach the same conclusion about marine mammals, because they do not grant them legal or moral standing. The international community must decide: are whales person-like beings with legal entitlements, or are they not? At present, they are not, under customary international law. But customary international law is at odds, here, with moral reasoning grounded on empirical fact, and at odds with the moral judgments of a growing proportion of the international community. The romanticization of traditional whaling is no more morally defensible than the romanticization of domestic violence and child prostitution. Whales are person-like beings with intelligence, social interactions, and the capacity for not just suffering but a wide range of experiences and activities. The time has come for international law in general, and the IWC in particular, to recognize this.

Witches and Institutional Capacity

'Taxes, Lawyers, and the Decline of Witch Trials in France' (GMU Working Paper in Economics No. 11-47, 2012) by Noel D. Johnson and Mark Koyama comments

 How is rule of law established? We address this question by exploring the causal effect of increases in fiscal capacity on the establishment of well enforced, formal, legal standards in a pre-industrial economy. Between 1550 and 1700 there were over 2,000 witch trials in France. Prosecuting a witch required a significant deviation from formal rules of evidence by local judges. Hence we exploit the significant variation across time and space in witch trials and fiscal capacity across French regions between 1550 and 1700 to show that increases in fiscal capacity caused increased adherence to the formal rule of law. As fiscal capacity increased, local judges increasingly upheld de jure rules and the frequency of witch trials declined.

Markets and Corporate Personhood

'The Institutions of Roman Markets' by Benito Arruñada in Giuseppe Dari-Mattiacci (ed.), Roman Law and Economics vol. 2 (Oxford University Press, 2018) comments

I analyze the basis of the market economy in classical Rome, from the perspective of personal-versus-impersonal exchange and focusing on the role of the state in providing market-enabling institutions. I start by reviewing the central conflict in all exchanges between those holding and those acquiring property rights, and how solving it requires reducing information asymmetry without endangering the security of property. Relying on a model of the social choice of institutions, I identify the demand and supply factors driving the institutional choices made by the Romans, and examine the economic circumstances that influenced these factors in the classical period of Roman law. Comparing the predictions of the model with the main solutions used by Roman law in the areas of property, business exchange and the enforcement of personal obligations allows me to propose alternative interpretations for some salient institutions that have been subject to controversy in the literature, and to conclude with an overall positive assessment of the market-enabling role of the Roman state.

'Brexit and Corporate Citizenship' by John Armour, Holger Fleischer, Vanessa Jane Knapp and Martin Winner  in (2017) 19(2) European Business Organization Law Review 225-249 comments 

The UK’s recent vote for Brexit has sparked a fierce debate over the implications for the rights of EU citizens living in the UK and UK citizens living in the rest of the EU. So far, however, there has been relatively little discussion of the implications of Brexit for legal persons – that is, corporate citizens of the EU, which may also be profoundly affected by consequent changes. The ECJ’s 1999 decision in Centros made clear that the freedom of establishment protects the entitlement of corporate persons formed in one EU Member State to carry on their business in another Member State. Since then, many entrepreneurs in continental European countries have chosen to form companies in the UK, while still carrying on their business in their home country. What will the consequences of Brexit be for such companies? 

'Designing Against Discrimination in Online Markets' by Karen EC Levy and Solon Barocas (2018) 32 Berkeley Technology Law Journal comments

 Platforms that connect users to one another have flourished online in domains as diverse as transportation, employment, dating, and housing. When users interact on these platforms, their behavior may be influenced by preexisting biases, including tendencies to discriminate along the lines of race, gender, and other protected characteristics. In aggregate, such user behavior may result in systematic inequities in the treatment of different groups. While there is uncertainty about whether platforms bear legal liability for the discriminatory conduct of their users, platforms necessarily exercise a great deal of control over how users’ encounters are structured—including who is matched with whom for various forms of exchange, what information users have about one another during their interactions, and how indicators of reliability and reputation are made salient, among many other features. Platforms cannot divest themselves of this power; even choices made without explicit regard for discrimination can affect how vulnerable users are to bias. This Article analyzes ten categories of design and policy choices through which platforms may make themselves more or less conducive to discrimination by users. In so doing, it offers a comprehensive account of the complex ways platforms’ design choices might perpetuate, exacerbate, or alleviate discrimination in the contemporary economy.