A Metadata ATM?

Telstra has announced that it will offer its subscribers - for a fee - access to metadata rtegarding their phone accounts. The announcement reverses Telstra's previous adamant refusal of access.

Those who are just a tad sceptical about Telstra's ongoing commitment to caring and sharing might wonder whether access will have the same role as ATMs for banks, ie a quiet little earner once the set-up costs have been recovered.

Telstra indicates that consumers will get access to data about who they've called, the location from which the call was made, the time and duration. It will include "the actual location of the cell tower an outgoing call was connected to when the call was made".

The metadata will not identify incoming calls.

The fee will depend on the age of the requested data, with  Telstra indicating

Simple requests are expected to cost around $25, while detailed requests covering multiple services across several years will be charged at an hourly rate. This is the same practice of cost recovery that is applied to requests from law enforcement agencies

This new approach is all about giving you a clearer picture of the data we provide in response to lawful requests today.

The announcement anticipates belated release by the Australian Privacy Commissioner of his response to a complaint regarding Telstra's refusal to provide a journalist with access to metadata regarding his calls.on.

Information and Adjudication

'Information and the Aim of Adjudication: Truth or Consequences?' by Louis Kaplow in (2015) Stanford Law Review (Forthcoming) comments 

Adjudication is fundamentally about information, usually concerning individuals’ previous or proposed behavior. Legal system design is challenging because information ordinarily is costly and imperfect. This Article analyzes a broad array of system features, asking throughout whether design should aim at the truth or at consequences, how these approaches may differ, and what general lessons may be drawn from the comparison. It will emerge that the differences in approach are often large and their character is sometimes counterintuitive. Accordingly, system engineers concerned with social welfare need to aim explicitly at consequences. This message is not one opposed to truth per se but rather a strong admonition: it is dangerous to be attached to the alluring view that adjudication is primarily about generating results most in accord with the truth of the matter at hand.

Kaplow argues that in asking whether system designers should aim at the truth or at consequences

truth is not taken [in this article] as an abstract concept or a normative principle. Nor is it taken to have a unitary meaning in different realms. Instead, the notion is to be understood as a proxy criterion (or even a metaphor) that seems appealing in particular domains and thereby is often taken as an appropriate target by policy analysts when they assess pertinent elements of the legal system. This Article will assume, until the final Part, that system engineers are in fact concerned entirely with consequences for social welfare. The question then is whether, in undertaking their work, it is a plausible strategy to aim at the truth with the expectation that this protocol will ordinary lead to good consequences. Perhaps there are some moderate deviations, occasional exceptions, and limitations, but nevertheless the applicable notion of truth might typically provide a workable guide or at least a sensible starting point. A competing view is that system engineers need to focus quite explicitly on consequences themselves, largely setting truth to the side; indeed, perhaps they need to strive to ignore truth’s siren call.

The Article examines how these two methodologies differ and what general lessons may be drawn from the comparison. It will emerge that a large divergence often exists and that its character can be counterintuitive. Accordingly, system engineers really do need to concentrate on consequences. This message is not one that is opposed to truth per se but rather a strong admonition: it is dangerous to be attached to the alluring view that adjudication is primarily about generating results most in accord with the truth of the matter at hand.

To frame the inquiry, it is useful to consider the underlying reason that truth and consequences can produce such divergent prescriptions. Start in an idealized world in which it is possible to achieve perfect accuracy in adjudication—such that every outcome corresponds to the truth—at zero cost. In such a world, in most instances and with some further simplifications, social welfare would be maximized by going with the truth. Adjudication should aim at the truth, it would in fact hit the bull’s-eye every time, and the best consequences would be achieved. Harmful acts would always result in the appropriate sanction, benign acts would not be discouraged at all by the prospect of the mistaken imposition of sanctions, and system costs would be nonexistent. This is a first-best setting (or close to it), an analogue to a frictionless universe. Here, we do not see much reason for truth and consequences to conflict.

Our actual system design problem, of course, is in the world of the second best. Nontrivial system costs must usually be incurred to obtain even an approximation of the truth. Attempting to move closer is increasingly costly, and perfect truth is unobtainable. Should we nevertheless pretty much always aim at the truth?

The obvious answer is in the negative. The presence of costs alone tells us that we will need to make tradeoffs. Spending the entire GDP to get as close as possible to the truth in a single torts dispute would destroy society, not maximize social welfare. This simple point instructs us to avoid excess, but it fails to illuminate a course of analysis that can prescribe what moderation would look like and what it should depend on.

Moreover, once complete truth is off the table, we confront significant hurdles: the lack of an obvious metric for degrees of truth or of a way to place a value on truth units, whatever they may be. Inquiries are sometimes conducted as if there were some sort of Platonic truth measure, but little reflection is required to appreciate the need to dig deeper. More explicit treatments may invoke various criteria, such as the command to minimize the number of errors in adjudication or to aim at some ratio of true positives to false positives. Such guidelines, however, are ad hoc, and conflicting, and they can have absurd implications. For example, it is obvious that adjudicative errors are minimized by eliminating adjudication, and further analysis indicates that some proposed performance ratios are improved by raising the flow of innocent acts into the system (because such may well improve the system’s batting average). To foreshadow a bit, we can see from these examples that it is grossly insufficient to consider only what happens in adjudicated cases; underlying behavior and determinants of what enters the legal system will be central. The main purpose of the legal system is not for adjudication to look good according to some abstract standard but rather for its operation—including the anticipation thereof—to foster productive activity, restrain harmful conduct, and avoid undue expense. More fundamentally, such precepts, whether focused entirely on some notion of truth or on related considerations involving types of errors, are ungrounded. As already mentioned, the approach adopted in this Article is that legal system engineers should be guided by the maximization of social welfare. That is, adjudication should, in principle, aim at consequences. Whether, how, and to what extent truth is important will emerge in the course of the analysis. Any truth metric or valuation of truth will be a byproduct of the inquiry, not its driver. Aiming at the truth may sometimes be a good summary or proxy for part of what matters, but it is never the entire story (if for no other reason than cost) and is often a misleading guidepost. In complex systems, this sort of perspective is familiar. Indeed, even when the setting is simpler, one does not always aim directly as one would in an idealized world. A marksman might optimally aim high and to the left to account for distance and wind. But that involves just a modest refinement: the maxim that one should aim true is approximately correct. When building a road to the top of a mountain, however, aiming straight for the top—following the precept that the shortest distance between two points is a straight line—is a prescription for disaster. Switchbacks will be required, so that much of the time the road is actually going in the wrong direction by reference to the ultimate endpoint. Moreover, depending on the conditions, it might be best to go down, not up; around to the other side; and only then begin a zig-zagged ascent.

The foregoing should lead us to wonder whether adjudication design that aims primarily at the truth will perform poorly, but it does not tell us how worried we should be. That depends on whether this domain is more like a gradual incline with a few bumps or a treacherous mountainside with imposing obstacles. There are two general reasons to expect our challenge to be more like the latter.

The first is the presence of costs. Not only will we want to stop short of the top, but once we know this, it is impossible to determine how far to go without an explicit determination of the social value of moving closer. One can contemplate the meaning of truth until the end of days without illuminating that question. The value of truth in adjudication depends on its consequences, and valuing various outcomes is outside the realm of truth per se. As a comparison, how can we value an additional medical test of a stated precision without assessing the consequences of one or another course of treatment under different medical conditions? In this type of setting, truth is indeed something that matters, but it is only one element of a larger calculus. It is a start to recognize that tradeoffs must be made, but this recognition alone tells us little of their anatomy.

The second reason is that the design of adjudication in many settings influences behavior. We are centrally concerned about deterring harmful acts and avoiding the chilling of benign conduct. Such primary behavior, and also litigation itself, is endogenous; social welfare depends on the operation and feedbacks of the system as a whole. In such a complex and interactive environment, moving somewhat closer to truth in adjudication, by any simple metric, need not improve social welfare even without regard to costs. In addition, seemingly more expensive systems can be cheaper (for example, via deterrence, reducing the frequency of adjudication) and less expensive ones more costly. Due to these multiple and moving targets, the optimal design of adjudication may be more roundabout than building a road up a treacherous mountain: at least the mountain stands still.

This Article explores multiple dimensions of legal system design with a focus on information and, in particular, how information costs and limitations bear on the nexus between truth and consequences. Its scope is broad and, accordingly, the analysis is limited and often selective. In the process, however, we will see how key aspects of the interaction play out in many contexts and also identify some systematic similarities and differences across domains. As mentioned at the outset, one should keep in mind that the core message here is not anti-truth. Truth, after all, is usually the right guide in an idealized world, which suggests that sometimes we should expect it to point us in a good direction. As a motivation for analysis, at least, thinking about truth is useful. Moreover, truth may be consequential for social welfare for additional reasons. The claim throughout this Article is that careful analysis must aim at consequences, not at truth, because the dictates of truth are almost always seriously incomplete and often enough misleading that we must be careful not to have our imagination, investigation, and prescription distorted by an infatuation with truth in adjudication.

Part I begins by examining information and substantive legal commands because the purpose of adjudication is to effectuate substantive law. The analysis of information and the aim of adjudication are inevitably about the relationship between procedure and substance. Accordingly, it is important to start with central design features of substantive legal commands, specifically, those most directly implicating the core informational dimensions that will be emphasized later. Notably, primary behavior is influenced by the expected consequences of adjudication, which accordingly is the core information about the legal system, procedure and substance, that proves to be consequential. Of course, administrative costs matter as well. Specifically, Part I addresses the two dimensions of a taxonomy employed in some of the literature. One involves the distinction between rules and standards, wherein a rule for this purpose refers to specification of the content of a legal command ex ante, before parties engage in the primary behavior governed by the pertinent law, whereas under a standard the content is determined ex post, in adjudication, after parties have acted. The second dimension involves the precision—specificity or level of detail—with which the legal command is given content: that is, the extent to which it makes finer distinctions rather than placing conduct in broader categories. Both dimensions implicate information in several ways. They obviously govern the intensity of effort (and thus cost) of supplying legal content both ex ante and ex post. Moreover, they influence the law’s consequences for individuals’ behavior in the interim because such behavior depends critically on the extent to which individuals choose to become informed about the law before they act. One of the recurring themes of this Article emerges in both analyses: truth at the conclusion of adjudication—understood in this Part to refer to the alignment of outcomes with the substantive ideal—does not directly translate into ex ante behavior in conformance thereto. Indeed, the gulf can be wide: a regime closer to the truth in adjudication can result in individuals’ actions in the world being less in accord with it than under an optimal regime aimed at consequences.

Part II analyzes the treatment of errors in adjudication—conventionally understood as setting a burden of proof or other decision threshold—taking as given the quality of information, a matter deferred to Part III. Examined first is a simpler context, set to the side in much of this Article, in which adjudication concerns the regulation of proposed conduct: license applications, zoning variances, or the approval of mergers or new drugs. Here, the optimal evidence threshold involves standard cost-benefit analysis for decisions under uncertainty, just as in the medical testing illustration above. The truth of the matter—the likelihood that the applicant, say, proposes an activity of a harmful rather than of a benign type—is certainly relevant, but one must also consider the possible social gains and losses from the proposed activity. When harm is great and the benefit of the benign act is small, prohibition is optimal even when the likelihood that the proposed action is a harmful one is low, and conversely when harm is slight and benign activity is highly beneficial, even though the truth of the matter is that it is most probably harmful. Better to make many mistakes of little consequence than a few that are momentous. In this basic setting, truth is an element of consequences but it is far from the entire story. Next, the analysis returns to the setting examined in most of the Article, where individuals’ actions (torts, contract breaches, and so forth) precede adjudication, in which case their behavior is influenced by their anticipation of outcomes in adjudication. Here, truth—in the sense of the likelihood that the individual before the tribunal in fact committed a harmful act—is not even a component of the more elaborate calculus that determines what evidence threshold is optimal with regard to the consequences it engenders. The explanation is that the truth of the matter at hand concerns the static, descriptive question of how best to characterize the case before the tribunal, whereas the consequences of setting an evidence threshold somewhat higher or lower turn on the dynamic question of how such a modification would change individuals’ ex ante behavior. As suggested previously, the endogeneity of behavior can greatly obscure the relationship between truth and consequences. In general terms, this phenomenon carries over to the determination of optimal decision criteria at earlier stages of adjudication, including formal pretrial terminations and the informal conduct of investigations, such as by government agencies. Part II also examines a particular relationship between procedure and substance, namely, whether concerns for errors involving the mistaken imposition of sanctions on (or application of prohibitions to) benign conduct are best dealt with through restrictions on substantive legal commands or with more demanding decision criteria in adjudication. The latter tends to be favored on informational grounds because raising, say, the burden of proof tends to remove the weakest cases from the system. In this instance, welfare is best advanced by keeping substantive law aligned with truth, in the sense of conformity to the substantive ideal, and relegating any needed adjustments to the burden of proof, perhaps by moving it in a direction less aligned with truth in the sense of whether outcomes accord with the fact of the matter in the case under adjudication.

Part III shifts the focus to the accuracy of adjudication. Because greater accuracy—attempting to move closer to the truth—comes at a cost, it is necessary to place a value on accuracy, which can be done only by assessing its consequences. The value of accuracy varies greatly on a number of dimensions. Raising the degree of accuracy in the determination of liability improves the error tradeoff that was taken as given in Part II’s discussion of evidence thresholds and accordingly has a social value that reflects the corresponding consequences. Improving the accuracy with which damages are assessed has a relationship to ex ante behavior that is similar to that of making substantive legal commands more precise or refined. Specifically, the value of moving closer to the truth is not automatic but depends on the extent to which individuals will anticipate and thus react to the greater precision of adjudication. Interestingly, in some important settings, greater accuracy will be a pure waste of resources because the added ex post specification—concerning, for example, just how much a particular auto accident victim’s future earnings are diminished by an injury—cannot plausibility be predicted ex ante. To the extent that more accurate damage awards improve the precision of compensation for risk-averse victims, accuracy has social value, in this instance measured by a risk premium. In all, whether the truth has any consequences at all and the social value of the consequences it does have vary greatly by the issue, the context, and in many settings the information possessed by actors before adjudication occurs.

The relationship between truth and consequences becomes even more complex and in some instances further attenuated when the analysis is extended to take account of the endogeneity of behavior in adjudication: which cases are pursued and how much information parties choose to generate. Part IV examines some of the possibilities that may arise. For example, private litigation is initiated when plaintiffs anticipate an expected recovery in excess of their costs. Anything that influences the costs or outcomes of adjudication affects these decisions, which in turn have feedback effects on primary actors’ behavior that, as emphasized repeatedly, is predicated on their own expectations about adjudication, including how often it will occur. As one indication of the potential implications, it is explained that a reform that lowers the evidence threshold, so plaintiffs win more often, and simultaneously imposes a filing fee, to an extent that (altogether) keeps deterrence constant, will in some settings lower system costs and also reduce the extent to which benign conduct is chilled. That is, a concern for errors involving the mistaken imposition of liability may favor a reform that reduces, not raises, the evidence threshold. This situation arises when litigants possess information superior to the tribunal’s. Truth in the outcomes of adjudication can be less consequential than the knowledge that motivates self-interested plaintiffs’ filing decisions.

Part IV also considers parties’ incentives to generate information in adjudication. In certain key settings—notably, some of those explored in Part III—litigants’ incentives are excessive. Their private benefit from influencing the outcome favorably, even though truthfully, exceeds the social value, so the overall consequences for social welfare can be negative, precisely because too much truth is generated. Accordingly, one mechanism that might address the problem involves the tribunal being committed to ignore some truthful information that parties might present. In this instance, aiming at truth is directly in opposition to good consequences. The final two Parts of the Article step back from the system-design methodology employed thus far to consider a broader perspective on the legal system’s objectives. First, continuing to assume that the purpose of the legal system is to advance social welfare, Part V asks whether there are additional consequences of the degree to which adjudication generates the truth, specifically, consequences regarding perceived legitimacy, abuse of power and corruption, participation and other process values, and preferences for the truth per se. Then, Part VI briefly examines the pursuit of truth independent of its consequences for social welfare.

This Article does not attempt to be exhaustive either with regard to all the ways that truth and consequences may or may not diverge from each other, taking an optimal system design perspective,1 or all the reasons that aiming at the truth may be important after all. It seeks to present enough of the former to illustrate the range of possibilities and to demonstrate the significance of potential divergences, and to discuss enough of the latter to instigate further reflection. Information is indeed central to adjudication, and the wide variation and complexity of the subject indicate the need for explicit, ground-up analysis that clearly focuses on the system’s objectives rather than an approach that starts in the middle and employs an appealing 1Brief remarks are in order regarding two familiar categories of truth/consequences divergence. First, there are isolated pockets of recognized exceptions. For example, the exclusionary rule and the requirement of proof beyond a reasonable doubt are usually seen as deviations from the norm that are justified by special considerations. See infra note 109. Second, as already noted in this Introduction, the need for cost tradeoffs is widely acknowledged, as reflected in many features of system design, from judges regulating the length of trials to enforcers employing randomized rather than dragnet strategies (traffic control and tax audits). Cost tradeoffs motivate Part III’s analysis of how to place a value on truth, which requires a systematic tracing of consequences that, as mentioned, is not much illuminated either by invocations of truth or by concessions of the need for moderation in light of costs. but potentially misleading proxy criterion: aiming at truth.

Employee Data

'The Acquisition and Dissemination of Employee Data' by Matthew Finkin in Studies in Labour Law and Social Policy presents

a schematic comparing the legal approach to employer acquisition and dissemination of applicant and employee information in the European Union and the United States. The schematic sets out seven analytical heads:

• source of law; 

• scope; 

• form; 

• means of effectuation; 

• conceptual grounding; 

• valence; and 

• the relationship of privacy protection to the freedom of expression.

The essay then examines the meaning of these categories and explores the commonalities and differences between the E.U. and the U.S. under each of them. It concludes by taking up a common problem: employer access to and use of applicant and employee social media communications. That specific comparison, on a current and pressing issue, breathes life into the analytical differences and shows that, despite the differences, the actual result “on the ground,” so to speak, may not differ significantly; that the remedial situation in both systems may render the protection they afford illusory.

Geoimmersive Surveillance and gateways

Geo-Immersive Surveillance & Canadian Privacy Law, a 348 page Juridical Science dissertation by Stuart Andrew Hargreaves (Faculty of Law, University of Toronto) from 2013 comments

Geo-immersive technologies digitally map public space for the purposes of creating online maps that can be explored by anyone with an Internet connection. This thesis considers the implications of their growth and argues that if deployed on a wide enough scale they would pose a threat to the autonomy of Canadians. I therefore consider legal means of regulating their growth and operation, whilst still seeking to preserve them as an innovative tool. I first consider the possibility of bringing ‘invasion of privacy’ actions against geo-immersive providers, but my analysis suggests that the jurisprudence relies on a ‘reasonable expectation of privacy’ approach that makes it virtually impossible for claims to privacy ‘in public’ to succeed. I conclude that this can be traced to an underlying philosophy that ties privacy rights to an idea of autonomy based on shielding the individual from the collective. I argue instead considering autonomy as ‘relational’ can inform a dialectical approach to privacy that seeks to protect the ability of the individual to control their exposure in a way that can better account for privacy claims made in public. I suggest that while it is still challenging to craft a private law remedy based on such ideas, Canada’s data protection legislation may be a more suitable vehicle. I criticize the Canadian Privacy Commissioner’s current approach to geo-immersive technologies as inadequate, however, and instead propose an enhanced application of the substantive requirements under Schedule 1 of PIPEDA that is consistent with a relational approach to privacy. I suggest this would serve to adequately curtail the growth of geo-immersive technologies while preserving them as an innovative tool. I conclude that despite criticisms that ‘privacy’ is an inadequate remedy for the harms of surveillance, in certain commercial contexts the fair information principles can, if implemented robustly, serve to regulate the collection of personal information ‘at source’ in a fashion that greatly restricts the potential for those harms.

'Rights of Passage: On Doors, Technology, and the Fourth Amendment' by Irus Braverman in (2015) Law, Culture and the Humanities comments

The importance of the door for human civilization cannot be overstated. In various cultures, the door has been a central technology for negotiating the distinction between inside and outside, private and public, and profane and sacred. By tracing the material and symbolic significance of the door in American Fourth Amendment case law, this article illuminates the vitality of matter for law’s everyday practices. In particular, it highlights how various door configurations affect the level of constitutional protections granted to those situated on the inside of the door and the important role of vision for establishing legal expectations of privacy. Eventually, I suggest that we might be witnessing the twilight of the “physical door” era and the beginning of a “virtual door” era in Fourth Amendment jurisprudence. As recent physical and technological changes present increasingly sophisticated challenges to the distinctions between inside and outside, private and public, and prohibited and accepted visions, the Supreme Court will need to carefully articulate what is worth protecting on the other side of the door.

Juvenile Justice and DNA

'DNA for Delinquency: Compulsory DNA Collection and a Juvenile's Best Interest' by Kevin Lapp in (2014) 14 University of Maryland Law Journal of Race, Religion, Gender & Class 50 comments

Thirty states and the federal government compel DNA collection from juveniles based on a finding of juvenile delinquency. A main justification for doing so has been that it deters recidivism and promotes rehabilitation, furthering the goals of the juvenile court and consistent with the court’s role as a “protecting parent.” There is little empirical evidence, however, that compulsory DNA collection deters people from committing crimes or fosters their rehabilitation. Whatever specific deterrence DNA databasing may achieve is certainly diminished with respect to juveniles, who are less deterrable than adults. This undermines the best-interest rationale for collecting DNA from juveniles. Indeed, to the extent that criminal justice contact has a criminogenic effect on juveniles, DNA collection from juveniles could produce unintended, perverse consequences. 

Consistent with recent Supreme Court jurisprudence, this Article marshals scientific and psychosocial evidence regarding juveniles to outline a developmental critique of the best-interest justification for DNA collection from juveniles adjudicated delinquent. It also asserts that the basis for treating children differently from adults does not reside solely, or even predominantly, in science. The modern conception of childhood (as a separate, protected space for those whose development must be guarded and promoted) demands, even more powerfully, perhaps, than the findings of adolescent brain science, that we not subject juveniles to compulsory DNA collection for purposes of databasing. At the very least, the aggregate collection of genetic data from juveniles adjudicated delinquent cannot be justified as being in their best interests.

Journalist Metadata and Media Freedoms

The Parliamentary Joint Committee on Intelligence & Security to report on the question of "how to deal with the authorisation of a disclosure or use of telecommunications data for the purpose of determining the identity of a journalist's source".

The inquiry reflects recommendation 26 in the Committee's recent Advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth):

 The Committee acknowledges the importance of recognising the principle of press freedom and the protection of journalists' sources. The Committee considers this matter requires further consideration before a final recommendation can be made.

The Committee therefore recommends that the question of how to deal with the authorisation of a disclosure or use of telecommunications data for the purpose of determining the identity of a journalist's source be the subject of a separate review by this Committee. 

The Committee is expected to report back to Parliament within three months.

The review will consider international best practice, including data retention regulation in the United Kingdom.

The Committee states

The Committee’s Chair, Mr Dan Tehan MP said “In its previous inquiry, the Committee acknowledged the importance of recognising the principle of press freedom and the protection of journalists’ sources.”

“Balancing this with the needs of law enforcement and security agencies to investigate serious offences, it was apparent that further consideration was needed on the question of how to deal with the authorisation of a disclosure or use of telecommunications data for the purpose of determining a journalist’s source”, he added.

“The Committee looks forward to engaging with stakeholders in a separate review on this matter.” In its previous inquiry on the Data Retention Bill, the Committee recommended a number of additional safeguards relating to agency access to telecommunications data. These included specific oversight by the Ombudsman or the Inspector-General of Intelligence and Security (as appropriate), and the Committee, of any instance where a journalist’s data is accessed by an agency for the purpose of determining a source. The Committee’s recommendations were supported by the Government.

The Data Retention Bill will require service providers to retain a standard set of telecommunications data for two years. The regime will commence six months after passage of the Bill, followed by an 18 month implementation phase.

The Bill includes measures to increase safeguards around how agencies access telecommunications data, including an enhanced oversight role for the Commonwealth Ombudsman and new restrictions on which agencies may access data.

In undertaking the new inquiry, the Committee intends to consult with media representatives, law enforcement and security agencies and the Independent National Security Legislation Monitor.

Plagiarism and the legal profession

'Admission as a lawyer: the fearful spectre of academic misconduct' by Mark Thomas in (2013) 13(1) QUT Law Review 73-99 comments

Notwithstanding a cultural critique of the concepts that underpin the values of academic integrity, both the university, as a community of scholarship, and the legal profession, as a vocation self-defined by integrity, retain traditional values. Despite the lack of direct relevance of plagiarism to legal practice, courts now demonstrate little tolerance for applicants for admission against whom findings of academic misconduct have been made. Yet this lack of tolerance is neither fatal nor absolute, with the most egregious forms of academic misconduct, coupled with less than complete candour, resulting in no more than a deferral of an application for admission for six months. 

Where allegations are of a less serious nature, law schools deal with allegations in a less formal or punitive fashion, regarding it as an educative function of the university, assisting students to understand the cultural practices of scholarship. For law students seeking admission to practice, applicants are under an obligation of complete candour in disclosing any matters that bear on their suitability, including any finding of academic misconduct. 

Individual legal academics, naturally adhering to standards of academic integrity, often have only a general understanding of the admissions process. Applying appropriate standards of academic integrity, legal academics can create difficulties for students seeking admission by not recognising a pastoral obligation to ensure that students have a clear understanding of the impact adverse findings will have on admission. Failure to fulfil this obligation deprives students of the opportunity to take prompt remedial action as well as presenting practical problems for the practitioner who moves their admission. 

Thomas states -

For students anticipating admission as a lawyer, the implications of academic misconduct, though less spectacular than Burt’s, nonetheless represent a substantial threat to their ambitions, with the Queensland Court of Appeal having signalled, in 2004, its discomfort with admitting applicants to practice where adverse findings of academic misconduct were before the Court. In a broader academic context, Bowers had, as early as 1963, reported that three out of four university students surveyed had engaged in some form of ‘questionable’ activities, and Bowers and McCabe (in 1993) subsequently found that the proportion of students admitting to cheating was ‘remarkably constant.’ There was, however, a ‘dramatic increase in [impermissible] student collaboration’ where individual work was required, with the 11 percent figure in 1963 rising to 49 percent in 1993. 

Perceptions of academic misconduct in the modern university suggest that it remains ‘rife.’ Law schools are clearly not immune from this problem: Queensland’s Chief Justice observed in 2008 that he was ‘especially surprised’ by the frequency of academic misconduct disclosed in applications for admission. The current literature records that, since the turn of the century, academic misconduct is (again?) assuming ‘epidemic proportions.’  It is driven by the ‘swirling currents of [the] information revolution,’  the explosion in electronically available resources,  and the increasing commodification of education, with extrinsic factors (such as money and status) rather than intrinsic goals (community involvement, competence, affiliation and autonomy) motivating students, as well as the reimagining of the relationship between text, authors and audiences. These factors, it is claimed, have created an environment where the appropriation of others’ work ‘is deployed by students as a tactic to achieve educational success.’ The cost of degrees has created a climate where ‘[s]tudents are faced with many temptations to plagiarise,’ responding to the pressures of studying while working and an increasing pressure to ‘succeed’ and provide a return on investment. In the commercialised environment of modern university study, plagiarism and other forms of misconduct have been re- conceived as ‘consumptive practices,’ rather than failures of traditional scholarly culture. In a credentialist educational paradigm, academic misconduct becomes more easily rationalised. For the law student, the ramifications of a finding of academic misconduct are potentially more serious than in any other discipline. 

III THE CHALLENGE TO CONVENTIONAL VALUES OF SCHOLARSHIP: TEXT, PLAGIARISM AND POSTMODERNISM 

Confounding further the traditional values underpinning the institutional virtues of proper academic conduct are critical cultural attitudes which characterise ‘originality and individual authorship as mythologies.’ Postmodernist writing challenges at a fundamental level the concepts of original authorship of text, with concepts of attribution inevitably becoming equally contested. Barthes, for example, describes text not as ‘a line of words releasing a single “theological” meaning (the “message” of the Author-God) but a multi-dimensional space in which a variety of writings, none of them original, blend and clash.’ Similarly, Bakhtin sees all language as infused with linguistic baggage: ‘... all our utterances ... [are] filled with others' words.’ Plagiarism is, in such a context, postmodern textual liberation, recognising the continuous intertextual interplay of ideas, and the words which concretise them, as against a contested personal authorship. 

The intersection of such critiques and the culture of the academy has thus seen an assault in some quarters on the implied political stance inherent in the concept of academic integrity. Plagiarism and other forms of academic misconduct are thus identified as ‘insurrectionary’ in university culture, with its ideological fascination with reason, autonomy, originality and objectivity. That culture is predicated on a ‘common ideological ground in the creative, original individual who, as an autonomous scholar, presents his/her work to the public in his/her own name.’ The author as ‘the manufacturer’ of texts is, it is argued, an artefact of the ‘economic/ideological system which arose in [Enlightenment] Europe.’ 

Such critique, combined with the general lack of referencing and validation practices which inform the internet publication of opinions, arguments and criticism, has created a sharp divide between the ‘public’ world of writing, and writing within the scholarly disciplines. Such a boundary, however, is not necessarily understood by modern students, whose primary mode of communication is technological, and whose primary connection to information is electronic.  Students thus often view copying from online sources as being ‘significantly less dishonest than similar offences using printed sources,’  since it comes from a platform where the interchange of ideas is not governed by principles of ownership, but by free interchange and recombinant or pastiche expression. 

Such critical analysis of language (and the underlying reference to the psycho- linguistic modes of generating language informing such approaches) presents a picture which is antithetical to the strict boundaries of authorship that underpin the paradigm of knowledge and scholarship on which proper academic conduct is predicated.  As products of the Enlightenment, the modern (and modernist) university retains, at the institutional level, conventional understandings of authorship, where words, ideas and arguments are discretely attributable to specific sources, requiring acknowledgement as an integral part of the value system underpinning scholarly culture. It is here, for the law student, that the spectre of academic misconduct crystallises. 

IV THE FEARFUL (AND TEARFUL) SPECTRE OF ACADEMIC MISCONDUCT 

As the unit co-ordinator for Professional Responsibility at the Queensland University of Technology (QUT), the author teaches the subject in which the regulation and discipline of the legal profession, including a substantial component on the admission process. The author has therefore had occasion to deal with instances of academic misconduct – ironically, even in the unit which deals with professional ethics. As a barrister, the author is frequently consulted by students seeking admission who have suddenly realised that they have ‘suitability matters,’ including academic misconduct, which now assume fearful (and not infrequently tearful) proportions. The author has moved a substantial number of admissions before the Court of Appeal, including significant numbers of admissions where findings of academic misconduct have been disclosed. 

Where an application involves suitability matters, the tenor of the occasion shifts from the routine ceremonial to something of a prosecutorial/adversarial process, taking on at least metaphorical resonances with a plea in mitigation by defence counsel. Yet what might be thought of as conventional mitigating factors (such as stress, illness, workload etc) are clearly not available to limit the culpability of a student who has disclosed academic misconduct. Indeed, they are the antithesis of mitigation in the courts view, demonstrating a preparedness to act dishonestly in stressful situations to achieve specific ends. 

The Queensland Court of Appeal has clearly signalled that academic misconduct is a factor bearing on fitness for practice. It is not, however, automatically disentitling. Developing appropriate submissions is often hampered, though, by the way in which academics have framed the documentation of their findings – with unintended ramifications for the student’s admission. While adverse findings of egregious plagiarism attract the Court’s full attention, they will also have been made within a formal committee process, and be accompanied by detailed documentation. Conversely, for lesser transgressions, the very informality which university policies mandate, and the scholarly values which academics bring, quite properly, to managing minor misconduct can problematise the presentation of persuasive submissions. 

V PRIOR TO POLICY: ACADEMIC MISCONDUCT FROM THE STUDENT PERSPECTIVE 

As Chanock observes, the experience of academic standards which students bring with them from secondary school are ‘startling’. Most are used to referencing practices substantially less rigorous than those which apply at university. Chanock’s research showed that a third of students surveyed had not been expected to attribute direct quotations, and two-thirds had not been expected to reference sources of the materials included in submitted work. Referencing by means of a bibliographical entry was reported as sufficient even for direct quotation by a quarter of those surveyed. 

Despite differing reports of the intended destinations of law students, it seems that somewhere around a half of undergraduate law students undertake their LLB with the intention of seeking admission as lawyers. Few enter law school already focussed on an academic career. Many arrive in tertiary education without a clear understanding of the unique view of academic propriety which is embedded deeply in university culture, and do not generally anticipate remaining within that culture once qualified. The intrinsic values of academic propriety are to their minds a relatively brief engagement with an alien world for largely pragmatic purposes. 

Moreover, law students frequently do not see the relevance of plagiarism to the practice of law, considering that neither the judicial system nor the practice of law seem to place similar strictures on the re-use of material originating from another author. Bast and Samuels cite no less an authority that Judge Richard Posner for the proposition that a judge is ‘not expected to produce original scholarship,’ and Le Clercq observes of legal writing that ‘it is no embarrassment to lean on another’s opinion: it is a requirement.’  Indeed, a Dworkinesque view of the judicial enterprise provides some support for the view that legal judgments are the product of combined minds over a significant period of time.  Lest this seem to suggest that intertextuality (in the postmodern sense) is, in fact, a characteristic of common law judgments, it should be remembered that the persuasiveness of a judgment lies in the ideas and views relied on being identified with great precision. The resignation of Federal Magistrate Rimmer in 2006 suggests that both Posner’s and Le Clercq’s views ought not to be read as excluding the concept of plagiarism from judicial practice. Indeed, it is from the very attribution of ideas, arguments and explicit text to identified authoritative sources that such ‘borrowed’ ideas gain their traction. By contrast, the imperatives of professional legal practice are driven not by scholarly values, but by the need for persuasiveness and efficiency, with many documents generated in practice being the product of multiple authors signed off by a supervising practitioner, or through the liberal utilisation of unacknowledged precedents prepared for previous legal transactions and or litigation, not necessarily authored by the current user. Scholarly practice must, therefore, seem quite alien to students who are focused on a career in legal practice. 

VI ACADEMIC MISCONDUCT, PLAGIARISM, CHEATING: UNIVERSITY POLICY 

Once at university, students are confronted by a bewildering array of terminology used to describe academic misconduct: cheating (in a ‘traditional’ sense involving exams, and as a generic term covering any form of gaining an unfair advantage in assessment); academic dishonesty; excessive collaboration; collusion; copying; plagiarism; inadequate citation; and non-attribution of sources. 

Yet despite all universities having policies on academic misconduct which set out definitions of academic misconduct inviting disciplinary action, it has been suggested there is ‘justifiable confusion’ as to the fundamental principles of intellectual honesty, and that students often do not understand the ‘full set of behaviours that constitute cheating.’ 

Traditional concepts of academic and scholarly standards emphasise that plagiarism (as one of the paradigm examples of academic misconduct) is ‘theft, an offence, with effective sanctions in [appropriate] socialising and disciplining domains.’ More than the mere breach of a rule, plagiarism is the disregard of the normative values of the university as an institution imbricated in a global community of scholarship, reflecting its dedication to authenticity and integrity in both its learning, teaching, and research aspects. Not that universities are oblivious to the discourse surrounding authorship and originality. Indeed, it is within universities that the critical discourse is propagated, informed by a mix of intellectual, social, professional and moral and or philosophical issues. As yet, however, the traditional values of scholarship are still primary discourses informing universities’ expectations of student conduct, and the very scholars who question plagiarism’s provenance (perhaps ironically) nonetheless comply with its dictates. 

University policies on academic misconduct generally define such misconduct as a breach of academic integrity. Failure to maintain academic integrity is subdivided into three forms: cheating in examinations; plagiarism; and other forms. Cheating in exams is defined as including ‘any action or attempted action on the part of a student which might gain that student an unfair advantage in the examination.’ Plagiarism is defined as ‘representing another person's ... ideas or work as one's own,’ with an inclusive list of five forms of plagiarism, of which three are referable to the study of law: direct copying, summarising, or paraphrasing another person's ... work without appropriate acknowledgement ... using or developing an idea or hypothesis from another person's ... work without appropriate acknowledgement, ... [and] representing the work of another person ... as the student's own work. The residual category, other forms, includes, as relevant: giving or providing for sale one's own work to another person, company or web- site etc for copying or use by another person, ... purchasing or otherwise obtaining assessment material through individuals, companies or web-based tools/services, ... [and] collusion or collaborating with others where not authorised in the assessment requirements. 

In most universities, academic misconduct is classified as major or minor, with disciplinary responsibility for dealing with minor misconduct generally vested in the unit co-ordinator. An example given of minor academic misconduct relevant to law is ‘incidental plagiarism (inadequate, incorrect or inconsistent citation and/or referencing of sources, paraphrasing too close to the original).’  This may include copying a few sentences, and includes inadvertent copying, such as where a student’s notes do not differentiate between a copied passage and the student’s own commentary. This was always possible in the non-technological era but the probability of inadvertent copying has risen considerably with the advent of the copy and paste function, on-screen windows showing documents under construction, and electronic sources from which text can be copied and pasted, or dragged, directly into another document. 

Minor plagiarism thus has a number of different faces. It may be minor by virtue of its extent (with a rough guide of ‘a few sentences’). It may be minor if it lacks intent. Or it may be essentially technical, taking the form of incorrect citation, without intent to pass the work off as one’s own. 

Often, penalties cannot be applied to minor academic misconduct, the policy response being conceived as educative, rather than punitive. Records must, however, be kept of the management of the incident.  The form of such records is not generally prescribed, and may range from detailed emails through to a simple notation in the university’s records management system. 

Major academic misconduct is generally dealt with by a formal investigation process at a committee level, involving procedures modelled on quasi-judicial proceedings required to afford natural justice to the student;  and an obligation to make a decision based on ‘logical, credible and relevant evidence.’  The discipline committee must routinely make available a report of its findings to the student. For law students seeking admission, however, the matter does not end here. 

VII FORENSICALLY SPEAKING 

It is quite rare for the details of academic misconduct to be placed on the public record as a result of an application for admission, although universities themselves keep confidential records when any adverse findings are made against a student. Details of academic misconduct disclosed in an application for admission are generally not readily accessible to the public. Such details appear in judicial decisions only in the limited number of cases where either the local professional body (in Queensland, the Legal Practitioners Admissions Board (LPAB))  has actively opposed admission or the Court has exercised its discretion to explore an applicant’s suitability by way of a full hearing or by remitting the matter to a Judge of the Supreme Court to make specific findings of fact. 

There is, therefore, a dearth of written judgements relating to academic misconduct as a suitability matter relevant to admission. Many of the textbooks on professional ethics deal with admissions in little detail, focusing on criminal convictions (primarily because these have been the subject of high profile cases such as Re B or Wentworth). Texts prior to 2004, indeed, generally make no mention of academic misconduct. The author has identified 2004 as the watershed on the basis that in the decision in Re AJG that year that the Chief Justice of Queensland observed: Over the last couple of years, the Court has, in strong terms, emphasised the unacceptability of [academic misconduct] ... on the part of an applicant for admission to the legal profession. At the last Admissions Sitting, the Court indicated a strengthening of its response to situations like this on the basis adequate warning had been given. 

However, unlike ‘critical’ academics, the courts have not embraced, either in the admission process or in the general mode of legal analysis, a postmodern view of the nature of reality. The legal system is (and will presumably remain) steadfastly a creature of the Enlightenment, its analysis Cartesian in origin and its goal objectivity. Like the university qua institution, its values are unsurprisingly conventional. Prior to 2004, academic misconduct had been largely beneath the radar, and Re AJG became the seminal statement of principle which would be developed significantly in Queensland and in other jurisdictions.