Argument

'Institutional Design and the Predictability of Judicial Interruptions at Oral Argument' by Tonja Jacobi, Patrick Leslie and Zoe Robinson in (2024) Journal of Law and Courts comments 

 Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply. 

Increasing attention is being paid to interruption behavior, particularly social norms relating to gender differences: not only are women more likely to be interrupted, but this is true even in contexts where women possess significant power, such as in Congress (Kathlene 1994; Mendelberg et al. 2014) and boardrooms (Dhir 2015). In recent years, scholars have observed these same interruption behavior patterns at U.S. Supreme Court oral arguments. Female Justices are disproportionately interrupted compared to their male counterparts Jacobi and Schweers 2017; Patton and Smith 2017;  Feldman and Gill 2019). A Justice’s ideology and experience also predict interruptive behavior, and interruption rates increase when a Justice is less likely to agree with a colleague or attorney (Jacobi and Sag  2019; Patton and Smith 2020). 

Psychologists and sociologists have long found interruptions to be indications of dominance behavior between individuals (Watts 1991; Zimmerman and West  1975). Interruptions, then, have significance beyond social dynamics: if interruptions are reflective – and potentially reinforcing – of power imbalances, then interruptions can limit the contributions of some oral argument participants and promote others. The U.S. Supreme Court has seemingly recognized this significance, changing its structure of oral argument starting in the 2023 October term in response to findings of disproportionate interruptions of women (Deese 2021). Interruptions at apex court oral argument are particularly important because the transparency of oral argument – especially compared to the rest of the judicial decision-making process – contributes to an apex court’s legitimacy, and gender and other disparities at oral argument may harm that legitimacy and moral authority. 

Accordingly, increasing scholarly attention is being paid to interruptive behavior in political and judicial institutions as a means of revealing structures of social hierarchy within deliberation. The systematic speech patterns discovered between genders, for example, raise concerns that greater representation of women on the Court, among both Justices and advocates, will not prevent women’s voices from being drowned out (Dhir  2015; Kathlene 1994; Mendelberg et al. 2014). 

Despite the importance of the study of interruptive behavior as a proxy for power in political institutions, few studies look outside the U.S. judicial context to examine the institutional design features that might facilitate or constrain oral argument (but see Bentsen et al.  2021; Krehbiel 2016). The paucity of studies of oral argument beyond the U.S. Supreme Court means we have a limited understanding of how institutional design contributes to judicial behavior at oral argument. This lacuna in the judicial behavior literature stands in contrast to the robust study of the role of institutional design on deliberative behavior in legislative politics (Bäck et al. 2014; Goet 2019; Proksch and Slapin 2012) and among scholars of deliberative democracy when designing mini publics (Fung 2003). 

This article examines the role of institutional design in shaping judicial interruptive behavior in oral argument. We examine interruptions at oral argument in the Australian High Court, an apex court that exhibits significant similarities in key institutional features to the U.S. Supreme Court (Aroney and Kincaid 2017). Further, a growing body of empirical scholarship has demonstrated that High Court Justices, like their American counterparts, vote in line with ex ante ideological and partisan preferences (Robinson et al.  2022). This is despite the Australian Constitution not containing the entrenched individual rights that are so often at the center of divisive cases before the U.S. Supreme Court. Relevantly, one recent study showed that case outcomes in the Australian High Court are similarly predicable as the outcomes in the U.S. Supreme Court based on oral argument (Jacobi et al. 2022). There is good reason, then, to believe that interruptions at the High Court may also mirror interruptive behavior at the U.S. Supreme Court, at least in the context of ideological interruptive behavior. 

Yet the institutional contours of the Australian High Court differ markedly in two significant respects. First, gender is a significant driver of partisan judicial selection (Gramlich  2018) and judicial decision-making (Boyd et al. 2010) across the U.S. federal judicial system. However, in Australia, there is no comparable gender divide in partisan judicial selection – both major parties have selected women at similar rates; or in ideology – female High Court Justices do not tend to be more or less liberal than male Justices at the time of appointment; or in decision-making – there is no significant gender difference in the propensity to make liberal decisions in the Australian High Court (Robinson et al.  2022). Second, in contrast to the U.S. Supreme Court, judicial seniority is exceptionally important in the Australian High Court. Unlike the U.S. Supreme Court, the Australian Chief Justice has unusually powerful levers of control over both case dockets and oral arguments, including choosing the size and personnel of the panel that hears the case (Mason 2007). As such, the High Court is more hierarchical, leading to an expectation of deference to the Chief Justice and potentially less disruptive behavior by the puisne (i.e., Associate) Justices. Alongside the institutional similarities, these institutional differences provide the foundation to examine institutional-level drivers of interruptive behavior. 

We analyze all oral arguments in the Australian High Court between 1995 and 2020. We find that institutional design does have an impact on interruptive behavior at the High Court. Specifically, first, in terms of the effect of ideology, Australian interruptive behavior at oral argument looks remarkably like that observed at the U.S. Supreme Court. This is as we as predict, given that the High Court and Supreme Court are institutionally similar in the ideology of judicial appointments and consequent decision-making, but it is contrary to orthodoxy. Second, while seniority is an important predictor of interruptive behavior in the U.S. Supreme Court, again as we hypothesize, the amplified role of the Chief Justice in the Australian High Court leads to significant differences in interruptive behavior vis-à-vis the Chief Justice. Finally, as expected, the relationship between gender and interruptive behavior in the Australian context is present but meaningfully less than in the United States, consistent with the fact that the gender identity of Australian High Court Justices is theoretically less salient than in the U.S. context due to the institutional features of High Court jurisdiction and the related impact on gendered judicial appointments. 

The third result requires further explication. Using standard measurement techniques, as predicted, we find no effect of gender on interruptive behavior in the Australian High Court. Although this result is consistent with our own previous findings (Jacobi et al.  2020), it stands in contrast to studies of interruptive behavior across a range of institutional contexts. To be sure that we are fully and fairly testing whether there is a gender element to interruption behavior, we develop a novel methodological approach to thoroughly investigate the predictors of interruptions. Most studies of interruptive behavior control for an individual’s respective volubility, given that a person can only be interrupted if they are speaking (Johnson et al.  2009; Jacobi and Rozema  2018). But this could permit interruption patterns to be masked by differences in speaking patterns between the genders. For example, a potential interrupter may behave differently depending not only on how many words another person has spoken at oral argument but also how long any individual speech event has been going on, systematically reflecting the varying impatience of interrupters at different stages of the argument. Following this theory, we build in a prediction of the likelihood of an interruption every time any person is speaking. Deploying this approach, we not only confirm the strong impact of the other Justice characteristics we found under the traditional approach of controlling for volubility, but we also find a small but statistically significant gender effect. This result is still meaningfully lower than findings from the United States, as we predicted, but when accounting for the differences between the way men and women speak, there is a small gender effect on interruptions at the Australian High Court. Thus, our third hypothesis is supported, but we find there is more nuance than we, or others before us, anticipated. 

Our findings make three key contributions to the literature on comparative courts generally and interruptive behavior specifically. First, by examining oral argument in an apex court beyond the U.S. Supreme Court, our findings contribute to the growing comparative judicial behavior literature mapping the landscape of comparative judicial institutions. Second, we show that interruptions are predictable based on varying institutional design features. Where institutional design is similar, judicial interruptive behavior is similar; conversely, where institutional design diverges, so too does judicial interruptive behavior. Third, we make a methodological contribution by developing a novel methodological approach to account for volubility and its interaction with interruptive behavior, one that we argue is better suited to studying and identifying drivers of interruptions generally. Conceiving of interruptions as predictable probabilistic parts of speech has significance for studies of interruptions generally and U.S. Supreme Court oral argument specifically. Using the probabilistic method, we show that longer arguments are associated with more interruptions, despite less competition for airtime in Australian arguments. This directly brings into question the theory that interruptions in the U.S. Supreme Court are a product of time constraints and the harried atmosphere at U.S. oral argument. This is not purely a theoretical contribution. In the 2021 term, the U.S. Supreme Court changed its structure of oral argument to include a stage where each Justice is permitted to question the advocate without interruption. This innovation was developed specifically to reduce interruptions (Deese  2021). As such, our findings have significance for both the study of U.S. Supreme Court argument and reforms happening on the ground.

Publishing

Koops,Bert-Jaap. 2022. Goodbye to Publications, or Confessions of a Privacy Law Scholar' by Bert-Jaap Koops in (2022) 20(3) Surveillance & Society 312-316 comments

Privacy and surveillance scholars, myself included, publish too much and read too little. That is basically the abstract for this opinion piece. So, if you’ve got the message, you can stop reading. On second thoughts, if you’ve got the message, maybe you should continue reading. 

My first response to the invitation to contribute to this Dialogue was: “Great idea. There are so many connections between surveillance and privacy scholarship.” Normally, I would think of a topical technological development, something like facial recognition, with, of course, the obligatory reference to artificial intelligence. I would identify two privacy challenges and write something sensible about how surveillance theory could help regulators to address these challenges. A few days’ work, and yet another item to add to my bulky publication list (thank you, Bryce and Scott!). 

My second response was: “Wait. Hasn’t Julie Cohen already written on this, something reasonably definitive?” [Yes, she has (Cohen 2015), even if that was on law generally, not privacy law specifically.] And don’t the two communities of surveillance studies and privacy law already know sufficiently of each other’s existence? Privacy scholars know the basics of surveillance theory (or they shouldn’t call themselves privacy scholars), just as surveillance scholars know basic privacy theory and some privacy law (or at least know their Warren and Brandeis and Westin). And why surveillance studies and privacy law, specifically? Each discipline is surrounded by ten neighboring disciplines that inform it, so the same exercise could be done for, say, surveillance studies and media studies, or privacy law and social psychology. 

As the section editors suggested in their invitation, the potential synergies of the two related disciplines seem underutilized, and it is useful for both fields to discuss how their discipline’s scholarship might benefit from additional cross-pollination. True enough. The editors particularly invited reflections on how these fields’ disciplinary orientations constrain inquiry. But that, I think, is not the real issue. The mainissue is that there is so much knowledge out there already in both fields and, with a little effort, scholars could easily find it if they wanted to, but they don’t. Want to, I mean. Or perhaps they would want to if this were an ideal world, but alas, it isn’t. Scholars simply don’t have time to read each other’s work, because they have to write. 

My third response, therefore, was: “Thanks, but no, thanks.” I shouldn’t be contributing to our collective drowning in the publication deluge. Except, perhaps, to make explicit what I assume many often think but dare not say aloud: shouldn’t we stop running on this publication treadmill to churn out the so-manieth paper on the normative implications of phenomenon X from the perspective of Y, and do some serious reading instead? 

Hence my fourth response: “The only meaningful thing I can think of is a meta-ish opinion piece reflecting about the lack of real discussion in the literature and its potential causes and consequences.” Which resulted in the piece you are now reading, or rather, skimming through because you don’t really have time to read. Hence the seemingly flippant style, which you will realize is a rhetorical device to entice you to keep on reading. I mean, skimming.

Lobbying

'Mapping the Lobbying Footprint of Harmful Industries: 23 Years of Data From OpenSecrets' by Holly Chung, Katherine Cullerton and Jennifer Lacy-Nichols in (2024) The Milbank Quarterly comments 

 Our research reveals the similarities and differences among the lobbying activities of tobacco, alcohol, gambling, and ultraprocessed food industries, which are often a barrier to the implementation of public health policies. Over 23 years, we found that just six organizations dominated lobbying expenses in the tobacco and alcohol sectors, whereas the gambling sector outsourced most of their lobbying to professional firms. Databases like OpenSecrets are a useful resource to monitor the commercial determinants of health. Commercial lobbying is often a barrier to the development and implementation of public health policies. Yet, little is known about the similarities and differences in the lobbying practices of different industry sectors or types of commercial actors. This study compares the lobbying practices of four industry sectors that have been the focus of much public health research and advocacy: tobacco, alcohol, gambling, and ultraprocessed foods. Data on lobbying expenditures and lobbyist backgrounds were sourced from the OpenSecrets database, which monitors lobbying in the United States. Lobbying expenditure data were analyzed for the 1998–2020 period. We classified commercial actors as companies or trade associations. We used Power BI software to link, analyze, and visualize data sets. We found that the ultraprocessed food industry spent the most on lobbying ($1.15 billion), followed by gambling ($817 million), tobacco ($755 million), and alcohol ($541 million). Overall, companies were more active than trade associations, with associations being least active in the tobacco industry. Spending was often highly concentrated, with two organizations accounting for almost 60% of tobacco spending and four organizations accounting for more than half of alcohol spending. Lobbyists that had formerly worked in government were mainly employed by third-party lobby firms. Our study shows how comparing the lobbying practices of different industry sectors offers a deeper appreciation of the diversity and similarities of commercial actors. Understanding these patterns can help public health actors to develop effective counterstrategies. 

The definition of commercial determinants of health (CDoHs) set out in The Lancet 2023 series recognizes that commercial actors are diverse and have different impacts on health. Yet too often, public health advocates fail to make these distinctions, referring to “the industry” or “corporations” as a proxy for harmful commercial actors. This lack of nuance stymies efforts to develop a science of commercial determinants. One way to start thinking through the differences among commercial actors is to compare the practices and attributes of different types of actors. In this study, we contrast the lobbying activities of four industry sectors that severely impact health and have been the focus of much public health research and advocacy: tobacco, alcohol, gambling, and ultraprocessed food (UPF) companies. In addition to comparing commercial actors based on their portfolio, we also differentiate between individual companies and industry trade associations, a distinction that is often missing in empirical studies of political activity. Beyond this paper's conceptual focus on commercial actor diversity, it also seeks to investigate which characteristics of commercial lobbying are feasible to capture at scale. In so doing, it supports efforts to systematically monitor the CDoHs. Attention to CDoHs has grown in recent years, with the World Health Organization (WHO)’s launch of a new program of work in 2021 and the launch of The Lancet series on CDoHs offering two prominent illustrations. Within this emerging discipline, there are many streams of work analyzing different aspects of CDoHs, including system dynamics such as neoliberalism and capitalism, the diversity of commercial actors, commercial practices influencing science, marketing, and politics; and the myriad of case studies concerning harmful industry sectors such as alcohol, gambling, tobacco, UPFs, guns, and fossil fuels.

The authors state 

This study focuses on one commercial activity: lobbying. Lobbying is one of several political strategies that commercial actors use to influence policymaking. Evidence demonstrates that countries with a greater degree of corporate permeation are less likely to implement evidence-based health policies endorsed by the WHO, and more recently, lobbying practices by companies and trade associations have been linked to efforts to influence US participation in and funding of WHO. Although the tobacco industry has a long history of lobbying to deliberately stall, weaken, and block public health regulations of its industry, there is growing evidence that the same political practices are used by gambling, alcohol, and UPF industries to oppose policies that threaten their business interests. We note that much of this research relies on documentary analysis, as empirical data sets of lobbying are rare. Analyzing and monitoring political practices like lobbying is challenging, as information about commercial lobbying and political donations is often poorly disclosed, delayed, or lacking relevant information. In this study, we aimed to explore the utility of one notable non-governmental organization (NGO) database (OpenSecrets) to monitor corporate lobbying. This study is part of our broader program to explore approaches to monitor CDoHs. Lobbying is defined in different ways, with an Organisation for Economic Co-operation and Development survey noting that no country used the same definition. In 2022, a number of NGOs developed the International Standards for Lobbying Regulation, which defined lobbying as “any direct or indirect communication with a public official that is made, managed, or directed with the purpose of influencing public decision making.” Many different activities have been conceptualized as a form of lobbying, including meeting with public servants, coordinating public campaigns to influence voters, funding astroturf organizations (designed to appear as genuine grassroots advocacy), or submissions to policy processes. In some cases, companies have staff employed in-house to specifically focus on lobbying (e.g., government relations units). In other cases, companies hire third-party (external) lobby firms to lobby on their behalf. Although concerns have been raised about the undue influence of some businesses and industry sectors in politics, it is important to note that lobbying itself is a legitimate practice in democratic governments and can support representative policymaking. 

Lobbying can be a resource intensive activity, with an estimated US $4.1 billion spent on lobbying in the United State in 2022. This makes it easier for well-resourced organizations (like many businesses and trade associations) to engage in lobbying and other political activities. Lobbying resources can go beyond the money spent hiring lobby firms (or employing lobbyists directly). One longer-term strategy that can increase the effectiveness of lobbying is the revolving door, which is the movement of individuals from employment in government in political or administrative roles (e.g., elected officials or civil servants) to private industry, and vice versa. Revolving-door practices are particularly common for third-party lobbyists and are understood to confer three main categories of benefits to the lobbyist and their clients: they can leverage professional networks to achieve their clients’ goals; they have intimate knowledge of governmental processes, which can inform strategies; and they may also have insider knowledge regarding government preferences concerning specific policy matters. In the absence of enforced cooling-off periods after exiting public office, the revolving door can also present risks for conflicts of interest to arise, especially if the former government employee moves into a lobbying role that focuses on their former portfolio. 

Efforts to systematically monitor lobbying face several challenges. No single measure of lobbying is consistently available internationally, presenting challenges for efforts to develop global indices of corporate political activity or CDoHs. Of the three monitoring frameworks proposed to measure the influence of commercial actors, lobbying only appears as an indicator in one: the CDoHs index. Authors of the Corporate Permeation Index and Corporate Financial Influence Index excluded lobbying indicators, as there were insufficient comparable data on this metric across countries, though the authors acknowledged lobbying as an important mechanism of CDoH influence on policymaking. Alongside academic efforts to monitor lobbying and corporate political activity are the civil society groups and NGOs who play an active role in monitoring commercial practices, drawing public and policymaker attention to commercial harms and advocating for transformative changes so that people are prioritized over profits. 

Some NGOs have developed databases for monitoring and sharing information about commercial lobbying. OpenSecrets is a nonprofit organization that maintains one of the most extensive databases on political donations, lobbying expenditure, and revolving-door practices in the United States. This database presents an opportunity to monitor corporate lobbying over time and to compare the practices of different industry sectors. This study seeks to expand our understanding of the corporate political activities of four industries that profoundly affect health (tobacco, alcohol, gambling, and UPFs). By exploring one of the more complete data sets concerning corporate lobbying, we aim to answer two questions. First, which patterns could be identified about how different commercial actors engage in lobbying over time? Second, what are the opportunities and limitations afforded by the OpenSecrets database? In the discussion, we reflect on our learnings as well as some of the challenges we faced. We conclude by proposing ways that this database could be adapted and modified so that other jurisdictions can more easily monitor corporate political activity.

Traditional Knowledge

'Traditional Knowledge as Intellectual Property Subject Matter: Perspectives from History, Anthropology, and Diverse Economies' (Queen Mary Law Research Paper No. 418/2024) by Graham Dutfield and Uma Suthersanen comments 

In May 2024, the World Intellectual Property Organization (WIPO), the UN specialised agency for intellectual property, will hold a diplomatic conference with a view to forging a new legal instrument to prevent patents from misappropriating traditional knowledge and associated genetic resources. Thus, after more than 20 years of discussion at WIPO, there is a genuine possibility of a binding legal instrument providing substantive protection of traditional knowledge. Whatever actually transpires, that in itself is a matter of socio-legal and historical importance. Our aim is two fold. First, we enquire whether treating traditional knowledge (TK) as an intellectual property (IP) problem lending itself to an IP-related solution can actually work. In this context, we take account of the likelihood of any adopted international instrument taking the form of a one-size-fits-all text providing legal protection for knowledge deemed “traditional” on the basis of its originating from autochthonous or other groups sharing similar circumstances and related, albeit far from identical, legal and economic interests. By autochthonous, we refer to peoples so rooted psychologically, spiritually and materially to their homeland that it is if they were sprung from the land; their land. Second, we consider whether alternative framings of “the TK problem” in more pluralistic and culturally informed and culturally sensitive forms within or outside IP law may be more promising. IP law of course arises from a myriad of rationales situated within different timelines but embedded within a largely Eurocentric or American discourse and worldview that may be an ill fit for autochthonous and other groups who one presumably are to be the beneficiaries of the kinds of instrument under negotiation. 

The perspective we adopt invites a more intercultural and better informed discourse within law itself, which we feel is absolutely necessary. This perspective is then juxtaposed on the diverse economies approach which seeks to harness different practices in order to break down our dominant view of the world as being predominantly capitalist, at least in the sense of being based on waged labour, and production of commodities for exchange in markets run by capitalist businesses.By employing a multidisciplinary and pluralistic approach, we can better address the challenges facing Indigenous people and governments in the context of current and forthcoming international rules on the governance of TK. 

Feedback

'Enhancing feedback practices within PhD supervision: a qualitative framework synthesis of the literature' by Margaret Bearman, Joanna Tai, Michael Henderson, Rachelle Esterhazy, Paige Mahoney and Elizabeth Molloy in (2024) Assessment and Evaluation in Higher Education comments 

 PhD candidates, like all students, learn through engaging with feedback. However, there is limited understanding of how feedback strategies support doctoral candidates. This qualitative framework synthesis of 86 papers analysed rich qualitative data about feedback within PhD supervision. Our synthesis, informed by sociomateriality and a dialogic, sense-making view of feedback, underscores the critical role that feedback plays in doctoral supervision. Supervisors, through their engagement or disengagement with feedback, controlled candidates’ access to tacit and explicit standards. The ephemeral and generative nature of verbal feedback dialogues contrasted with concrete textual comments. While many supervisors aimed for candidates to become less reliant on feedback over time, this did not necessarily translate to practice. Our findings suggest that balancing power dynamics might be achieved through focussing on feedback materials and practices rather than supervisor-candidate relationships. 

Professional and personal crises are common among doctoral candidates (Katz 2018) and experiences with feedback may be part of the problem (Engebretson et al. 2008). Feedback is a process that enables university students to gauge their progress, direct their efforts and participate in academic debate. Multiple meta-analyses suggest it has highly positive effects on learning (Hattie and Timperley 2007; Wisniewski, Zierer, and Hattie 2019). However, while feedback and feedback research holds a prominent position in the higher education literature, its role in the PhD experience is considerably less studied (Chugh, Macht, and Harreveld 2021). For many in doctoral education, feedback may be seen as a pedagogical technique that primarily pertains to written work. However, feedback can be defined as a broader process where the learner makes sense of, and acts upon, useful information about their work (Henderson et al. 2019). From this perspective, feedback is embedded within doctoral supervision. Feedback strategies may therefore need to take account of the intense interpersonal nature of doctoral studies, where the supervisor-candidate relationships span years rather than months. By examining how feedback manifests within supervisory contexts, which are dynamic, socially bound and intensely interpersonal, we can infer feedback strategies that enhance doctoral supervision. 

Many publications examine PhD supervision but feedback tends to be given cursory attention. Indeed, Chugh, Macht, and Harreveld (2021) recent narrative review suggests that feedback is rarely a focus of doctoral studies research. Their analysis focusses on practical feedback strategies for doctoral supervisors such as: developing a ‘positive supervisory relationship’, articulating ‘suitable feedback content’ and finding ‘suitable and balanced ways of giving feedback’ (689). However, doctoral education is equally as enmeshed with interpersonal relationships, institutional strategies and academic power structures as it is with educational practices (Bastalich 2017). Indeed, feedback within doctoral supervision can be understood as an entree to broader academic practices (Carless, Jung, and Li 2023). Therefore, we build on Chugh, Macht, and Harreveld’s (2021) review by employing a formal qualitative synthesis, which gathers together ‘analytical depth and contextualised detail’ (Pope, Mays, and Popay 2007, 78) from qualitative studies, to discern the distinctive nature of feedback practices in PhD supervision within the existing literature. 

We adopt two conceptual underpinnings. We regard feedback as primarily a formative development process and therefore emphasise a facilitative and dialogic approach (Evans 2013). Boud and Molloy (2013) differentiation of feedback designs—by their focus on teacher or learner—can provide useful insights. In a teacher-focussed design, feedback is concerned with how the teacher constructs messages that are timely, evaluative and help students to better complete the next task. However, this overlooks the need for a student to respond to this information. Student-oriented perspectives of feedback encompass how students access and make meaning of messages (from teacher, self and peers) in order to better complete the next related task. This latter view is exemplified by the definition of feedback as ‘a process in which learners make sense of information about their performance and use it to enhance the quality of their work or learning strategies’ (Henderson et al. 2019, 1402). 

Our second conceptual frame acknowledges that feedback takes place within the complex social world of doctoral studies. Therefore, we adopt a sociomaterial approach. This perspective regards learning as constituted within situated social interactions but also acknowledges the contributions of materials, including objects and places. A sociomaterial view of feedback encompasses the interactions between the learner, the teacher, the objects they produce and the spaces they inhabit and change (Gravett 2020). Thus doctoral supervision can be seen as a dynamic interplay between teachers, learners, objects and places, which emerge across time and space (Fenwick, Nerland, and Jensen 2012). 

These two frameworks highlight the distinctive nature of this review, which provides an in-depth qualitative analysis to provide insights into the dialogic, relational, contextual and temporal nature of feedback practices in doctoral supervision.

Data

'Data Is What Data Does: Regulating Based on Harm and Risk Instead of Sensitive Data' by Daniel J Solve in (2024) 118 Northwestern University Law Review 1081 comments

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data. 

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is a dead end. The sensitive data categories are arbitrary and lack any coherent theory for identifying them. The borderlines of many categories are so blurry that they are useless. Moreover, it is easy to use nonsensitive data as a proxy for certain types of sensitive data. 

Personal data is akin to a grand tapestry, with different types of data interwoven to a degree that makes it impossible to separate out the strands. With Big Data and powerful machine learning algorithms, most nonsensitive data give rise to inferences about sensitive data. In many privacy laws, data giving rise to inferences about sensitive data is also protected as sensitive data. Arguably, then, nearly all personal data can be sensitive, and the sensitive data categories can swallow up everything. As a result, most organizations are currently processing a vast amount of data in violation of the laws. 

This Article argues that the problems with the sensitive data approach make it unworkable and counterproductive as well as expose a deeper flaw at the root of many privacy laws. These laws make a fundamental conceptual mistake—they embrace the idea that the nature of personal data is a sufficiently useful focal point for the law. But nothing meaningful for regulation can be determined solely by looking at the data itself. Data is what data does. 

To be effective, privacy law must focus on harm and risk rather than on the nature of personal data. The implications of this point extend far beyond sensitive data provisions. In many elements of privacy laws, protections should be proportionate to the harm and risk involved with the data collection, use, and transfer. 

Cogito

In Epic Trust Limited v Ruscoe [2024] NZHC 21 Palmer J states 

 [1] My judgment of 6 September 2023 outlines a summary of the context of these proceedings: [1] Cryptopia Ltd (Cryptopia) is a company that ran a cryptocurrency exchange. In January 2019, there was a serious hack of Cryptopia’s cryptocurrency and the loss of some $30 million of its cryptocurrency holdings. In May 2019, the shareholders of Cryptopia appointed Mr David Ruscoe and Mr Malcolm Moore as liquidators of the company under s 241(2)(a) of the Companies Act 1993. Mr Ruscoe and Mr Moore are chartered accountants, partners in the firm Grant Thornton New Zealand Ltd, and licenced insolvency practitioners. The liquidation involves complex arrangements regarding around 370 functioning cryptocurrencies owned by some 960,000 holders of accounts with positive balances in around 180 countries. 

[2] On 8 April 2020, the High Court determined that each type of cryptocurrency is intangible property held by Cryptopia as trustee for the benefit of all the account holders of that currency. Cryptopia itself is a beneficiary of some of those trusts. The High Court’s judgment sets out a more detailed account of the factual background of the liquidation. 

The liquidators of Cryptopia have applied for directions about distribution of the cryptocurrency assets. On 13 November 2023, Epic Trust Ltd (Epic Trust) sought to make submissions on the application. Epic Trust is owned by Mr Victor Cattermole. As explained in my judgment of 15 November 2023, Epic Trust had not filed and served a notice of appearance, an application to be joined, or a notice of opposition to the application for directions. I declined to hear Epic Trust at that hearing. I noted the evidence provided to date raised doubts about whether Epic Trust really had an interest in the proceedings. 

[3] On 14 November 2023, Epic Trust filed and served an application to be joined as a respondent and a notice of opposition to the application for directions with supporting affidavits. I heard the application to be joined, which was opposed by the liquidators, on 11 December 2023. ... 

 [8] Mr Henry, for Epic Trust, submits: 

(a) Epic Trust is an undisputed owner of Cryptopia cryptocurrencies as a purchaser for value from a group of beneficiaries, specifically and namely Mr Joshua Stevenson. The agreements are under an arbitral rule. Epic Trust is appointed as agent until settlement and there is a right of subrogation to Mr Stevenson’s claims in the liquidation. Accordingly, Epic Trust has a right to appear and be named in the proceeding and to make applications, be bound by the Court’s decision, and to appeal. 

(b) The proceeding is not a liquidation proceeding but a trustee seeking orders for distribution of trusts. The trustees must disclose to beneficiaries the assets held in the trusts under s 51 of the Trusts Act 2019, for the beneficiaries to formulate their claims. None of the beneficiaries are represented before the Court. 

(c) The beneficiaries’ agreement with Cryptopia was fundamentally breached by Cryptopia whenever it stopped operating the trading platform, entitling a beneficiary to cancel the agreement under s 37(1)(c) of the Contract and Commercial Law Act 2017 (CCLA) and Epic Trust to claim relief under s 48(b). So Cryptopia’s terms and conditions with the beneficiaries, including the prohibition against assignment, are no longer valid. Otherwise, the dispute resolution clause would also be valid, contrary to the liquidators’ proposed application. 

(d) Epic Trust denies its acquisition of beneficial interests for the COG digital coins in Mr Cattermole’s metaverse is a scam. Those agreements are for the beneficiaries to assess and to decide whether to accept or reject. Mr Cattermole’s conviction in 2002 was not a minor crime and does not provide any proper basis for assuming he is involved in digital currencies in any similar way now. Epic Trust is not trying to be irresponsible in any way. xx 

[9] Mr Barker, for the liquidators, submits: (a) Epic Trust LLC is a one-euro Montenegrin company. There is no evidence on which Mr Henry can properly rely to say that Epic Trust has a relevant interest. It is not an account holder according to Cryptopia’s and the liquidators’ records. There is a genuine dispute as to whether Mr Stevenson has a claim. Even if he does, the purported assignment of his claim to Epic Trust is not valid. An agent has no ability to bring proceedings in its own name. The terms and conditions of the agreement between cryptocurrency owners and Cryptopia prohibit assignment and there is no evidence of cancellation. It is not obvious that term should be implicitly disapplied just because the exchange is no longer effective. If it were disapplied, the management of accountholder claims and verification would be even more complicated, which is not a cost that should be borne by the general body of account holders. 

(b) In the liquidators’ verification process, if an account holder is unable to recall the email address they used, there are seven to eight other indicators that can be used to satisfy the liquidators they are the account holder. An approximation of the balance of the holding is one of them. So, providing the balance to a claimant, which is the point of Epic Trust’s wish to be joined, could compromise the identification process. 

(c) It is not necessary for Epic Trust to be joined for the liquidators’ application to be determined. No one is named to represent the account holders because all issues could be spoken to by: counsel for the liquidators; Mr Watts KC as counsel assisting the Court regarding the interests of account holders; and Ms Cooper KC as counsel assisting the Court regarding the interests of creditors. All account holders were served with the application and leave was reserved for them to appear or apply to vary or rescind any orders made. 

(d) The Court should be reluctant to entertain any application from Epic Trust because Mr Cattermole is its shareholder. He has been held in contempt by the High Court on 7 July 2021 for improperly obtaining and retaining confidential information about Cryptopia including the email addresses of account holders. He appears to have breached the Court order in relation to the non-use of that information. The liquidators are concerned the offer to purchase account holders’ cryptocurrencies may have been misleading and deceptive. Furthering Epic Trust’s business venture is not a direct and direct interest in the relief sought by the liquidators. ... 

[19] Similarly, I do not need to decide on the validity of the purported sale and purchase agreement between Epic Trust and Mr Stevenson. Clause 6(a) expresses that agreement to be subject to the “laws of the Principality of Cogito ... to the exclusion of all other jurisdictions.” Cogito is a metaverse created by Mr Cattermole. It is not a foreign jurisdiction and its “law” is not foreign law recognised by this Court. Its “constitution” of April 2023 provides ultimate decision-making power to Mr Cattermole as Crown Prince of Cogito. There is no evidence of Cogito’s “laws”, including its “laws” of assignment of interests, even if this Court were to recognise the agreement as governed by those “laws”, which I do not.

The 'Principality of Cogito' is one of those internet-based pseudo states, unrecognised by any substantive nation and with laws - as indicated by Palmer J - that are unrecognised and do not supersede conventional law.  

Its website indicates

Cogito is revolutionary. A principality that breaks traditional borders and is open to e-residents from every country in the world. All human beings can apply, no age restrictions and no country restrictions. Our vision is that e-residents would support each other, to provide freedom of trade, interest-free finance, simple and low tax rates, education, and the ability to start investing. As an e-resident, we would encourage you to establish companies and asset protection trusts in the Principality of Cogito to protect your hard earned wealth. 

Principality of Cogito allows you to: 

build-wealth 

Build Wealth - The Principality of Cogito brings our global market together in the Cogito Metaverse, and in doing so breaks down boundaries and minimises local government control of finances. As a Cogito e-resident, you build wealth in a way that traditional banks and investment companies can not provide. You will eventually have access to a growing market of fractional investments, enabling small to large investments with a higher level of security and transparency. This will give you the ability to build wealth in a new way. 

flexibility 

Financial Flexibility - Cogito is the natural evolution to global digital currency where everyone is treated as equals. Cogito protects you from the financial limitations your government may place on citizens by not being influenced by exchange rates, by being taxed fairly, and by having an open and transparent global marketplace. 

security 

Security & Privacy - The Cogito Metaverse is built with the type of cutting edge security that you would expect from any financial institution around the world. In addition to this, the design of the Cogito Metaverse means that someone from outside the Cogito Metaverse cannot hack in and steal Cog and remove them from the Metaverse. This ensures there is a digital trail for any one attempting fraudulent behaviour.

The site explains 

In the context of the metaverse, the Principality of Cogito represents a virtual jurisdiction or digital realm within the broader Metaverse. It is a self-governing entity with its own set of rules and regulations. The principality operates under a constitution that serves as a fundamental framework for governance, protecting the rights and liberties of its citizens and ensuring that any attempts by potential tyrants to undermine those rights are exposed and prevented well in advance.

The Constitution indicates

The Head of State is the Prince, whose role is both as figurehead representing the Principality and over-arching protector of governance to ensure that any attempt by would-be tyrants to subvert or abuse the rights to Citizens is exposed and thwarted long before they achieve their objective. ... 

The succession to the Throne, opened by death or abdication, takes place by the direct and legitimate issue of the reigning Prince, by order of primogeniture with priority given to males within the same degree of kinship. In the absence of direct legitimate issue, the succession passes to the brothers and sisters of the reigning Prince and their direct legitimate descendants, by order of primogeniture with priority given to males within the same degree of kinship. If the heir, who would have acceded by virtue of the preceding paragraphs, is deceased or has renounced the Throne before the succession became open, the succession passes to his own direct legitimate descendants, by order of primogeniture with priority given to males within the same degree of kinship. If the application of the preceding paragraphs does not fill the vacancy of the Throne, the succession passes to an heir appointed by the Crown Council. The Throne can only pass to a person holding Cogito Citizenship on the day the succession opens. The Prince can exercise his sovereign powers if he has reached adulthood, fixed at the age of eighteen. During the Prince’s minority or in case the Prince is temporarily unable to exercise his functions, the Chairman of the Crown Council or some other member of the Crown Council elected by the Crown Council shall exercise the powers of the Prince.

There is no reference to corgis or baubles. Article 143-146 of the Constitution state 

The Prince is entitled to a personal remuneration calculated as one fortieth (2.5%) of the gross Transaction Tax charged as provided by law enacted as provided in the Property and Finance section of this Constitution. 

The Prince’s personal remuneration may not be changed except by an amendment to the Constitution. 

The category of Household Expenses shall include the Prince’s expenses incurred in the lawful discharge of his duties as representative of the Principality. 

The Prince’s Household Expenses shall be assessed and provided for in the National Budget adopted by the Executive Council as provided in the Property and Finance section of this Constitution

And if you want an AI as a citizen, the Principality ... 

is able to handle everything at once by recognising two classes of Citizen: Natural Person Citizens and AI Citizens. In the early stages, the Executive Ministers will be carefully selected AI Citizens with a built-in safeguard to allow Natural Person Citizens to take control away from AI Citizens if the latter appears to be running amok. 

What is an AI Citizen? 

The Prince selects a leading figure in public life whose advice the Prince believes could be valuable to the Commune of the Principality or who has demonstrated leadership and integrity in governance and would be both ethical and competent as a Minister of a particular regional commune or a particular portfolio. He also selects other personalities that he believes will provide a useful contrarian view to add some necessary diversity and cultural balance to avoid the risk of “herding” Citizens into a cultural prison. The Prince then “interviews” that personality using the latest and greatest AI tool available at the time to assess the responses and the accepts or rejects that personality as an AI Citizen. The Prince’s “interviews” with AI Citizens are available for review by Natural Person Citizens. AI Citizens are treated as adult Natural Person Citizens for all the purposes of this Constitution. Everything in this Constitution applies to all Citizens except for the safeguard regulations for voting and referendum