Terms

'Social Contract 2.0: Terms of Service Agreements and Political Theory' by David Gunkel in (2014) 2 Journal of Media Critiques comments

Terms of service, privacy policies, license agreements, and other legal documents are the governing instruments of digital life. They are its Magna Carta, its Constitution, and its Universal Declaration of Human Rights (Downs, 2009, p. 22). 

This essay advances the thesis that the most influential and important political documents of the twenty-first century are not necessarily the constitutions and charters written for new or reconfigured nation states, but the often-overlooked terms of service agreements that users must sign (or, more precisely, click "agree") in order to participate in social networks like Facebook, Second Life, Google+, Bebo, etc. These agreements, which constitute the principle governing documents of online social worlds (Grimes et al., 2008), constitute a kind of postmodern, post-nation state social contract. As such, they articulate, structure, and regulate not only the kind of social interactions and political opportunities that are available within these global networks but determine what forms of social activity and affiliation are considered to be appropriate, acceptable, and even possible. The examination, which takes a critical approach to this subject, will be divided into three parts. The first situates these agreements within the history and lineage of modern political thought in general and social contract theory in particular. The second pursues a critical reading of the Terms governing Facebook, a social network with a population of active users that now exceeds Brazil making it the fifth most populous polity on the plant. The final section extrapolates the broader social and political consequences of these agreements, arguing that informed users not only need to read these documents carefully but also need to recognize the way these seemingly unimportant texts define and delimit the very conditions of (im)possibility for social involvement and interaction in the 21st century. Although the subject addressed by the essay is contemporary and a product of the late 20th and early 21st centuries, the method of its presentation is rather anachronistic and deliberately dissimulates the rhetoric and tone of an 18th century treatise. And this has been done, I can tell you dear reader, not out of affectation, but because the subject matter will have required nothing less.

Gunkel concludes

by noting three consequences of the foregoing, all of which can be expressed in the form of short-hand, algebraic equations.

1) T = C. The Terms of a social network are, in both form and function, a "social contract." These documents, which in the case of Facebook involve and apply to almost half-a-billion users worldwide, represent a privatization of the political as individuals form social affiliations under the sovereignty not of national governments located in geographically defined regions but multinational corporations that form and operate in excess of terrestrial boundaries. If declarations, constitu-tions, and national charters were the standard governing documents of the modern era, organizing and legitimizing the nation state as we know it, then it is the terms of service and related policy statements that arguably occupy a similar position in the postmodern era, articulating the foundation of social and political affiliations for a post-nation state, multinational polity. These agreements, therefore, constitute the next version of what political philosophers, beginning at least with Hobbes, have referred to as the "social contract," or what we have called, following a procedure that is common-place in the IT industry, social contract 2.0. This means, then, that the most influential and compelling political documents of the early 21st century might not be found in the democratic constitutions written for the newly reconfigured nation states of Afghanistan and Iraq, the manifestos and agreements developed in the wake of the "Arab Spring," or even influential transnational treaties like that of the European Union. Rather it is likely that some of the most important political documents of this epoch are being written, published, and prototyped in the terms of use agreements, terms of service contracts, or other governing statements that organize and regulate online social networks.

2) T – U = I. The Terms of a social network without user Understanding results in Irresponsible behavior. Despite the fact that these governing documents prescribe and regulate the rights and responsibilities of users, dictating the terms and conditions of online social interaction and affiliation, many of us, even those who are politically active and attentive, either ignore these texts as unimportant or dismiss them as a kind of "legalese" necessary to obtain access but not very interesting in their own right or worth serious consideration. This negligence is irresponsible for two reasons. First, on the face of things, Facebook, for example, appears to be a rather well-designed technological convenience allowing users to connect with friends, to share photographs and news, and even to participate in important social and political actions. The contractual agreement Facebook has with its users, however, also grants the organization a world-wide, unrestricted license to use this information in whatever way they see fit and the right to pass this and other forms of personal data to law enforcement agencies both in the United States and elsewhere. Although Facebook explicitly promotes a utopian vision of "one world," where individuals communicate with each other beyond geographical and national boundaries, it also serves the interests of national governments and modern social institutions by enforcing their laws and facilitating the surveillance of citizens. Users of Facebook, therefore, need to know not only what opportunities can be gained by joining the network but also what is potentially traded away, compromised, or exposed in the process of agreeing to its terms. Second, what can now in retrospect be called "social contract 1.0," namely the agreements that had organized and structured modern political institutions, often have been negotiated, executed, and decided such that subsequent generations only have the opportunity to agree to the contract through what Locke called "tacit consent." Social contract 2.0, by contrast, not only affords but requires each and every member of these post-modern virtual communities to make a definitive decision concerning the exact terms of the social relationship. If the social compact of the modern nation state often remained what Hobbes called "implicit," social contract 2.0 is explicit—every participant has the opportunity and right to agree to the contract or not. In order to take advantage of this extraordinary situation, however, users not only need to make an informed decision but also need to know the exact terms and conditions of what is to be decided.

3) T + K = Δ p. As a corollary of #2, Terms plus user Knowledge results in political change (represented by the standard mathematical symbol for change, the Greek letter delta). Being critical of a terms of service agreement or any of the other documents governing operations in a social network does not mean nor does it necessarily entail that one opt-out. It would be naïve to expect that any social organization, whether real or virtual, will be able to get everything right from the beginning. And there may remain, as is clearly the case with Facebook's "Statement of Rights and Responsibilities," one or more aspects of the contractual agreement that give users legitimate reasons to be cautious or concerned. Deciding not to participate, or opting out of the social contract, is clearly one way to avoid or even dispute such problems, but doing so not only means missing out on the opportunities afforded by these increasingly useful and popular Internet applications but, more importantly, does little or nothing to question, challenge, or improve existing policies. Instead of opting out, we can alternatively engage these new social systems, capitalizing on their opportunities while remaining critical of the limitations of their social contract and advocating for improvements. And there are good reasons to be optimistic that such efforts can and will have traction. The social/political structures of both LambdaMOO and Facebook have not been static, they have developed and evolved as a result of user involvement, complaint, and struggle. The "Rape in Cyberspace," although a less than pleasant affair, caused the users of LambdaMOO to take seriously the questions of governance and led to numerous discussions, debates, and experiments with social policy. Similarly Facebook has developed and evolved in response to crisis and user criticism. In 2009, as the result of what can now in retrospect be called a "mistake," the users of Facebook helped the organization's ruling elite recognize that the traditional terms of use agreement, which had been standard operating procedure and for that reason gone largely unquestioned, was obsolete and no longer appropriate for Facebook's stated mission and objective. As a result, Facebook introduced what are arguably revolutionary innovations in social network governance—the "Statement of Principles" and the "Statement of Rights and Responsibilities"—effectively changing what had been an autocratic totalitarian commonwealth or "company town" (Jenkins, 2004) into a benevolent dictatorship supporting democratic participation. Despite this remarkable transformation, however, it can still be legitimately argued that these improvements do not go far enough—that Facebook's "transparent process" is cloudy at best, if not opaque. Pointing this out does not, it should be noted, negate the importance or influence instituted by the innovation. It merely recognizes that things do not necessarily end here. Like all forms of political activism, therefore, users of social networks need to engage the structures as they currently exist, work to identify their inconsistencies and problems, and advocate for improvements. What is needed is not mere opposition and abstinence but informed involvement and critical participation. For this reason, we can end by reissuing the concluding statement from Pavel Curtis's LTAD document (1993): "I think we're going to have a lot of fun, here... :-)" This sentence should, however, be read in light of the emoticon that punctuates it. What the sideways smile-face indicates is that the word "fun" might need to be understood and interpreted with some wry humor. That is, the opportunities that are available with social networks may, in fact, turn out to be interesting, engaging, and entertaining. This "fun," however, will still require a good deal of struggle, effort, and conflict, and might, at times, appear to be less than what one might consider immediately enjoyable or amusing.

Property

'Property's Sovereignty' by Larissa Katz in Theoretical Inquiries in Law (forthcoming) comments

Freedom is an organizing idea in many contemporary accounts of property. But there are at least two ways to think about property as a freedom-based right. One way is to define property in terms of our personal freedom to advance our life-plans free from interference by others. Property on this view is a position of negative freedom, a right against interference by others, that puts owners in the best position to capture whatever benefits may be had from a thing. On this view,  property ensures that a thing is wholly available for the owner's purposes by excluding all others.

There is a second freedom-based way to understand property not in terms of negative freedom but in terms of sovereignty: property gives owners the exclusive authority to set the agenda for things - an agenda to which others must defer. This authority is a kind of sovereignty, for owners need not defer to any other private person in setting the agenda for things but they may claim deference from all. The agenda-setting authority vested in the office of ownership is perpetual, exclusive, non-reviewable and, in its sphere, subordinate to none. Freedom is at the heart of ownership here too, but it is a relational freedom: owners relate to others their decisions about things, and they do so as sovereigns, whose decisions command deference.

These two ways of thinking about property have important implications for property╒s status in our legal order. Freedom-based accounts of property generally suggest an important, even essential, place for property in the basic structure of society: property matters because freedom matters. But the challenge for freedom-based accounts of property is to make sense of the state's significant power to restrict the personal freedom of owners to advance their life-plans through ownership. I will argue that the first way to think of property, as a right to exclude leaving owners free to enjoy the benefits of property, cannot meet this challenge: it would treat even basic exercises of state power to tax, regulate and expropriate property as a diminution of property, even if a justified one. If the immunity of owners to these state powers is the measure of the deference our property rights command from the state, then we can see why there are very few legal and political philosophers left who think private property in itself commands any special deference from the state: few would deny owners liability to taxation, regulation and expropriation.

The sovereignty?based account of ownership that I advance here offers a new understanding of property to meet this challenge : it explains how each - owner and state - is sovereign in its sphere. Most of this paper will be an argument in favour of this second conception of property. But this paper also addresses a new puzzle of its own: If property is centrally about the sovereign authority of owners to make decisions about the agenda for their property, then what connection is there between ownership and the fruits or profits that owners are at liberty to derive from their property? I will argue that there is an important connection between ownership and certain benefits or value derived from owning, but it is not an essential one . Instead, it is best accounted for by a separate principle of accession, with its own rationale. As we will see, not only does this principle of accession account for the allocation of value to owners but also for the allocation of certain costs or burdens to owners, too. Traditional property scholars have argued that the greatest threat to property rights is the taking of value from owners through taxation, regulation or expropriation. But by distinguishing the principles of sovereignty and accession, we see how the state can take value from owners without attacking their fundamental rights as owners.

Property, then, is an essential feature of our legal order, but not at all in the way that many property essentialists claim. It is essential as a mode of allocating original (i.e., non-delegated) sovereign authority. The existence of this form of private authority is (I will argue) a constitutional choice about the sources of authority in the political order: private ownership makes certain decisions that are the exclusive prerogative of a private office exercising private authority, just as other decisions are the prerogative of officials or their deputies exercising public authority (e.g., legislators, police officers, judges, bureaucrats). In property we have a distinct source of authority over private relations that is thus an aspect of our constitutional identity (much as federalism, establishing distinct and irreducible sources of public authority, does in a federal state.) I should say right away that I am not talking about a written constitution but rather the rules in our political organization that establish and regulate authority. To respect and promote property rights, from this viewpoint, means the vindication and perhaps even defence of the constitutional choice to establish a source of authority over private relations that is separate from and irreducible to public authority. We gain better insight into proper state-owner relations by concentrating on this more substantial basis - a matter of constitutional identity - for the sovereign status of private property.

While my account explains why ordinary state exercises of the power to regulate, tax or expropriate does not diminish property's sovereignty, it also yields insight into the kind of state activity that might: the state-backed subordination of owners to the private choices of others about the thing .

In part I, I offer an account of the kind of private authority that owners have. Ownership, I will say, is fundamentally constituted by owner's authority over private relations with respect to their thing. This is what I have called their agenda-setting authority. This agenda-setting authority, exercised through the office of ownership, is distinct from the benefits and burdens tacked on by the principle of accession. The ownership strategy puts agenda?setting authority in private hands. But questions about whose hands, and to what advantage, are another matter altogether.

In part II, I will show how and why private authority is distinct from and irreducible to public authority. I will argue that the private/public distinction reflects distinct modes of legitimating authority in our constitutional order: public authority exercised through public offices depends for its legitimacy on its univocality. It must be capable of standing as our common decision. Private authority by contrast makes no such claims of univocality. When the owner sets the agenda for his property, he makes no pretence of having come up with our decision. Rather, it is his decision that we are all bound to respect because of his position . We attribute authority to private actors just in virtue of their standing as owners. A genuine and validly made decision about what constitutes a worthwhile use of a thing claims legitimacy just in virtue of the decision-maker's standing to say so  in relation to others. This private authority is absolute although not in the ordinary sense of that word (i.e., unrestricted rights to a thing and proceeds); rather, ownership authority is absolute in a much older and more illuminating sense: in its exercise, owners are absolved from the normative constraints that legitimize public decisions. Owners are free to act on their private judgment about what ought to be done with a thing.

Finally, in part III, I will argue that the elimination of this private authority represents not just one political choice among many (although the restriction of the owner's choice-set and the benefits of owning, through regulation, taxation, expropriation, does); rather, the elimination of private authority to govern private relations with respect to things would represent a fundamental challenge to the constitutional identity of the political order we have. A legal order that establishes distinct and irreducible sources of authority with respect to people has a constitutional identity that is distinct from a legal order that acknowledges just one or the other kind of authority.

None of this means that property is a constitutional necessity for a liberal society that respects our claims to personhood anymore than federalism is (a state may allow immediate rights to consume or to use a thing for some purpose, but allocate no authority to set an agenda for the thing that others are required to respect). But property, as a basic source of authority in our constitutional order, forms the constitutional identity we have. Its abolition is at the same time the abolition of that order.

Generics

'Drug Wars: A New Generation of Generic Pharmaceutical Delay' by Robin Feldman and Evan Frondorf in (2016) 53 Harvard Journal on Legislation (Forthcoming) comments

Thirty years ago, Congress ushered in a new and miraculous era in medicine, with the creation of the Hatch-Waxman system for approval of generic drugs. The progress, however, has not been without resistance. Our paper presents an overview of three generations of games pharmaceutical companies play to keep generics off the market and maintain monopoly pricing. In “Generation 1.0,” branded companies simply paid generics to delay entering the market, reaping billions of dollars of benefit. “Generation 2.0” involves paying for delay through multiple side deals that camouflage the value of the payment. Generation 2.0 also includes what we call “boy scout clauses” — agreements to behave honorably that actually mask anticompetitive collusion. The newest generation, however, moves from collusion to obstruction. Generation 3.0 uses administrative processes, regulatory schemes, and drug modifications to prevent generics from getting to market. Society, however, cannot blame companies for engaging in behavior that is strongly in their economic self-interest. One cannot expect mice to run in the appropriate direction if the cheese is located at the other end. Thus, our goal in this paper is two-fold: first, to shine light on the complex behaviors as they are unfolding and second, to explore the contours of how new approaches could be structured. To paraphrase one former FDA commissioner, we do not want the most creative activity at pharmaceutical companies to take place in the legal department. And after 30 years of experience with Hatch-Waxman, it is time for the next phase.

'Transnational Legal Ordering and Access to Medicines' by Gregory Shaffer and Susan K. Sell in Okediji and Bagley (eds) Patent Law in Global Perspective (Oxford University Press, 2014) comments

The politics of pharmaceutical patent protection increasingly involves the interaction of different transnational legal orders (TLOs). Two of these, a TLO focused on trade and intellectual property protection and a TLO focused on the human right to health, have interacted to frame and shape countries’ approaches to intellectual property protection. These rival transnational legal orders involve recursive interaction between legal norm-making and implementation at the international and national levels. This chapter argues that understanding the operation and interaction of these TLOs provides an important framework for countries to develop strategies to navigate among the multiple pressures placed upon them.

Cloud Conditions

The 71 page 'Privacy in the Clouds: An Empirical Study of the Terms of Service and Privacy Policies of 20 Cloud Service Providers' (Queen Mary School of Law Legal Studies Research Paper No. 209/2015) by Dimitra Kamarinou, Christopher Millard and W. Kuan Hon is an empirical study of the Terms of Service and Privacy Policies of 20 cloud providers.

The authors state

Our study focuses on the ways these 20 cloud providers treat various key rights that individuals have under data protection law, either when they contract directly with a cloud provider or when they access cloud services through a business or institution, such as their employer, including the right to have their personal data processed fairly and lawfully, the right to be informed about the collection of data, the specific purposes of processing and the way their data may be shared with or disclosed to third parties, including law enforcement agencies. We also look at the right to access, correct or erase personal data, the right to object to processing, the right to object to direct marketing, and the right to have personal data processed securely and be protected from accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access to data. In addition, this paper discusses the providers’ approach to disputes arising out of the use of their cloud service and their approach to compensation and indemnification. This paper also uncovers common approaches adopted by providers and mismatches between their various legal documents, and highlights the advantages and disadvantages of various practices found in the study. Finally, we make some suggestions for more effective transparency and redress options for individuals, and conclude the paper with a number of practical findings arising from the review.

'The Challenge of Bitcoin Pseudo-Anonymity to Computer Forensics' by  Edward J. Imwinkelried and  Jason Luu in (2016) Criminal Law Bulletin (Forthcoming) argues

Digital forensics must constantly adapt to new technological developments. The advent of Bitcoin is such a development. Bitcoin represents a new model for financial transactions. In many cash transactions between strangers, the underlying model is parties-unknown/transaction-unknown. There is no ledger record of the transaction. In contrast, PayPal illustrates the parties-known/transaction-known model. An intermediary will record both items of information. Bitcoin differs from both of these models; Bitcoin uses a parties-unknown/transaction-known model. The Bitcoin block chain records the transaction, but the user’s Bitcoin address is not expressly tied to an identity. Thus, Bitcoin users enjoy pseudo-anonymity.

As the recent experience with Silk Road demonstrates, there is a downside to this pseudo-anonymity. Precisely because of that feature, Silk Road served a marketplace for vendors to sell illegal narcotics, forged identifications, and other illicit goods and services. Given that danger, law enforcement authorities have a felt need to develop techniques to penetrate the pseudo-anonymity. To do so, they have turned to digital forensics experts.

This article evaluates two techniques that have been proposed for this purpose. The first is traffic analysis. This technique relies on the entry nodes that users employ to access the Internet. The second is transaction graph analysis. This technique clusters transactions to identify natural chokepoints in the Bitcoin economy, that is, service islands where, for example, the user might convert Bitcoins to fiat currency. The chokepoints becomes a target for a law enforcement subpoena to learn the user’s IP address.

After describing each technique, the article assesses the research conducted to date. In particular, the article reviews Alex Biryukov’s research into traffic analysis and Sarak Meiklejohn’s work with transaction graph analysis. The article applies the standards announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to determine whether, given the available data, expert testimony based on either technique would be admissible today. The article explains that it is doubtful whether testimony based on either technique would survive a Daubert admissibility challenge. The article concludes that further research is needed to enable law enforcement authorities to effectively penetrate the pseudo-anonymity of the new parties-unknown/transaction-known model.

Damages

'Damages for Violations of Human Rights Law in the United Kingdom' (Queen Mary School of Law Legal Studies Research Paper No. 204/2015) by Merris Amos comments

In the United Kingdom (UK) damages violations of human rights law are available through the unique standalone mechanism provided by the Human Rights Act 1998 (HRA). The HRA has been designed to replicate at the national level the treatment a claimant would receive before the European Court of Human Rights (ECtHR). Courts contemplating an award of damages under the HRA must therefore consider the principles set out in the HRA itself, including other remedies granted and the consequences of the award, as well as the principles applied by the ECtHR. However, despite the numerous principles applied to the award of damages under the HRA, there remain very few reported cases where damages have been awarded. There is also very little academic discussion of this body of jurisprudence. It has been suggested that it would be more appropriate for a tort model for damages to be adopted, but it is not clear that this would constitute a more effective remedy. Real justice for victims could be better achieved were national courts to contemplate in more detail the rationale for damages awards in this context, and pay closer attention to developments at the ECtHR level.

Pharmacies

In the UK the national Information Commissioner has announced a £130,000 penalty for sale by an online pharmacy of details of more than 20,000 customers to marketing companies.

 Pharmacy 2U offered the customer names and addresses for sale through an online marketing list company. Companies that bought the details included a health supplements company that has been cautioned for misleading advertising and an Australian lottery company subject to investigation by Trading Standards.

The ICO investigation found that Pharmacy 2U had not informed its customers that it intended to sell their details, and that the customers had not given their consent for their personal data to be sold on. This was in breach of the Data Protection Act.

ICO Deputy Commissioner David Smith said:

“Patient confidentiality is drummed into pharmacists. It is inconceivable that a business in this sector could believe these actions were acceptable. Put simply, a reputable company has made a serious error of judgement, and today faces the consequences of that. It should send out a clear message to other companies that the customer data they hold is not theirs to do with as they wish. “Once people’s personal information has been sold on once in this way, we often see it then gets sold on again and again. People are left wondering why so many companies are contacting them and how they come to be in receipt of their details.”

The incident was initially uncovered by a Daily Mail investigation. More than 100,000 customer details were advertised for sale.

The customer database was advertised as including people suffering from ailments such as asthma, Parkinson’s disease and erectile dysfunction. Breakdowns of customers, such as men over 70 years old, were available, and records were advertised for sale for £130 per 1000 records.

The civil monetary penalty is the first of its type, with the company found to have breached the first principle of the Data Protection Act regarding fair and lawful processing of data.

The ICO investigation found the lottery company that bought customer records appeared to have deliberately targeted elderly and vulnerable individuals, and it is likely that some customers will have suffered financially as a result of their details being passed on.

The Commissioner notes [PDF] -

Pharmacy2U is the UK's largest NHS approved online pharmacy. It is registered with the General Pharmaceutical Council and the Care Quality Commission.

Pharmacy2U has a website (www.pharmacy2u.co.uk) through which it provides the following services: (a) an electronic prescription service: NHS patients can register to have their NHS prescriptions sent to Pharmacy2U electronically and delivered to their home address; (b) an online Doctor service, offering confidential online medical consultations with a UK registered GP; and  (c) online retail of over the counter medicines and health and beauty products. ...

The Pharmacy2U database lists were advertised for rental on the Alchemy website. The data card for Pharmacy2U states that the data includes 77,621 0-12 month “buyers” and 36,207 13-24 month “buyers”. It also states that buyers include NHS patients, Pharmacy2U online patients and Pharmacy2U retail customers. It lists typical ailments that are treated including asthma, high blood pressure, diabetes, heart disease, high cholesterol, Parkinson's disease, epilepsy, erectile dysfunction, hair loss, weight loss, travel health, skin conditions, pain, migraine, cold and flu and nicotine replacement for smoking cessation. It also includes an age breakdown which shows that 82% of the buyers are over the age of 40. The cost is listed as £130 per 1000 records.

In November and December 2014, Alchemy supplied a total of 21,500 Pharmacy2U customers’ names and addresses to three organisations: Griffin Media Solutions, an Australian lottery company (“the lottery company”) and Camphill Village Trust Ltd.

On 20 November 2014, Griffin Media Solutions ordered 13,000 records on behalf of its client Woods Supplements (10,000 records plus a 30% oversupply to allow for duplicates). The data related to customers who had used Pharmacy2U within the previous 12 months. The order was approved by a senior executive of Pharmacy2U. ...

On 9 December 2014, the lottery company ordered 3,000 records relating to males aged 70 or over who had used Pharmacy2U within the previous 6 months. The lottery company provided a copy of the proposed mailer and a corporate profile pack to Pharmacy2U which included a copy of their mail order lottery licence and a letter from the Northern Territory Government.

The mailer was headed “Declaration of Executive Order” and went on to say that the recipient had been “specially selected” to “win millions of dollars”. The mailer contained a form which recipients were asked to complete and return within seven days along with payment of an unspecified sum of money by cash, postal order, cheque or credit card. The form also requested date of birth, email address, telephone number and mobile number.

A senior executive of Pharmacy2U approved the order with the words “OK but let’s use the less spammy creative please, and if we get any complaints I would like to stop this immediately”. The data was sent to Australia.

The mailer has been examined by the UK’s National Trading Standards Scams Team, which has confirmed that if it was sent by a UK business it would be likely to breach the UK Consumer Protection from Unfair Trading Regulations.

The National Trading Standards Scams Team has also informed the Commissioner’s office that the lottery company is the subject of an ongoing international criminal investigation into fraud and money laundering, although this wouldn’t have been known to Pharmacy2U.

Legal Publication Bibliometrics

'Fashions and Methodology' by Reza Dibadj in Rethinking Legal Scholarship: A Transatlantic Interchange (Forthcoming) [PDF] comments

I attempt in this chapter to build on prior empirical work where I compared who and what was being published in top law reviews in three different jurisdictions: the United States, Britain, and France.

Part I begins by discussing the key empirical findings of a research project that analyzed a sample of legal publications in the United States, Britain, and France. As discussed, the work proceeded in two phases: first, identifying what “top” journal and “elite” law school might be in each jurisdiction; second, analyzing each article according to author characteristics, legal method employed, and subject matter. Part II then draws implications from this preliminary work, attempting to relate the empirical results to the academic legal culture in each jurisdiction. Put simply, can one try to find meaning in these results?

After having surveyed what is being published in “top” law journals across three different jurisdictions, as well as trying to explore links between these results and legal culture, Part III tries to draw some implications. At least two important points emerge. First, that as legal academics we need to pay more attention to quality and how to measure it. Yet existing quality metrics — journal rankings, peer review, bibliometric citations, and the like — are by themselves at best incomplete and at worst misleading. As such, I argue that quality cannot be understood without the threshold concept of methodology. Entering the dangerous territory of linking methodology with quality becomes all but inevitable if we hope to begin improving the state of legal research. Ironically, what is deeply missing in this literature is a focus on methodology. While it becomes extraordinarily difficult, if not impossible, to generalize across jurisdictions there remains a central question of what Americans may learn from Europeans when it comes to legal research and vice-versa? Methodology can begin to provide a framework to address this question.

An Australian perspective is provided in 'Time and chance and the prevailing orthodoxy in legal academia happeneth to them all - a study of the top law journals of Australia and New Zealand' by James Allan and Anthony Senanayake in (2012) 33 Adelaide Law Review 519.

Taxation and the IoT

'Taxation and Surveillance: An Agenda' by Michael Hatfield in (2015) 17 Yale Journal of Law and Technology 319 [PDF] comments

Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration will become increasingly important to consider. This Article provides an agenda of items for discussion, debate, and research related to the development, implementation, and effects of a surveillance-facilitated tax system.

Hatfield argues

Although the Internal Revenue Service (IRS) “has al ways been an information intensive agency,”   its information- gathering has never been the focus of privacy scholars. Those scholars have instead focused on agencies such as the National Security Administration (NSA).   But the IRS’s legal claim to private information is remarkable. It is entitled to collect information about who sleeps how often in your house,  your hobbies, your reading preferences, your religious affiliation, your travel plans, your weight and your doctor’s recommendations about it, your spouse or your dependent’s abortion, sterilization, or gender identity disorder, and if you were considering a carnal quid pro quo when you made a gift to your “mistress.” Yet, privacy scholars have taken no note of the IRS’s extraordinary legal claim to such information.

From the reverse angle, despite the information-intensive aspects of tax law, tax scholars have not taken note of the increasing pervasiveness of information technology. Modern technologies are creating “minutely detailed records” of our existence, increasingly facilitating the “persistent, continuous and indiscriminate monitoring of our daily lives.” One information privacy scholar described the radical and technological transformation of personal information:

The small details that were once captured in dim memories or fading scraps of paper are now preserved forever in the digital minds of computers, vast databases with fertile fields of personal data . . . . Every day, rivulets of information stream into electronic brains to be sifted, sorted, rearranged, and combined in hundreds of different ways. Technology enables the preservation of the minutia of our everyday comings and goings, of our likes and dislikes, of who we are and what we are . . . . It is ever more possible to create an electronic collage that covers much of a person’s life—a life captured in records, a digital biography composed in the collective computer networks of the world. 

A prominent national security advisor has predicted that by 2040, all of our daily activities will be known by "governmental" and corporate entities” pursuing the “growing gush of data” from the “internet of things.” As we move towards such a future, the IRS most likely will be among those entities pursuing this growing gush of data. This Article suggests an agenda for discussion among privacy and tax law scholars: issues we ought to consider, research we ought to pursue, and debates we ought to have.

In Part I of this Article, I describe the flow of tax-relevant information from taxpayers and third parties to the IRS. I point out two significant problems in that information flow: the compliance burden and the compliance gap. In Part II, I predict that, over the next twenty-five years, surveillance technologies will be used to reduce the compliance burden and gap. I consider the technological and political factors that may pave or block the way for such an increase in surveillance to improve tax administration. In Part III, I recommend a research agenda in an effort to make the integration of surveillance into tax administration more beneficial than harmful. Ultimately, reforming tax law to fit the emerging technology and our privacy expectations will be essential to integrating the information technology revolution into tax administration without disrupting the administration itself.