Ag Surveillance

The NSW Legislative Council has established a Select Committee On Landowner Protection From Unauthorised Filming Or Surveillance.

The Committee, chaired by the Hon Robert Borsak MLC (of the Shooters, Fishers and Farmers Party), states that it

was established to investigate concerns about intrusion and trespass taking place on farms for the purpose of capturing unauthorised surveillance material and disseminating it through traditional and social media. 

Its media release states

Mr Borsak said “there is an increasing issue of animal welfare advocates trespassing on land to try expose animal cruelty, which can have a significantly detrimental impact on farming businesses. This committee will examine this complex issue to determine how the welfare of animals and the rights of land and business owners can both be protected.”  

Mr Borsak continued “the inquiry will examine the extent of existing protections for landowners, the appropriateness of penalties for offenders, and the self-incrimination implications for individuals who disclose unauthorised surveillance material to authorities.” 

The committee will also investigate the impact of the rapidly changing media environment of surveillance activity for landholders. 

Mr Borsak said “social media platforms like Facebook Live have changed the way unauthorised recordings and surveillance material can be disseminated and the committee will look into the implications of this.”

The Committee's Terms of Reference are

That a select committee be established to inquire into and report on the extent of protection for landowners from unauthorised filming or surveillance and in particular:

(a) the nature of protection for landholders from unauthorised filming or surveillance, including but not limited to installation, use and maintenance of optical surveillance devices without consent under the Surveillance Devices Act 2007,

(b) the extent and appropriateness of penalties for unauthorised filming or surveillance, including but not limited to on-the-spot fines and/or relevant penalties under the Summary Offences Act 1988,

(c) the implications with regard to self-incrimination of the request of disclosure by a person of any recordings made by that person,

(d) the implications of rapidly changing media environment, including social media platforms such as Facebook Live, and

(e) any other related matter.

ALRC Class Actions Discussion Paper

The Australian Law Reform Commission discussion paper regarding its Inquiry into Class Action Proceedings and Third-Party Litigation Funders features the following  Proposals and Questions -

1. Introduction to the Inquiry 

Proposal 1–1 The Australian Government should commission a review of the legal and economic impact of the continuous disclosure obligations of entities listed on public stock exchanges and those relating to misleading and deceptive conduct contained in the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) with regards to:

• the propensity for corporate entities to be the target of funded shareholder class actions in Australia; 

• the value of the investments of shareholders of the corporate entity at the time when that entity is the target of the class action; and 

• the availability and cost of directors and officers liability cover within the Australian market. 

3. Regulating Litigation Funders 

Proposal 3–1 The Corporations Act (2001) (Cth) should be amended to require third-party litigation funders to obtain and maintain a ‘litigation funding licence’ to operate in Australia. 

Proposal 3–2 A litigation funding licence should require third-party litigation funders to:

• do all things necessary to ensure that their services are provided efficiently, honestly and fairly; 

• ensure all communications with class members and potential class members are clear, honest and accurate; 

• have adequate arrangements for managing conflicts of interest; 

• have sufficient resources (including financial, technological and human resources); 

• have adequate risk management systems; 

• have a compliant dispute resolution system; and · be audited annually. 

Question 3–1 What should be the minimum requirements for obtaining a litigation funding licence, in terms of the character and qualifications of responsible officers? 

Question 3–2 What ongoing financial standards should apply to third-party litigation funders? For example, standards could be set in relation to capital adequacy and adequate buffers for cash flow. 

Question 3–3 Should third-party litigation funders be required to join the Australian Financial Complaints Authority scheme? 

4. Conflicts of Interest 

Proposal 4–1 If the licensing regime proposed by Proposal 3–1 is not adopted, third-party litigation funders operating in Australia should remain subject to the requirements of Australian Securities Investments Commission Regulatory Guide 248 and should be required to report annually to the regulator on their compliance with the requirement to implement adequate practices and procedures to manage conflicts of interest. 

Proposal 4–2 If the licensing regime proposed by Proposal 3–1 is not adopted, ‘law firm financing’ and ‘portfolio funding’ should be included in the definition of a ‘litigation scheme’ in the Corporations Regulations 2001 (Cth). 

Proposal 4–3 The Law Council of Australia should oversee the development of specialist accreditation for solicitors in class action law and practice. Accreditation should require ongoing education in relation to identifying and managing actual or perceived conflicts of interests and duties in class action proceedings. 

Proposal 4–4 The Australian Solicitors’ Conduct Rules should be amended to prohibit solicitors and law firms from having financial and other interests in a thirdparty litigation funder that is funding the same matters in which the solicitor or law firm is acting. 

Proposal 4–5 The Australian Solicitors’ Conduct Rules should be amended to require disclosure of third-party funding in any dispute resolution proceedings, including arbitral proceedings. 

Proposal 4–6 The Federal Court of Australia’s Class Action Practice Note (GPN-CA) should be amended so that the first notices provided to potential class members by legal representatives are required to clearly describe the obligation of legal representatives and litigation funders to avoid and manage conflicts of interest, and to outline the details of any conflicts in that particular case. 

5. Commission Rates and Legal Fees 

Proposal 5–1 Confined to solicitors acting for the representative plaintiff in class action proceedings, statutes regulating the legal profession should permit solicitors to enter into contingency fee agreements. This would allow class action solicitors to receive a proportion of the sum recovered at settlement or after trial to cover fees and disbursements, and to reward risk. The following limitations should apply:

• an action that is funded through a contingency fee agreement cannot also be directly funded by a litigation funder or another funding entity which is also charging on a contingent basis; 

• a contingency fee cannot be recovered in addition to professional fees for legal services charged on a time-cost basis; and 

• under a contingency fee agreement, solicitors must advance the cost of disbursements and indemnify the representative class member against an adverse costs order. 

Proposal 5–2 Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended to provide that contingency fee agreements in class action proceedings are permitted only with leave of the Court. 

Question 5–1 Should the prohibition on contingency fees remain with respect to some types of class actions, such as personal injury matters where damages and fees for legal services are regulated? 

Proposal 5–3 The Federal Court should be given an express statutory power in Part IVA of the Federal Court of Australia Act 1976 (Cth) to reject, vary or set the commission rate in third-party litigation funding agreements. If Proposal 5–2 is adopted, this power should also apply to contingency fee agreements. 

Question 5–2 In addition to Proposals 5–1 and 5–2, should there be statutory limitations on contingency fee arrangements and commission rates, for example:

• Should contingency fee arrangements and commission rates also be subject to statutory caps that limit the proportion of income derived from settlement or judgment sums on a sliding scale, so that the larger the settlement or judgment sum the lower the fee or rate? or 

• Should there be a statutory provision that provides, unless the Court otherwise orders, that the maximum proportion of fees and commissions paid from any one settlement or judgment sum is 49.9%? 

Question 5–3 Should any statutory cap for third-party litigation funders be set at the same proportional rate as for solicitors operating on a contingency fee basis, or would parity affect the viability of the third-party litigation funding model? 

Question 5–4 What other funding options are there for meritorious claims that are unable to attract third-party litigation funding? For example, would a ‘class action reinvestment fund’ be a viable option? 

6. Competing Class Actions 

Proposal 6–1 Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended so that:

• all class actions are initiated as open class actions; 

• where there are two or more competing class actions, the Court must determine which one of those proceedings will progress and must stay the competing proceeding(s), unless the Court is satisfied that it would be inefficient or otherwise antithetical to the interest of justice to do so; 

• litigation funding agreements with respect to a class action are enforceable only with the approval of the Court; and 

• any approval of a litigation funding agreement and solicitors’ costs agreement for a class action is granted on the basis of a common fund order. 

Proposal 6–2 In order to implement Proposal 6-1, the Federal Court of Australia’s Class Action Practice Note (GPN-CA) should be amended to provide a further case management procedure for competing class actions. 

Question 6–1 Should Part 9.6A of the Corporations Act 2001 (Cth) and s 12GJ of the Australian Securities and Investments Commission Act 2001 (Cth) be amended to confer exclusive jurisdiction on the Federal Court of Australia with respect to civil matters, commenced as representative proceedings, arising under this legislation? 

7. Settlement Approval and Distribution 

Proposal 7–1 Part 15 of the Federal Court of Australia’s Class Action Practice Note (GPN-CA) should include a clause that the Court may appoint a referee to assess the reasonableness of costs charged in a class action prior to settlement approval and that the referee is to explicitly examine whether the work completed was done in the most efficient manner. 

Question 7–1 Should settlement administration be the subject of a tender process? If so: · How would a tender process be implemented? · Who would decide the outcome of the tender process? 

Question 7–2 In the interests of transparency and open justice, should the terms of class action settlements be made public? If so, what, if any, limits on the disclosure should be permitted to protect the interests of the parties? 

8. Regulatory redress 

Proposal 8–1 The Australian Government should consider establishing a federal collective redress scheme that would enable corporations to provide appropriate redress to those who may be entitled to a remedy, whether under the general law or pursuant to statute, by reason of the conduct of the corporation. Such a scheme should permit an individual person or business to remain outside the scheme and to litigate the claim should they so choose. 

Question 8–1 What principles should guide the design of a federal collective redress scheme?

The ALRC's Terms of Reference are -

having regard to:

• the increased prevalence of class action proceedings in courts throughout Australia, and the important role they play in securing access to justice; 

• the importance of ensuring that the costs of such proceedings are appropriate and proportionate;

• the importance of ensuring that the interests of plaintiffs and class members are protected, in particular in the distribution of settlements and damages awards; 

• the role that third party funding entities play in enabling the commencement and maintenance of class action proceedings; 

• the role of third party funding entities in enabling the commencement of other classes of legal proceedings, including but not limited to arbitral proceedings;

• the potential for conflicts of interest between the professional obligations of lawyers and the commercial imperatives of third party funding entities; 

• the fact that third party funding entities are not bound by professional ethical obligations, such as a lawyer’s duties to the court and the client; 

• the absence of a requirement that third party funding entities (or, where the entity is a corporate entity, its officers) satisfy character requirements or meet other antecedent criteria before being permitted to act as third party litigation funders; and 

• the absence of comprehensive Commonwealth or State and Territory regulation to address the structure, operation and terms on which third party funding entities participate in the Australian legal system.

the ALRC is to consider  whether and to what extent class action proceedings and third party litigation funders should be subject to Commonwealth regulation, and in particular whether there is adequate regulation of the following matters:

• conflicts of interest between lawyer and litigation funder; 

• conflicts of interest between litigation funder and plaintiffs; 

• prudential requirements, including minimum levels of capital; 

• distribution of proceeds of litigation including the desirability of statutory caps on the proportion of settlements or damages awards that may be retained by lawyers and litigation funders; 

• character requirements and fitness to be a litigation funder; 

• the relationship between a litigation funder and a legal practice; 

• the costs charged by solicitors in funded litigation, including but not limited to class action proceedings; and any other matters related to these Terms of Reference

Law Schools and Rubrics

Too many law schools and too many grads? 'The Multiple Dynamics of Isomorphic Change: Australian Law Schools 1987–1996' by Peter Woelert and Gwilym Croucher in (2018) 56 Minerva comments

The theory of institutional isomorphism has been criticized for overemphasizing organizational convergence and neglecting organizational divergence. Drawing on a range of empirical data, this paper shows that multi-dimensional accounts of isomorphic change are not necessarily incompatible with accounts emphasizing divergence as a typical form of organizational response to environmental uncertainties. The specific case investigated is the proliferation of academic organizational units teaching law at Australian universities over a ten-year period (1987–1996) that saw far-reaching structural transformations of the Australian university system. The key heuristic strategy employed in this paper is to scrutinize (a) when isomorphic responses appear to occur, and (b) which specific organizational form they take. In the empirical case examined, scrutiny of each of these dimensions strongly suggests that at least some isomorphic responses of universities were driven by a dual agenda of manifesting not only similarity but also distinction.

The authors state

There is a long tradition of research in the social sciences exploring processes of organizational change, including organizational homogenization. One enduringly influential approach that has been frequently applied to the organizational analysis of universities (e.g., Croucher and Woelert 2016; Diogo et al. 2015; Meyer et al. 2007; Stensaker and Norgard 2001; Gumport 2000; Marginson and Considine 2000; Townley 1997) has been the so-called ‘new’ sociological institutionalism (Powell and DiMaggio 1991). One core tenet of this institutionalism is that processes of organizational homogenization stem from the institutionalization of specific ideas and models of ‘proper’ organizational forms and practices and the associated concerns around legitimacy. This institutionalization, so the argument goes, leads to institutional isomorphism. 

Several studies suggest that over recent decades universities have been particularly prone to such isomorphism as they respond to the uncertainties and pressures arising from changes in government policy and funding (e.g., Croucher and Woelert 2016; Stensaker and Norgard 2001; Marginson and Considine 2000; Townley 1997; Meek 1991 ). This is despite a widespread public policy agenda of transforming universities into organizations strategically pursuing competitive advantages through acquiring distinctive organizational forms, capacities and missions (Thoenig and Paradeise 2016; Whitley 2008 ; Krucken and Meier 2006). It has been argued that a number of specific conditions have contributed to this phenomenon. 

First, the knowledge-intensive work of universities is characterized by substantial uncertainty regarding the relationship between inputs and outputs (see Whitley 2008), with the associated missions and objectives of universities often being ambiguous and multifaceted (Fumasoli et al. 2015; Krucken and Meier 2006; Gumport 2000; Kerr 1963). According to the classic account of institutional isomorphism presented by DiMaggio and Powell (1983: 154–155), such uncertainties are conducive to mimetic processes of isomorphism driving organizations to emulate other, ostensibly more successful and legitimate, organizations. Second, the continuing dependency of universities on government funding and policy setting makes them more likely to adopt specific organizational forms ‘‘to avoid sanctions available to organizations on which they are dependent’’ (Greenwood et al. 2008: 7). This organizational response is summarized under the rubric of coercive isomorphism (DiMaggio and Powell 1983: 150). Third, universities continue to be professionalized organizations, mostly because in the selection of staff, considerable weight is given to academic credentials. According to DiMaggio and Powell, professionalization is a major driver for normative processes of isomorphism (1983: 155). 

There is an established body of research examining isomorphic dynamics in the organizational field of universities ranging from a global perspective (e.g., Schofer and Meyer 2005) down to the level of individual institutions (e.g., Stensaker and Norgard 2001). Some of this research has employed a longitudinal approach to detect and track salient diversification and homogenization dynamics within (and across) entire university systems (e.g., Reihlen and Wenzlaff 2016; Brint et al. 2011; Schofer and Meyer 2005; Skoldberg 1991), using relevant quantitative data sets where available. If carefully designed, such longitudinal studies can add to the understanding of institutional isomorphism in the university sector in at least two important ways. First, they provide a clearer picture of the various dynamics through which isomorphism progressively occurs, thus providing a corrective to those empirical analyses that examine institutional isomorphism in more static terms (see Boxenbaum and Jonsson 2008; also Hirsch 1997). Second, they allow for identification of variation in the ways in which organizational actors belonging to one organizational field – in this case universities – respond to isomorphic pressures over an extended period of time. 

Importantly, the findings generated by such longitudinal empirical analysis may serve as a corrective to the tendency to posit isomorphism as a typical response of universities without checking empirically for any variations, in timing or otherwise, of such response. Moreover, taking seriously the dynamics of, and variations in, isomorphic forms of response may help to rectify the tendentiously passive and ‘mindless’ view of organizations underlying many empirical studies of isomorphism (Powell 1991: 194; see also Lounsbury 2008; Scott 2014) – including some of the research examining isomorphism in universities. Finally, in shedding light on variation within isomorphic forms of response, this sort of empirical analysis may also enhance our understanding of the complex links between isomorphic and divergence tendencies in university systems more broadly. 

Building upon these reflections, this paper analyzes change dynamics pertaining to academic organizational units (AOUs) teaching law at Australian universities over the period of 1987–1996 as a discrete manifestation of broader isomorphic dynamics. This specific period saw sweeping structural changes to the Australian university sector, most of which can be linked to a set of radical national policy reforms occurring in 1988. These reforms paved the way for significant expansion of the number of universities over the coming years, and they created environmental conditions that can be deemed conducive to isomorphism (see ‘Research Design’ and ‘Empirical Context’ sections for more detail). 

The field of law and law AOU s are the analytical focus for three reasons. First, previous research has identified the proliferation of law faculties and departments as one of the mor e salient manifestations o f isomorphism in the Australian university system (Croucher and Woelert 2016; Barker 2013). Second, the consequences of this proliferation have been enduring – all the law AOUs newly created over the period of investigation have survived to this day in one form or another; and the creation of additional law schools after 1996 means that today there remains only one comprehensive university in Australia not featuring a comprehensive law AOU. Third, changes to law AOUs are of particular interest because these organizational units are import ant to universities financially and in terms of the institutional prestige and legitimacy they may yield (see Espeland and Sauder 2007). 

Empirically, this paper investigates, first, the distribution and organizational forms of law AOUs across all Australian universities and within selected university groupings over the period of 1987–1996. Second, it tracks and analyzes the corresponding changes in student numbers at each AOU. The changes in the distribution and organizational forms of law AOUs are proxy for tracking formal dimensions of institutional change. Changes in law student numbers provide the means for assessing the extent to which changes in formal structure correspond to changes in the actual activity structure of law AOUs (see Meyer and Rowan 1977). These sorts of data and analyses allow the identification of salient patterns of convergence and divergence among key types of universities , including any striking variations in isomorphism. Analysis of these variations in turn enables inferences regarding universities’ potential motivations for making changes to their law offerings. The data does, however, not allow for a causal explanation of why specifically some universities decided to establish or expand their law AOUs and others did not. 

In terms of findings, the 10-year longitudinal empirical analyses presented in this paper illustrate how broader isomorphic change dynamics in the organizational field of universities accommodate more localized divergence tendencies and differential patterns of institutional response to isomorphic pressures. Moreover, the specific patterns of variation in universities’ apparent responses to isomorphic pressures suggest that some isomorphic responses, at least, were driven by a dual agenda of manifesting not only similarity but also distinction.

'Assessment rubrics: towards clearer and more replicable design, research and practice' by Phillip Dawson in Assessment and Evaluation in Higher Education comments 

 ‘Rubric’ is a term with a variety of meanings. As the use of rubrics has increased both in research and practice, the term has come to represent divergent practices. These range from secret scoring sheets held by teachers to holistic student-developed articulations of quality. Rubrics are evaluated, mandated, embraced and resisted based on often imprecise and inconsistent understandings of the term. This paper provides a synthesis of the diversity of rubrics, and a framework for researchers and practitioners to be clearer about what they mean when they say ‘rubric’. Fourteen design elements or decision points are identified that make one rubric different from another. This framework subsumes previous attempts to categorise rubrics, and should provide more precision to rubric discussions and debate, as well as supporting more replicable research and practice. 

Dawson states 

The term ‘rubric’ has varying meanings, and evokes a range of responses from educators (Popham 1997). A secret scoring sheet, held by the teacher, and only revealed after student work has been marked, is a ‘rubric’. An articulation of the standards expected of essays in a particular faculty or department is a ‘rubric’. Rubrics can contain detailed grading logic, with numbers and even formulae; alternatively they can have no numbers, and be suggestive of broad quality levels (Sadler 2009a). One rubric may use generic quality words (e.g. ‘good’ or ‘below standard’), whereas another may explain in detail what quality looks like. Some rubrics eschew words in favour of graphics, ranging from emoji to samples of what work should look like for a particular criterion at a particular standard. Since the beginning of its use in education, ‘rubric’ has not been a particularly clear term: 

A couple of decades ago, rubric began to take on a new meaning among educators. Measurement specialists who scored students’ written compositions began to use the term to describe the rules that guided their scoring. They could have easily employed a more readily comprehensible descriptor, such as scoring guide, but scoring guide lacked adequate opacity. Rubric was a decisively more opaque, hence technically attractive, descriptor. (Popham 1997, 72)  

Opacity has not hindered the proliferation of research and writing around rubrics, particularly in the last two decades. Prior to 1997, the term ‘assessment rubric’ had been used in 83 scholarly papers and in 106 books (Google Books Ngram Viewer 2015; Google Scholar 2015). Since then, the term has steadily grown in use, and is now mentioned in hundreds of papers each year; Figure 1 shows the accumulation of research about rubrics since 1997. In 1997, the 100th paper mentioned ‘assessment rubrics’; in 2005 the 1000th paper mentioned the term; and sometime in 2013, the 5000th paper mentioning rubrics was published. A similar trend has existed in books, although data are only available up to 2008. ... 

To provide clarity through the opacity of the term, Popham’s (1997) seminal paper proposed that a rubric must have: evaluative criteria, quality definitions for those criteria at particular levels and a scoring strategy. Empirical work later in the 1990s found that few teachers shared Popham’s understanding, and in practice the term had a constellation of meanings (Wenzlaff, Fager, and Coleman 1999). 

The problem with the combination of conflated meanings and rapid proliferation of ‘rubric’ is that it has been mandated, evaluated and built into technology, often as if there was some sort of shared understanding. Some departments or institutions have adopted policies that mandate the use of a ‘rubric’ without providing a working definition of the term, leaving it open to a very diverse array of interpretations that may not be in the spirit the policy-makers intended. Researchers have conducted a range of evaluation studies about rubrics, but do not always give operational definitions of what the rubric looked like or how it was used. Learning management systems provide ‘rubric’ tools that each represent particular interpretations. Against this proliferation, everyday educators have developed enthusiasm or resistance towards rubrics based on what the term has come to mean in their context. This sort of ‘label naivety’ (Pawson 2006) is not particular to education, and is common to other social science phenomena as well. 

This article aims to provide a language to discuss rubrics. Rather than seek a homogenous definition for the term ‘rubric’, it provides a framework to map out the heterogeneity of potential rubric interventions. Some work has already been undertaken to provide a language to discuss rubrics. Jonsson and Svingby’s (2007) review of 75 studies identifies two classification dimensions: whether a rubric is analytic or holistic, and if it is generic or task-specific. Further distinctions can be drawn between teacher-created rubrics and those that are co-created with students (Reddy and Andrade 2010). Combining these terms provides greater specificity. An institutional policy might mandate holistic, task-specific, co-created rubrics. A technology tool could be developed to support analytic, task-specific, teacher-created rubrics. A research study might compare holistic, generic, teacher-created rubrics with holistic, task-specific, teacher-created rubrics. As an educator, I feel comfortable with holistic, task-specific, teacher-created rubrics, but less comfortable with other types. This article proposes that rubrics vary by at least 14 such dimensions, and provides a common language to discuss different types of rubrics. 

As this article’s focus is on making the opacity of rubrics transparent, some preliminary scoping and definition issues must be attended to. For the purposes of this article:

• A rubric is a tool used in the process of assessing student work that usually includes Popham’s (1997) three essential features: evaluative criteria, quality definitions for those criteria at particular levels and a scoring strategy. 

• A design element is a particular variable, choice or dimension that makes one sort of rubric different to another, for example, the specificity element is concerned with the differences between task-specific and generic rubrics 

• The framework proposed in this article is the combination of all of the design elements.

The entire rubric intervention is inside the scope of this framework, not just the physical artefact, for example, the decision to share a rubric with students is of interest and is included in the framework, even though this may not be written on the rubric. This article is limited in scope to the use of rubrics in the assessment process, and includes self, peer, teacher and exemplar assessment for formative and summative purposes. It does not consider rubric use for other purposes, such as the evaluation of teaching or diagnosis of disease.

Consensual Assault and Contract

The Tasmania Law Reform Institute Consensual Assault report discusses s 182(4) of the Criminal Code 1924 (Tas) and examines whether there is a need to reform the provision.

The report comments

Section 182(4) governs what is commonly known as ‘consensual assault’, which refers to circumstances where an assault has been committed but the victim has consented to the act in question. Due to the wide definition of assault, the situations where questions of consent can arise are quite varied, from mutually agreed brawls and sporting contests to some forms of sexual activity. 

Prosecutions of assaults and other serious offences of violence are commonplace in the criminal courts. As a rule, such cases involve a non- consenting victim. However, occasionally, cases involving a consenting ‘victim’ also make it to court. These are cases where the parties involved have willingly exchanged blows or inflicted violence upon each other, for example, where two individuals resort to a fist fight to resolve a disagreement. Section 182(4) of the Criminal Code sets out that where a person consents to an assault, then that assault will not be unlawful, save for certain circumstances where the Code sets out that consent will not be valid. 

This section poses difficulties for the criminal justice system and legal scholars alike. The language used is archaic and open to wide interpretation, and case law provides at times contradictory guidance. In the search for a principled distinction between lawful and unlawful consensual assault, courts and legislatures have been obliged to balance public policy justifications for refusing to condone violence regardless of consent against competing claims of personal autonomy. This has proved to be no easy task, particularly in Tasmania. 

This Final Report examines the current law on consensual assault in Tasmania which is contained in s 182(4) of the Criminal Code. It traces the history of this provision from its roots in the common law, and explains how successive common law authorities have informed the judicial interpretation of the provision. The Report contends that some aspects of s 182(4) lack clarity and do not reflect current concerns about when the law might appropriately negate consent to assault. It also expresses concern that the provision reflects an outmoded view of when consent should or should not operate as a defence to assault and leaves those who are particularly vulnerable to violence in the home outside the protection of the law.  The Report subsequently lays out a number of recommendations, attempting to strike an appropriate balance between respecting the personal liberty and autonomy of citizens and the public interest in preventing and condemning violence.

The Institute recommends

R1 s 182(4) of the Tasmanian Criminal Code 1924 should be reformed to modernise its operation and scope and to remove uncertainties as to its application and interpretation. 

R2  s 53(c) of the Tasmanian Criminal Code 1924 should be amended to modernise its language by deleting the phrase ‘maim injurious to the public’ and replacing it with ‘grievous bodily harm, disfigurement or a disabling injury’. S 182(4) should be amended to proscribe consent to assaults committed by adults in private in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults. 

R3   s 182(4) not be repealed but that instead it be reformed, with  s 2A amended to specify that a person does not freely agree to an act if that act occurs in circumstances of family violence within the meaning of the Family Violence Act 2004 (Tas). 

R4  s 182(4) should be amended to remove the conditions that currently abrogate consent to assault — that the assault be ‘otherwise unlawful’, ‘injurious to the public’ and ‘a breach of the peace’. Section 182(4) should be amended to provide that consent will not be a defence in respect of assaults committed by adults in private, where they occur in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; in respect of assaults committed in public, where they are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; or where the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted. For the sake of clarity, s 182(4) should also provide that nothing in that section is intended to deprive people of the ability to consent to medical and surgical treatment or of the ability to participate in sporting activities, ordinary rough play and lawful public entertainments.

R5 The Institute does not, at this stage, recommend amending the Family Violence Act 2004 (Tas) to make violent conduct engaged in in the presence of children a family violence offence. Such reform should only occur following a dedicated study that draws on the experience and views of a wide pool of stakeholders, a pool that includes a large number of advocates against, and experts in, family violence. 

With the 'Spanner' jurisprudence - eg R v Brown [1994] 1 AC 212 - in mind the Institute states

As it currently stands, consensual violence will be unlawful if the Crown proves that the assault is ‘injurious to the public’ (as well as each of the other requirements of s 182(4)). This does not mean that the Crown is required to establish that the activity is positively harmful, merely that it has no social utility.  However, this position, that private violence, which risks harm only to the consenting participants, must have positive social consequences if it is to escape penalisation, is by no means compelling. Arguably, the appropriate question for the court is not, ‘has the prosecution proved that the activity serves no beneficial social purpose’ but rather, ‘has the prosecution proved that the activity is positively harmful’.

It goes on to comment

It is the Institute’s position that s 182(4) should be amended to incorporate updated language, and to bring it into line with contemporary societal expectations. As discussed earlier in this Report, in addition to archaic wording, judicial construction has resulted in inconsistent interpretations of s 182(4). Proceeding from an understanding that s 182(4) does have a valid role to play in relation to consent to assault, it follows that it should work in all contexts where consent to assault may be a matter of concern, including in both the public and private spheres. At present, it is apparent that s 182(4) has a limited role, if any, to play in the private arena. This discrepancy should be resolved.

The Institute recommends against absolutely disallowing consent in family violence contexts. Such an approach is unjustifiably paternalistic, and would amount to the Code providing as a matter of law that all relationships involving family violence are inherently the same. Given the earlier discussion on the typologies of family violence, such a position is not tenable. Individual family circumstances differ significantly. Consequently, the possibility of consent in family violence scenarios not amounting to free agreement should be dealt with by reference to s 2A.

The Institute is mindful of the need to avoid abrogating consent to assault too broadly and capturing generally acceptable behaviour. For example, while the Institute agrees with submissions that the question of consent to assault between adults in private should largely be governed by s 2A of the Code, where such violence occurs before children, there is merit in abrogating consent under s 182(4) unless the assault is beneficial to the person assaulted in a way that goes beyond mere gratification of that person’s desire to participate in the assault. A reform couched in these terms will target the unacceptable quality of the violence (the fact that it is perpetrated in the presence of children) while avoiding criminalising acceptable conduct, such as sporting events, legitimate entertainment and beneficial personal contacts.

As explained earlier, the ‘otherwise unlawful’ requirement in s 182(4) creates a barrier to its operation in private contexts and is the main impediment to s 182(4) operating consistently in both the public and private spheres.

However, removal of this requirement may result in some conduct being criminalised when, perhaps, it should not be. An example would be consensual sadomasochistic sexual activity. To this end, the Institute suggests that any reform should avoid terms that are vague and open to widely varying interpretations which may enable biased or discriminatory views such as those evident in Brown’s Case to inform decisions about whether consent is lawful. Accordingly, the Institute takes the view that where there is genuine consent, that consent should be abrogated only where there is some aggravating circumstance that justifies the law intruding into the matter. For assaults in private, such a circumstance is supplied where the assault occurs in the presence of children and it is not performed for the benefit of the person assaulted, or otherwise than to gratify the combatants desire to participate in violent behaviour. The latter circumstance also supplies public fighting with an element of wrongfulness that might otherwise not exist where there is consent.

Accordingly, the approach recommended by the TLRI resembles that advocated by the Director of Public Prosecutions. However, the Institute suggests a slightly different reform for s 182(4). Where assaults between adults in private are concerned, the question of consent should be governed almost entirely by s 2A. There should be an exception where the assault occurs in the presence of children and it is of no benefit to the person assaulted beyond mere gratification of that person’s desire to participate in the assault. This approach avoids criminalising conduct of the kind that occurred in Brown’s Case as well as legitimate private sporting or entertainment activities. It also accords with submissions to the Institute that recommended that consent should be immaterial in relation to assaults committed in private in the presence of children. With regard to assaults in public places, the Institute suggests abrogating consent where the assault is of no benefit to the persons assaulted beyond mere gratification of their desire to participate in the assault. Again, this avoids criminalising sporting contacts, acceptable entertainment, and beneficial personal contacts. An example of the last might be where one person thumps another on the back during a coughing fit or performs Heimlich’s manoeuver to prevent someone choking. Additionally, the Institute agrees with the Director of Public Prosecutions that consent should be immaterial in relation to assaults perpetrated in public or private with the intention of causing serious non-beneficial personal injury. That intention also supplies an element of wrongfulness that might otherwise be absent where there is consent. If reformed according to these recommendations, s 182(4) might read:

Except in cases in which it is specially provided that consent cannot be given, or shall not be a defence, an assault is not unlawful if committed with the consent of the person assaulted, unless: 

(a) the assault is committed by an adult and occurs on private premises in the presence of a child or children and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or 

(b) the assault occurs in a public place and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or 

(c) the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted.

The Institute acknowledges that some kinds of rough play between children, and between children and their family members such as a son wrestling with his father, could potentially be criminalised by this reform despite such behaviour being understood to be acceptable and in some cases even beneficial to participants. It is not the Institute’s intention to extend the operation of the law of assault into this kind of play, and instead suggests that the risk of criminalisation is minimised. It may be the case that rough play is already covered by s 182(3) of the Code, in the sense that it constitutes part of normal human interaction. If this is not the case, the benefit element of the recommendation could reasonably preclude the criminalisation of rough play. The recommendation incorporates a test that assesses whether or not the act in question is of some benefit to the alleged victim, a test that could exclude rough play. If there were fears of an unintended operation of the provision, it would be open to have s 182(4) specify that rough but non-hostile play is excluded.

The Institute also recommends that for the sake of clarity, it may be wise to provide that nothing in s 182(4) is intended to deprive people of the ability to consent to medical and surgical treatment or to participate in sporting activity and lawful public entertainment.

The ultimate purpose of this reform is modernisation and consistency. It seeks to eliminate archaic language, but also seeks to eliminate the disparity between public and private assaults in the current consensual assault scheme. By introducing a new test that is common between public and private spheres, the recommendation will essentially close the gap and create more predictable outcomes in cases. Further, the reform is intended to provide a means of addressing children being exposed to unacceptable violence, even where the participants allegedly consent to that violence.

'Nonbinding Bondage' in (2014) 128(2) Harvard Law Review 713-734 comments

To the shock of critics, Fifty Shades of Grey has become a cultural phenomenon, sweeping from fan-fiction websites to bestseller lists and garnering a multimillion-dollar movie deal. In the narrative that has spawned over a hundred million copies, a nalve female coed sparks the interest of a handsome magnate who takes the heroine (and ideally the reader) on a journey of sexual awakening. The hero, a self-described "Dominant," introduces the virginal heroine not only to sex but to the practice of BDSM, a compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism. From his "Red Room of Pain," filled with "ropes, chains, and glinting shackles,' the hero shows the heroine how to be a "Submissive," experiencing sexual pleasure by yielding to acts of domination and control within the bounds of a negotiated contract. 

More than sex with some handcuffs thrown in, BDSM takes part in a broader project4 that seeks to expose and investigate the ways in which sexual desire and experience reflect and construct systems of power. By performing sexual acts through scripts of subjugation, discipline, and punishment, participants recognize and revel in sex as a practice replete with inequality, ambiguity, and shame, blurring the lines society purports to maintain between pleasure and pain, fulfillment and frustration. BDSM's seeming rejection of equality as a predicate to good sex has made the practice a particularly provocative one, attracting heavy criticism from many who see in BDSM a haven for sexual victimization and exploitation. More famously, the way in which this commitment to exploring power has been effected through physical punishment and nonconsent has historically rendered BDSM an object of controversy and scorn. 

The rise of Fifty Shades of Grey, however, points to a sea change in to a sea change in attitudes toward BDSM. The erotic novel has not only exposed vast popular interest in "kinky sex" - so vast the adaptation is expected to become the biggest film of 2015 - but has raised the critical profile of BDSM, bringing commentators to look more closely at the practice and significance of such "transgressive" sex. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure. A mere handful of cases and articles address the legal questions posed by BDSM, and these generally confront the practice at its most extreme, asking whether "victims" can consent to violence. Acts, like those in Fifty Shades of Grey, involving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant. If law has been slow to recognize mainstream BDSM, however, BDSM has not forgotten law. 

Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract. Lifestyle guides encourage the use of BDSM contracts, which employ contract forms to set limits and rules of play for BDSM sex. These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part of BDSM practice. Indeed, the contract's popularity is evidenced by its very inclusion in Fifty Shades of Grey, as E L James not only references such an agreement but takes pages away from erotic play to depict the couple's negotiations and to reprint in full the draft contract, complete with twenty-one different sets of terms, and the parties' enumerated objections and amendments. 

Though popular, these contracts represent functionally extralegal documents, as BDSM contractors have yet to bring a contractual dispute to court and, indeed, often expressly draft the contracts in the belief that they are legally unenforceable. However, this seeming "illegality" stands to make these contracts more, not less, interesting to the legal academic: the very existence of such contracts in the absence of expected enforcement suggests an interaction between law and BDSM that goes beyond the functional, providing unique access to the practice's conceptual foundations. 

Turning to these foundations, this Note explores why BDSM contracts persist in the absence of enforcement by investigating theoretical advantages contract offers the practice of BDSM. By raising the spe ter of contract, BDSM participants may be seeking to mitigate the most criticized dynamics of their relationships as they become increasingly mainstream: the injection of contract law, with its emphasis on equality, consent, and consideration, works to quell concerns over BDSM's seeming commitment to inequality and one-sidedness, thereby rendering BDSM fairer, safer, and more understandable. Yet just as BDSM seeks to expose sex's dark depths, so too may it work to expose a dark underbelly to contract: a closer look at these theories and practices suggests their interaction may in fact heighten rather than dilute the aims of BDSM, operating through paradox and contradiction to further complicate our understanding of desire, power, and equality. 

This Note proceeds in four parts. First, Part I provides a primer on BDSM and BDSM contracts. Part II considers the extrajudicial use of these contracts, examining areas of conceptual unease in BDSM that contract stands to mitigate: namely, contract law enables assumptions about fairness in exchange and the knowability of interests that BDSM may be seeking to incorporate. Part III then reconsiders this seemingly antagonistic relationship, suggesting ways in which contract principles may correspond to or even elevate those of BDSM, creating a critical dialectic. Part IV concludes by briefly exploring contractual BDSM's implications for regulation of sex and other "private" subjects, pointing to ways in which study of liminal legal spaces can help illuminate and problematize conceptions of sex, power, and law. ... 

BDSM stands for a wide range of sexual acts and experiences, incorporating everything from light bondage to "edgeplay" involving fire or cutting.  As noted earlier,  the extensiveness and diversity of the practice make broad description difficult, but a few themes recur: BDSM relationships operate through constructed scenes, forms of roleplay, and acts of control and discipline. Above all, BDSM acts, scenes, and relationships ask parties to inhabit positions of power imbalance. A "subculture organized primarily around the symbolic exercise of social risk,"  BDSM has committed itself to the exploration and performance of power. BDSM recognizes that sex cannot be divorced from power or the risks that attend power dynamics; rather, accepting that "[i]t is precisely the proximity to danger, the lure of prohibition, the seamy side of shame that creates the heat" of sexual desire, BDSM seeks to cultivate pleasure by fostering sex overtly based on mastery and punishment. As one scholar has encapsulated, "there's an element of domination or submission or pain involved in almost any sexual interaction. What [BDSM] does is take these elements of eroticism further toward their extreme" by explicitly casting (good) sex as staged scenes of power and control.  Devoted to openly acknowledging and appreciating sex as an act of domination and submission, BDSM engages in a radical honesty about sexual power. 

This commitment to exposing and enjoying sex-as-power makes BDSM a useful centerpiece for broader debates about sex and sexuality. In legal literature, however, the debate over BDSM has primarily operated through the flashpoint of pain and consent. Reducing BDSM to "sadomasochism," the cases of note analyzing BDSM assume the practice's inherent harmfulness and ask to what extent law should therefore punish it, imposing criminal and civil penalties even in the face of consent.  Legal scholarship has generally followed suit, focusing on whether consensual but harm-inflicting sex should be criminal given legal acceptance of consent to harm in sports and body modification.  The law's relationship to noncriminal or nonviolent sexual domination remains largely unexplored. 

B. BDSM Contracts 

This Note examines one particular - and particularly blatant - intersection of BDSM and law: BDSM contracts. These agreements between a "sub" (submissive) and "dom" (dominant) set terms on subjects such as the duration of the relationship or the hygienic or sartorial requirements of the parties. Most importantly, the contracts set "limits" conscribing acceptable types of play and "safe words" to release participants from the sexual scene. In their efforts to foster exploration of pleasure, promote safety, and emphasize the mutual nature of the sex, BDSM contracts form an emblematic part of the BDSM community's central commitment to "safe, sane and consensual" sex  - so much so that many lifestyle guides recommend them, even providing mock contracts that can be personalized for easy use. These contracts import not only contract's title but also its legal norms, as they are framed to mirror standard contracts and (at least superficially) conform to basic principles of contract law. For instance, they contain sections for both dom and sub to underscore that, despite the seeming one-sidedness of the relationship, each party receives benefits and suffers restrictions, affording the consideration necessary for legal contract formation. Some contracts discuss dispute resolution, specifying forms of redress in case of breach. And, of course, most contractors use "legalese," some even witnessing and notarizing the documents, to give the contract the full imprimatur of legality. Nevertheless, as many BDSM sites note, these contracts are not expected to be enforced in a court of law. Perhaps absorbing the law's longstanding unwillingness to mix matters of the bedroom with matters of the court and its broad prohibition of contracts involving sex, practitioners seemingly either do not intend or do not ask for contractual enforcement. Notably, one finds no litigation of BDSM contracts, even though breaches with no direct link to sex - such as, say, a vio lated obligation to keep the relationship in a physical location or to provide specified food and clothing - could well warrant legal redress, and, indeed, many contractors expressly declare the contract's unenforceability while drafting or proposing it. Where the contracts do show up in court documents, it is generally not because the state is enforcing their promises but because the state is punishing the promisors under the aegis of criminal or tortious wrongdoing. Thus, practitioners' efforts to create legal terms for their relationships will likely never be judicially sanctioned or assessed.

'Sex-Positive Law' by Margo Kaplan in (2014) 89(1) New York University Law Review 89-164 comments

 Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite - that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship. This Article exposes and challenges the law's unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for "sex-positive" law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

Kaplan argues

Sexual pleasure is a good thing. It is a valuable source of happiness and personal fulfillment.' Yet several areas of law central to how we experience sex and sexual pleasure assume just the opposite - that sexual pleasure in itself has negligible value and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship. 

This Article exposes and challenges the law's unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this unfounded assumption requires us to reconceptualize several areas of law. Legal regulation generally sacri- fices our freedom to engage in certain activities because the activities result in harm or regulation generates benefits. The devaluation of sexual pleasure distorts this calculus. It has created First Amendment law founded on a dubious sexual-nonsexual dichotomy; criminal law that inconsistently respects consent and autonomy in a way that marginalizes sexual pleasure; and a constitutional jurisprudence that premises the protection of sexual activity solely on its contribution to other goals deemed more acceptable. A "sex-positive" approach that values sexual pleasure in itself requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for these choices. The assumption that sexual pleasure in itself has negligible or negative value is largely unexamined and unchallenged in legal scholarship. While a few scholars have called for a fuller accounting of sexual pleasure in the law, most scholarship either implicitly or explicitly relies on this assumption or ignores it. Legal scholarship lacks a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. There is no framework for understanding what law that acknowledges the value of sexual pleasure might look like. This failure compromises several areas of law and legal discourse because the assumption that sexual pleasure is of negligible or negative value is, at best, highly questionable. 

This Article challenges the sex-negative assumptions that distort legal discourse. It analyzes how the law must change significantly if we accept the common-sense assumption that sexual pleasure is intrinsically valuable. It examines what "sex-positive" law-law that accepts the value of sexual pleasure-would look like and the new questions it would raise. While this analysis has profound implications for several areas of law, this Article focuses on three specific areas: (1) obscenity law; (2) the criminalization of injury inflicted consensually for sexual pleasure; and (3) constitutional law pertaining to sexual freedom. Discounting sexual pleasure is particularly problematic in these areas because they regulate behaviors central to the experience of sexual pleasure. Accepting the premise that sexual pleasure has intrinsic value challenges the organizing principles of these areas of law and requires us to reexamine our approach to them. 

Obscenity law relies on the presumption that offensive, sexually arousing materials are of so little value that the state may ban them unless they have serious literary, artistic, political, or scientific value. This framework distinguishes sexually explicit material primarily intended to arouse as uniquely lacking in First Amendment protection. While First Amendment scholarship sometimes acknowledges obscenity law's implicit assumption that sexual arousal is of uniquely negligible value, this unfounded assumption has generally gone unchallenged. Rejecting this assumption encourages a more honest discussion of what the true goals of speech regulation should be and how to further those goals when we regulate sexual, offensive, violent, and other potentially objectionable speech. 

Similarly, the criminalization of injury inflicted in the context of consensual sadomasochistic sexual practices (BDSM) stands in stark contrast to criminal law's permissive stance toward risky or injurious activities such as sports. This Article analyzes the law of consent to injury in several contexts and concludes that BDSM is far more like permitted activities, such as sports and cosmetic surgery, than other prohibited activities, such as gang initiation or street fighting. It argues that the most convincing explanation for why BDSM receives no consent defense is that legislatures and courts fail to value its goal of sexual pleasure in the same way they value the pleasure derived from activities such as sports. This failure inappropriately distorts the costs and benefits of allowing consent to injury in the context of BDSM and other pleasurable pursuits. Valuing sexual pleasure improves the discourse on what injury the law should permit individuals to consent to for pleasure, sexual or otherwise. 

The third legal realm this Article examines, constitutional law pertaining to sexual freedom, may seem like an odd choice given constitutional law's apparently strong legal protections for sex. A closer analysis of Supreme Court jurisprudence reveals that this case law values sexual pleasure only to the extent that it furthers goals such as marriage, procreation, and intimate relationships." The value of sexual pleasure in itself is strangely absent from this jurisprudence. Even Lawrence v. Texas focuses on how intimate relationships transform mere sexual pleasure into something worthy of constitutional protection, leaving sexual activity that does not occur within these types of relationships vulnerable to regulation. Valuing sexual pleasure for its own sake undermines the morality-based arguments for limiting sexual activity that persist after Lawrence. This Article explores the implications of this in the context of sex toy regulation, an issue that has prompted a circuit split in the wake of Lawrence. 

Part I of this Article provides a definitional framework and argues that sexual pleasure has intrinsic value just as other pleasures have intrinsic value. Part II argues that the law counterintuitively fails to value sexual pleasure for its own sake and instead often assumes that sexual pleasure has uniquely negligible or negative value. Rejecting this assumption undermines the foundation of several areas of law and requires that lawmakers, courts, and scholars rethink our approach to them. Part III begins this process by examining what sex- positive law would look like and the new questions it raises for these and other areas of law.

Blockchain

'Legal Engineering on the Blockchain: ‘Smart Contracts’ as Legal Conduct' by Jake Goldenfein and Andrea Leiter in (2018) Law and Critique comments

A new legal field is emerging around blockchain platforms and automated transactions. Understanding the relationships between law, legal enforcement, and these technological systems has become critical for scaling blockchain applications. Because ‘smart contracts’ do not themselves constitute agreements, the first necessary ‘legal’ development for transacting with these technologies involves linking computational transactions to natural language contracts. Various groups have accordingly begun building libraries of machine readable transaction modules that correspond to natural language contracting elements. In doing so, they are creating the building blocks for ever more complex transactions that will ultimately define the entire envelope of computational legal conduct in these environments, and likely standardise the field. However, also critical to emerging blockchain ‘legalities’, is the capacity for dispute resolution and legal enforcement. Beyond the performance of parties, or the quality of goods and services transacted, new mechanisms are also needed to address the performance of the computational transaction systems themselves. These are necessary to address the reality that smart contracts cannot be forced to perform actions beyond the parameters of their coding, even by a judicial order. Legal tools, both technological and institutional, are thus being developed to ‘soften’ the effects of self-executing transactions. In this article we treat these developments as law-making practices that are constitutive of an emerging legal field. Legal engineering exercises of this kind are not novel, and by drawing on historic examples from the common law and international arbitration, we gain insights into the competitive dynamics likely to be shaping legal engagements on the blockchain.

Speech, Fake News and False CV Statements

'Free Speech is a Triangle' by Jack Balkin in (2018) Columbia Law Review comments

The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.

The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation states and the European Union. On the second corner are privately-owned Internet infrastructure companies, including social media companies, search engines, broadband providers, and electronic payment systems. On the third corner are many different kinds of speakers, legacy media, civil society organizations, hackers, and trolls.

Territorial goverments continue to regulate speakers and legacy media through traditional or "old-school" speech regulation. But nation states and the European Union also now employ "new-school" speech regulation that is aimed at Internet infrastructure owners and designed to get these private companies to surveil, censor, and regulate speakers for them. Finally, infrastructure companies like Facebook also regulate and govern speakers through techniques of private governance and surveillance.

The practical ability to speak in the digital world emerges from the struggle for power between these various forces, with old-school, new-school and private regulation directed at speakers, and both nation states and civil society organizations pressuring infrastructure owners to regulate speech.

If the characteristic feature of free speech regulation in our time is a triangle that combines new school speech regulation with private governance, then the best way to protect free speech values today is to combat and compensate for that triangle’s evolving logic of public and private regulation. The first goal is to prevent or ameliorate as much as possible collateral censorship and new forms of digital prior restraint. The second goal is to protect people from new methods of digital surveillance and manipulation—methods that emerged from the rise of large multinational companies that depend on data collection, surveillance, analysis, control, and distribution of personal data.

This essay describes how nation states should and should not regulate the digital infrastructure consistent with the values of freedom of speech and press; it emphasizes that different models of regulation are appropriate for different parts of the digital infrastructure. Some parts of the digital infrastructure are best regulated along the lines of common carriers or places of public accommodation. But governments should not impose First Amendment-style or common carriage obligations on social media and search engines. Rather, governments should require these companies to provide due process toward their end-users. Governments should also treat these companies as information fiduciaries who have duties of good faith and non-manipulation toward their end-users. Governments can implement all of these reforms—properly designed—consistent with constitutional guarantees of free speech and free press.

In Western Australia the Legislative Assembly's Procedure and Privileges Committee has made a damning 161 page report - Misleading the House: Statements Made by the Member for Darling Range - regarding Barry Urban MP.

The report recommends that Urban be expelled from Parliament for recurrently lying about his past, including provision of a forged testamur to the committee.

His unproven claims include

• holding a BA (Hons) Physical Education and Applied Social Science degree from the University of Leeds
• holding a Certificate of Higher Education in Policing from the University of Portsmouth
• having completed nine out of 10 modules of a Diploma of Local Government
• having  served with the United Nations mission in Bosnia (providing security for war crimes investigators) while seconded from West Midlands Police in 1998 
• having received and being entitled to wear a UK service medal

'The spread of true and false news online' by Soroush Vosoughi, Deb Roy and Sinan Aral in (2018) 359(6380) Science 1146-1151 comments 

Lies spread faster than the truth. There is worldwide concern over false news and the possibility that it can influence political, economic, and social well-being. To understand how false news spreads, Vosoughi et al. used a data set of rumor cascades on Twitter from 2006 to 2017. About 126,000 rumors were spread by ∼3 million people. False news reached more people than the truth; the top 1% of false news cascades diffused to between 1000 and 100,000 people, whereas the truth rarely diffused to more than 1000 people. Falsehood also diffused faster than the truth. The degree of novelty and the emotional reactions of recipients may be responsible for the differences observed. 

 

We investigated the differential diffusion of all of the verified true and false news stories distributed on Twitter from 2006 to 2017. The data comprise ~126,000 stories tweeted by ~3 million people more than 4.5 million times. We classified news as true or false using information from six independent fact-checking organizations that exhibited 95 to 98% agreement on the classifications. Falsehood diffused significantly farther, faster, deeper, and more broadly than the truth in all categories of information, and the effects were more pronounced for false political news than for false news about terrorism, natural disasters, science, urban legends, or financial information. We found that false news was more novel than true news, which suggests that people were more likely to share novel information. Whereas false stories inspired fear, disgust, and surprise in replies, true stories inspired anticipation, sadness, joy, and trust. Contrary to conventional wisdom, robots accelerated the spread of true and false news at the same rate, implying that false news spreads more than the truth because humans, not robots, are more likely to spread it. 

 

Foundational theories of decision-making (1–3), cooperation (4), communication (5), and markets (6) all view some conceptualization of truth or accuracy as central to the functioning of nearly every human endeavor. Yet, both true and false information spreads rapidly through online media. Defining what is true and false has become a common political strategy, replacing debates based on a mutually agreed on set of facts. Our economies are not immune to the spread of falsity either. False rumors have affected stock prices and the motivation for large-scale investments, for example, wiping out $130 billion in stock value after a false tweet claimed that Barack Obama was injured in an explosion (7). Indeed, our responses to everything from natural disasters (8, 9) to terrorist attacks (10) have been disrupted by the spread of false news online. 

 

New social technologies, which facilitate rapid information sharing and large-scale information cascades, can enable the spread of misinformation (i.e., information that is inaccurate or misleading). But although more and more of our access to information and news is guided by these new technologies (11), we know little about their contribution to the spread of falsity online. Though considerable attention has been paid to anecdotal analyses of the spread of false news by the media (12), there are few large-scale empirical investigations of the diffusion of misinformation or its social origins. Studies of the spread of misinformation are currently limited to analyses of small, ad hoc samples that ignore two of the most important scientific questions: How do truth and falsity diffuse differently, and what factors of human judgment explain these differences? 

 

Current work analyzes the spread of single rumors, like the discovery of the Higgs boson (13) or the Haitian earthquake of 2010 (14), and multiple rumors from a single disaster event, like the Boston Marathon bombing of 2013 (10), or it develops theoretical models of rumor diffusion (15), methods for rumor detection (16), credibility evaluation (17, 18), or interventions to curtail the spread of rumors (19). But almost no studies comprehensively evaluate differences in the spread of truth and falsity across topics or examine why false news may spread differently than the truth. For example, although Del Vicario et al. (20) and Bessi et al. (21) studied the spread of scientific and conspiracy-theory stories, they did not evaluate their veracity. Scientific and conspiracy-theory stories can both be either true or false, and they differ on stylistic dimensions that are important to their spread but orthogonal to their veracity. To understand the spread of false news, it is necessary to examine diffusion after differentiating true and false scientific stories and true and false conspiracy-theory stories and controlling for the topical and stylistic differences between the categories themselves. The only study to date that segments rumors by veracity is that of Friggeri et al. (19), who analyzed ~4000 rumors spreading on Facebook and focused more on how fact checking affects rumor propagation than on how falsity diffuses differently than the truth (22). 

 

In our current political climate and in the academic literature, a fluid terminology has arisen around “fake news,” foreign interventions in U.S. politics through social media, and our understanding of what constitutes news, fake news, false news, rumors, rumor cascades, and other related terms. Although, at one time, it may have been appropriate to think of fake news as referring to the veracity of a news story, we now believe that this phrase has been irredeemably polarized in our current political and media climate. As politicians have implemented a political strategy of labeling news sources that do not support their positions as unreliable or fake news, whereas sources that support their positions are labeled reliable or not fake, the term has lost all connection to the actual veracity of the information presented, rendering it meaningless for use in academic classification. We have therefore explicitly avoided the term fake news throughout this paper and instead use the more objectively verifiable terms “true” or “false” news. Although the terms fake news and misinformation also imply a willful distortion of the truth, we do not make any claims about the intent of the purveyors of the information in our analyses. We instead focus our attention on veracity and stories that have been verified as true or false. 

 

We also purposefully adopt a broad definition of the term news. Rather than defining what constitutes news on the basis of the institutional source of the assertions in a story, we refer to any asserted claim made on Twitter as news (we defend this decision in the supplementary materials section on “reliable sources,” section S1.2). We define news as any story or claim with an assertion in it and a rumor as the social phenomena of a news story or claim spreading or diffusing through the Twitter network. That is, rumors are inherently social and involve the sharing of claims between people. News, on the other hand, is an assertion with claims, whether it is shared or not. 

 

A rumor cascade begins on Twitter when a user makes an assertion about a topic in a tweet, which could include written text, photos, or links to articles online. Others then propagate the rumor by retweeting it. A rumor’s diffusion process can be characterized as having one or more cascades, which we define as instances of a rumor-spreading pattern that exhibit an unbroken retweet chain with a common, singular origin. For example, an individual could start a rumor cascade by tweeting a story or claim with an assertion in it, and another individual could independently start a second cascade of the same rumor (pertaining to the same story or claim) that is completely independent of the first cascade, except that it pertains to the same story or claim. If they remain independent, they represent two cascades of the same rumor. Cascades can be as small as size one (meaning no one retweeted the original tweet). The number of cascades that make up a rumor is equal to the number of times the story or claim was independently tweeted by a user (not retweeted). So, if a rumor “A” is tweeted by 10 people separately, but not retweeted, it would have 10 cascades, each of size one. Conversely, if a second rumor “B” is independently tweeted by two people and each of those two tweets is retweeted 100 times, the rumor would consist of two cascades, each of size 100. 

 

Here we investigate the differential diffusion of true, false, and mixed (partially true, partially false) news stories using a comprehensive data set of all of the fact-checked rumor cascades that spread on Twitter from its inception in 2006 to 2017. The data include ~126,000 rumor cascades spread by ~3 million people more than 4.5 million times. We sampled all rumor cascades investigated by six independent fact-checking organizations (snopes.com, politifact.com, factcheck.org, truthorfiction.com, hoax-slayer.com, and urbanlegends.about.com) by parsing the title, body, and verdict (true, false, or mixed) of each rumor investigation reported on their websites and automatically collecting the cascades corresponding to those rumors on Twitter. The result was a sample of rumor cascades whose veracity had been agreed on by these organizations between 95 and 98% of the time. We cataloged the diffusion of the rumor cascades by collecting all English-language replies to tweets that contained a link to any of the aforementioned websites from 2006 to 2017 and used optical character recognition to extract text from images where needed. For each reply tweet, we extracted the original tweet being replied to and all the retweets of the original tweet. Each retweet cascade represents a rumor propagating on Twitter that has been verified as true or false by the fact-checking organizations (see the supplementary materials for more details on cascade construction). We then quantified the cascades’ depth (the number of retweet hops from the origin tweet over time, where a hop is a retweet by a new unique user), size (the number of users involved in the cascade over time), maximum breadth (the maximum number of users involved in the cascade at any depth), and structural virality (23) (a measure that interpolates between content spread through a single, large broadcast and that which spreads through multiple generations, with any one individual directly responsible for only a fraction of the total spread) (see the supplementary materials for more detail on the measurement of rumor diffusion). 

 

As a rumor is retweeted, the depth, size, maximum breadth, and structural virality of the cascade increase (Fig. 1A). A greater fraction of false rumors experienced between 1 and 1000 cascades, whereas a greater fraction of true rumors experienced more than 1000 cascades (Fig. 1B); this was also true for rumors based on political news (Fig. 1D). The total number of false rumors peaked at the end of both 2013 and 2015 and again at the end of 2016, corresponding to the last U.S. presidential election (Fig. 1C). The data also show clear increases in the total number of false political rumors during the 2012 and 2016 U.S. presidential elections (Fig. 1E) and a spike in rumors that contained partially true and partially false information during the Russian annexation of Crimea in 2014 (Fig. 1E). Politics was the largest rumor category in our data, with ~45,000 cascades, followed by urban legends, business, terrorism, science, entertainment, and natural disasters (Fig. 1F). 

 

When we analyzed the diffusion dynamics of true and false rumors, we found that falsehood diffused significantly farther, faster, deeper, and more broadly than the truth in all categories of information [Kolmogorov-Smirnov (K-S) tests are reported in tables S3 to S10]. A significantly greater fraction of false cascades than true cascades exceeded a depth of 10, and the top 0.01% of false cascades diffused eight hops deeper into the Twittersphere than the truth, diffusing to depths greater than 19 hops from the origin tweet (Fig. 2A). Falsehood also reached far more people than the truth. Whereas the truth rarely diffused to more than 1000 people, the top 1% of false-news cascades routinely diffused to between 1000 and 100,000 people (Fig. 2B). Falsehood reached more people at every depth of a cascade than the truth, meaning that many more people retweeted falsehood than they did the truth (Fig. 2C). The spread of falsehood was aided by its virality, meaning that falsehood did not simply spread through broadcast dynamics but rather through peer-to-peer diffusion characterized by a viral branching process (Fig. 2D). 

 

It took the truth about six times as long as falsehood to reach 1500 people (Fig. 2F) and 20 times as long as falsehood to reach a cascade depth of 10 (Fig. 2E). As the truth never diffused beyond a depth of 10, we saw that falsehood reached a depth of 19 nearly 10 times faster than the truth reached a depth of 10 (Fig. 2E). Falsehood also diffused significantly more broadly (Fig. 2H) and was retweeted by more unique users than the truth at every cascade depth (Fig. 2G). 

 

False political news (Fig. 1D) traveled deeper (Fig. 3A) and more broadly (Fig. 3C), reached more people (Fig. 3B), and was more viral than any other category of false information (Fig. 3D). False political news also diffused deeper more quickly (Fig. 3E) and reached more than 20,000 people nearly three times faster than all other types of false news reached 10,000 people (Fig. 3F). Although the other categories of false news reached about the same number of unique users at depths between 1 and 10, false political news routinely reached the most unique users at depths greater than 10 (Fig. 3G). Although all other categories of false news traveled slightly more broadly at shallower depths, false political news traveled more broadly at greater depths, indicating that more-popular false political news items exhibited broader and more-accelerated diffusion dynamics (Fig. 3H). Analysis of all news categories showed that news about politics, urban legends, and science spread to the most people, whereas news about politics and urban legends spread the fastest and were the most viral in terms of their structural virality (see fig. S11 for detailed comparisons across all topics). 

 

One might suspect that structural elements of the network or individual characteristics of the users involved in the cascades explain why falsity travels with greater velocity than the truth. Perhaps those who spread falsity “followed” more people, had more followers, tweeted more often, were more often “verified” users, or had been on Twitter longer. But when we compared users involved in true and false rumor cascades, we found that the opposite was true in every case. Users who spread false news had significantly fewer followers (K-S test = 0.104, P ~ 0.0), followed significantly fewer people (K-S test = 0.136, P ~ 0.0), were significantly less active on Twitter (K-S test = 0.054, P ~ 0.0), were verified significantly less often (K-S test = 0.004, P < 0.001), and had been on Twitter for significantly less time (K-S test = 0.125, P ~ 0.0) (Fig. 4A). Falsehood diffused farther and faster than the truth despite these differences, not because of them.h

Propertisation

'What We Don’t See When We See Copyright as Property' (University of Michigan Law and Econ Research Paper No 18-014) by Jessica Litman comments

It is becoming increasingly clear that the supposed copyright wars that copyright scholars believed we were fighting – nominally pitting the interests of authors and creators against the interests of readers and other members of the audience – were never really about that at all. Instead the real conflict has been between the publishers, record labels, movie studios, and other intermediaries who rose to market dominance in the 20th century, and the digital services and platforms that have become increasingly powerful copyright players in the 21st. In this essay, adapted from the 13th annual University of Cambridge Center for Intellectual Property and Information Law International Intellectual Property Lecture, I argue that it would make good sense for at least some of us to leave the fight between 20th century publishers and 21st century platforms to the many lawyers that represent both sides, and to focus on some of the issues that aren’t as likely to attract their attention. While copyright scholars have been writing about whether authors’ interests or readers’ interests should be paramount, we’ve missed the opportunity to look more closely at the issues that the copyright wars obscured. Here is one: For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximize their own revenue while shrinking their payouts to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.