GTLDs

Everything Old Is New Again: Does the '.sucks' gTLD Change the Regulatory Paradigm in North America?' by Jacqueline D. Lipton in (2019) 80 University of Pittsburgh Law Review comments

 In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with a number of countries and others opposing the application. Nevertheless, ICANN granted the rights to a Canadian company, Vox Populi, which has subsequently made a splash in the domain name market offering a variety of pricing levels for different “.sucks” domain names. Complaints have been made to Industry Canada about the activities of Vox Populi in the domain name space, but, so far, the Canadian government has bowed out of involvement in the issue. This Article explores the way that the new gTLDs in general, and the “.sucks” domain name in particular, have affected the landscape for domain name regulation with a particular focus on North America.

AI Authors and Fiduciaries

'The Death of the AI Author' by Carys J. Craig and Ian R. Kerr comments 

Much of the second-generation literature on AI and authorship asks whether an increasing sophistication and independence of generative code should cause us to rethink embedded assumptions about the meaning of authorship, arguing that recognizing the authored nature of AI-generated works may require a less profound doctrinal leap than has historically been suggested. In this essay, we argue that the threshold for authorship does not depend on the evolution or state of the art in AI or robotics. Instead, we contend that the very notion of AI-authorship rests on a category mistake: it is not an error about the current or potential capacities, capabilities, intelligence or sophistication of machines; rather it is an error about the ontology of authorship. 

Building on the established critique of the romantic author figure, we argue that the death of the romantic author also and equally entails the death of the AI author. We provide a theoretical account of authorship that demonstrates why claims of AI authorship do not make sense in terms of 'the realities of the world in which the problem exists.' (Samuelson, 1985) Those realities, we argue, must push us past bare doctrinal or utilitarian considerations of originality, assessed in terms of what an author must do. Instead, what they demand is an ontological consideration of what an author must be. The ontological question, we suggest, requires an account of authorship that is relational; it necessitates a vision of authorship as a dialogic and communicative act that is inherently social, with the cultivation of selfhood and social relations as the entire point of the practice. Of course, this ontological inquiry into the plausibility of AI-authorship transcends copyright law and its particular doctrinal conundrums, going to the normative core of how law should — and should not — think about robots and AI, and their role in human relations.

In a different turn 'Are Literary Agents (Really) Fiduciaries?' by Jacqueline Lipton in (2019) 86 Tennessee Law Review comments 

2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her ex-client, international best-selling author, Kate Morton (The Lake House, The Shifting Fog). 

These are not the only literary agent scandals that have rocked the publishing world in recent years. However, litigation involving these agents is the exception rather than the rule, possibly because of a lack of knowledge by many authors, even famous authors, of their legal rights, or because the money made (or lost) by a number of authors isn’t worth the costs of litigation. The lack of legal precedent on the literary agent/author relationship can also lead to confusion about what the legal rights between the two parties entail. 

This article analyzes the existing case law in the area, with a particular emphasis on teasing out the nature of fiduciary, contractual, and tortious duties owed by agents to authors. Recent cases suggest that, although literary agents are unquestionably fiduciaries, this characterization is of little practical importance, and that most of the obligations owed by agents to authors can more easily be explained and addressed as a matter of contract and tort law. To the extent that fiduciary duties have any significant work to do here, it seems to be in the “effective communication” area rather than in the more fundamental aspects of the relationship, like making deals and promoting the financial and reputational interests of the author.

Derrida, Agamben & Co

'Derrida's Legal Times: Decision, Declaration, Deferral, and Event' by Bernadette Meyler in Peter Goodrich and Michel Rosenfeld (eds.) Administering Interpretation: Derrida, Agamben, and the Political Theology of Law (Fordham University Press, 2019)) comments

 To the extent that European critical theory influenced the American legal academy, it has tended to be Michel Foucault and, more recently, Giorgio Agamben, who have affected discussions of the connection between law and politics and the power dynamics at the heart of the juridical. Jacques Derrida’s essay “The Force of Law” spawned some commentary, but Derrida’s work largely entered legal circles due to its emphasis on the indeterminacy of language and its inversion of binaries, which legal scholars took as a source for ideology critique. 

The aim of this essay is to suggest what Derrida’s later forays into law and politics might contribute to thinking in American legal theory beyond what can be derived from Foucault and his inheritors. The key differences, I contend, pertain to time. In particular, Derrida’s writings lead us to reconsider the timing of the relation between the subject and the law, whether that subject is declaring independence or awaiting death. Four temporally inflected terms — decision, declaration, deferral, and event—bear a particular weight in Derrida’s discussions of the juridico-political and furnish the focal points for this essay.

'The Law Review Article' by Pierre Schlag in (2017) 88 University of Colorado Law Review states 

What is a law review article? Does America know? How might we help America in this regard? Here, we approach the first question on the bias: As we have found, a growing body of learning and empirical evidence shows that genres are not merely forms, but forms that anticipate their substance. In this Article, then, we try to capture this action by undertaking the first and only comprehensive “performative study” of the genre of the law review article. 

Drawing upon methodological advances and new learning far beyond anything thought previously possible, we investigate “the law review article” qua genre. What is it? What does it do? What are its implications? How does it make you feel? 

By teasing out the infrastructural determinations section by section, we demonstrate rigorously that there is both far more (and far less) going on than meets the eye. In what is the first instance in the history of the United States (and perhaps the world) we enact in each section of the law review article (e.g., Part I, Part II) whatever that section is ideally supposed to accomplish. This is what we mean by “performative study.” Using this approach, the reader can experience first-hand what the law review article does to him or her IRL. In a more conventional vein, it is hoped that this Article will be useful to junior legal scholars, young scholars’ workshops, elite law school boot camps, faculty evaluation committees, associate deans for research, law review editors, and law school deans everywhere. 

The Article closes with a call for improvements to the law review genre, cooperative federalism, daylight savings time, and the nature of the universe generally. The Article is addressed not merely to the Court, but to the President, to Congress, and, of course, to “We the People.” Perhaps more than anything, we call for further sustained study of “the law review effect.” A sequel, entitled “Dissertation Disease,” is currently contemplated in order to undertake a similar study of the University Press Monograph.

Schlag comments 

The most important thing at the beginning of a law review article is to excite the reader’s imagination, to evoke the hope that what comes next is truly gripping. A page-turner. Something totally out of the ordinary. Perhaps not even a law review article at all. Once this moment is reached, it must be brought firmly to an end, perhaps with the aid of a long elliptical sentence, wandering around through pointless verbal detours, ultimately to leave the reader disoriented and wondering: What’s going on here? There. Done. 

With this attention-grab move out of the way, and before the reader can recover his wits, he needs to be gentled into recognizing that, as with so much else in life, things sadly often are pretty much what they appear to be; that here, as elsewhere, escape and exception are unlikely, and that the typescript now well underway is indeed a law review article after all. It is time for the hook of the first paragraph to be domesticated into a manageable overarching statement that will capture the serious work to follow in the march of the Parts.1 (Part I, Part II, Part III. And so on.) 

Now to be sure, none of this means that what follows cannot contain a bit of errant humor, a couple of gestalt shifts, or perhaps a flight of heroic transport. Still, in the main, the prose to follow will be a measured display of expertise and mastery—each weighted down and secured by the accumulating gravitas of available data sets, archival references, and serial bouts of case-crunching. With luck, most of this will be reserved for the footnotes. Meanwhile, in the text, seriousness is in the offing. Moderation and reasonableness predicted. Yes, there will be some romance (glimmers of utopia visible), but in the main, we will be doing accounting. Literally or figuratively. Accounting and documentation. 

Voila. We are only at the fifth paragraph and already expectations have been excited, subdued, and dramatically lowered. Thus cowed into submission, the reader is prepared to undertake the familiar journey. With readerly expectations thus reset, it is the time to lower the burden of argument, as well. This can be done explicitly (not very good form) or through a more subtle frame-setting. 

We will call the frame-setting happening now “entry- framing” so as to distinguish it from other kinds of framing that will occur later in the law review article. Among other things, entry-framing allows the author to elicit certain kinds of readerly attention (and inattention) as well as readerly hopes (and anxieties). This is the law review equivalent of the trial lawyer’s opening argument. It is a question of putting certain audience faculties and orientations on high alert, while lulling others to sleep. What we have here is what Althusser called “interpellation”—the calling forth of a particular self, oriented and motivated to undertake certain ideologically structured roles, tasks, functions (and crucially, not certain others). Genres can do that. Yes, they can. 

In the main, we will be foregrounding and backgrounding. Certain issues, problems, questions, actors, agencies, action will be placed front and center. Others will be set backstage or even off-stage. For the committed advocate, entry-framing is the place to smuggle in the most controversial claims and to do so not in the guise of claims at all, but rather more subtly as unobserved aspects of the scene. 

Soon it will be time to close the Introduction. But first we need to pose the inquiry that will organize all that is yet to come. What inquiry? Note that it will have to be the sort of inquiry that is susceptible to a plausible resolution through law or law-like surrogates. The law-like surrogates are not quite law, but take the place of law. “Legal theory,” for instance, is a law-surrogate. Legal theory often presents itself (without ever actually saying so) as the law of laws, the norm of norms, the doctrine of the doctrines. Occasionally, we will put entire disciplines or sub-disciplines in charge like this. But only if they are good law-surrogates (in other words, only if they already exhibit law-like aesthetics). Economic analysis and analytical philosophy come to mind. 

The important thing in articulating the inquiry to be pursued is that the formulation must be stated in such a way as to render resolution possible. The point is obvious and nearly indisputable: law review writers never discuss that which they cannot fix. No one writes a law review article where the end line reads: “Well, in conclusion, it seems like we’re all pretty much screwed.” That simply doesn’t happen. Which means—and this is important—that if ever we were screwed, you wouldn’t hear about it in a law review article. Ever. In fact, the more thoroughly and intensely screwed we are, the less likely you would be to hear about it in a law review article. 

Weird, isn’t it? Yes. But it’s like that. 

Let’s not think about it too much. The really important thing, always in a law review article, is to carry on. Perfectionism is the enemy. Capital letters and periods are your friends. Keep moving. 

On the bright side, the commitment to address only those problems we can resolve renders topic selection much easier than might first appear. As with so many other things in life, the thing to do is to start at the end and reverse engineer. That is what lawyers do for their clients and what we legal academics do for our particular juridical utopias. 

So then, what is the inquiry here? Very simply, it is an inquiry into the character of the law review article qua formal artifact. Formal as in “of form,” formal as in “formative,” and formal as in “formalism.” The basic idea is that the very form of the law review article is stylized and thus ineluctably enacts, narrows, and channels what can be said and thought. 

Notice that in and of itself, this is not a terribly interesting insight. Of course, that’s what the law review article does! So do the dissertation, the picaresque novel, and the comic book. What else is to be expected? The thing that is of interest isn’t that the law review article qua artifact is constraining, channeling, or enabling. The interesting thing lies in the how of it all—how and in what ways does the law review article enact, narrow, and channel thought? That is the inquiry we will pursue here. 

Begin by considering what sort of overarching structure is appropriate for a law review article. The genre furnishes the answer. Indeed, genres always furnish their own answers. That is both the virtue and vice of genres. To give an example, it is commonly said that in novels there are only two kinds of stories to tell: “A Stranger Comes to Town” and “Someone Goes on a Journey.” The same is true of a law review article, except that with a law review article, it’s not much of a journey (the starting point and the end point are rarely all that far apart) and strangers—at least real strangers—rarely come to town. 

In the event real strangers do come to town, they are quickly sent packing and enjoined never to come by again. All in all, in a law review article, there is only one story to tell, and the variants are almost always the same: “There is a problem, a conflict, an issue, a puzzle, a contradiction, a paradox, an aporia in the law. This Article will resolve it using the approved m.o.’s of juridical discourse.” 

Notice that we are fast reaching the limits of the average attention span for an introduction. The reader is likely to become impatient. If an oral presentation is at stake (faculty workshop?), listeners even more so. This is the point where the author should relieve the tension created by offering up a joke. Preferably something subtle. Failing that, something rude and abrupt.

Information Flows

"Knowledge Pays: Reversing Information Flows & The Future of Pay Equity' by Orly Lobel in (2019) Columbia Law Review comments

 After years of stagnation, pay equity law is gaining spectacular momentum. In the past three years, over a dozen states have passed important new legislation with numerous other bills pending before the federal, state, and local legislatures and a rising number of class actions underway. This article, the first to study the emerging ecology of pay equity law, argues that the underlying logic of these reforms is to structurally change the ways in which salaries are negotiated, determined, and, subsequently, detected and contested. Moreover, a central innovation of the new laws is to reverse information flows in the wage market. Efforts to eradicate wage discrimination have failed in large part because of information asymmetries and difficulties in identifying and proving discrimination. 

The new path of pay equity is to correct knowledge disparities in three key ways: 1) inducing more information about salaries, including protecting the exchange of information among employees; 2) reducing information that reflects existing biases by preventing employers from relying on, or even asking about, salary histories of new hires; and 3) requiring broader explanatory information from employers about pay disparities by broadening the comparisons from “equal” work to “substantially similar” or “comparable” work, shifting the burden to employers to produce reasons for disparities that exist in their salary structures. 

The article explains how these developments move beyond the substantive prohibition of pay discrimination to focus on process, with the potential to shift discrimination policy from the litigation framework of traditional discrimination law to a governance approach that encourages dynamic, ongoing, and proactive efforts by private organizations and stakeholders. The significance of these reforms is dramatic because the new laws alter and shape the numbers and signals that circulate in the job market, including both intra- and inter-firm speech. Still, the article argues that the reforms are piecemeal, primarily at the state level, they are heavily contested, and some of the most promising initiatives for systematic wage transparency have been halted.

Dispute Resolution

'Queer Dispute Resolution' by Daniel Del Gobbo in (2019) 20 Cardozo Journal of Conflict Resolution 283 comments

In Anglo-American legal discourse, the juridical subject of dispute resolution has traditionally been conceived as a bearer of rights or a bearer of interests: rights, in the model of liberal legalism that regards adjudication (ie court and tribunal processes) to be the preferred means of resolving disputes in the adversarial tradition; or interests, in an alternative or complementary model that regards consensual dispute resolution (ie negotiated and mediated settlement processes) to be the preferred means of resolving disputes in the non-adversarial tradition. This article explores the ethical implications of reframing the bearer of interests as a bearer of desires. 

This is more than just semantics. Reconceiving the juridical subject in this way invokes the contemporary tradition of progressive social theory that has centered the concept of desire in its critique of the liberal humanist subject. This critique has yet to be fully explored in the legal scholarship. One of the most productive lines of argument in this tradition is derived from queer theory – in particular, a strand of post-identitarian thinking in queer theory that regards sexual desire as something that is disruptive of ontology regardless of gender or sexual identity. This strand of thinking raises important questions in this context. Is it possible to theorize juridical subjectivity as a form of sexual subjectivity? What follows from such an effort to “queer” the constitution of the juridical subject, independent from its politicized identity as a bearer of rights in liberal legalism? Could this theory teach us something about the ethics of rights and interests-based dispute resolution processes? 

This paper argues that theorizing about the juridical subject of dispute resolution through the lens of sexual desire encourages us to think about the practice of settlement non-instrumentally, not unlike sexuality itself, which reveals the practice to be immune to the liberal legal imperatives of politicized identity. This is what makes it a fitting analogue for the trope of sexual freedom in queer theory, which opens up a pressing line of criticism about legal policy initiatives that have sought to limit, and in some cases categorically ban the use of consensual dispute resolution altogether. At the same time, however, this theory raises difficult questions about the ethics of sexual desire given the risk that consent to sex and settlement may be induced by coercive force. This helps us to understand the proper role of law – and specifically, the legal doctrine of consent – in regulating the conduct of these practices, or at least to understand it as something deeply fraught with uncertainty.

Corporeal Privacy

'Disembodied Data And Corporeal Violation: Our Gendered Privacy Law Priorities And Preoccupations' by Jessica Lake in (2019) 42(1) UNSW Law Journal 119 comments

Whether one is more (or less) concerned with issues of image rights or the use of online tracking mechanisms by retailers, the role of CCTV in city streets, the ability to access a safe abortion, the media’s publication of salacious stories, the ability of government agencies to collect personal information, or the abuse and harassment of individuals in the home or online is likely to be influenced by social and historical experience. In this article I argue that such experience and consequent investments in ‘privacy’ are also gendered and should be recognised as such by legal scholars of privacy, legislators and courts. Privacy law relates inextricably to the self and calls into question how we (as individuals and groups) envision, articulate and perform our sense of self. It marks out boundaries between persons and perceived sources of power and oppression. This article examines three periods of heated privacy law debate (mid 19th century, turn of 20th century and 1960s/70s) and demonstrates that whereas men’s privacy priorities primarily focused on controlling and concealing information about themselves; women’s privacy issues mostly centred on protecting against violations of themselves. Masculine privacy focuses on the ways in which disembodied or abstract data – guarded by or as forms of property – poses challenges to professional and public reputations. Feminine constructions of privacy are preoccupied with invasions of the autonomy and dignity of embodied selves. In order to further develop privacy law in Australia, we must first recognize that gender fundamentally influences our paradigms and priorities of privacy protection – as seen in pressing debates about online consumer data protection and ‘revenge pornography’. 

Lake argues

Whether one is more (or less) concerned with issues of image rights or the use of online tracking mechanisms by retailers, the role of CCTV in city streets, the ability to access a safe abortion, the media’s publication of salacious stories, the ability of government agencies to collect personal information, or the abuse and harassment of individuals in the home or online is likely to be influenced by social and historical experience. In this article I argue that such experience and consequent investments in ‘privacy’ are also gendered and should be recognised as such by legal scholars of privacy, legislators and courts.

Since the mid 19th century (when ‘privacy’ was first articulated as a legal value) women have primarily advanced privacy interests and cases that are corporeal in nature – involving invasions of their bodies – whereas men’s privacy priorities have predominantly focused on information – demanding its concealment from, or control by, the state, the press, the police, and policy makers. Repeated surveys and case law suggest that men today still care more about corporate and government surveillance than do women, while women are more concerned about being stalked, harassed and violated by other people. Yet, in Australia, despite numerous attempts at law reform, ‘privacy law’ only protects our information, not against incursions or invasions of personal integrity. This article examines the historical and contemporary gendered patterns within Anglo-American privacy jurisprudence and calls attention to the consequences. In recent decades, the seeming neutrality of information privacy law, a field of increasing interest to scholars and legislative reformers, has worked to obscure or negate the fundamental role of gender in privacy law’s development and its current challenges.

Privacy law relates inextricably to the self and calls into question how we (as individuals and groups) envision and articulate our subjective sense of self. It marks out boundaries between persons and perceived sources of power and oppression. Legal and political debates about ‘privacy’ reflect fundamental battles over the ways in which people identify and address others – negotiations over the cultural representation and performance of our sexed, gendered and racialised bodies. They reveal the preoccupations and priorities at play within historically situated narratives and mythologies that still resonate.

As a particularly slippery and fluid concept, ‘privacy’ can be readily invoked in a wide variety of contexts. It is therefore imperative to understand and identify the exact circumstances in which it is employed – and in whose interest. Privacy can only masquerade as a neutral and coherent concept on the page of a law review. Within law’s practical applications, its use and abuse are specific, and reflect historically complex and intersecting interests of gender, race and class. In this article, I build upon my earlier study of the women who forged a right to privacy in the United States, The Face that Launched a Thousand Lawsuits,  to make a different argument concerning the gendered patterns in privacy law during three important time periods: the mid-late 19th century, the turn of the last century and the 1960s and 70s. These points in time represent key moments in privacy law’s development – when widespread social debates crystallised in landmark precedents or new pieces of legislation. These are periods that witnessed particular anxieties about changing gender identities and expectations. Legal discourses about ‘privacy’ spoke to uncertainties about the ways in which men and women were being redrawn in (and into) public space. I show that whereas men’s privacy priorities have primarily focused on controlling and concealing information about themselves, women’s privacy issues have mostly centred on protecting against violations of themselves. Masculine privacy concerns have focused on ways in which disembodied or abstract data – guarded by, or as, forms of property – posed challenges to their professional and public standing. Feminine constructions of privacy have been preoccupied with invasions of the autonomy and dignity of their embodied selves. Norms and discourses on gender continue to reflect and influence our paradigms of privacy protection – as seen in Australia where there has been considerable development of information privacy law compared to the relative lack of civil laws to protect against revenge pornography or other serious invasions of privacy.

This article thus opens up new ground in the scholarship on gender and privacy law. Previous work focused on the late 19th century has argued that common law privacy rights imposed duties of modesty on women (in line with traditional ideals of femininity) rather than conferring positive rights to decisional privacy or autonomy. Other scholars have shown how the quasi-proprietary nature of common law privacy rights facilitated the careers of women in the entertainment industries. Feminist legal philosophers have debated the value of ‘privacy’ when the public/private dichotomy, so entrenched in Western law and philosophy, has worked and still works to relegate and devalue women’s labour and attributes traditionally associated with femininity.

Constitutional analyses of the establishment of privacy rights in 1960s and 70s in the United States pointed to the limits of framing women’s battles for reproductive liberties via the language of privacy; while others have sought to demonstrate the multifaceted nature of privacy that is at stake in decisions to terminate pregnancies. Some scholars have analysed the intersections of race and gender in privacy’s history, to argue that whereas white women symbolised privacy (but could not access it), black women’s historical commodification positioned them as incapable of possessing it. More recently, a number of scholars have demonstrated that privacy rights are better understood as a class privilege and that poor women experience especially intrusive practices of surveillance – such as unscheduled home visits, interrogations over intimate relationships, drug testing, strip searching, and audio/visual monitoring – that are either enabled, overlooked or inadequately addressed by current legal regimes. Little, if any scholarship, however, has examined the complex relationship between masculinity and privacy, nor attempted to link present privacy debates about the regulation of data with historically gendered patterns of privacy articulation and protection. Yet we should recognise that privacy law has not become post-gender in its priorities and preoccupations, despite the seeming gender neutrality of data protection laws.

This article focuses on historical patterns of privacy debate and protection, particularly within the United States (‘US’), to demonstrate their relevance and significance for Australia today. Amongst common law countries, privacy law is an area pioneered and cultivated by American precedent. Discussions of privacy within the law began in both the US and the United Kingdom in the mid 19th century, but only in various US states did it quickly evolve into a distinct statutory cause of action and a tort. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, the High Court’s most detailed consideration of whether Australia should recognise a tortious right to privacy, Justices Gummow and Hayne described the US as the ‘fount of privacy jurisprudence’. Each opinion of the bench referred to the common law and constitutional manifestations of privacy law in the United States. For example, on the issue of whether a corporation should have a right to privacy, Justices Gummow and Hayne stated: ‘the common law in Australia upon corporate privacy should not depart from the course which has been worked out over a century in the United States’.

When it came to considering a future right to privacy in Australia and the ways in which current information privacy regulation is exercised, the High Court recognised that the origin story and preponderance of precedent for privacy within the law is American. This is also evident in the influence of American privacy law scholarship on the legislation of common law countries, as well as within our own law reform proposals. In 1960, William Prosser, wrote a soon to be famous article that reviewed 80 years of privacy jurisprudence and delineated hundreds of cases into four neat categories. These categories formed the basis of torts within the US, as well as statutory actions in Canada and New Zealand. They also influenced discussions of new statutory laws at state and federal level in Australia. Our ideas of privacy, its paradigm of legislative protection and future projections germinated in American soil. Any in-depth examination of gendered patterns within our own privacy laws must engage with over a century of American code, case law, ideas and precedent.

This article examines three periods of heated privacy debate within the law. Part II focuses on the mid to late 19th century, when privacy was still grounded in the bricks and mortar of the family home. The legal maxim ‘a man’s home is his castle ’ guarded (white, middle-class) men from the invasions of outsiders; while women, children, servants and slaves were ‘protected’ as, and within, this privileged regime of private property. Law’s reinforcement of fences and walls effectively controlled the flow of personal information about and interference with the home’s residents, whilst leaving the corporeal boundaries of women and children legally permeable.

Part III of the article traces the shift to technologically driven fears about ‘the press’ and snapshot photography, with public men (such as editor Edwin Godkin) employing ‘privacy’ to advocate for the protection of one’s reputation from prurient gossip and the publication of personal information. At the same time, women began to use ‘privacy’ to contest the use and abuse of photographic images of their faces and bodies. These cases resulted in the establishment of the first right to privacy in the common law world.

In Part IV, I move on to the 1960s and 70s and the establishment of a constitutional right to privacy in the United States in relation to women’s reproductive lives. The decision of Roe v Wade established a right to privacy that legally sanctioned the attachment between a woman’s autonomous mind and her uterus, freeing her from forced childbirth. Here I suggest, however, that this constitutional right to privacy should be read in parallel with the contemporaneous work of legal academics such as Alan Westin and Arthur R Miller, who were pressing the dystopian privacy perils posed by databanks and computers, and nurturing fears about the collection, storage, use and dissemination of information by government agencies. Heightened fears about ‘databanks’ during this time resulted in the passing of the US Privacy Act of 1974, and some years later, the Privacy Act 1988 (Cth) in Australia.

In conclusion, I reflect on these patterns in light of present day debates about non-consensual pornography and online privacy. I suggest that men – as consumers, citizens and scholars – are concerned more by the collection of information about them by corporations and governments and construct this as the major threat to ‘privacy’. This masculinist construction of privacy has come to dominate legislative agendas and scholarly attention in recent decades, eliding other fundamental forms of privacy invasion.

Bullying

The 130 page Us Too? Bullying and Sexual Harassment in the Legal Profession report from the International Bar Association, attracting much (and alas distinctly superficial, given the problematical nature of the source data and interpretation) attention, comments

The legal profession has a problem. In 2018, the International Bar Association (IBA) and market research company Acritas conducted the largest-ever global survey on bullying and sexual harassment in the profession. Nearly 7,000 individuals from 135 countries responded to the survey, from across the spectrum of legal workplaces: law firms, in-house, barristers’ chambers, government and the judiciary. The results provide empirical confirmation that bullying and sexual harassment are rife in the legal profession. Approximately one in two female respondents and one in three male respondents had been bullied in connection with their employment. One in three female respondents had been sexually harassed in a workplace context, as had one in 14 male respondents. This report provides a succinct analysis of that data, to raise awareness about the nature, extent and impact of the problem and inform the development of solutions. 

This report finds that these issues are ongoing, with a considerable proportion of cases occurring within the past 12 months. It identifies chronic underreporting of incidents, with 57% of bullying cases and 75% of sexual harassment cases not reported, for reasons including the profile of the perpetrator and the target’s fear of repercussions. Even when targets report such incidents, workplaces are failing them – official responses are considered insufficient or negligible, perpetrators are rarely sanctioned and, in many cases, the situation is exacerbated. Bullying and sexual harassment hurt the profession. According to the survey data, targets often want to move workplaces, and some even wish to leave the sector entirely. Legal workplaces are not doing enough. This report finds that policies – while present in more than half of workplaces – are not having the desired effect. Although training does have some positive impact, only one in five legal workplaces are educating their staff to prevent and properly respond to bullying and sexual harassment. 

Change is needed. This report provides ten recommendations to assist legal workplaces and the profession as a whole in addressing these issues. The recommendations are underpinned by the empirical findings of this survey, extensive secondary research and consultation with stakeholders. Change will not occur overnight, particularly as these issues are not unique to the legal profession but reflective of wider societal challenges. Yet there are compelling moral, ethical and commercial imperatives for the profession to act urgently. Individually and together, legal professionals and the legal profession must eliminate bullying and sexual harassment from our workplaces. It is hoped that this report can make a modest contribution towards genuine change.

The IBA makes the following recommendations

 1. Raise awareness The legal profession has a problem. Spread the word – it is the first step towards achieving change. 

2. Revise and implement policies and standards Policies to address bullying and sexual harassment are under-utilised and not sufficiently effective. We need more effective policies and better implementation. 

3. Introduce regular, customised training Effective training can reduce the prevalence of workplace bullying and sexual harassment. Training must be the norm, not the exception. 

4. Increase dialogue and best-practice sharing A problem shared is a problem halved. Let’s work together to address the scourge of bullying and sexual harassment in the profession, sharing what works and what doesn’t. 

5. Take ownership This is everyone’s problem. From senior leaders of the profession to incoming graduates, we all need to take ownership of the problem and work towards a more harmonious legal profession. 

6. Gather data and improve transparency Data about the nature, prevalence and impact of bullying and sexual harassment is important – we don’t have enough. Once we have the data, we need to be open about it. Transparency will help us to address these issues. 

7. Explore flexible reporting models Legal professionals do not report bullying or sexual harassment often enough, at the time it happens or at all. We need to improve existing reporting channels and explore new ones, to make reporting a better experience for targets.  

8. Engage with younger members of the profession Younger legal professionals are disproportionately impacted by bullying and sexual harassment. They must be part of this conversation – they will play a major role in developing and implementing solutions and shaping workplace culture. 

9. Appreciate the wider context Bullying and sexual harassment do not occur in a vacuum. Mental health challenges, a lack of workplace satisfaction and insufficient diversity are all related issues. These dynamics need to be understood and addressed collectively.about the nature, prevalence and impact of bullying and sexual harassment is important – we don’t have enough. Once we have the data, we need to be open about it. Transparency will help us to address these issues. 

10. Maintain momentum Change is not inevitable. But it is possible, if individuals, workplaces and institutions work together to eradicate bullying and sexual harassment from the profession. 

The IBA comments

This survey has demonstrated that policies and training to address bullying and sexual harassment are: (1) not sufficiently widespread in the legal profession; and (2) not having the desired positive impact to the extent required. Recent research has suggested several possibilities for addressing the first of these barriers. In certain parts of the US, training is mandatory for employers above a particular size – those with more than 50 managerial employees in California and Connecticut, and just 15 in Maine. Additionally, policies and/or training are often a requirement of consent decrees or conciliation agreements negotiated by employers with regulators or plaintiff lawyers. In India, employers with more than ten employees are required to establish an Internal Complaints Committee, with at least one external member, to hear sexual harassment complaints. The Internal Complaints Committee is also obligated to compile an annual report highlighting the number of complaints heard, the outcome of each complaint and all measures taken in the workplace to address harassment; this must be submitted to the employer and a local government office. At a workplace-wide level, legislatures might consider the efficacy of implementing such measures. 

At a sector-specific level, professional regulators might consider whether it is appropriate to require legal workplaces to implement policies. In the UK, the Bar Standards Board requires barristers’ chambers to have a written anti-harassment policy, which must state ‘that harassment will not be tolerated’ and set out procedures for dealing with complaints of harassment. A New Zealand Law Society working group recently recommended that a similar obligation be imposed on law firms, with conduct rules further requiring individual lawyers to prevent bullying and sexual harassment. The same report recommended that continuing legal education requirements could be used to encourage relevant training, and urged law schools and other providers to include ‘comprehensive training on harassment, bullying and discrimination issues’ in their ethics courses. 

While various ‘carrot and stick’ options are available to increase the prevalence of anti-bullying and sexual harassment policies and procedures, improving the efficacy of policies and training once they are implemented is less straightforward. As two experts have quipped, ‘one can have a terrific policy that does not make any difference in the workplace itself’. Another commentator, a former American judge, added: ‘training programs can be nothing more than kabuki rituals, in which the trainers intone the right words – the legally relevant words – without affecting behavior in the real world at all’. 

Common criticisms of policies include insufficient communication about their existence, a failure to properly incorporate policies into new staff induction procedures, no policy evaluation and revision protocol, and an absence of clarity regarding the manager responsible for handling complaints. Although there is no ‘golden bullet’, and research is ‘enormously challenging’ given the unique nature of each workplace and their policies, several steps may help. First, consistent and ongoing communication is essential in maximising the effectiveness of policies. The tone must be set from the top by executives and leadership teams, through role-modelling standards of conduct and championing policies and procedures. Intra-profession dialogue and best practice sharing – possibly facilitated by law societies and bar associations – may also be of assistance. Policies and training should also be assessed and revised from time to time: ‘Training is not enough without tests to see if the training is efficacious. The fact that a company has few formal complaints is not the measure of whether there is sexual harassment.