Minors

'Police perceptions of young people: a qualitative analysis' by Kelly Richards, Cassandra Cross and Angela Dwyer in (2019) 20(4) Police Practice and Research 360-375 comments

Police views of young people inform the way they exercise discretion over this group. However, few studies have sought to formally document and examine police views of young people. The limited existing research is also mostly dated. This article begins to address this gap in the literature by presenting the results of semi-structured qualitative interviews with 41 police officers from Queensland, Australia. Stemming from a larger study of Police-Citizens Youth Clubs and using a grounded theory approach to data analysis, the article demonstrates the key ways in which police conceptualised young people. It reveals that while police had varied views, they predominantly constructed young people as in need of intervention. The article concludes by arguing that such a conceptualisation of young people could be problematic, given that police intervention has been shown to be a strong predictor of future criminal justice involvement.

Entick

Timothy A.O. Endicott's 'Was Entick v Carrington a Landmark?' in Adam Tomkins and Paul Scott (eds), Entick v Carrington: 250 Years of the Rule of Law (Hart, 2015) 109-130 comments

Entick v Carrington (1765) 2 Wils KB 275 was a landmark not only in the development of the law of the constitution, but also in the development of a distinctively English mixture of judicial restraint and judicial creativity. Lord Camden’s decision was a model of the common law method of devising new ways of controlling public powers, while disclaiming any power to legislate and, in fact, claiming to abide by the ‘ancient venerable edifice’ of the constitution. The result was a practical reform that protected civil liberties, on the basis of a very conservative understanding of the constitution, according to which public authorities are limited by law, but have powers that are not specified by law. I defend that understanding against the twenty-first-century idea that public authorities may do nothing except what the law expressly or impliedly authorises.

Artificial Intelligence and Autonomy

The Artificial Intelligence Governance and Ethics: Global Perspectives report by Angela Daly, Thilo Hagendorff, Li Hui, Monique Mann, Vidushi Marda, Ben Wagner, Wei Wang and Saskia Witteborn comments

 Artificial intelligence (AI) is a technology which is increasingly being utilised in society and the economy worldwide, and its implementation is planned to become more prevalent in coming years. AI is increasingly being embedded in our lives, supplementing our pervasive use of digital technologies. But this is being accompanied by disquiet over problematic and dangerous implementations of AI, or indeed, even AI itself deciding to do dangerous and problematic actions, especially in fields such as the military, medicine and criminal justice. These developments have led to concerns about whether and how AI systems adhere, and will adhere to ethical standards. These concerns have stimulated a global conversation on AI ethics, and have resulted in various actors from different countries and sectors issuing ethics and governance initiatives and guidelines for AI. Such developments form the basis for our research in this report, combining our international and interdisciplinary expertise to give an insight into what is happening in Australia, China, Europe, India and the US. 

What is AI? 

Artificial Intelligence (AI) is an emerging area of computer science. There are numerous definitions and various terms used interchangeably to describe ‘AI’ within the academic literature (and also popular discourse) - these include, for example: algorithmic/profiling, automation, (supervised/unsupervised) machine learning, deep neural networks etc. 

In general terms, AI could be defined as technology that automatically detects patterns in data, and makes predictions on the basis of them. It is a method of inferential analysis that identifies correlations within datasets that can, in the case of profiling, be used as an indicator to classify a subject as a representative of a category or group (Hildebrandt 2008; Schreurs et al 2008). A broad distinction is made between ‘narrow’ and ‘general’ or ‘broad’ AI. Narrow AI is an AI application which is designed to deal with one particular task and reflects most currently existing applications of AI in daily life, while general or broad AI reflects human intelligence in its versatility to handle different or general tasks. In this report when we discuss AI we refer to AI in its narrow form. 

There are numerous applications of AI in a range of domains, perhaps contributing to definitional complexity, for example, predictive analytics (such as recidivism prediction in criminal justice contexts, predictive policing, forecasting risk in business and finance), automated identification via facial recognition etc. Indeed, AI has been deployed in a range of contexts and social domains, with mixed outcomes, including insurance, finance, education, employment, marketing, governance, security, and policing (see e.g., O’Neil 2016; Ferguson 2017). 

AI and Ethics 

At this relatively early stage in AI’s development and implementation, the issue has arisen of AI adhering to certain ethical principles (see e.g. Arkin 2009; Mason 2017), and the ability of existing laws to govern AI has emerged as key as to how future AI will be developed, deployed and implemented (see e.g. Leenes & Lucivero 2015; Calo 2015; Wachter et al. 2017a). 

While originally confined to theoretical, technical and academic debates, the issue of governing AI has recently entered the mainstream with both governments and private companies from major geopolitical powers including the US, China, European Union and India formulating statements and policies regarding AI and ethics (see e.g. European Commission 2018; Pichai 2018). 

A key issue here is precisely what are the ethical standards to which AI should adhere? Furthermore, the transnational nature of digitised technologies, the key role of private corporations in AI development and implementation and the globalised economy gives rise to questions about which jurisdictions/actors will decide on the legal and ethical standards to which AI may adhere, and whether we may end up with a ‘might is right’ approach where it is these large geopolitical players which set the agenda for AI regulation and ethics for the whole world. Further questions arise around the enforceability of ethics statements regarding AI, both in terms of whether they reflect existing fundamental legal principles and are legally enforceable in specific jurisdictions, and also the extent to which the principles can be operationalised and integrated into AI systems and application in practice. 

What does ‘ethics’ mean in AI? 

Ethics is seen as a reflection theory of morality or as the theory of the good life. A distinction can be made between fundamental ethics, which is concerned with abstract moral principles, and applied ethics (Höffe 2013). The latter also includes ethics of technology, which contains in turn AI ethics as a subcategory. Roughly speaking, AI ethics serves for the self-reflection of computer and engineering sciences, which are engaged in the research and development of AI or machine learning. In this context, dynamics such as individual technology development projects, or the development of new technologies as a whole, can be analyzed. Likewise, causal mechanisms and functions of certain technologies can be investigated using a more static analysis (Rahwan et al. 2019). Typical topics are self-driving cars, political manipulation by AI applications, autonomous weapon systems, facial recognition, algorithmic discrimination, conversational bots, social sorting by ranking algorithms, and many more (Hagendorff 2019). Key demands of AI ethics relate to aspects such as the reflection of research goals and purposes, the direction of research funding, the linkage between science and politics, the security of AI systems, the responsibility links underlying the development and use of AI technologies, the inscription of values in technical artefacts, the orientation of the technology sector towards the common good, and much more (Future of Life Institute 2017). 

Last but not least, AI ethics is also reflected within the framework of metaethics, in which questions about the effectiveness of normative demands are investigated. Ethical discourses can either be held with close proximity to their designated object, or it can be the opposite. The advantage of a close proximity is that those ethical discourses can have a concrete impact on the course of action in a particular organization dealing with AI. The downside is that this kind of ethical reflection has to be quite narrow and pragmatic. Uttering more radical demands only makes only sense when ethical discourses have a certain distance to their designated object. Nevertheless, those ethical discourses are typically rather inefficient and have hardly any effect in practice. 

Another dimension of AI ethics concerns the degree of its normativity. Here, ethics can oscillate between irritation and orientation. Irritation equals weak normativity. This means an abstinence from strong normative claims. Instead, ethics just uncovers blind spots or describes hitherto underrepresented issues. Orientation, on the other hand, means strong normativity. The downside of making strong normative claims is that they provoke backfire- or boomerang-effects, meaning that people tend to react to perceived external constraints on action with that kind of behaviour they are supposed to refrain from. 

Therefore, AI ethics must satisfy two traits in order to be effective. First, it should use weak normativity and should not universally determine what is right and what is wrong. Second, AI ethics should seek close proximity to its designated object. This implies that ethics is understood as an inter- or transdisciplinary field of study, that is directly linked to the adjacent computer sciences or industry organizations, and that is active within these fields. 

This Report 

In this Report we combine our interdisciplinary and international expertise as researchers working on AI policy, ethics and governance to give an overview of some of our countries and regions’ approaches to the topic of AI and ethics. We do not claim to present an exhaustive account of approaches to this issue internationally, but we do aim to give a snapshot of how some countries and regions, especially ‘large’ ones like China, Europe, India and the United States are, or are not, addressing the topic. We also include some initiatives at national level of EU Member States (Germany, Austria and the United Kingdom) and initiatives in Australia, all of which can be considered ‘smaller’. The selection of these countries and regions has been driven by our own familiarity with them from prior experience. 

We acknowledge the limitations of our approach, that we do not have contributions regarding this issue from Africa, Latin America, the Middle East, Russia, Indigenous views of AI and AI and ethics approaches informed by religious beliefs (see e.g. Cisse 2018; ELRC 2019; Indigenous AI n.d.). In future work we hope to be able to cover more countries and approaches to AI ethics. 

We have specifically looked to government, corporate and some other initiatives which frame and situate themselves in the realm of ‘AI governance’ or ‘AI ethics’. We acknowledge that other initiatives, such as those relevant to ‘big data’ and the ‘Internet of Things’ may also be relevant to AI governance and ethics; but with a few exceptions, these are beyond the scope of this report. Further work should be done on ‘connecting the dots’ between some predecessor digital technology governance initiatives and the current drive for AI ethics and governance. The fast-moving nature of this topic and field is our reason for publishing this report in this current form. We hope the report is useful and illuminating for readers.

'Are Autonomous Entities Possible?' by Shawn Bayern in (2019) 114 Northwestern University Law Review Online 23 comments

Over the last few years, I have demonstrated how modern business-entity statutes, particularly LLC statutes, can give software the basic capabilities of legal personhood, such as the ability to enter contracts or own property. Not surprisingly, this idea has been met with some resistance. This Essay responds to one kind of descriptive objection to my arguments: that courts will find some way to prevent the results I describe either because my reading of the business-entity statutes would take us too far outside our legal experience, or because courts will be afraid that robots will take over the world, or because law is meant to promote human (versus nonhuman) rights. As I demonstrate in this essay, such objections are not correct as a descriptive matter. These arguments make moral and policy assumptions that are probably incorrect, face intractable line-drawing problems, and dramatically overestimate the ease of challenging statutorily valid business structures. Business-entity law has always accommodated change, and the extensions to conventional law that I have identified are not as radical as they seem. Moreover, the transactional techniques I advocate for would likely just need to succeed in one jurisdiction, and regardless, there are many alternative techniques that, practically speaking, would achieve the same results.

'First Steps Towards an Ethics of Robots and Artificial Intelligence' by John Tasioulas in (2019) 7(1) Journal of Practical Ethics comments

 This article offers an overview of the main first-order ethical questions raised by robots and Artificial Intelligence (RAIs) under five broad rubrics: functionality, inherent significance, rights and responsibilities, side-effects, and threats. The first letter of each rubric taken together conveniently generates the acronym FIRST. Special attention is given to the rubrics of functionality and inherent significance given the centrality of the former and the tendency to neglect the latter in virtue of its somewhat nebulous and contested character. In addition to exploring some illustrative issues arising under each rubric, the article also emphasizes a number of more general themes. These include: the multiplicity of interacting levels on which ethical questions about RAIs arise, the need to recognise that RAIs potentially implicate the full gamut of human values (rather than exclusively or primarily some readily identifiable sub-set of ethical or legal principles), and the need for practically salient ethical reflection on RAIs to be informed by a realistic appreciation of their existing and foreseeable capacities.

Trade Mark Cluttering and the DNS

'Does trade mark cluttering exist in Australia?' (IP Australia Economic Research Paper 07) comments

When cluttering of the trade mark register becomes significant, it has the potential to undermine competition and stifle innovative entrepreneurship. The Productivity Commission’s 2016 Inquiry Report, Intellectual Property Arrangements (PC 2016), identified trade mark cluttering as a possible problem to be addressed in order to ensure the effectiveness of the trade mark system in Australia. However, the PC report did not provide sufficient evidence in support of this claim. This paper explores more extensively whether there is any evidence indicating trade mark cluttering in Australia and assesses how significantly it has been affecting the register. We find that overall the extent of trade mark cluttering in Australia is not unduly serious on the evidence of two key indicators: less than 0.1 per cent of registered trade marks have been removed annually by a third party via the non-use removal procedures; while about 0.5 per cent of trade marks in force may be blocking other applications while they are not in use. Relative to the total number of trade marks on the register, these small proportions do not seem to be cause for concern. 

Nevertheless, potential sources of trade mark cluttering have been increasing in Australia: the first renewal rate has decreased from about 70 per cent in the 1980s to 50 per cent in the 2000s, and an increasing number of trade marks remain on the register for an average of an extra four to five years after their owners deregister their businesses. A comparison of the average number of classes per trade mark between Australia and some countries and priority pairs between Australia and the United States indicates that the per-class-based fee system and proof-of-use requirement have played a positive role in reducing the extent to which non-use trade marks and overly broad non-use classes remain on a register.

IP Australia states

Trade marks identify a unique product and serve to distinguish a business’s goods and services from those of competitors. The mark can be a symbol, letter, number, word, phrase, sound, smell, shape, logo, picture and/or an aspect of packaging. In the case of word marks, studies have found that the most competitively effective trade marks for businesses are unique and concise, with short common words generally working better than neologisms (Beebe and Fromer, 2018). 

Consumers often know little about the characteristics of the goods or services they are considering purchasing and there are numerous unobservable differences in the quality of goods and services. Trade marks therefore play an important role in bridging the information asymmetries between producers and consumers. For consumers, a unique trade mark helps them to identify their desired product by associating it with various attributes that serve to establish its quality and reputation. For producers, a registered trade mark gives the owner the exclusive right to use and authorise other people to use the trade mark. 

With clarity in trade marks, producers and sellers can create concise identifiers for specific goods and services, thereby facilitating market transactions. Therefore, clarity in the Trade Marks Register serves to provide transparency to other potential traders and enable them to easily identify where market opportunities do, or do not, exist and enabling them to target gaps in the market. 

Trade marks are by far the most widely used intellectual property (IP) right because they are not specific to an invention, like patents or design rights, but to the broader identity of a business. Trade marks are the legal underpinning of a business’s brand and the two concepts are closely related but often confused. A brand is an intangible asset that makes up a significant share of a company’s value, and branding is a key arm of a company’s business strategy.  Branding is also integral to a business’s innovation strategy, as it reflects the business’s attempts to define and position itself in the marketplace. Maintaining a business’s brand reputation is an ongoing work that involves continual refinement of its strategy and investment in response to the dynamics of changing markets and consumer tastes. A strong brand helps a business build customer loyalty and obtain a price premium for its products, increasing its revenues and profits. Trade marks are important for the protection of a business’s brand reputation.   

Trade mark cluttering refers to a phenomenon suspected to be a problem for many trade mark registers around the world: it occurs when a large number of unused trade marks or overly broad trade marks (including unused classes) remain on a register that block others’ use of the same or similar marks. This clutter substantially increases the costs to other applicants of creating and registering new trade marks (Graevenitz et al. 2012). These costs are an obvious burden for new entrants to a market, but they can also affect existing businesses trying to create new trade marks. Trade mark cluttering can undermine the effectiveness and the efficiency of the trade mark system by making it more difficult and expensive for new applicants to establish their brands, resulting in unfair advantages for incumbent firms over new entrants (Greenhalgh and Webster 2015). Consequently, it weakens the role of the trade mark system in promoting fair competition (Carter 1990) and increases the cost to consumers of searching and identifying their desired products in the market. Trade mark cluttering also has a negative impact on trade mark offices in terms of their wasted efforts administering unused trade marks and searching inflated trade mark registers. 

Closely related to trade mark cluttering are problems of trade mark depletion and congestion; these have been closely examined in the US by Beebe and Fromer (2018). Trade mark depletion occurs when a decreasing number of available words, signs, or their combinations remain unclaimed by any trade mark owner. Implicitly, depletion assumes the supply of trade marks is finite, contrary to an assumption that has long prevailed in economic thinking about trade marks (c.f. Posner and Landes, 1989) and governed policymaking. By contrast, trade mark congestion happens when, for any given mark that has already been claimed, that mark is claimed by an increasing number of trade mark owners. This can occur when a trade mark is assigned to multiple owners but in different classes of goods and services, as allowed under the Nice classification system administered by the World Intellectual Property Organization (WIPO). 

The problems associated with trade mark cluttering may be exacerbated and become systemic if growing numbers of applicants try to register trade marks but with no intention of future use, whether for defensive or other reasons (Graevenitz et al. 2012). 

The Productivity Commission’s 2016 Inquiry Report, Intellectual Property Arrangements (PC 2016), identified trade mark cluttering as a potential problem that needs to be addressed in order to ensure the effectiveness of the trade mark system in Australia. The Commission’s assessment was based on two main indicators of trade mark cluttering:

i. Rapid growth in the number of applications and registrations of trade marks in Australia in recent decades. 

ii. An increasing success rate of oppositions to trade mark applications on the grounds that the provisions of a mark were too similar to an existing mark (s. 44 of the Trade Marks Act (1995)) or that another similar mark already has achieved a reputation in Australia (s. 60). 

The Commission’s report largely attributed the cluttering to the introduction of the presumption of registrability in the Act, and suggested that this has swung the balance too far in favour of trade mark owners. IP Australia observed that the presumption of registrability was introduced in response to concerns that the previous legislation was too strict and prevented registration of marks that should have been registrable. It argued that “the increased likelihood of a trade mark application being registered is not in itself evidence that the register is cluttered” (IP Australia 2016). While the Commission’s report suggested Australia’s trade mark system is “lax” in encouraging businesses to seek rights as broadly as possible, it did not conclusively demonstrate the existence of significant cluttering in Australia as it did not provide evidence on non-use of trade marks on the register. 

In its submission to the Commission’s inquiry, IP Australia agreed that the trade mark system should not encourage applicants to seek registration of their trade marks without any intention to use them or for more goods or services than they need. IP Australia also suggested that this is an area in which more work should be done in order to identify the nature and extent of the problem (IP Australia 2016). It is against this policy background that the Office of the Chief Economist at IP Australia initiated its own investigation into the potential existence of trade mark cluttering in Australia, with the aim of providing an evidence base to support IP policymaking by the Australian Government.

'Confusing the Similarity of Trademark Law in Domain Name Disputes' by Christine Haight Farley in  (2019) 52 Akron Law Review 657 comments

This article anticipates doctrinal disorder in domain name disputes as a result of the new generic top-level domains (gTLDs). In the course of the intense and prolonged debate over the possibility of new gTLDs, no one seems to have focused on the conspicuous fact that domain name disputes incorporating new gTLDs will be markedly different from the first-generation domain name disputes under previous gTLDs. Now second-generation disputes will have the added feature of the domain name having a suffix that will likely be a generic word, geographic term, or trademark. This addition is significant. Rather than disputes over mcdonalds.com, we will have disputes over mcdonalds.ancestry. Before these new gTLDs, Uniform Dispute Resolution Procedure (UDRP) panels have routinely ignored the gTLD portion of the domain concluding that the suffix is inconsequential to their determinations of confusing similarity. This approach has already changed. While this change may seem trivial especially in a non-precedential system, the consequence of this change may be profound for trademark owners’ rights on the internet and portend a fundamental shift in how trademarks will be called upon to pick winners and losers in this new land grab. Farley,  

Designs

An IPRIA and IP Australia study of Designs Law and Practice  comments

Design capability is increasingly recognised as a source of competitive advantage among countries, and as central to how firms in a diverse range of industries strive to outperform their rivals (Gruber et al., 2015). Australia’s design workforce is small, compared to those of our competitor countries, though productive (Figure 1). However, Australia lags its global peers in the rate at which its design workforce is growing, and in its rate of growth in design intellectual property (IP) generation.

Recognising the importance of design for Australia’s future, IP Australia initiated a collaboration with the Intellectual Property Research Institute of Australia (IPRIA) at The University of Melbourne to produce a comparative study of designs law and practice. This study explores both design across industries within Australia, and how Australia compares for design with its international peers, including several major trading partners.

Recent studies have assessed the suitability of registered design rights as a source of potential information about design innovation (Filitz, Henkel and Tether, 2015; Tucci and Peters, 2015). Yet, there is a lack of research connecting design registrations with design inputs or investments (de Rassenfosse, 2017). 

Our study brings together two well-established approaches for measuring design activity: 

Design IP intensity is a measure of the number of designs registered in a country or industry. 

Design labour intensity is a measure of the number of persons employed in design related occupations, either at the country or industry level.

Both these intensity measures are normalised to account for country or industry level differences. 

This study is the first to our knowledge that brings together these methods to explore, simultaneously, the relative size of design labour forces, and their productivity in design IP generation. 

The report is divided into seven sections inclusive of this introduction.

• Section 2 provides an overview of the designs legal system in Australia and the international context • Section3brieflysetsoutthestudy’smethodology 

• Section 4 explores how Australia compares to its international peers for design labour intensity and the intensity with which Australians use design IP 

• Section 5 explores how industries within Australia vary in design labour intensity and design IP intensity 

• Section 6 presents analysis of the design intensity of industries across national contexts 

• Section 7 discusses potential factors that may affect registrations patterns and offers concluding remarks.

A central finding of this study is that the intensity with which a country makes use of the designs system increases with the design labour intensity of its workforce. Our findings also suggest that a country’s design IP intensity is positively associated with the degree to which design labour is concentrated across its industries. The question this raises is how extensively the designs system encourages investment across the design community at large. To gain greater understanding of Australia’s position, we explored the industries and products in which design filers focus (by “design filers” we refer to applicants of registered designs). Within Australia, residents and non-residents focus in contrasting sectors when registering designs. Australians typically focus in furniture, building materials and clothing manufacturing. By contrast, non-resident applicants maintain a focus in industries such as computer and telecommunications equipment manufacturing. 

We identify those product classes in which there is the greatest imbalance between residents and non- residents in terms of their shares of a class’s total design filings. Of those product classes in which the focus of Australian and non-resident filers is most divergent, non-residents dominate within a large share. We find this to be the case also for certifications and renewals of registered designs. A potential implication is that non-residents focus more strongly on product classes with longer design lifecycles. 

This research was conceived to generate inputs into IP Australia’s Designs Review Program. As such, our focus in studying design IP intensity is on registered design rights. Those design artefacts which are protected by other forms of IP or which are not protected at all fall outside the scope of this study. 

Taking a narrow view of design, we identify from among our global peers several countries that are worthy of emulation as design leaders. We identify, as well, several followers with strengthening design economies. Denmark and Sweden are examples of countries that are low in design IP intensity and low in design labour intensity also, but which are growing at a high rate on both measures.

In the Australian context, we identify industries which appear to underutilise the designs system, given their design labour intensity. This lays ground for further research to address the strengths and weaknesses of Australia’s designs system.

Demand Driven Tertiary Education in Australia

The Productivity Commission's The Demand Driven University System: A mixed report card discussion paper offers the following key points

• University education can be transformative. It is also costly in terms of forgone earnings, student debt and Commonwealth outlays, so it is important that students, taxpayers and the broader community benefit from the investment. 

• The ‘demand driven system’ in place between 2010 and 2017 was intended to increase domestic student numbers and give under represented groups greater access. The results were mixed. 

• It was certainly effective in increasing numbers: the share of young people that attended university by age 22 years increased from 53 per cent in 2010 to an estimated 60 per cent in 2016, based on data from the Longitudinal Surveys of Australian Youth. 

• Multivariate regression analysis shows that the ‘additional students’ — those whose attendance can be ascribed to the expansion of the system — were drawn from many backgrounds. However, compared with other students, they typically had lower literacy and numeracy and a lower Australian Tertiary Admission Rank (most had an ATAR less than 70). 

• Many of the additional students succeeded. About half of the additional students graduated by age 23 years (with many still studying). About half of those graduates entered managerial or professional occupations, outcomes that are similar to those of other graduates. 

• However, people that enter university with lower literacy and numeracy and a lower ATAR drop out at higher rates. By age 23 years, 21 per cent of the additional students had left university without receiving a qualification compared with 12 per cent of other students. 

• University participation increased within some under represented ‘equity groups’, but not others. – School students from a low socioeconomic background and ‘first in family’ students were more likely to participate in higher education following the expansion in university places. – However, the participation ‘gaps’ (compared to those not in the equity group) remain for Indigenous people and for people from regional or remote areas, and may have widened. 

• Despite the expansion, the level of participation among all these groups remains far lower than for people who do not come from disadvantaged backgrounds — a reflection of poorer average school performance and a range of cultural and environmental factors. In the latter respect, an equity group student with a given level of academic ability is still significantly less likely to attend university than their non equity equivalents. 

• Overall, the demand driven system succeeded in increasing the number of students and made progress in improving equity of access. However, many are entering university ill prepared and struggling academically. 

This study suggests some areas for further policy consideration: 

– The school system has arguably not adapted to the role needed of it to prepare more young people to succeed at university, or more broadly to meet the growing demand in the Australian economy for complex and adaptable skills. Average literacy and numeracy of school children needs to rise to fill this role, reversing the sharp falls since 2003. 

– Children growing up in regional or remote areas with the same academic ability as their metropolitan peers continue to be much less likely to attend university. 

– The growing risk of students dropping out of university requires attention. On average, the additional students need greater academic support to succeed. While universities had strong incentives to expand student numbers, the incentives for remedial support are weak. 

– University will not be the best option for many. Viable alternatives in employment and vocational education and training will ensure more young people succeed.

The Commission argues

University can be transformative. Most university students succeed academically and go on to rewarding careers. On average, they earn higher wages and are less likely to be unemployed — which means higher taxes and lower social security benefits — and they make the economy more innovative and adaptive. 

A well functioning higher education system should provide students with opportunities and empower them to make the choice of whether or not to study. It should match students with suitable study opportunities and meet the needs of the labour market. It should be open to people regardless of their background. It should also encourage those who will benefit most from the many years spent acquiring a qualification and support students to succeed while at university, recognising that university education is costly to students and the public more generally. The Australian university system has evolved to meet these goals. Funding, pricing and institutional changes have slowly shifted the university system from the province of a small group of universities servicing a small, mainly male, share of the population in the 1950s and 1960s, to a key pillar of the skills formation system. It now involves a large share of school graduates and, after Dawkins’ reforms, dozens of universities. 

The most recent significant expansion of university participation was due to the implementation of the ‘demand driven system’ from 2010 to 2017 (the result of recommendations made by the Bradley Review of Higher Education). Fiscal constraints were no longer part of the rationing mechanism. The Australian Government removed caps on its support for most domestic undergraduate students. Everyone could attend university, limited only by the students’ willingness to invest their time and incur (concessional) debt, and universities’ admission requirements. The policy aimed to expand undergraduate education for domestic students and improve the equity of access for disadvantaged groups. The policy was underpinned by the view that investment in higher education was falling behind the growing need for university educated workers in the Australian economy.

An uncapped system has the virtue of letting students — who generally know their capabilities and lifetime aspirations better than government or universities — make choices about whether investing in university makes sense for them. It recognises that universities and governments are unable to accurately predict students’ future university outcomes. The most prominent basis for entry — the Australian Tertiary Admission Rank (ATAR) — is an imprecise indicator. A system that conservatively screens out students who would benefit from university attendance means that many with good prospects will be denied access under capped systems. The demand driven system also gave students a greater chance to try some university study and learn whether it suited their skills and aspirations. 

On the other hand, students only bear a share of the costs of university attendance and may have imperfect information about their likely success. So uncapped systems — where universities are funded based on how many students they enrol, rather than a fixed sum of money — face the risk of encouraging attendance by people who will not ultimately benefit, accompanied by student debt, diversion from superior educational options, forgone earnings from jobs that do not need a university qualification, and costs to taxpayers. 

This study explores some of the costs and benefits of moving to a demand driven system by comparing access and student outcomes before and after the policy change. 

The Commission’s approach 

This is a descriptive study. The study explores what happened to young Australians during the demand driven system using administrative, population and longitudinal data. The study addresses two research questions:

1. Who are the ‘additional students’ who enrolled in university under the demand driven system who would not have had the opportunity in earlier periods, and what are the academic and labour market outcomes they achieved? 

2. To what extent was the demand driven system more accessible to people from under represented ‘equity groups’ (figure 1)? And what factors predict the under representation of these groups?

The study draws on a range of data, such as the Census of Population and Housing, administrative data sourced from the Department of Education and Training, and the Quality Indicators of Learning and Teaching dataset. The centrepiece of this study is an analysis of the Longitudinal Surveys of Australian Youth (LSAY). The LSAY provides remarkably rich data on adolescents’ lives as they grow and enter adulthood, beginning at around age 15 years and tracking through to age 25 years. This includes objective measures of school achievement. Since 2003, the LSAY participants have sat the OECD Program of International Student Assessment (PISA) in literacy and numeracy. While the previously mentioned data sets provide population benchmarks, the detail in the LSAY provides the best estimates available about young Australians’ education decisions and the barriers they face to university access and success. Unlike many previous studies using the LSAY, this study draws comparisons across cohorts. The focus is on the cohorts that enter the surveys at age 15 years in 2003, 2006 and 2009. The study considers determinants of their university participation by age 22 years — at the commencement of the demand driven system in 2010, and then in 2013 and 2016 respectively. It then follows students over time to assess their graduation rates and labour market transitions. 

The relatively abrupt change in the mechanism for determining university access provides a natural experiment. In some ways, this study is a simple before and after analysis. The mechanism for determining university access before 2010 allowed fewer people access; beginning in 2010, more people were given access to a university education. This study uses statistical analysis to identify, in a probabilistic way, the additional students and considers their academic and labour market outcomes. 

This study is not a policy evaluation of the demand driven system. It has made no attempt to weigh the benefits in terms of greater opportunity against the resource costs of expanding the system. Moreover, while the demand driven system contributed to a large change in the supply of domestic university places, other factors such as the youth labour market, technological change, problems in the vocational education and training system, skilled migration, and many other social and economic factors also affect who took up these places and the outcomes they achieved. Nevertheless, this study seeks to make a contribution by identifying who the additional students were under the demand driven system, without which it would be difficult (if not impossible) to make a rigorous assessment of the policy. It also highlights the connection between university success and school achievement (measured by literacy and numeracy at age 15 years) and the role that this achievement plays in explaining the persistent under representation of equity groups. 

New opportunities for many, though some ‘additional students’ fared poorly 

The demand driven system had pronounced effects on Australians’ access to higher education. The transition to a demand driven system saw a progressive increase in the cap on Australian Government supported domestic undergraduate places by 5 per cent in each of 2010 and 2011, followed by uncapped funding from 2012 for almost all fields of study. Overall, between 2009 and 2017, the number of domestic bachelor degree students increased by one third (figure 2). The proportion of young people who enrolled in university has increased and a clear majority of Australians now attend university at some point by the age of 22 years. In step with the increase in enrolments, Australian Government expenditure (including deferred student contributions) increased in real terms from $6.4 billion in 2009 to $9.3 billion in 2017. 

The expansion in the number of Australian Government supported university places meant additional students had an opportunity to attend university during the demand driven system that they would not have had in earlier periods. These additional students come from a wide range of backgrounds, but are more likely to have certain traits than ‘other students’ (i.e. those that were not additional students). For example, the additional students are more likely to come from low socioeconomic families, study at public schools and grow up in metropolitan areas (figure 3). 

The most distinct feature of this group of additional students, compared with other university students, is that their school achievement was weaker. Prior to the demand driven system, ATAR scores were a primary mechanism for rationing places. While they remain important for entry by year 12 students and for many courses offered by Group of Eight universities, the most rapid growth in the system came from enrolments by students who had been out of school for a period into courses at non Group of Eight universities. Around two thirds of additional students have an ATAR below 70 or received no ATAR at all. These students also have poorer foundational skills of literacy and numeracy, as measured by PISA scores at age 15 years, which weakens their capacity to engage and succeed at university (figure 4). 

Additional students are less likely than other students to succeed academically. About 21 per cent of additional students drop out by age 23 years compared with about 12 per cent of other students, rates that for other students have been trending down over time (figure 5). While most students that drop out do so within two years of enrolment, there is a tail of students who attend for longer prior to dropping out. Additional students that dropped out had an opportunity to experience university that would not have previously been available to them, and to take an informed decision on whether they are well suited to benefit from the experience. Nevertheless, it is an opportunity that came with costs, not least to the student. Students who drop out incur fee costs of $12 000 on average (Norton and Cherastidtham 2018), with the costs in terms of forgone earnings likely to be much greater. 

For those who succeed academically, a university education remains a good investment. Around half of the additional students are in managerial or professional occupations by age 25 years, roles that generally would have been unavailable to them prior to the demand driven system. Nevertheless, additional students who graduate face slightly less smooth labour market transitions. They are less likely to be in full time employment and have lower average weekly pay than other graduates or those who never attended university at age 23 years. However, the outcomes for graduates converge over time as they grow older and spend more time in the labour market. By age 25 years the remaining differences between these two groups are small. While average wages are similar for all groups in their early twenties, Census data show average earnings of graduates through their late twenties and thirties grows faster than those with trade qualifications or without post school qualifications, implying a significant lifetime earnings premium (albeit lower than during earlier decades). 

FINDING 1 

The demand driven system significantly expanded access to university. The ‘additional students’ — those whose attendance can be ascribed to the expansion of the system — entered university with weaker literacy and numeracy than other students and were more likely to drop out. However, additional students that did graduate transitioned fairly well into the labour market. 

There was some progress in improving equity 

Improving access is valuable in its own right. Few would argue for excluding young people from opportunities based on disadvantage or hardship due to circumstances beyond their control. That said, policy should aim to ensure access also leads to success. A goal in providing access to under represented groups is to set young people onto a career path they could not otherwise have pursued, thereby helping to overcome the disadvantage they were exposed to during their youth. A useful heuristic is to consider three hurdles: gaining access; degree completion; and labour market transitions. 

Access 

Young Australians from disadvantaged backgrounds have long been under represented at university. In the two decades prior to the demand driven system, progress on lifting enrolments of students from equity groups had been modest at best. 

The demand driven system lifted enrolments of some equity groups more than others. In comparison with the general student population, additional students were more likely to come from low socioeconomic backgrounds and from families where the parents had not attended university. For example, in 2016, around one third of additional students were from a low socioeconomic background compared with around 15 per cent of other students. This inflow of additional students changed the overall composition of the student body, but only to a limited degree because the additional students comprised a modest share of all university students. 

In contrast, the demand driven system did not stimulate increased participation rates for young people from regional or remote areas or for Indigenous people, though the latter finding does not take into account that Indigenous people often undertake university study at ages that are outside the scope of the dataset used in this study. For example, more than one third of Indigenous university students are aged over 30 years, compared with one quarter of non Indigenous students. 

Some of these trends may have been expected, while others need to be unpacked. For example, the different outcomes for those growing up in regional or remote areas may reflect the substantial relocation costs they face and the relative ease of access for young people growing up in metropolitan areas near large university campuses (figure 6). The demand driven system, of itself, did not address these underlying barriers. 

FINDING 2 

University enrolment and participation rates of people whose parents did not attend university and those from low SES backgrounds increased strongly under the demand driven system. In contrast, while there has been some increase in enrolments for people from Indigenous or regional or remote backgrounds, overall participation rates for these groups do not appear to have improved, at least until age 22 years. 

Despite the increase in enrolments by some equity groups, all remain significantly under represented at university. This study maps the effects of people’s various characteristics at age 15 years on university attendance by age 22 years and how that affects equity group participation. It shows that there are two different reasons that explain why gaps in attendance persist: school achievement; and a range of cultural and environmental factors effects that are difficult to identify individually. 

Proficiency in literacy and numeracy at age 15 years is the strongest predictor of whether an individual will attend university and a major explanation for the under representation of children from low socioeconomic backgrounds or from families with parents who did not attend university (figure 7). Literacy and numeracy are also relevant factors in explaining why Indigenous and regional or remote children are less likely to attend university. As such, recent large declines in literacy and numeracy scores among regional or remote school children are of particular concern. 

Put differently, strong foundational skills in literacy and numeracy are a powerful protective factor for children growing up in equity groups or from disadvantaged backgrounds. Those children that succeed in school and attain literacy and numeracy in the top quartile attend university at fairly similar rates regardless of their background. By contrast, children from equity groups with literacy and numeracy in the bottom quartile are about half as likely to attend university as equivalently capable children from more privileged backgrounds. 

FINDING 3 

All equity groups remain heavily under represented at universities. Poorer average literacy and numeracy within these groups, when compared with the broader population, is one important source of this under representation. Conversely, for people growing up in disadvantage, strong development of these foundational skills greatly increases their likelihood of university attendance. 

Outcomes 

Students from equity groups also face challenges when they attend university, as they: • enter university with poorer literacy and numeracy on average than students from more advantaged backgrounds • commence university at an older age on average (having spent some time working after completing school) • are more likely to study part time and work while they study. 

All of these factors are correlated with higher non completion rates, which explains why equity groups tend to have higher drop-out and lower completion rates than students from non-equity groups. 

Moreover, students from equity groups whose participation can be ascribed to the demand driven system have fared more poorly in terms of drop out rates and completions than students from equity groups who would have gone to university in the absence of the demand driven system. For example, in 2017, drop out rates for an additional student who was a member of at least one equity group were around 21 per cent compared with around 15 per cent for their equity group peers who would have gone to university in the absence of the demand driven system. Relative completion rates were even more starkly different — at 42 and 60 per cent respectively — reflecting that additional students from equity groups had entered university when older and had not yet completed their studies by age 23 years. Accordingly while the demand driven system increased access to students from some equity groups, it has so far led to relatively modest increases in the number of completions by such students.

There is insufficient information to gauge the labour market outcomes of additional students from equity groups, but the evidence for all students from equity groups is that those that graduate tend to have outcomes that are on par with graduates from non equity groups. For example, nearly 60 per cent of low SES students who complete university are employed in managerial and professional occupations. 

FINDING 4 

While university access for people from low SES backgrounds improved during the demand driven system, some of the gains were given up due to higher drop out rates and lower completion rates. 

Implications for policy 

Governments have many policy levers that affect higher education access and outcomes. They can: • use their substantial control over the school sector to attempt to improve school achievement, particularly literacy and numeracy, noting this has proved difficult to achieve in the past • try to address the range of environmental and cultural factors that cultivate a learning environment at school and affect aspiration to attend university • expand (or reduce) access by relaxing (or tightening) caps on government-supported places • require, or provide incentives for universities to provide greater support to students while at university.

The move to a demand driven system focussed on the third of these. This was supplemented by additional funding through the Higher Education Participation and Partnerships Program (HEPPP) for universities to raise the aspiration of disadvantaged children and to provide additional support services.

The demand driven system had several advantages over previous policies that severely rationed access. A series of reviews prior to its introduction indicated that pre-determining the number of university places allowed insufficient flexibility to meet the changing needs of the economy.

Overall, this study shows the demand driven system delivered substantial benefits in improving equity of access to some groups. It made higher education accessible to some students from disadvantaged backgrounds and it allowed the number of places to flex in response to changes in demand. More than 40 per cent of additional students attracted through the demand driven system had graduated by age 23 years, and these graduates eventually transitioned into managerial and professional careers at rates similar to other students. This assessment of the success of the system needs to be tempered, though, by noting that many of the additional students did not succeed academically. And despite growth in the system, equity groups remain substantially under represented.

Designing tertiary entrance arrangements is a vexed policy problem given the difficulties in identifying those most likely to benefit from a university education. Government can open the net wide for entry by allowing demand to lead the system. This approach maximises access, but increases fiscal costs and, for students ill suited to higher education, can waste their time, build up debt and cause them to forgo alternative job or education options. Alternatively, government can make the net narrow by constraining the supply of places. However, the most readily available filtering techniques for universities to use are imprecise (school achievement measured by ATAR) and this study shows that in the past that approach has denied a higher education to people who would have benefited greatly from it (particularly disadvantaged groups, who may have fewer university educated role models in their family or neighbourhood). The current freeze on university funding may provide the Australian Government some fiscal breathing room. However, the long run pressure will be to continue to increase the size of the sector given that the historical shift towards jobs requiring complex cognitive skills is unlikely to abate. Australian Government policy foreshadows, from 2020, a return to growth in the number of university students, with funding levels subject to universities meeting performance targets. In a system that continues to expand, some of the lessons from eight years under the demand driven system may be of value to future policy design. This study points to a range of areas in which policy settings should be considered. 

Improving foundational skills of students 

Many of the additional students at university are arriving academically ill prepared. This suggests that the Australian school system has insufficiently adapted to the role needed of it to prepare larger numbers of young people to succeed at university. While the entire distribution of achievement on literacy and numeracy at school is declining, an overall trend that should be of concern, this study suggests that the university prospects of children from equity groups may be particularly affected.

Improving the preparation of university students requires raising the skills of school students. While governments have some capacity to influence the factors outside the school environment that affect literacy and numeracy, they have multiple levers affecting the functioning of schools. For example, teacher quality is a key driver of student outcomes and is influenced by policy decisions about accreditation of university teaching courses, recruitment practices for teachers, professional standards, teacher support, performance assessment, requirements to teach in field and for professional development, and teacher salary structures among other factors. The evidence base for policy decisions to improve schools is still piecemeal, as is its use for making such decisions (PC 2016), and experts often have divergent views about the best approaches. Nevertheless, some answers to the problems look promising (PC 2017). Along with the benefits that would arise from having better prepared university students, improved schooling outcomes would have wider benefits. There is widespread acknowledgement that acquiring sound foundational skills in literacy and numeracy is essential to developing the skilled workforce the Australian economy will need. 

The continuing access issues for regional or remote students 

Children growing up in regional or remote areas with the same academic ability as their metropolitan peers continue to be much less likely to attend university. While the current study has not investigated the reasons in detail, it seems likely the high cost (both monetary and non monetary) of moving to the cities where major university campuses are located is a significant, and perhaps increasing, barrier. The Commission (PC 2017) has previously noted that cost effective and flexible ways of delivering education may bring benefits, such as massive open online courses (MOOCs) if accompanied with appropriate accreditation. 

Retention rates for additional students 

Declining retention rates require attention. There are two elements of this: admissions processes and remedial support. Admitting a larger group of students inevitably makes it more difficult to assess ahead of time which students will flourish academically. During the demand led period, this challenge became more acute for some universities than for others. For example, the Group of Eight universities expanded domestic enrolments less than other universities and, to the extent they did, were able to do so in part by enrolling students that otherwise would have attended and succeeded at other universities. Higher drop out rates outside the Group of Eight, and some variation across the sector, should have been expected. Nevertheless, the Higher Education Standards Panel (2016b) noted that particularly severe problems emerged for three universities (Swinburne, Federation and Tasmania), while conversely the University of Notre Dame used effective admissions processes that led to low subsequent drop out rates.

The other challenge is remedial support for students that enter with weak or incomplete foundational skills. The current structure of the HEPPP provides additional funding to universities in proportion to the number of students they enrol from equity groups, in part to meet the cost of additional support needed to allow some students to succeed. The policy most likely further encourages enrolments, though whether it delivers higher quality and more appropriate support services for these students is difficult to know with the limited evidence base available on the scheme.

The incentives for universities to manage drop out risks are weak. By and large, universities’ incentives are to enrol more students. In many courses (particularly those without a laboratory component), the incremental costs of enrolling an additional student are low compared with the per student revenue. The surplus is typically used to cross subsidise research, which is often seen within universities as their preeminent and high status purpose. This imperative for growth has not necessarily aligned with the needs of the student, nor the needs of Australian society and the economy.

There are many ways in which universities could be required to have more ‘skin in the game’ (PC 2017). The Australian Government (2018) is currently consulting on performance metrics to be tied to university funding, which may include measures of student outcomes (such as student satisfaction, full time employment four months after graduation, and employer satisfaction), course completion, equity, and student repayment of higher education loans. Any performance metrics tied to funding would need to be designed carefully to reward universities for ‘adding value’ to their students. They would need to avoid unintended incentives in favour of passing students regardless of their performance or against accepting students from disadvantaged backgrounds (who this study shows may be less likely to complete despite having similar capability).

Another way to improve university incentives would be to help students make well informed choices and ‘vote with their feet’. The Commission (PC 2017) previously recommended establishing a single portal for students to access comprehensive and up to date information about the areas of skills needed, educational requirements of careers, the range of education institutions providing relevant qualifications, and measures of their performance including student experiences and outcomes. Well informed consumers who can vote with their feet would contribute to aligning better university incentives with the needs of the Australian economy.

Consideration should also be given to strengthening course counselling for students that encourages them to ‘fail fast, fail cheap’. While a benefit of the demand driven system was that more students could try university and see whether they were well suited for it, early exit of those that prove ill suited, despite remedial support, will mitigate the ‘debt and regret’ problem (Norton and Cherastidtham 2018).

Providing young people a range of options

Finally, university education is never going to be the best option for everyone. An economy that presents young people with a range of viable alternative options is likely to produce more consistently good outcomes. The other major alternatives to university — a job or vocational training — have been undermined by relative weakness in the youth labour market and deep seated challenges in the vocational education and training sector (VET). In a different environment, more of those for whom university may not have been the best option may have pursued these alternatives. The policy imperative is to ensure a well functioning youth labour market and VET sector.

The above remarks do not only apply to the additional students attracted by the demand driven system. Foundational skills have been falling across the board. Even prior to the demand driven system, full time employment rates were falling for graduates and unemployment rates were rising. Policy initiatives to remedy the deficiencies in the education system — school, VET and university — have benefits that flow well beyond those that were the target of the demand driven system. This study points to a range of areas in which, regardless of the university funding model, policy settings may be able to improve the effectiveness of the system. 

POLICY CHALLENGES 

There are many policy challenges that emerge from the experiences during the demand driven system.

• Governments need to address the generally declining levels of proficiency of students, and particularly the growing share of school students who perform poorly. However, beyond some obvious initiatives, the question is what detailed package of policy measures would be most likely to be effective in reversing the decline. 

• University enrolment practices and student support can help student retention without relinquishing standards, but universities have relatively weak incentives to change their practices. Prescriptive government requirements for entry and student support would discourage innovation and ignore the variations in the groups going to different universities. On the other hand, while rewards for universities to increase their retention rates overcome the problems of prescription, they may inadvertently lower standards or discriminate against groups with higher average likelihoods of dropping out. Devising a workable incentive regime entails difficult design issues, and better measures of outcomes for students beyond retention alone. 

• Improving access to university by remote or regional students has proved resistant to policy, and may require more innovative models for their involvement. 

• The university system is not a desirable destination for all people, but weaknesses in the youth labour market and the vocational education and training system have made the alternatives less attractive.

In the US 'Busting the College- Industrial Complex' by Frederick M. Hess and J. Grant Addison in (2019) 40 Nartional Affairs comments 

 Obstacles to employment are a problem. They impede social mobility, disproportionately harm society's most vulnerable citizens, and hinder the larger economy. That is why efforts to remove such barriers have become a bipartisan cause. It's why more than two dozen states now ban public employers (and sometimes even private ones) from inquiring about applicants' criminal history, due to concerns that capable job candidates will be turned away or otherwise deterred. A number of states and locales are going further: New York City, for example, prohibits public employers from asking about applicants' prior-earnings history; in 2016, Massachusetts became the first state to prohibit the practice for all employers. 

Occupational-licensing reform has similarly seen growing, bipartisan support. Reformers on the left and right have surveyed the staggering costs and barriers to entry for quotidian positions such as masseuse, nail technician, exterminator, and florist, and concluded that these need to be reduced or eliminated. In doing so, they are embracing the understanding Milton Friedman propounded most fluently in his 1962 book, Capitalism and Freedom: "The most obvious social cost," Friedman wrote of occupational registration, certification, and licensure, "is that any one of these measures...almost inevitably becomes a tool in the hands of a special producer group to obtain a monopoly position at the expense of the rest of the public." 

Yet even as reformers have pushed to remove a variety of barriers to employment, the biggest and most significant barrier to employment in American life — the use of the college degree as a default hiring device — has gone blithely unremarked. Indeed, even as reformers target employment obstacles for felons and florists, the pervasive use of college-degree requirements, despite its dubious legality and profound costs, has bizarrely escaped serious consideration. 

At its best, higher education can be a powerful engine of opportunity and socioeconomic advancement. And that's the way it's almost universally described — at least in college brochures, think-tank reports, campaign stump speeches, and legacy media. Nevertheless, for too many Americans, the truth is that post-secondary education is principally a toll: an ever-more-expensive, increasingly mandatory, two-, four-, or, more accurately, six-year pit stop on the way to remuneration. 

Constitutional doctrine holds that employment practices that disproportionately affect members of a protected group are prohibited, unless the practice can be shown to be directly related to job performance and consistent with business need. Nonetheless, thousands of employers now casually flout this standard by screening applicants based on post-secondary credentials and by factoring degrees into hiring decisions, even where degree requirements have a disproportionate effect and bear no obvious relation to job duties or performance. 

In a comprehensive October 2017 report, researchers from Harvard Business School documented extensive evidence of increasing "degree inflation," with employers demanding baccalaureate degrees for middle-skill jobs that previously did not require one and for which the work duties have not changed. In fact, 61% of employers surveyed admitted to rejecting applicants with the requisite skills and experience simply because they lacked a college degree. Researchers calculated that this affected an estimated 6.2 million jobs across dozens of industries. 

This all raises an obvious yet oft-overlooked question: Why are college-degree requirements treated differently from other employment tests? 

The burdens of degree inflation, of course, fall most heavily on those of modest means: low-income and working-class individuals who are less likely to attend college or to complete a degree. Degree requirements summarily disqualify non-credentialed workers with relevant skills and experience from desirable jobs. They impede young workers who could otherwise take entry-level jobs and build the skills and expertise needed to pursue new opportunities. And they hold students and families hostage, forcing them to spend substantial time and money on collecting degrees, regardless of whether students wish to attend college and whether the degree in question actually conveys relevant skills or knowledge. The privileged status of the degree, meanwhile, has insulated colleges from non-degree competition. As the de facto gatekeepers to "good" jobs, colleges have increasingly operated as an employer-sanctioned cartel. 

As we consider the kinds of changes to work implied by artificial intelligence, automation, new technologies, and demographic shifts, it's long past time to ask whether the privileged legal treatment of college degrees is defensible — especially when it may be serving to impede opportunity, burden struggling families, aggravate systemic inequities, and stifle economic dynamism. 

Sidewalk panopticism

'Urbanism Under Google: Lessons from Sidewalk Toronto' by Ellen P. Goodman and Julia Powles in Fordham Law Review, Forthcoming) comments 

 Cities around the world are rapidly adopting digital technologies, data analytics, and the trappings of “smart” infrastructure. No company is more ambitious about exploring data flows and seeking to dominate networks of information than Google. In October 2017, Google affiliate Sidewalk Labs embarked on its first prototype smart city in Toronto, Canada, planning a new kind of data-driven urban environment: “the world’s first neighborhood built from the internet up.” Although the vision is for an urban district foregrounding progressive ideals of inclusivity, for the crucial first 18 months of the venture, many of the most consequential features of the project were hidden from view and unavailable for serious scrutiny. The players defied public accountability on questions about data collection and surveillance, governance, privacy, competition, and procurement. Even more basic questions about the use of public space went unanswered: privatized services, land ownership, infrastructure deployment and, in all cases, the question of who is in control. What was hidden in this first stage, and what was revealed, suggest that the imagined smart city may be incompatible with democratic processes, sustained public governance, and the public interest. 

This article analyzes the Sidewalk project in Toronto as it took shape in its first phase, prior to the release of the Master Innovation and Development Plan, exploring three major governance challenges posed by the imagined “city of the future”: privatization, platformization, and domination. The significance of this case study applies well beyond Toronto. Google and related companies are modeling future business growth embedded in cities and using projects like the one in Toronto as test beds. What happens in Toronto is designed to be replicated. We conclude with some lessons, highlighting the precarity of civic stewardship and public accountability when cities are confronted with tantalizing visions of privatized urban innovation.

Innovation Principle and Ctizen Fintech?

'The Case for an Innovation Principle: A Comparative Law and Economics Analysis' by Aurelien Portuese and Julien Pillot in (2018) 15(2) Manchester Journal of International Economic Law comments

 After the rise of the precautionary principle (or approach) in the late 1990s in a number of jurisdictions, the economic consequences of this newly created principle of law have unfolded. Such consequences were either acclaimed – for providing a minimisation of a number of externalities – or lambasted – for providing justificatory grounds for the prohibition of potentially propitious innovations due to the existence of scientific uncertainties. 

Whereas innovation has increasingly become of salient importance in today’s economies, European economies face sluggish economic growth rates partly caused by a regulatory framework where risk-aversion is incentivized. The precautionary principle induces and favours risk-aversion at the expense of innovation. 

This Article discusses the law and economic foundations and implications of the precautionary principle in the WTO, the European Union, France and the United Kingdom. Having introduced the importance of law in stifling innovation and discussed the current precautionary principle, this Article vouches for an innovation principle to come to the fore in order to counterbalance the innovation-costly precautionary principle. A number of recommendations are proposed at the end of the article.

"Money's Past is Fintech's Future: Wildcat Crypto, the Digital Dollar, and Citizen Central Banking' by Robert C Hockett in (2019) 2 Stanford Journal of Blockchain Law and Policy comments 

I argue that crypto-currencies will soon go the way of the ‘wildcat’ banknotes of the mid-19th century. As central banks worldwide upgrade their payments systems, the Fed will begin issuing a ‘digital dollar’ that leaves no licit function for what I call ‘wildcat crypto.’ But the imminent change heralds far more than a shakeout in ‘fintech.’ It will also make possible a new era of what I call ‘Citizen Central Banking.’ The Fed will administer a national system of what I call ‘Citizen Accounts.’ This will not only end the problem of the ‘unbanked,’ it also will simplify monetary policy. Instead of working through private bank ‘middlemen’ that it hopes will lend QE money to borrowers during a downturn, the Fed will be able to do ‘helicopter drops’ directly into Fed Citizen Accounts. And rather than rely solely on interbank lending rate hikes or countercyclical capital buffering during periods of froth, the Fed will be able to impound money through the more ‘carrot-like’ measure of interest credited to those accounts. We are at last on the verge of establishing a true ‘Fed for the People.’

Discrimination in the US Sharing Economy

'Law and Norms in the Market Response to Discrimination in the Sharing Economy' by Naomi Schoenbaum in (2019) 13 Law and Ethics of Human Rights Journal 1 comments

 Sharing-economy firms have opposed the application of antidiscrimination law to their transactions. At the same time, these firms have heralded their ability to achieve antidiscrimination aims without the force of law, and have adopted various measures to address discrimination. This Article documents and assesses these measures, focusing on the relationship between law and norms. Relying on the sharing economy as a case study, this Article shows how law can play a crucial role in spurring antidiscrimination efforts by firms that it does not regulate, but also how antidiscrimination law might nonetheless be undermined by these voluntary efforts.

Statehood

'The Metaphysics of Statehood' by David Tan in (2018) 31(2) Canadian Journal of Law and Jurisprudence comments

 This paper considers the connections between the Statehood/recognition debate in international law and social ontology. I aim to show that certain theories of social ontology, which I call Groupjective Internalism, can be used to defend Constitutive Theories of Statehood. Among philosophers whom I consider committed to Groupjective Internalism are major figures in the field: Searle, Gilbert and Tuomela. This is an interesting result as Constitutive Theories are generally looked upon with suspicion in international law. In one of the classic texts on States in international law, James Crawford notes that

‘[a] State is not a fact in the sense that a chair is a fact, it is a fact in which a treaty is a fact: that is, a legal status attaching to a certain state of affairs’.

This seems like a proposition about metaphysics (i.e. a proposition about the nature of reality). How can we distinguish between facts about institutions (such as States) and facts about things like chairs? If we do discover the nature of institutional facts, then what does this tell us about Statehood? What are these existing state of affairs that Crawford claims the status of Statehood is attached to? Despite the similar questions both metaphysicians and international lawyers are asking, little research has been done to place debates about State recognition within the framework of analytic metaphysics. 

This paper attempts to remedy this gap and show that metaphysical enquiry can shine light on debates in Statehood formation. In particular, there is a subdomain of metaphysics called social ontology that explains the nature of social and institutional facts. The main goal of this paper is to show that social ontological theories classified as Groupjective Internalism can be used to defend Constitutive Theories of Statehood formation. Constitutive Theories are theories that require entities be recognised by other States in order for those entities to be States. This is a significant conclusion as Constitutive Theories are not well regarded by many international lawyers. One caveat is that this paper aims to show that Constitutive Theories are true if Groupjective Internalism is true. This paper will not defend Groupjective Internalism itself but I argue in Section 2.1 that assuming its truth is neither problematic nor uninteresting. 

This paper’s argument is roughly as follows: Internalist theories of social ontology posit that the existence of institutions (including States) depend on certain groups of people having beliefs about those institutions (e.g. believing that States exist). Hence, States exist only in virtue of some group believing that they exist. Who are these groups of people that must believe recognise that some entity is a State? I will introduce the notion of Groupjectivity, a term coined by Tuomela, to show that these groups must be other States. Since both Internalism and Groupjectivity stipulate that some entity is a State only when other States believe that it is, this is tantamount to the Constitutive Theory. Lastly, I show that social ontology can also deal with the problem of relativism which is frequently raised against Constitutive Theories. 

Section 1 will introduce social ontology and will explain why it is important for debates about Statehood. Section 2 will then introduce Groupjective Internalism. Lastly, Sections 3 and 4 provide a defence of Constitutive Theories of Statehood.

Foucault

'Foucault’s Clay Feet: Ancient Greek Vases in Modern Theories of Sex' by Caspar Meyer in (2018) 85 History Workshop Journal 143–168 comments

Although Michel Foucault never mentions the objects explicitly, his work on ancient Greek sexuality depends in critical aspects on evidence from sex scenes on ancient Greek pottery. The significance of the images comes to the fore in his argument concerning the radical difference of the gender-blind ethics of desire in Greek antiquity from the gender-based norms of modernity. In the overarching narrative of his multi-volume genealogy of modern sexuality, the alterity of Greece underlines his broader contention about the discursive basis of sexual experience. This article confronts the historiographical biases that led Foucault to disregard the material nature of his sources and explores the implications this silence spelled for his successors. Its argument evolves around the disciplinary instruments which scholars employ to contain three-dimensional objects within the bounds of verbal explanation. Two-dimensional copies, in particular, enable historians to isolate vase images from their contexts of consumption and redeploy them strategically to support unrelated arguments. The discussion first takes a critical look at the archives of vase images that made possible, or responded to, Foucault’s synthesis, and then turns to the possibilities of interpretation which the sex scenes hold out when reunited with their ceramic bodies. Of special interest are the manual operations involved in experiencing the artefacts in convivial settings and the interdependencies of painted and potted forms that mark the objects as intentionally subversive and open-ended. Despite its criticism, this essay is itself Foucauldian in its effort to cultivate critical historiography. Its goal is to perform a ‘genealogy’ of Foucault’s genealogy, with a focus on the objects and practices which sustained the debate on Greek homosexuality as one of scholarship’s foremost contributions to the liberationist projects of the twentieth century. 

Meyer argues

 Every now and then specialists of ancient Greek vase-painting need reminding how strange the objects they study really are. Figured painting, to modern eyes, almost always presupposes either a flat surface, such as a framed canvas or a page in a book, or repetitive compositions, if the painting is applied as an ornament on an object. Greek vases combine a seemingly infinite variety of images with an equally variable range of pottery shapes, relating to eating, drinking, storage and domestic production. Neither flat nor repetitive, the objects defy modern categorizations of ‘art’ and ‘ornament’. No wonder that ever since their first discovery in the ancient necropoleis of Italy, the contrast between the pictorial sophistication of the decoration and the mundaneness of its medium has generated disagreements about how Greek painted vases should be evaluated. Where early modern antiquarians were primarily interested in the technology and ritual implications of the vessels themselves, eighteenth-century aesthetes saw their figural decoration as fine art that just happened to have been applied to a ceramic shape. A persistent feature in settling these debates was the preference for invoking external evidence, usually from the textual tradition of antiquity. In iconographical study, for instance, which remains one of the dominant modes of approaching the material, texts are adduced to identify mythological subjects in the decoration. In a related manner, archaeologists rely on stylistic seriations of excavated pottery to connect individual deposits and cultural layers in the stratigraphy of sites with historical events mentioned in the sources, most often foundations and destructions of cities. 

The interest of such text-based approaches is limited if they are employed, as is often the case, to confirm facts already known from the sources. We already know from Homer that Athena carried an aegis (an animal skin bearing the beheaded Gorgon’s face for protection), and we already know from Herodotus (or have little reason to doubt his claim) that the Persians destroyed Athens’s public monuments when they sacked the city in 480 BC. If text-derived explanations are at best a starting-point for other forms of enquiry, their usefulness breaks down in discussions of subjects that bear little or no direct relationship to surviving texts, which is often the case in Greek vase-painting. The imagery on Greek vases encompasses an extraordinary range of subjects which reveal no easy match with known myth or history, among them many scenes of figures engaging in sexual activities. How can such ‘vernacular’ representations produce reliable descriptions of ancient life, especially if they show acts of a kind only alluded to in the sources? 

The relevance of Greek vases to the study of sexuality goes much further than the mere coincidence of subjects. The study of sexuality and Greek vases alike has all too often been conducted in a conceptual vacuum that excludes bodies from the sphere of verbal explanation. In the example of Greek pottery the images of the painted decoration have come to be studied as a visual discourse analogous to the elite discourses familiar from ancient texts, rather than as the embodied practices of those who once used the objects. Studies of sexuality purport to speak about the sexual feelings of individuals, but seek to rationalize those feelings in an analytical domain of structures and relationships which those engaging in sex cannot consciously be aware of. 

I venture to say that Michel Foucault, the thinker who did more than any other to define this term’s modern usage, would have agreed that ‘sexuality’ is a profoundly strange concept. Foucault was suspicious of intellectuals who claimed to speak in the name of truth and justice for others. He rejected universal systems of morality, however noble their goals, in favour of examining specific problems and the answers given by those facing them. His commitment to actor-centred historiography is brought out in his distinction between ‘polemics’ and ‘problematizations’: that is, between answers to political issues formulated on the basis of pre-existing theories or doctrines and those that take as their starting-point the challenges through which individuals experience their existence as social beings.1 And yet, when Foucault wrote about sexuality many of his readers were left wondering how far the discourses of sexuality which he identified so masterfully in different historical contexts actually corresponded with individuals’ experiences in the given place and time. When are his (or any other) discussions of sexuality also about sex, and when are they not? 

Past commentators have considered the ambiguous scope of his statements about sexuality to be an outcome of the methodological shifts in his oeuvre from what he called ‘archaeologies’ to ‘genealogies’, and back again. Foucauldian discourse analysis, as has often been pointed out, went through different stages, from the more structuralist and text-bound archaeologies of his earlier writings to the later genealogies concerned with the embodiment of discourse in social power.2 While his genealogical approach tried to extend his analytical categories to practices beyond the world of texts and linguistic expression, it received only one comprehensive treatment, in Discipline and Punish (1975), and remained more a repertoire of strategic choices than a coherent theory.3 Furthermore, his late work on ancient sexuality presents a marked return to his archaeological mode of exploring the structures of discourses without much focus on their correlation with power and practice.  

This reversal in his method may reflect the unfinished state of his multi-volume history of sexuality, as is often surmised. But in this article, I argue that the flight from the realm of bodies and objects originates far more in the traditional embarrassment about materiality in academic historiography. The embarrassment about ‘things’ in this specific instance manifests itself in the implicit manner in which evidence from Greek painted vases has been subordinated to the demands of verbal explanation.

Defamation

Off to the HCA? In Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australia News Channel Pty Ltd [2019] NSWSC 766 the NSW Supreme Court has determined that Fairfax, Australian News Channel (Sky) and Nationwide News are for defamation purposes the publisher of third-party comments on their public Facebook pages.

The Court was satisfied that the media companies were, on the balance of probabilities,  a first or primary publisher because each  is ultimately the 'owner' of a public Facebook page with the ability to allow the public to access comments authored by a third-party user.

In the judgment Rothman J considered the manner in which a public Facebook page operates and the process by which third-party comments are published on such a  page. Each of the three defendant companies posted a hyperlinked snippet of an article from their sites, usually accompanied by a photograph or a video under which anyone with a Facebook account could comment. The Court noted evidence indicating the importance to the defendants of readers providing such comments, ie increased exposure and consequent advertising revenue.

The judgment states

... cross-examination of each of the defendants’ witnesses concentrated on the likelihood of inappropriate comment to controversial postings by the defendant, as one aspect upon which the defendant could rely in terms of limiting the monitoring that might otherwise be necessary. The evidence, however, was that controversial comments could occasionally (although rarely) be excited by wholly innocuous postings by the media company. 

Mr Love made it clear that the primary purpose of Australian News Channel was to interest readers and have them gain access either to the Australian News Channel website or some other digital publication of the news, rather than the snippet on the public Facebook page. There is an assessment made of the risk associated with particular stories having an adverse effect on the person or persons who is or are featured in the story. 

Mr Love accepted that the uploading of the editorial from the Andrew Bolt program was likely to provoke comments. One of the comments to the Bolt editorial is a matter about which the plaintiff complains. 

Yet, on the evidence of Mr Love, no consideration was or is, as a system or otherwise, given to whether the sort of comment about which complaint has been made was a likely comment to the editorial, when the editorial was selected for placement on the public Facebook page. In other words, although Australian News Channel assessed its comment, it conducted no assessment of likely reactions. 

Nor was there any consideration to the sort of comment that was likely to flow from the posting by the defendant, Australian News Channel, from the plaintiff himself stating that nobody deserved to be treated in the way that he was. 

There are over 15 million Australian Facebook users which, when one omits from the Australian population those over 60 years of age and under 6 years of age, is significantly more than half of the Australian population. Mr Love agreed that nothing specific is done about considering the risk that people who are intolerant and irresponsible may be posting comments on the organisation’s public Facebook page. 

Mr Love accepted that the organisation could, effectively, block any comments by choosing a significant number of ordinary words that would be required to be contained in every comment. In doing so, Mr Love pointed to the resourcing issue that this would create. In his words, it would take the Australian News Channel some time to look through the 7,000 comments that they would receive every day to decide what was acceptable. The evidence suggests it takes no more than an average of 10 seconds (T, p 159 per Pfeiffer) to review a comment, in which case 7,000 comments per day (the greatest number of comments on any of the defendants’ pages on any day) would require the equivalent of an additional 2.5 employees, assuming, contrary to the evidence, that no work hours are currently expended on the task. 

If all comments were hidden, in the manner suggested, Mr Love saw that as a “free speech” issue and, although he was uncertain about it, an issue that may affect the Facebook algorithm, which may affect the organisation’s overall performance on Facebook. The ultimate fear was that there would be overall fewer comments, because the blocked comment would not be seen and would not, as a consequence, excite further comments. The organisation, Australian News Channel, monitors the popularity of the Facebook page (or each of its public Facebook pages) and compares it to the ratings received by other publications of a similar kind. 

Ms Ryan was cross-examined (as were each of the witnesses) on essentially the same subject matters. Her evidence is to the effect that the Facebook page was operated for the benefit of Nationwide News, being an exercise to seek to increase the awareness of the publication, being The Australian Newspaper and increase the audience or readership of the newspaper. About half the articles that were published in The Australian were selected for placement on the Facebook page. 

The link on the Facebook page would take a reader to The Australian Newspaper. Initially, when Ms Ryan first commenced in her current position, a reader could then read up to three articles from The Australian without payment. About halfway through the period of her employment, the number of articles that a reader could read without payment reduced to one article. 

Again, Ms Ryan attested to the existence of two filters: one operated by Facebook known as “Profanity Filter”, which an owner of a public Facebook page could opt into at three different levels (“off”, “medium”, or “strong”); and one operated by the owner itself known as “Page Moderation”. The Facebook filter generally operated in relation to certain well-known profanities and would exclude from the public Facebook page any comments that contained one of those profanities. Again, Ms Ryan sometimes used the term “blocked” to include a comment that was “hidden” to the general public. 

Monitoring each comment and deleting it requires a significant effort. Less effort is required if the comment is to be hidden because automatic filters can operate. Again, Ms Ryan testified that by utilising the filtering mechanisms to catch common words, such as all of the pronouns and the like, the vast bulk of comments, and possibly all of the comments, would be hidden. 

If all the comments were hidden pending approval, the original article, placed on the page by the media owner, would appear in exactly the same way as it would otherwise. Further, any member of the public could share the article in exactly the same way as it may be shared otherwise; liked in the same manner; but there would not be any visible comments, except to the Administrator of the page, the third-party commentator in relation to the comment placed by her or him and Facebook friends of the commentator. 

In answering the question as to why such a course was not implemented, Ms Ryan said: “Because it would involve someone sitting and un-hiding comments all day. It would, people would still be able to post pictures, memes. They would still be able to post comments without using the filter. I think people would get frustrated with their comments not appearing on the page. It, ... in my opinion it wouldn’t make sense.” (T, p 102.) 

If, on the other hand, the assumption made by Ms Ryan did not operate and no one ever “unblocked” or rendered the comment “un-hidden”, it would require no additional staff, but there would not be any comments that could be seen by the public, other than the defined class of members of the public that were Facebook friends of the person placing the comment or blog on the public Facebook page. 

At the moment, according to Ms Ryan, if Nationwide News posted a controversial article on, perhaps, a controversial person, where the staff assessed that members of the public had a certain level of vitriol towards that person or that situation, the staff will monitor that article and its comments closely, or more closely, and hide and/or delete comments, where needed. Ms Ryan explained that the reference to monitoring more closely meant perhaps five or six times a day. Nevertheless, it would involve looking at each of the relevant comments. 

Ms Ryan was asked some questions about the article that was placed by Nationwide News on the public website and accepted that the article was not favourably disposed to the plaintiff, but could not say whether any member of staff at Nationwide News assessed whether posting the article would excite members of the public to comment adversely about the plaintiff. Apparently, no system is in place for such an assessment or for action to be taken if, notwithstanding the absence of a system, an assessment were to have been made. 

Ms Ryan accepted that seemingly defamatory material was a “thoroughly predictable” result of posting the relevant article onto the public Facebook page. Further again, Ms Ryan was unable to say whether any monitoring occurred of the comments in relation to the plaintiff. 

As the evidence of Ms Ryan makes clear, it is important to Nationwide News that there are comments on the webpage, amongst other reasons, because it motivates others to comment and the greater the number of comments, then the rating for the public Facebook page becomes higher, which, in turn, markets the page to a greater number of members of the public and, in turn, markets the newspaper to a greater number.

The Court found that each company had the capacity to hide each comment until the comment was scrutinised and approved/rejected. That would require additional resources, considered to involve the equivalent of 2.5 employees and that would include some work already performed. Each of the defendant’s witnesses accepted that the Facebook posts about the plaintiff were likely to provoke comments that were critical of Mr Voller, including some that would be defamatory.

Rothman J held that in relation to a public Facebook page, comments authored by a third-party user were solicited, invited and by the owner. The Court contrasted that  welcome with  the unauthorised publication of defamatory posters on bus shelters, discussed in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81–127. In Urbanchich the the defamatory posters were placed on bus shelters without authorisation by the Council (owner of the property), in  locations not constructed to host posters.

The Court differentiated a public Facebook page from a Google search, referring to Google Inc v Duffy (2017) 129 SASR 304 in which the Full Court in South Australia discussed the principles and conditions for which Google would be liable for defamation. The Court distinguished the Voller dispute from Murray v Wishart [2014] 3 NZLR 722 where the New Zealand Court of Appeal dealt with an individual’s Facebook page, not a public Facebook page.

Rothman J  considered the salient distinction was that an individual Facebook page does not allow comments to be vetted in advance by hiding comments. A public Facebook page does allow that vetting through its filters. The Court favourably considered the analogous circumstance discussed in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; [2013] HKCFA 47. In Oriental Press  the Hong Kong Court of Final Appeal determined that the defamatory comments were the result of the respondents having facilitated speech  in a forum hosting a large volume of communications rather than being the originators of the defamatory comments.