Personhood

'Human Rights, Legal Personhood and the Impersonality of Embodied Life' by Miguel E. Vatter and Marc De Leeuw in (2019) 1 Law, Culture and the Humanities comments

 Since Locke, the concept of person has been closely linked to the idea of a subjective natural right and, later, to the concept of human rights. In this article we attempt to trouble this connection between humanity and personhood. For personhood is also an apparatus or dispositive of power. In the first half of the article, we identify a fundamental problem in the usual way human rights are connected to legal personhood by making use of insights drawn from Roberto Esposito’s discourse on biopolitics and critical race theory. While human rights are intended to offer protection to the “precarious” reality of human embodied life, we hypothesize that the fiction of legal personality generates a dis-embodiment whereby this human life is left exposed and defenseless. In the second half, we propose reconstructing the idea of legal personhood so that it may be more adequate to the required conception of human rights with insights drawn from Helmuth Plessner’s political anthropology of embodied life and from the analysis of disembodiment recently articulated by Ta-Nehisi Coates.

Wellness

'Values. The Flip-Side of the Wellbeing Coin' by Vivien Holmes in Rachael Field and Caroline Strevens (eds), Educating for Well-Being in Law: Positive Professional Identities and Practice (Routledge, 2019) 27-41 comments

 Both ancient philosophers and modern psychologists assure us that our happiness and our values are inextricably linked: true happiness and wellbeing come not from the mere pursuit of pleasure, but from living in accordance with values that give us a sense of meaning and connection with others and self. This chapter explores the relationship between happiness (defined as subjective wellbeing) and values, and the implications of this relationship for law students and lawyers, law schools and legal workplaces. Research shows that the more we enact, rather than just subscribe to, certain values, the greater will be our wellbeing. Further, the psychological factors that influence whether lawyers experience wellbeing also influence their ethical decision-making and level of professionalism. We know that law school curricula affect student wellbeing; law schools also play a critical role in supporting (or inhibiting) the development of professional values and in teaching skills to enable students and future lawyers to live out those values. After law school, workplace culture can profoundly influence our wellbeing, while also influencing whether we are able to express/enact our professional values. Evidence suggests that effective regulation can encourage legal practices to improve their ethical cultures, which in turn could improve wellbeing. We need as a profession to attend to this connection between wellbeing and values; to fulfil its role in society, the legal profession needs to be well, which means being deeply connected to values.

'Measuring empathy in undergraduate law students: Examining the factorial validity of the Jefferson Scale of Empathy - Law Students (JSE-LS)' by Benjamin Spivak, Becky Batagol, Adiva Sifris and Brett Williams in (2018) 58 International Journal of Law and Psychiatry 143 comments

Several scholars have hypothesised a link between empathy and a range of important outcomes for law students including well-being, mental health and the development of effective client-lawyer relationships. However, few studies have examined these claims empirically. Empirical investigation of empathy among law students requires effective methods of measuring empathy. The present study sought to examine an instrument designed specifically to measure empathy among law students – the Jefferson Empathy Scale - Law Students (JSE-LS). The study involved examining the internal consistency and factor structure of the instrument using a sample of 276 Australian undergraduate law students. The study found that a four-factor solution was optimal for the dataset. Two of the factors were readily interpretable with previous literature, however the remaining two factors were unstable, suggesting the need for further revision of the instrument. Recommendations for revising the JSE-LS to better measure empathy are discussed.

Payments, Risk and Info

'Mapping the Shadow Payment System' (SWIFT Institute Working Paper No. 2019-001 and Oxford Legal Studies Research Paper No. 55/2019) by Dan Awrey and Kristin van Zwieten comments 

Recent years have witnessed the emergence and rapid growth of a large, diverse, and constantly evolving shadow payment system. The shadow payment platforms (SPPs) that populate this system perform many of the same core payment functions as conventional deposit-taking banks: including custody, funds transfer, and liquidity. The crucial difference is that SPPs operate outside the perimeter of bank regulation, thereby depriving customers of the deposit guarantee schemes, lender of last resort facilities, special resolution regimes, and other legal protections typically enjoyed by bank depositors. This paper represents the first attempt to map the global shadow payment system and identify what mechanisms, if any, SPPs use to protect their customers. Examining the business models and customer contracts of over 100 SPPs, we find that it is often difficult to ascertain information essential to evaluating levels of customer protection and, where such information is available, that customers generally enjoy relatively limited structural, contractual, or other private legal protections. This puts enormous pressure on public regulatory frameworks to ensure a sufficient level of consumer protection. Regrettably, we also find that the applicable regulatory frameworks in several key jurisdictions often provide a level of protection that is far below that enjoyed by bank depositors. These findings suggest that, at least from a consumer protection perspective, SPPs are currently not an effective substitute for bank-based payment systems.

'The Dark Side of Digital Financial Transformation: The New Risks of FinTech and the Rise of TechRisk' by Ross P. Buckley, Douglas W. Arner, Dirk A. Zetzsche and Eriks Selga comments

Over the past decade a long-term process of digitization of finance has increasingly combined with datafication and new technologies including cloud computing, blockchain, big data and artificial intelligence in a new era of FinTech (“financial technology”). This process of digitization and datafication combined with new technologies is taking place in developed global markets and at times even faster in emerging and developing markets. The result: cybersecurity and technological risks are now evolving into major threats to financial stability and national security. In addition, the entry of major technology firms into finance – TechFins – brings two new issues. The first arises in the context of new forms of potentially systemically important infrastructure (such as data and cloud services providers). The second arises because data – like finance – benefits from economies of scope and scale and from network effects and – even more than finance – tends towards monopolistic or oligopolistic outcomes, resulting in the potential for systemic risk from new forms of “Too Big to Fail” and “Too Connected to Fail” phenomena. To conclude, we suggest some basic principles about how such risks can be monitored and addressed, focusing in particular on the role of regulatory technology (“RegTech”).

'Libra: Is Is Really About Money?' by Valerie Khan and Geoffrey Goodell comments

The announcement by Facebook that Libra will "deliver on the promise of 'the internet of money'" has drawn the attention of the financial world. Regulators, institutions, and users of financial products have all been prompted to react and, so far, no one managed to convince the association behind Libra to apply the brakes or to convince regulators to stop the project altogether. In this article, we propose that Libra might be best seen not as a financial newcomer, but as a critical enabler for Facebook to acquire a new source of personal data. By working with financial regulators seeking to address concerns with money laundering and terrorism, Facebook can position itself for privileged access to high-assurance digital identity information. For this reason, Libra merits the attention of not only financial regulators, but also the state actors that are concerned with reputational risks, the rule of law, public safety, and national defence. 

The authors argue

These days we are often too impatient to read a book or an article from beginning to end. But in today’s short attention-span culture, it might be ever more important to ensure you don’t miss out on the final message – or maybe something that was intentionally buried in a document to be hidden. In movies, this would be called a prolepsis: a scene that temporarily jumps the narrative forward in time. In the case of Libra, the prolepsis can be found in Section 5: “An additional goal of the association is to develop and promote an open identity standard. We believe that decentralized and portable digital identity is a prerequisite to financial inclusion and competition.” 

That is not to say that launching an association of members that aims to create “a reliable digital currency and infrastructure that together can deliver on the promise of ‘the internet of money’” is not a massive statement. It is! But it also keeps us busy trying to think about the reaction of regulators and banks: how will China respond and how will central banks deal with the accumulation of assets to guarantee a stable value for their coin-to-be? Will it still be possible to tax a transaction? These are all important questions. But what if this is a decoy? 

What if there is something more? What if Libra is actually aiming to own the solution to the even bigger and older problem of digital identity? As the classic “New Yorker” cartoon put it, “on the internet, nobody knows you’re a dog”. 

Analysing this question will unfold the massive potential of this space, and its specific interest for an advertising company like Facebook. Allowing Facebook to become a crucial player in digital identity for the financial sector will enable it to tighten the knot on the ‘transparent citizen’ by accessing a strong bastion of meaningful data. It will also allow everyone else to purchase the means to manipulate Facebook users, perhaps in pursuit of their respective advertising ideas – some harmless, some of corrupting influence. By dressing this up as a financial inclusion project, Facebook manages to draw financial services regulators to the table. Yet, this should also call everyone who is looking at reputational risks, the rule of law, public safety, and national defence. Otherwise, states and societies might just be designing their Maginot Line.