Legal warming

I confess to being underwhelmed by the 104 page Breaking The Frozen Sea: The case for reforming legal education at the Australian National University report [PDF] regarding law teaching at the ANU, one of those documents that - as yet - seems to have been discussed more often than it has actually been read.

Melanie Poole, the lead author, comments that -

Kafka wrote that 'a book must be an axe to break the frozen sea of our soul'. I hope that this report can remind us, as a law school community, of how powerful and transformative the law can be. Even the firm hand of stare decisis cannot enclose the human minds and human souls that create, defend, contest and interpret the law. As we study the rules, we should also reflect on our own role in shaping them. As we learn how to 'think like lawyers', let's also cultivate our capacity to think like human beings. As we confront the frozen sea of legal education, let's raise our axes high.

One immediate response might be that 'thinking like a lawyer' and 'thinking like human beings' are not antithetical. Thinking like a lawyer - it's somewhat unclear what that involves - may be useful in protecting and improving the lot of human beings, and indeed of non-human beings. Another response might be to ask whether legal teaching - or 'the law' - is a frozen sea, and whether the cold is determined by the legal profession and Australian society rather than by the Law Dean, the Vice-Chancellor and the academics. The report doesn’t go very far in addressing "how powerful and transformative the law can be": students in search of a reminder about power and transformation would be better off reading Brown's recent biography of Michael Kirby.

Ms Poole argues that -

Law schools are places where many of the world's smartest, most privileged, most powerful (or about-to-be-powerful) people accumulate. But instead of focusing on the things that really matter, instead of developing our capacities as problem solvers, peacemakers, activists or great leaders, we are taught a narrow set of technical, commercially oriented skills. Instead of learning to collaborate with others - that it is amazing what can get done when it doesn't matter who gets the credit - we learn that we should compete, fiercely self-promote and reproduce hierarchy. And instead of opening the door to the wide world of opportunities that awaits us, law schools foster the misleading conception that the 'real world' of law is found only in corporate practice.

That is hardly an original lament. More importantly, it elides questions about student responsibility, about the appropriateness of student expectations and about the role of the legal profession.

The report refers to "a remarkable level of dissatisfaction and cynicism amongst law students and young lawyers across Australia and the English speaking world". Remarkable? Remarkable relative to what? More remarkable than in the past? More remarkable than other professions? Or of blue-collar trades? How much of the dissatisfaction is attributable to what the report expresses as -

While some students cite the prestige and earning capacity of a law degree, other students voiced a desire to use their knowledge and skills to change society. Importantly, students acknowledged that their motivations for pursuing a law degree were not clearly defined. Many students took up the degree to test it out, or because they understood law to be a versatile degree, or – in a remarkable number of cases – 'because they got the grade for it'.

A remarkable number? Perhaps law teaching should be at the postgrad level only, with entry after a humanities degree or several years in the workforce as an adult. A smaller cohort of self-involved, naive and and aimless princesses might reduce the collective angst.

The authors comment that -

Students felt that a lack of meaningful assessment feedback reduced their ability to learn and to improve themselves. Students said they sacrificed their personal lives to study harder, and that when this failed to produce results, they felt inadequate, insecure and frustrated. ... Students found problems with the highly individualist and often adversarial nature of law school assessment practices. While it should be acknowledged that some students 'thrive' on healthy competition, many students stated that student isolation was bolstered by a focus on individual assessment instead of collaborative forms of assessment. Students stated that the banded grading system reinforces this unhealthy competition by ensuring that a few people are 'winners' and most others are 'losers'.

Regrettably there is no acknowledgement of challenges regarding "collaborative forms of assessment". The proposed solution seems to be -

the use of 'democratic learning'. Democratic learning is student-centred and student-contextualised education in which staff and students work together to create the learning environment environment. Staff and students would be equal members in a community of shared educational purpose. ... [and] student-facilitated learning. In this method, later-year students facilitate newer students’ education, encouraging peer-to-peer learning

Fortunately the P2P reference isn't accompanied by other education 2.0 buzzwords.

The report calls on ANU Law to

1. Recognise that the purpose of legal education is as multifaceted and diverse as its stakeholders.

2. Foster this diversity within legal education by:

2.1 Embedding critical perspectives into the curriculum;
2.2 Providing students with meaningful opportunities to reflect on their reasons for attending law school;
2.3 Ensuring that staff and student deliberation on the purpose of legal education is systematically fostered.

3. Provide diverse learning opportunities by:

3.1 Increasing opportunities for clinical placements;
3.2 Encouraging opportunities for civic and workplace involvement (ie volunteer work and work experience);
3.3 Moving extra-curricular activities such as mooting, negotiations and client interviews into the core curriculum;
3.4 Including activities such as submission writing, negotiation and advocacy in assessment.

4. Foster more engaging tutorials by:

4.1 Rearranging tutorial rooms so that students are facing each other [!];
4.2 Providing tutors with guidance on facilitation techniques and methods to engage students in discussion;
4.3 Appointing tutors based on their teaching ability in addition to their expertise in substantive law;
4.4 Allocating marks for tutorial participation where it is clearly tied to learning outcomes and provides an opportunity for genuine, interactive and intellectually engaging participation.

5. Reduce lecture sizes by any means (ie through lecture streams in large compulsory courses).

6. Ensure consistent and high quality teaching through a teaching evaluation process that places increased emphasis on student feedback.

7. Enable students to assess how they have met their own learning goals rather than simply assessing the quality of 'service delivery'.

8. Restructure the curriculum to achieve a greater balance between doctrinal material, diverse learning environments and activities and the study of law in a social, political, historical and cultural context.

9. Adopt a holistic, whole of degree, approach to assessment to provide students with the full range of competencies and skills identified in the ANU College of Law's Graduate Attributes document.

10. Increase the variety of assessment that students are required to complete (ie to include group work, oral assessment and clinical placements).

11. Increase the variety of written assessment that students are required to complete (ie to include case notes, written submissions, policy documents, reports and reflections).

12. Ensure standardised and transparent assessment processes by:

12.1 Providing clear and thorough information on assessment requirements, including the criteria on which an assignment will be assessed;
12.2 Providing constructive feedback, with reference to the assessment criteria, which indicates to students how they can improve their performance.

13. Abolish banded grading and replace it with an alternative grading system (ie a pass/fail system). The ANU College of Law should conduct an additional thorough review of its grading policy.

14. Create a dedicated course to develop legal reading, writing and reasoning skills.

15. Improve student access to teaching staff and encourage increased mentoring by staff.

16. Instigate a mentor program with professionals outside the spheres of academic and corporate law.

17. Enable students to learn and improve through assessment by:

17.1 Ensuring routine and standardised transparency and feedback on assessment;
17.2 Providing model answers to assessment tasks;
17.3 Reducing emphasis on highly weighted individual exams;
17.4 Increasing use of smaller, continuous and collaborative assessment tasks.

18. Augment teaching of critical thinking, from the beginning of the law degree by:

18.1 Making critical perspectives part of assessment;
18.2 Making some critical courses mandatory;
18.3 Communicating the value of trans-disciplinary perspectives to students.

Smashing and framing

From an interview with James Simpson regarding his Under The Hammer: Iconoclasm in the Anglo-American Tradition (Oxford University Press, 2011) -

Enlightenment reception of the image is iconoclastic in two ways.

In the first place, the Enlightenment museum neutralizes and commodifies images so as to render them safe. The Enlightenment theory of aesthetics permitted Northern Europeans to look at religious images without having to break them: admire the beauty of form, aesthetics tells us; ignore the religious content.

A second form of metaphorical Enlightenment iconoclasm applies to the much larger field of the human sciences. Different Enlightenment traditions exercise a philosophical iconoclasm, by describing ideology as false consciousness, an idol that enthralls the naive and that must be broken.

Even as the Enlightenment attempted to master Reformation religion, it borrowed the methods of Calvinist religion. Even as it protected the image itself, that is, it drew on the structure of evangelical critique of idolatry. It then applied that critique to a vast field of knowledge. It practiced historiography by detecting enthrallment, superstition and error; the entire past became a museum of error, a museum of artifacts now observed with cool condescension.

Therefore, Under the Hammer also embraces the genesis of the picture gallery in Northern Europe, born as it was out of fierce iconoclasm. The neutralization of the sacred image in the museum is, of course, only the beginning of other stories, and in particular the resacralization of the image in the museum.

Databuse

'Databuse: Digital Privacy and the Mosaic', a 24 page paper [PDF] by Benjamin Wittes of the Brookings Insitution, suggests that the proliferation of personal data in the hands of third parties has resulted in "a conceptually outmoded debate" founded on a concept of privacy that is no longer useful. He proposes "a different vocabulary for that debate", offering an ostensibly new concept characterised as "databuse". Neither the dismissal of traditional debate nor the new vocuabulary strike me as particularly persuasive.

Wittes notes that -

The question of privacy lies at, or just beneath, the surface of a huge range of contemporary policy disputes. It binds together the American debates over such disparate issues as counter-terrorism and surveillance, online pornography, abortion, and targeted advertising. It captures something deep that a free society necessarily values in our individual relations with the state, with companies, and with one another. And yet we see a strange frustration emerging in our debates over privacy, one in which we fret simultaneously that we have too much of it and too little. This tendency is most pronounced in the counter-terrorism arena, where we routinely both demand — with no apparent irony — both that authorities do a better job of “connecting the dots” and worry about the privacy impact of data-mining and collection programs designed to connect those dots. The New Republic on its cover recently declared 2010 'The Year We Were Exposed' and published an article by Jeffrey Rosen subtitled 'Why Privacy Always Loses'. By contrast, in a book published earlier in 2010, former Department of Homeland Security policy chief Stewart Baker described privacy concerns as debilitating counter-terrorism efforts across a range of areas:

even after 9/11, privacy campaigners tried to rebuild the wall [between intelligence and law enforcement] and to keep DHS from using [airline] reservation data effectively. They failed; too much blood had been spilled. But in the fields where disaster has not yet struck — computer security and biotechnology — privacy groups have blocked the government from taking even modest steps to head off danger.

Both of these theses cannot be true. Privacy cannot at once be always losing — a value so at risk that it requires, for so Rosen contends, "a genuinely independent [government] institution" dedicated to its protection — and be simultaneously impeding the government from taking even "modest steps" to prevent catastrophes.

Unless, that is, our concept of privacy is so muddled, so situational, and so in flux, that we are not quite sure any more what it is or how much of it we really want.

In this paper, I explore the possibility that technology’s advance and the proliferation of personal data in the hands of third parties has left us with a conceptually outmoded debate, whose reliance on the concept of privacy does not usefully guide the public policy questions we face. And I propose a different vocabulary for that debate — a concept I call "databuse". When I say here that privacy has become obsolete, to be clear, I do not mean this in the crude sense that we have as a society abandoned privacy in the way that, say, we have abandoned once-held moral anxieties about lending money for interest. Nor do I mean that we have moved beyond privacy in the sense that we moved beyond the need for a constitutional protection against the peacetime quartering of soldiers in private houses without the owner’s consent. Privacy still represents a deep value in our society and in any society committed to liberalism.

Rather, I mean to propose something more precise, and more subtle: that the concept of privacy as we have traditionally understood it in law no longer describes well or completely the actual value at stake in the set of issues we continue to argue in privacy’s name. The notion of privacy was always vague and hard to pin down as an operational matter in law. But this problem has grown dramatically worse as a result of the proliferation of data about all of us and the ability to analyze and cross-reference that data systematically and instantly. To put the matter bluntly, the concept of privacy will no longer bear the weight we are placing upon it. And because the term covers such a huge range of ground, its imprecision with respect to these new problems creates great indeterminacy as to what the value we are trying to protect really is, whether it is gaining or losing ground, and whether that is a good thing or a bad.

Wittes concludes that -

We debate mosaic issues in the language of privacy because privacy is the only word we've got. It is not, however, the value we are implementing in fact as a society or the value that we really expect as individuals from the companies and governments with which we interact. That value is something else — something that lacks a name in common parlance but amounts to an expectation against hostile, deceptive, or negligent use and handling of data we entrust to third parties. It is an expectation that our data will work for us, not against us, and that while our interests won't always be congruent with those who hold the tiles of our mosaics, the custodians of our tiles owe us consideration—at least to do us no harm.

This is not privacy. It is something else. The sooner we accept that in discussing these issues, we are not operating inside of Brandeis's privacy framework but, rather, engaging in the very project he undertook — that is, imagining new legal categories for new surveillance challenges wrought by technology — the sooner we will confront them effectively and in a fashion that satisfies the many competing interests at stake in the mosaic.

Virtual economies

Knowledge Map of the Virtual Economy: Converting The Virtual Economy Into Development Potential, a 75 page report by Vili Lehdonvirta & Mirko Ernkvist for the World Bank regarding virtual economies [PDF] has been promoted by that organisation under the heading ''3 Billion Virtual Economy Provides Jobs in Developing Countries". The Bank proclaims that -

A new study by the World Bank Group’s infoDev program shows that virtual online currencies and digital work now provide real income opportunities to poor and unskilled workers in developing countries.

infoDev is a global technology and innovation-led development finance program of the World Bank and IFC. The new study, Knowledge Map of the Virtual Economy, finds that more than 100,000 people in countries such as China and India earn a living through online games and websites disseminating micro-tasks.

Jobs in the virtual economy include micro-tasks like categorizing products in online shops, moderating content posted to social media sites, or even playing online games on behalf of wealthier players who are too busy to tend to their characters themselves. The study estimates that the market for such gaming-for-hire services was worth $3 billion in 2009, and it suggests that with suitable mobile technologies even the least-developed countries could benefit from this emerging virtual economy.

Goldfarming for bored Manhattan sophisticates and geeks at ANU is better than starving but we might wonder about the ultimate usefulness of proxy 'micro-tasking' for economic development.

The Bank claims that

Some of the poorest people in the world are already connected to digital networks through their mobile phones. The study shows that there are real earning opportunities in the virtual economy that will become accessible as mobile technology develops. This could significantly boost local economies and support further development of digital infrastructure in regions such as Africa and southeast Asia.

It does acknowledge some disquiet, stating that -

While the virtual economy unlocks a plethora of business opportunities, it should be noted that not all these activities are viewed positively. According to the infoDev study, certain business ventures and services offered may actually detract from the experience of other Internet users. For example, harvesting and selling online gaming currencies or mass clicking "Like" on corporate Facebook pages can create an unfair environment where legitimate game play and user opinion loses value and is represented inaccurately.

Its response is an exhortation to be good -

“Entrepreneurs should focus on digital micro-work that benefits society. Examples include transcribing books, translating documents, and improving search-engine results,” said Dr. Vili Lehdonvirta

Quite. In practice the binary peasants - for peasants many of them will be, rather than members of a politically engaged, self-conscious and vigorous binary proletariat - are more likely to be engaged in "unethical" practices such as "cherry-blossoming" in social network services, on search engines and presumably via spam. The toxic blossom is a neologism derived from the Japanese term for paid fans or spectators -

Since cherry blossoming involves users recommending brands or products for money, it decreases the information value of recommendation engines and rating systems. It may not be illegal, but it certainly goes against the intentions of the designers of the systems, and provides no added value to any of the other users. Thus, although cherry blossoming is in many ways similar to microwork, the crucial difference is that it is directed towards overcoming artificial as opposed to natural scarcities.

Legal Bodies

In its annual report on solicitors in England and Wales the Law Society has indicated that there are 118,000 people with current practising certificates, out of some 150,000 people on the Society's database (ie inc retired lawyers and those no longer following a legal career), up from 38,000 practising solicitors in 1980.

Women comprise around 50% of all practising solicitors (58% gained first or upper second class degrees in law courses against 54.2% of men). 11.1% of practising solicitors were from minority ethnic backgrounds. Around 75% of solicitors are in private practice, of which 20,245 are in the financial sector in the City. Gender disparities were evident in promotion: the Society reports that 48.1% of all male solicitors in private practice were partners in law firms, in contrast to 21.1.% of women.

The Law Council of Australia reported in September 2009 [PDF] that the Australian legal services sector as of mid-2008 employed 99,696 people comprising 5,154 people who were either barristers or employed by barristers, 5,108 people were employed in community legal services (including legal aid commissions, Aboriginal legal services and community legal centres), 84,921 (85.2%) worked in “other” legal services including private law firms, and 4,514 (4.5 per cent) worked in the offices of government solicitors or public prosecutors.

TransTasman Patent Law Harmonisation

IP Australia and the New Zealand Ministry of Economic Development have jointly released a 47 page discussion paper [PDF] regarding a trans-Tasman regulatory framework covering patent attorneys. The proposal is part of the Single Economic Market (SEM) outcomes framework that "aims to accelerate and deepen trans-Tasman regulatory integration and make the IP system work more efficiently for innovators and businesses".

The paper describes a single trans-Tasman governance body that would have responsibility for patent attorney education, training and disciplinary standards. At the moment some 500 patent attorneys reside in Australia or New Zealand and are registered in both countries (around 59% of Australian and New Zealand patent attorneys, excluding those residing in other countries). In Australia the patent attorney profession is regulated by the Professional Standards Board for Patent & Trade Marks Attorneys (PSB) (concerned with education and discipline) - analogous to Law Society regulation of solicitors - with registration being the function of the Director General of IP Australia as Designated Manager under s 227A of the Patents Act 1990 (Cth). The paper notes that New Zealand currently does not have a statutory professional standards board. The New Zealand Patent Attorneys Bill 2008 (the “New Zealand Bill”), currently before the NZ legislature, provides for establishment of the Patent Attorneys’ Standards Board of New Zealand with a similar role and functions to that of Australia’s PSB.

Becoming a registered patent attorney under the New Zealand Patents Act 1953 involves meeting criteria such as passing the New Zealand Patent Attorney Examinations conducted by the Commissioner of Patents in conjunction with the New Zealand Institute of Patent Attorneys (NZIPA). Candidates must also satisfy certain other criteria, such as three years work experience with a registered patent attorney or in the Intellectual Property Office of New Zealand (IPONZ).

The paper notes that -

The trans-Tasman Mutual Recognition Arrangement ... in effect since 1998, allows reciprocal registration in each country, but there remain a number of administrative inefficiencies and inconsistencies. For example, a person has to complete registration formalities and meet registration requirements in one jurisdiction to be entitled to seek reciprocal registration in the other jurisdiction. This leads to a duplication of both fees (added expense) and documentation. While the registration regimes are broadly similar, there are also a number of significant differences between the two regimes. The New Zealand Bill would not address all these differences.

Harmonisation would involve -

establishment of a single trans-Tasman Governance Body or board with responsibility for – Education, Discipline and Registration. It is proposed that the respective roles and functions of the PSB (at least in respect of its responsibilities to the patent attorney profession), the proposed Patent Attorneys Standards Board of New Zealand, the Australian Designated Manager (the Director General of IP Australia), and the New Zealand Commissioner of Patents (Group Manager of IPONZ) would be merged into a new body. Underpinning this arrangement would be a -

• single definition of the functions and services which can only be performed by a registered patent attorney or legal practitioner;

• single patent attorney code of conduct;

• single disciplinary regime;

• consistent attorney qualification/continuing education requirements;

• single registration process and register;

• single fees regime; and

• single secretariat support unit.

The claimed rationale for the new regime is that -

The majority of Australian and New Zealand patent attorneys are registered in both countries. A single governance body will provide economies of scale, saving time money and effort for the profession as a whole.

The mooted benefits for innovators are -

• Better access to patent attorneys in both countries will encourage competition.

• Uniform accreditation of attorneys will support continued high levels of service on both sides of the Tasman.

The claimed benefits for patent attorneys are -

• Less red tape - patent attorneys will only need to register with one organisation.

• Increased business opportunities for attorneys not currently registered in both countries.

The paper covers -

1. A Single Governance Body for Patent Attorneys

2. Consistent Qualification Requirements for Registrationas a Patent Attorney

3. A Single Registrar of Patent Attorneys

4. A Single Code of Conduct

5. A Single Disciplinary Regime

A Joint Working Group of officials from both countries has independently developed this paper, in order to elicit comments from the profession and the public. Unusually, Australia's Professional Standards Board for Patent and Trade Mark Attorneys has not yet been involved.

IP Australia has sought written responses to the discussion paper by 16 May 2011.

Tobacco Marks

The Australian Government has released a 96 page Exposure draft Tobacco Plain Packaging Bill 2011 [PDF] and associated Plain packaging of tobacco products consultation paper [PDF] as the basis of a 60 day public consultation regarding restrictions on cigarette packaging. Those restrictions regulate packaging - and by extension use of trade marks held by tobacco companies - rather than confiscating intellectual property.

The proposal, noted in earlier posts of this blog (eg here and here), is of interest in relation to trade mark law, public health policy, constitutional powers and regulation.

In releasing the two documents Health Minister Nicola Roxon commented that "Australia is the first signatory and the first country in the world to commit to implementing these recommendations on plain packaging and we’re proud of it".

She also said that "the chilling facts are that smoking kills 15,000 Australians a year and costs our society $31.5 billion each year. This plain packaging legislation sends a clear message that the glamour is gone - cigarette packs will now only show the death and disease that can come from smoking".

The Consultation Paper indicates that the proposed statutory restrictions on cigarette packaging (including use of trade marks) aims to prevent tobacco advertising and/or promotion on tobacco product packaging in order to -

• reduce the attractiveness and appeal of tobacco products to consumers, particularly young people;

• increase the noticeability and effectiveness of mandated health warnings;

• reduce the ability of the tobacco product packaging to mislead consumers about the harms of smoking; and

• through the achievement of these objectives in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates

The Paper outlines the approach to implementing plain packaging, design testing and targeted consultations, and an explanation of the key provisions of the exposure draft.

Submissions must be received by the Department of Health & Ageing by 5.00pm on 6 June 2011.