23 November 2017

Leaks

'Leak-Driven Law' by Shu-Yi Oei and Diane Ring in (2018) 65 UCLA Law Review comments
Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries. 
The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom is too simplistic. In addition to its clear benefits, leak-driven lawmaking carries distinctive risks, including the risk of agenda setting by third parties with specific interests and the risk associated with leaks’ capacity to trigger non-rational responses. Even where leak-driven lawmaking is beneficial overall, it is important to appreciate its distinctive downside risks, in order to best design policy responses. 
This Article is the first to thoroughly examine both the important beneficial effects of tax leaks, and their risks. It provides suggestions and cautions for making and enforcing tax law, after a leak, in order to best tap into the benefits of leaks while managing their pitfalls. 

08 November 2017

Postgrad Complaints

The NSW Ombudsman Discussion Paper Complaints about supervision of postgraduate students suggests steps that could be taken by universities to refine their policies and practices to specifically address conflicts that may arise in postgraduate supervisory arrangements.

The paper comments
The NSW Ombudsman has jurisdiction over all public universities in NSW – ten universities in all. We receive and investigate complaints from students about administrative actions relating to their enrolment, course progress, supervision and termination of their studies. At the Ombudsman’s office, we have worked with universities to develop tailored guidance for dealing with the unique issues that can arise in university complaints. An important stage in this work was in 2015 when we published, together with other Australian Ombudsman offices, Complaint Handling at Universities: Australasian Best Practice Guidelines. As the foreword to those guidelines observed about university complaints, ‘Mishandled complaints have a high potential cost, both financially and in damage to reputations’. For several years, we have been looking into complaints that relate to postgraduate supervision in NSW universities. We have received a steady number of these complaints and they are often complex and time consuming to examine. They are also often accentuated by career and personal concerns reflected in the breakdown of research relationships between postgraduate students and supervisors.
In January 2016, we released a draft discussion paper to university complaint handlers in NSW. There was strong interest in the topic, with submissions from universities and discussions between Ombudsman and university staff and with representatives from postgraduate student organisations.
We have now decided to take the issue a step further by publishing a revised discussion paper that will be made more widely available on our website. This revised paper builds on the consultation that has occurred to date. It includes a number of We invite submissions or comments from any interested parties by 31 January 2018 particularly examples of initiatives that have successfully resolved conflicts in postgraduate supervision. We will then decide if further action is needed to develop best practice guidelines or share practical examples and ideas among universities. ....
This project arose from the steady number of complaints the NSW Ombudsman has received over many years about postgraduate supervision in NSW universities. These complaints can be complex and take time and resources to examine. They often also have a personal aspect which makes them especially challenging to deal with.
In January 2016, we published a draft discussion paper for university complaint handlers and received many helpful submissions in reply. We also reviewed relevant university policies, surveyed all NSW universities, conducted follow-up interviews with university staff at each institution, and spoke with representatives of several postgraduate student organisations. This current discussion paper has resulted from those conversations and the strong interest that we have encountered on this topic.
Universities in NSW have told us that complaints by postgraduate students are not overall more frequent than other kinds of student complaints. Allegations of academic or non-academic misconduct in postgraduate supervision are not sustained after investigation any more often than other student allegations. However, universities generally recognise that there is a potential for postgraduate complaints to be complex and bitterly-contested and significant resources can be spent in dealing with them.
This discussion paper aims to help all those involved share what they feel to be best practice in complaint handling in this field. This will hopefully facilitate a constructive exchange of ideas and experience. There is no implicit suggestion in this project that universities have dealt poorly with these matters in the past, or that some universities have performed poorly compared to others. A number of universities have commented that the conversations leading to this discussion paper have been beneficial. For example, one university found that useful information it had published about dealing with conflicts between supervisors and students on a FAQ page on its website appeared only in the ‘for supervisors’ version of the page.
Universities have also moved of their own accord to address issues in response to the questions raised in our survey and follow-up interviews with interested parties. For example, some universities found that their policies were not as clear as they could be and have undertaken to revise them.
The paper comments that ' Difficulties and conflicts will always arise between postgraduate students and supervisors. The sensible path forward is therefore to develop a structured framework that acknowledges this possibility and implements steps to avoid or deal with it'. It accordingly suggests  ten strategies for inclusion in such a structured framework:
1. Universities should prepare accessible written guidelines for students and supervisors on dealing with conflicts and disputes – including counselling, appointing a new supervisor, and referring disputes for conciliation. These guidelines should advise students and supervisors that problems can arise in all supervisory relationships that are not the fault of either party.
2. Universities should consider developing or continuing a structured training program for supervisors on the skills of supervision. This training should contain practical advice on dealing with problems in the supervisory relationship, such as ‘having difficult conversations’.
3. Members of supervisory panels should be advised when they start their role to take note of signs of deterioration in supervisory relationships, and report these to the conflict resolution officer in postgraduate administration or the ‘mentor’ if one has been appointed to the panel.
4. Students and supervisors should be encouraged to keep a written record of their supervisory arrangements, expectations and mutual responsibilities. Both could be encouraged to co-sign any important records.
5. Universities should implement a procedure whereby a student, after their annual performance review, can submit a confidential report on perceived problems in their supervisory relationship.
6. Universities should nominate a designated officer – a ‘go-to’ person – that a student or supervisor can speak to if they are experiencing significant difficulties in a supervisory relationship. This designated officer (or panel of officers) could be located or administered by the central university office responsible for postgraduate administration. They could be given a recognisable title, such as ‘conflict resolution officer’.
7. A designated student ‘mentor’ could be appointed to the supervisory panel for each student who has changed their principal supervisor more than once – with the exception of changes arising from matters such as the death, illness, resignation or retirement of a supervisor. The mentor’s role would be to monitor the general supervisory relationship, independent of the substance of the research project. It should also be understood that the appointment of a mentor is not seen as a negative or punitive response to the changes in supervisory arrangements.  Universities could also consider, on an individual basis, whether a ‘mentor’ should be appointed to a supervisory panel in other special circumstances. For example, if the principal supervisor is undertaking supervision for the first time – or the principal supervisor was involved previously in a sustained formal grievance process or was the subject of serious allegations of bullying or harassment. Including the mentor on the supervisory panel should be seen as a safeguard measure to minimise potential problems and provide independent feedback to the supervisors – not as a performance management measure that reflects on the supervisor’s suitability.
8. Universities should consider establishing a panel of internal university mediators, conciliators or trained dispute-resolution specialists who are available – with the consent of the parties – to deal with unresolved conflicts between students and supervisors.
9. Universities should consider implementing a structured program for contacting students by email at designated stages of a research project, and inviting them to raise or discuss on a confidential basis any issues they may be experiencing with their supervision. The following is suggested text to include in the email:
The university recognises that postgraduate study can be stressful. The stress will be greater if you feel you have an unsatisfactory academic relationship with your supervisor. You may raise any concerns you have by replying to this email. Other options and procedures for dealing with problems you may be facing with your supervisor are outlined in the university’s guidance on postgraduate supervision, which is available at the following link: [a link to information on the university’s dispute–resolution or conciliation process]. If you believe your supervisor is acting improperly or unethically, you have the right to submit a formal grievance. The procedure for doing this is outlined in the university’s guidance on postgraduate supervision. The university will receive any concerns you raise on a confidential basis. However, it may be necessary to discuss an issue with your supervisor or members of the supervisory panel if we are going to further investigate your complaint. We will discuss this with you before contacting your supervisor.
10. Students should be made aware – both in their induction material and through other accessible policies or guidance material – of the independent complaint and appeal mechanisms that are available to them. This includes the right to complain to the NSW Ombudsman, the Australian Research Integrity Committee, The Anti-Discrimination Board of NSW, the Human Rights and Equal Opportunities Commission, the Tertiary Education Quality and Standards Agency, and the Independent Commission Against Corruption – as well as professional bodies, schools or boards that regulate careers in certain occupations.

Bitcoin

"Beyond Bitcoin – Legal Impurities and Off-Chain Assets' (Queen Mary School of Law Legal Studies Research Paper No. 260/2017) by Chris Reed, Umamahesh, Sathyanarayan, Shuhui Ruan and Justine Collins comments 
Blockchain technology allows the creation of distributed ledgers. These distribute control among the players rather than requiring a centralised database, and so can reduce costs and speed up transactions. However, when it is used for assets which exist outside the blockchain itself, an unmodified adoption of the technology would bypass legal and regulatory requirements which, for these kinds of assets, cannot be bypassed without fundamental change to the law.
Building those requirements into any blockchain-based system introduces features which are not necessary for performing its core functions, and we call these ‘legal impurities’. The most important legal impurities required are those relating to identification of the parties, and introducing the ability of a trusted third party to make modifications to the ledger. Not only does introducing these legal impurities make fundamental changes to the concept behind blockchain, but it is also essential that they are implemented in ways which do not threaten the integrity of the blockchain as evidence.
'Is a ‘smart contract’ really a smart idea? Insights from a legal perspective' by  Mark Giancaspro in (2017) 33(6) Computer Law and Security Review 825-835  comments
Swift developments in the emerging field of blockchain technology have facilitated the birth of ‘smart contracts’: computerised transaction protocols which autonomously execute the terms of a contract. Smart contracts are disintermediated and generally transparent in nature, offering the promise of increased commercial efficiency, lower transaction and legal costs, and anonymous transacting. The business world is actively investigating the use of blockchain technology for various commercial purposes. Whilst questions surround the security and reliability of this technology, and the negative impact it may have upon traditional intermediaries, there are equally significant concerns that smart contracts will encounter considerable difficulty adapting to current legal frameworks regulating contracts across jurisdictions. This article considers the potential issues with legal and practical enforceability that arise from the use of smart contracts within both civil and common law jurisdictions.

07 November 2017

Drones

'African Drone Stories' by Kristin Sandvik in (2015) 8(2) Behemoth A Journal on Civilization comments
The process of normalizing drones throughout Africa has received little scholarly attention. Discussions of drone proliferation tend to assume that the drone industry is a monolithic, geographically concentrated entity, and that drone use will look the same and engender the same controversies, regardless of geography. The article aims to think through African drone proliferation by analyzing how drones and Africa are being construed as solutions to each other’s problems, and by exploring the interface between images of Africa and the notion of the drone as a game changer for development and security. The article also reads the African drone in the context of the early deployment of surveillance drones in Africa in the 1970s, as well as the legacy of technological imperialism and colonial airpower. The perception of Africa as being in need of external drone intervention dovetails with the drone industry’s efforts to identify and promote good uses for drones — efforts that are central to increasing the legitimacy of drones in the eyes of the Global North. Hence, the article argues that the ‘African drone’ has become a vehicle for the production and distribution of norms, resources, and forms of legitimacy that have implications for drone proliferation, both within and outside Africa.

History of Animal Law

'The Historical Development of Animal Welfare Law in Nineteenth Century Scotland' by Daniel James Carr examines 
the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.
Carr argues
This paper is confined to laying some historical groundwork by starting to look at the historical development of animal welfare law in Scotland. This is not a comprehensive treatment of the history of the legal development in Scotland: much of the paper is tentative, and, it also takes account of developments in England. It is hoped that this contribution might stimulate further research. Hopefully, the chapter will come to be situated within a broader possible research project on animal law in Scotland more generally, which would concentrate particularly on animal welfare law but could also encompass other areas of law dealing with animals. Therefore, this paper considers some of the early history of animal welfare law in Scotland, particularly in the early to mid nineteenth century. The paper demonstrates, I hope, how the law in Scotland has developed by small incremental developments from the common law, or at least it was retrospectively described as such a development, which was then substantially altered by legislative intervention in the mid-nineteenth century. It is possible to trace the changing background to the rules and discern some normative movement from viewing animals as mere property to some form of recognition of the interests of the animals themselves. The explanations given for the creation of legislation to increase the protection accorded to animals qua animals varied from the ownership, divine duty, projections of humanity onto animals, before moving towards thinking about the interests of the animal themselves as some kind of freestanding interest that was worthy of protection.
A secondary dimension of the paper is the interesting way it illustrates how different approaches have been taken by jurisdictions of the British Isles, and it forms a nice case study of different approaches have been taken from the early-19th century all the way through to the post-devolution era. Furthermore, that historical development also shows how these developing interests might be described very loosely as fitting in with other ‘humane’ movements around this period which were based on ideas such as rolling back personal oppression, the infliction of pain, the improvement of social conditions, and occupies a period where the increasing permeation of state intervention and legislation in many areas of law can be observed, and animal protection law becomes embedded within the emerging legislative web of such regulation which emerges within an emerging modern bureaucratic state. In turn, the protection of animals’ welfare comes to be protected not only in specific ‘animal cruelty’ statutes, but can also be seen across other forms of legislation dealing with food production, transportation of livestock, and even mining legislation.
A further and related dimension which I think is important, but which can only be lightly touched upon here, within this context of the increasingly present state and legislative interventions in relation to the management and regulation of that state, is the emergence of non-state actors conducting public duties (not in general, but the specific animal societies inspectors etc.) who become, in effect, quasi-state functionaries. This includes the societies against cruelty to children and animals which emerge as organisations which the state entrusts with certain public powers, and those functions remain considerably later than many other quasi-public entities disappear or at least diminish

Pricing, Bargaining and Big Data

'Big Data and Personalised Price Discrimination in EU Competition Law' (King's College London Law School Research Paper No. 2017-38) by Christopher Townley, Eric Morrison and Karen Yeung comments
The networked digital revolution is ushering in a new data-driven age, powered by the engine of Big Data. We generate a massive volume of digital data in our everyday lives via our on-line interactions, which can now be tracked on a continuous and highly granular basis. Being able to track this data has radically disrupted the retail sector through, amongst other things, digital personalisation. However, this is no longer limited to shopping recommendations and advertising delivered to our smartphones, laptops and other mobile devices, but may extend to the prices at which goods and services are offered to customers in on-line environments, making it possible for two individuals to be offered exactly the same product, at precisely the same time, but at different prices, based on an algorithmic assessment of each shopper’s predicted willingness to pay. This is done by mining consumers’ digital footprints, using machine learning algorithms to enable digital retailers to predict the price that individual consumers (‘final end users’) are willing to pay for particular items, and thus offer them different prices. This phenomenon, which we dub ‘algorithmic consumer price discrimination’ (ACPD) forms the focus of this paper.
The practice of price discrimination, which we define as “… charging different customers or different classes of customers different prices for goods or services whose costs are the same or, conversely, charging a single price to customers for whom supply costs differ…” is hardly a new phenomenon. Familiar forms include loyalty discounts, volume or multi-buy discounts, and the offering of status based discounts for students, old-age pensioners and the unemployed. However, the technological capacities of Big Data substantially enhance the ability of digital retailers to engage in much more precise, targeted and dynamic forms of price discrimination that were not previously possible.
There are many areas of law that might mount a response to rising public anxieties associated with these practices. Our paper examines ACPD from the perspective of competition law through which we seek to evaluate ACPD by reference to two contrasting normative values: economic efficiency, on the one hand, and fairness or equity on the other. Competition law provides a unique lens for interrogating the social implications of ACPD due to its distinctive character as a form of ‘economic law’ that is intended to protect and strengthen the process of rivalry in the marketplace. Although ‘traditional’ forms of price discrimination have long been the subject of economic analysis to evaluate whether they are economically efficient, algorithmic price discrimination has hitherto attracted relatively little critical analysis. As we demonstrate in Section 2, the incentives for firms to engage in ACPD often exist. We find that consumers are in the aggregate often better off, economically, when sellers can price discriminate in this way, thereby enhancing consumer surplus. However, this is not always the case. Furthermore, whether EU competition law is solely and exclusively concerned with economic efficiency, or whether it provides scope for non-efficiency based considerations in the application of its provisions, is a matter of debate.
Accordingly, in Section 3 we evaluate ACPD by reference to its fairness or justice (which we also call equity) understood in three distinct (and sometimes overlapping) ways: (a) the perceived fairness of pricing practices; (b) unfair dealing between online retailers and consumers (corrective justice); and (c) fairness as a requirement of distributive (or collective) justice. For each of these understandings of fairness, we identify points of convergence and conflict with economic evaluations of the effects of ACPD on aggregate consumer welfare. No Article 102 cases have directly considered the legality of ACPD.
Section 4 therefore interrogates existing Article 102 case law to ascertain whether ACPD would likely breach this provision. Because the current legal position is unclear, Section 5 draws together the efficiency and fairness evaluations by considering whether ACPD should be regarded as unlawful under EU competition law. We argue that where ACPD increases both consumer surplus and fairness, it should not breach Article 102. Conversely, where ACPD undermines both consumer welfare and fairness, then such practices should be unlawful under Article 102.
However, because economic and fairness evaluations of ACPD may conflict in specific cases, Section 5 also considers whether, in the light of the underlying justifications for EU competition law and the EU’s foundational principles, ACPD should be considered a violation of Article 102 where it undermines justice or equity, even though it may enhance consumer surplus, and vice versa. We deal with the clashes between these goals in two ways: first, we offer a partial reconciliation between these goals, by supplementing conventional economic analysis with insights from behavioural economics, thus enabling some fairness considerations that affect consumer welfare to be taken into account. Secondly, we suggest that fairness should have a secondary role when Article 102 is applied to ACPD, in the form of a ‘defence’ to an allegation of abuse of market power. On our suggested account, ACPD which reduces consumer surplus may nonetheless avoid falling foul of Article 102 if it can be justified on grounds of fairness. Section 6 concludes, suggesting that EU competition law may have a valuable but limited role to play in redressing some of the adverse impacts of ACPD, primarily by focusing on the consumer welfare effects of ACPD, and in which considerations of fairness and justice play a relevant, but nonetheless subsidiary, role. Competition law cannot, and should not, seek to solve all the social problems associated with market behaviour, including data-driven forms of personalised pricing.
'The End of Bargaining in the Digital Age' by Saul Levmore (Forthcoming) Cornell Law Review comments 
Bargaining is a fundamental characteristic of many markets and legal disputes, but it can be a source of inefficiency. Buyers often waste resources by searching for information about past prices, where a seller already holds that information. A second – and novel – source of social loss is that some buyers will avoid otherwise beneficial bargains because they recognize the seller’s advantage in any haggling match, and avoid sellers with negotiable prices. Similarly, parties might decline to accept settlement offers because they sense some disadvantage. This Article argues for mandated disclosure of past prices, and occasionally settlements, where these have been negotiable. The rule requires uniform or transparent pricing, where uniformity means that customers know that a price offered to them is the same as that offered to others, and transparency refers to the disclosure of past sale, or settlement, prices. The rule is applied to markets where consumers presently haggle with professional sellers, including the sale of medical services to hospital patients, law school merit scholarships offered to prospective students, and legal services sold to non-business clients. We additionally explore its potential in employment relationships, where it might be deployed to reduce male-female pay disparities.
A requirement of uniform or transparent transactions can limit a seller’s ability to price discriminate. There are a few markets in which price discrimination is desirable, sometimes to deliver important goods such as life-saving medicines and clean water. We demonstrate how those markets can be preserved alongside a requirement of transparency. Drawing on a variety of examples, including familiar disclosure rules in contracts, as well as compulsory licensing in copyright and the utmost good faith doctrine in insurance, this Article shows that law is conceptually equipped to address the social loss generated by duplicative search and other inefficiencies, and that pricing disclosure rules can be easily implemented, especially as markets increasingly digitize.

02 November 2017

DNA copyright

'DNA Copyright in the Administrative State' by Dan L. Burk in (2018) 51 UC Davis Law Review comments 
For nearly three decades, academics have toyed with the question of copyright protection for recombinant DNA sequences. Recent interest in synthetic biology has prompted a resurgence of such dubious speculation. But current advocates of DNA copyright have gone further than academic conjecture, attempting to register nucleotide sequences with the United States Copyright Office. Not surprisingly, the Register of Copyrights refused the application, setting the stage for a possible appeal to federal court. This scenario raises the general administrative law question as to the degree of deference a court should give to a registration decision of the Copyright Office. The issue is surprisingly complex, and precedents are sparse. In this paper I take up the question of administrative deference as it applies to synthetic biology and other technologies that could be the subjects of questionable copyright registration.