tag:theconversation.com,2011:/es/topics/law-78/articlesLaw – The Conversation2024-03-25T12:39:35Ztag:theconversation.com,2011:article/2263822024-03-25T12:39:35Z2024-03-25T12:39:35ZGary, Indiana’s lawsuit against gunmakers is shot down by a new law, after surviving 25 years of appeals<figure><img src="https://images.theconversation.com/files/583573/original/file-20240321-28-lcwl0.jpg?ixlib=rb-1.1.0&rect=26%2C26%2C5964%2C3961&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Indianapolis hosted the National Rifle Association's national convention in 2023.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NRAConvention/ce35a00799704e60b2b10016b1af0168/photo">AP Photo/Darron Cummings</a></span></figcaption></figure><p>After 25 years of legal wrangling, a lawsuit described as “<a href="https://indianacapitalchronicle.com/2024/03/15/holcomb-signs-bill-killing-garys-gunmaker-lawsuit-but-two-others-hang-in-the-balance/">the most consequential legal case</a> against the gun industry in this country” appears to have met its end – but the industry isn’t out of the legal woods just yet.</p>
<p>Back in 1999, the city of Gary, Indiana, filed a lawsuit attempting to hold firearm manufacturers responsible for failing to prevent illegal gun sales. On March 15, 2024, Indiana Gov. Eric Holcomb <a href="https://iga.in.gov/legislative/2024/bills/house/1235/details">signed a law</a> aimed at extinguishing the suit.</p>
<p>As a <a href="https://law.gsu.edu/profile/timothy-d-lytton/">legal scholar</a> who has <a href="https://press.umich.edu/Books/S/Suing-the-Gun-Industry2">followed the case</a> since it was <a href="https://www.bradyunited.org/legal-case/city-of-gary-v-smith-and-wesson-indiana-supreme-court-gun-lawsuit">first filed</a>, I believe that the now all-but-certain dismissal of this lawsuit represents a major setback for gun control advocates. </p>
<p>But it won’t stop other states from trying to use civil litigation to rein in the gun industry. To understand why, let’s take a closer look at how Gary’s lawsuit lasted so long in the Indiana courts, and how state lawmakers finally gunned it down.</p>
<h2>Blaming gunmakers for illegal retail sales</h2>
<p>In September 1999, Gary sued 11 leading handgun manufacturers, including Smith & Wesson, Beretta, Glock and Ruger. The suit alleged that <a href="https://caselaw.findlaw.com/court/in-supreme-court/1437577.html">a small group of gun stores</a> was responsible for a large amount of illegal gun sales in the state. </p>
<p>Through a <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/sting-operations">sting operation</a>, the Gary Police Department discovered that certain retailers conducted <a href="https://www.nssf.org/articles/beware-the-straw-purchase/">straw sales</a>, failed to perform required <a href="https://www.thetrace.org/2015/07/gun-background-check-nics-guide/">background checks</a> and intentionally sold guns directly to <a href="https://www.law.cornell.edu/uscode/text/18/922">ineligible buyers</a>. </p>
<p>The lawsuit further claimed that the gun manufacturers “intentionally ignored” these illegal practices to boost their profits, and so served as “knowing accomplices.”</p>
<p>Gary’s lawsuit demanded that the gunmakers compensate the city for the costs of emergency services, policing, lost tax revenues and lower property values caused by gun violence. Gary also asked the court to issue an order requiring the manufacturers to take reasonable measures to reduce the risk of illegal sales — for example, by cutting off the supply of weapons to gun stores with a record of illegal sales.</p>
<p>In 2001, a state trial court dismissed Gary’s lawsuit, but the city <a href="https://caselaw.findlaw.com/court/in-supreme-court/1437577.html">successfully appealed</a> to the Indiana Supreme Court, which, in 2003, sent the case back to the lower court for trial.</p>
<h2>The gun industry’s federal immunity shield</h2>
<p>In 2005, Congress passed the <a href="https://www.law.cornell.edu/uscode/text/15/chapter-105">Protection of Lawful Commerce in Arms Act</a>, or PLCAA, which prohibits lawsuits against firearm manufacturers and sellers for injuries arising out of criminal misuse of a gun. Armed with this new federal immunity shield, the gunmakers in the Gary lawsuit moved to dismiss the case a second time.</p>
<p>However, both the trial court and an appellate court refused to dismiss the case. The appellate court explained in a 2007 <a href="https://casetext.com/case/wesson-corp-v-gary">opinion</a> that the federal immunity shield didn’t apply to Gary’s case.</p>
<p>Although sweeping, PLCAA immunity <a href="https://www.law.cornell.edu/uscode/text/15/7903">doesn’t protect</a> a manufacturer or seller who “knowingly violated a state or federal statute applicable to the sale or marketing” of a firearm. The court reasoned that because the gunmakers had served as knowing accomplices to the violation of state and federal laws governing the sale of firearms, PLCAA immunity <a href="https://www.courtlistener.com/opinion/2032628/smith-wesson-corp-v-city-of-gary/?q=cites:(769351)">didn’t protect them</a>. </p>
<p>The Indiana Supreme Court <a href="https://www.casemine.com/judgement/us/59146884add7b049342c67bc">refused the gunmakers’ resquest</a> to appeal the decision, and the case went back down to the trial court again.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The governor of Indiana stands behind a podium during a presentation at an NRA event." src="https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583759/original/file-20240322-28-6wql6g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Indiana Gov. Eric Holcomb speaks to guests at the 2023 NRA-ILA Leadership Forum in Indianapolis.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/indiana-governor-eric-holcomb-speaks-to-guests-at-the-2023-news-photo/1251837109?adppopup=true">Jeremy Hogan/SOPA Images/LightRocket via Getty Images</a></span>
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<h2>Indiana’s state immunity shield</h2>
<p>In 2001, four years before Congress passed PLCAA, Indiana passed its own <a href="https://law.justia.com/codes/indiana/2017/title-34/article-12/chapter-3/section-34-12-3-3/">state law</a> granting firearm manufacturers and sellers immunity from civil lawsuits arising out of criminal misuse of weapons. In 2015, Indiana’s then-governor, Mike Pence, signed a law making the state’s immunity law retroactive to Aug. 26, 1999, four days before the city of Gary initially filed its lawsuit.</p>
<p>For a third time, the gunmakers moved to dismiss the lawsuit, and once again, the courts refused. </p>
<p>A 2019 <a href="https://casetext.com/case/city-of-gary-v-smith-wesson-corp-1">appellate court opinion</a> explained that the specific language of the state’s immunity statute did not cover the gunmakers’ alleged “willful blindness” to illegal retail sales of their weapons, making them accomplices to illegal activity.</p>
<p>The appellate court sent the case back to the trial court.</p>
<h2>The final blow</h2>
<p>In June 2023, the trial court allowed <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery">discovery</a> in the case to <a href="https://www.pressreader.com/usa/chicago-tribune/20240119/281552295720347">go forward</a>. During discovery, opposing parties in a lawsuit share information that may be later used as evidence in a trial. Amid wrangling over discovery requests, lawyers for Gary hoped to force the gunmakers to turn over any <a href="https://www.propublica.org/article/indiana-guns-gary-lawsuit-gunmakers-hb1235">internal documents</a> that would show if they knew about illegal activity among retailers who sell their products.</p>
<p>However, with the new law signed by the current governor, Holcomb, the discovery process has been preempted, and the case is all but certain to be dismissed — this time, for good.</p>
<p>The dismissal of Gary’s lawsuit means that gun control advocates have lost the most promising means of finding a <a href="https://smokinggun.org/">smoking gun</a> that they have long hoped would prove that gun manufacturers knowingly facilitate illegal sales.</p>
<p>In its defense, the gun industry has denounced lawsuits attempting to hold it responsible for firearm-related violence as <a href="https://www.nssf.org/articles/city-of-gary-25-years-of-discovery-abuse-of-legal-system-must-end/">frivolous fishing expeditions</a>. </p>
<p>The National Shooting Sports Foundation — the industry’s leading trade association — insists that industry defendants <a href="https://www.nssf.org/articles/city-of-gary-25-years-of-discovery-abuse-of-legal-system-must-end">have readily complied</a> with discovery requests in the Gary case to turn over sales records and to depose industry executives.</p>
<p>The group has also argued that holding gun manufacturers liable for the misuse of their products would be as absurd as holding car and beer companies <a href="https://www.nssf.org/articles/city-of-gary-25-years-of-discovery-abuse-of-legal-system-must-end/">liable for drunk driving</a>.</p>
<p>In my view, the industry’s <a href="https://www.propublica.org/article/indiana-guns-gary-lawsuit-gunmakers-hb1235">intensive lobbying efforts</a> in the state legislature to quash the lawsuit suggest it isn’t confident that it would ultimately prevail in court. The recent success of <a href="https://www.naag.org/issues/opioids/">lawsuits against opioid manufacturers</a> for enabling misuse of their products gives gunmakers good reason to seek legislative protection from lawsuits. </p>
<h2>What’s next?</h2>
<p>Not all state legislatures have been as eager as Indiana’s to shield the firearms industry from civil lawsuits. A growing number of states — including <a href="https://www.nysenate.gov/legislation/laws/GBS/898-B">New York</a>, <a href="https://casetext.com/statute/california-codes/california-civil-code/division-3-obligations/part-4-obligations-arising-from-particular-transactions/title-20-firearm-industry-responsibility-act/section-327350-definitions">California</a>, <a href="https://legiscan.com/IL/comments/HB0218/2023">Illinois</a>, <a href="https://casetext.com/statute/new-jersey-statutes/title-2c-the-new-jersey-code-of-criminal-justice/chapter-2c58-registration-of-manufacturers-and-wholesale-dealers-of-firearms/section-2c58-35-gun-industry-member-engage-in-public-nuisance-prohibited-consequences-reasonable-controls">New Jersey</a>, <a href="https://casetext.com/statute/delaware-code/title-10-courts-and-judicial-procedures/part-iii-procedure/chapter-39-pleading-and-practice/section-3930-civil-action-for-public-nuisance-by-firearm-industry-member">Delaware</a>, <a href="https://leg.colorado.gov/bills/sb23-168">Colorado</a>, <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=7.48.330">Washington</a> and <a href="https://www.capitol.hawaii.gov/session/archives/measure_indiv_Archives.aspx?billtype=HB&billnumber=426&year=2023">Hawaii</a> — have recently passed laws that make gunmakers liable for selling weapons without implementing “reasonable controls” to prevent illegal sales by retailers.</p>
<p>In these states, legislatures appear to be fanning the flames of civil litigation against the gun industry instead of trying to extinguish it.</p>
<p>What this means for the industry remains to be seen.</p><img src="https://counter.theconversation.com/content/226382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy D. Lytton has provided expert consulting services to law firms representing gun violence victims.</span></em></p>Expect other states to pick up the civil-litigation torch.Timothy D. Lytton, Regents' Professor & Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2260922024-03-22T12:31:14Z2024-03-22T12:31:14ZWhy March Madness is a special time of year for state budgets<figure><img src="https://images.theconversation.com/files/582647/original/file-20240318-24-4tudw6.jpg?ixlib=rb-1.1.0&rect=6%2C6%2C4390%2C3045&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Feeling lucky?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SportsBetting-ThingstoKnow/d07b68af393548588b8a646d5cdd79e9/photo?Query=sports%20betting&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1985&currentItemNo=2">Wayne Parry/AP Photo</a></span></figcaption></figure><p>March Madness – the time when the <a href="https://www.ncaa.com/march-madness-live/watch?cid=ncaa_mml_nav_men">best men’s</a> and <a href="https://www.ncaa.com/womens-di-championship?mml=1&cid=ncaa_mml_nav_women">women’s college</a> basketball teams challenge each other – is a made-for-television spectacle <a href="https://www.sportsmediawatch.com/2023/04/ncaa-national-championship-ratings-record-low-uconn-sdsu-cbs-mens/">watched by millions</a>. While <a href="https://www.ncaa.com/news/basketball-men/article/2023-03-08/march-madness-history-comprehensive-guide-mens-tournament">March Madness has been around for decades</a>, one of the tournament’s biggest changes happened in 2018, when the <a href="https://www.archerlaw.com/en/news-resources/client-advisories/landmark-u-s-supreme-court-decision-paves-the-way-for-legalized-sports-betting">Supreme Court struck down the ban on sports betting</a>. </p>
<p>Since then, legal sports betting has skyrocketed. Americans <a href="https://www.americangaming.org/resources/aga-commercial-gaming-revenue-tracker/">made US$120 billion of legal sports bets</a> in 2023, according to the American Gaming Association, which promotes gambling. In 2024, <a href="https://www.espn.com/espn/betting/story/_/id/39730969/estimate-projects-272b-wagers-ncaa-basketball-tournaments">the group predicts</a> Americans will place <a href="https://www.vox.com/2024/3/18/24102300/march-madness-sports-betting">$2.7 billion of legal bets</a> on March Madness alone.</p>
<p><a href="https://www.bu.edu/questrom/profile/jay-zagorsky/">I am</a> a <a href="https://www.bu.edu/questrom/">business school</a> professor fascinated by <a href="https://theconversation.com/what-is-march-madness-and-the-nonprofit-that-manages-the-mayhem-93202">March Madness</a> and <a href="https://theconversation.com/market-for-illegal-sports-betting-in-us-is-not-really-a-150-billion-business-96618">sports betting</a>. Studying sports betting has shown me <a href="https://theconversation.com/could-gambling-be-the-secret-to-saving-when-rates-are-so-low-57961">how valuable it is</a> for states short on cash. Unfortunately, it also has significant drawbacks, especially for <a href="https://www.ncpgambling.org/help-treatment/help-by-state/">gambling addicts</a> and their families. </p>
<h2>Why lawmakers love sports betting</h2>
<p>As of March 2024, <a href="https://www.americangaming.org/research/state-gaming-map/">38 states allow</a> some form of sports gambling, and six more are debating the issue. State lawmakers are interested in sports gambling because they have a fiscal problem. State spending over time has <a href="https://www.taxpolicycenter.org/statistics/state-and-local-direct-general-expenditures">increased in both absolute</a> and <a href="https://www.taxpolicycenter.org/statistics/state-and-local-direct-general-expenditures-capita">per-person terms</a> after <a href="http://businessmacroeconomics.com">adjusting for inflation</a>.</p>
<p>While state spending is increasing, state revenue from so-called “sin taxes” has flatlined after adjusting for inflation. <a href="https://www.lung.org/research/trends-in-lung-disease/tobacco-trends-brief/overall-tobacco-trends">People are smoking</a> and <a href="https://news.gallup.com/poll/353858/alcohol-consumption-low-end-recent-readings.aspx">drinking less</a>, reducing <a href="https://www.taxpolicycenter.org/statistics/state-and-local-tobacco-tax-revenue">revenue from cigarette</a> and <a href="https://www.taxpolicycenter.org/statistics/state-and-local-alcohol-tax-revenue">alcohol taxes</a>. Even <a href="https://www.taxpolicycenter.org/statistics/lottery-revenue">lottery revenue has flattened out</a> after growing strongly for decades.</p>
<p>Increased spending combined with a reluctance to raise taxes has led to a push to find new sources of revenue. That <a href="https://www.taxpolicycenter.org/publications/are-states-betting-sin-murky-future-state-taxation">makes sports betting an appealing</a> option to politicians.</p>
<h2>The statehouse always wins</h2>
<p><a href="https://www.nbcnews.com/news/sports/march-madness-basketball-sports-betting-rcna143773">Billions of dollars are wagered</a> on sports each year. More than 90% of the money bet goes to paying out winning gamblers. Gambling operators keep the rest, which they share with the states. The percentage kept, called the hold rate, has been <a href="https://www.legalsportsreport.com/111012/analysis-2023-us-sports-betting-hold-trend/">steadily climbing over time</a>, with 2023’s <a href="https://www.americangaming.org/wp-content/uploads/2024/01/CY-2024_CGRT_v2.pdf">national average at 9.1%</a> of the money bet.</p>
<p>State governments now collect <a href="https://www.census.gov/library/stories/2024/02/legal-sports-betting.html">about half a billion dollars each quarter</a>, or about $2 billion a year, from sports gambling. That’s roughly one-fifth of that 9.1%.</p>
<p>If gamblers bet around $3 billion on March Madness, then states will pocket over $50 million dollars in extra revenue just from a three-week basketball tournament.</p>
<h2>The ugly side of sports betting</h2>
<p>Gambling is wonderful for state revenues and <a href="https://www.espn.com/espn/betting/story/_/id/39563784/sports-betting-industry-posts-record-11b-2023-revenue">gaming-company profits</a>. However, it has <a href="https://www.independent.co.uk/news/uk/home-news/gambling-addiction-million-white-paper-b2322452.html">a dark side</a>: While many people enjoy gambling, <a href="https://theconversation.com/millions-of-americans-are-problem-gamblers-so-why-do-so-few-people-ever-seek-treatment-197861">millions of Americans have a gambling problem</a>. </p>
<p>Studies suggest <a href="https://link.springer.com/article/10.1007/s10899-014-9471-4">between 1% and 2%</a> of adults fall into this category. In Massachusetts, where I teach, a 2018 survey found that about 2% of adults were already problem gamblers, and <a href="https://www.umass.edu/seigma/sites/default/files/Seigma-GamblingHarm-Fact-Sheet-F2-2018%20copy.pdf">a further 8% were at risk</a>.</p>
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<p>Meanwhile, the number of calls to the <a href="https://www.ncpgambling.org/help-treatment/about-the-national-problem-gambling-helpline/">National Problem Gambling Helpline</a> lasting more than a minute <a href="https://public.tableau.com/app/profile/national.council.on.problem.gambling.ncpg/viz/NationalProblemGamblingHelplineDashboard-IncomingTraffic/IncomingTraffic">has increased sharply in recent years</a>. While this doesn’t mean that problem gambling has become more common – among other issues, correlation isn’t causation – the increase very closely matches the <a href="https://www.cbssports.com/general/news/u-s-sports-betting-here-is-where-all-50-states-currently-stand-on-legalizing-online-sports-betting-sites/">steady rollout of online sports betting</a> across the U.S.</p>
<h2>Two possible policy solutions</h2>
<p>Betting on sports was illegal before 2018. <a href="https://www.americangaming.org/illegal-sports-betting/">This forced gamblers</a> to either bet with a bookie or an offshore site. Betting with a bookie before 2018 was a relatively slow process. Gamblers typically needed to pay for their bets upfront with cash and ran the risk their bookie would be arrested or shut down.</p>
<p>Today, <a href="https://theconversation.com/sports-betting-how-in-play-betting-features-could-be-leading-to-harmful-gambling-new-research-177872">in-play or live betting</a> is legal and almost instantaneous. Bettors sitting on their couches at home can make multiple types of bets, such as which <a href="https://www.si.com/nba/mavericks/news/bad-beat-kristap-porzingis-missed-layup-cost-a-man-76000-dallas-mavericks">player will make the first shot</a> in a basketball game. In business terms, sports gambling went from extreme friction to a completely <a href="https://www.forbes.com/sites/shephyken/2019/06/09/are-you-providing-a-frictionless-customer-experience">frictionless experience</a>.</p>
<p>To reduce the harms of sports betting, I propose two ways to reinject friction into the system. The first is to prevent <a href="https://www.forbes.com/advisor/credit-cards/sports-betting/">credit cards from being used for online gambling</a>. While not every state and bank allows credit cards to fund a sports betting account, many do. Those credit cards that allow it often treat gambling payments as a <a href="https://www.citizensbank.com/learning/what-is-a-cash-advance.aspx">cash advance, which is very costly</a>.</p>
<p>The <a href="https://www.gamblingcommission.gov.uk/news/article/gambling-on-credit-cards-to-be-banned-from-april-2020">U.K. banned credit cards for remote gambling</a> in 2020, noting that people who used credit cards to gamble were <a href="https://consult.gamblingcommission.gov.uk/author/consultation-on-gambling-with-credit-cards/supporting_documents/Print%25252520the%25252520whole%25252520consultation%25252520%25252520gambling%25252520with%25252520credit%25252520cards.pdf">disproportionately likely to be problem gamblers</a>. <a href="https://ministers.dss.gov.au/media-releases/13411">Australia has also banned</a> online bets made with credit cards. A few U.S. states, <a href="https://www.wfmj.com/story/50551277/pa-lawmakers-introduce-bill-limiting-payment-options-for-online-gambling">such as Massachusetts and Tennessee</a>, have also instituted these sorts of bans, but most have not.</p>
<p>The second idea, which I prefer, is to <a href="https://podcasts.apple.com/au/podcast/the-case-for-cash-a-counterpoint-to-cashless/id1464022779?i=1000634760222">revert to common practice before 2018</a> of using cash to bet. The idea is simple. Anyone with an online gambling account would need to prefund their account with cash. Winners would never have to stop gambling.</p>
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<a href="https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Bags of cash and printout of a March Madness schedule are seen on a police evidence table." src="https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In this 2006 file photo, the Brooklyn district attorney’s office presents evidence used to arrest 10 men in a sports betting ring. New Yorkers can now legally bet on March Madness.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-brooklyn-district-attorneys-office-presents-evidence-news-photo/526086920">Ramin Talaie/Corbis via Getty Images</a></span>
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<p>Losers, however, would be forced to temporarily stop betting when their account runs out of money. Needing to take a break to go to a bank or simply pull money out of your wallet and hand it to someone would give people a chance to think about what they’re doing instead of being stuck in the <a href="https://dolby.io/blog/revolutionizing-microbetting-in-sports-with-real-time-streaming/">moment of a bet-bet-bet mindset</a>.</p>
<p>In theory, people could deposit cash into their accounts at any of the <a href="https://www.naspl.org/faq">roughly 223,000 locations across the country that sell lottery tickets</a>. To implement this idea, however, the federal government would need to change a law. <a href="https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-44">Since 1955</a>, it has imposed a <a href="https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-44/subpart-C/section-44.4411-1">special yearly tax of $50 on each person</a> who accepts bets for profit. </p>
<p><a href="https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-44/subpart-B/section-44.4402-1">The law</a> <a href="https://www.irs.gov/pub/irs-tege/eotopice99.pdf">exempts charities and state lotteries</a>. This tax doesn’t raise much revenue already, <a href="https://www.bls.gov/oes/current/oes393019.htm">since so few people are subject</a> to it. It also reduces employment, as well as gambling companies’ interest in allowing in-person prefunding of accounts.</p>
<p>If you’re watching March Madness and betting on the tournament, I hope you win. But even if you don’t, at least your state government will.</p><img src="https://counter.theconversation.com/content/226092/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay L. Zagorsky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When the US Supreme Court legalized sports betting, states were quick to get in on the action. But as lawmakers grow reliant on taxes from betting, what do they owe problem gamblers?Jay L. Zagorsky, Associate Professor of Markets, Public Policy and Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2234222024-03-21T12:25:56Z2024-03-21T12:25:56ZWhy are Americans fighting over no-fault divorce? Maybe they can’t agree what marriage is for<p>“First comes love, then comes marriage” – so goes the classic children’s rhyme. But not everyone agrees. Increasingly, the idea that love is the most important reason to marry – or at least to stay married – is under attack. Republican pundits and lawmakers have been pushing back on the availability of no-fault divorce, challenging the idea that not being in love is a valid reason to end a marriage. </p>
<p>Speaking as a <a href="https://sc.edu/study/colleges_schools/law/faculty_and_staff/directory/yablonzug_marcia.php">professor of family law</a>, I know such views aren’t new. Zsa Zsa Gabor <a href="https://www.bbc.com/news/entertainment-arts-10984784">once quipped</a>, “Getting divorced just because you don’t love a man is almost as silly as getting married just because you do.” But while Gabor was probably joking, the Republican attack on divorce is serious.</p>
<h2>A history of American divorce</h2>
<p>For most of U.S. history, getting a divorce was difficult. Many states <a href="https://www.washingtonpost.com/history/2022/07/03/south-dakota-divorce-capital/">banned it entirely</a>, while others permitted it only under limited circumstances – typically <a href="https://daily.jstor.org/the-lost-history-of-no-fault-divorces/">cruelty, desertion or adultery</a>. Unhappily married couples who couldn’t prove such “faults” were effectively stuck.</p>
<p>Then, in 1969, California became the first state to <a href="https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1057&context=callaw">allow no-fault divorce</a> – meaning that a spouse could get a divorce simply by asking for it, without having to prove that their partner had done something wrong first. </p>
<p>After California enacted no-fault divorce, the rest of the states quickly followed. By 1977, 47 states permitted no-fault divorce, and by 1985, <a href="https://www.routledge.com/No-fault-Divorce-What-Went-Wrong/Parkman/p/book/9780367154394">all 50 states permitted some form of no-fault divorce</a>.</p>
<p>But now, nearly 50 years later, no-fault divorce is under increasing attack.</p>
<p>The issue gained <a href="https://www.rollingstone.com/politics/politics-features/stephen-crowder-divorce-1234727777/">renewed</a> <a href="https://www.cnn.com/2023/05/18/opinions/crowder-right-wing-rhetoric-about-divorce-ignores-history-shanley/index.html">national</a> <a href="https://www.christianpost.com/voices/steven-crowder-and-no-fault-divorce.html">attention</a> in 2023, when Steven Crowder, a conservative commentator who prides himself on his “provocative” views, expressed outrage and disbelief that his wife could divorce him without his consent. </p>
<p>Crowder isn’t alone in such criticisms: Divorce has become a hot topic among many red-state Republican lawmakers. Most recently, in January 2024, Oklahoma lawmaker Dusty Deevers proposed a bill to <a href="https://www.oklahoman.com/story/news/2024/01/26/no-fault-divorce-law-oklahoma-senator-wants-to-end/72354142007/">eliminate no-fault divorce</a> and suggested <a href="https://www.newsweek.com/dusty-deevers-public-shaming-people-who-divorce-republican-senate-1848878">“public shaming”</a> of spouses who commit marital fault and then divorce. Restricting no-fault divorce is also part of both the <a href="https://texasgop.org/wp-content/uploads/2022/07/2022-RPT-Platform.pdf">Texas</a> and <a href="https://ne.gop/issues/">Nebraska</a> Republican Party platforms, and was <a href="https://www.wwno.org/news/2023-01-12/louisiana-republican-party-considers-backing-elimination-of-no-fault-divorce">recently debated</a> by Louisiana lawmakers.</p>
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<figcaption><span class="caption">Oklahoma’s KFOR reports on a proposal to end no-fault divorce in the state.</span></figcaption>
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<p>The ability to divorce regardless of what the other party wants is the essence of no-fault divorce. I think it’s alarming that it’s under attack. Nevertheless, the idea that not being in love is a valid reason to divorce is an assumption that should be questioned. It’s based on the idea that love is the purpose of marriage, and that itself is debatable.</p>
<h2>What’s marriage for, anyway?</h2>
<p>Marriage is a legal status that confers important rights and benefits on the married, and these rights and benefits <a href="https://books.google.com/books/about/Public_Vows.html?id=Jnh7ylcLaB4C">have nothing to do with love</a>. In fact, the purpose of these advantages is to give couples non-love reasons to marry. The idea is that the social benefits of marriage are so significant that incentivizing marriage, or even flat-out <a href="https://www.thenation.com/article/archive/hotgun-weddings/">paying people to marry</a>, is justified.</p>
<p>For an example of this kind of cost-benefit analysis, consider the policy debate over whether children are better off being raised by two married parents. In her recent book “<a href="https://press.uchicago.edu/ucp/books/book/chicago/T/bo205550079.html">The Two-Parent Privilege: How Americans Stopped Getting Married and started Falling Behind</a>,” economics professor Melissa Kearney argues that this advantage is significant and wide-ranging. Not surprisingly, Kearney’s work was <a href="https://ifstudies.org/blog/the-ultimate-privilege-two-parent">eagerly embraced by</a> <a href="https://www.wsj.com/articles/marriage-economist-kearney-two-parent-privilege-socioeconomic-mobility-equity-single-mother-divorce-4b499a5e">pro-marriage advocates</a> and has reinvigorated <a href="https://www.brookings.edu/events/the-two-parent-privilege-a-conversation-on-the-case-for-marriage">long-standing discussions</a> <a href="https://www.niskanencenter.org/discussion-on-marriage-economic-opportunity-and-family-flourishing-with-melissa-kearney">about how to</a> <a href="https://www.politico.com/news/magazine/2024/01/06/marriage-political-expert-roundtable-00133856">further encourage marriage</a>. </p>
<p>If children do better when raised by married parents, it’s understandable that the government would enact laws and policies to promote marriage. It also explains why the government might seek to limit divorce. This is a purely instrumental view of marriage, and one that would have been <a href="https://www.hup.harvard.edu/books/9780674008755">very familiar to 18th- and 19th-century Americans</a>. </p>
<p>For most of U.S. history, marriage was unabashedly transactional. Laws <a href="https://www.hup.harvard.edu/books/9780674008755">essentially guaranteed</a> that most men and women would wed; love had nothing to do with it.</p>
<h2>Striking a ‘marital bargain’</h2>
<p>Historians refer to marrying for legal and economic benefits as the “<a href="https://casetext.com/case/perry-v-schwarzenegger-10">marital bargain</a>.” However, in the late 19th century, acceptance of the transactional nature of the marital bargain began to wane, and publicly, men and women began to declare that <a href="https://search.worldcat.org/title/marriage-a-history-how-love-conquered-marriage/oclc/64589809">love was the purpose of marriage</a>. As historian Nancy Cott writes in her book “<a href="https://www.hup.harvard.edu/books/9780674008755">Public Vows</a>,” by the turn of the 20th century, American culture had “put love and money on opposite sides of the street.” </p>
<p>My book, “<a href="https://steerforth.com/product/youll-do-9781586423742/">You’ll Do: A History of Marrying for Reasons Other than Love</a>,” also explores this history and shows how Americans went from encouraging the marital bargain to viewing it as harmful, both to couples and to the institution of marriage as a whole. </p>
<p>Despite the public view that love is the only reason to marry, the law takes a more practical approach, recognizing that love alone may not be enough to get couples to the altar. That’s why it continues to encourage marriage for instrumental reasons, with <a href="https://steerforth.com/product/youll-do-9781586423742/">benefits ranging from tax breaks and immigration preferences to criminal law defenses</a>.</p>
<p>When marriage was a clear bargain for exchange, the benefits of the union were obvious. Like the 19th-century marital advertisement “<a href="https://abcnews.go.com/GMA/story?id=700646">Man with farm seeks woman with tractor</a>,” each side knew exactly what they were getting. Now, the purpose of marriage is less clear. I believe the move to eliminate no-fault divorce is simply the latest symptom of this confusion regarding the goals of marriage.</p>
<p>If marriage is about love, then a lack of love should be the quintessential reason to divorce. However, if marriage is a contract for benefits, then it isn’t surprising that Crowder and other no-fault critics are outraged that it can be unilaterally broken. Although the push to eliminate no-fault divorce is presented as a fight over the purpose of divorce, it’s really a fight over the meaning of marriage.</p><img src="https://counter.theconversation.com/content/223422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marcia Zug does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A growing number of Republicans say that you shouldn’t be able to divorce simply because you’ve fallen out of love. It’s an idea with a long history.Marcia Zug, Professor of Family Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2261202024-03-20T04:45:08Z2024-03-20T04:45:08ZThe government is fighting a new High Court case on immigration detainees. What’s it about and what’s at stake?<p>The government will be on tenterhooks again next month when the High Court of Australia hears another case that could lead to the release of a further cohort of people currently in immigration detention. </p>
<p>Given the ongoing political fallout of the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">previous controversial</a> High Court case, the outcome of this one will be closely watched.</p>
<p>So why is this new case so significant, and how does it differ from the last one?</p>
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<a href="https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226">What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system</a>
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<h2>What is the case about?</h2>
<p>The case is called <em>ASF17 v Commonwealth</em>. It concerns an <a href="https://www.hcourt.gov.au/assets/cases/07-Perth/p7-2024/ASF17-Cth-App.pdf">Iranian citizen</a> who has been held in immigration detention for ten years. He failed in his application for a protection visa and is therefore subject to an obligation that he be deported as soon as reasonably practicable. </p>
<p>However, he has hindered his deportation (or “frustrated” it, in legal terms) by refusing to meet with Iranian officials to secure the travel documents needed for his return to Iran. </p>
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<p>He says he has good reason not to want to be returned to Iran because he is bisexual, has converted to Christianity, is Kurdish and has opposed the mistreatment of women by the Iranian government. </p>
<p>He says he fears for his life if he is removed to Iran, but he is prepared to cooperate in his removal to any country other than Iran.</p>
<p>The Commonwealth has accepted there is no prospect of his removal to any country other than Iran. It has also accepted that he cannot be removed to Iran without his cooperation, as Iran does not accept involuntary removals. </p>
<p>So does this mean he’ll be released in accordance with the High Court’s <a href="https://theconversation.com/new-laws-to-deal-with-immigration-detainees-were-rushed-leading-to-legal-risks-219384">previous <em>NZYQ</em> case</a>? </p>
<h2>How is this different from the previous case?</h2>
<p>You might remember the <em>NZYQ</em> case from late last year. In it, the court found a stateless Rohingya refugee, who couldn’t secure a visa because of previous criminal convictions, <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">couldn’t be held</a> in indefinite detention. This was because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”. </p>
<p>The decision overturned a 2004 precedent and triggered the release of at least <a href="https://www.abc.net.au/news/2024-02-12/half-released-immigration-detainees-convicted-violent-offending/103455458">149 other detainees</a> in similar situations.</p>
<p>The Commonwealth has argued ASF17’s case falls into a different category, because whether there is a practical prospect of removal must be assessed on the basis that the detainee is cooperating. </p>
<p>When the case was first heard in the Federal Court, the Commonwealth argued that when assessing whether there is a practical prospect of deporting a detainee, delays caused by the detainee not cooperating shouldn’t be taken into account. This is regardless of whatever may be the reasons for his or her non-cooperation. </p>
<p>Justice Colvin, in the Federal Court, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/7.html">accepted</a> the Commonwealth’s argument. He pointed out that the reasons for refusal to cooperate, including fear of persecution on return to Iran, were matters separately dealt with during his application for a protection visa. </p>
<p>Once the detainee had reached the end of his appeals on this point, he was being held solely for the purpose of removal from Australia, so the reasons for his concerns could not be revisited. </p>
<p>Justice Colvin concluded that the assessment of whether there was a real prospect of his removal becoming practicable in the reasonably foreseeable future then had to be made on the basis of the detainee’s cooperation in taking relevant steps towards deportation. This was the case even if the detainee refused to act. </p>
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<a href="https://theconversation.com/new-laws-to-deal-with-immigration-detainees-were-rushed-leading-to-legal-risks-219384">New laws to deal with immigration detainees were rushed, leading to legal risks</a>
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<h2>The appeal to the High Court</h2>
<p>ASF17 then appealed to the Full Federal Court, and the Commonwealth government successfully sought the removal of this case directly into the High Court. This is because the lower courts have not been acting consistently on this point. </p>
<p>For example, in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2023/1497.html"><em>AZC20 v Secretary, Department of Home Affairs (No 2)</em></a>, an Iranian detainee who had never been convicted of a crime and had been held in detention for ten years was ordered to be released, despite the fact he was refusing to cooperate with his removal to Iran (although he was prepared to cooperate with his removal to any other country). The Commonwealth therefore wants the High Court to resolve the uncertainty and give a clear decision.</p>
<p>Previously, in its <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/37.html"><em>NZYQ</em> judgment</a>, the High Court distinguished that case from cases in which the detainee seeks to frustrate attempts to deport them. </p>
<p>This justifies the Commonwealth’s approach of treating detainees who have frustrated their deportation as being in a different category. It still, however, leaves it open to the High Court to decide whether they should be released or remain in detention. </p>
<p>In the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/17.html">past</a>, the High Court has not been sympathetic to those who have sought to thwart their deportation by telling falsehoods about their identity, noting that the courts are disinclined to allow a party to take advantage of his or her own wrongful conduct. </p>
<p>But whether honest non-cooperation, as opposed to falsehoods, would be treated the same way remains to be seen.</p>
<h2>How many detainees will be affected?</h2>
<p>The decision in this case is likely to affect a wider cohort of people in immigration detention who cannot be deported because they have refused to cooperate. <a href="https://www.smh.com.au/politics/federal/the-unwanted-high-court-to-determine-the-fate-of-another-127-in-limbo-20240318-p5fdah.html">Some countries</a>, such as Iran, do not accept the involuntary return of their citizens, which means detainees can prevent their deportation to these countries by refusing to cooperate. </p>
<p>According to <a href="https://www.theguardian.com/australia-news/2024/mar/20/australia-asf17-immigration-detainees-high-court-challenge-more-than-170-could-be-freed">The Guardian</a>, a leaked government document estimated that about 170 people currently in detention could be affected, although the minister has refused to discuss numbers or the details of the case while it is before the courts.</p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<p>If the High Court were to decide that a person could prevent their deportation by refusing to cooperate and could use this to cause their release into the community, it would give detainees a great incentive to refuse cooperation in deportation matters. </p>
<p>The Commonwealth has strong arguments on its side, but as always it is a matter for the High Court ultimately to decide.</p><img src="https://counter.theconversation.com/content/226120/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received grants from the ARC and occasionally does consultancy work for governments, Parliaments and inter-governmental bodies. She is also a consultant with Gilbert + Tobin Lawyers, which does pro bono work for refugee claimants.</span></em></p>The government will head back to the High Court next month for another immigration case. If it loses, there could be wide-ranging consequences.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2250802024-03-12T19:15:10Z2024-03-12T19:15:10ZAI is creating fake legal cases and making its way into real courtrooms, with disastrous results<figure><img src="https://images.theconversation.com/files/581132/original/file-20240312-16-84kk3r.jpg?ixlib=rb-1.1.0&rect=30%2C24%2C4082%2C2713&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/lady-justice-on-digital-background-concept-1044578125">Shutterstock</a></span></figcaption></figure><p>We’ve seen deepfake, explicit images of <a href="https://www.nytimes.com/2024/01/26/arts/music/taylor-swift-ai-fake-images.html">celebrities</a>, created by artificial intelligence (AI). AI has also played a hand in <a href="https://theconversation.com/the-ghosts-of-the-past-pop-music-is-haunted-by-our-anxieties-about-the-future-218555">creating music</a>, <a href="https://theconversation.com/bringing-ai-up-to-speed-autonomous-auto-racing-promises-safer-driverless-cars-on-the-road-214208">driverless race cars</a> and spreading <a href="https://theconversation.com/misinformation-how-fact-checking-journalism-is-evolving-and-having-a-real-impact-on-the-world-218379">misinformation</a>, among other things.</p>
<p>It’s hardly surprising, then, that AI also has a strong impact on our legal systems.</p>
<p>It’s well known that courts must decide disputes based on the law, which is presented by lawyers to the court as part of a client’s case. It’s therefore highly concerning that fake law, invented by AI, is being used in legal disputes. </p>
<p>Not only does this pose issues of legality and ethics, it also threatens to undermine faith and trust in global legal systems.</p>
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Read more:
<a href="https://theconversation.com/lawyers-are-rapidly-embracing-ai-heres-how-to-avoid-an-ethical-disaster-221135">Lawyers are rapidly embracing AI: here's how to avoid an ethical disaster</a>
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<h2>How do fake laws come about?</h2>
<p>There is little doubt that generative AI is a powerful tool with transformative potential for society, including many aspects of the legal system. But its use comes with responsibilities and risks.</p>
<p>Lawyers are trained to carefully apply professional knowledge and experience, and are generally not big risk-takers. However, some unwary lawyers (and <a href="https://reason.com/volokh/2023/11/13/self-represented-litigants-use-ai-to-write-briefs-produce-hallucinated-citations/">self-represented</a> litigants) have been caught out by artificial intelligence.</p>
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<a href="https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="ChatGPT on a smartphone screen in front of the same website on a laptop screen" src="https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581133/original/file-20240312-16-rhmkk1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Generative AI tools, like ChatGPT, can provide incorrect information.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/chatgpt-chat-bot-screen-seen-on-2237655785">Shutterstock</a></span>
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<p>AI models are trained on massive data sets. When prompted by a user, they can create new content (both text and audiovisual). </p>
<p>Although content generated this way can look very convincing, it can also be inaccurate. This is the result of the AI model attempting to “fill in the gaps” when its training data is inadequate or flawed, and is commonly referred to as “<a href="https://www.csiro.au/en/news/All/Articles/2023/June/humans-and-ai-hallucinate">hallucination</a>”.</p>
<p>In some contexts, generative AI hallucination is not a problem. Indeed, it can be seen as an example of creativity. </p>
<p>But if AI hallucinated or created inaccurate content that is then used in legal processes, that’s a problem – particularly when combined with time pressures on lawyers and a lack of access to legal services for many. </p>
<p>This potent combination can result in carelessness and shortcuts in legal research and document preparation, potentially creating reputational issues for the legal profession and a lack of public trust in the administration of justice.</p>
<h2>It’s happening already</h2>
<p>The best known generative AI “fake case” is the 2023 US case <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv01461/575368/54/">Mata v Avianca</a>, in which lawyers submitted a brief containing fake extracts and case citations to a New York court. The brief was researched using ChatGPT. </p>
<p>The lawyers, unaware that ChatGPT can hallucinate, failed to check that the cases actually existed. The consequences were disastrous. Once the error was uncovered, the court dismissed their client’s case, sanctioned the lawyers for acting in bad faith, fined them and their firm, and exposed their actions to public scrutiny.</p>
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<a href="https://theconversation.com/ai-is-everywhere-including-countless-applications-youve-likely-never-heard-of-222985">AI is everywhere – including countless applications you've likely never heard of</a>
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<p>Despite adverse publicity, other fake case examples continue to surface. Michael Cohen, Donald Trump’s former lawyer, gave his own lawyer cases generated by Google Bard, another generative AI chatbot. He believed they were real (they were not) and that his lawyer would fact check them (he did not). His lawyer <a href="https://www.reuters.com/legal/ex-trump-fixer-michael-cohen-says-ai-created-fake-cases-court-filing-2023-12-29">included the cases</a> in a brief filed with the US Federal Court.</p>
<p>Fake cases have also surfaced in recent matters in <a href="https://www.cbc.ca/news/canada/british-columbia/lawyer-chatgpt-fake-precedent-1.7126393">Canada</a> and <a href="https://www.legalfutures.co.uk/latest-news/litigant-unwittingly-put-fake-cases-generated-by-ai-before-tribunal">the United Kingdom</a>.</p>
<p>If this trend goes unchecked, how can we ensure that the careless use of generative AI does not undermine the public’s trust in the legal system? Consistent failures by lawyers to exercise due care when using these tools has the potential to mislead and congest the courts, harm clients’ interests, and generally undermine the rule of law.</p>
<h2>What’s being done about it?</h2>
<p>Around the world, legal regulators and courts have responded in various ways. </p>
<p>Several US state bars and courts have issued guidance, opinions or orders on generative AI use, ranging from responsible adoption to an outright ban. </p>
<p>Law societies in the UK and British Columbia, and the courts of New Zealand, have also developed guidelines. </p>
<p>In Australia, the NSW Bar Association has a <a href="https://inbrief.nswbar.asn.au/posts/9e292ee2fc90581f795ff1df0105692d/attachment/NSW%20Bar%20Association%20GPT%20AI%20Language%20Models%20Guidelines.pdf">generative AI guide</a> for barristers. The <a href="https://lsj.com.au/articles/a-solicitors-guide-to-responsible-use-of-artificial-intelligence/">Law Society of NSW</a> and the <a href="https://www.liv.asn.au/Web/Law_Institute_Journal_and_News/Web/LIJ/Year/2023/09September/How_lawyers_are_using_generative_AI.aspx">Law Institute of Victoria</a> have released articles on responsible use in line with solicitors’ conduct rules.</p>
<p>Many lawyers and judges, like the public, will have some understanding of generative AI and can recognise both its limits and benefits. But there are others who may not be as aware. Guidance undoubtedly helps. </p>
<p>But a mandatory approach is needed. Lawyers who use generative AI tools cannot treat it as a substitute for exercising their own judgement and diligence, and must check the accuracy and reliability of the information they receive.</p>
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Read more:
<a href="https://theconversation.com/do-you-trust-ai-to-write-the-news-it-already-is-and-not-without-issues-216909">Do you trust AI to write the news? It already is – and not without issues</a>
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<p>In Australia, courts should adopt practice notes or rules that set out expectations when generative AI is used in litigation. Court rules can also guide self-represented litigants, and would communicate to the public that our courts are aware of the problem and are addressing it.</p>
<p>The legal profession could also adopt formal guidance to promote the responsible use of AI by lawyers. At the very least, technology competence should become a requirement of lawyers’ continuing legal education in Australia. </p>
<p>Setting clear requirements for the responsible and ethical use of generative AI by lawyers in Australia will encourage appropriate adoption and shore up public confidence in our lawyers, our courts, and the overall administration of justice in this country.</p><img src="https://counter.theconversation.com/content/225080/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vicki McNamara is affiliated with the Law Society of NSW (as a member).</span></em></p><p class="fine-print"><em><span>Michael Legg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Generative AI can be a useful tool, but it can also create inaccurate information. Here’s how to safeguard Australian courts against fake cases, like we’ve already seen overseas.Michael Legg, Professor of Law, UNSW SydneyVicki McNamara, Senior Research Associate, Centre for the Future of the Legal Profession, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2226652024-03-07T15:00:05Z2024-03-07T15:00:05ZFemicide in Italy: A modern phenomenon deeply rooted in country’s cultural past<p>“Femicide is not a crime of passion, it is a crime of power,” wrote Elena Cecchettin <a href="https://www.theguardian.com/world/2023/nov/25/anger-across-italy-as-killing-of-student-highlights-countrys-femicide-rate">after her sister</a> was killed in November 2023.</p>
<p>Italian student Giulia Cecchettin, 22, was killed allegedly by her controlling ex-boyfriend, Filippo Turetta, a fellow student at a university in Padua. Not being able to handle the breakup, Turetta <a href="https://www.bbc.com/news/world-europe-67530529">lured Giulia into one last shopping trip together</a> before killing her, prosecutors claim. Her body, <a href="https://www.ilmessaggero.it/en/life_behind_bars_filippo_turetta_s_new_routine-7910899.html">with more than 20 stab wounds</a>, was found at the bottom of a ditch. Turetta fled to Germany, was caught <a href="https://www.ilmessaggero.it/en/life_behind_bars_filippo_turetta_s_new_routine-7910899.html">and is now behind bars awaiting trial in Italy</a>, according to the latest reports from Italy. </p>
<p>Cecchettin’s case has grabbed headlines in Italy <a href="https://nypost.com/2024/01/06/opinion/stop-ignoring-violence-against-women-in-italy/">and worldwide</a>. But it is not unique. Femicide – <a href="https://www.oxfordlearnersdictionaries.com/us/definition/english/femicide#:%7E:text=%2F%CB%88fem%C9%AAsa%C9%AAd%2F-,%2F%CB%88fem%C9%AAsa%C9%AAd%2F,girl%20because%20she%20is%20female">the act of killing women on account of their gender</a> – is worryingly common in Italy. At least <a href="https://www.ansa.it/english/news/2023/12/11/109-women-murdered-in-italy-so-far-in-2023-study_b1b82904-4d40-47e6-8758-ed3450567548.html#:%7E:text=As%20of%20December%203%2C%20109,criminal%20police%20presented%20on%20Monday">109 women were killed in Italy in 2023</a>; more than half were murdered by a partner or an ex-partner.</p>
<p>International <a href="https://www.europeandatajournalism.eu/cp_data_news/in-italy-femicides-are-not-decreasing-like-homicides/">comparisons on femicide rates can be difficult</a>, but those who do track such numbers suggest that Italy’s femicide problem has been persistent. So much so that cultural organization <a href="https://inarea.com/en/case-study/treccani/">the Institute of the Italian Encyclopedia Treccani</a> chose “femicide” as <a href="https://www.unionesarda.it/en/the-word-of-the-year-for-2023-treccani-chooses-quot-femicidequot-ozm95r5j">2023’s word of the year</a>.</p>
<p>In an attempt to address the high rates of femicide, on Dec. 12, 2023, a new law went into effect in Italy titled <a href="https://www.loc.gov/item/global-legal-monitor/2023-12-27/italy-new-law-to-combat-violence-against-women-and-domestic-violence-enters-into-effect">Provisions for Combating Violence Against Women and Domestic Violence</a>. Although the law strengthens protection for women by broadening the definition of unlawful conduct related to domestic violence and by increasing penalties for offenders, the legislation has its limits.</p>
<p>One of the ministers who proposed that law, Eugenia Maria Roccella, <a href="https://www.nytimes.com/2023/11/22/world/europe/italy-giulia-cecchettin-violence-against-women.html">emphasized how laws had failed to protect Giulia Cecchettin</a>, or “any other women who did not suspect the violence brooding in the heart of the man who claimed to love them.” </p>
<p>Indeed, Elena Cecchettin pointed at a cultural factor in the killing of her sister and other women in Italy: a patriarchal society in which male violence and control has long been accepted. “<a href="https://www.bbc.com/news/world-europe-67514334">Monsters are healthy sons of the patriarchy and rape culture</a>,” she said.</p>
<h2>The Roman rule</h2>
<p>Femicide is a cultural phenomenon with deep roots that go back millennia.</p>
<p>Many premodern societies were patriarchal and violent, but Italy is in many ways unique. The legacies of the Roman Empire, Italian Fascism and Roman Catholicism still loom large. Each, I would argue, has contributed to a modern Italy in which male violence has been normalized. </p>
<p>The history of Rome is <a href="https://www.thefrenchhistorypodcast.com/metoo-and-roman-rape-culture-with-darah-vann-orr/">inseparable from misogyny and rape</a>; it is present in the city-state’s origin story. When Romulus found his newly born city bereft of women, he trapped unmarried girls and women from the neighboring Sabine tribe and kept them as Roman concubines. By the time the Sabines sought revenge, many of the tribe’s daughters and sisters were either carrying or had given birth to Romans. <a href="https://www.britannica.com/topic/Sabine">The women</a>, so the story goes, ran onto the battlefield as live shields to <a href="https://www.metmuseum.org/art/collection/search/359809">secure peace between their fathers and Roman captors</a>.</p>
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<img alt="A painting depicts women being abducted by Romen men." src="https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580308/original/file-20240306-18-2g9zim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Pietro da Cortona’s painting ‘Rape of the Sabine Women.’</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/d/d8/Cortona_Rape_of_the_Sabine_Women_01.jpg">Wikmedia Commons</a></span>
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<p>Roman women were treated as second-class citizens. During <a href="https://www.britannica.com/topic/Colosseum">gladiator fights</a>, women were allowed to <a href="https://www.smithsonianmag.com/smart-news/please-find-your-seats-evidence-seating-plan-discovered-colosseum-180954023/">sit only in the worst seats</a>, next to the slaves. Women’s disobedience resulted in severe physical punishment, with instances of Roman women being <a href="https://blogs.unimelb.edu.au/shaps-research/2022/06/01/domestic-violence-and-the-law-in-ancient-rome/">kicked to death, drowned and thrown from windows</a>. </p>
<p>Higher social status did not protect women. Emperor <a href="https://blogs.unimelb.edu.au/shaps-research/2022/06/01/domestic-violence-and-the-law-in-ancient-rome/">Nero’s first wife and his mother were murdered on his orders</a>; Nero’s second wife was kicked to death while pregnant. Even <a href="https://www.britannica.com/topic/Vestal-Virgins">Vestal Virgins</a>, holy Roman priestesses, <a href="https://www.britannica.com/topic/Vestal-Virgins">were buried alive</a> if they violated their vow of chastity or let the eternal flame die. </p>
<p>While prostitutes and actresses <a href="https://www.focus.it/cultura/curiosita/che-cose-la-suburra">were traded</a>, <a href="https://www.focus.it/cultura/storia/diritto-di-bacio-antica-roma">raped and killed</a>, noble women were subject to “<a href="https://historicaleve.com/right-to-kiss-in-ancient-rome/">the right to kiss</a>.” Through that law, male relatives were allowed to “test” women to make sure they had not drunk wine. Violating that “right to kiss” and the no-alcohol policy <a href="https://www.focus.it/cultura/storia/diritto-di-bacio-antica-roma">was punishable by death</a>.</p>
<p>Misogyny was so endemic that Roman law <a href="https://theconversation.com/ancient-rome-didnt-have-specific-domestic-violence-legislation-but-the-laws-they-had-give-us-a-window-into-a-world-of-abuse-179460">focused on preserving a woman’s chastity</a> rather than on punishing the perpetrator in the case of rape. Roman centurion <a href="https://artuk.org/discover/artworks/libertatis-virginia-killed-by-her-father-to-protect-her-from-appius-claudius-221779">Lucius Verginius killed his daughter</a> to protect her chastity from an abuser, Appius Claudius. </p>
<p>This misogynist culture has been celebrated through art, education and cinematography. For example, works by Giambolognia, Rubens, Poussin and Picasso all depict the rape of Sabines, with pieces <a href="https://www.metmuseum.org/art/collection/search/359809">on display in New York’s Metropolitan Museum of Art</a> and in <a href="https://www.theflorentine.net/2022/06/14/new-summer-opening-hours-at-the-accademia-gallery/">Florence’s Accademia Gallery</a>. </p>
<p>Roman patriarchal legacy is prevalent in pop culture, too. From “<a href="https://www.imdb.com/title/tt0043949/">Quo Vadis</a>” to “<a href="https://www.imdb.com/title/tt0052618/">Ben-Hur</a>” and “<a href="https://www.imdb.com/title/tt0172495/">Gladiator</a>,” movies have glorified a violent time in which strong men were venerated. </p>
<p>Meanwhile, many contemporary men are – as it has been recently claimed – <a href="https://www.nytimes.com/2023/09/15/style/roman-empire-men-tiktok-instagram.html">obsessed with the Roman Empire</a>. </p>
<p>So too are cultural industries. Cinecittà film studios’ gladiator series “<a href="https://www.theguardian.com/film/2023/jul/14/hollywood-on-the-tiber-cinecitta-stars-return-to-rome-studios-heston-fellini">Those About to Die</a>” has become <a href="https://variety.com/2023/film/global/roland-emmerich-those-about-to-die-prime-video-1235684470/">an international hit</a>.</p>
<p>For a certain type of modern man, Rome represents an escape from <a href="https://www.genderspecialist.com/blog/whymenareobsessedwithrome">egalitarian norms</a>, allowing them to reclaim a perceived loss of male power. </p>
<h2>The Fascist touch</h2>
<p>Italian society also continues to be influenced by fascism, an ideology <a href="https://phillipian.net/2023/12/15/hypermasculinity-and-the-rise-of-fascism/">steeped in male violence</a>.</p>
<p>Fascism, introduced to Italy by Benito Mussolini in the 1930s, held <a href="https://www.jstor.org/stable/1394751">procreation as the main woman’s duty</a>. Women were defined in terms of their full subordination to men and in regards to <a href="https://doi.org/10.1177/026569149302300103">their role in the family and in motherhood</a>. </p>
<p>Nearly 100 years later, the legacy of fascism is alive in Italy. Italian Prime Minister Giorgia Meloni praised Mussolini in her youth, and her own right-wing political party, Fratelli d’Italia, is a <a href="https://theconversation.com/giorgia-meloni-the-political-provocateur-set-to-become-italys-first-far-right-leader-since-mussolini-190116">descendant of the Italian Social Movement party</a> that was <a href="https://www.politico.eu/article/italy-mussolini-denies-rehabbing-fascism-after-army-calendar-outcry/">founded by former fascists</a>. </p>
<p>And as a new TV show about Mussolini’s rise, “<a href="https://www.lemonde.fr/en/m-le-mag/article/2023/12/21/in-rome-cinecitta-studios-embraces-new-golden-age_6365899_117.html">M: Son of the Century</a>,” shows, the fascist leader remains in the national consciousness. So too does the <a href="https://www.theguardian.com/commentisfree/2018/may/04/what-do-incels-fascists-and-terrorists-have-in-common-violent-misogyny">toxic “masculinism</a>” that became associated with fascism, finding a new audience among incels as a <a href="https://doi.org/10.1177/08912432221128545">rationale to legitimize anti-woman violence</a>. </p>
<h2>The Catholic grip</h2>
<p>Catholicism has also, I believe, helped <a href="https://www.scirp.org/journal/paperinformation?paperid=71987">normalize patriarchy and misogyny</a> in Italy. </p>
<p>Catholicism is at the core of the so-called “<a href="https://www.modernintimacy.com/the-psychology-of-the-madonna-whore-complex/">Madonna-whore complex</a>,” in which women are seen as being either chaste and virtuous or promiscuous and immoral. Theorists have long explored how that dichotomy is <a href="https://doi.org/10.1002/aps.1831">steeped in misogyny</a>. Stereotypes based on <a href="https://doi.org/10.1080/07491409.2013.832088">that dichotomy</a> have been used to justify perpetrators’ violence against women.</p>
<p>Take the example of Roman baroque painter Artemisia Gentileschi, who <a href="https://www.nationalgallery.org.uk/exhibitions/past/artemisia/artemisias-rape-trial">was raped by her painter-mentor</a>, Agostino Tassi, in 1611 at the age of 17. She gave testimony in court, was physically tortured during the trial and treated as a promiscuous seductress. </p>
<p>Tassi was protected by the pope and set free; Gentileschi, despite being <a href="https://www.theguardian.com/artanddesign/2016/oct/05/artemisia-gentileshi-painter-beyond-caravaggio">a brilliant artist</a>, was shamed and erased from public memory for centuries.</p>
<p>The influence of Catholicism has also contributed to customs and a legal system that can make women more vulnerable. Italy’s abortion laws allow Catholic doctors to “<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8106580/#:%7E:text=Data%20from%20the%20Italian%20Ministry,increased%20over%20the%20last%20decade.">conscientiously object</a>” to performing a termination, forcing women seeking the procedure to <a href="https://www.economist.com/graphic-detail/2022/09/23/the-difficulties-of-getting-an-abortion-in-italy">travel across the country or abroad</a>.</p>
<p>Meanwhile, Catholic <a href="https://www.ncronline.org/opinion/grace-margins/church-must-face-its-own-role-violence-against-women">doctrine on contraception and abortion</a> has forced women – even those made pregnant through rape or facing high-risk pregnancies – to give birth.</p>
<p>Research also suggests the Catholic Church’s teachings on divorce may <a href="https://doi.org//10.4236/psych.2016.713155">cut off a route of escape</a> for women trapped in violent relationships. </p>
<h2>The deadly passion</h2>
<p>Meanwhile, Italy’s patriarchal traditions have bled into law and society in other ways.</p>
<p>The mandating of extreme leniency to those implicated in <a href="https://www.politico.eu/article/italy-giulia-cecchettin-confronts-its-toxic-culture-of-violence-against-women/">the killing of “spouses, daughters and sisters caught in illicit sex</a>” was written into the country’s penal code until 1981. And even today, public figures refer to “<a href="https://www.politico.eu/article/italy-giulia-cecchettin-confronts-its-toxic-culture-of-violence-against-women/">crimes of passion</a>” and “<a href="https://www.washingtonpost.com/world/europe/how-italy-has-changed-its-view-on-murdering-women/2016/11/02/8f22d42a-930b-11e6-bc00-1a9756d4111b_story.html">honor killings</a>” in reference to the killing of women involved in “illicit” sexual relations. </p>
<p>Femicides do not occur in a vacuum; they are the outcome of a society that legitimizes violence against women. And while I believe changes to the law to better protect Italy’s women are welcome, looking at the country’s culture – both past and present – may also be a necessary step. Until then, Italy’s daughters will not be safe, or fully free.</p><img src="https://counter.theconversation.com/content/222665/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julia Khrebtan-Hörhager does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A spate of recent high-profile murders has put focus on the role of patriarchy and misogyny in persistent rates of anti-woman violence in Italy.Julia Khrebtan-Hörhager, Associate Professor of Critical Cultural & International Studies, Colorado State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247212024-03-07T13:36:07Z2024-03-07T13:36:07ZWhat is a frozen embryo worth? Alabama’s IVF case reflects bigger questions over grieving and wrongful death laws<figure><img src="https://images.theconversation.com/files/579978/original/file-20240305-16-b0u7k5.jpg?ixlib=rb-1.1.0&rect=8%2C8%2C2986%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An embryologist uses a microscope to view an embryo, visible on a monitor.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AlabamaFrozenEmbryos/e6f3454e8ba144ccadc7e0a21532fb6c/photo?Query=alabama%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=508&currentItemNo=22">AP Photo/Richard Drew, File</a></span></figcaption></figure><p>In the weeks since the Alabama Supreme Court held that <a href="https://thehill.com/homenews/state-watch/4477607-alabama-supreme-court-rules-frozen-embryos-are-children/">embryos are “unborn children</a>” under one state law, most attention has been focused on in vitro fertilization – whether the decision imperils parents’ attempts to create a family. On March 6, 2024, Gov. Kay Ivey signed legislation to <a href="https://apnews.com/article/alabama-ivf-frozen-embryos-ruling-cab8171e80c88a088778dc7a187b7b5a">shield IVF providers from legal liability</a>, though the new law does not address frozen embryos’ legal status.</p>
<p>As <a href="https://health.usf.edu/publichealth/overviewcoph/faculty/katherine-drabiak">a health law professor</a>, I believe it’s also important to understand the laws that shaped the court’s decision: not only Alabama’s laws about “unborn children,” but wrongful death laws. This is a legal claim where family members can bring a civil lawsuit against a person who intentionally or carelessly caused the family member’s death, which is different from any criminal charges.</p>
<p>Over the past 100 years, laws have evolved to reflect a wider sense of what it means to lose a loved one, and how to “compensate” their family. Courts have been asked to interpret how wrongful death laws should apply to situations before a child is born.</p>
<h2>What happened in the clinic?</h2>
<p>The Alabama case, <a href="https://law.justia.com/cases/alabama/supreme-court/2024/sc-2022-0579.html">LePage v. Center for Reproductive Medicine</a>, was brought by three couples who had used IVF at a fertility clinic. They sued the clinic after a patient who wandered into the “cryogenic nursery,” where frozen embryos are stored, picked some up and accidentally dropped them on the floor, destroying them.</p>
<p>In the language of the court, this killed the embryos, since they might have developed into a healthy fetus if implanted in the uterus. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A steel vat, with icy condensation inside, open to reveal white packets inside at the bottom of the container." src="https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Containers holding frozen embryos and sperm are stored in liquid nitrogen at a fertility clinic in Fort Myers, Fla., in 2018.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AlabamaFrozenEmbryos/25b27e79f3e14fb6910ff3de3ebc7dae/photo?Query=alabama%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=508&currentItemNo=32">AP Photo/Lynne Sladky, File</a></span>
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<p>The three sets of parents filed a lawsuit based on a claim for <a href="https://www.law.cornell.edu/wex/wrongful_death">wrongful death</a>. Like <a href="https://www.bu.edu/bulawreview/files/2020/03/LENS.pdf">about 40 other states</a>, Alabama allows parents to bring a claim for <a href="https://law.justia.com/codes/alabama/2022/title-6/chapter-5/article-22/section-6-5-391/">wrongful death</a> of an unborn child.</p>
<p>The court said the question in this case centered around whether the term “unborn child” in state laws only refers to an embryo or fetus in utero, or whether there is an “unwritten exception” for embryos that have not yet been transferred to the womb.</p>
<h2>The court’s decision</h2>
<p>Alabama Supreme Court cases in 2011 and 2012 had already held that the state’s wrongful death law <a href="https://casetext.com/case/mack-v-carmack">allows expectant parents to bring a claim</a> following a death at <a href="https://casetext.com/case/hamilton-v-scott-2">any stage of the embryo’s or fetus’s development</a>.</p>
<p>In addition, Alabama <a href="https://ballotpedia.org/Alabama_Amendment_2,_State_Abortion_Policy_Amendment_(2018)">amended its state constitution</a> in 2018 to affirm that public policy of the state should protect “the rights of the unborn child.”</p>
<p><a href="https://law.justia.com/cases/alabama/supreme-court/2024/sc-2022-0579.html">Combining the previous cases</a>, the state constitution and even dictionary definitions, the court said nothing in the current wrongful death law would exempt “extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed.”</p>
<p>This ruling does not mean that the parents won a wrongful death lawsuit, but that a court will be able to hear the parents’ claim for wrongful death.</p>
<h2>The legal ‘value’ of an embryo</h2>
<p>This is significant because in <a href="https://doi.org/10.1016/j.xfre.2020.06.007">other cases</a> where embryos were destroyed, the law generally has treated embryos as <a href="https://www.nbcnews.com/health/health-news/university-hospitals-fertility-clinic-faces-new-lawsuits-after-tank-failures-n962341">parents’ property</a>, or allege negligence by the clinic. Only a <a href="https://doi.org/10.1016/j.fertnstert.2022.12.038">handful of other states</a> – including Illinois, Missouri and Georgia – allow wrongful death lawsuits for embryos.</p>
<p>IVF <a href="https://www.nytimes.com/article/ivf-treatment-costs-guide.html">is a significant investment</a> of time and money, and involves a variety of <a href="https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716">medical risks</a>. In a case where fertility treatment goes wrong, couples could try to recoup those costs through civil lawsuits that sometimes treat frozen embryos as property.</p>
<p>However, that does not account for each embryo’s biological and emotional uniqueness. Before the Alabama ruling, other cases had tried to classify embryos as <a href="https://www.courthousenews.com/would-be-parents-want-embryos-deemed-people-after-clinic-meltdown/">living people</a> to signify their <a href="https://abcnews.go.com/US/families-sue-cleveland-clinic-malfunction-possibly-destroyed-embryos/story?id=53683517">irreplaceable value</a>. </p>
<p>Some <a href="https://vanderbiltlawreview.org/lawreview/2022/11/abortion-pregnancy-loss-subjective-fetal-personhood/">legal experts</a> assert that embryos only have “subjective and relational value.” In other words, only parents can decide whether or not they are important and have meaning.</p>
<p>Other <a href="https://contemporarythinkers.org/robert-george/book/embryo-defense-human-life/">experts suggest</a> that embryos have inherent value because they are each genetically distinct, unique human life at the earliest stage. They argue that allowing protection for some stages of human development but not others violates human rights principles.</p>
<h2>How wrongful death laws work</h2>
<p>How the value of an embryo is defined also shapes whether wrongful death laws would apply.</p>
<p>Wrongful death laws were originally designed to compensate family members for the loss of that person’s <a href="https://heinonline.org/HOL/Page?handle=hein.journals/wsulr5&div=17&g_sent=1&casa_token=&collection=journals">services and contributions</a>. Damages from a lawsuit could pay medical bills, funeral expenses and lost earnings from that person’s job, for example.</p>
<p>Each state has its own wrongful death law. <a href="https://www.bu.edu/bulawreview/files/2020/03/LENS.pdf">Since the 1850s</a>, these laws have allowed parents to bring claims to recover damages from a person who causes their child’s death. Initially, these laws were designed as an economic tool because parents expected their children to work.</p>
<p>Now, according to some <a href="https://www.bu.edu/bulawreview/files/2020/03/LENS.pdf">legal scholars</a>, many states recognize that losing a child means much more: a moral injury, pain and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1286251">the anguish</a> from losing the child’s company and affection. Some states allow the family to <a href="https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=57">recover damages for suffering and grief</a> – recognizing a person’s inherent value, not only their economic value.</p>
<p><a href="https://casetext.com/case/stinnett-v-kennedy-1">Awarding damages</a> to a grieving family is meant to deter risky actions that could result in loss of life.</p>
<p>By the mid-1900s, courts began to allow wrongful death claims for children that died before birth as a result of another person’s negligence or carelessness. Some states specify that <a href="https://nebraskalegislature.gov/laws/statutes.php?statute=30-809">this includes at any stage of gestation</a>. </p>
<p>Some laws, including in <a href="https://nebraskalegislature.gov/laws/statutes.php?statute=30-809">Nebraska</a> and <a href="https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm#:%7E:text=71.003.,inside%20or%20outside%20this%20state.">Texas</a>, prevent families from suing the pregnant woman, or from suing her medical provider, if she opts to have a medical procedure that results in unintended fetal loss. Others specify that the law <a href="https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=57#:%7E:text=Whenever%20the%20death%20of%20a,then%20and%20in%20every%20such">does not apply</a> in cases of abortion. </p>
<h2>What the case means moving forward</h2>
<p>Some policymakers have <a href="https://time.com/6835548/lawmakers-ivf-embryos-alabama-legislation/">expressed concern</a> that Alabama’s decision “criminalizes” parents from trying to grow their family, or that they would face <a href="https://www.cnn.com/2024/02/27/us/ivf-ruling-impact-other-states/index.html">prosecution</a>. However, this is not accurate, since this case only relates to civil lawsuits, not criminal law.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a long white sweater, holding a pink sign that says 'I just want to be a mom,' speaks with another blonde woman in a doctor's coat." src="https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Patients and doctors gathered outside the Alabama Statehouse in Montgomery on Feb. 28, 2024, urging lawmakers to protect IVF services in the state.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AlabamaIVFAffectedGroups/e3ec159eb74c437297b40e73d8835780/photo?Query=ivf&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=110&currentItemNo=4">Kim Chandler/AP</a></span>
</figcaption>
</figure>
<p>Nor does the decision prohibit using IVF. The Alabama attorney general has stated that he <a href="https://www.cnn.com/2024/02/23/us/alabama-ivf-embryos-supreme-court-ruling-legislation/index.html">does not intend</a> to use this decision to prosecute either parents or IVF providers. However, several fertility clinics announced that they would <a href="https://www.nytimes.com/2024/02/23/us/politics/alabama-ivf-treatment-law.html">pause their IVF services</a> while assessing the law.</p>
<p>Based on the U.S. Constitution, courts can only <a href="https://www.ncsl.org/about-state-legislatures/separation-of-powers-legislative-judicial-relations">interpret what the law is</a>, not decide what they think it should be. </p>
<p>In response, state legislators rapidly proposed <a href="https://www.cnn.com/2024/02/27/us/ivf-ruling-impact-other-states/index.html">a variety of bills</a> aimed at preserving IVF. The bill signed into law on March 6, 2024 <a href="https://www.newsfromthestates.com/article/alabama-legislature-passes-bills-aimed-protecting-vitro-fertilization?emci=9460e6e7-4cd7-ee11-85f9-002248223794&emdi=a8a94336-c3d7-ee11-85f9-002248223794&ceid=519099">gives broad immunity</a> to IVF clinics, shielding providers from prosecution and lawsuits “for the damage to or death of an embryo.” However, it provides more protection than is standard, which may create unintended consequences – for example, potentially making it more difficult to sue for negligence or breach of contract.</p>
<p>As Alabama legislators discuss next steps, they need to incorporate the state constitution while considering how to reflect the will of their voters.</p><img src="https://counter.theconversation.com/content/224721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katherine Drabiak does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Alabama’s case began when three couples sued an IVF clinic where their frozen embryos had accidentally been dropped.Katherine Drabiak, Professor of Health Law, Public Health Law and Medical Ethics, University of South FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2170552024-03-07T13:28:59Z2024-03-07T13:28:59ZHow Florida’s home insurance market became so dysfunctional, so fast<p>Imagine saving for years to buy your dream house, only to have <a href="https://www.insurancebusinessmag.com/us/news/property/homeowners-to-face-huge-premium-jump-as-insurers-seek-50-premium-hike-476805.aspx">surging property insurance costs</a> keep homeownership forever out of reach. </p>
<p>This is a common problem in Florida, where average insurance premiums cost homeowners an eye-watering <a href="https://www.newsnationnow.com/business/your-money/florida-home-insurance-prices">US$6,000 a year</a>. That’s <a href="https://www.npr.org/2023/10/26/1208590263/florida-homeowners-insurance-soaring-expensive">more than triple</a> the national average and about three times what Floridians paid on average for insurance premiums in 2018. </p>
<p>What’s more, several major insurance carriers have <a href="https://www.pnj.com/story/money/2023/07/12/florida-insurance-crisis-farmers-insurance-home-insurance-what-to-know/70407302007/">left the state</a> over the past year, leaving residents with <a href="https://www.bloomberg.com/news/articles/2023-08-10/hurricane-season-2023-florida-s-biggest-property-insurer-is-nonprofit-citizens?sref=Hjm5biAW">limited alternatives</a>.</p>
<p>As <a href="https://www.ju.edu/directory/latisha-nixon-jones.php">a law professor</a> who specializes in disaster preparedness and resilience, I think it’s important to understand what’s driving costs higher – not least because other states could soon face a similar predicament. </p>
<p>Three primary factors are driving the insurance challenge. First, natural disasters are becoming more common and costly. Second, <a href="https://www.investopedia.com/terms/r/reinsurance.asp">the price of reinsurance</a> is skyrocketing. And finally, Florida’s litigation-friendly environment compounds the issue by making it easy for customers to sue their insurers.</p>
<h2>Disasters, like sea levels, are on the rise</h2>
<p>With its location on the beautiful-yet-hurricane-prone Gulf of Mexico, Florida has long been vulnerable to the elements. Natural disasters cost the state <a href="https://edis.ifas.ufl.edu/publication/FE1075">$5 billion to $10 billion</a> every year, the federal government estimated in 2018, the last year for which data was available.</p>
<p>Yet that likely understates the case today, since disasters have only become bigger, more common and more expensive since then. For example, climate change has <a href="https://abcnews.go.com/US/climate-change-making-atlantic-hurricanes-strengthen-weak-major/story.">made oceans warmer</a>, which <a href="https://doi.org/10.1038/s41598-023-42669-y">research suggests</a> fuels stronger, more intense hurricanes. </p>
<p>As a result, Florida has experienced billion-dollar disasters an average of <a href="https://www.ncei.noaa.gov/access/billions/state-summary/FL">four times annually</a> over the past five years – up from about one each year in the 1980s.</p>
<p><iframe id="TzHtR" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/TzHtR/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>This surge in disasters doesn’t just put lives at risk; it also wreaks havoc with the insurance market, as carriers are inundated with claims from one catastrophe after another. This makes it harder for them to turn a profit or obtain reinsurance to protect their stakeholders.</p>
<h2>Why reinsurance matters</h2>
<p>Insurance companies, in essence, make money two ways. First, they <a href="https://doi.org/10.1038/s41562-021-01121-9">pool risk</a> among policyholders. Risk-pooling is the practice of taking similarly situated individuals or properties, grouping them together, and charging similar prices for insurance since they face the same risk.</p>
<p>Second, they reduce risk by acquiring reinsurance. Reinsurance acts as a safeguard for insurance companies – it’s essentially insurance for the insurers. Reinsurers pledge to cover a specified portion or type of insurance claim – for instance, catastrophic hurricanes – which provides a layer of financial protection.</p>
<p>The new era of climate disasters has thrown a wrench into the process. Reinsurance companies, grappling with a surge in claims due to more frequent and severe disasters, have found themselves forced to <a href="https://www.law.com/dailybusinessreview/2023/07/12/floridas-critical-reinsurance-market-improves-but-at-a-price/?slreturn=20231012224549">raise their premiums</a> for insurance carriers. Carriers, in turn, have passed the burden to policyholders.</p>
<p>To try to navigate these challenges, some companies have chosen to limit coverage for specific types of damage. For example, some insurance companies in Florida will no longer offer hurricane or flood coverage. And in extreme cases, insurance companies have withdrawn entirely from the state. </p>
<p>Understanding this complex relationship between insurers, reinsurers and policyholders is key to understanding the broader implications of the <a href="https://www.fox13news.com/news/florida-home-insurance-crisis-cost-price-premium-institute-rates">Florida insurance crisis</a>. It underscores the urgent need for comprehensive solutions and collaborative efforts to address evolving challenges in the insurance ecosystem.</p>
<h2>Learning from Florida … one way or another</h2>
<p>Florida isn’t taking all this sitting down. In December 2022, state lawmakers responded to growing property market instability by passing <a href="https://www.flsenate.gov/Session/Bill/2022A/2A">Senate Bill 2A</a>, a package of insurance reforms. </p>
<p>One major part was a rule change designed to discourage policyholders from suing their insurers. Previously, Florida law let insured individuals recover attorney fees if they secured any amount through litigation against their insurer. </p>
<p>The idea is that making this change will discourage needless lawsuits. However, my research as an <a href="https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/5/">environmental justice professor</a> shows that attempts to exclude attorneys from the negotiation process often lead to more expensive litigation and less access to justice.</p>
<p>The bill also restricts <a href="https://www.myfloridacfo.com/docs-sf/insurance-consumer-advocate-libraries/ica-documents/aob-consumer-protection-tips-brochure.pdf?sfvrsn=690bdde6_5">assignment of benefits</a>, a mechanism that permits third-party entities like roofing companies to negotiate with insurance companies on behalf of Florida residents. While assignment of benefits <a href="https://www.myfloridacfo.com/division/consumers/consumerprotections/assignmentofbenefits">increased advocacy</a>, it was also linked to skyrocketing claims costs.</p>
<p>The balancing act between providing ample opportunities and containing costs has <a href="https://floridaphoenix.com/2023/10/13/advocates-hailed-a-new-law-to-help-stabilize-fls-housing-crisis-but-implementation-has-been-rocky/">sparked debate</a> among justice advocates. Florida’s legislative response reflects an ongoing effort to strike an equilibrium, ensuring fairness and accessibility while addressing the challenges faced by both insurers and policyholders.</p>
<p>Florida’s actions to address the property insurance crisis raise a critical question: Will the state serve as a blueprint for disaster-prone regions, or act as a cautionary tale? After all, states such as California and Louisiana have also seen insurance companies withdrawing from their markets. Will their legislatures draw inspiration from Florida’s? </p>
<p>For now, it’s too early to tell: The policies have only been in place since the latest round of hurricanes. But in the meantime, the rest of the U.S. will be watching – especially policymakers who care about resilience, and those who want to make sure vulnerable populations don’t get the short end of the stick.</p><img src="https://counter.theconversation.com/content/217055/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Latisha Nixon-Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Florida home insurance premiums have shot up threefold in just five years.Latisha Nixon-Jones, Associate Professor of Law, Jacksonville UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2215922024-03-05T22:28:47Z2024-03-05T22:28:47ZNon-disclosure agreements are commonplace in sexual harassment cases, but they’re being misused to silence people<figure><img src="https://images.theconversation.com/files/576673/original/file-20240220-18-cck0gn.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5455%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/woman-reading-documents-coffee-shop-girl-1126464620">Shutterstock</a></span></figcaption></figure><p>Non-disclosure agreements (NDAs) came into public consciousness during the #MeToo movement after multiple women spoke out with sexual harassment allegations against film producer Harvey Weinstein.</p>
<p>Weinstein systematically used NDAs to <a href="https://www.theguardian.com/commentisfree/2022/dec/15/nda-harvey-weinstein-confidentiality-clause-abuse">silence victim-survivors</a>. It’s a major reason it took years for his behaviour to be made public. Because of the secrecy involved, it’s also how he was able to continue perpetrating harm against so many women. </p>
<p>We’ve been researching how NDAs are used in out-of-court sexual harassment settlements here in Australia. We’ve <a href="https://rlc.org.au/letstalkaboutconfidentiality">found</a> NDAs remain the default resolution practice for most lawyers, despite guidelines advising against it.</p>
<p>Given <a href="https://humanrights.gov.au/time-for-respect-2022">one in three</a> Australian workers have been sexually harassed in the past five years and that many incidents are not reported, the pervasive use of confidentiality agreements means we know very little about what is happening in our workplaces and the cultural drivers of sexual harassment. It also means victim-survivors may agree to terms that prevent their psychological healing because they are bound to confidentiality. </p>
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Read more:
<a href="https://theconversation.com/buying-silence-we-cant-stop-workplace-sexual-harassment-without-banning-non-disclosure-agreements-172856">Buying silence: we can't stop workplace sexual harassment without banning non-disclosure agreements</a>
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<h2>What is a non-disclosure agreement?</h2>
<p>NDA is the universal description for what we call confidentiality agreements or confidentiality contractual terms.</p>
<p>Most sexual harassment complaints are resolved <a href="https://humanrights.gov.au/sites/default/files/2022-02/ahrc_ar_2020-2021_complaint_stats.pdf">out of court</a> and are subject to a “settlement agreement”. These are contractual agreements that release respondents from any liability in exchange for a benefit to the applicant, such as money. </p>
<p>In Australia, confidentiality and non-disparagement terms are usually part of this settlement, so it’s effectively a NDA. </p>
<p>There is no doubt these agreements can be beneficial, and certainly some victim-survivors seek these terms. However, the Australian Human Rights Commission recognised that they’ve become standard and misused in the <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work Report</a>. </p>
<p>The Respect@Work Council was set up to implement the recommendations in that report. The council released <a href="https://www.respectatwork.gov.au/resource-hub/guidelines-use-confidentiality-clauses-resolution-workplace-sexual-harassment-complaints">guidelines</a> in December 2022 on the use of NDAs in workplace sexual harassment settlements. The guidelines say confidentiality clauses should not be seen as standard terms. They say that if NDAs must be used, scope should be limited, with exceptions allowing victim-survivors to speak to people in their support network, such as doctors or family. </p>
<p>We surveyed 145 sexual harassment lawyers to see how the guidelines are working in practice.</p>
<h2>Are the guidelines being followed?</h2>
<p>Even after those guidelines were released and after social movements like #MeToo and #TimesUp, <a href="https://rlc.org.au/letstalkaboutconfidentiality">our research</a> shows 75% of legal practitioners have never resolved a sexual harassment settlement without a strict NDA. This means blanket confidentiality with no carve-outs for disclosures to doctors or other supports.</p>
<p>We found the guidelines are not, at least yet, used as an effective resolution mechanism. In fact, 25% of sexual harassment practitioners have not read the guidelines and they are rarely provided to the other side in negotiations.</p>
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<a href="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of protestors in an American street holding a sign that says '#MeToo #TimesUp'" src="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The #MeToo movement prompted some legislative change in the US.</span>
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<p>We also found there is no cohesive approach in the legal profession to how confidentiality agreements are used in sexual harassment settlements. We identified three themes:</p>
<ul>
<li><p>some advocates told us the “standard” NDA practice is having carve-outs for victim-survivors to speak to doctors or family</p></li>
<li><p>other advocates spoke of usually having confidentiality around settlement terms only, allowing victim-survivors to otherwise speak about their experience</p></li>
<li><p>many advocates told us that exhaustive or strict agreements are standard practice, which mean a victim-survivor cannot speak to anyone about their experience. </p></li>
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Read more:
<a href="https://theconversation.com/companies-need-confidentiality-clauses-but-not-to-muzzle-sexual-abuse-victims-87716">Companies need confidentiality clauses – but not to muzzle sexual abuse victims</a>
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<p>As an example of the third point, one solicitor said:</p>
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<p>If you propose a non-standard clause which is anything but broad confidentiality there’s such a lot of pushback from the respondents that it just it feels like you both have to advocate for your client and also educate the respondent simultaneously.</p>
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<p>NDAs are not mandatory but their use is so entrenched that many practitioners do not advise of the option of not having one. Close to 30% of applicant practitioners and 50% of respondent practitioners have never provided this advice to clients. </p>
<p>It is a basic premise that lawyers provide advice and clients instruct. It’s spelled out in our Solicitors Conduct Rules. How can a client provide an instruction if they do not know all their options? If clients aren’t being advised on the nuances of NDAs, including possible carve-outs or reduction in scope, they are not empowered as active participants in their own legal matter. </p>
<h2>What are other countries doing?</h2>
<p>In Canada and the United States, legislation has been introduced to limit the use of NDAs and move away from these clauses being “standard”. A key aim of many of these proposed reforms is to provide the complainant with true choice, including proposed laws being considered <a href="https://www.theguardian.com/australia-news/2022/jul/11/victorias-move-to-restrict-silencing-sexual-harassment-victims-welcomed-by-unions-and-lawyers">in Victoria</a>. </p>
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<p>While new legislation is one way to tackle the problem, an effective response may exist already within the regulation of legal conduct. </p>
<p>Until recently in Australia, the conduct of lawyers in negotiations was not commonly considered a disciplinary or professional conduct issue. But in September 2023, the Victorian Legal Services Board + Commissioner <a href="https://lsbc.vic.gov.au/lawyers/practising-law/sexual-harassment/advice-lawyers-using-confidentiality-clauses-resolve">published advice</a> on how lawyers should use NDAs when resolving workplace sexual harassment complaints.</p>
<p>It advised lawyers they must be mindful to maintain the professional duty to act with independence and integrity when also upholding their duty to act in the best interest of their client. This requires careful consideration of clients’ short- and long-term interests. </p>
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Read more:
<a href="https://theconversation.com/banning-non-disclosure-agreements-isnt-enough-to-stop-unethical-workplace-leader-behaviour-173574">Banning non-disclosure agreements isn't enough to stop unethical workplace leader behaviour</a>
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<p>A confidentiality clause may be useful in the short term to protect an employer from reputational damage. The same clause, however, may operate against a client’s long-term interests if the same perpetrator sexually harasses another person and it becomes public knowledge that the business had been using NDAs to hide this conduct. </p>
<p>Our research found lawyers for alleged victim-survivors who advocate on this issue routinely are achieving settlements without strict NDAs. We had many lawyers who act for both employees and employers tell us they have settled multiple matters in the past 12 months without strict NDAs, in ways that are tailored to their client’s needs.</p>
<p>But the advocacy of lawyers can be limited if outdated practices remain entrenched. Ultimately, the entire profession needs to be better educated to ensure these agreements aren’t misused. In turn, we’ll see greater transparency around sexual harassment.</p><img src="https://counter.theconversation.com/content/221592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Regina Featherstone was a 2023 Social Justice Practitioner-in-Residence at the University of Sydney and is a senior lawyer at the Whistleblower Project, Human Rights Law Centre.</span></em></p><p class="fine-print"><em><span>Sharmilla Bargon was a 2023 Social Justice Practitioner-In-Residence at the Univeristy of Sydney and is a senior solicitor at Redfern Legal Centre</span></em></p>Non-disclosure agreements have been used to keep victim-survivors from speaking up. Despite guidelines addressing this, new research shows such agreements remain standard practice.Regina Featherstone, Social Justice Practitioner in Residence/Senior Lawyer, University of SydneySharmilla Bargon, Social Justice Practitioner in Residence/Senior Solicitor, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2246462024-02-29T04:33:26Z2024-02-29T04:33:26ZQueensland ruling doesn’t mean all COVID vaccine mandates were flawed. Here’s why<figure><img src="https://images.theconversation.com/files/578830/original/file-20240229-18-brmq8t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/bandaid-on-hand-person-after-vaccination-2197701537">Andriy B/Shutterstock</a></span></figcaption></figure><p>This week, Queensland Supreme Court Justice Glenn Martin <a href="https://archive.sclqld.org.au/qjudgment/2024/QSC24-002.pdf">declared</a> the state’s COVID vaccine mandate for police officers was unlawful. Martin also found the director-general of Queensland health did not have the power to make vaccine mandates for ambulance service workers.</p>
<p>Those who are <a href="https://gh.bmj.com/content/bmjgh/7/5/e008684.full.pdf">critical</a> of vaccine mandates have been pleased by the decision. Clive Palmer, who funded the case, touted it as a “<a href="https://www.theguardian.com/australia-news/2024/feb/27/clive-palmer-claims-great-victory-in-funding-challenge-to-queenslands-covid-vaccine-mandate">great victory</a>” and One Nation leader Pauline Hanson said it was <a href="https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fnation%2Fpolitics%2Fqueenslands-unlawful-covid19-vaccine-mandate-ruling-just-tip-of-the-iceberg-experts%2Fnews-story%2F37435eb2aa0d983422c42734bde381d0&memtype=anonymous&mode=premium&v21=HIGH-Segment-2-SCORE&V21spcbehaviour=appendend#:%7E:text=A%20landmark%20legal%20decision%20%E2%80%9Cvindicating,to%20ride%20on%20the%20coat%2D">vindication</a> for those who opposed vaccine mandates introduced around Australia during the pandemic. </p>
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<p>But the ruling doesn’t mean vaccine mandates are inherently flawed. Here’s what the ruling actually found – and what this means for future legal challenges to vaccine mandates across Australia. </p>
<h2>What was the case about?</h2>
<p>A group of Queensland police employees, ambulance officers and a nurse initiated Supreme Court proceedings against, among others, the Queensland police commissioner Katarina Carroll and the then Queensland health director-general John Wakefield. The applicants sought a declaration that the vaccine mandates to which they were subjected were unlawful. </p>
<p>The mandates the police commissioner and director-general imposed were very similar. Each required employees of the police and ambulance services to receive doses of an approved COVID vaccine by a specified deadline. </p>
<p>The mandates rendered vaccination against COVID a <a href="https://www.sciencedirect.com/science/article/pii/S0264410X21015309?via%3Dihub">condition of employment</a>. Anyone who refused to be vaccinated could therefore be subject to disciplinary proceedings, including dismissal. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/unfair-dismissal-rulings-show-personal-circumstances-matter-in-vaccine-refusals-188987">Unfair dismissal rulings show personal circumstances matter in vaccine refusals</a>
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<p>By the time the case went to trial, the mandates had already been revoked. This meant there were limited practical remedies available to the applicants. They had already held onto their jobs, at least temporarily – Martin made orders in the early stage of proceedings restraining the commissioner and director-general from dismissing any of the applicants from their jobs. </p>
<h2>What did the court find?</h2>
<p>When it comes to the broader impacts on policy, the main takeaways from the 115-page judgement are:</p>
<p><strong>1) the police mandates were unlawful</strong> </p>
<p>The police commissioner failed to give proper consideration to relevant human rights that would be affected by the mandates. Martin found it was “more likely than not that the commissioner did not consider the human rights ramifications” of the mandates.</p>
<p>This does not mean there was anything wrong with the mandates themselves – the problems lay in the process. </p>
<p><strong>2) the mandates affecting ambulance service workers were unlawful for a different reason</strong> </p>
<p>The director-general did not have the power to make the health mandates under employment and contract law. </p>
<p>The director-general claimed the employment contracts covering those who brought the case against the mandates contained an implied term that the director-general may give lawful and reasonable directions to employees. </p>
<p>However, the director-general did not provide sufficient evidence about the terms of the applicants’ employment contracts and therefore could not show the mandate was a reasonable direction.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/tomorrows-covid-safety-guidelines-will-be-different-from-todays-but-that-doesnt-mean-yesterdays-were-wrong-179262">Tomorrow's COVID safety guidelines will be different from today's – but that doesn't mean yesterday's were wrong</a>
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<p><strong>3) only one human right was limited by the mandates</strong></p>
<p>Queensland has human rights legislation recognising, among other rights, a person’s right not to be subjected to medical treatment without full, free and informed consent (section 17(c) of the <a href="https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2019-005">Human Rights Act 2019 (Qld)</a>). </p>
<p>Martin concluded the vaccine mandate limited this right, in the sense that the consent was not “free”. However, that limitation was “reasonable and demonstrably justified” (or proportionate), as required by the act, in the context of the pandemic. </p>
<p>We can read this as a conclusion that it was acceptable for policymakers to place limits on consent to vaccination in the face of other pressing considerations created by the pandemic. Policymakers had to <a href="https://jme.bmj.com/content/medethics/early/2022/04/26/medethics-2022-108229.full.pdf">weigh up</a> the risk of infection for their populations, including the risk of being infected by those providing essential services, and how best to keep their health and governance systems functioning, against the requirement that consent be full, free and informed.</p>
<p>In summary, the police commissioner failed to turn her mind to the human rights affected by her decision. The director-general made an oversight in failing to submit sufficient evidence to the court. But the requirement to consider human rights did not mean the mandates were unjustified.</p>
<h2>What does this mean for policymakers?</h2>
<p>There are lessons for policymakers in future pandemics: attention to detail is important when making and defending vaccine mandate policies. It is important to <a href="https://www.mja.com.au/system/files/issues/215_11/mja251269.pdf">consider</a> the people a vaccine mandate is going to affect directly. </p>
<p>The legal necessity to consider human rights in Queensland is only one example. Deep in the pandemic, the Fair Work Commission overturned a private-sector vaccine mandate imposed at a BHP site. The basis for this decision was that the mandate was not reasonable: BHP had <a href="https://www.landers.com.au/legal-insights-news/bhp-covid-19-vaccine-mandate-overturned">not sufficiently consulted</a> with affected workers as required under the Commonwealth <a href="https://www.legislation.gov.au/C2011A00137/2018-07-01/text">Work Health and Safety Act 2011</a>.</p>
<p>Considering and involving affected populations in the process is the right thing to do. It is also prudent for protecting vaccine mandates from legal challenges. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-youre-going-to-mandate-covid-vaccination-at-your-workplace-heres-how-to-do-it-ethically-166110">If you're going to mandate COVID vaccination at your workplace, here's how to do it ethically</a>
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<h2>Will we see more legal challenges to mandates?</h2>
<p>In future, a vaccine mandate may be challenged on a range of technical or legal bases, unrelated to the mandate’s substance or legitimacy. </p>
<p>Previous legal challenges to Australian state and territory vaccine mandates have largely been unsuccessful, particularly in the discrimination and industrial relations contexts.</p>
<p><a href="https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/DownloadDecision?id=d05d28f1-ab59-430d-b825-f7add55e23f3">Two similar cases</a> brought by <a href="https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/DownloadDecision?id=ea8d77d7-ddf1-4cd5-889d-bcbfd210c626">police officers</a> in Western Australia were unsuccessful (although both applicants have appealed). There is considerable breadth of powers and discretion afforded to the police commissioner by the <a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_44518.pdf/$FILE/POLICE%20ACT%201892%20-%20%5B14-m0-00%5D.pdf?OpenElement">Police Act 1892 (WA)</a>. This includes making directions to employees. </p>
<p>Only Victoria, the Australian Capital Territory and Queensland have human rights legislation, so similar challenges may only be possible in those jurisdictions. </p>
<p>Previous plaintiffs tried to challenge New South Wales’ vaccine mandates on the basis that they infringed the common law right to bodily integrity. They <a href="https://www.caselaw.nsw.gov.au/decision/17c7d62628b9735ac213a597">failed</a>.</p>
<p>This week’s decision in Queensland is a landmark case, but probably not for the reasons vaccine mandate opponents hope. </p>
<p>It will be instructive for policymakers seeking to protect vaccine mandates from legal challenge in the future. The public will benefit when this prompts more careful consideration of affected populations when imposing vaccine mandates. </p>
<p>But the decision is unlikely to be be the death knell of workplace vaccine mandates.</p><img src="https://counter.theconversation.com/content/224646/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Thomasson is part of the Mandate Evaluation (MandEval) project, which is partially funded by the Medical Research Future Fund.</span></em></p><p class="fine-print"><em><span>Katie Attwell receives institutional research funding from the Medical Research Future Fund (MRFF) for the Mandate Evaluation (MandEval) project which she leads. She has previously received research funds paid to her institution from Australian Research Council and the Government of Western Australia. She is a special advisor to the Australian Technical Advisory Group on Immunisation.</span></em></p>Here’s what the court found – and what this means for future legal challenges to vaccine mandates across Australia.Amy Thomasson, Associate Lecturer of Law, The University of Western AustraliaKatie Attwell, Associate Professor, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2240452024-02-28T13:46:32Z2024-02-28T13:46:32ZThree secrets to successful climate litigation<figure><img src="https://images.theconversation.com/files/577897/original/file-20240226-21-ys3jg7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The number of lawsuits related to climate justice is increasing</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/international-law-environment-green-world-gavel-2336992401">chayanuphol/Shutterstock</a></span></figcaption></figure><p>Courts around the world are handling an <a href="https://www.unep.org/news-and-stories/press-release/climate-litigation-more-doubles-five-years-now-key-tool-delivering">increasing number</a> of climate and environmental cases due to the urgent need to combat worsening warming and <a href="https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_SPM.pdf">ecosystem destruction</a>. </p>
<p>As of December 2022, 2,180 climate-related cases had been filed in 65 jurisdictions, including international courts and tribunals, according to the UN’s 2023 <a href="https://www.unep.org/resources/report/global-climate-litigation-report-2023-status-review">global climate litigation report</a>. People and organisations – including communities, cities, environmental groups and young people concerned about their future – are bringing lawsuits against their governments. </p>
<p>Citizens want governments to take more effective climate action that protects their right to live in a clean, healthy and safe environment. Some lawsuits are successful, others fall by the wayside. </p>
<p>Flagship cases illustrate certain tactics which maximise the chance of a win. There are many community actions against governments currently being brought before the European Court of Human Rights. The outcomes are highly anticipated and three key aspects could inform how climate justice is approached from a legal perspective in the future.</p>
<h2>1. Make it personal</h2>
<p><a href="https://en.klimaseniorinnen.ch/">Senior Women for Climate Protection Switzerland</a> or <a href="https://climatecasechart.com/non-us-case/union-of-swiss-senior-women-for-climate-protection-v-swiss-federal-council-and-others/">KlimaSeniorinnen</a>, a group of women with an average age of 73, has taken the Swiss government to the <a href="https://www.reuters.com/world/europe/swiss-female-pensioners-vs-government-eu-courts-first-climate-case-2023-03-28/.">European Court of Human Rights</a>.</p>
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<figcaption><span class="caption">From hot flushes to global heating, the Senior Women for Climate Protection Switzerland are serious about climate justice.</span></figcaption>
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<p>These women are longtime activists who have reduced greenhouse gas emissions in their daily lives. Filled with hope and determination, they aim to demonstrate that older people can be powerful and influential advocates for the climate, even if they may not be physically present in the future.</p>
<p>The women claim that Switzerland is not meeting its <a href="https://unfccc.int/process-and-meetings/the-paris-agreement">Paris agreement climate treaty</a> obligations to prevent global temperature rising above 1.5°C and has failed to <a href="https://www.euronews.com/green/2023/03/28/swiss-pensioners-vs-the-government-top-european-human-rights-court-to-hear-historic-climat">protect them</a> from the resulting severe health risks and <a href="https://magazine.hms.harvard.edu/articles/effects-heat-older-adults">increased mortality</a>. </p>
<p>The creation of harmonious laws that protect people from the effects of climate change is still a <a href="https://theconversation.com/international-law-doesnt-protect-people-fleeing-environmental-disaster-heres-how-it-could-198847">legal impasse</a>.
Nevertheless, the European Court of Human Rights will <a href="https://ennhri.org/wp-content/uploads/2021/09/Third-Party-Intervention-Klimaseniorinnen-_-website.pdf">review and analyse</a> the protection and recognition of the legal <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles-justice-victims-crime-and-abuse#:%7E:text=%22Victims%22%20means%20persons%20who%2C,within%20Member%20States%2C%20including%20those">status of victimhood</a> (with this status, people can assert their legal rights for protection from the effects of climate change).</p>
<p>Once the court decides whether a violation has been made later in 2024, this case could help inform the development of a comprehensive international framework for safeguarding and protecting people from the effects of climate change.</p>
<h2>2. Amplify young voices</h2>
<p>Led by young people aged between 11 and 24, initiated by Claudia Duarte Agostinho, six Portuguese young people have argued that 32 governments have made insufficient climate targets. They say that this inaction at home and abroad is directly contributing to more frequent and severe <a href="https://www.politico.eu/article/five-countries-suffering-from-the-heat-wave-in-europe/">heatwaves in Portugal</a> and rapidly degrading the quality of life for <a href="https://climatecasechart.com/non-us-case/youth-for-climate-justice-v-austria-et-al/">younger generations</a>. They argue this violates their <a href="https://www.irishtimes.com/environment/climate-crisis/2023/09/27/climate-change-six-young-portuguese-people-take-32-european-countries-to-rights-court/">human rights</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-peruvian-farmer-is-trying-to-hold-energy-giant-rwe-responsible-for-climate-change-the-inside-story-of-his-groundbreaking-court-case-218408">A Peruvian farmer is trying to hold energy giant RWE responsible for climate change – the inside story of his groundbreaking court case</a>
</strong>
</em>
</p>
<hr>
<p>Children are not typically viewed as capable or <a href="https://www.theguardian.com/environment/2023/oct/26/stop-locking-young-people-out-of-legal-process-in-climate-cases-say-experts">influential figures</a> in politics. But the recent surge in <a href="https://www.theguardian.com/environment/2022/oct/02/climate-crisis-young-people-activism-around-world">youth activism</a> proves that young people can push the limits of what has been traditionally considered to be within the scope of international human rights law. </p>
<h2>3. Face the future</h2>
<p>In 2021, Damien Careme, the former mayor of Grande-Synthe, a suburb of Dunkirk, France, filed a legal case against the <a href="https://climatecasechart.com/non-us-case/careme-v-france/">French government</a>. He alleges that the central government failed to fulfil its obligation to protect life by taking insufficient steps to prevent climate change. </p>
<p>Careme argues that he is directly affected by the government’s lack of action because this failure increases the risk that his home could be affected in years to come. This French case could mark an important development in climate litigation. </p>
<p>In 2015, Ioane Teitiota, a resident of the <a href="https://climatecasechart.com/non-us-case/ioane-teitiota-v-the-chief-executive-of-the-ministry-of-business-innovation-and-employment/">Pacific island Kiribati</a>, failed to demonstrate that the consequences of climate change were an imminent threat to his life and presented an individual concern. Other Pacific communities facing drastic sea level rise and extreme weather events have been calling for world leaders to take <a href="https://news.un.org/en/story/2023/09/1141267">urgent climate action</a>.</p>
<p>Careme hopes that the European Court will acknowledge that the failure to address climate change and its consequences violates peoples’ fundamental rights – this case is pivotal because it specifically highlights how he is being individually affected by the breach of these fundamental rights. If successful, this ruling will act as a precedent, not only in all member states of the council, but also globally.</p>
<h2>What’s next?</h2>
<p>A lack of trust is underlying all three of these cases. Canadians report low trust in government regarding climate change with less than 50% of people trusting their government on <a href="https://www.sciencedirect.com/science/article/pii/S0921800921000161#:%7E:text=Fewer%20than%2050%25%20of%20respondents,to%20each%20type%20of%20trust.">climate change issues</a>. Citizens don’t trust that their governments are taking enough action to <a href="https://www.eib.org/en/stories/climate-change-government-trust#:%7E:text=Our%20survey%2C%20however%2C%20shows%20a,country%20to%20hit%20its%20targets.">fight climate change</a>, according to European Investment Bank, whose annual climate survey shows 75% of EU citizens and 69% of UK citizens are more concerned about the climate crisis than they think <a href="https://www.eib.org/en/stories/climate-change-government-trust">their government is</a>. </p>
<p>Climate litigation can help to fill gaps in current legislation. Laws don’t cover whether a country’s inaction to take sufficient measures against climate change should be recognised as a violation of human rights or not. </p>
<p>It is expected that the ruling of these cases to trigger debate about state responsibility, human rights and climate change. Any judgements made by the European Court of Human Rights are binding on the countries concerned and could influence other cases. Hopefully, these results have the potential to pave the way for more courts to take into consideration the effects of climate change on people’ lives in the future. </p>
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<figure class="align-right ">
<img alt="Imagine weekly climate newsletter" src="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><strong><em>Don’t have time to read about climate change as much as you’d like?</em></strong>
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<p class="fine-print"><em><span>Morgiane Noel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As new climate-related cases are brought to court, our expert outlines key aspects that could change the legal landscape.Morgiane Noel, PhD Candidate, Migration, Climate Change, Human Rights, European Law and International Law, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2232992024-02-25T19:05:30Z2024-02-25T19:05:30ZSo, you’ve been scammed by a deepfake. What can you do?<figure><img src="https://images.theconversation.com/files/576658/original/file-20240220-24-qi0t3y.jpg?ixlib=rb-1.1.0&rect=92%2C115%2C3731%2C2283&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/deep-fake-ai-face-swap-video-2376208005">Tero Vesalainen/Shutterstock</a></span></figcaption></figure><p>Earlier this month, a Hong Kong company <a href="https://www.theguardian.com/world/2024/feb/05/hong-kong-company-deepfake-video-conference-call-scam">lost HK$200 million (A$40 million)</a> in a <a href="https://www.esafety.gov.au/industry/tech-trends-and-challenges/deepfakes">deepfake</a> scam. An employee transferred funds following a video conference call with scammers who looked and sounded like senior company officials.</p>
<p>Generative AI tools can create image, video and voice replicas of real people saying and doing things they never would have done. And these tools are becoming increasingly easy to access and use.</p>
<p>This can perpetuate <a href="https://theconversation.com/taylor-swift-deepfakes-new-technologies-have-long-been-weaponised-against-women-the-solution-involves-us-all-222268">intimate image abuse</a> (including things like “revenge porn”) and disrupt <a href="https://www.unswlawjournal.unsw.edu.au/article/disinformation-deepfakes-and-democracies-the-need-for-legislative-reform">democratic processes</a>. Currently, many jurisdictions are grappling with how to <a href="https://pursuit.unimelb.edu.au/articles/picture-to-burn-the-law-probably-won-t-protect-taylor-or-other-women-from-deepfakes">regulate AI deepfakes</a>.</p>
<p>But if you’ve been a victim of a deepfake scam, can you obtain compensation or redress for your losses? The legislation hasn’t caught up yet.</p>
<h2>Who is responsible?</h2>
<p>In most cases of deepfake fraud, scammers will avoid trying to fool banks and security systems, instead opting for so-called “push payment” frauds where victims are tricked into directing their bank to pay the fraudster.</p>
<p>So, if you’re seeking a remedy, there are at least four possible targets:</p>
<ol>
<li><p>the fraudster (who will often have disappeared) </p></li>
<li><p>the social media platform that hosted the fake</p></li>
<li><p>any bank that paid out the money on the instructions of the victim of the fraud </p></li>
<li><p>the provider of the AI tool that created the fake.</p></li>
</ol>
<p>The quick answer is that once the fraudster vanishes, it is currently unclear whether you have a right to a remedy from any of these other parties (though that may change in the future). </p>
<p>Let’s see why.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voice-deepfakes-are-calling-heres-what-they-are-and-how-to-avoid-getting-scammed-201449">Voice deepfakes are calling – here's what they are and how to avoid getting scammed</a>
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</em>
</p>
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<h2>The social media platform</h2>
<p>In principle, you could seek damages from a social media platform if it hosted a deepfake used to defraud you. But there are hurdles to overcome.</p>
<p>Platforms typically frame themselves as mere conduits of content – which means they are not legally responsible for the content. In the United States, platforms are explicitly <a href="https://www.law.cornell.edu/uscode/text/47/230">shielded from this kind of liability</a>. However, no such protection exists in most other common law countries, including Australia. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/this-is-why-australia-may-be-powerless-to-force-tech-giants-to-regulate-harmful-content-169826">This is why Australia may be powerless to force tech giants to regulate harmful content</a>
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<p>The Australian Competition and Consumer Commission (ACCC) <a href="https://www.theguardian.com/technology/2022/mar/18/accc-takes-meta-to-court-over-facebook-scam-ads-depicting-australian-identities">is taking Meta</a> (Facebook’s parent company) to court. They are testing the possibility of making digital platforms directly liable for deepfake crypto scams if they actively target the ads to possible victims.</p>
<p>The ACCC is also arguing Meta should be liable as an accessory to the scam – for failing to remove the misleading ads promptly once notified of the problem.</p>
<p>At the very least, platforms should be responsible for promptly removing deepfake content used for fraudulent purposes. They may already claim to be doing this, but it might soon become a legal obligation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-accc-is-suing-meta-for-celebrity-crypto-scam-ads-on-facebook-heres-why-the-tech-giant-could-be-found-liable-179655">The ACCC is suing Meta for celebrity crypto scam ads on Facebook. Here's why the tech giant could be found liable</a>
</strong>
</em>
</p>
<hr>
<h2>The bank</h2>
<p>In Australia, the legal obligations of whether a bank has to reimburse you in the case of a deepfake scam aren’t settled.</p>
<p>This was recently considered <a href="https://www.supremecourt.uk/cases/uksc-2022-0075.html">by the United Kingdom’s Supreme Court</a>, in a case likely to be influential in Australia. It suggests banks don’t have a duty to refuse a customer’s payment instructions where the recipient is suspected to be a (deepfake) fraudster, even if they have a general duty to act promptly once the scam is discovered. </p>
<p>That said, the UK is introducing a <a href="https://www.psr.org.uk/news-and-updates/latest-news/news/psr-continues-to-take-bold-action-on-app-fraud-as-it-publishes-final-reimbursement-details-ahead-of-2024-implementation/">mandatory scheme</a> that requires banks to reimburse victims of <a href="https://www.latrobe.edu.au/news/articles/2023/opinion/making-banks-pay-for-scam-losses">push payment fraud</a>, at least in certain circumstances. </p>
<p>In Australia, the <a href="https://www.theguardian.com/money/2023/feb/01/australian-banks-should-reimburse-scam-victims-accc-and-consumer-advocates-say">ACCC</a> and others have presented proposals for a similar scheme, though none exists at this stage. </p>
<figure class="align-center ">
<img alt="Customers stand outside Australian bank ATMs" src="https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/576676/original/file-20240220-22-6n09mj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australian banks are unlikely to be liable for customer losses due to scams, but new schemes could force them to reimburse victims.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/melbourne-australia-july-2-2017-unidentified-676982497">TK Kurikawa/Shutterstock</a></span>
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</figure>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-can-learn-from-the-uks-experience-by-making-banks-pay-for-scam-losses-209585">Australia can learn from the UK's experience by making banks pay for scam losses</a>
</strong>
</em>
</p>
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<h2>The AI tool provider</h2>
<p>The providers of generative AI tools are currently not legally obliged to make their tools unusable for fraud or deception. In law, there is no duty of care to the world at large to prevent someone else’s fraud.</p>
<p>However, providers of generative AI do have an opportunity to use technology to reduce the likelihood of deepfakes. Like banks and social media platforms, they may soon be required to do this, at least in some jurisdictions. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/who-will-write-the-rules-for-ai-how-nations-are-racing-to-regulate-artificial-intelligence-216900">Who will write the rules for AI? How nations are racing to regulate artificial intelligence</a>
</strong>
</em>
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<hr>
<p>The recently proposed <a href="https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6473">EU AI Act</a> obligates the providers of generative AI tools to design these tools in a way that allows the synthetic/fake content to be detected. </p>
<p>Currently, it’s proposed this could work through <a href="https://www.theverge.com/2024/2/13/24067991/watermark-generative-ai-deepfake-copyright">digital watermarking</a>, although its effectiveness is still being <a href="https://venturebeat.com/ai/invisible-ai-watermarks-wont-stop-bad-actors-but-they-are-a-really-big-deal-for-good-ones/">debated</a>. Other measures include prompt limits, digital ID to verify a person’s identity, and further education about the signs of deepfakes.</p>
<h2>Can we stop deepfake fraud altogether?</h2>
<p>None of these legal or technical guardrails are likely to be entirely effective in stemming the tide of deepfake fraud, scams or deception – especially as generative AI technology keeps advancing.</p>
<p>However, the response doesn’t need to be perfect: slowing down AI generated fakes and frauds can still reduce harm. We also need to pressure platforms, banks and tech providers to stay on top of the risks. </p>
<p>So while you might never be able to completely prevent yourself from being the victim of a deepfake scam, with all these new legal and technical developments, you might soon be able to seek compensation if things go wrong. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/tmFFd8fMqxk?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">With audio, video and image deepfakes only growing more realistic, we need multi-layered strategies of prevention, education and compensation.</span></figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australians-are-concerned-about-ai-is-the-federal-government-doing-enough-to-mitigate-risks-221300">Australians are concerned about AI. Is the federal government doing enough to mitigate risks?</a>
</strong>
</em>
</p>
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<img src="https://counter.theconversation.com/content/223299/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeannie Marie Paterson receives funding from the Australian Research Council and the Department of Foreign Affairs and Trade.</span></em></p>Deepfake scams are on the rise – but can their victims claim compensation? The legal landscape is still developing.Jeannie Marie Paterson, Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2235982024-02-16T13:19:53Z2024-02-16T13:19:53ZMexico is suing US gun-makers for arming its gangs − and a US court could award billions in damages<figure><img src="https://images.theconversation.com/files/575682/original/file-20240214-30-2tfucu.jpg?ixlib=rb-1.1.0&rect=45%2C13%2C4315%2C2857&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A sign in Laredo, Texas, reminds motorists not to smuggle guns into Mexico.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sign-warns-motorists-not-to-smuggle-weapons-or-ammunitions-news-photo/91474155">Gilles Mingasson/Getty Images</a></span></figcaption></figure><p>The government of Mexico is <a href="https://www.forbes.com/sites/siladityaray/2024/01/23/us-appeals-court-allows-mexicos-10-billion-lawsuit-against-us-gunmakers-to-proceed/?sh=7f16abcb3071">suing U.S. gun-makers</a> for their role in facilitating cross-border gun trafficking that has <a href="https://stopusarmstomexico.org/invisible-weapons-indelible-pain/">supercharged violent crime</a> in Mexico.</p>
<p><a href="https://www.courthousenews.com/wp-content/uploads/2021/08/mexico-smith-wesson-complaint.pdf">The lawsuit seeks US$10 billion</a> in damages and a court order to force the companies named in the lawsuit – including Smith & Wesson, Colt, Glock, Beretta and Ruger – to change the way they do business. In January, a federal appeals court in Boston <a href="https://tlblog.org/first-circuit-allows-some-of-mexicos-claims-against-gun-manufacturer-to-move-forward/">decided</a> that the industry’s immunity shield, which so far has protected gun-makers from civil liability, does not apply to Mexico’s lawsuit.</p>
<p>As <a href="https://scholar.google.com/citations?user=yQUI6yEAAAAJ&hl=en">a legal scholar</a> who has <a href="https://press.umich.edu/Books/S/Suing-the-Gun-Industry2">analyzed lawsuits</a> against the gun industry for more than 25 years, I believe this decision to allow Mexico’s lawsuit to proceed could be a game changer. To understand why, let’s begin with some background about the federal law that protects the gun industry from civil lawsuits.</p>
<h2>Gun industry immunity</h2>
<p>In 2005, Congress passed the <a href="https://www.law.cornell.edu/uscode/text/15/chapter-105">Protection of Lawful Commerce in Arms Act</a>, which prohibits lawsuits against firearm manufacturers and sellers for injuries arising from criminal misuse of a gun.</p>
<p>Importantly, <a href="https://dx.doi.org/10.2139/ssrn.4357413">there are limits</a> to this immunity shield. For example, it <a href="https://www.law.cornell.edu/uscode/text/15/7903">doesn’t protect</a> a manufacturer or seller who “knowingly violated a State or Federal statute <a href="https://theconversation.com/sandy-hook-lawsuit-court-victory-opens-crack-in-gun-maker-immunity-shield-113636">applicable to the sale or marketing</a>” of a firearm. <a href="https://www.courthousenews.com/wp-content/uploads/2021/08/mexico-smith-wesson-complaint.pdf">Mexico’s lawsuit</a> alleges that U.S. gun-makers aided and abetted illegal weapons sales to gun traffickers in violation of federal law.</p>
<h2>Mexico’s allegations</h2>
<p>Mexico claims that U.S. gun-makers engaged in “<a href="https://www.courthousenews.com/wp-content/uploads/2021/08/mexico-smith-wesson-complaint">deliberate efforts to create and maintain an illegal market for their weapons in Mexico</a>.”</p>
<p>According to the lawsuit, the manufacturers intentionally design their weapons to be attractive to criminal organizations in Mexico by including features such as easy conversion to fully automatic fire, compatibility with high-capacity magazines and removable serial numbers.</p>
<p>Mexico also points to industry marketing that promises buyers a tactical military experience for civilians. And Mexico alleges that manufacturers distribute their products to dealers whom they know serve as transit points for illegal gunrunning through illegal <a href="https://www.nssf.org/articles/beware-the-straw-purchase/">straw sales</a>, unlicensed sales at gun shows and online, and off-book sales disguised as inventory theft.</p>
<p>In short, Mexico claims that illegal gun trafficking isn’t just an unwanted byproduct of the industry’s design choices, marketing campaigns and distribution practices. Instead, according to the lawsuit, feeding demand for illegal weapons is central to the industry’s business model.</p>
<p>In response, <a href="https://perma.cc/RRT6-PVDZ">the gun-makers insist</a> that Mexico’s attempt to hold them legally responsible for the criminal activity of others is precisely the type of lawsuit that the federal immunity shield was designed to block. They argue that merely selling a product that someone later uses in a crime does not amount to a violation of federal law that would deprive a manufacturer of immunity. Additionally, the gun-makers assert that, even if Mexico’s lawsuit were not barred by the immunity law, they have no legal duty to prevent criminal violence that occurs outside the U.S. </p>
<h2>The next legal steps</h2>
<p>In January 2024, a federal appeals court in Massachusetts decided that Mexico’s allegations, if true, would deprive the gun-makers of immunity, and it <a href="https://tlblog.org/first-circuit-allows-some-of-mexicos-claims-against-gun-manufacturer-to-move-forward/">sent the case back to trial court</a>. Mexico now needs to produce evidence to prove its allegations that the industry is not only aware of but actively facilitates illegal gun trafficking. </p>
<p>Additionally, to win, Mexico will need to convince a Boston jury that the manufacturers’ design choices, marketing campaigns and distribution practices are closely enough connected to street crime in Mexico to consider the companies responsible for the problem. This is known as “<a href="https://www.law.cornell.edu/wex/proximate_cause">proximate cause</a>” in the law.</p>
<p>For their part, the gun-makers have asked the trial judge to <a href="https://www.reuters.com/world/us/gun-makers-ask-us-supreme-court-bar-mexicos-lawsuit-2024-02-09">put the case on hold</a> while they pursue an appeal to the U.S. Supreme Court. However, <a href="https://www.nytimes.com/2019/11/12/us/politics/supreme-court-sandy-hook-remington.html">the Supreme Court has been reluctant</a> to weigh in on gun industry cases until they have reached their conclusion in the lower courts, where most of them <a href="https://casetext.com/case/ileto-v-glock-inc-2">are dismissed</a> and a few <a href="https://apnews.com/article/sandy-hook-school-shooting-remington-settlement-e53b95d398ee9b838afc06275a4df403">have settled</a>. </p>
<h2>High stakes for the industry</h2>
<p>If Mexico does win at trial, its demand for $10 billion in damages could drive several of the nation’s largest firearm manufacturers into <a href="https://www.epiqglobal.com/en-us/resource-center/articles/when-mass-tort-meets-bankruptcy">bankruptcy</a>. Even if the case were to settle for much less, a victory by Mexico would provide a template for a wave of future lawsuits that could change the way the gun industry operates.</p>
<p>Similar theories about dangerous product designs, irresponsible marketing and reckless distribution practices in opioid litigation have transformed the pharmaceutical industry. Civil lawsuits have forced the drugmakers to <a href="https://www.nytimes.com/2020/12/08/business/mckinsey-opioids-oxycontin.html">take public responsibility</a> for a nationwide health crisis, <a href="https://doi.org/10.1007/s11606-021-06799-1">overhaul the way they do business</a> and <a href="https://www.opioidsettlementtracker.com/globalsettlementtracker">pay billions of dollars</a> in judgments and settlements.</p>
<p>Mexico’s lawsuit holds out the prospect that the gun industry could be next.</p><img src="https://counter.theconversation.com/content/223598/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy D. Lytton has provided expert consulting services to law firms representing gun violence victims.</span></em></p>Mexico claims that US firearm manufacturers are fueling illegal cross-border gun trafficking and violent crime abroad.Timothy D. Lytton, Regents' Professor & Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2235462024-02-15T02:32:37Z2024-02-15T02:32:37ZThe government wants to criminalise doxing. It may not work to stamp out bad behaviour online<figure><img src="https://images.theconversation.com/files/575741/original/file-20240214-26-jtev2h.jpg?ixlib=rb-1.1.0&rect=19%2C9%2C6510%2C4337&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>This week, Prime Minister Anthony Albanese <a href="https://www.theguardian.com/australia-news/2024/feb/12/albanese-government-to-propose-legislation-to-crack-down-on-doxing">announced</a> the government was seeking to strengthen laws to combat doxing. Its ongoing review into Australian privacy law will now be expanded to include doxing, as will other laws covering hate crime and hate speech. </p>
<p>Doxing (sometimes doxxing) is shorthand for “document drop” and is the act of publishing identifying material about someone publicly, without their consent. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1757200478457266258"}"></div></p>
<p>Doxing someone can lead to real-life harms, potentially including job loss, violence against the person, their family members and pets, and serious mental health issues.</p>
<p>What any legislation from that review will look like is hard to say at this point. But how has it worked internationally, and would it work here?</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/doxing-or-in-the-public-interest-free-speech-cancelling-and-the-ethics-of-the-jewish-creatives-whatsapp-group-leak-223323">Doxing or in the public interest? Free speech, 'cancelling' and the ethics of the Jewish creatives' WhatsApp group leak</a>
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<h2>What are other countries doing?</h2>
<p>New laws around doxing came into effect in <a href="https://www.government.nl/latest/news/2023/07/12/use-of-personal-data-for-the-objective-of-harassment-to-become-criminal-offence">The Netherlands</a> at the start of the year. This makes it illegal for Dutch citizens to obtain and share other people’s personal information without their permission and then use it to harass or target them. </p>
<p>Dutch conspiracy theorist Huig Plug was <a href="https://nltimes.nl/2024/02/02/conspiracy-theorist-huig-plug-arrested-doxxing-prosecution-office-staffer">arrested</a> earlier this month under the new legislation for allegedly doxing a member of the public prosecutor’s staff.</p>
<p>In the United States, laws like this are state-based. <a href="https://www.simmrinlawgroup.com/california-penal-code-section-653-2/">California</a> has a special part of its law around so-called “indirect cyber harassment”, which is defined essentially as doxing. </p>
<p>In both of these examples, the doxer has to have intent to harm. They are posting the information because they want someone to, say, lose their job or be opened up to harassment. </p>
<p>The Dutch law goes slightly further in that it is also an offence to make someone’s job harder, as opposed to causing them to lose their job completely. The Dutch laws also carry harsher punishments for doxing people such police, lawyers and politicians. </p>
<p>From a legal perspective, showing intent to do someone harm can actually be a harder bar to pass than people might think. So, if Australian law follows this pattern, it could be difficult for plaintiffs to prove that being doxed has caused them genuine harm.</p>
<h2>Not a new problem</h2>
<p>Doxing isn’t a new phenomenon and there have been some high-profile doxing cases over the past few years. </p>
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Read more:
<a href="https://theconversation.com/what-is-doxing-and-how-can-you-protect-yourself-223428">What is doxing, and how can you protect yourself?</a>
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<p>One of the most famous global events was the <a href="https://www.theatlantic.com/technology/archive/2015/09/organizational-doxing-ashley-madison-hack/403900/">Ashley Madison</a> data breach in 2015, which resulted in <a href="https://www.theguardian.com/technology/2016/feb/28/what-happened-after-ashley-madison-was-hacked">job losses and suicides</a>. The current discussion, however, hinges around the <a href="https://www.theage.com.au/national/hundreds-of-jewish-creatives-have-names-details-taken-in-leak-published-online-20240208-p5f3if.html">sharing of information</a> from a private WhatsApp group of 600 people and in the context of the ongoing war in Gaza.</p>
<p>We’ve seen the hasty introduction of legislation in these types of circumstances in the past, most notably the Sharing of Abhorrent Violent Material Act, which legal scholars <a href="https://theconversation.com/livestreaming-terror-is-abhorrent-but-is-more-rushed-legislation-the-answer-114620">criticised</a> at the time for a lack of detail and it’s rushed introduction to parliament.</p>
<p>We saw similar concerns when the Morrison government introduced anti-trolling laws in 2021. I wrote at the time the law <a href="https://theconversation.com/the-governments-planned-anti-troll-laws-wont-help-most-victims-of-online-trolling-172743">wouldn’t help victims that much</a>, partly because it was practically impossible to police.</p>
<p>While the current discussion into changes in the law around doxing are happening, it’s worth revisiting some of these issues.</p>
<h2>How can we police the internet?</h2>
<p>The first thing to note is that it’s really hard to police what happens on the internet. There are several reasons for this.</p>
<p>The main one is that the internet is what we call inter-jurisdictional. There’s a mess of different laws around the world, and no real way to use them if you’re in a different country. This means if someone in The Netherlands doxes you in Australia, you can’t sue them under their laws, because you aren’t a citizen there. You also can’t do anything under Australia’s laws, because the perpetrator is not a citizen here. In short, to make this work, we would need global cooperation akin to Interpol.</p>
<p>The second reason is because Australian laws apply only to people currently in the country, there are many ways to get around them online. People can use anonymous accounts and virtual private networks (VPNs) to hide and make it hard to trace exactly who the culprit is and where they are.</p>
<p>The third comes down to the definition of what’s considered “public”. For example, a lot of doxing is done in smaller private groups with the express purpose of that community attacking specific people. That private information is still being shared without the consent or knowledge of the victims. In fact, as the journalist Ginger Gorman <a href="https://www.amazon.com.au/Troll-Hunting-Ginger-Gorman-ebook/dp/B07MC4C851">notes</a> this is the type of behaviour that “predatory trolls” often engage in.</p>
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<strong>
Read more:
<a href="https://theconversation.com/trolling-and-doxxing-graduate-students-sharing-their-research-online-speak-out-about-hate-210874">Trolling and doxxing: Graduate students sharing their research online speak out about hate</a>
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<p>Finally, do we really need these laws when existing ones already cover many of the behaviours associated with doxing?</p>
<p>The biggest of these are found in the <a href="https://www.legislation.gov.au/C2004A04868/2022-11-10/text/2">federal criminal code</a>, a piece of legislation that deals with the use of telecommunications for crimes. It outlines the “use a carrier service” to threaten, harass or menace someone. This includes “hoax threats”. Penalties for these behaviours range from five to ten years in jail. There’s similar wording in the <a href="https://www.legislation.gov.au/C2021A00076/latest/text">Online Safety Act</a>.</p>
<p>While it’s great to see the government working to reform and strengthen existing legislation, I’m not convinced that these types of laws will have much impact given the complexity of policing online behaviours.</p><img src="https://counter.theconversation.com/content/223546/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Beckett receives funding from the Australian Research Council, through the Discovery grants scheme for work on online hostility in Australia. </span></em></p>Anthony Albanese has flagged a crack-down on people’s personal details being shared online without consent. But like so much of the internet, it’s hard to police.Jennifer Beckett, Lecturer in Media and Communications, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2159982024-02-14T13:24:03Z2024-02-14T13:24:03ZDon’t let ‘FDA-approved’ or ‘patented’ in ads give you a false sense of security<figure><img src="https://images.theconversation.com/files/557351/original/file-20231102-29-y77wkb.jpg?ixlib=rb-1.1.0&rect=10%2C0%2C7156%2C4764&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is that really a stamp of approval?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/approved-concept-rubber-stamp-with-fda-and-pills-on-royalty-free-image/1186545957">iStock/Getty Images Plus</a></span></figcaption></figure><p>If you’ve ever reached for a bottle of moisturizer labeled “patented” or “FDA approved,” you might want to think twice. In a <a href="http://dx.doi.org/10.2139/ssrn.4366900">recent study</a> of hundreds of advertisements, I found that supplements and beauty products often misleadingly use these terms to suggest safety or efficacy.</p>
<p>As a <a href="https://law.indiana.edu/about/people/details/mattioli-michael.html">law professor</a>, I suspect this is confusing for consumers, maybe even dangerous. Having a patent means only that you can stop others from making, using, selling or importing your invention. It doesn’t mean the invention works or that it won’t blow up in your face.</p>
<p>“FDA approved,” meanwhile, means <a href="https://www.fda.gov/drugs/development-approval-process-drugs">a product’s benefits have been found to outweigh its risks</a> for a specific purpose – not that it’s of high quality or low risk in general.</p>
<h2>Led astray by the label</h2>
<p>I wanted to know whether companies exploit these sorts of misunderstandings, so I analyzed hundreds of ads from print, television and social media that mention patents or FDA approval. I found that advertisers throw these terms around in confusing ways. </p>
<p>For example, I found an ad for a probiotic supplement stating, “The proof is in the patent”; an ad for an earwax removal product stating its “patented formula is safe, effective, and clinically proven”; and an ad for a headache remedy that made the words “FDA approved” a bold visual focal point. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1312044681551917058"}"></div></p>
<p>Here’s the concerning part: I looked at all kinds of products and found that these terms appear most often in ads for things you eat or rub onto your skin, such as supplements, insecticides, toothpaste and lotions. </p>
<p>That’s probably no coincidence. Products like this aren’t tightly regulated, yet consumers want to know they’re safe. It seems likely that advertisers are name-dropping the government to make people think just that.</p>
<h2>Risks to consumers − and to innovation</h2>
<p>One danger is clear: Ads with vague references to government authorities could dupe consumers into thinking products are safer or more effective than they actually are. In fact, there’s some evidence <a href="https://doi.org/10.1001/archinternmed.2011.396">this is already happening</a>.</p>
<p>Another risk is that this creates perverse incentives for business. Companies could chose to forgo actual innovation, focusing instead on securing dubious patents or regulatory nods to <a href="https://www.voguebusiness.com/beauty/how-patents-became-the-beauty-industrys-secret-weapon">keep up in the advertising race</a>. </p>
<p>These practices could distort competition, burden government agencies with frivolous patent applications and deter new entrants from competing in markets where they can’t employ similar advertising tactics. </p>
<h2>Questions remain</h2>
<p>Even though my study has shed light on how often these tricky advertising methods are used, it leaves some big questions unanswered. What exactly makes consumers <a href="https://doi.org/10.1080/10810730.2016.1179367">respond so favorably</a> to terms like “patented” or “FDA approved”? And who is most likely to be confused by these tactics? </p>
<p>As a next step, I plan to conduct comprehensive surveys of consumers, along with in-depth interviews, to explore how these labels resonate emotionally. I hope to coordinate with researchers from psychology and media studies. Research along these lines could offer policymakers the robust evidence they need to make changes to the law.</p>
<p>What might those changes look like? For one thing, the law could make it easier for groups of consumers to sue in federal courts over misleading ads. The Federal Trade Commission could also place more of a burden on companies to prove their ads are honest. These changes could make a big difference in ensuring companies persuade shoppers without confusing them. </p>
<p>At a time when ads are everywhere and Americans are losing trust in institutions – and each other – the stakes for truthful product claims are high.</p><img src="https://counter.theconversation.com/content/215998/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Mattioli does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Most people don’t know what these labels really mean − and advertisers take advantage of that fact.Michael Mattioli, Professor of Law and Louis F. Niezer Faculty Fellow, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217172024-01-25T13:18:54Z2024-01-25T13:18:54ZCould a court really order the destruction of ChatGPT? The New York Times thinks so, and it may be right<figure><img src="https://images.theconversation.com/files/571252/original/file-20240124-29-abie1d.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4985%2C3196&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Old media, meet new.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-the-new-york-times-logo-is-seen-news-photo/1894336797">Idrees Abbas/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p>On Dec. 27, 2023, The New York Times <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf">filed a lawsuit</a> against OpenAI alleging that the company committed willful copyright infringement through its generative AI tool ChatGPT. The Times claimed both that ChatGPT was unlawfully trained on vast amounts of text from its articles and that ChatGPT’s output contained language directly taken from its articles.</p>
<p>To remedy this, the Times asked for more than just money: It asked a federal court to order the “destruction” of ChatGPT.</p>
<p>If granted, this request would force OpenAI to delete its trained large language models, such as GPT-4, as well as its training data, which would prevent the company from rebuilding its technology. </p>
<p>This prospect is alarming to the <a href="https://www.theverge.com/2023/11/6/23948386/chatgpt-active-user-count-openai-developer-conference">100 million people</a> who use ChatGPT every week. And it raises two questions that interest me as a <a href="https://law.indiana.edu/about/people/details/marinotti-jo%C3%A3o.html">law professor</a>. First, can a federal court actually order the destruction of ChatGPT? And second, if it can, will it?</p>
<h2>Destruction in the court</h2>
<p>The answer to the first question is yes. Under <a href="https://www.law.cornell.edu/uscode/text/17/503">copyright law</a>, courts do have the power to issue destruction orders. </p>
<p>To understand why, consider vinyl records. Their <a href="https://www.theverge.com/2023/3/10/23633605/vinyl-records-surpasses-cd-music-sales-us-riaa">resurging popularity</a> has attracted <a href="https://fortune.com/2023/04/06/punk-rock-fan-uncovers-six-year-scam-that-sold-1-6-million-worth-of-counterfeit-vinyl-records-to-collectors/">counterfeiters who sell pirated records</a>. </p>
<p>If a record label sues a counterfeiter for copyright infringement and wins, what happens to the counterfeiter’s inventory? What happens to the master and stamper disks used to mass-produce the counterfeits, and the machinery used to create those disks in the first place?</p>
<p>To address these questions, copyright law grants courts the power to destroy infringing goods and the equipment used to create them. From the law’s perspective, there’s no legal use for a pirated vinyl record. There’s also no legitimate reason for a counterfeiter to keep a pirated master disk. Letting them keep these items would only enable more lawbreaking.</p>
<p>So in some cases, destruction is the only logical legal solution. And if a court decides ChatGPT is like an infringing good or pirating equipment, it could order that it be destroyed. In its complaint, the Times offered arguments that ChatGPT fits both analogies.</p>
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<figcaption><span class="caption">NBC News reports on The New York Times’ lawsuit.</span></figcaption>
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<p>Copyright law has never been used to destroy AI models, but OpenAI shouldn’t take solace in this fact. The law has been increasingly open to the idea of targeting AI. </p>
<p>Consider the Federal Trade Commission’s recent use of <a href="https://www.jdsupra.com/legalnews/ftc-coppa-settlement-requires-deletion-1217192">algorithmic disgorgement</a> as an example. The FTC has forced companies <a href="https://www.dwt.com/-/media/files/blogs/privacy-and-security-blog/2022/03/weight-watchers-kurbo-stipulated-order.pdf">such as WeightWatchers</a> to delete not only unlawfully collected data but also the algorithms and AI models trained on such data. </p>
<h2>Why ChatGPT will likely live another day</h2>
<p>It seems to be only a matter of time before copyright law is used to order the destruction of AI models and datasets. But I don’t think that’s going to happen in this case. Instead, I see three more likely outcomes.</p>
<p>The first and most straightforward is that the two parties could settle. In the case of a successful settlement, which <a href="https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use">may be likely</a>, the lawsuit would be dismissed and no destruction would be ordered.</p>
<p>The second is that the court might side with OpenAI, agreeing that ChatGPT is protected by the copyright doctrine of “<a href="https://www.copyright.gov/fair-use/#:%7E:text=Fair%20use%20is%20a%20legal,protected%20works%20in%20certain%20circumstances.">fair use</a>.” If OpenAI can argue that ChatGPT is transformative and that its service does not provide a substitute for The New York Times’ content, it just might win. </p>
<p>The third possibility is that OpenAI loses but the law saves ChatGPT anyway. Courts can order destruction only if two requirements are met: First, destruction must not prevent lawful activities, and second, it must be “<a href="https://casetext.com/case/hounddog-prods-llc-v-empire-film-grp-inc">the only remedy</a>” that could prevent infringement. </p>
<p>That means OpenAI could save ChatGPT by proving either that ChatGPT has legitimate, noninfringing uses or that destroying it isn’t necessary to prevent further copyright violations. </p>
<p>Both outcomes seem possible, but for the sake of argument, imagine that the first requirement for destruction is met. The court could conclude that, because of the articles in ChatGPT’s training data, all uses infringe on the Times’ copyrights – an argument put forth in <a href="https://copyrightalliance.org/current-ai-copyright-cases-part-1/">various other lawsuits</a> against generative AI companies. </p>
<p>In this scenario, the court would issue an injunction ordering OpenAI to stop infringing on copyrights. Would OpenAI violate this order? Probably not. A single counterfeiter in a shady warehouse might try to get away with that, but that’s less likely with a <a href="https://www.reuters.com/technology/openai-talks-raise-new-funding-100-bln-valuation-bloomberg-news-2023-12-22/">US$100 billion company</a>.</p>
<p>Instead, it might try to retrain its AI models without using articles from the Times, or it might develop other software guardrails to prevent further problems. With these possibilities in mind, OpenAI would likely succeed on the second requirement, and the court wouldn’t order the destruction of ChatGPT. </p>
<p>Given all of these hurdles, I think it’s extremely unlikely that any court would order OpenAI to destroy ChatGPT and its training data. But developers should know that courts do have the power to destroy unlawful AI, and they seem increasingly willing to use it.</p><img src="https://counter.theconversation.com/content/221717/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>João Marinotti does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It may seem extreme, but there’s a reason the law allows it.João Marinotti, Associate Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2204212024-01-04T16:22:01Z2024-01-04T16:22:01ZAI could change how we obtain legal advice, but those without access to the technology could be left out in the cold<p>The legal profession has already been using artificial intelligence (AI) for several years, to automate reviews and predict outcomes, among other functions. However, these tools have mostly been used by large, well established firms.</p>
<p>In effect, certain law firms have already deployed AI tools to <a href="https://www.allenovery.com/en-gb/global/expertise/practices/artificial-intelligence">assist their employed solicitors</a> with day-to-day work. By 2022, three quarters of the largest solicitor’s law firms were utilising AI. However, this trend has now started to encompass <a href="https://www.sra.org.uk/sra/research-publications/artificial-intelligence-legal-market/">small and medium firms too</a>, signalling a shift of such technological tools towards mainstream utilisation.</p>
<p>This technology could be enormously beneficial both to people in the legal profession and clients. But its rapid expansion has also increased the urgency of calls to assess the potential risks. </p>
<p>The <a href="https://www.sra.org.uk/sra/research-publications/artificial-intelligence-legal-market/">2023 Risk Outlook Report by the Solicitors Regulation Authority (SRA)</a> predicts that AI could automate time consuming tasks, as well as increase speed and capacity. This latter point could benefit smaller firms with limited administrative support. This is because it has the potential to reduce costs and – potentially – increase the transparency around legal decision making, assuming the technology is well monitored.</p>
<h2>Reserved approach</h2>
<p>However, in the absence of rigorous auditing, errors resulting from so-called “hallucinations”, where an AI provides a response that is false or misleading, can lead to improper advice being delivered to clients. It could even lead to miscarriages of justice as a result of courts being inadvertently misled – such as fake precedents being submitted. </p>
<p>A case mimicking this scenario <a href="https://www.bbc.co.uk/news/world-us-canada-65735769">has already occurred in the US</a>, where a New York lawyer submitted a legal brief containing six fabricated judicial decisions. Against this background of a growing recognition of the problem, <a href="https://www.judiciary.uk/wp-content/uploads/2023/12/AI-Judicial-Guidance.pdf">English judges were issued with judicial guidance</a> surrounding use of the technology in December 2023. </p>
<p>This was an important first step in addressing the risks, but the UK’s overall approach is still relatively reserved. While it recognises technological complications associated with AI, such as the existence of biases that can be incorporated into algorithms, its focus has not shifted away from a “guardrails” approach – which are generally controls initiated by the tech industry as opposed to regulatory frameworks imposed from outside it. The UK’s approach is decidedly less strict than, say, the EU’s AI Act, which has been <a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698792/EPRS_BRI(2021)698792_EN.pdf">in development for many years</a>. </p>
<figure class="align-center ">
<img alt="European Commission in Brussels." src="https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567529/original/file-20240101-23-qts93d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The European Union’s AI Act introduces a strict framework for technological development.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/european-flags-on-background-parliament-584623777">Areporter / Shutterstock</a></span>
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<p>Innovation in AI may be necessary for a thriving society, albeit with manageable limitations having been identified. But there seems to be a genuine absence of consideration regarding the technology’s true impact on access to justice. The hype implies that those who may at some point be faced with litigation will be equipped with expert tools to guide them through the process. </p>
<p>However, many members of the public might not have regular or direct access to the internet, the devices required or the finances to gain access to those AI tools. Furthermore, people who are incapable of interpreting AI instructions or those digitally excluded due to disability or age would also be unable to take advantage of this new technology. </p>
<h2>Digital divide</h2>
<p>Despite the internet revolution we’ve seen over the past two decades, there are still a significant number of people who <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/householdcharacteristics/homeinternetandsocialmediausage/articles/exploringtheuksdigitaldivide/2019-03-04">don’t use it</a>. The resolution process of the courts is unlike that of basic businesses where some customer issues can be settled through a chatbot. Legal problems vary and would require a modified response depending on the matter at hand. </p>
<p>Even current chatbots are sometimes incapable of providing resolution to certain issues, often passing customers to a human chatroom in these instances. Though more advanced AI could potentially fix this problem, we have already witnessed the pitfalls of such an approach, such as flawed algorithms for <a href="https://www.science.org/doi/10.1126/science.aax2342">medicine</a> or <a href="https://www.politico.eu/article/dutch-scandal-serves-as-a-warning-for-europe-over-risks-of-using-algorithms/">spotting benefit fraud</a>.</p>
<p>The Sentencing and Punishment of Offenders Act (LASPO 2012) introduced <a href="https://www.equalityhumanrights.com/sites/default/files/the-impact-of-laspo-on-routes-to-justice-september-2018.pdf">funding cuts to legal aid</a>, narrowing financial eligibility criteria. This has already created a gap with regards to access, with an increase in people having to represent themselves in court due to their inability to afford legal representation. It’s a gap that could grow as the <a href="https://www.fca.org.uk/financial-lives/financial-lives-2022-survey">financial crisis deepens</a>.</p>
<p>Even if individuals representing themselves were able to access AI tools, they might not be able to clearly understand the information or its legal implications in order to defend their positions effectively. There is also the matter of whether they would be able to convey the information effectively before a judge. </p>
<p>Legal personnel are able to explain the process in clear terms, along with the potential outcomes. They can also offer a semblance of support, instilling confidence and reassuring their clients. Taken at face value, AI certainly has the potential to improve access to justice. Yet, this potential is complicated by existing structural and societal inequality.</p>
<p>With technology evolving at a monumental rate and the human element being minimised, there is real potential for a large gap to open up in terms of who can access legal advice. This scenario is at odds with the reasons why the use of AI was first encouraged.</p><img src="https://counter.theconversation.com/content/220421/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>AI tools are intended to expand access to the law, but they could open up new divides.Mark Tsagas, Lecturer in Law, Cybercrime & AI Ethics, University of East LondonOlubunmi Onafuwa, Senior Lecturer and Researcher in Law, University of East LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2196612023-12-20T16:05:46Z2023-12-20T16:05:46ZUK government facing legal action for failing to tackle climate change – but it could backfire<p>The parish of Whimpell once stood on the Norfolk coast between the village of Happisburgh and the sea. Whimpell <a href="https://www.bgs.ac.uk/case-studies/coastal-erosion-at-happisburgh-norfolk-landslide-case-study/">disappeared into the sea</a> centuries ago thanks to coastal erosion. And now Happisburgh is facing a <a href="https://www.bbc.co.uk/news/uk-england-norfolk-63822899">similar threat</a>.</p>
<p>Some, however, do not intend to give up without a fight. On October 17 2023, <a href="https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20231101_21608_complaint.pdf">a case was brought</a> against the UK government by <a href="https://www.theguardian.com/environment/2023/nov/01/claimants-take-uk-government-to-court-over-inadequate-climate-adaptation">two people</a> supported by Friends of the Earth, an environmental charity. </p>
<p>The first is Kevin Jordan, whose home is at risk due to coastal erosion in Hemsby, Norfolk. The second is Doug Paulley of Wetherby in west Yorkshire, who suffers from a number of medical issues that make him particularly vulnerable to the increased frequency and intensity of extreme heat.</p>
<p>Only a <a href="https://climatecasechart.com/non-us-case/rfriends-of-the-earth-ltd-mr-kevin-jordan-and-mr-doug-paulley-v-secretary-of-state-for-environment-rood-rural-affairs-challenge-to-the-third-national-adaptation-programme/">summary</a> of the claims has been made available publicly. But it is clear that the claimants are focusing on the UK’s most recent <a href="https://www.gov.uk/government/publications/third-national-adaptation-programme-nap3">national adaptation programme</a> (NAP3). The NAP3 outlines the actions the government and others will take to adapt to the effects of climate change from 2023 to 2028. </p>
<p>The claimants argue that the NAP3 is not sufficiently ambitious and specific. It is also argued that there is no evidence that an appropriate assessment of the risks posed by climate change has been conducted, and that the unequal impact on protected groups has not been considered. </p>
<p>The claimants add that the government has failed to protect a number of <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">human rights</a>, including the rights to property, life, respect to private and family life, and the prohibition of discrimination.</p>
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<img alt="Crumbling cliffs at Happisburgh on the Norfolk coast." src="https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Happisburgh in Norfolk has lost a lot of land to the sea.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/crumbling-cliffs-sea-erosion-happisburgh-on-417847936">Helen Hotson/Shutterstock</a></span>
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<h2>Legality of the claims</h2>
<p>The preparation of the national adaption programme is required by <a href="https://www.legislation.gov.uk/ukpga/2008/27/section/58">section 58</a> of the UK <a href="https://www.legislation.gov.uk/ukpga/2008/27/contents">Climate Change Act 2008</a>. This article demands that the NAP3 sets out the objectives of the UK in relation to adaptation, as well as proposals for meeting these objectives.</p>
<p>However, section 58 does not explicitly require the government to take specific, ambitious action on adaptation to the impacts of climate change. The only indication in this law concerning the level of ambition that national adaption programmes should achieve is that adaptation objectives, proposals and policies “must be such as to contribute to sustainable development”. </p>
<p>There is no doubt that a progressive interpretation of the Climate Change Act may set an important precedent in relation to government obligation to actively adopt adaptation measures. The court, for example, may accept that the instruction that the NAP3 will “contribute to sustainable development” means that the government is obliged to adopt ambitious and specific adaptation measures, such as those requested by the claimants. </p>
<p>At the same time, it is also possible the court will understand this instruction in a very limited manner. For example, the court may clarify that the obligation to adopt adaptation measures is entirely within the discretion of the government and therefore, to put it bluntly, the government can do as it pleases. This is not an unlikely prospect given the High Court’s <a href="https://www.judiciary.uk/wp-content/uploads/2022/07/FoE-v-BEIS-judgment-180722.pdf">earlier narrow interpretation</a> of “sustainable development”.</p>
<p>The human rights arguments made by the claimants are clearer and simpler to understand. The fact that this case focuses on the government’s obligation to adapt to, rather than mitigate, climate change makes it easier to prove. The claimants don’t have to demonstrate that the UK government caused harm to their human rights, only that it has failed to protect them from the impacts of climate change.</p>
<h2>A growing trend</h2>
<p>This case is hardly a unique effort but rather part of a wider and growing trend of <a href="https://climatecasechart.com/">climate litigation</a> targeting both states and companies. Globally, hundreds of cases have been brought against states in the past two decades, with <a href="https://climatecasechart.com/non-us-jurisdiction/united-kingdom/">103</a> of them occurring in the UK.</p>
<p>A somewhat similar litigation – <a href="https://climatecasechart.com/non-us-case/union-of-swiss-senior-women-for-climate-protection-v-swiss-federal-council-and-others/">KlimaSeniorinnen v Switzerland</a> – is also currently before a different tribunal: the European Court of Human Rights. In this instance, a group of elderly citizens are claiming that the impacts of climate change are affecting certain human rights, including their right to life due to (among other things) climate change-related heatwaves. </p>
<p>The current UK case offers a glimpse into the potential benefits and risks that are involved in this strategy. The benefits are clear. The case has already been reported by leading media outlets and is being discussed by academics. </p>
<p>Winning the case and forcing the government to act on climate change could yet be another potential win, albeit an uncertain one given the record of climate litigation in the UK. While there have been a few celebrated cases, the vast majority of UK cases have been rejected.</p>
<p>The risks of climate litigation are equally clear. The court may clarify the meaning of the law – <a href="https://climatecasechart.com/non-us-case/r-finch-v-surrey-county-council/">as it has done before</a> – in a manner that those supportive of environmental action will not approve of. </p>
<p>This same risk exists in the current case. The court may limit the link between the impacts of climate change and human rights, or clarify that adaptation plan objectives could be as limited as the government wishes them to be.</p>
<p>To what extent this type of legal action will help tackle climate change in the UK remains to be seen. Given the risks discussed above, one may also question whether these cases bring more good than harm. But it’s a global phenomenon that shows no sign of stopping any time soon.</p>
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<img alt="Imagine weekly climate newsletter" src="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><strong><em>Don’t have time to read about climate change as much as you’d like?</em></strong>
<br><em><a href="https://theconversation.com/uk/newsletters/imagine-57?utm_source=TCUK&utm_medium=linkback&utm_campaign=Imagine&utm_content=DontHaveTimeTop">Get a weekly roundup in your inbox instead.</a> Every Wednesday, The Conversation’s environment editor writes Imagine, a short email that goes a little deeper into just one climate issue. <a href="https://theconversation.com/uk/newsletters/imagine-57?utm_source=TCUK&utm_medium=linkback&utm_campaign=Imagine&utm_content=DontHaveTimeBottom">Join the 30,000+ readers who’ve subscribed so far.</a></em></p>
<hr><img src="https://counter.theconversation.com/content/219661/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Can we avoid dangerous climate change by taking government to court?Avidan Kent, Senior Lecturer in Law, University of East AngliaIrene Lorenzoni, Professor of Society and Environmental Change, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2175572023-12-19T01:44:07Z2023-12-19T01:44:07ZNZ’s new government is getting tough on gangs – but all the necessary laws already exist<p>The new coalition government has made its campaign promise to crack down on gangs a priority in its <a href="https://www.beehive.govt.nz/release/coalition-government-unveils-100-day-plan">100-day action plan</a>. But whether the new “get tough” policy genuinely plugs gaps in existing legislation is very much open to question.</p>
<p>The policy was laid out in a <a href="https://www.publicservice.govt.nz/publications/government-expectations-of-commissioner-of-police/">letter of expectations</a> to the police commissioner from new police minister Mark Mitchell in early December, including: banning gang patches in public, stopping public gang meetings, and preventing gang members communicating with each other.</p>
<p>The government also promises extra police powers to search for guns, and to make gang membership an aggravating feature at sentencing. </p>
<p>We all have a right to be safe from harm, including harm by gangs. But there are already many relevant offences in the law that exist to protect the general public. </p>
<h2>No need for new law</h2>
<p>First, it is already an offence to be in a criminal gang. Section 98A of the <a href="https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html">Crimes Act 1961</a> allows up to ten years’ imprisonment for participating in an “organised criminal group”. This involves three or more people who aim to commit serious violence, or who benefit from offending, liable for at least four years’ imprisonment. </p>
<p>As with most serious criminal offences, a guilty mind is required: you have to know it is a criminal group, realise your involvement might contribute to criminal activity, and also be aware the criminal activity might help the criminal group.</p>
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Read more:
<a href="https://theconversation.com/new-zealand-needs-a-new-gang-strategy-political-consensus-would-be-a-good-start-185677">New Zealand needs a new gang strategy – political consensus would be a good start</a>
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<p>It is also a criminal conspiracy to agree to commit offences. And our “joint enterprise” law in section 66(2) of the Crimes Act means those who agree to commit one offence are also guilty of other foreseeable offences committed by the group.</p>
<p>There are also many offences against public order in the <a href="https://www.legislation.govt.nz/act/public/1981/0113/latest/whole.html">Summary Offences Act 1981</a>, including disorderly or offensive behaviour, and associating with those convicted of theft, violence or drugs offending. </p>
<p>As well, there is the <a href="https://www.legislation.govt.nz/act/public/2013/0056/latest/DLM4301602.html">Prohibition of Gang Insignia in Government Premises Act 2013</a>. This bans gang insignia in or on premises operated by central and local government, including schools, hospitals and swimming pools, but not Kāinga Ora housing.</p>
<h2>Guns and gangs</h2>
<p>The <a href="https://www.legislation.govt.nz/act/public/1983/0044/latest/DLM72622.html">Arms Act 1983</a> makes the privilege of obtaining a firearms licence dependent on being a “fit and proper person”; gang membership and convictions already mean this test is not met. </p>
<p>Section 18 of the <a href="https://www.legislation.govt.nz/act/public/2012/0024/latest/DLM2136536.html">Search and Surveillance Act 2012</a> allows the police to search any person or place if they reasonably suspect a breach of the Arms Act.</p>
<p>And when it comes to sentencing, section 9(1) of the <a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135342.html">Sentencing Act 2002</a> already requires judges to consider an offence to be worse if committed as part of organised criminal activity. </p>
<p>The <a href="https://www.legislation.govt.nz/act/public/2009/0008/latest/whole.html">Criminal Proceeds (Recovery) Act 2009</a> allows the seizure of criminal gains even if there has not been a conviction.</p>
<p>In short, if arresting our way out of a problem works, there are already many criminal justice tools. We should also note that the <a href="https://www.stuff.co.nz/national/the-whole-truth/132478912/national-says-gang-membership-is-rising-is-it">apparent growth</a> in gang membership has occurred despite these various offences and powers.</p>
<h2>Rights and their limits</h2>
<p>We also need to ask whether the new anti-gang measures breach fundamental principles such as human rights. These are part of New Zealand law, through the <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html">New Zealand Bill of Rights Act 1990</a> and the common law. They also reflect international standards that New Zealand has agreed to respect. </p>
<p>Everyone has the right to freedom of expression, which includes proclaiming gang affiliation. There is also the right to associate with others, and to assemble peacefully. </p>
<p>But all of these rights have to be balanced against other interests. The Bill of Rights Act sums this up by allowing “reasonable limits” that “can be demonstrably justified in a free and democratic society”. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/policing-by-consent-is-not-woke-it-is-fundamental-to-a-democratic-society-155866">Policing by consent is not ‘woke’ — it is fundamental to a democratic society</a>
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<p>Essentially, legislation that restricts rights requires a legitimate purpose. This is usually easy to show. But it is also necessary to consider whether such restrictions work and do so in a way that is proportionate to the breach of rights. </p>
<p>We have an idea what the courts might say. For example, in <a href="https://www.courtsofnz.govt.nz/assets/cases/2011/sc-10-2010-valerie-morse-v-the-police.pdf">Morse v Police</a>, the Supreme Court decided burning the New Zealand flag during an Anzac Day parade to protest New Zealand involvement in Afghanistan was not offensive behaviour, because it did not go beyond what people should be expected to tolerate in a democracy. </p>
<p>And in <a href="https://nz.vlex.com/vid/schubert-v-wanganui-district-793834781">Schubert v Wanganui District Council</a>, the High Court decided the ban on gang patches in all public places in the district went too far; the evidence did not show that something more tailored would have been as effective.</p>
<h2>Tackling membership is the challenge</h2>
<p>The government might suggest its main aim is to extend the 2013 legislation banning gang patches in government premises to all public places. But that legislation is probably acceptable because it has limits. </p>
<p>The Bill of Rights Act also protects against discrimination. Here we have to recall that Māori are disproportionately imprisoned, and disproportionately affected by socioeconomic factors (including abuse in state care and incarceration) that seem linked to gang recruitment. </p>
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Read more:
<a href="https://theconversation.com/despite-claims-nzs-policing-is-too-woke-crime-rates-are-largely-static-and-even-declining-156103">Despite claims NZ's policing is too 'woke', crime rates are largely static — and even declining</a>
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<p>Since it is likely that action against gangs will affect Māori to a greater extent, a <a href="https://www.waitangitribunal.govt.nz/">Waitangi Tribunal</a> claim may be expected.</p>
<p>To abide by existing human rights provisions in the law, the government will need to craft various exceptions to the ban on gang patches, or to people meeting or communicating with each other. </p>
<p>Alternatively, if it is comfortable with breaches of human rights, it can make that clear. This is possible because the Bill of Rights Act can be sidestepped by parliament using legislative language that precludes consistency with such rights. </p>
<p>This would still leave the law in breach of New Zealand’s international obligations, with resulting reputational damage.</p>
<p>But we should also be mindful that criminal justice powers represent an ambulance at the bottom of the cliff. People’s right to be safe is more likely to be secured by other steps that turn people away from gang membership in the first place.</p><img src="https://counter.theconversation.com/content/217557/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill is currently working on a project relating to the Sentencing Act 2002 the expenses for which are funded by the Borrin Foundation. He is also a co-opted member of the Criminal Bar Association's Executive Committee. The views expressed in this article are his own.</span></em></p>The government’s promised crack-down on gangs may have to work around existing legislation – and human rights provisions.Kris Gledhill, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
</strong>
</em>
</p>
<hr>
<h2>What are preventative detention laws?</h2>
<p>The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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</em>
</p>
<hr>
<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.</p>
<p>The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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</em>
</p>
<hr>
<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.</p>
<p>In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
</strong>
</em>
</p>
<hr>
<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2189742023-12-01T14:06:47Z2023-12-01T14:06:47ZWhy some people from the north of England end up leaving everything to King Charles when they die<p>What connects an ex-miner and lifelong republican, who once manned the protest lines at Orgreave, with King Charles III? The surprising answer, as <a href="https://www.theguardian.com/uk-news/2023/nov/23/turn-in-his-grave-the-dead-whose-assets-went-to-king-charles-estate">the Guardian reported</a>, is that the ex-miner’s estate now forms part of a fund which generates private income for the monarch. </p>
<p>The reason is the legal principle of <em><a href="https://www.gov.uk/government/organisations/bona-vacantia">bona vacantia</a></em>. This is loosely translated as “ownerless goods” and refers to a process through which the estates of people who die without heirs in England and Wales are claimed by the crown. </p>
<p>The principle of <em>bona vacantia</em> operates when a person dies in England and Wales without leaving a valid will disposing of all of their assets and there is no heir to their estate under the <a href="https://www.gov.uk/inherits-someone-dies-without-will">intestacy rules</a>. These rules, set out in the <a href="https://www.legislation.gov.uk/ukpga/Geo5/15-16/23/contents">Administration of Estates Act 1925</a>, set out the classes of people who can inherit the property of an intestate (or partially intestate) person. </p>
<p>These classes are ranked and then gone through in order to see if an heir can be found. In broad terms, no surviving relative further away from the deceased than a first cousin can inherit. Remoter family members are generally excluded. When no one closer than a cousin can be found, the unclaimed part of the estate (the <em>bona vacantia</em>) passes to, and is collected by, the crown. </p>
<p>Most of these estates are claimed by the <a href="https://www.gov.uk/government/people/susanna-mcgibbon">Treasury solicitor</a>, the government legal department which handles the administration of the estate and then passes the surplus to the government for its general expenditure. </p>
<p>However, the estates of people who died resident in the historic County Palatine of Lancaster (including greater Manchester, Merseyside, Lancashire and the Furness area of Cumbria) pass under the <em>bona vacantia</em> rules to the Duke of Lancaster. That is, the current reigning monarch, King Charles. </p>
<p>The estates collected by the Duchy of Lancaster are incorporated into its private estate of land, property and assets, with the function of providing private income for the monarch. </p>
<p>This is an extremely ancient power, dating back to a 1377 grant made by Edward III to John of Gaunt when he was Duke of Lancaster. Today, it is part of the <a href="https://www.legislation.gov.uk/ukpga/Geo5/15-16/23/contents">Administration of Estates Act 1925</a>. </p>
<p>A similar rule applies to the estates of those dying within the county of Cornwall. These estates pass to the Duke of Cornwall, who is also the Prince of Wales, Charles’s son, William.</p>
<p>Although many of these unclaimed estates are not large, the aggregate sums received by the duchies are considerable. The Guardian reports that over the past ten years, the Duchy of Lancaster alone <a href="https://www.theguardian.com/uk-news/2023/nov/24/kings-estate-facing-questions-over-14m-in-bona-vacantia-not-donated-to-charity">has collected around £61.8 million</a>. </p>
<p>The Treasury solicitor and the two duchies will advertise for any entitled relatives to come forward, and will make transfers to those entitled under the heirship rules. All three also have a discretion to make payments from the estate to those who may have a legitimate claim on it otherwise than through heirship, particularly under the provisions of the <a href="https://www.legislation.gov.uk/ukpga/1975/63">Inheritance (Provision for Family and Dependants) Act 1975</a>. </p>
<p>These include carers for the deceased person, or cohabitants. Some of the remainder is used for investment and to maintain duchy assets, and the surplus given to charity. </p>
<h2>A controversial change apparently benefits King Charles</h2>
<p>Many people are broadly aware, and broadly satisfied, that if they die without heirs, their property will go to the state in the form of the crown. However, when the Law Commission last consulted on the principles of intestacy and <em>bona vacantia</em> in 2011, some public unease about the point was detected. </p>
<p>A significant minority thought that the rule was anachronistic and that unclaimed assets should be given <a href="https://lawcom.gov.uk/document/intestacy-and-family-provision-claims-on-death-report/">directly to charity</a>. The Law Commission did not take this up, in part because the latest available reports and accounts at that time showed that the net proceeds of <em>bona vacantia</em> in both duchies passed entirely to charity.</p>
<figure class="align-center ">
<img alt="A row of houses in a northern English village next to a bridge." src="https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Property in an area of the Duchy of Lancaster.</span>
<span class="attribution"><span class="source">Shutterstock/Fencewood Studio</span></span>
</figcaption>
</figure>
<p>The Guardian’s reporting has now revealed that there was an apparent significant shift in the administration of the Duchy of Lancaster’s funds in 2020. One particularly controversial change has been the alleged use of money to improve historic property within the Duchy’s portfolio, which is then rented out for profit. </p>
<p>The paper has also raised questions about how much of the duchy’s income is currently being paid to charitable causes, as this appears to have dropped. </p>
<p>There is the further question of whether it is fair, or relevant, that the estates of those who happen to die resident in Lancashire or Cornwall should become private assets of the monarch or his heir, while those who die resident elsewhere have their estates passed to the British state more generally. </p>
<p>Whatever the resolution of these issues may be, there is a clear message for those who strongly wish their estates to go to charity and not to the crown: make a will. </p>
<p>All wills can be drafted so that if there are no living heirs left, the estate can be given to a charity of the deceased’s choice as a fallback. Many charities offer will writing services which can help. When it comes to legacies, it’s essential to plan ahead.</p><img src="https://counter.theconversation.com/content/218974/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sheila Hamilton Macdonald does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Legal expert on the obscure law that makes King Charles and Prince Williams the heirs of people who die without wills or close relatives in Lancashire and Cornwall.Sheila Hamilton Macdonald, Senior Lecturer, specialising in Probate, Wills and Land, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2164822023-11-09T16:10:17Z2023-11-09T16:10:17ZState of Georgia using extreme legal measures to quell ‘Cop City’ dissenters<iframe height="200px" width="100%" frameborder="no" scrolling="no" seamless="" src="https://player.simplecast.com/944f8901-89d9-4868-81fd-5d165b61996d?dark=true"></iframe>
<p>Earlier this week, nearly five dozen people <a href="https://www.theguardian.com/us-news/2023/nov/06/atlanta-cop-city-police-protesters-charged-rico-law">appeared in a courtroom near Atlanta</a> to answer criminal racketeering and domestic terrorism charges brought against them by the state. The charges are related to what’s commonly known as “Cop City,” a $90-million paramilitary police and firefighter training facility planned for 85 acres of forest near Atlanta.</p>
<p>The Atlanta Police Association saw a need for such a facility at the start of the 2020 Black Lives Matter uprisings and started to fund raise. Many corporations have contributed to the plans for a world-class police training facility.</p>
<p>Georgia prosecutors are calling the demonstrators “militant anarchists.” But many of those charged say they were simply attending a rally or a concert in support of the <a href="https://www.stopcopcitysolidarity.org/">Stop Cop City movement</a>. </p>
<p>The protesters, their lawyers and their supporters, who rallied outside the court this week, say the government is using heavy-handed tactics to silence the movement. The <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/rico-racketeer-influenced-and-corrupt-organizations-act-statute">RICO charges</a> brought against the demonstrators essentially accuse them of being part of organized crime and carry a potential sentence of five to 20 years in prison. </p>
<p>Legal experts worry about the type of precedent this might set for our right to protest. It’s a case a lot of people are following nationally and internationally, for that reason.</p>
<p>In this week’s <a href="https://dont-call-me-resilient.simplecast.com/episodes/state-of-georgia-using-extreme-legal-measures-to-quell-cop-city-dissenters"><em>Don’t Call Me Resilient</em> episode,</a> we speak with one of the leaders of the Stop Cop City movement. Kamau Franklin is a long-time community organizer and the founder of <a href="https://communitymovementbuilders.org/">Community Movement Builders</a>. He is also a lawyer — and was an attorney for 10 years in New York with his own practice in criminal, civil rights and transactional law. He now lives in Atlanta. </p>
<p>Also joining us is Zohra Ahmed, assistant professor of law at the University of Georgia. A former public defender in New York, she, too, has been watching this case closely. </p>
<blockquote>
<p>“In 2020 when people were talking about…defunding the police …the state…instead of doing any of that, decided to double down here in Atlanta and bring forth the idea…of a Cop City, a large scale militarized police base meant to learn tactics and strategies on urban warfare, crowd control, civil disbursement which was meant to move against community organizers and activists. The idea of Cop City is that it’s not only going to train the police in Atlanta, but it’s going to train police across the state and across the country and have international connections…so that different policing agencies are learning similar tactics and strategies and exchanging ideas on how to suppress.
- Kamau Franklin</p>
</blockquote>
<h2>Read more in The Conversation</h2>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/arrests-of-3-members-of-an-atlanta-charitys-board-in-a-swat-team-raid-is-highly-unusual-and-could-be-unconstitutional-206984">Arrests of 3 members of an Atlanta charity's board in a SWAT-team raid is highly unusual and could be unconstitutional</a>
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</em>
</p>
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<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/students-demand-removal-of-mild-racist-from-georgia-landscape-140105">Students demand removal of 'mild racist' from Georgia landscape</a>
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</em>
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<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/fortress-usa-how-9-11-produced-a-military-industrial-juggernaut-166102">'Fortress USA': How 9/11 produced a military industrial juggernaut</a>
</strong>
</em>
</p>
<hr>
<h2>Resources</h2>
<p><a href="https://btlbooks.com/book/disarm-defund-dismantle"><em>Disarm, Defund, Dismantle: Police Abolition in Canada</em></a>, edited by Shiri Pasternak, Kevin Walby and Abby Stadnyk</p>
<p><a href="https://www.akpress.org/practicing-new-worlds.html"><em>Practicing New Worlds: Abolition and Emergent Strategies</em></a>, by Andrea J. Ritchie</p>
<p><a href="https://www.dissentmagazine.org/article/the-fight-against-cop-city/">"The Fight Against Cop City”</a> (<em>Dissent Magazine</em>)</p>
<p><a href="https://www.thenation.com/article/society/cop-city-indictment-atlanta/">“How Georgia Indicted a Movement”</a> (<em>The Nation</em> by Zohra Ahmed and Elizabeth Taxel)</p>
<p><a href="https://afsc.org/companies-and-foundations-behind-cop-city">The Companies and Foundations behind Cop City</a> (American Friends Service Committee)</p>
<p><a href="https://www.jpost.com/israeli-news/article-711682">“Georgia State police return home after two-week Israeli training”</a> <em>(The Jerusalem Post)</em> </p>
<h2>Listen and follow</h2>
<p>You can listen to or follow <em>Don’t Call Me Resilient</em> on <a href="https://podcasts.apple.com/ca/podcast/dont-call-me-resilient/id1549798876">Apple Podcasts</a>, <a href="https://open.spotify.com/show/37tK4zmjWvq2Sh6jLIpzp7">Spotify</a>, <a href="https://www.youtube.com/playlist?list=PL_mJBLBznANz6ID9rBCUk7gv_ZRC4Og9-">YouTube</a> or wherever you listen to your favourite podcasts. </p>
<p><a href="mailto:DCMR@theconversation.com">We’d love to hear from you</a>, including any ideas for future episodes. Join The Conversation on <a href="https://twitter.com/ConversationCA">Twitter</a>, <a href="https://www.instagram.com/dontcallmeresilientpodcast/">Instagram</a> and <a href="https://www.tiktok.com/@theconversation">TikTok</a> and use #DontCallMeResilient.</p><img src="https://counter.theconversation.com/content/216482/count.gif" alt="The Conversation" width="1" height="1" />
Legal experts worry the “doubling down” on demonstrators who are opposed to the planned giant police training facility could undermine the right to protest.Vinita Srivastava, Host + Producer, Don't Call Me ResilientAteqah Khaki, Associate Producer, Don't Call Me ResilientLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2170262023-11-07T13:37:52Z2023-11-07T13:37:52ZSam Bankman-Fried was convicted of fraud following the collapse of the cryptocurrency exchange FTX. Here’s what investors need to know<figure><img src="https://images.theconversation.com/files/557517/original/file-20231103-19-37nlbl.jpg?ixlib=rb-1.1.0&rect=17%2C0%2C5973%2C3997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sam Bankman-Fried is no longer crypto's Robin Hood.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/FTXBankmanFried/2ed1f13907ad4c0d882eaaff69eac780/photo">Bebeto Matthews/Associated Press</a></span></figcaption></figure><p><em>In the fast-paced world of cryptocurrency, vast sums of money can be made or lost in the blink of an eye. In early November 2022, the crypto exchange FTX was valued at more than US$30 billion. By the middle of that month, <a href="https://www.cnn.com/2022/11/15/business/ftx-madoff-bankman-fried-bair/index.html">FTX was in bankruptcy proceedings</a>. And less than a year later, on Nov. 3, 2023, its founder, Sam Bankman-Fried, was found guilty of <a href="https://www.wired.com/story/sam-bankman-fried-trial-explained/">seven counts of money laundering and fraud</a>, following a trial that featured less than a month of <a href="https://www.wsj.com/finance/currencies/sam-bankman-fried-ftx-trial-news-updates-fbef824b">testimony</a> and only about four hours of jury deliberation.</em></p>
<p><em><a href="https://scholar.google.com/citations?user=VxWst50AAAAJ&hl=en&oi=ao">D. Brian Blank</a> and <a href="https://scholar.google.com/citations?user=FKJSqjEAAAAJ&hl=en&oi=ao">Brandy Hadley</a> are professors who study finance, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/EUFM.12311">executives</a>, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/fire.12274">firm governance</a> and fintech. They explain how and why this incredible collapse happened, what effect it might have on the traditional financial sector and whether you should care.</em></p>
<h2>1. What happened?</h2>
<p>A million years ago, back in <a href="https://inside.com/campaigns/inside-tech-2021-07-21-28706/sections/243700">2019</a>, Sam Bankman-Fried founded FTX, a company that ran one of the largest cryptocurrency exchanges.</p>
<p>FTX was where many crypto investors traded and held their cryptocurrency, similar to the New York Stock Exchange for stocks. Bankman-Fried also founded <a href="https://www.forbes.com/profile/alameda-research/?sh=563773816570">Alameda Research</a>, a hedge fund that invested in cryptocurrencies and crypto companies. </p>
<p>In the traditional financial sector, these two companies would be entirely separate firms, or at least have firewalls in place to avoid conflicts of interest. But in early November 2022, news outlets reported that a <a href="https://www.coindesk.com/business/2022/11/02/divisions-in-sam-bankman-frieds-crypto-empire-blur-on-his-trading-titan-alamedas-balance-sheet/">significant proportion of Alameda’s assets</a> were a type of cryptocurrency released by FTX itself. </p>
<p>A few days later, news broke that FTX had allegedly been loaning customer assets to Alameda for risky trades <a href="https://www.cnbc.com/2022/11/13/sam-bankman-frieds-alameda-quietly-used-ftx-customer-funds-without-raising-alarm-bells-say-sources.html">without customers’ consent</a> and also issuing its own FTX cryptocurrency for Alameda to use as <a href="https://www.cnbc.com/2022/11/13/sam-bankman-frieds-alameda-quietly-used-ftx-customer-funds-without-raising-alarm-bells-say-sources.html">collateral</a>. As a result, criminal and regulatory investigators began scrutinizing FTX for potentially <a href="https://www.law360.com/assetmanagement/articles/1549319?nl_pk=c7efe457-0cc1-4a20-9d63-ded5145502ae&utm_source=newsletter&utm_medium=email&utm_campaign=assetmanagement&utm_content=2022-11-15&read_more=1&nlsidx=0&nlaidx=0">violating securities law</a>.</p>
<p>These two pieces of news basically led to a bank run on FTX, and soon afterward, FTX, Alameda Research and 130 other affiliated companies founded by Bankman-Fried filed for bankruptcy. This left <a href="https://www.cnbc.com/2022/11/15/ftx-says-could-have-over-1-million-creditors-in-new-bankruptcy-filing.html">huge numbers</a> of investors who bought cryptocurrencies through the exchange with <a href="https://www.cnn.com/2022/11/14/business/ftx-customer-money-bankruptcy/index.html">no good way to get their money back</a>.</p>
<p>Within a month, Bankman-Fried was <a href="https://www.nytimes.com/2022/12/12/business/ftx-sam-bankman-fried-bahamas.html">arrested</a> and <a href="https://www.foxbusiness.com/politics/ftx-founder-sam-bankman-fried-arrested-bahamas-us-expected-request-extradition-authorities-say">charged with wire fraud, wire fraud conspiracy, securities fraud, securities fraud conspiracy and money laundering</a> by the Southern District of New York. In February 2023, <a href="https://www.reuters.com/legal/new-indictment-unsealed-against-bankman-fried-containing-12-charges-2023-02-23/">additional criminal charges</a> related to political donations were announced, followed by <a href="https://www.cnbc.com/2023/03/28/sam-bankman-fried-paid-over-40-million-to-bribe-at-least-one-chinese-official-doj-alleges-in-new-indictment.html">another indictment</a> in March related to bribery.</p>
<p>Bankman-Fried’s <a href="https://edition.cnn.com/2023/10/03/investing/sbf-trial-jury-selection/index.html">first trial began on Oct. 3, 2023</a>, and largely focused on the “<a href="https://www.bloomberg.com/news/live-blog/2023-10-26/sam-bankman-fried-testifies-at-fraud-trial">essentially unlimited</a>” access to capital Alameda had on the exchange through a secret line of credit. The trial ended on Nov. 3, with Bankman-Fried convicted of seven counts of fraud and money laundering. He is expected to appeal.</p>
<h2>2. Did a lack of oversight play a role?</h2>
<p>In traditional markets, corporations generally <a href="https://www.law360.com/bankruptcy/articles/1549089?nl_pk=6ef803a8-f435-44cb-93f5-de6a024ff206&read_more=1&nlsidx=0&nlaidx=3">limit the risk they expose themselves to</a> by maintaining liquidity and solvency. Liquidity is the ability of a firm to sell assets quickly without those assets losing much value. Solvency is the idea that a company’s assets are worth more than what that company owes to <a href="https://www.wsj.com/livecoverage/stock-market-news-today-11-15-2022/card/ftx-says-number-of-creditors-in-bankruptcy-could-top-1-million-LrfYrHxDtIoVBV42QDiG?mod=djemMoneyBeat_us">debtors and customers</a>.</p>
<p>But the crypto world has generally operated with much less caution than the traditional financial sector, and <a href="https://www.nytimes.com/2022/11/11/technology/ftx-investors-venture-capital.html?smid=tw-dealbook&smtyp=cur">FTX is no exception</a>. About <a href="https://www.bloomberg.com/opinion/articles/2022-11-14/ftx-s-balance-sheet-was-bad">two-thirds</a> of the money that FTX owed to the people who held cryptocurrency on its exchange – roughly $11.3 billion of $16 billion owed – was backed by illiquid coins created by FTX. FTX was taking its customers’ money, giving it to Alameda to make risky investments and then creating its own currency, known as FTT, as a replacement – cryptocurrency that it was unable to sell at a high enough price when it needed to.</p>
<p>In addition, nearly 40% of Alameda’s assets were in FTX’s own cryptocurrency – and remember, both companies were founded by the same person. </p>
<p>This all came to a head when investors decided to sell their coins on the exchange. FTX did not have enough <a href="https://www.bloomberg.com/opinion/articles/2022-11-10/ftx-is-still-looking-for-money">liquid</a> assets to meet those demands. This in turn drove the value of FTT from over $26 a coin at the beginning of November 2022 to under $2 by Nov. 13. By this point, FTX owed more money to its customers than <a href="https://www.bloomberg.com/opinion/articles/2022-11-09/bankman-fried-s-ftx-had-a-death-spiral-before-binance-deal">it was worth</a>.</p>
<p>In regulated exchanges, investing with customer funds is <a href="https://www.cnbc.com/2022/11/13/sam-bankman-frieds-alameda-quietly-used-ftx-customer-funds-without-raising-alarm-bells-say-sources.html">illegal</a>. Additionally, auditors validate financial statements, and firms must publish the amount of money they hold in reserve that is available to fund customer withdrawals. And even if things go wrong, the <a href="https://www.firstrepublic.com/insights-education/sipc-vs-fdic-insurance-protection-differences">Securities Investor Protection Corporation</a> – or SIPC – protects depositors against the loss of investments from an exchange failure or financially troubled brokerage firm. The crypto world lacks such guardrails.</p>
<h2>3. Why is this a big deal in crypto?</h2>
<p>While the collapse of FTX and Alameda – valued at more than $30 billion and now essentially worth nothing – was dramatic, the bigger implication is simply the potential <a href="https://apnews.com/article/sam-bankman-fried-ftx-crypto-downfall-a2eaec231027dfd9f18426ff8982bbf8">lost trust in crypto</a>. Bank runs are rare in traditional financial institutions, but they are <a href="https://www.wsj.com/articles/crypto-com-withdrawals-rise-after-ceo-admits-transaction-problem-11668350510">increasingly common</a> in the crypto space. Given that Bankman-Fried and FTX were seen as some of the biggest, most trusted figures in crypto, these events may lead more investors to think twice about putting money in crypto.</p>
<h2>4. If I don’t own crypto, should I care?</h2>
<p>Though investment in cryptocurrencies has grown rapidly, the entire crypto market – <a href="https://www.coindesk.com/markets/2021/10/21/crypto-market-cap-surges-to-new-record-27-trillion/">valued at over $3 trillion</a> at its peak – is much <a href="https://beincrypto.com/institutional-investment-in-crypto-experts-weigh-in-on-implications/">smaller</a> than the $120 trillion <a href="https://medium.com/ngrave/too-big-to-fail-crypto-market-size-vs-traditional-assets-eff4bb2ec529">traditional stock market</a>.</p>
<p>While investors and regulators are still evaluating the consequences of this fall, the impact on any person who doesn’t personally own crypto will be minuscule. It is true that many larger investment funds, like BlackRock and the Ontario Teachers Pension, held investments in FTX, but the estimated <a href="https://www.ai-cio.com/news/ontario-teachers-pension-could-lose-95-million-on-ftx-investment">$95 million the Ontario Teachers Pension lost</a> through the collapse of FTX is just 0.05% of the entire fund’s investments.</p>
<p>The takeaway for most individuals is not to invest in <a href="https://www.wsj.com/articles/ftx-sam-bankman-fried-sit-in-the-crosshairs-of-u-s-prosecutors-11668398012?mod=djem10point">unregulated</a> markets without understanding the risks. In high-risk environments like crypto, it’s possible to lose everything – a lesson investors in FTX learned the hard way.</p>
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<h2>5. What does the trial reveal about the regulatory environment for crypto?</h2>
<p>The trial of Bankman-Fried has brought attention to the ever-evolving and complex nature of cryptocurrency regulation and oversight. At the conclusion of the case, <a href="https://www.reuters.com/legal/bankman-fried-trial-poses-biggest-test-date-cryptos-top-cop-2023-09-29/">Damian Williams, the federal prosecutor for the U.S. Justice Department</a>, underlined the <a href="https://www.reuters.com/legal/ftx-founder-sam-bankman-fried-thought-rules-did-not-apply-him-prosecutor-says-2023-11-02/">department’s dedication to fighting fraud,</a> even in the relatively new crypto space.</p>
<p>This case shows that the U.S. is willing to assert broad jurisdiction over financial crimes targeting its citizens, regardless of where the perpetrating company is based – which in FTX’s case, was <a href="https://www.wired.com/story/sam-bankman-fried-crypto-paradise-bahamas/">the Bahamas</a>. Notably, this trial did not fall directly under the supervision of the Securities and Exchange Commission or other regulatory bodies, although pending civil cases from both <a href="https://www.sec.gov/news/press-release/2022-219">the SEC</a> and the <a href="https://www.coindesk.com/policy/2023/02/13/cftc-case-against-sam-bankman-fried-postponed-until-after-criminal-trial/">Commodity Futures Trading Commission</a>, <a href="https://news.bloomberglaw.com/securities-law/bankman-frieds-legal-woes-extend-far-beyond-criminal-trial">along with ongoing</a> class-action lawsuits, underscore the <a href="https://www.nri.com/-/media/Corporate/en/Files/PDF/knowledge/publication/lakyara/2023/09/lakyaravol376.pdf?la=en&hash=48DA9E99702BA223ACB48E1C378E1F6833C399EF">complexities in regulating the cryptocurrency sphere</a>. </p>
<p>Despite a recent crypto crackdown by the SEC, the U.S. continues to lag behind other nations in establishing comprehensive crypto regulations. This is evident in the <a href="https://www.cnbc.com/2023/10/30/uk-confirms-plans-to-regulate-crypto-industry-with-formal-legislation.html">formal regulatory frameworks introduced by places such as the U.K.</a> and the European Union. The International Monetary Fund’s <a href="https://www.imf.org/en/Blogs/Articles/2023/07/18/crypto-needs-comprehensive-policies-to-protect-economies-and-investors">call for comprehensive regulations</a> further underscores the necessity for more robust regulatory measures within the crypto industry, hinting at a widening gap between the U.S. and much of the rest of the world.</p>
<p><em>This is an updated version of a story that was <a href="https://theconversation.com/dramatic-collapse-of-the-cryptocurrency-exchange-ftx-contains-lessons-for-investors-but-wont-affect-most-people-194692">originally published</a> on Nov. 17, 2022.</em></p><img src="https://counter.theconversation.com/content/217026/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The downfall of the onetime multibillionaire holds lessons for investors and regulators alike.D. Brian Blank, Associate Professor of Finance, Mississippi State UniversityBrandy Hadley, Associate Professor of Finance and the David A. Thompson Distinguished Scholar of Applied Investments, Appalachian State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168212023-11-01T19:25:15Z2023-11-01T19:25:15ZNo back door for 5 years: remote community’s High Court win is good news for renters everywhere<p>It took seven years, but a tiny remote community in the Northern Territory had a major legal win yesterday.</p>
<p>People in the town of Santa Teresa, southeast of Alice Springs, won the right to compensation for the substandard housing they’re forced to live in.</p>
<p>For more than five years, one resident lived without a back door.</p>
<p>The High Court <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/31">ruled</a> their landlord, the Northern Territory government, must pay them for the “distress and disappointment” they endured as a result. </p>
<p>So what does this mean, not just for the Aboriginal community leading the charge, but for tenants’ rights more broadly?</p>
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Read more:
<a href="https://theconversation.com/aboriginal-housing-policies-must-be-based-on-community-needs-not-what-non-indigenous-people-think-they-need-162999">Aboriginal housing policies must be based on community needs — not what non-Indigenous people think they need</a>
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<h2>A long path to legal victory</h2>
<p>The fight for better housing conditions in Santa Teresa has been making its way through the courts for years.</p>
<p>In 2016, a group of residents launched a <a href="https://www.abc.net.au/news/2019-02-27/santa-teresa-community-wins-housing-class-action-against-govt/10853674">class action</a> against the NT government for not providing habitable homes.</p>
<p>Three years later, some of the residents in the action were successful in the NT Civil and Administrative Tribunal in their efforts to sue.</p>
<p>But the government has fought every step of the way. </p>
<p>It appealed to the Supreme Court, which then sided with the tenants by awarding them <a href="https://www.abc.net.au/news/2020-09-09/northern-territory-santa-teresa-residents-supreme-court-fight/12641354">further compensation</a>.</p>
<p>The NT government appealed that, too. The Court of Appeal found the government was in breach, but held the tenants were not entitled to all the compensation ordered.</p>
<p>So the tenants appealed, bringing the matter to the High Court.</p>
<p>In a <a href="https://eresources.hcourt.gov.au/downloadPdf/2023/HCA/31">majority ruling</a>, the court found the government had breached the Residential Tenancies Act by not providing one of the residents with a back door.</p>
<p>But that part isn’t surprising. The new part is that the court decided the government was liable for compensation.</p>
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<h2>What was the case around compensation?</h2>
<p>Here’s where some common law principles come into play.</p>
<p>The NT government argued that while it breached the tenancy act, it didn’t owe compensation as a result.</p>
<p>The devil is in the detail, namely the words “disappointment or distress”.</p>
<p>Those are non-economic losses. That means they didn’t directly cost the residents money.</p>
<p>Under common law, there’s no entitlement to compensation for most non-economic losses. </p>
<p>There are some exceptions, though: if the disappointment comes from being physically inconvenienced, or from being expressly promised enjoyment, compensation may be required.</p>
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<strong>
Read more:
<a href="https://theconversation.com/we-need-to-design-housing-for-indigenous-communities-that-can-withstand-the-impacts-of-climate-change-171203">We need to design housing for Indigenous communities that can withstand the impacts of climate change</a>
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<p>An example of this is when people sue cruise companies for being disappointed by <a href="https://www.australiancontractlaw.info/cases/database/baltic-shipping-v-dillon">their holiday</a>.</p>
<p>In this case, the High Court has decided that those restrictive principles don’t apply to compensation for breaches of tenancy rights under residential tenancies legislation.</p>
<p>It found when it looked at the overall intent of the territory’s <a href="https://legislation.nt.gov.au/en/Legislation/RESIDENTIAL-TENANCIES-ACT-1999">Residential Tenancy Act</a>, including its compensation provisions, the residents were entitled to compensation.</p>
<p>So the Supreme Court’s previous compensation order is restored.</p>
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<strong>
Read more:
<a href="https://theconversation.com/think-private-renting-is-hard-first-nations-people-can-be-excluded-from-the-start-192392">Think private renting is hard? First Nations people can be excluded from the start</a>
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<p>But two High Court judges wrote a minority judgement. </p>
<p>Interestingly, they agreed the tenants should be compensated, but for a different reason. </p>
<p>They thought a tenancy promised enjoyment, so compensation for “disappointment and distress” would be allowed by those common law principles.</p>
<h2>What does this mean for renters nationally?</h2>
<p>The case has been referred to as a <a href="https://www.abc.net.au/news/2022-02-04/nt-supreme-court-finds-for-santa-teresa-public-housing-tenants/100804718">landmark one</a>, and in many ways it is.</p>
<p>A group of Aboriginal public housing tenants organised, fought for their rights, and won. They changed the law.</p>
<p>There are many barriers to tenants fighting for what they’re entitled to, so it’s a remarkable result. </p>
<p>The two leaders of the litigation died before the High Court handed down its decision. It is a memorial to them.</p>
<p>The High Court’s decision refers specifically to the NT’s residential tenancies legislation. It did not decide whether those restrictive common law principles about compensation are excluded from tenancy laws in other states and the ACT. </p>
<p>That question will have to be answered by the tribunals and courts in each other state and territory. </p>
<p>Given the legislation across the country are on a broadly common model, it seems likely the result would be similar, but that’s up to the courts to decide.</p>
<p>At any rate, the case has demonstrated that remote communities in the Northern Territory are legally entitled to safe, habitable living conditions, and the government is liable if it fails to provide them.</p>
<p>And tenants around Australia can take heart from the example of the Santa Teresa tenants.</p><img src="https://counter.theconversation.com/content/216821/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Martin receives funding from the Australian Research Council, the Australian Housing and Urban Research Institute, the Tenants' Union of NSW and Tenants Queensland Ltd. He is affiliated with the Eastern Area Tenants Service, as a member of its management committee.</span></em></p>The tiny remote community of Santa Teresa spent seven years fighting for compensation for poor public housing. Now that the High Court has ruled in their favour, what does it mean for other renters?Chris Martin, Senior Research Fellow, City Futures Research Centre, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2163312023-10-27T00:10:36Z2023-10-27T00:10:36ZAIs could soon run businesses – it’s an opportunity to ensure these ‘artificial persons’ follow the law<figure><img src="https://images.theconversation.com/files/556221/original/file-20231026-19-vrh2ui.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C3997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If AIs are going to play a role in society, they'll need to understand the law.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cyber-law-concept-royalty-free-image/1136269425">PhonlamaiPhoto/iStock via Getty Images</a></span></figcaption></figure><p>Only “persons” can engage with the legal system – for example, by signing contracts or filing lawsuits. There are <a href="https://dictionary.law.com/Default.aspx?selected=1516">two main categories of persons</a>: humans, termed “natural persons,” and creations of the law, termed “artificial persons.” These include corporations, nonprofit organizations and <a href="https://www.investopedia.com/terms/l/llc.asp">limited liability companies</a> (LLCs).</p>
<p>Up to now, artificial persons have served the purpose of helping humans achieve certain goals. For example, people can pool assets in a corporation and limit their liability vis-à-vis customers or other persons who interact with the corporation. But a new type of artificial person is poised to enter the scene – artificial intelligence systems, and they won’t necessarily serve human interests.</p>
<p>As <a href="https://scholar.google.nl/citations?user=cI-ZlbcAAAAJ&hl=en">scholars</a> <a href="https://scholar.google.com/citations?hl=en&user=uTmgFB0AAAAJ&view_op=list_works&sortby=pubdate">who study AI and law</a> we believe that this moment presents a significant challenge to the legal system: how to regulate AI within existing legal frameworks to reduce undesirable behaviors, and how to assign legal responsibility for autonomous actions of AIs.</p>
<p>One solution is <a href="https://doi.org/10.1126/science.adi8678">teaching AIs to be law-abiding entities</a>.</p>
<p>This is far from a philosophical question. The <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=bbea059c-6853-4f45-b69b-7ca2e49cf740">laws governing LLCs in several U.S. states</a> do not require that humans oversee the operations of an LLC. In fact, in some states it is <a href="https://dx.doi.org/10.2139/ssrn.2366197">possible to have an LLC with no human owner</a>, or “member” – for example, in cases where all of the partners have died. Though legislators probably weren’t thinking of AI when they crafted the LLC laws, the possibility for zero-member LLCs opens the door to creating LLCs operated by AIs.</p>
<p>Many functions inside small and large companies have already been delegated to AI in part, including financial operations, <a href="https://www.mckinsey.com/capabilities/people-and-organizational-performance/our-insights/generative-ai-and-the-future-of-hr">human resources</a> and network management, to name just three. AIs can now perform many tasks as well as humans do. For example, AIs <a href="https://doi.org/10.1038/s41746-023-00929-1">can read medical X-rays</a> and do other medical tasks, and carry out <a href="https://doi.org/10.48550/arXiv.2308.11462">tasks that require legal reasoning</a>. This process is likely to accelerate due to innovation and economic interests.</p>
<h2>A different kind of person</h2>
<p>Humans have occasionally included nonhuman entities like <a href="https://people.com/pets/pablo-escobar-cocaine-hippos-become-first-animals-in-u-s-to-be-considered-legal-persons/">animals</a>, <a href="https://www.theguardian.com/us-news/2019/feb/28/toledo-lake-erie-personhood-status-bill-of-rights-algae-bloom">lakes</a> and <a href="https://www.nationalgeographic.com/travel/article/these-rivers-are-now-considered-people-what-does-that-mean-for-travelers">rivers</a>, as well as <a href="https://www.pbs.org/newshour/nation/corporations-people-doctrine-real-legal-concept">corporations</a>, as legal subjects. Though in some cases these entities can be held liable for their actions, the law only allows humans to fully participate in the legal system.</p>
<p>One major barrier to full access to the legal system by nonhuman entities has been the <a href="https://bclawreview.bc.edu/articles/1120">role of language</a> as a uniquely human invention and a vital element in the legal system. Language enables humans to understand norms and institutions that constitute the legal framework. But humans are no longer the only entities using human language. </p>
<p>The <a href="https://openreview.net/pdf?id=yzkSU5zdwD">recent development</a> of AI’s ability to <a href="https://doi.org/10.48550/arXiv.2307.13692">understand human language</a> unlocks its potential to interact with the legal system. AI has demonstrated proficiency in various legal tasks, such as <a href="https://doi.org/10.48550/arXiv.2306.07075">tax law advice</a>, <a href="https://doi.org/10.48550/arXiv.2301.01181">lobbying</a>, <a href="https://doi.org/10.48550/arXiv.2308.11462">contract drafting and legal reasoning</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A humanoid robot and a man in a business suit shake hands while standing on an industrial waterfront" src="https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Would you do business with an AI that didn’t know the law?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/robot-and-man-gretting-at-the-port-royalty-free-image/83988169">SM/AIUEO/The Image Bank via Getty Images</a></span>
</figcaption>
</figure>
<p>An LLC established in a jurisdiction that allows it to operate without human members could trade in <a href="https://www.investopedia.com/terms/d/digital-currency.asp">digital currencies</a> settled on <a href="https://www.britannica.com/money/what-is-blockchain">blockchains</a>, allowing the AI running the LLC to operate autonomously and in a decentralized manner that makes it challenging to regulate. Under a legal principle known as the <a href="https://www.dlapiper.com/en-us/insights/publications/2020/08/delaware-court-of-chancery-internal-affairs-doctrine-bars-stockholder">internal affairs doctrine</a>, even if only one U.S. state allowed AI-operated LLCs, that entity could operate nationwide – and possibly worldwide. This is because courts look to the law of the state of incorporation for rules governing the internal affairs of a corporate entity.</p>
<p>We believe the best path forward, therefore, is aligning AI with existing laws, instead of creating a separate set of rules for AI. Additional law can be layered on top for <a href="https://doi.org/10.48550/arXiv.2308.11432">artificial agents</a>, but AI should be subject to at least all the laws a human is subject to.</p>
<h2>Building the law into AI</h2>
<p>We suggest a research direction of <a href="https://scholarlycommons.law.northwestern.edu/njtip/vol20/iss3/1/">integrating law into AI agents</a> to help <a href="https://dx.doi.org/10.2139/ssrn.4335945">ensure adherence to legal standards</a>. Researchers could train AI systems to <a href="https://law.stanford.edu/2022/09/25/aligning-ai-with-humans-by-leveraging-law-as-data/">learn methods for internalizing the spirit of the law</a>. The training would use data generated by legal processes and tools of law, including methods of lawmaking, statutory interpretation, contract drafting, applications of legal standards and legal reasoning.</p>
<p>In addition to embedding law into AI agents, researchers can develop AI compliance agents – AIs designed to help an organization automatically follow the law. These specialized AI systems would provide third-party legal guardrails.</p>
<p>Researchers can develop better AI legal compliance by fine-tuning large language models with <a href="https://www.lifewire.com/what-is-supervised-learning-7508014">supervised learning</a> on labeled legal task completions. Another approach is <a href="https://online.york.ac.uk/what-is-reinforcement-learning/">reinforcement learning</a>, which uses feedback to tell an AI if it’s doing a good or bad job – in this case, attorneys interacting with language models. And legal experts could design prompting schemes – ways of interacting with a language model – to elicit better responses from language models that are more consistent with legal standards.</p>
<h2>Law-abiding (artificial) business owners</h2>
<p>If an LLC were operated by an AI, it would have to obey the law like any other LLC, and courts could order it to pay damages, or stop doing something by issuing an injunction. An AI tasked with operating the LLC and, among other things, maintaining proper business insurance would have an incentive to understand applicable laws and comply. Having minimum business liability insurance policies is a standard requirement that most businesses impose on one another to engage in commercial relationships.</p>
<p>The incentives to establish AI-operated LLCs are there. Fortunately, we believe it is possible and desirable to do the work to embed the law – what has until now been human law – into AI, and AI-powered automated compliance guardrails.</p><img src="https://counter.theconversation.com/content/216331/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Nay is the founder and CEO of Norm AI, and a co-founder and the Chairman of Brooklyn Investment Group.</span></em></p><p class="fine-print"><em><span>Daniel Gervais does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If a business is run by an AI and it causes you harm, could you sue the AI?Daniel Gervais, Professor of Law, Vanderbilt UniversityJohn Nay, Fellow at CodeX - Stanford Center for Legal Informatics, Stanford UniversityLicensed as Creative Commons – attribution, no derivatives.