Legal citations 2.0

Post by Kate Galloway and Melissa Castan. Cite as:
Kate Galloway and Melissa Castan, ‘Legal Citations 2.0’ Katgallow (21 June 2017) https://kategalloway.net/2017/06/21/legal-citations-2-0/

Library

The leading work on legal citations in Australia is the Australian Guide to Legal Citation (‘AGLC’). The AGLC, currently working on a 4th edition, provides users with a comprehensive style guide for all legal writing from use of capitals, through to citation of international treaty materials. (For an example of the current application of the AGLC, see eg this article.)

The explosion of online and other digital sources poses a challenge to most standard r

eferencing styles – as is clearly articulated by Prof Patrick Dunleavy, in this post. For legal citation in Australia, much of this development has occurred since the publication of the third edition of the AGLC, making it timely to reconfigure some of the key guiding principles behind legal citation.

As editors of the Alternative Law Journal and the Legal Education Review respectively, Melissa Castan and I increasingly encounter diverse forms of reference and referencing. In response, and this post, we propose a reorientation of the analogue focus of the AGLC to adapt and address the digital landscape of legal scholarship.

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The legal profession’s ‘black swan’ problem

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A black swan is an event or occurrence that deviates beyond what is normally expected of a situation and is extremely difficult to predict.

The term ‘black swan’ derives from the story that the English had traditionally defined the word ‘swan’ as a bird that was white. Swans’ whiteness was integral to their ‘swanness’. When the English came to Australia and saw black swans, they were thrown by this completely unexpected event. If swans were by definition white, what was this black bird? It was impossible to have predicted the event of a black swan because of the circumscribed definition of swan.

Author Nicholas Taleb used the term ‘black swan’ in his best selling book. He suggests that we cannot predict the future if we expect the current circumstances to continue on the same trajectory as they have in the past. I think that the legal profession is in such a predicament.

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Are we seeing the devolution of university education?

cracked institutionYesterday the Australian Minister for Education, Simon Birmingham, announced cuts to higher education funding and increases in student fees. In addition, the income threshold for repayment of student debt will be reduced. Funding for teaching will be reduced in 2019 by $380 million relative to the current funding formula.

Universities are huge institutions requiring significant funding to maintain their operations. Yet they face hefty competition from global and increasingly accessible, technologies. Instead of a future of under-funded universities, I see their devolution altogether – at least in terms of education, if not of research.

The change will not be quick. A higher degree (bachelors or above) is now the entry point for the regulated professions. These professions, including law, use course accreditation as a means of guaranteeing standards of graduate entry. For unregulated professions (such as marketing, or banking) the market determines the entry requirement, and that is generally a bachelors degree.

But things are changing, and universities’ role can no longer be taken for granted.

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The trouble with the McGlade amendments to the Native Title Act

Lump-o-coal

The dominant discourse in native title amendments is that of … coal?

In June 2015, the Australian Law Reform Commission handed down its final report into the Native Title Act. Amongst its recommendations was the amendment of provisions for the process of authorising Indigenous land use agreements (‘ILUAs’).

Coinciding with the ALRC Report, the Northern Development White Paper proposed a fund to settle all native title claims within a decade.

There has been no response to either the Report and the White Paper that might indicate just how native title processes might be improved, let alone settled, in the short or medium term. All of a sudden however, native title reform is back in vogue. But the heat of debate over proposed changes to ILUA authorisation masks what is at stake.

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‘Add tech and stir’ is no recipe for innovation

AddTech.pngMy previous post gave an overview of the Law Society of New South Wales’ flip Report, on the future of law and innovation in the profession. My overall impression is that the Report might provide a useful and very gentle overview of the road ahead, but fails to engage in any real sense with the way in which technology will – and already is – changing law and legal practice.

Nowhere is this more apparent than in the chapter devoted to legal education. This poses a real limit on the possibilities for innovation – especially to the extent that regulatory bodies are likely to accept the Report’s statement that existing knowledge and skills must remain.

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A roadmap for the legal profession: flip

Robot Lawyer

‘The robots are taking our jobs!’*

The Law Society of New South Wales (‘LSNSW’) has recently released its flip Report (the Future of Law and Innovation in the Profession). Through submissions and a series of hearings between May and November 2016, the Futures Committee has provided the profession with a readable overview of the contemporary environment for the practice of law in New South Wales. And, I dare say, in the rest of Australia and probably beyond.

 

The Report responds to the exponential rate of change faced by the legal profession, notably through the advent of new technologies. It provides not only a series of key findings, but also a series of recommendations concerning the role of the LSNSW in supporting innovation in the profession.

In this post I provide some initial thoughts on the overarching approach of the Report.

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When should an MP claim expenses?

MPs are currently battling public perceptions of their use of parliamentary entitlements. On the radio this morning, the Trade Minister effectively told listeners that it was the core business of MPs – and ministers in particular – to use the entitlements system to attend corporate boxes at high profile sporting events where public companies showcase themselves.

Parliamentarians talk of reform to the system, but sadly, the lack of action reveals the pervasiveness of entitlement gratification.

To assist MPs in understanding whether an event warrants a call on the public purse, I have designed this modest flow chart.

should-i-claim-my-mps-entitlements_-page-1

Centrelink, leaners, and the cyber

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The Australian government’s harassment of tax payers through its Centrelink data matching system is now well-documented. (See eg my own posts, here, here and here.) Yet today the Minister, Alan Tudge, again came out in defence of the system saying that ‘it is working and we will continue with that system’.

Accepting widespread criticism of the Centrelink robo-debt program, the question is whether it is a clever application of technologies to prosecute an ideological agenda, or further evidence that government does not cyber very well.

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Centrelink: A failure of government

arrows missing target

Centrelink is the latest government IT-dependent scheme to miss the target

Over the last couple of months, #Centrelinkfail has gained momentum as a news story. We knew from reports in 2016 that the Department of Human Services was introducing a data matching system that would check social security payments against tax records. But over Christmas, what began as a trickle of reports of incorrect allegations of debt, debt collectors, and tales of personal crisis turned into a flood.

Meanwhile, the government continues to defend the system, ‘confident’ in its operation.

Today, the former head of the government’s Digital Transformation Office, Paul Shetler, has commented on the government’s succession of IT failures – including #censusfail and Centrelink – describing them as

“cataclysmic” and “not a crisis of IT” but a “crisis of government”.

The Centrelink debacle – in particular when viewed together with the government’s other ill-conceived attempts at implementing digital services – demands an urgent and radical rethink about the nature of process of the exercise of state power in the face of pervasive digital technologies.

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Blockchain: is it the next big thing

Image result for accounting ledger book

Old school ledger

I will start by answering the question in the title: I don’t know.

This post is directed principally at lawyers and legal academics, arguing that whatever the trajectory of Blockchain technology, it is sufficiently significant that we must attempt to understand it at some level at least to think critically about its potential implications.

Some lawyers, principally in Big Law firms with a large banking and finance client base, are deeply engaged in Blockchain including to suggest that it will open new fields of practice. Other lawyers understand but dismiss its potential. In my experience however, the majority is unaware of its existence or cannot really say what it is. This latter position is fair enough, because in my view it’s not easy to find a simple explanation that lacks breathless proclamations of a new world order.

I’m a newcomer, having bitten the bullet after I observed ‘chatter’ about Blockchain had reached a tipping point. In my social media feeds, in recent months it has moved from random mentions (innovators) to dedicated early-adopter status even reaching mainstream media… This must surely mean that it’s time for lawyers to become conversant in the technology and its possibilities (and limitations). This post is a low-tech overview of some of the issues, from a lawyer’s perspective.

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