Blockchain: is it the next big thing

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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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Two former PMs and failure of ‘cultural competency’

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Swans are necessarily white only if you display a lack of critical thinking

I have just spent a stimulating and inspiring two days at ANU College of Law in a consultation workshop as part of an important research project into Indigenous cultural competency for legal academics led by Marcelle Burns of UNE. The project is funded by the (now sadly defunct) Commonwealth Office of Learning and Teaching. This is a project of substance, and of national importance. The standing of the project leaders and those who participated in the workshop is testament to this.

 

I emerged from this overall positive discourse to news that former Prime Minister John Howard found ‘appalling’  the idea of a treaty with Indigenous Australians, and that former Prime Minister Tony Abbott dismissed a treaty out of hand. In the first place, Mr Abbott said, a treaty is entered into between two nations – I suppose he means that as a definitional question this is a logical impossibility, for Indigenous Australians hold no seat at the UN (incidentally an institution of which Mr Abbott does not approve). In the second place, Mr Abbott said that going down the path of treaty would spoil the chance for constitutional recognition of Aboriginal and Torres Strait Islander Australians.

These two comments offer a case study in the very issues that occupied our thinking in the workshop. How could it be that two men could rise to be Prime Minister of Australia, senior lawmakers, with such an abject lack of the knowledge, skills, and attitudes that sound in inter-cultural competence – a necessity for all professionals but in particular for lawyers.

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The global lawyer

The legal profession has been concerned for some time with the capability of law graduates for transnational practice. While much of the discussion in the context of the Australian legal profession has centered on knowledge, for example of private international law, there is inevitably an array of skills and attitudes that must accompany such knowledge to develop what might be called the global lawyer. This post teases out what those skills and attitudes might look like.

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Say no to sexist language in public discourse

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In the week that brought to light television personality Eddie McGuire’s ‘banter’ about sports journalist Caroline Wilson, the voters of Leichhardt, have been treated to campaign signs depicting a witch. The signs have been placed adjacent to campaign signs of the only woman candidate in Leichhardt, ALP candidate Sharryn Howes.

The signs themselves entreat the voter to ‘put Labor last’ because winding back negative gearing is a ‘wicked thing to do’.

The incumbent MP Warren Entsch, who authorised the signs, has ‘angrily denied’ any comparison between his signs and the notorious ‘Ditch the Witch’ signs used in rallies in 2011, attended by former Prime Minister Abbott.  According to reports, Mr Entsch has said

“It has nothing to do with anything else. We think its a wicked and awful thing to do for small time investors.”

“I didn’t select the image and it has nothing to do with anything else. Anyone who knows me knows those claims are absolute bullshit.”

With respect, whatever Mr Entsch’s views, the LNP’s views, or the voter views of negative gearing and small time investors, it is not OK to use the language and imagery of witches about women. The implication of the image of the witch, deliberately positioned adjacent to Ms Howes’ campaign corflutes, is to invoke the comparison.

Today is not the first time I have written about witches. In fact, early this year I offered some advice for parliamentarians that warrants repeating:

‘Witch’ is a term used to denigrate women. It represents a woman who has outgrown her sexual utility, often imagined as a toothless old crone. It might also represent the threat women pose to patriarchy – through the magicke of their sexual wiles and fertility, the witch stands ready to trap unwary men. The vast majority of those burned as witches were women. That is no accident. It was an effective means of keeping women in their place.

Today, ‘witch’ carries its anti-women history even though many who use the term may not be conscious of it. As a word not used against men, and in light of the negative connotations it carries, use of ‘witch’ is sexist.

Advice to parliamentarians: find a different word without the sexist baggage.

The signs themselves go so far as to say ‘unfortunately , unlike the movies we can’t get rid of them by pouring water on them’. They express disappointment at a general inability to keep witches – women – in their place.

I accept that there may be an intent to express a desire to keep the ALP in ‘its place’ ie out of government. Sadly however, the clumsiness of the analogy and the language used instead conveys the time-worn expression of antipathy towards women. Women should not have to face sexist language. Women candidates for political office should not face sexist harassment in the course of doing so. We can be better than this.

Many will reject this interpretation. The metaphor is so deeply ingrained in our sexist culture that we have become immune to it. But let’s aspire to a higher level of discourse, that seeks actively, consciously, to deal with the issues without resorting to historical gendered slurs.

Even if Mr Entsch does not himself see the connection between the sign he authorised and the sexist implications for his opponent, he is now on notice that the posters sexist, and that many perceive them to be sexist. He is therefore in a position to step up, and to have the posters removed. That would be a fine contribution to public discourse.

Corporate control of staff personal life

News that Deakin University lecturer Martin Hirst was stood down without pay over three tweets, caused ripples of concern in the twittersphere and in the academy. Since the story first broke, Hirst has been sacked pending a decision to appeal. His employer’s position is that Hirst has breached the university’s code of conduct. The university had received a complaint from a Deakin University student that Hirst tweeted to the complainant in a threatening way. When the University inspected Hirst’s private account – that did not identify Hirst as a Deakin employee – it found two further offending tweets and suspended him. Hirst maintains that he did not know the complainant was a Deakin student.

This is not the first time an employee has had their job threatened by a social media post. In 2015, SBS reporter Scott McIntyre lost his job following a controversial tweet about the ANZACs. He has since settled his unfair dismissal case against SBS. More recently, La Trobe academic Roz Ward was  stood down for comments on her private Facebook page. Her comments did not relate to her work at La Trobe. She has since been reinstated after a massive national campaign.

The merger of public and private has never been so stark it seems. So, where might the boundary lie?

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In search of the pedagogy of lecture capture

Technophobia? Or pedagogy?


I hold views about compulsory across the board lecture capture in universities. I’ve worked out that my resistance comes from the same place as my longstanding questioning of the entrenched assumptions about PowerPoint as assumed practice. (PowerPoint is a post of its own however.)

But before you, the reader, prepares to take aim at me as a technophobe, or to launch celebrations at having found a kindred spirit who yearns for times of yore, let me explain.

My position is that technology is a tool, it is not the purpose of education. Further, all technology including even that of the lecture, should be selected purposefully according to principles of effective learning and teaching.

It is widely known that students use lecture capture for a few purposes. It allows for revision of the work covered in the lecture, and for revisiting complex ideas or ideas that the student missed in class. It also helps students who are unable to make class – they do not miss out on ‘the lecture’ because they can conveniently stream it in the comfort of their own home. Further, for students with English as a second language, neuroatypical students, and other students with diverse learning needs, the capture allows the student to engage with ‘the lecture’ on their own terms.

These are all very important goals, but none of these answer my question which is, why is lecture capture the best mode of achieving these goals? Are there not other technologies that can serve these purposes – perhaps even better?

There is a lot of concern voiced by academics about lecture capture driving students away from real life lectures, with negative consequences for student learning. That is not principally my own concern. Indeed I note that there are studies that discount the causative effect. My own view is that students should be able to select when and where they engage with their subjects. 

This still, however, does not answer the question ‘why lecture capture’ and indeed it prompts the question ‘why lecture’ – both of which learning and teaching settings are nothing more than a tool. The real question, surely, is ‘what is the best tool for the job’.

Despite the widely-held contemporary view that lectures are a passive learning experience – is not a learning experience at all – they can be an engaging and even a transformative learning experience. Whether offered didactically or interactively, this format is live performance. It involves a relationship between lecturer and student. The lecturer must read the audience cues…pause, reiterate, deviate, advance, moderate. These decisions are made in relation to tempo, voice, gestures, body movement, eye contact, content, choice of words, visual cues. There may well be ‘content delivery’ but an effective lecture is no passive transaction.

This renders the face-to-face lecture a qualitatively different experience from a recording of that lecture. If we are lecturing for video, the performance to be effective might adopt quite a different tone or format. Think TED Talks. One point of difference of TED Talks is their brevity – not the two-hour traditional university lecture assiduously captured by university AV/IT systems. (They are also highly practised and professionally shot and edited.)

For lectures that take an interactive approach, the experience of viewing a recording must be infuriating. Gaps in ‘delivery’, unclear discussion in the background, and a static camera angle. The viewer is excluded from the room, an outsider in the learning experience. 

Meanwhile, those in the room are under surveillance, their words and image potentially picked up by the capture system and exposing the student to the eyes of unknown others. I do not consider this a ‘safe’ learning environment, one in which I can in good conscience ask students to take risks. Further, I do not think we are modelling critical evaluation of privacy where we do not ask students to consider the privacy implications of the weekly broadcast. (Although I concede that privacy is pretty much dead in light of all the student data captured in analytics. Students are by now enculturated to be the product as well as the consumer of the processes of education.)

All of this is aimed at what I suspect is the end game of content delivery. Yes, examining the reasons for student use of lecture capture, the predominant purpose is going over that sweet, sweet content til they get it right. If that is the case, can we not package this content in a way that suits our educational design? 

My preference would be that university policies encourage lecturers to consider the best way to support student learning through diverse channels. For me, it is an interactive, relational, dynamic, lecture experience unhampered by the constraints of static camera/microphone and concerns about privacy. I like to support student flexibility and choice through pre-prepared podcasts which have a few key features.

  • These address the same content as is provided in the lecture. 
  • They emphasise the key points. 
  • They are perhaps 20 minutes long – giving a manageable and navigable ‘chunk’ and the chance for the student to gauge learning on the way.
  • They are free of the interactive distractions in class.
  • The format is more transportable, more flexible than lecture streaming.
  • I am not beholden to the vagaries of the software  (yes, I have been failed in the past and you’ll never guess what happened next).
  • Students can listen to podcasts before the lecture also, enhancing the lecture experience.

Student surveys reveal that my students value the podcasts as a means to enhance their learning, and I am satisfied that this format addresses the unstated intent of mandatory lecture capture policies.

I would prefer, however, to see a more clearly articulated and pedagogy-based approach to universities’ policies.

Professionalism online (for new lawyers)

I have been meaning for some time to write a post about what’s described as ‘personal branding’. My interest lies in providing a constructive platform for those entering the profession and who seek to dip their toes into social networks as part of their development of a professional identity.

I was prompted again by the recent cases of academics Roz Ward and Martin Hirst each of whom has had their employment threatened due to a personal Facebook post unrelated to work, and a series of publicly available tweets, respectively. These cases, and many others like them, raise a myriad of issues about privacy, employers’ rights, employees’ responsibility, contemporary standards of discourse, and working out when they apply.

Before I could get my thoughts together to finish a post, Martin Hirst posted on his own blog most eloquently about the issues he and others face. So I have scaled back for now. The topic will likely need a series of posts to canvass the different facets of the complex issue of personal freedoms online and their intersection with our professional lives.

This post is a minimalist start on the topic of online professional personae. It addresses what I see as the professional needs of that most conservative of professions, the law. It is designed to offer a starting point for reflection about one’s digital presence in the context of professionalism in the law. It is not a highly critical piece – critique will come in later posts.

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A mother’s sacrifice: more than an incubator

The ABC reported today that a brain dead woman in Portugal gave birth to a healthy baby. The woman was declared dead on 20 February this year.

What a complicated issue. A terrible decision for family to have to make, and no doubt bitter sweet joy upon the successful delivery of a healthy baby. But what are we to make of the decision to keep a woman as an incubator for a baby?

Many might claim that a pregnant woman would want her baby to survive. This is a widely held understanding of ‘a mother’s sacrifice’. It is offered as justification for what might otherwise be considered a gross invasion of human dignity: not allowing a person to die, and using a human as a means to an end, that end being the birth of a baby. Neither of these propositions is uncomplicated in itself. But before reaching this conclusion, I think that there are still a number of unasked questions that should be exposed before suggesting that the conclusion is correct. Is this sacrifice too great?

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Practical legal education & lawyering skills: are we losing depth?

For a while now I’ve wondered whether a consequence of increasingly vocational legal education and the automation of legal work is the deskilling of lawyers. I don’t have hard evidence, but I think there are questions worth thinking about.

I preface my comments here by confirming that I have no objection – as I know some do -to teaching professional skills in the law degree. Nor do I object to what might be described as an ‘academic’ degree, that emphasises more intellectual skills. My position on the law curriculum is informed by Shiro’s conceptualisation of curriculum. He suggests four types: 

  • Scholar academic (discipline based)
  • Social efficiency (practical skills)
  • Learner centered (such as might be used for an external cohort)
  • Social reconstruction (service to community)

Applying this framework, as I’ve observed before, law schools might develop their curriculum following any of these directions. I can see examples of each across Australian law schools, and I think each has its place.
Further, while there might be any number of alternatives to the Priestley 11, and perhaps different conceptions of the TLOs, there is no intrinsic objection to these as tools of curriculum organisation around subject areas.

I wonder though if we try to do too much with the law degree. If we all aim to do a little bit of everything, will we really produce graduates who are particularly skilled at anything. It’s not that I’m pretending to have emerged from my own undergraduate degree highly skilled in much at all. But in those days universities weren’t promising ‘work ready’ graduates to either the profession, or to graduates themselves.

The past

In terms of my own legal education, I always felt that those who did five year articles (no longer a pathway to practice) were the most skilled of all of us graduate lawyers. These practitioners had a depth of knowledge borne of experience that the two-year clerks like me were unlikely (possibly ever) to match. Upon admission, the contemporary graduate with three months of PLT is unlikely to come near the skill level of the five or even two year clerk. That is not to disrespect my esteemed PLT colleagues or the fine graduates of PLT programs. It is simply that the entire learning/practice context is different. 

But there were flaws with the ways of old – you could get ‘good articles’ or ‘bad articles’. It is no wonder that a standards based PLT was implemented, and that universities are now called on to start professional skills training. If the profession is not training but expects work ready graduates, the training has to be pushed back into the degree.
There is no doubt then that the newly minted lawyer must be sufficiently skilled to start in what is now a high paying junior lawyer position, relative to the low pay of articled clerks of old. Again, I don’t begrudge this. But I do have some questions about how we are developing the real skills of junior lawyers, fully qualified.

The salary of the junior lawyer demands they do fee paying work to meet budget. They are likely to be too expensive to do repetitive back room work like due diligence, discovery, turn-the-handle conveyancing. Indeed this work – in the world of Susskind’s tomorrow’s lawyers (actually right now!) – will either be run by paralegals, outsourced, or computerised. 

I don’t mind the fragmentation of the profession. I don’t mind cost-effective bundling options. I love, and am indebted to, the highly capable legal secretaries and paralegals who taught me so much. I’m a technology fan. And lastly, who wants to do all that drudge work? Not the lawyer, right? 

The future 

I’m not so sure. I was no fan of that grinding work. But it offered me a unique opportunity to learn about the components of transactional law, about land titles, corporate process, and securities. I learned to read word by word, line by line. I learned to take each menial task as an opportunity to practice for the big one. When I had grown up enough to do more glamorous work, I was equipped to give effective instructions to other staff, and to know what inquiries to make. In short, I think it made me a better lawyer. 

I’m sure there are plenty of good lawyers out there who have not taken this path – but increasingly, this path will not be available for lawyers. The problem I foresee is that with all the unbundling and outsourcing and technology, lawyers will lose control of the process. I don’t mean the profession is losing its monopoly (though it is) but that lawyers will not have the insight or experience to know how to give instructions, or what the processes underlying their work even are. Further, will those teaching PLT in the future  have the depth of professional practice knowledge to pass on to graduates?

For example:

  • E-discovery is great. Facilitated by algorithms, it is cost effective and a boon for litigation. I imagine that the software has been designed by or with lawyers who understand the process intimately. In all likelihood, they became experts because they spent hours and days and weeks doing the drudge work of discovery. But their knowledge, grounded in experience, will one day be gone. We will have the algorithm we inherited from them, but no capacity to know what lies behind it or what the electronic process misses or adds to the human skill of litigation.
  • The sanctity of the duplicate certificate of title has long disappeared. Conveyancing now can be achieved from the comfort of one’s desk, with the press of a button (subject to the banks getting their act together – some things seem never to change). The Torrens fraud cases are dated but we still teach them. What is the skill set required to undertake a disembodied land transaction? What will lawyers know of titles beyond the current notation? Indeed (and I have some hard anecdote to back Tis up) what will land registry staff know about titles…

There is still a place for the boutique lawyer, according to Susskind. But what will they cut their teeth on? How will they develop the depth of knowledge, of experience, to become that lawyer? We can’t provide that in universities, nor can PLT courses provide it. ‘Authentic’ learning is training and it may set the graduate up for practice but it is still managed and bounded. It’s the beginning not the end.

The future of legal practice will look different. And educating and training future lawyers will look different. What I’m grappling with, at the risk of calls of Luddite, is whether what we lose in translation is an essential layer of experience and therefore knowledge.

Court orders sperm removal from deceased

In what is an increasingly common circumstance, in April 2015 Burns J of the Supreme Court of Queensland granted an application by a Ms Patteson for the removal of her deceased fiance’s testes and sperm. The judgment was made ex tempore – on the spot – in light of the urgent nature of the case. The applicant’s fiance had, sadly, died the night before the judgment. For sperm of a deceased man to remain viable, they must be harvested and properly stored within 24 hours of death. The judge had to decide the matter immediately.

In such urgent applications, it is not the court’s role to approve the use of the sperm for fertilisation. The applicant must make a further application to use the sperm. Burns J made it clear that the court’s jurisdiction in this case extended only to approval of the removal of the testes and sperm. Ms Patteson, he said, could return to the court ‘after mature reflection’ to make an application for the use of the sperm for the purpose of fertilisation.

While far from the first such judgment, there is one aspect that has arisen before and that prompts some thinking about the basis on which such judgments are made. In doing so, no judgment is made of the applicant or her circumstances, which should at all times be respected. On the contrary, the issues underlying such judgments speak to the system and how the law should consider the body of a deceased.

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