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Results in Journal Law, Technology and Humans: 65

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Law, Technology and Humans, Volume 3, pp 1-4; https://doi.org/10.5204/lthj.2158

Abstract:
This brief editorial focuses on the contribution in this volume titled ‘Machines Will Never Replace Humans!’ compiled by GPT-3. The brief text is provocative. It is provocative in demonstrating the potential efficiencies and complexities of machine-produced natural language text for ‘writing’ professions like law and the academy. It is further provocative as it reflects back the image and representation of the human within the digital. There is a denotive suggestion that humans are valuable and significant as lawyers because they possess intuition. There is a further suggestion that humans, or more precisely the imprint of humans in the digital, are televisual consumers of dated sitcoms, revealing the disconnect between existent digital archives and the totality of humanity.
Law, Technology and Humans, Volume 3, pp 12-27; https://doi.org/10.5204/lthj.1600

Abstract:
Recent court decisions have revealed how the law is frequently under pressure to adjust to novel digital technologies. As legal practice is blind to the factual particularities of the relationship between law and technology, the courts’ efforts to re-stabilize normative expectations of Internet users, in the face of sociotechnical changes caused by computer networks, lack an adequate theoretical classification. Science and technology studies (STS) provide refined knowledge on the interaction between technology and society. Yet, the law and normative structures have remained a stepchild of that branch of interdisciplinary theorizing within the social sciences. Within the legal discipline, media-based theories about the law in the digital environment have conceived computer networks as hybrid sociotechnical constructs. This approach aptly shows how digital media have changed the way individuals experience the world and interact with one another and how the capacity to adjust cognitive behavioral expectations to new developments has become crucial. While the learning of individuals takes center stage, this perspective belittles the relevance of normative expectations and overlooks the law’s learning. How is the law capable of learning under conditions of computer networks and responding to the sociopolitical changes caused by the new technologies? This paper’s aim is to propose a perspective on the law in the digital society that combines STS with legal sociology. An approach based on technical affordances explains how normative behavioral expectations can adjust to changes in the networked environment and how the law learns in the digital society.
Sacha Molitorisz, , Jennifer Hagedorn
Law, Technology and Humans, Volume 3, pp 46-60; https://doi.org/10.5204/lthj.1874

Abstract:
For many privacy scholars, consent is on life support, if not dead. In July 2020, we held six focus groups in Australia to test this claim by gauging attitudes to consent and privacy, with a spotlight on smartphones. These focus groups included discussion of four case studies: ‘shadow profiles’, eavesdropping by companies on smartphone users, non-consensual government surveillance of its citizens and contact tracing apps developed to combat COVID-19. Our participants expressed concerns about these practices and said they valued individual consent and saw it as a key element of privacy protection. However, they saw the limits of individual consent, saying that the law and the design of digital services also have key roles to play. Building on these findings, we argue for a blend of good law, good design and an appreciation that individual consent is still valued and must be fixed rather than discarded - ideally in ways that are also collective. In other words, consent is dead; long live consent.
Law, Technology and Humans, Volume 3, pp 160-162; https://doi.org/10.5204/lthj.2150

Abstract:
Kieran Tranter reviews Technology by Penny Crofts and Honni van Rijswijk
, , Leslie Carr, Yadira Sanchez Benitez, Gopala Sasie Rekha
Law, Technology and Humans, Volume 3, pp 28-45; https://doi.org/10.5204/lthj.2012

Abstract:
In the context of the COVID-19 pandemic, digital contact tracing has been developed and promoted in many countries as a valuable tool to help the fight against the virus, allowing health authorities to react quickly and limit contagion. Very often, however, these tracing apps have faced public resistance, making their use relatively sparse and ineffective. Our study relies on an interdisciplinary approach that brings together criminological and computational expertise to consider the key social dynamics underlying people’s resistance to using the NHS contact-tracing app in England and Wales. The present study analyses a large Twitter dataset to investigate interactions between relevant user accounts and identify the main narrative frames (lack of trust and negative liberties) and mechanisms (polluted information, conspiratorial thinking and reactance) to explain resistance towards use of the NHS contact-tracing app. Our study builds on concepts of User eXperience (UX) and algorithm aversion and demonstrates the relevance of these elements to the key criminological problem of resistance to official technologies.
Nicholas Korpela
Law, Technology and Humans, Volume 3, pp 158-159; https://doi.org/10.5204/lthj.2107

Abstract:
Nicholas Korpela reviews Michael Guihot and Lyria Bennett Moses (2020). Artificial Intelligence, Robots and the Law
John Clammer, Matthew John Byrne
Law, Technology and Humans, Volume 3, pp 133-147; https://doi.org/10.5204/lthj.1564

Abstract:
This paper argues that online dispute resolution (ODR) has not been readily accepted in India’s rural hinterlands. This field study involved a trip to a “typical rural village” in North India with a population of approximately 3,000 people. Barriers to acceptance include IT literacy and connectivity, English language platforms and learning resources, reliance on and preference for village-based dispute-resolution systems, mistrust of external authority, lack of awareness of the benefits of ODR, and gender and cultural issues. We find that some villagers may be interested in ODR, but its adaption requires not only outlining the advantages of ODR but also creating a sense of ownership and managing resistance to outsiders. This could be done by providing training to groups likely to benefit from ODR, including youth, women, and NGOs. The case study also has theoretical implications for the study of comparative access to legal services, the relationship between concepts of rights and local concepts of morality, and for the persistence of social structure and “traditional” means of dispute resolution despite the possibility of access to “modern” forms of legal services.
Alex Deagon
Law, Technology and Humans, Volume 3, pp 82-95; https://doi.org/10.5204/lthj.v3i1.1566

Abstract:
Technology is a new theology. Substantively, technology represents the culmination of human creation undergirded by reason, without reference to the supernatural. In that sense, technology is a kind of secular substitute for theology. Functionally, through its ubiquity and esoteric rules that govern our lives so comprehensively, technology echoes the binding nature of theology as a subset of religion (from religare, meaning ‘to rebind’). However, the binding nature of techno-secular theology produces biopolitical violence. In this article, I propose that recognition (‘re‑cognition’) of technology as techne, a tool to be used for good, rather than a religare, a binding, warrants a return to a theological framework to develop a more charitable community. This will facilitate the development and improvement of theology as a means of exploring mystery.
Tracy Creagh
Law, Technology and Humans, Volume 3; https://doi.org/10.5204/lthj.1965

Abstract:
The article The Quantification of Law: Counting, Predicting, and Valuating by Rafael Viana Ribeiro (Law, Technology and Humans, 3, no 1 (2021): 51-67. https://doi.org/10.5204/lthj.1603) was published on March 2, 2021. The author name has been changed at the request of the author. This corrected version of the article can be found at https://doi.org/10.5204/lthj.1966
Alice Granada Viana Ribeiro
Law, Technology and Humans, Volume 3, pp 51-67; https://doi.org/10.5204/lthj.1966

Abstract:
Legal reasoning is increasingly quantified. Developers in the market and public institutions in the legal system are making use of massive databases of court opinions and other legal communications to craft algorithms to assess the effectiveness of legal arguments or predict court judgments; tasks that were once seen as the exclusive province of seasoned lawyers’ obscure knowledge. New legal technologies promise to search heaps of documents for useful evidence, and to analyze dozens of factors to quantify a lawsuit’s odds of success. Legal quantification initiatives depend on the availability of reliable data about the past behavior of courts that institutional actors have attempted to control. The development of initiatives in legal quantification is visible as public bodies craft their own tools for internal use and access by the public, and private companies create new ways to valorize the “raw data” provided by courts and lawyers by generating information useful to the strategies of legal professionals, as well as to the investors that re-valorize legal activity by securitizing legal risk through litigation funding. The article The Quantification of Law: Counting, Predicting, and Valuating by Rafael Viana Ribeiro (Law, Technology and Humans, 3, no 1 (2021): 51-67. https://doi.org/10.5204/lthj.1603) was originally published on March 2, 2021. The author name has been changed at the request of the author. The correction notice can be found at https://doi.org/10.5204/lthj.1965
Lisa Archbold, , , Damian Clifford
Law, Technology and Humans, Volume 3, pp 18-34; https://doi.org/10.5204/lthj.1803

Abstract:
Children and young people throughout the world have felt the effects of Coronavirus Disease 2019 and the decisions made in response to the public health crisis, acutely. Questions have been raised about adequately protecting children’s privacy, as schooling, play and socialising went almost exclusively online. However, due to the historical lack of children’s rights being embedded throughout decision-making processes (including important participation rights), the effects of the increased surveillance as a result of the pandemic have not been thoroughly considered. This article pursues three objectives. First, it seeks to develop the literature on the enabling aspects of privacy for children in relation to education and play. Second, it seeks to expand the discussion on the exploitative risks endemic in not protecting children’s privacy, including not only violent harms, but commercial exploitation. Third, it suggests some policy responses that will more effectively embed a children’s rights framework beyond the ‘parental control’ provisions that dominate child-specific data protection frameworks.
Law, Technology and Humans, Volume 3; https://doi.org/10.5204/lthj.1875

Abstract:
Fields closely related to empirical legal research (ELR) are enhancing their methods to improve the credibility of their findings. This includes making data, analysis codes and other materials openly available on digital repositories and preregistering studies. There are numerous benefits to these practices, such as research being easier to find and access through digital research methods. However, ELR appears to be lagging cognate fields. This may be partly due to a lack of field-specific meta-research and guidance. We sought to fill that gap by first evaluating credibility indicators in ELR, including a review of guidelines for legal journals. This review finds considerable room for improvement in how law journals regulate ELR. The remainder of the article provides practical guidance for the field. We start with general recommendations for empirical legal researchers and then turn to recommendations aimed at three commonly used empirical legal methods: content analyses of judicial decisions, surveys and qualitative studies. We end with suggestions for journals and law schools.
Matt Bartlett
Law, Technology and Humans, Volume 3, pp 96-108; https://doi.org/10.5204/lthj.1595

Abstract:
Serious challenges are raised by the way in which technology companies like Facebook and Google harvest and process user data. Companies in the modern data economy mine troves of data with sophisticated algorithms to produce valuable behavioural predictions. These data-driven predictions provide companies with a powerful capacity to influence and manipulate users, and these risks are increasing with the explosive growth of ‘Big Data’ and artificial intelligence machine learning. This article analyses the extent to which these challenges are met by existing regimes such as Australia and New Zealand’s respective privacy acts and the European Union’s General Data Protection Regime. While these laws protect certain privacy interests, I argue that users have a broader set of interests in their data meriting protection. I explore three of these novel interests, including the social dimension of data, control and access to predictions mined from data and the economic value of data. This article shows how existing frameworks fail to recognise or protect these novel interests. In light of this failure, lawmakers urgently need to frame new legal regimes to protect against the worst excesses of the data economy.
, Brydon Wang
Law, Technology and Humans, Volume 3, pp 35-50; https://doi.org/10.5204/lthj.1808

Abstract:
Governments worldwide view contact tracing as a key tool to mitigate COVID-19 community transmission. Contact tracing investigations are time consuming and labour intensive. Mobile phone location tracking has been a new data-driven option to potentially obviate investigative inefficiencies. However, using mobile phone apps for contact tracing purposes gives rise to complex privacy issues. Governmental presentation and implementation of contact tracing apps, therefore, requires careful and sensitive delivery of a coherent policy position to establish citizen trust, which is an essential component of uptake and use. This article critically examines the Australian Government’s initial implementation of the COVIDSafe app. We outline a series of implementation misalignments that juxtapose an underpinning regulatory rationality predicated on the implementation of information privacy law protections with rhetorical campaigns to reinforce different justifications for the app’s use. We then examine these implementation misalignments from Mayer and colleagues’ lens of trustworthiness (1995) and its three core domains: ability, integrity and benevolence. The three domains are used to examine how the Australian Government’s implementation strategy provided a confused understanding of processes that enhance trustworthiness in the adoption of new technologies. In conclusion, we provide a better understanding about securing trustworthiness in new technologies through the establishment of a value consensus that requires alignment of regulatory rationales and rhetorical campaigning.
Law, Technology and Humans, Volume 3, pp 123-132; https://doi.org/10.5204/lthj.1489

Abstract:
Europe accounts for the largest number of assisted reproduction treatments (ARTs) in the world, with 56 percent of the global reproductive market quota, followed by Asia (23 percent) and North America (15 percent). However, Europe’s legal landscape of reproductive bio-commodities is a patchwork of permissive and restrictive countries, one of the main reasons for the transnational movement to access ARTs. Spain is the main destination for European middle- and upper-class couples seeking egg donation. The use of legislation has been a significant feature in making Spain a leading country in the global reproscape. This paper aims to understand the specific role of several undetermined legal concepts used by the Spanish regulation, such as “compensation” or “best interest of the child” in making global reproductive bio-commodities.
Rafael Viana Ribeiro
Law, Technology and Humans, Volume 3, pp 51-67; https://doi.org/10.5204/lthj.1603

Abstract:
Legal reasoning is increasingly quantified. Developers in the market and public institutions in the legal system are making use of massive databases of court opinions and other legal communications to craft algorithms to assess the effectiveness of legal arguments or predict court judgments; tasks that were once seen as the exclusive province of seasoned lawyers’ obscure knowledge. New legal technologies promise to search heaps of documents for useful evidence, and to analyze dozens of factors to quantify a lawsuit’s odds of success. Legal quantification initiatives depend on the availability of reliable data about the past behavior of courts that institutional actors have attempted to control. The development of initiatives in legal quantification is visible as public bodies craft their own tools for internal use and access by the public, and private companies create new ways to valorize the “raw data” provided by courts and lawyers by generating information useful to the strategies of legal professionals, as well as to the investors that re-valorize legal activity by securitizing legal risk through litigation funding.
Law, Technology and Humans, Volume 3, pp 68-81; https://doi.org/10.5204/lthj.v3i1.1558

Abstract:
Over the last 15 years, the working context of lawyers has undergone many changes. Evolving in an increasingly competitive, deregulated, and globalized market, they are subject to higher tax pressure while being exposed to unbridled technological innovation. Indeed, a growing number of entrepreneurs are using digital solutions to provide online legal services that are supposed to be faster and cheaper. If many of them are nonlawyer legal entrepreneurs, many lawyers are also engineering innovative projects and launching their own start-up companies, known as “LegalTech” or “LawTech.” However, few studies—or none to our limited knowledge—provide an empirically grounded analysis of such projects, leaving some questions unanswered. Who are these entrepreneurial lawyers? How and why do they engineer and develop LegalTech projects? How do they challenge the legal profession? To answer these questions, this article draws on a qualitative study of three contrasted start-ups Belgian lawyers have recently developed. The research methodology combines gray and scientific literature reviews, web-document (hereafter “manifestos”) analysis, and semi-directive interviews led with the start-up’s founders (n = 5), the Bar Association’s representatives (n = 3), and some members of the main Belgian LegalTech network (n = 4).
Law, Technology and Humans, Volume 3; https://doi.org/10.5204/lthj.1846

Abstract:
This article critically examines the opportunities and challenges that automated decision-making (ADM) poses for environmental impact assessments (EIAs) as a crucial aspect of environmental law. It argues that while fully or partially automating discretionary EIA decisions is legally and technically problematic, there is significant potential for data-driven decision-making tools to provide superior analysis and predictions to better inform EIA processes. Discretionary decision-making is desirable for EIA decisions given the inherent complexity associated with environmental regulation and the prediction of future impacts. This article demonstrates that current ADM tools cannot adequately replicate human discretionary processes for EIAs—even if there is human oversight and review of automated outputs. Instead of fully or partially automating EIA decisions, data-driven decision-making can be more appropriately deployed to enhance data analysis and predictions to optimise EIA decision-making processes. This latter type of ADM can augment decision-making processes without displacing the critical role of human discretion in weighing the complex environmental, social and economic considerations inherent in EIA determinations.
, Stacey Steele
Law, Technology and Humans, Volume 3, pp 6-17; https://doi.org/10.5204/lthj.1745

Abstract:
The economic fallout of the COVID-19 pandemic prompted many governments to provide emergency payments to citizens. These one-off and recurring payments revealed the shortcomings of existing financial infrastructures even as electronic payments replaced cash for everyday expenses. Delays in getting government payments to citizens in many countries focused attention on the potential benefits of central bank digital currencies (CBDCs). This article outlines the social and economic policy choices involved in designing a CBDC and the consequences of these choices for privacy. Priorities including preventing the criminal abuse of the financial system, geopolitical concerns and private sector innovation compete with, and potentially undermine, privacy. We identify and categorize four key privacy risks as ‘losses’ associated with current CBDC models: loss of anonymity, loss of liberty, loss of individual control, and loss of regulatory control.
Law, Technology and Humans, Volume 3, pp 109-122; https://doi.org/10.5204/lthj.v2i2.1490

Abstract:
Humans have consumed nearly every human body part. Today, the consumption of milk, placenta, and feces, in particular, is on the rise. Milk, placenta, and feces circulate directly among people given that no medical expertise is required to consume them in unprocessed form, but they are also distributed by institutionalized medical entities (e.g., biobanks, hospitals, pharmaceutical, biotechnology, or cosmetic companies). They are considered simultaneously valuable (as they are typically donated gratuitously and primarily used for nutritional, health, and research purposes) and dangerous (as they can transmit viruses, bacteria, parasites, and pollutants). This article has two main goals. First, in examining the social meanings of milk, placenta, and feces consumption, it considers whether and how the circulation of these bio-commodities shapes the limits of human bodies and communities. Second, it asks whether there is something different or specific about the way in which self-consumption (i.e., the consumption of human body materials by humans) is regulated compared to that of foods, drugs, and supplements derived from animal bodies, plants, or other non-human sources.
Katherine Schofield
Law, Technology and Humans, Volume 3, pp 148-150; https://doi.org/10.5204/lthj.1783

Abstract:
Katherine Schofield reviews Cops, Cameras, and Crisis: The Potential and the Perils of Police Body-Worn Cameras.
Cameron Downey
Law, Technology and Humans, Volume 3, pp 151-153; https://doi.org/10.5204/lthj.1838

Abstract:
Cameron Downey reviews Roger Brownsword (2020) Law 3.0: Rules, Regulation and Technology.
, Megan Richardson, Stacey Steele
Law, Technology and Humans, Volume 3, pp 1-5; https://doi.org/10.5204/lthj.1924

Abstract:
This set of articles in this special issue illustrate a number of ways that the realities of a global pandemic may challenge different perspectives on privacy protection and the appropriate relationship with other rights and responsibilities. They arose from a virtual roundtable, held on 15 June 2020 at Melbourne Law School, under the aegis of the Privacy and Pandemics Information Network. The network was formed as a rapid response to the overwhelming number of privacy issues being raised almost simultaneously by, or as a result of, the various government and private actor attempts to deal with COVID-19 in Australia and around the world.
Eve Massingham
Law, Technology and Humans, Volume 3; https://doi.org/10.5204/lthj.1854

Abstract:
The role of the electromagnetic spectrum in all manner of military operations is increasing. The same can be said for all aspects of our everyday civilian lives. Consequently, demand on the spectrum, both by the military and for civilian purposes, is increasing. The spectrum, while fully renewable, is not unlimited at any one point in time and allocation of the spectrum for optimum utilisation is key. This is raising a range of issues. Questions arise both because of the role of autonomous capabilities in devices that make use of the spectrum, which have the potential to create demand and interference challenges, and because of the valuable role that autonomous capabilities may play in managing the spectrum itself. This paper looks at attempts to use automation technologies to better utilise and manage the spectrum while noting the challenges created by signal interference and the ‘dual-use’ nature of this valuable resource.
Benjamin Alarie, Arthur Cockfield
Law, Technology and Humans, Volume 3; https://doi.org/10.5204/lthj.2089

Abstract:
We present here the first machine-generated law review article. Our self-interest motivates us to believe that knowledge workers who write complex articles drawing upon years of research and effort are safe from AI developments. However, how reasonable is it to persist in this belief given recent advances in AI research? With that topic in mind, we caused GPT-3, a state-of-the-art AI, to generate a paper that explains “why humans will always be better lawyers, drivers, CEOs, presidents, and law professors than artificial intelligence and robots can ever hope to be.” The resulting paper, with no edits apart from giving it a title and bolding the headings generated by GPT-3, is reproduced below. It is imperfect in a humorous way. Ironically, it is publishable “as-is” only because it is machine-generated. Nevertheless, the resulting paper is good enough to give us some pause for thought. Although GPT-3 is not up to the task of replacing law review authors currently, we are far less confident that GPT-5 or GPT-100 might not be up to the task in future.
Kristina Chelberg
Law, Technology and Humans, Volume 3; https://doi.org/10.5204/lthj.1271

Abstract:
Copyright is under contest in Australia amid growing digital cultures of sharing. Using metaphor as a frame for analysis, this study applies internet search data (Google Trends) methods to visualise Australian online information-seeking patterns for metaphors related to copyright and sharing. An overview of legal metaphors of online copyright (‘piracy’, ‘war on copyright’) and metaphors of digital sharing (‘sharing is caring’, ‘sharing economy’) leads to a critical examination of the ‘metaphor struggles’ between the rhetoric of copyright infringement and sharing cultures promoted by social media. Key findings presented are of decreased information seeking for copyright metaphors and increased information seeking for sharing metaphors. Online information-seeking patterns, as visualised by internet search data, represent a form of public mobilisation. Visualisation of these patterns of public information seeking for metaphors of copyright and sharing demonstrates shifting conceptions of copyright in contemporary digital cultures. This article concludes by raising a potential relationship between rising ethics of online sharing norms and diminishing legitimacy of online copyright, as the legal metaphor of copyright appears to transition through the metaphor cycle.
Sarah Hook,
Law, Technology and Humans pp 141-161; https://doi.org/10.5204/lthj.v1i0.1302

Abstract:
When once individuals could ‘clock off’ for the day and retreat into private spaces, these private activities are increasingly prone to being recorded, tagged and shared and brought to the attention of an individual’s employer. The unavoidable necessity for people to engage with each other online has blurred the boundaries between work life and private life and has meant that, increasingly, employers seek to control what employees do and say online, which requires individuals to carefully modify their behaviour in once private domains. As individuals become inured to the realities of being tracked and mined, the resigned cynicism of the situation is creating a culture where freedom to ‘be yourself’ is undermined. This paper will explore examples of individuals who have faced consequences at work for their online behaviour in what once would have been thought of as their private domain. Using surveillance theory, it will seek to ask whether such a gap in the legal and regulatory sphere is at risk of submerging the individual into a docile workforce which is never ‘off the clock’.
Justine Rogers, Peter Dombkins,
Law, Technology and Humans, Volume 2; https://doi.org/10.5204/lthj.1610

Abstract:
Post-Global Financial Crisis, global law firms and in-house departments have started to take up ‘Legal Project Management’ (LPM). LPM adopts and adapts project management methods for the law context as a means of streamlining, planning and costing legal work. This article examines LPM as an aspiring driver of managerialist change within the legal profession. In its reframing of all legal matters as ‘projects’, LPM is also an example of a more specific type of managerialist change, ‘projectification’: the process by which work activities, and our activities generally, are being organised and shaped as projects or temporary endeavours. Though we know managerialism is occurring, our understanding of how it manifests in, and is promoted by, specific practices and discourses within the workplace organisation is under-developed in the law context. It may be tempting to read managerialism as sullying traditional professionalism. But an extensive body of literature has documented the interactions of professional and managerial imperatives that result in what has been described as a hybridisation of different logics or belief systems. This article adds vital detail to the existing literature about managerialism within the legal profession by looking closely at LPM as projectification. To do so, it utilises Mirko Noordegraaf’s three dimensions of professionalism that represent core points of distinction: coordination of work, authority or the grounds for legitimacy, and values at stake. Through these facets, it analyses LPM’s somewhat contradictory aspects, illustrating the schismatic nature of projectification as both exciting and empowering, and ethically risky and dehumanising.
Law, Technology and Humans, Volume 2, pp 114-119; https://doi.org/10.5204/lthj.1766

Abstract:
What does it mean to be human today in our globalised, technologised and hypermediated world? How do our modes of cultural representation relate to, affect and effect the role of being human? This special issue of Law, Technology and Humans seeks to explore the form of the comic as one means to address these questions. Comics are a means of cultural representation and discourse that not only reflect but refract — through their deployment of word and image, of grid and gutter, of both visual and textual mediation — the very means of human interaction and intersubjectivity. Arising out of the 2019 Graphic Justice Research Alliance conference, hosted by the School of Law and Criminology (now the School of Law and Society) at the University of the Sunshine Coast, Australia, the papers collected here examine not only the way in which comics and graphic art present narratives of law and justice, or representations of human rights and their abuses, but also the way in which comics in their form and multimodality call into question the law’s drawing of the boundaries of the human as it is challenged by its relation to the non-human, the environment and technology.
Law, Technology and Humans, Volume 2, pp 230-232; https://doi.org/10.5204/lthj.1651

Abstract:
Daniel Newman reviews Kim D Weinert, Karen Crawley and Kieran Tranter (eds) (2020) Law, Lawyers and Justice: Through Australian Lenses.
Hannah Klose
Law, Technology and Humans, Volume 2, pp 227-229; https://doi.org/10.5204/lthj.1650

Abstract:
Hannah Klose reviews Emily Setty (2020) Risk and Harm in Youth Sexting Culture: Young People’s Perspectives.
Law, Technology and Humans, Volume 2, pp 42-52; https://doi.org/10.5204/lthj.1712

Abstract:
Humans experimenting on other humans sits precisely at the junction of law, technology and the humanities, synthesising descriptive, normative and creative elements in relation to reality. Experiments describe reality, normalise shared conceptions of reality as well as create their own reality. Human experiments consequently inflect both ‘norm’ and ‘humanity’ as a pattern or as a model, or even a standard to be met or fulfilled. Experiments abound in Italian philosopher Giorgio Agamben’s body of work, including where he engages with the capacity for development of Michel Foucault’s opus. This is particularly so when Agamben explicitly addresses questions and criticisms surrounding his own methodology.
Heather J Van Meter
Law, Technology and Humans, Volume 2, pp 69-80; https://doi.org/10.5204/lthj.1470

Abstract:
This paper offers a critique and reformulation of the data-information-knowledge-wisdom (DIKW) pyramid. Today, collection of personal, business, industrial, and other types of data has never been more pervasive and invasive. Data storage now is measured in yottabytes (56 septillion bits of data) and beyond. This collected data is interrogated, monetized, hacked, and otherwise handled and mishandled around the world at an increasingly rapid pace due to improvements in technology. The interrogated data becomes information, but whether this information is useful or valuable depends entirely on the manner of interrogation and the accuracy of the underlying data. In turn, information could become knowledge but not necessarily, and not necessarily useful knowledge either. Knowledge and wisdom are also closely related, but wisdom typically contains a volume and longevity of collected knowledge and a purpose. Are humans more knowledgeable or wiser for today’s massive amounts of collected data? This paper examines the traditional DIKW pyramid and proposes a revised DIKW relationship based on a Venn diagram to better reflect the relationship between data, information, knowledge, and wisdom.
Law, Technology and Humans, Volume 2, pp 22-41; https://doi.org/10.5204/lthj.1551

Abstract:
This article traces Bruno Latour’s answer to the question ‘what is real?’ from Latour and Steve Woolgar in Laboratory Life: The Social Construction of Scientific Facts (1979) through to Latour in Down to Earth: Politics in the New Climate Change (2018). This intriguing question arises because Latour’s hypothesis in Down to Earth presumes that climate change is ‘real’, while in Laboratory Life, hard facts were considered constructions. The journey reveals Latour’s own ‘real’ lies between the extreme science realists (facts are either true or false) and extreme social relativists (facts are a social construction), although favouring the relativists. A closer analysis, however, shows that Latour’s project is really about truth claims and that the real question is couched in terms rejecting the modernist settlement of ontological assumptions and basing truth on credibility determined by the strength of associations; the more associations, the more ‘real’ the truth claim. Ultimately, Latour elegantly sidesteps the real question and how he does this is real-ly unrivalled.
Leah Henderson
Law, Technology and Humans, Volume 2, pp 133-149; https://doi.org/10.5204/lthj.1640

Abstract:
Vision: Director’s Cut (2017) is a short comic series about Vision, a lonely robot Avenger superhero who builds his own robotic family out of his desire for love and happiness. The story focuses on the Vision family as they struggle to lead a ‘normal’ suburban life under Vision’s tutelage. As beings of artificial intelligence (AI), they are subject to social ostracism and abuse by a neighbourhood that refuses to accept them as part of the human community. In doing so, Director’s Cut enters into the long-standing literary debate about humanness versus monstrousness, what it means to be a human, and who gets to dictate the definition. The storyline is a contemporary science-fiction rendition of Mary Shelley’s Frankenstein (1818), which dramatises the dangers of trying to artificially create a human life. Both texts are in agreement that once these beings are created, because they are sentient and self-aware, then they ought to be treated with dignity, respect and equality. Director’s Cut is additionally comparable to Shakespeare’s The Merchant of Venice in exploring the act of vengeance by the traumatised outsider, and how said acts ironically prove their humanness because revenge is a motive inimitable by any other life form.
Law, Technology and Humans, Volume 2, pp 172-184; https://doi.org/10.5204/lthj.1581

Abstract:
This article uses Kafka's short story 'Before the Law' to offer a reading of Al Ewing's The Immortal Hulk. This is in turn used to explore our desire to encounter the Law understood as a form of completeness. The article differentiates between 'the Law' as completeness or limitlessness and 'the law' understood as limitation. The article also examines this desire to experience completeness or limitlessness in the work of George Bataille who argued such an experience was the path to sovereignty. In response it also considers Francois Flahault's critique of Bataille who argued Bataille failed to understand limitlessness is split between a 'good infinite' and a 'bad infinite', and that it is only the latter that can ultimately satisfy us. The article then proposes The Hulk, especially as presented in Al Ewing's The Immortal Hulk, is a study in where our desire for limitlessness can take us. Ultimately it proposes we turn ourselves away from the Law and towards the law that preserves and protects our incompleteness.
Ernesto A. Hernández-López
Law, Technology and Humans, Volume 2, pp 97-113; https://doi.org/10.5204/lthj.1479

Abstract:
For over six years now, the law has been central to policy debates about genetically modified organism (GMO) corn in México, the birthplace of maíz (corn). In the lawsuit Colectividad del Maíz, the domestic courts have shaped the policy on GMO corn. Out of concern for biodiversity, the courts have suspended regulatory approval for commercial GMO corn permits needed by seed companies. This article uses decolonial theory to examine how the law can both encourage and limit the use of GMOs. Decolonial perspectives isolate how economics, legal authorities, and ideologies work in unison to shape relations between the Global South and private interests. This is accomplished by defining the subject of any such legal regulations. Different legal doctrines treat GMOs in different and distinct ways. Under the doctrines of biosecurity, intellectual property, and international trade law, markets and biotechnology benefit as the subject of the law. Such doctrines disenfranchise maíz nativo (non-GMO corn) by making it the law’s object. The article also adopts Bruno Latour’s theory of “down to earth” politics to identify important changes in GMO regulations. Collective action litigation has limited the expansion of GMO corn via the application of precautionary principle measures and motivated new legislation in México.
Elizabeth Englezos
Law, Technology and Humans, Volume 2, pp 53-68; https://doi.org/10.5204/lthj.1483

Abstract:
This article utilises the example of Australia’s social welfare agency ‘Centrelink’ and its Online Compliance Intervention (OCI) program to illustrate the process of digital translation and digital determinations of material reality. The article explains the digital translation process through the adaptation of various aspects of Charles Sanders Peirce’s philosophy such as the triadic sign model, signification, fallibilism and synechism. Semiotics, or the ‘study of meaning making’, highlights the subjective nature of data analysis. A semiotic approach not only explains the differing realities of digital and material space and the lack of distinction between digital and material phenomena, but also provides further insight into algorithmic determinations of reality and the inherent limitations on our knowledge of digital or material reality. The same data can produce divergent realities within digital space and between the material and digital spaces. The article concludes that the design of algorithms, the nature of their representations and the outcomes they generate lack the complexity and nuance of reality, and disregards social influences on meaning and interpretation. As illustrated by the real-life failure of Centrelink’s OCI, this article warns against interpreting the digital as an accurate rendering of the real.
Law, Technology and Humans, Volume 2, pp 150-171; https://doi.org/10.5204/lthj.1646

Abstract:
This paper reflects on the relationship between institution and abyss, specifically the contingency of the elaboration of law’s institutional form upon the inaccessible and unspeakable otherness posited to lie beyond the realm of presence. It does this by bringing together Cotter’s enigmatic comics work Nod Away, Legendre’s psychoanalytic jurisprudence of institutional foundations in God in the Mirror, and Lovecraft’s nominally fictional case studies of the limits of representation. In undertaking this analysis, Cotter’s work is read as an example of a horrific jurisprudence that seeks to progressively reformulate our relationship with the imagined beyond. Nod Away—and horrific jurisprudence as a project—thus provides a conceptual method through which the founding conditions of law’s institutional appearance can be accessed, examined, and opened to the potential for radical reformation.
Law, Technology and Humans, Volume 2, pp 1-3; https://doi.org/10.5204/lthj.1755

Abstract:
This introduction orientates the seven articles that comprise the ‘What is Real about Law and Technology Symposium’. This symposium was inspired by Bruno Latour’s and Giorgio Agamben’s 2018 books that seemingly respond to the election of Donald Trump, by reconceptualising the relation between the real and representation. It is suggested that the irresolvability of Being (that humans can only experience the real through culture) should ground a more nuanced location between constructivism and empiricism. How to think about and explore this, in relation to law and technology, is precisely the challenge to which the articles in this symposium respond.
Law, Technology and Humans, Volume 2, pp 185-197; https://doi.org/10.5204/lthj.1593

Abstract:
This paper uses actor-network theory (ANT) and Aristotelian virtue ethics to think with/of Wonder Woman as an assemblage of human and non-human actors clustered on a page. It also considers how the emerging assemblage that is Wonder Woman might be viewed as the embodiment of Aristotle’s ‘complete virtue’ or justice. As one of the ‘trinity’ of superheroes of Detective Comics (DC), which also include Superman and Batman, Wonder Woman was created to counter the sadism and tyranny of the Nazi threat during the 1930s and 1940s and has been continually published since 1941. Wonder Woman is a multidimensional icon and an exemplary model of a superhero with a different body and voice, who operates in a different way in the world. She is presented here as a case study to trace possible translations of Aristotle’s configurations of virtue and justice. Using ANT, we argue that Wonder Woman arises from an assemblage of actors that include an armoured swimsuit, a magic lasso, shiny bracelets and a star-emblazoned tiara. By problematising these technologies as actors that commonly invite objectification (the swimsuit) or subjugation (the ropes), this paper suggests possible divergent readings that reveal how virtue and justice can emerge within these relational networks. We test how the sexualised body depictions and overt bondage references in the Wonder Woman comics, and in particular, in our chosen story, George Pérez’s Wonder Woman: Destiny Calling, offer something bolder and more profound—a complex performance of justice. Additionally, this paper intimates the productive methodological powers of ANT in relation to the broader field of comics studies.
Law, Technology and Humans, Volume 2, pp 198-226; https://doi.org/10.5204/lthj.1656

Abstract:
This article draws together two trajectories of legal scholarship: the turn to the visual in legal studies and the emergence of the subfield of law and comics, or ‘graphic justice’. It does this via an analysis of superhero comics as fitting within a particular genealogy of the ius imaginum, or law of images. This is not to argue simply that superhero comics are dominated by narratives of law, justice and legality—they are—but rather that the very theatrical figure of the superhero and its encompassing of a dual persona is a presentation of a particular political theology of the image. The article analyses the way in which this political theology is rendered visible in Charles Soule’s Daredevil: Back in Black, highlighting the image of the superhero and its connection to both sovereignty and the biopolitics of personhood.
Sonja Schillings
Law, Technology and Humans, Volume 2, pp 120-132; https://doi.org/10.5204/lthj.1641

Abstract:
Pollution, this article suggests, challenges the fundamental structural premises of contemporary state institutions such as the law. These institutions are based on the premise of human exceptionalism via the construction of a human-nature divide. This divide only allows one point of connection between human and nature: the human ability to absorb nature as property. Such metaphorical understandings of absorption become a problem as soon as the physical human body is faced with a situation in which we constantly absorb pollution (e.g. nitrogen oxides, microplastic, ionizing radiation, but also other life forms such as airborne viruses). As a result, contemporary institutions are ill-equipped to deal with pollution as a central element of the contemporary human condition. This article suggests that comics are a model for rethinking these categorical issues productively and sustainably. By using visual elements, comics have already been able to reframe and recontextualize categorical premises such as the human-nature divide that otherwise tend to be reproduced in critical theory and the law. To make this point for the potential of a new categorical language that centrally draws on visual elements in text, the article uses two central examples from Japan and Germany: Osamu Tezuka's story "Space Snow Leopard" from the Astro Boy series, and Chlodwig Poth's short comic "Jörg the Limelight Hog."
Law, Technology and Humans, Volume 2, pp 81-96; https://doi.org/10.5204/lthj.v2i2.1437

Abstract:
The digital age has posed significant challenges for the governance of society. These challenges stem, in part, from the fact that many of the practices of governance arose in the pre-digital world. Foucault’s notion of ‘governmentality’ is a framework that can take account of the different sets of practices of governance. Comparing current practices with those highlighted by Miller and Rose’s ‘three families’ of governmentality suggests that twenty-first century governance operates as a new, fourth family. This research demonstrates this through an examination of aspects of the law—such as welfare and libel law—that have changed since the nineteenth century, with those changes mapping to the different families. In other words, the manner in which we, as legal subjects, have been constituted has changed, and will continue to change. As such, while specific practices such as fake news are seen to be problematic now, any reactions to them are historically contingent—and so the practices may not be seen to be an issue in a couple of decades time.
David S Caudill
Law, Technology and Humans, Volume 2, pp 4-21; https://doi.org/10.5204/lthj.v2i2.1413

Abstract:
The interdiscipline of science and technology studies (‘STS’) has been characterized by its descriptive analyses of the presumptions and practices of scientific communities, and by numerous theoretical internal debates over the proper framework of analysis of science. While STS has not been characterized by a powerful effect on law and government, both of which are consumers of scientific expertise, an opportunity arises for engagement in public policy disputes due to the willful ignorance regarding science in the Trump administration, and the negative effects of political agendas and conflicts of interest therein. The urgent need for reliable expertise in such political contexts is addressed in the so-called third wave of STS that is based on Harry Collins and Rob Evans’s innovative ‘architecture of expertise.’ Two recent book chapters, namely Darrin Durant’s essay on ignoring experts and Martin Weinel’s essay on counterfeit scientific controversies, serve as practical examples of third-wave theory. Bruno Latour, who was engaged in a debate with Collins (and others in STS) concerning their respective approaches during the 1990s, also recently addressed the need for expertise (particularly climate expertise) in government contexts. Nowadays, Collins and Latour both promote consensus expertise and identify its reliance (for its authority) on science as a trusted institution. This article compares the similarities (and acknowledges the differences) between Collins and Latour with respect to their pragmatic strategies, and concludes that notwithstanding internal debates, STS scholars should join Collins (with Evans) and Latour to look outward toward critique and correction of governments that ignore scientific expertise.
Francesco Contini
Law, Technology and Humans, Volume 2, pp 4-18; https://doi.org/10.5204/lthj.v2i1.1478

Abstract:
The paper connects the potentially disruptive effects of Artificial Intelligence (AI) deployment in the administration of justice to the pre-existing trajectories and consequences of court technology development. The theoretical framework combines Luhmann’s theory of technology with actor–network theory to analyse how the new digital environment affects judicial agency. Then, it explores law and technology dynamics to map out the conditions that make legal the use of technologies in judicial proceedings. The framework is applied to analyse ‘traditional’ digital technologies (simple online forms and large-scale e-justice platforms) and AI-based systems (speech-to-text and recidivism assessment). The case comparison shows similarities and dynamics triggered by AI and traditional technologies, as well as a radical difference. While system developers and owners remain accountable before the law for the functioning of traditional systems, with AI, such accountability is transferred to users. Judges—users in general—remain accountable for the consequences of their actions supported or suggested by systems that are opaque and autonomous. This contingency, if not adequately faced with new forms of accountability, restricts the areas in which AI can be used without hampering judicial integrity.
Kate Tubridy
Law, Technology and Humans, Volume 2, pp 135-151; https://doi.org/10.5204/lthj.v2i1.1497

Abstract:
This article explores the often fraught intersections between social media, fair trial principles and community engagement with high-profile crimes. Specifically, a detailed analysis is undertaken of the Facebook response to the arrest of Adrian Ernest Bayley for the murder of Ms Gillian (Jill) Meagher in Victoria, Australia in 2012. As one of the first Australian crimes to receive a significant social media response, this research provides empirical insights into the dynamic and evolving relationship between social media, the community and criminal trials. By drawing on a critical discourse analysis of over 3,000 comments on the R.I.P Jill Meagher Facebook page, this article identifies and critiques a ‘Discourse of Challenge’ in which digital communication enabled the reinterpretation of legal principles. Further, this article provides empirical insights into the meaning-making processes of Facebook discourses and focuses on how fair trial principles are contested on Facebook in novel and, at times, contradictory, ways.
Law, Technology and Humans, Volume 2, pp 19-32; https://doi.org/10.5204/lthj.v2i1.1477

Abstract:
The links between food, families and the law seem to be particularly strong in what concerns dietary issues, parental food choices and the best interests of the child. In such a framework, I will examine some recent decisions that have been pronounced by Italian courts having to decide disputes involving such questions in relation to alternative food choices. My claim, drawing on Canguilhem, is that some of these decisions seem to point towards an imposition to normalise food practices and familial behaviours: children and parents are to be educated towards food practices that are seen as in accord with social normativity (normal) and avoid those considered as deviant (pathological).
Benjamin Goh
Law, Technology and Humans, Volume 2, pp 124-134; https://doi.org/10.5204/lthj.v2i1.1480

Abstract:
This article suggests that media theory could lend some vocabularies with which to map the technical infrastructures of life. Focusing on the digital production of life, we read Marshall McLuhan’s concept of media alongside ‘Smithereens’, the second episode of the fifth instalment of the Netflix digital television series Black Mirror.
Law, Technology and Humans, Volume 2, pp 33-44; https://doi.org/10.5204/lthj.v2i1.1476

Abstract:
In 2017, 25 young Colombians, aged 15 to 25, filed the first climate change and future generations lawsuit in Latin America (the Amazon case). Assisted by the organisation Dejusticia, the young plaintiffs filed an accion de tutela—a special mechanism under the Colombian Constitution that allows individuals to demand the protection of their fundamental rights. The plaintiffs argued that the current deforestation rates and their destructive consequences were violating their future right to a healthy environment. Remarkably, the Supreme Court of Colombia, in which the action was filed, ruled in favour of the plaintiffs, granting their petition and guaranteeing their right to enjoy a healthy environment, as well as their future rights to life, health, food and water. To enforce its judgment, the Court ordered that the Colombian Government formulate an action plan and an intergenerational pact to protect the Amazon. Most importantly, the court went beyond the grounds raised by the plaintiffs and recognised the Amazon rainforest as a subject of rights. Located within a growing network of constitutional, legislative and judicial initiatives in a growing number of jurisdictions, the Amazon case is but one example of the emergence of a novel ecological jurisprudence that is emerging around the globe. The Amazon case is particularly emblematic, as it reveals a profound ontological shift among younger generations, for whom a purely anthropocentric worldview appears to be increasingly representative of an untenable sense of alienation. The Amazon case also creates hope for a world in which an ecological jurisprudence is at the core of the current intergenerational discourse, the focus of which appears to be the global reconceptualisation of our collective self for generations to come.
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