Coming Soon

On the Routledge website, a first announcement of my forthcoming (i.e. still being written) book, Medium Law (to be published late in 2016). While I am not expecting George RR Martin levels of encouragement to finish it, it is equal parts nice and intimidating to start a new year with an ISBN…


After the Coalition

Last March, I wrote a blog post (itself based on a speech given at the launch of the new Information Law & Policy Centre at the Institute for Advanced Legal Studies) on what happened in the field of IT law over the five years of the Conservative / Liberal Democrat coalition government in the UK. An extended version of that speech and post has now been published in the journal SCRIPTed, and can be found here:

Daithí Mac Síthigh, ‘Computers and the Coalition: Legislation on Law and Information Technology, 2010-2015’ (2015) 12 SCRIPTed 141

It’s not easy being green

The UK Government’s ‘Fulfilling Our Potential’ green paper on higher education (subtitle: “Teaching Excellence, Social Mobility and Student Choice”) was published today (not yet on official site, but PDF here). Of course, there is excellent coverage in places such as the Times Higher and WonkHE. Here are some initial impressions on my part (breakfast reading, so excuse errors). Bear in mind that my current admin role is on the research side of the house – and I have not kept up to date with developments in national HE teaching policy in recent years; working in Scotland was a part of that, for sure, and it’s worth remembering that today’s paper is what the Government has to say in respect of England in most cases. In particular, I am not very familiar with the latest developments for ‘alternative’ providers, etc, so haven’t really considered those aspects of the paper.

In no particular order:

  • There is, as expected, some discussion of data obtained through the National Student Survey (NSS), including a proposal that it be one of the three (existing) data sources for teaching excellence. Now, the main thing the NSS tries to measure is satisfaction. That’s something to be interested in, for sure. What I don’t yet see is the link between satisfaction and quality. To take one (disturbing) example, evidence from the US suggests that there may be a relationship between student surveys/evaluations and particular forms of discriminations (e.g. gender, race) (see here, and here). Of course, student evaluations can be a useful part of a conversation on teaching. And, if a group of students feels dissatisfied with their teacher on gender grounds, that is a scientifically interesting finding for all sorts of reasons. What it isn’t is anything meaningful about the quality of the teaching delivered by that teacher.
  • Similarly, we’re asked whether data on careers (the Destinations survey) and retention should be used – these are the other two ‘existing’ sources proposed to be used, alongside institutional evidence and new data. Destinations is tricky in some disciplines (like mine) and using retention measurements might mean a perverse incentive to do everything to avoid students failing, at the cost of academic standards.
  • The report identifies competition for attention and resources between teaching and research within institutions. (This is primarily attributed to Graham Gibbs’ work). In my view, this section could have been greatly strengthened with a discussion of the relationship between research and teaching – particularly positive dimensions (e.g. the sometimes-mocked but potentially very thoughtful concept of research-led teaching). Ironically, the report ends up reinforcing the separation.
  • As expected, and just as in consumer policy (a clear template for the current Government approach to higher education governance), there is a great focus on the provision of information. Better information would be useful, but is not an answer in its own right. We know this from research on consumer law itself, e.g. Geraint Howells’ work (where there has been a similar obsession with how homo economicus will make better decisions and drive competitive markets if only standards and requirements are replaced with disclosure…), and we also need to know more about the relationship between information and quality (if 50% of staff in university X have a teaching qualification, is that important because students say they want to know that or because it affects the quality of teaching?)
  • Rather comically, after pages and pages on the importance of information and transparency, there’s a suggestion that requiring publicly funded institutions to comply with the Freedom of Information Act might need deregulation (because ‘private’ providers aren’t covered – not truly private given the indirect state support through the loan system of course). The idea of levelling the field through extending the FOI Act to all providers seems genuinely not to have occurred to them, despite the love affair with information.
  • I didn’t expect to see discussion of GPA rather than classic classification. It’s in gentle terms (not to be part of the TEF in the first instance), although it is something that might be welcome (personally I would favour it). The problem for the current approach to HE policy is that something like this (which if it is to work requires coordination) isn’t being discussed in a coordinated way. It’s far too easy for a Government to claim things are student-led and based on institutional autonomy while still trying to achieve its preferred results.
  • One of the ideas being floated as a new measurement of teaching excellence is ‘learning gain’. This is a significant part of quality discussions in other sectors e.g. post-primary (GCSE and A Level). The difference, though, is that universities set their own exams and marking standards. So, it places a lot of pressure on external examiners and QA processes, to guard against learning gain being demonstrated through grade inflation (which the report highlights as a problem, separately). (By the way, what about institutions already admitting students with very high school-leaving performance – zero gain?)
  • Whatever happened to the poor Office of the Independent Adjudicator? Its work has been hugely significant, not just in individual cases but in prompting universities to revisit their policies and procedures (sometimes long overdue). But, there’s discussion of Which?’s work on HE conditions/contracts (which I thought much less important), and nothing on the OIAHE. Odd.
  • The discussion of research (policy and funding) is quite thin. There is a broad commitment to dual support (i.e. a mix of funding for institutions based on past quality, and funding for specific projects), but not much detail on how this is to be governed. We see mention of the forthcoming review of the research councils, as well as a couple of points on the REF (pretty much confirming the next one will happen but not until 2021), and  some harsh words on internal ‘mock REFs’ and similar exercises going too far. That last one is an important point, although specific evidence or advice would have been more useful. (I know, I know, it’s only a Green Paper, but there’s no reluctance to supply evidence or detail in some other parts – it does seem like an afterthought mixed with gossip and gut feeling!)

Why do you do?

Why Do We Do What We Do? Comparing Legal Methods in Five Law Schools Through Survey Evidence

Here’s a chapter by Mathias Siems (web | blog | twitter) (and me!) on legal research methods. It follows on from our 2012 piece ‘Mapping Legal Research‘, and will appear in a forthcoming edited collection. The companion website (with our data) is here, and you can download the paper from SSRN here. And the abstract:

For the purpose of this paper we conducted an empirical survey of academic staff at two German law schools (Heinrich-Heine University Düsseldorf; Bucerius Law School), two UK ones (University of East Anglia; University of Edinburgh) and one Irish one (Trinity College Dublin). We asked the legal scholars to indicate to what extent they identify with legal research as part of humanities, as part of social sciences, and as akin to the analysis of law in legal practice. In this paper we present and discuss our results, using tools of both classical and compositional statistics. We also relate our data to contextual information about these legal scholars (e.g., training, career stage) as well as institutional and country differences. Our main general finding is that scholars of the German law schools have a relatively strong preference for practical legal research and scholars of the UK and Irish law schools a relatively strong preference for law as humanities. Some of our specific findings are that international legal scholars tend to be closer to the social sciences and that younger scholars and private lawyers tend to be closer to practical legal research. We also observe some signs of convergence since, across the five law schools, scholars told us that they tend to use practical legal research methods less often, and social sciences methods more often, than ten years ago.

Because the computer speaks English?

I’m pleased to say that a paper of mine, first presented in the Soillse seminar series in Edinburgh last year, has now been published in the Journal of Media Law. An open access version (post-peer review) is available for download here, and if you or your institution subscribe to the journal, the final version is found here.

The abstract is below. In essence, what I was trying to do here was (a) identify some of the issues concerning language rights and language policy in respect of the media in the context of changes in how media technologies are used, and (b) propose some approaches and tools that can inform a more thorough response to those issues. Much of the evidence in the paper is taken from periodic reports under the European Charter for Regional or Minority Languages, although in the later sections I set some (tentative) theoretical points on the convergence of a number of ways of thinking – especially what I am thinking of as a digital linguistic landscape (in the line of my interest in physical and virtual spaces). I will have more to say on this in later papers.

Oh, and the title is the often-quoted remark attributed to a President of Kyrgyzstan (Askar Akayev), quoting his son on why he wanted to learn English. Al Gore told the story in a speech about the Internet in 1994, although I encountered it in Goldsmith & Wu’s Who Controls The Internet? a decade later, and it is frequently cited in work on multilingualism and technology.

Because the computer speaks English? Language rights and digital media
(2015) 7(1) Journal of Media Law
Open Access link
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Legal measures in support of minority language media often take for granted particular models of broadcasting, but are these models valid? How flexible are key instruments such as the European Charter for Regional or Minority Languages? After assessing the applicability of existing law on minority languages to various media platforms and services, it is argued that combining approaches from cyberlaw with sociolinguistic themes of the linguistic landscape and functional completeness can provide a more elaborate account of minority language rights and policy in the context of technological development.

For whom the bell trolls

I’ve written a short piece for The Conversation on the Harmful Digital Communications Act 2015, legislation recently adopted in New Zealand.

Tackling the trolls: how New Zealand raised the bar with its new laws

I’ve had half an eye on this proposal for a while. I originally came across it through following the progress of the New Zealand Law Commission’s project on new media regulation (of which this was an offshoot), and before that its huge privacy project, which also affected the new law and the NZLC’s draft Bill.

My goal in the piece isn’t to justify or criticise the HDCA (there’s more than enough out there on the latter in particular, e.g. on sites like BoingBoing). Instead, I’m particularly interested in the tools that NZ chose – and how they are trying to tackle the issues through a number of different remedies (and indeed doctrines).  The NZLC’s original idea for a specialist Tribunal didn’t survive, but that of an agency to do mediation etc, along with the potential for court orders, did.  Also notable is the setting out of principles for digital communication.  Not saying that I’d endorse them as a comprehensive statement, but they are intriguing.  Above all, the presentation of a package gives a great opportunity to look at how it all works out in practice – and, as I say late in the piece, something other places might think about (e.g. the initial moves in the Seanad in Ireland, and what will come from the Law Reform Commission in due course).

I also enjoyed reading through the legislative debates on the HDCA (even the one that took place . Obviously, I didn’t get to put much of that in the final short article, but even the split within the Green Party (the third party in the Parliament), and the way in which legislators of all parties referred to particular problems and scandals, was worthwhile reading. Also interesting, if not entirely novel, was the set of submissions from various parts of the tech industry.  On that score, the intermediary provisions are also worth watching. The result is something not a million miles from the Defamation Act 2013 provisions for England and Wales – a bespoke notice and takedown regime with an emphasis on passing on complaints to authors (and, consequentially, favouring non-anonymous postings). In contrast with the DA, though, much of the detail is in the legislation rather than the statutory instruments!