There is no shortage of opinions on generative artificial intelligence (Gen AI) and its uses in the legal space. If you are a lawyer, it is probably dominating your office meetings and working dinner conversations. Many firms are taking a cautious ...
“AI is an amazing legal assistant that will cut out all the boring work and make you three times as efficient.”
“AI is a copyright thief that will take your work and reproduce it without attribution or remuneration.”
“AI produces great value for your clients.”
“AI gets things wrong and will make you a global laughing stock if you cite imaginary cases in your court pleadings.”
Sounds familiar? There is no shortage of opinions on generative artificial intelligence (Gen AI) and its uses in the legal space. If you are a lawyer, it is probably dominating your office meetings and working dinner conversations. Many firms are taking a cautious approach but, with legal technology providers pouring hundreds of millions of pounds into developing ever faster, more accurate tools, it feels only a matter of time before the use of Gen AI is an integral part of most lawyers’ working days. That has interesting, if uncertain, implications for how young lawyers learn their craft and the kind of roles available to legal professionals, as well as for the delivery of justice.
There is something else that merits attention in the AI debate: what is the value of human thinking about the law? Law doesn’t exist in a vacuum. It is shaped and applied in a social, political, and economic reality created by humans. It is a deeply human endeavour. How can the law evolve if algorithms use statistics to apply legislation and precedent to the facts and produce pleadings—or even decisions—based on the most probable outcome? What is the role of lawyers and judges if their work can be mined by a large language model (LLM), which can then create its own legal advice, pleadings, and judgments, as well as legal scholarship, for anyone who knows how to write the right prompts? What does it mean to be a good lawyer when AI can do your work in seconds—for free?
We are not quite in that world yet but it is not a far-fetched scenario. Numerous tests have shown that the differences between student- or AI-written essays can be imperceptible even to experienced lecturers. Some of the steps to be taken are deeply practical: establish the right guardrails to stop the sharing of protected information with LLMs that will ingest that information and reuse it; train lawyers and legal scholars on how to use AI responsibly and to always check the source material; and press tech companies to be transparent about how their LLMs are trained and users’ data and privacy are protected. Ensuring LLMs are free from bias is particularly important. No single lawyer can achieve this but, collectively, lawyers’ advocacy for responsible, safe AI will make a difference.
Perhaps even more important is this: among everything AI promises, let us not lose sight of the importance of human thinking and creativity to the law. Sometimes a completely new line of argument or a highly creative interpretation is required to adapt the law to changing circumstances or shifts in society. AI cannot, or perhaps should not, do this. The best thinking is often slow, maturing over time as a lawyer or judge mulls a case over. Or it emerges in conversations with others, sometimes in unexpected ways. It is often sparked by something you read. Legal publishing has a crucial role here: helping to disseminate the best legal analysis and commentary across the globe and create a permanent record of every book, article, and short form piece. Being a good lawyer in an AI world involves placing enduring value on the quality and originality of human thought and scholarship.
You may have wondered why so many publishers are announcing pilot projects on open access (OA) publishing. The theme of Open Access Week (October 21-27), Community over Commercialization, hints at the reason: publishers want to engage with the community’s request for new models but can’t afford to make a loss on OA (and shouldn’t be expected to). So, the innovation challenge is taken up by means of pilots: experiments that can be reviewed and then either rejected, repeated, or adapted.
Two Innovative Pilots
This year OUP is trialling two different OA funding models. Up until now OUP’s gold OA publishing outside of journals has largely been funded by processing charges for individual books, paid for by research funders or individual institutions. The two new initiatives look to fund OA on a much larger scale via diamond OA models that OUP has adopted and refined:
Oxford Scholarship Online (OSO): Commit to Open seeks funding from the academic library community for the OA publication of 30 participating books. While other publishers have launched similar initiatives, the novelty here is our aim for radical openness:
the 30 titles are announced up front.
we have no minimum commitment threshold for publishing a book under an OA licence.
progress will be publicized monthly.
Max Planck Encyclopedias of International Law, the market-leading international law resource published by OUP, will be among the first non-journal publications to adopt the Subscribe to Open model (S2O). A range of publishers have tried out S2O with journals, where current subscribers are asked to continue to pay each year so that existing content can be made free to all, and new content is published under an OA license. So long as a high enough proportion of existing subscribers renew, the paywall is removed for a year, and then the process repeats the following year.
Impact on the Community
For OUP, finding ways to expand our OA offering is a perfect fit with our mission. It helps us to seize the opportunity that digital distribution offers for the unlimited dissemination of scholarship. That said, we are also acutely aware that paid-for OA can present risks of lower quality thresholds, and that there is a perception that OA books in particular are in some sense lesser than non-OA books.
For that reason, each book in our Commit to Open program was carefully selected for this pilot. Each went through the same rigorous peer- and internal -review process and was slated for regular sale as part of OSO before being pulled into Commit to Open. All of them would fare very well as commercial projects but we are excited to bring these works to an even broader community of readers through the program, and we look forward to seeing how they contribute to this developing model. Another key community element of the initiative is the inclusion of authors and topics that still struggle to attract funding for OA publishing: a “Support New Voices” collection by authors who are within six years of their first academic appointment, and a Humanities collection.
In the case of the Encyclopedias, they are already the most trusted source in the field. The importance for the community here lies in the nature of the content. International law deals with highly topical issues of global justice and equality—knowledge of it has the potential to benefit students, scholars, civil society activists, and practitioners everywhere. To make such a trusted resource freely available to the whole world would represent a significant public good.
Sustainability
What determines whether a pilot becomes a program? As mentioned, we use pilots to answer questions of sustainability and replication. In the case of Commit to Open, it is very labour-intensive to do it the way we have chosen e.g. agreeing all of the titles upfront, and the manual processes needed to implement a novel funding model. If the pilot is successful, we will need to work out whether it is sustainable to carry it out again, whether to expand it, and what permanent systems need to be put in place to support the program.
With Subscribe to Open the challenge is a different one. Operationally it is simplicity itself—absolutely nothing changes other than that the paywall is removed, so long as renewals hold up. But therein lies the risk: the (understandable) temptation for some subscribers to wait and see and take advantage of free access.
But those are questions for further down the line. Our immediate concern is getting engagement from the community and hearing responses to these initiatives, something we are very much hoping to achieve in OA Week.
You can find out more about Oxford Scholarship Online (OSO): Commit to Open in our upcoming librarian webinar on Tuesday, November 26, 2024. Sign up here.
Restitutionary claims are pertinent to our daily interactions and commercial dealings. These claims arise in many scenarios including: improperly collected taxes, mistaken payments, disputes between cohabitants, payments on another person’s debt, mistaken improvements on another person’s property, and provision of unrequested services.
Originally coined by one of the leading private law scholars of the 20th century, Oxford Law Professor Peter Birks (1940-2002), the law of unjust enrichment provides a unifying framework for understanding the nature of all restitutionary claims, revealing a single ‘skeleton’ beneath. Stated in these terms, the law of unjust enrichment is a distinct ground of liability, alongside such classical private law categories as property, contract, torts, and equity. By situating previously disorganised restitutionary claims within one normative thread, unjust enrichment makes an argument about the past, present, and future of private law.
Professor Peter Birks stated that the following four elements constitute unjust enrichment’s liability formula:
A defendant’s enrichment—the claimant should demonstrate that the defendant received some ‘benefit’ or ‘value’;
at the plaintiff’s expense—the claimant should demonstrate that the enrichment occurred at their expense, establishing a causal link between the parties;
the enrichment is unjust—the claimant should demonstrate that the enrichment falls into one of the categories previously recognised by the courts, such as mistake, duress, undue influence, or frustrated contract;
defences—if the claimant proves the first three elements of the formula, then the defendant is able to claim the existence of one (or more) of the defences previously recognised by the courts, which could deny restitution.
Consider, for example, the case of mistaken payments where a claimant mistakenly transfers money to a defendant. The defendant receives money, meaning they are ‘enriched’ at the claimant’s expense. The case falls within one of the previously established categories—mistakes. It is open to the defendant to claim one of the defences. For example, the defendant can demonstrate that they spent the money in good faith on purchasing certain goods; something they would not have done without the mistaken transfer.
The four steps formula has been adopted in the House of Lords in Lipkin Gorman (1992) and then followed to varying degrees in other common law jurisdictions, such as Singapore, Hong Kong, and New Zealand. The four-stage formula has also heavily informed Canadian jurisprudence. Unjust enrichment has a different history in Australia where it has fallen in and out of favour. Yet, the future of unjust enrichment could not be brighter, not just in the UK, but across a wide range of the Commonwealth jurisdictions.
However, despite the continued support for unjust enrichment, there have always been academic critics of the idea. This now includes those who once supported the idea. The recent monograph by Oxford Law Professor Robert Stevens has challenged each one of the constitutive elements of the formula. Stevens demonstrates the significant difficulty that the UK courts have faced since Lipkin Gorman. Some elements and concepts of the formula (such as the concept of ‘value’ and the ‘at the plaintiff’s expense’ element) are intolerably vague and flexible, leading to unjustifiable results and implausible unpredictability.
Most troublingly, Stevens shows that a careful review of many restitutionary claims reveals them to be at odds with the most important element of Birks’ formula—the defendant’s enrichment. An examination of the courts’ reasoning over the centuries suggests that the courts have traditionally focused on the nature of a particular transaction between parties, rather than on the consequences of it. The question of whether given plaintiff was enriched, suffered a loss, or remained the same as a result of a transaction has been irrelevant to the question of finding a defendant liable in restitution. In other words, restitutionary claims appear to epitomise a law of defective transactions, rather than a law of a defendant’s enrichment. Stevens’ point is brutally simple: unjust enrichment doctrinally collapses.
Furthermore, contemporary scholars across the world have united in their opposition to unjust enrichment; the sceptics coming from such jurisdictions as Australia, New Zealand, Hong Kong, Canada, USA, Ireland, and India have expressed their concerns. The united manifesto says that a deep understanding of unjust enrichment requires an examination of its core claims from different angles. This understanding is critical for the future development of private law and private law categories, and the consideration of how these can serve the needs of society in the most just, fair, and predictable way.
Accordingly, our work Rethinking Unjust Enrichment has provided a comprehensive outlook of unjust enrichment from the following multi-layered, interdisciplinary perspectives: doctrine, history, theory, and sociology. For instance, it has been argued that the doctrinal fallacies of unjust enrichment are not limited to the UK, but pertinent to other jurisdictions as well. Historically, it has been doubted whether unjust enrichment was present in the reasoning of common law judges. The very idea that a defendant should be found liable due to their enrichment appears to be problematic through the conceptual lens of justice and fairness in private law. Finally, sociologically, it has been suggested that the remarkable success of unjust enrichment should be attributed more to the identity of the reformers rather than to the doctrinal attractiveness of the four-stage formula.
Unjust enrichment stands at a crossroad. The lessons of the recent years perhaps demonstrate two things: (1) the centrality of restitutionary claims and (2) the heated debate between supporters and opponents of the idea of unjust enrichment as a unifying basis of those claims. A productive dialogue between the two rival camps should be encouraged to contemplate together how we should understand the past, present, and future of private law.
Over 100,000 individuals acted as secret informers reporting to state security police in Czechoslovakia during the Communist years. The contents of all their reports were saved in extensive police files. Similar dynamics occurred throughout all of Eastern Europe.
The intricacies of informers, the mist of their secrets and muck of their revelations, has even inspired novelists and song writers. For example:
We’d like to know a little bit about you for our files We’d like to help you learn to help yourself Hide it in a hiding place where no one ever goes Put it in your pantry with your cupcakes
Simon and Garfunkel, ‘Mrs. Robinson’ (1968) from the album Bookends
‘[O]ur only immortality is in the police files.’
Milan Kundera, The Book of Laughter and Forgetting (Aaron Asher tr, Faber & Faber 1996)
Czechoslovak Security Forces Archive, Prague, Czech Republic (photo taken by the authors)
Why do people inform on others—including neighbors, family members, co-workers, friends, lovers—to the secret police in repressive societies? Once repression abates, and regimes democratize, how should law and political transition approach erstwhile informers?
Emotions are among key drivers that motor people to inform on others. Four emotions in particular should be noted:
resentment (getting even and settling scores)
desire (getting ahead and grabbing things)
allegiance (to an ideology, to the state, to a vision)
fear (of the state, of the police, of being exposed)
Informing is a tool of social navigation: in the words of Simon and Garfunkel, as a way for people to help themselves. Informers, for the most part, are marginal ordinary folks who are victimized by the state and, in turn, victimize others.
Informers are not limited to one place in time; they are not boxed into post-Communist Central and Eastern Europe. Indeed, they are everywhere, including very close to home. The only part of the United Kingdom to be occupied by the Nazis—the Channel Islands—was chock-full of informers and collaborators, along with resisters, during World War II, and all are featured in a local museum in Jersey. No state or social movement—no matter how virtuous or vile, how maudlin, Machiavellian, or magnificent—can operate without informers. As early as one month into the Russia-Ukraine war, thousands of Ukrainians faced prosecution for collaborating with, and supplying information to, the invading Russians. Indeed, armed with our iPhones, we are all recorders, informers, and cancellers now. We are all whistleblowers, for better or for worse.
What should one do with informers after the repressive regime falls? In post-Communist Czech Republic, informers were largely scapegoated and ostracized. They were purged from public offices and jobs. They were openly mocked. Politically, this was an easy task because, throughout history and across cultures, informers are largely seen as sniveling rats, moles, snitches, turn-coats, and finks. These words used to describe informers reveal near universal disdain.
What is more, the Czechoslovak Communist secret police files—a major data source—were opened to the public to peruse and review. These files are even being digitized. Their subjects thereby became immortalized, to draw from Kundera. As a result, the life-stories of informers became gossipy grist for the public mill. But so too did all the scurrilous and embarrassing details of what they reported about the lives of others—namely, individuals we call the informed-upons—such as affairs, outbursts, addictions, indiscretions, inanities, awkwardness, incompetence, petty crimes, dysfunctions, and health woes.
Transparency and clarity measures have been mainstreamed as part of transitional justice. The United Nations has declared March 24th as the international day for the right to the truth. That said, our findings cast some doubt upon the unadulterated nature of this embrace. We believe there may be cause to pause the pursuit of ‘the truth’ at all costs. The right to the truth can lead to grotesque privacy invasions. Ultimately, in the Czech Republic, the scapegoating of informers delivered comfort to many people otherwise complicit in Communist dictatorship while the opening of the files visited cruelties upon many others.
The right to the truth can lead to grotesque privacy invasions
In 2025, collaborator archives in the Netherlands will go public after having been shuttered for 75 years. These archives contain the files of a special court, the Bijzondere Rechtspleging (BR). The BR was established after WWII to prosecute alleged Nazi collaborators. The BR investigated over 300,000 individuals; it tried 65,000. Some of those tried were executed, some imprisoned, and others stripped of their civil rights. The BR archive, however, implicates a much larger array of individuals, including persons whose investigations were interrupted, stopped, never started, and those who were falsely accused. Understandably, opening these archives to the public has triggered controversy, just as it did in the Czech Republic. One big difference in the Dutch case is that almost all the collaborators have passed away. But they have families, children, and grandchildren. The dead, moreover, can never explain, clarify, apologize, cry, or argue.
Informing—driven by basic human emotions we identify as resentment, desire, allegiance, and fear—sits uneasily with many transitional justice measures. Our work offers a new lens—rooted in dignity—through which to manage this controversy, alleviate this unease, and ensure that transitional justice is more ‘emotionally intelligent’, respects fairness, and does not succumb to politics.
I, like many others, came to the law school because I heard justice and freedom and peace in its name. For many, like me, the sojourn into the study of law is triggered by some event or situation. For me it was the Rwandan genocide of 1994. In April of 1994 nearly a million people were brutally murdered in that country. Yet, the international community was unwilling or unable to act, despite the fact that the killing was covered by international media. The hopelessness was overwhelming. And I wondered and hoped that the study of law would give me answers to how we stop endless suffering and devastation. This experience of coming to the law for hope is replicated across the world. For some, their triggering event is something happening far away to people they do not know and will never meet. For others, it is something more personal but no less earth-shattering. Something happening to them, a family member, or a friend—extreme poverty, domestic violence, alienation, police brutality, forced migration etc. Many people continue to come to the law school for answers. For me, like numerous others, the promises of the law school did not deliver exactly as expected. Especially for students who have experienced racism, students who are struggling to understand its persistence, students born into the shadow of empire, students for whom the imminence of environmental devastation is immediate and unyielding… decolonisation has provided some solace to their unfulfilled hopes.
What is decolonisation?
Decolonisation can be described as a collection of repudiatory and resistant responses to the multifaceted inauguration of colonial ways of thinking, being, and doing in the world—this inauguration is often dated to the fifteenth century. These colonial logics rely on unequal ways of thinking of the body, space, and time that have helped develop structures reliant on racism, classism, sexism, overexploitation, and xenophobia among others. As such, these systems of thought have helped produce, inter alia, racial injustice, extreme inequality, and environmental devastation, through the manufacture of race as a hierarchy of humanity, the kidnap and enslavement of African peoples, as well as the territorial commodification and occupation of land across the globe. Decolonisation describes a set of immediate and continuing responses developed by indigenous, racialised, and colonised peoples to resist these multifaceted methods of imperialism. These responses have come in different forms—independence demands, outright resistance, calls for sovereignty, and the restoration of lost knowledges etc. As such, we should understand that decolonisation is not one thing, but a set of context-dependent strategies, adopted by peoples resisting all forms of enduring colonisation—strategies specifically relevant to the particular ways in which colonial ideologies manifest themselves in those particular places. In other words, decolonisation, in practice, has often involved indigenous peoples, colonised peoples, racialised peoples, and their allies taking up the tools that they have, to resist the specific forms of oppression that they experience, in the places where they experience it, at the time they experience it. For them, decolonisation is a tool to make their futures possible, liveable, and flourishing.
How do we as agents of law use decolonisation as a tool to make all our futures possible, liveable, and flourishing?
Can we use this decolonisation in the Law School?
Decolonisation as I have described it here has had a long history—inside and outside the classroom. In our present context, the demand that #RhodesMustFall, which emerged at the University of Cape Town (UCT) in early 2015 and quickly spread across South Africa and beyond, found fertile ground with students and staff across the world grappling with the present manifestations of empire’s long shadow. Very often the fruits of this sprouted in law schools under the mandate “decolonise the law school.” These demands have also been taken up by many law teachersacross the world as they seek to unpack the afterlives of colonialism in their work. For me, this has involved the design on a completely new unit, called “Law and Race.” In that unit, we use multidisciplinary methods to present a wide array of texts, music, films, histories, and knowledges to students to get them to reflect on how the history of colonialism has an impact on the nature of the law they study. In this unit, we consider various aspects of both the history of the British Empire and the role of law as means of attaining justice, as well as being complicit in producing the situations from which justice is being sought. We also consider what the students’ role is in the world as people who will soon be in a possession of a law degree. Threatened as we are by the dangers of racism, inequality, and environmental devastation, we unpack what they can do in response to these perils. I want my students to take a look at the history of law and the history of the world and to consider what this history means for how we understand the world and repair current harms. What does this look into the past and the present mean for the future? How do we as agents of law use decolonisation as a tool to make all our futures possible, liveable, and flourishing? My proposition is that we need to change the lens through which we understand the present, by looking to the past, so we can craft better futures for us all and for the earth upon which we at present just precariously survive. To survive at all, we need new ways of thinking, being and doing in the world—including in the classroom.
Where can decolonisation take us?
It is important to remember that decolonisation is not its own goal, but what we hope to achieve with it is. For ourselves and our students, decolonisation may provide us with the vocabulary and framework we need to develop tools to help us craft a discipline that will be able to rescue the planet from the perdition of racial injustice, extreme inequality, and environmental disaster. This challenge requires creativity, imagination, innovation, and courage. As such, I suggest that rather than asking formulaic questions like, “how do we decolonise the curriculum?”, we must ask more creative ones. For example: “What does it mean to dream of new anticolonial worlds from within the law school?” This prevents us from applying cosmetic changes to the curriculum with no real change to the structure and role of law schools or to the situations that bring our students to the law school. In this endeavour, we have a responsibility to use all the tools at our disposal to consider the ways in which our discipline can bring an end to the perils that continue to put our planet and all its inhabitants in jeopardy. This is a task that we can carry out now and hand over to our students—while we are still here. Survival is being threatened on a planetary scale through, among other things, the combined forces of global inequality, racial violence, and climate change. My hope is that our joint work on decolonisation and in innovative legal pedagogy will contribute to the fulfilment of those dreams.
