Professor Profiles: Associate Professor Tatiana Cutts

By Caiti Galwey

Tatiana joined MLS from the London School of Economics in 2020. She received her D.Phil, BCL and LLB from the University of Oxford. Her research spans law and technology, private law and legal theory. She has conducted extensive public-facing work on blockchain technology and cryptoassets and is currently writing a book, Artificial Justice, on the relationship between algorithmic and human decision-making in matters of justice.

Associate Professor Tatiana Cutts

Tatiana spoke with Caiti Galwey for Purely Dicta to discuss her career in academia, the relationships between smart contracts and consumers, and the issues surrounding technological advancements in property, copyright and the judicial system.

What was your university experience?

My university experience was something of a mixed bag. I came from a rural background, and found the transition to (what was then) a relatively class-stratified Oxford quite difficult. It wasn’t until my second year – when I was lucky enough to be taught by the (now) Justice James Edelman for Trusts – that I discovered my love for academic law, and confidence to explore my own ideas. I remember Jamie taking a red pen to my essay and crossing out every single quote: “I want to know what *you* think”, he said. And that was something of a revelation to me!

But it still wasn’t a smooth road for me; I had to suspend my studies for a year, as I experienced a major psychotic episode in the lead-up to my finals. I spent two months in hospital – and a great deal of time thereafter recovering. Going back to university is still the hardest thing I’ve ever done; I felt ashamed, lonely and not a little afraid. It was the catalyst for founding the “Mind Your Head” campaign at Oxford; we wanted to encourage students to speak openly about their experiences of mental illness, to help alleviate the stigma. Those feelings of isolation and shame are both very common and wholly misplaced; they stem from a pattern of silence around topics that ought to be part of our everyday conversations. I still feel very strongly about encouraging these conversations and helping to make mental wellbeing and mental ill-health part of our ordinary discourse.

It took me four years to complete my degree, and that time was something of a blessing; it allowed me to pause and think seriously about pursuing further study in lieu of taking up my training contract offer. I would have been a thoroughly dreadful and ultimately miserable solicitor!

What was the catalyst for your interest in legal theory?

I think it’s a natural regression: you start asking questions about why some doctrine is or ought to be conceptualised in a particular way, or what the best answer to a particular question is. If you’re naturally curious, that road always leads eventually to legal theory.

What challenges have you come across teaching in Australia?

Only the challenges associated with trying to move across the world during a global pandemic – but we’ve all been affected by Covid-19, and I’m lucky that my family are all in good health. Christmas in hotel quarantine wasn’t all that bad! And needless to say, Melbourne Law School is a wonderful place to teach and research.

Teaching Excellence Awards at LSE

What issues lie at the intersection of artificial intelligence and smart contracts? What correction mechanisms are available for errors committed in this “grey area” of law?

There are several – and it really depends on what you mean by “smart contract”. If what we mean is computers corresponding directly to generate contract terms (rather than merely implementing contracts that were initially formed by humans, and human dialogue), then issues can arise concerning contract interpretation – and, of course, what we do about problems in contract formation, which can be very difficult both to detect and fix.

Do you think the advantages of smart contracts and their enforceability present a way of undermining reliance on traditional contracts?

It depends on what you mean by the term “smart contract”. In some spheres (those associated with cryptocurrency) the term really means an asset transfer that takes place within a blind consensus protocol such as the Bitcoin blockchain. And in those spheres, the fact that you cannot easily amend or unwind a transfer once the relevant instruction has been issued (and the lack of middlemen) can be a serious problem for consumer protection. In other spheres, the term can mean something as broad as digitally generated contracts. Those, of course, have advantages of efficiency, but they’re simply one manifestation of contracts with which we are familiar.

You’ve written about how smart contracts are antithetical to a purported relationship of trust between companies and consumers. What do you hope will be done to protect consumers in the future of commerce?

I very much hope consumers will be given the tools to make informed choices about the nature and content of the contract terms that are currently thrust upon them – even in the context of boilerplate contracts, and unilateral variation. In lieu of that dream being made reality, I’d take informed choices about the way in which our data is used!

Non-fungible tokens are supposedly a new way for creatives to get paid. Just last month an NFT-based artwork sold for millions. Could you speak to how NFT’s bypass contemporary markets? What might be the legal benefits of operating within a decentralised cryptocurrency marketplace?

I find NFTs quite frustrating. People are desperate to turn the digital realm into something that resembles the physical – into finite resources that can be exclusively owned. But do you really own that tweet that is represented by an NFT? What can you do with the underlying asset? I’m much more in favour of embracing the benefits of collective, sharing activity in the digital realm – so long as consumers have meaningful power over their contributions. “Tipping” online is a great manifestation of this. 

WMD’s or “weapons of math destruction”(Cathy O’Neil) are increasingly being employed to automate systems of governance and decision-making and are often used in ways that reinforce pre-existing inequality. What would a similar use of algorithms mean for legal decision-making?

Many such systems pre-empt legal decision-making; we never get to the (private) legal questions, because the system itself dictates the consequences in a manner that is ultimately unavoidable. What matters for such systems is that the governance design is conducted properly – because we cannot avoid problems of coordination and political decision-making through mathematics, however hard we try!

How would you summarize the immediate future of technology and its interaction with law?

I can summarise my hope, which has been a theme throughout this: empowering consumers both to understand and control the way in which their data (including the content that they create via social media platforms) is used.

Do you have any advice for students interested in pursuing a career in academia?

The world has changed so fast that I already feel ill-equipped to do so. I would simply warn students that the market is a very difficult, precarious and competitive one, and that there are a number of practical alternatives (such as think tanks) that can offer meaningful and viable alternatives. I always encourage students to look at 80,000 hours, which is connected to effective altruism: if you have 80,000 total hours in your career, how can you best use them to help solve the world’s most pressing problems?

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