20 May 2016

Australian Legal Bibliometrics

The incisive and important 'A Report into Methodologies Underpinning Australian Law Journal Rankings. Prepared for the Council of Australian Law Deans (CALD)' (UNSW Law Research Paper No. 2016-30) by Kathy Bowrey comments
Law schools face significant institutional pressure to adopt journal ranking lists that are used to inform comparative assessment of the Faculty, School and individual researcher performance.
CALD has commissioned a written report that:
1. critically evaluates the methodology of up to eight Law journal lists or rankings agreed to by the parties; 
2. makes recommendations about the suitability of the lists to act as a proxy for academic research quality, including suggesting revisions or modifications to methodology and reference to how to maintain the currency of any proposed list, as appropriate; 
3. comments on the utility of the lists in view of the suggested purposes for which they may be used.
This report is in four parts.
Part One provides a brief overview of bibliometric databases and indices currently in use in the higher education sector to assess research productivity, quality and influence. New non-citation based alternative metrics for the Humanities and perception studies are also discussed. There is also discussion of the Washington & Lee journal ranking list, which underpinned the original CALD/ERA lists. An updated version informed the Deakin List.
This part also contains comments on difficulties in applying existing bibliometrics to the output of Australian legal researchers.
Part Two provides analysis of the following Australian law journal ranking methodologies and lists: CALD list (2009); ERA 2010; Australian Business Deans Council Journal Quality List 2013; Deakin University Law Journal Rankings; University Of Tasmania Law Journal Rankings. This part also includes tables that allow for review of the performance of particular law journals across the various ranking lists provided.
Part Three addresses new developments in research assessment and current critical literature on the use and misuse of metrics.
Part Four provides recommendations to guide future discussion of the use of metrics to assess legal research.

19 May 2016

Metadata

'Evaluating the privacy properties of telephone metadata' by Jonathan Mayer, Patrick Mutchlera, and John C. Mitchell in 113(20) Proceedings of the National Academy of Sciences 5536–5541 comments
Privacy protections against government surveillance are often scoped to communications content and exclude communications metadata. In the United States, the National Security Agency operated a particularly controversial program, collecting bulk telephone metadata nationwide. We investigate the privacy properties of telephone metadata to assess the impact of policies that distinguish between content and metadata. We find that telephone metadata is densely interconnected, can trivially be reidentified, enables automated location and relationship inferences, and can be used to determine highly sensitive traits.
Since 2013, a stream of disclosures has prompted reconsideration of surveillance law and policy. One of the most controversial principles, both in the United States and abroad, is that communications metadata receives substantially less protection than communications content. Several nations currently collect telephone metadata in bulk, including on their own citizens. In this paper, we attempt to shed light on the privacy properties of telephone metadata. Using a crowdsourcing methodology, we demonstrate that telephone metadata is densely interconnected, can trivially be reidentified, and can be used to draw sensitive inferences.
Communications privacy law, in the United States and many other nations, draws a distinction between “content” and “metadata”. The former category reflects the substance of an electronic communication; the latter includes all other information about the communication, such as parties, time, and duration.
When a government agency compels disclosure of content, the agency must usually comply with extensive substantive and procedural safeguards. Demands for metadata, by contrast, are often left to the near-total discretion of authorities. In the United States, for instance, a law enforcement officer can request telephone calling records with merely a subpoena—essentially a formal letter from the investigating agency. An intelligence program by the National Security Agency (NSA) has drawn particular criticism; under the business records provision of the USA PATRIOT Act, the agency acquired a substantial share of all domestic telephone metadata.
In this paper, we empirically investigate factual assumptions that undergird policies of differential treatment for content and metadata. Using crowdsourced telephone logs and social networking information, we find that telephone metadata is densely interconnected, susceptible to reidentification, and enables highly sensitive inferences.
The balance of the paper is organized into three parts. First, we discuss our data collection methodology and properties of our participant population. We next present our results. Finally, we discuss implications for policy and future quantitative social science research.

10 May 2016

Pragmatism

'Pragmatism, Realism and Moralism' by Matthew Festenstein in (2016) 14(1) Political Studies Review 39-49 comments
Pragmatism is often seen as an unpolitical doctrine. This article argues that it shares important commitments with realist political theory, which stresses the distinctive character of the political and the difficulty of viewing political theory simply as applied ethics, and that many of its key arguments support realism. Having outlined the elective affinities between realism and pragmatism, the article goes on to consider this relationship by looking at two recent elaborations of a pragmatist argument in contemporary political theory, which pull in different directions, depending on the use to which a pragmatist account of doxastic commitments is put. In one version, the argument finds in these commitments a set of pre-political principles, of the sort that realists reject. In the other version, the account given of these commitments more closely tracks the concerns of realists and tries to dispense with the need for knowledge of such principles.
Festenstein states
The political seems to be difficult terrain for pragmatists. The most prominent pragmatist social and political theorist, John Dewey, forcefully presses an avowedly unpolitical conception of democracy, as ‘primarily a mode of associated living, of conjoint communicated experience’, ‘the idea of community life itself’, or a ‘personal way of individual life’ (e.g. Dewey, 1916: 93, 1927: 328, 1939: 226). Pragmatism is often thought to view politics as primarily a matter of collective problem-solving, glossing over core political phenomena such as power and conflict which subvert the hopes for such a shared enterprise.
The purpose of this article is to explore the relationship of pragmatism to the ‘realist’ current in recent political theory which has sought to emphasise the specifically political character of political theorising. The recent interest in realism in political theory seeks to trace the distinctive contours of politics as a dimension of human activity and to overturn what it identifies as the moralistic tendencies in political philosophy. The article begins by offering an overview of key realist themes and the overlap between these themes and pragmatist commitments. With this basic position blocked out, the article goes on to explore two contrasting recent versions of a pragmatist political argument, developed by Cheryl Misak and Robert Talisse, on the one hand, and by Thomas Fossen, on the other. These pull in different directions, I will suggest, depending on the account they offer of practical doxastic commitments and the implications that they draw from this. In the first version, the argument finds in these commitments a set of pre-political principles, of the sort that realists reject. In the other version, the account given of these commitments tries to dispense with the need for knowledge of such principles.
It should be noted that pragmatism and realism are both constituted by an undisciplined rabble of doctrines, temperaments and sensibilities: there is no scope to do justice to this variety and I will impose some artificial tidiness on each position. Furthermore, this is not a study in influence or ‘genealogy’. For some realists, pragmatists are indeed an interesting reference point or source of inspiration: Raymond Geuss (2001) and Chantal Mouffe (2000) for example are directly responsive to authors usually classified as pragmatist. For others, notably Bernard Williams (2002, 2005) in much of his later work, Richard Rorty in particular serves as a foil and a goad: however far Williams was going, it was not that far, or in that direction. However, nothing in the [article] hangs on establishing paths of influence.

08 May 2016

US BodyCams

'Justice Visualized: Courts and the Body Camera Revolution' by Mary D. Fan in (2016-17) 50 UC Davis Law Review (forthcoming) comments
 What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story – or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception. Now a revolution is coming. Across the nation, police departments are deploying body cameras. Much of the current focus is on how body cameras will impact policing and public opinion. Yet there is another important audience for body camera footage – the courts that forge constitutional criminal procedure, the primary conduct rules for police. This article explores what the coming power to replay a wider array of police enforcement actions than ever before means for judicial review and criminal procedure law. The body camera revolution means an evidentiary revolution for courts, transforming the traditional reliance on reports and testimony and filling in gaps in a domain where defendants are often silent. 
The article envisions a future where much of the main staple events of criminal procedure law will be recorded. Analyzing body camera policies from departments across the nation reveals that this future is unfolding now. The article proposes rules of judicial review to cultivate regular use of the audiovisual record in criminal procedure cases and discourage gaps and omissions due to selective recording. The article also offers rules of restraint against the seductive power of video to seem to depict the unmediated truth. Camera perspective can subtly shape judgments. Personal worldviews impact image interpretation. And there is often a difference between the legally relevant truth and the depiction captured on video. Care must be taken therefore to apply the proper perceptual yardsticks and reserve interpretive questions for the appropriate fact-finders.

ICC on specialised IP jurisdictions

The International Commerce Commission (ICC) has released a report on Adjudicating Intellectual Property Disputes: An ICC report on specialised IP jurisdictions worldwide.

The report comments
Along with the rapid progress of the global innovative economy, the importance of intellectual property rights to businesses has grown and the number of intellectual property (IP) applications and registrations has been increasing dramatically each year. In 2014, patent applications worldwide grew by 4.5% to around 2.7 million, and trademark applications rose to around 7.44 million, with a growth of 6% (compared to 2013). Concurrently, more filings of IP rights in recent years have also resulted in more disputes related to IP. In China alone, the number of new first instance IP-related lawsuits in 2014 came to 116,528, marking a 15.6% increase over the previous year. More IP-related lawsuits have not only raised public awareness of the importance of IP enforcement, but have also led to increased reflection concerning the efficiency, impartiality and predictability of court trials for IP disputes. 
These developments have led some countries to establish — or to consider establishing — specialised IP jurisdictions (SIPJs) for resolving IP-related disputes.
A SIPJ is broadly defined as
as a tribunal or court, or a permanent division or a chamber within a civil or commercial court or administrative body, having exclusive authority to hear IP disputes or a particular kind of IP dispute. The report focuses on contentious proceedings relating to IP infringements and the invalidation of registered IPRs; it does not deal with proceedings relating to the registration of IPRs or tribunals focused on the valuation of remunerative IPRs, such as copyright royalty tribunals.
The report states
Although created in the context of diverse legal, economic, cultural and historical frameworks, SIPJs have often been established in different countries for similar reasons — to increase judicial specialisation in IP-related issues, promote consistency and predictability in trials and case outcomes, and reduce the risk of judicial error — even if with local nuances. 
However, the form that SIPJs take and the scope of their competence can vary widely from country to country. Some are empowered to try both administrative and civil IP disputes, such as China, Japan and Russia, while others may be purely civil or administrative. Some are established as separate judiciary institutions, totally independent of civil and administrative courts, and others are structured as a chamber or tribunal within a civil or commercial court. The modes of trial practiced by SIPJs also differ to some extent.
The ICC states that it has
prepared the present study to assist countries in their consideration of whether, and how, to establish or improve SIPJs so as to enhance overall efficiency and expertise in IP-related trials. The report provides an overview of the structures and trial procedures of SIPJs in various jurisdictions around the world, with a view to contributing to a better understanding of the current landscape of SIPJs and the way they function. It is intended to build on and complement work already done by the International Bar Association, and by the US Patent and Trademark Office and the International Intellectual Property Institute in this area by exploring more specific issues related to the functioning of SIPJs. 
 The report was based
on a survey of ICC members which aimed to obtain first-hand information from parties and practitioners on the litigation mechanisms in their countries for trying IP disputes. The respondents are all attorneys or IP practitioners with hands-on litigation experience and expertise in IP. Altogether, information was obtained from a diverse group of 24 countries from Europe, Asia, and North, Central and South America. The survey was designed to first determine if a country had an SIPJ and, if so, to collect information on various SIPJ-related issues, from the rationale behind the establishment of SIPJs to their structures and the speci cs of the trial process. Among the issues surveyed, particular attention was paid to the standing and qualification of representatives of parties in the SIPJs and the selection of judges for SIPJs.
The ICC's conclusions are -
... a significant number of countries around the world have established SIPJs that are very diverse. This diversity can especially be seen in their different structures and in their mechanisms in relation to the appointment of judges and experts and the representation of parties. The same basic principles are however applied across the different countries surveyed, e.g. in relation to expedited proceedings and legal doctrines.
Based on the information obtained, this study draws the following conclusions, which could assist countries in their consideration of whether, and how, to establish or improve SIPJs.
 SIPJs can improve the efficiency and quality of IP-related litigation processes and outcomes
A large majority of the countries surveyed for this study has established SIPJs in various forms, and the respondents from most of the countries that have not established them believe it would be desirable to do so.
Some of the specific reasons expressed by respondents in different countries as to why SIPJs are established include:
  • “...to develop IP expertise in specialised judges, and unify standards of trials”,
  • “to develop IP expertise in specialised judges; and to streamline the jurisdiction of national courts over intellectual property matters with a view to simplifying proceedings”, 
  • “to develop IP expertise in courts, and for parties’ convenience” and 
  • “creation of subject matter experts/expertise; effectiveness of the decision; enhance efficiency and accuracy; consistency and predictability of case outcomes”.
All of these clearly indicate that SIPJs are seen to increase the effectiveness of enforcement of IPRs and are welcomed by practitioners and litigants in the surveyed countries.
The contribution of SIPJs to developing IP expertise in courts, unifying standards of trials, enhancing the efficiency and accuracy of trials and ensuring the predictability of case outcomes thus argues in favour of their establishment and maintenance.
 The need for and the most appropriate form of SIPJs depend on individual country needs and circumstances
Despite the largely coincident reasons motivating di erent countries to establish SIPJs — as described above — the choice of form for SIPJs often varies according to the different national legal cultures, economic contexts and priorities. Where IP disputes are numerous and technically complicated, SIPJs may have a more elaborate structure and larger dedicated sta (e.g. a separate court with experienced judges). Where a country’s economic and legal environment suggests little demand for an SIPJ, it can be concluded that such a solution is not beneficial. Likewise, if civil or commercial courts are able to handle IP disputes effectively on their own, SIPJs may not be an urgent priority. The need for and design of SIPJs should emerge from actual social, economic and legal needs — as is the case in most countries.
China, for example, is a vast country with a huge number of IP-related disputes, requiring a large number of judges versed in IP. Nevertheless, the training of judges to meet this demand is a tremendous task; even if the judges are qualified for the job, different judges with distinct educational backgrounds and experience may have different views on similar legal or factual issues. Consequently, unifying IP trials, especially in respect of cases involving complex technological issues, was a fundamental consideration for establishing SIPJs in China. SIPJs could therefore be helpful for those countries with a large territory or population — and, therefore, usually with more courts — if they have sufficient IP disputes.
In short, if the aim of an SIPJ is to increase the efficiency and quality of IP-related dispute resolution, and thus to meet the needs of the national economy, it should only be established if it adequately serves these goals and should be designed in the most appropriate way to fulfil them.
Proper trial mechanisms and judicial expertise are essential
Where there is a need for SIPJs, the overall mechanism of the SIPJ (i.e. the procedures and personnel arrangements) is very important for the way IP cases are decided. It is advisable that SIPJs be staffed with knowledgeable judges and, especially for patent cases, be structured so as to enable the court to understand the technical issues in dispute — which are often complex — whether by involving judges with a certain technical background, technical experts (as court or party appointed experts) and/or IP practitioners or other specialists. This was particularly highlighted by respondents to the survey.
The appropriate mechanism for any particular SIPJ will again be influenced by the judicial system, legal tradition and ideology, and socio-economic context.
Based upon the analysis of the survey results, ICC concludes on balance that SIPJs present an advantage in the current economic and legal environment worldwide in jurisdictions where there is a suffcient body of IP litigation and can, in many circumstances, enhance the efficiency of IP enforcement.
The structure and mechanisms of SIPJs should be designed in response to the specific context of the country, and with the aim of developing IP expertise in the judiciary, unifying trial standards and practices, enhancing efficiency in trials and ensuring the predictability and accuracy of case outcomes.
ICC recommends that countries should consider establishing and adopting some form of SIPJs, or improving existing SIPJs, according to their respective economic and legal situations, and hopes that the present study will assist in this reflection.

Scams

Consumer Affairs Victoria has announced plans to litigate against scammer Belle Gibson and has secured an enforceable undertaking  by Gibson's publisher.
Consumer Affairs Victoria is preparing to take legal action against Inkerman Road Nominees Pty Ltd (in liquidation) ACN 164 850 748 (formerly known as Belle Gibson Pty Ltd) and its sole director, Ms Annabelle Gibson, following an in-depth investigation into alleged contraventions of the Australian Consumer Law and Australian Consumer Law (Victoria).
The alleged contraventions relate to false claims by Ms Gibson and her company concerning her diagnosis with terminal brain cancer, her rejection of conventional cancer treatments in favour of natural remedies, and the donation of proceeds to various charities.
Consumer Affairs Victoria Director Simon Cohen has applied for leave to commence proceedings against Inkerman Road Nominees Pty Ltd (in liquidation) in the Federal Court of Australia. Leave is required because the company is in liquidation.
If leave is granted, Mr Cohen intends to commence proceedings against Inkerman Road Nominees and Ms Gibson.
Mr Cohen added he was pleased that Penguin Australia Pty Ltd, publishers of The Whole Pantry book, had willingly co-operated with a concurrent investigation that examined whether the company had also contravened the ACL (Vic).
Mr Cohen said Penguin had agreed to an enforceable undertaking acknowledging that it had not required Ms Gibson to substantiate her claims prior to the book’s publication.
Included in the terms of the enforceable undertaking is that Penguin will make a $30,000 donation to the Victorian Consumer Law Fund.
Penguin must also enhance its compliance, education and training program with a specific focus on ensuring all claims about medical conditions are substantiated, and that statements about natural therapies are accompanied by a prominent warning notice.
“This is an important step in ensuring that consumers receive only verified information and are not deceived, particularly where serious matters of health and medical treatment are concerned,” Mr Cohen said.
Meanwhile in New Zealand the Commerce Commission has reached an interim agreement with TM Publisher, an overseas company that sent invoices for unsolicited services to New Zealand trade mark holders.
 Under the interim court enforceable undertakings TM Publisher has agreed that anyone who paid the invoice from 6 April 2016 will be refunded directly by ANZ bank. 
The Commission is still in negotiations with TM Publisher about payments it received before 6 April 2016. ...   
TM Publisher’s bank account was frozen in March 2016. It contained over $200,000 in payments from New Zealand businesses. 
The invoice relates to an overseas, web-based trade mark publication service. It is not connected to the Intellectual Property Office of New Zealand (IPONZ). The invoice does not make clear that the recipient does not have to pay for the services.

06 May 2016

Medicalisation

'The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States' by Marie-Amelie George in (2015) 24 Journal of the History of Sexuality 225 comments
Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978. 
This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy. State commissions evaluating sexual psychopath laws relied on Kinsey’s data to argue that the statutory schemes were not based on scientific evidence and therefore needed to be amended or repealed. The majority of their reports commented on the inappropriateness of including consensual sodomy under the umbrella of psychopathy, thereby separating homosexuality not just from pedophilia but also from violence. Several commissions also questioned whether consensual sodomy should be criminalized at all. The sexual psychopath commission reports influenced the ALI’s decision to decriminalize sodomy, presaging and contributing to a significant change in American criminal law, as members of the MPC committee drew upon the commission debates in their arguments for the decriminalization of consensual sodomy. The state commission reports, by providing a forum for politicians and lawyers to develop and express a reformist viewpoint, created a discourse in favor of changing criminal laws on consensual sodomy. This thus article identifies the missing link between a legal regime that characterized homosexuality as psychopathy and one that adjudicated consensual homosexual sodomy as noncriminal conduct.