29 October 2009


The Columbia Journalism Review features an item on corrections in the London Sun ... treats such as
In an article published on The Sun website on January 27 under the headline 'Gollum joker killed in live rail horror' we incorrectly stated that Julian Brooker, 23, of Brighton, was blown 15ft into the air after accidentally touching a live railway line. His parents have asked us to make clear he was not turned into a fireball, was not obsessed with the number 23 and didn’t go drinking on that date every month.

Julian's mother did not say, during or after the inquest, her son often got on all fours creeping around their house pretending to be Gollum.
SURREY Police have not blamed gipsies for an attack on their force helicopter, no staff in their operations rooms were threatened by gipsies and no gipsy site was being targeted for a raid as we reported on May 14. We apologise for the mistakes and are happy to set the record straight.
More regrettably the NSW Premier is reported as having described a photo of Dennis Ferguson and his advocate as "repulsive" and having said that it could "scare the public".

How, I wonder, is the public scared. Is there are substantive basis for being scared? Should those of timorous spirits or redneck disposition (one of my naughtier students, unimpressed by vigilantism, told them to "eat a spoonful of cement, princess, and toughen up") be protected from anything scary? Is implicit endorsement by the Premier of scaryness an expression of good public policy? Should we look to the Premier for articulation of justice? Alas, notions of justice in the sense of 'innocent until proven guilty' and 'no punishment outside the sentence made by a court' are apparently foreign to many students in the current round of Legal Workshop at the ANU ... and likely to remain so if leading politicians resile from responsibilities.

28 October 2009


The national Treasury Department has released a 32 page discussion paper on 'Improving Protections for Corporate Whistleblowers'.

Treasury comments that
information from whistleblowers can make an invaluable contribution to protecting investor interests and preserving market integrity, but they need to be shielded from the risks they face in coming forward. This paper examines possible reforms to current protections [and] sets out a range of concerns in relation to existing protections under Part 9.4AAA of the Corporations Act 2001 along with options for reform and questions which are designed to focus the discussion. ... Several of the potential reforms also relate to the whistleblower protections provided by the banking and insurance prudential legislation. However, as these provisions are relatively recent, broad changes to the protections offered by these Acts are not anticipated.
The Department is
seeking ... feedback and comments on the options outlined in this paper, particularly any information about compliance costs, impacts on competition, existing business activities and any other impacts, costs and benefits. We also seek your advice on any potential unexpected consequences of these proposed changes.
It notes that
the importance of protecting corporate whistleblowers has been recognised for many years. However, while legislative protections have been provided under the Corporations Act 2001 since 2004, they appear to have been poorly regarded and rarely used. At the time this paper was written, only four whistleblowers had ever used these protections to provide information to ASIC. As such, those with the best access to information still seem to feel as though they have least reason to disclose it. ... It is not only the regulatory role which whistleblowers can play that makes their protection important. Many others also assist in the detection of corporate and financial services misconduct, but most have either mandated responsibilities or financial incentives to do so. However, whistleblowers are particularly courageous because they take serious risks without, usually, any prospect of personal reward.
Salient options identifies in the paper are -
Issue: Who can qualify for protection as a whistleblower? Many who might access information about corporate or financial services misconduct cannot qualify for protection because they do not fall into one of the categories currently covered.

Options: 1 That access to protection be extended to former employees, financial services providers, unpaid workers and business partners. 2 That protection be extended to any member of the public with access to inside information about corporate or financial services wrongdoing. 3 That the status quo be maintained.

Issue: Defining a 'subsidiary' for the purposes of the whistleblower protection provisions of the Insurance Act. The definition of 'subsidiary' under the Insurance Act is inconsistent with the definition under the other prudential Acts and the Corporations Act

Options: 1 That the definition of 'subsidiary' for the purposes of the whistleblower protection provisions of the Insurance Act be made consistent with the definition of subsidiary under the Corporations Act. 2 That the status quo be maintained.

Issue: What issues can be disclosed under whistleblower protections? Whistleblowers can only qualify for protection if they make a disclosure concerning an alleged breach of corporations legislation; whistleblowers cannot be protected if they make disclosures concerning other illegal corporate activities.

Options: 1 That whistleblowers have access to protection provided they make a disclosure concerning alleged illegal activities which ASIC can investigate. 2 That whistleblowers have access to protection provided they make a disclosure concerning alleged misconduct that ASIC can investigate. 3 That the status quo be maintained.

Issue: Should motive affect whether a whistleblower qualifies for protection? Often whistleblowers with genuine information may have (or be open to the accusation of having) malicious or secondary motives. However, whistleblowers can only qualify for protection if they make a disclosure in good faith.

Options: 1 That whistleblowers no longer be required to make disclosures in good faith to access protections under the Corporations Act. 2 That the status quo be maintained.

Issue: Should anonymous disclosures qualify for protection? As legislative protections cannot guarantee that a whistleblower will not suffer as a result of making a disclosure, many whistleblowers may wish to come forward anonymously. However, if the identity of a whistleblower who makes an anonymous disclosure is discovered, or they have to come forward later to provide evidence, they are unable to qualify for protection.

Options: 1 That whistleblowers no longer be required to identify themselves before making a disclosure to qualify for protection. 2 That a whistleblower's identity can only be required if it can be reasonably shown that their claims cannot be investigated without it. 3 That the status quo be maintained.

Issue: Should a court be able to order the production of documents which reveal a whistleblower's identity? There is concern whistleblowers may be discouraged from coming forward if a court can order the release of documents that reveal or tend to reveal a whistleblower’s identity.

Options: 1 That legislation require a court to consider the impact of requiring the production of documents revealing or tending to reveal a whistleblower's identity on the probability of future whistleblowers coming forward. 2 That legislation state the ASIC cannot be required to produce a document revealing or tending to reveal a whistleblower's identity unless an applicant can establish that the significance of those documents to their case outweighs the public interest in keeping the documents confidential. 3 That the status quo be maintained.

Issue: What confidentiality restrictions should apply to those receiving disclosures second-hand? Third parties who receive information provided by a whistleblower second-hand are not subject to the same restrictions regarding the use of that information as those who receive the initial disclosure.

Options: 1 That parties receiving information provided by a whistleblower second-hand, via the permission of the whistleblower, be subject to the same confidentiality restrictions as the initial recipients. 2 That the status quo be maintained.

Issue: Should prospective whistleblowers be protected for seeking legal advice? It may be difficult for many whistleblowers to determine whether or not they would qualify for protection.

Options: 1 That any disclosure made for the dominant purpose of seeking legal advice on a possible disclosure to a prescribed authority qualify for protection, regardless of other criteria. 2 That the status quo be maintained.

Wetware and World Brands

Much to be said for insomnia, having read Teresa da Silva Lopes' post-Chandlerian Global Brands: The Evolution of Multinationals in Alcoholic Beverages (Cambridge: Cambridge Uni Press 2007) as a diversion overnight.

The book is promoted by Cambridge as
Brands help explain why, in a world focused on science and technology, several of the world's largest multinational corporations have little to do with either. Rather they are old firms with little critical investment in patents or copyrights. For these firms the critical intellectual property is trademarks. Global Brands explains how the world's largest multinationals in alcoholic beverages achieved global leadership, the predominant corporate governance structures and why these firms form alliances with direct competitors. Brands also determine the waves of mergers and acquisitions in the beverage industry. Not only do they have personalities of their own, but brands also have the capacity to have independent and eternal lives.
Fortunately, unlike other undead they don't have a direct vote.

da Silva Lopes defines a brand as
a legally defensible proprietary name, recognised by some categories of consumers as signifying a product with dimensions that differentiate it in some way from other products designed to satisfy the same need. A common characteristic of global brands is that even if their sales originate from a small number of markets they are available in many markets.
She explains that her study is "timely" because it shows the power of brands in determining the growth of large multinationals that are not capital-intensive and technology-driven (the focus of much literature), because the industry has created homogeneous consumption patterns among a large number of consumers across the world and because it offers an analysis of the process by which industries move from being national and locally focused to being dominated by a small number of firms active globally.

She explores several themes -
+ general patterns that might explain growth and independent survival of multinational firms
+ why most of the leading alcoholic beverage multinationals are "family owned", challenging Chandlerian assumptions
+ a view of channel management: "a dynamic story about the changing relationship between producers, wholesalers and retailers"
+ diversification strategies used by the leading multinationals in alcoholic beverages in the face of changing environmental circumstances
+ the growth of enterprises through mergers and acquisitions in relation to brands and marketing knowledge, given that brands "are often assets that can be easily traded" and are a strong determinant of concentration
+ the impact of firms on the life of brands, including the "distinct roles played by the entrepreneurs and managers who created and developed" global brands.
On to The Business School and the Bottom Line (Cambridge: Cambridge Uni Press 2007) by Ken Starkey & Nick Tiratsoo, evaluating claims that business schools fall between two schools: "lacking in academic rigour yet simultaneously derided by the corporate world as broadly irrelevant".

27 October 2009


from Robert Lowell
Now, heart's ease and wormwood,
we rest from all discussion, drinking, smoking,
pills for high blood, three pairs of glasses—soaking
in the sweat of our hard-earned supremacy,
offering a child our leathery love. We're fifty,
and free! Young, tottering on the dizzying brink
of discretion once, you wanted nothing
but to be old, do nothing, type and think.
I wonder whether it's the freedom to do a Jarrell and check out early from the Darwin Hotel, a place that apart from good company is really better left behind.

Ab Fab

IP Australia, the government agency that is the nation's counterpart of the USPTO, has released a brief report on its recent survey of industry awareness of intellectual property protection and the agency's Fashion Rules guide.

Fashion Rules was developed by IP Australia in 2007 - and launched by Australian designer Akira Isogawa - to assist what the organisation characterises as 'the Australian Textiles, Clothing and Footwear (TCF) industry'. Much production by that industry, in particular for the mass market, has been migrating overseas, with some estimates suggesting that 80% of Australia's consumption of footwear and clothing is now sourced from offshore (particularly from China). Designs, copyright and trade mark law however remains important - both for protection of Australian creativity and investment and for avoidance of infringement of another nation's IP. At the launch the deputy minister commented that
Investment in intellectual property protection in the fashion industry is just as important as investing time, effort and money in developing new designs ... There is nothing more soul destroying than seeing your hard work and creativity being copied and exploited by an unscrupulous operator.
The survey attracted responses from 149 entities, almost double the respondents in the 2008 survey. 30% of respondents this year were designers, 16% were marketing professionals and 28% were in the 'Other' category (including "teachers, lecturers and trainers", production managers and business owners).

The survey was aimed at identifying "changes to the level of intellectual property awareness and understanding" among TCF members. A secondary objective was evaluation of recent IP Australia marketing and communications activities.

75% of respondents were "very aware" of intellectual property (which IP Australia indicates is a 24% increase from the previous survey), 23% were "somewhat aware" and 3% were "not aware". Awareness of trade marks was highest, with 93% of respondents aware, followed by copyright (86%), Patents (82%) and Design protection (75%).

IP Australia claims that the results indicate "a 24% increase in the level of IP awareness", with "overall results indicating growth levels of IP amongst the Australian TCF industry". The meaningfulness of the self-assessment is unclear: respondents might be modest about a sophisticated and comprehensive understanding of IP principles and practices or instead mistakenly but politely report that they are "very aware" yet lack a good sense of how IP works. I am aware of the principles of the internal combustion engine but if you value your hardware please do not ask me to disassemble and rebuild what is under the bonnet of your car.

Assessments of institutional validation will vary. IP Australia reports that
One of the key areas of interest was to ascertain how successfully the Fashion Rules resource had penetrated the TCF market. 30% of respondents had seen the resource with the majority of participants viewing it online (43%). Exposure via a Ragtrader magazine promotion came in second with 33%, followed by Fashion Week promotions (17%). 23% of respondents specified 'other' which included Design Victoria events, a Fashion Group International workshop and a TAFE conference.
I've moved on to Philip Leith's Software and Patents in Europe (Cambridge University Press, 2007).

Sad Lobster Quadrille

The BBC 'Open Secrets' quotes an admission by the UK Information Commissioner that his office took too long to consider complaints.

The Commissioner agreed that "We're not as efficient as we should be" and in the best tradition of Whitehall (or Burley-Griffin) reported that 'measures were in place to speed up' complaint handling. He was 'also telling public authorities that they had to make the FOI process more straightforward'. There's no indication of whether those authorities are listening and whether there will be a substantive response an announcement that the authorities are committed to seeing that 'measures are in place'.

The blog reports that the Commissioner
described freedom of information as a cumbersome process like "a complicated stately dance with many parties", so that "it's a question of 'Will you walk a little faster?', said the whiting to the snail".

This reference to the Lobster Quadrille in Alice in Wonderland, where the Mock Turtle and the Gryphon dance slowly and sadly round Alice while treading on her toes, may indeed capture some of the spirit of how the FOI system operates.

But if Mr Graham and his team are really seeking inspiration from a character in Alice in Wonderland, perhaps they have most to learn from the Mad Hatter.

He informs Alice that as long as you keep on good terms with Time, he'll do almost anything you want with the clock. He can make it go from nine in the morning to half-past one, time for dinner, in a twinkling. Equally well, he can "keep it to half-past one as long as you liked".
While on the subject of time and quadrilles, sad or otherwise, I've finished reading Adam Kuper's disappointingly thin Incest & Influence: The Private Life of Bourgeois England (Cambridge: Harvard Uni Press 2009).

It's an account of kin marriage among the 'cousinage' (Rothschilds, Darwins, Stracheys, Wedgwoods, Clapham Connection and Bloomsbury Group - the latter hyperbolically tagged as "the most eccentric product of English bourgeois endogamy" - more eccentric than the Plymouth Brethren?), for me less insightful than Noel Annan's writing on the intellectual aristocracy or Lawrence Stone's writing on the history of English marriage as a legal institution. From a dissertation perspective it's most valuable for a quick introduction to UK law regarding marriage of relatives within the 'prohibited degrees'. Harvard promotes it as
This groundbreaking study brings out the connection between private lives, public fortunes, and the history of imperial Britain.
In reality it doesn't break much ground and the connection is rather thin, with few treasures for lawyers and little that's new or striking for a historian of the period. Ideally there would be a detailed comparison with intermarriage and influence among contemporary urban elites in say Boston, Philadelphia, Amsterdam, New York and Frankfurt.

Starting points for an evaluation might include Frederic Jaher's The Urban Establishment: Upper Strata in Boston, New York, Charleston, Chicago, and Los Angeles (Urbana: Uni of Illinois Press 1982), R. J. Morris' Men, Women and Property in England, 1780–1870: A Social and Economic History of Family Strategies amongst the Leeds Middle Class (Cambridge: Cambridge Uni Press 2005), Sven Beckert's The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850–1896 (Cambridge: Cambridge Uni Press 2001) and Werner Mosse's The German-Jewish economic √©lite, 1820-1935: a socio-cultural profile (Oxford: Oxford Uni Press 1989).

Stephen Halliday in the THE sniffed that
a whole chapter is devoted to the Bloomsbury Group. There was a good deal of sleeping around among that strange and diverse cast of characters, but little if any intermarriage of any consequence; moreover, the group's members showed very little interest in anything as vulgar as business, and in many cases would have been very upset to hear themselves described as "bourgeois".
Halliday goes on to comment that
The reference to "characteristic strategy" in Kuper's initial explanation of his thesis implies that there was something deliberate about the choice of relatives in marriage, but he provides other, more convincing explanations of the phenomenon. He reminds the reader that, in an age when chaperones were considered essential for young unrelated couples, cousins had more opportunities to be alone together.

The interesting chapter on "The Family Business" observes that many of the people considered here were Quakers, and indeed Kuper could have concluded that friendships nurtured at Quaker meetings were a more likely explanation of their tendency to marry one another than any "strategy" to protect family interests. Perhaps they just liked one another.

Likewise, the chapter devoted to "Wilberforce and the Clapham Sect" could have suggested that people with common values, such as a fierce opposition to slavery, who meet frequently to pursue their common goals are likely to generate intimate friendships. ... Kuper should have called his book Networking in 19th-Century England, but that wouldn't have been a very catchy title, would it?
If you are lawyer you might want to skip Kuper and read Wharton's The Age of Innocence instead.

25 October 2009

Edutourism and ethics

It's that time of year again when the UC Law Faculty halls, walls, windows and even toilets are decorated with glossy ads for 'summer school' business law courses in Dubai, Beijing, Shanghai, Ho Chi Minh City and Hanoi.

I'm planning to skip the "desert tour and boat trip on the Dubai Creek" which is apparently one of the attractions of this year's CBL International Dubai Law School, an offer that's badged as being in cooperation with BBC World News, IP law group Rouse, FedEx and Allen & Overy.

That's partly because I'm squeamish about the legitimisation that's provided through edutourism in regimes that don't respect human rights.

One matter for discussion in the 'ethics' component of clinical legal education might be the appropriateness of "peaceful engagement" with such regimes through institutional and personal endorsement of for-profit short 'business law' courses.

Is it sufficient to say that those courses are concerned with business law, that students will see something of another culture (a visit to a Pearl River sweatshop or to a UAE construction site might be more revealing than canapes on the Dubai Creek or an encounter with a camel) and even acquire valuable language skills that will bridge gaps in understanding between the locals (unlikely in the UAE if all the service staff are right-less gastarbeiter - disposable people - and the teaching is in English)?

Are apologetics different because the law is concerned with trade ... or that the course might be construed as tourism or that it's located in a liberalising economy? Why not study in Mugabe's Zimbabwe, Castro's Cuba or the Fat Boy's North Korea. There's scope there for an entrepreneur - a dash of revolutionary chic, cheap locals to change the sheets and smile obligingly as hard currency rolls in, exotic scenery (I was going to say colourful wildlife but in the N Korean socialist workers paradise the bears and birds have probably been eaten along with the rats and cats), promises of growing friendship ...

I'm thinking of a summer school in Burma for students of national security law: luxurious villa accommodation, plentiful service by oh so deferential servants, an excursion or two to see a restored pagoda, an audience with senior officials who will with heartfelt tones explain that they have learnt from their mistakes and will - but of course - become even better as long as the money keeps rolling in. Premium class students might even get to shoot an elephant (shooting famished peasants is so so yesterday and won't provide tasteful photos for display in the office on the 43rd floor back home) ...