17 April 2010


Reading 'JC Beaglehole: Reputation, Fortuna and Biography' [PDF], a gracious tribute by Doug Munro to the underrated John Beaglehole(1901-1971) in 2 Journal of Historical Biography (2007) 1-32.

Munro explains that -
This essay is not intended as a review article of A Life of J.C. Beaglehole, although I engage with the biography here and there. My purpose, rather, is to trace the trajectories of J.C. Beaglehole’s reputation, using the biography as the empirical bedrock, but drawing on other sources as well as on my wider experience. The word "trajectories" is used quite deliberately to signify that reputations have multiple dualities—earlier and later, contemporary and posthumous, public and private, intellectual and activist—and to indicate that reputation is both unstable and often contested. Beaglehole was initially made to suffer for being regarded in conservative circles as a dangerous young radical, but a change of government brought patronage and preferment. This, in turn, leads to an examination of the extent to which individual reputation is a function of the wheel of fortune and of the degree to which the interplay of institutional and intellectual structures is predicated on personal preferences toward an individual. Finally, I look at Beaglehole’s posthumous scholarly reputation and make observations on the role of biography in raising or lowering a reputation, as the case may be. There is a certain irony in discussing Beaglehole and reputation in the same breath, because his unusual combination of self-assurance and genuine modesty rendered him remarkably indifferent to what others thought about him. He was not devoid of ambition — far from it — but he avoided the limelight, resisted celebrity status, and just got on with the job.
Munro had earlier commented that -
There is no question that Beaglehole’s scholarship was highly regarded during, and immediately after, his lifetime. He was, Gavan Daws told a group of Pacific historians at a seminar in Canberra in 1973, “the greatest of us all.” But reputation is unstable and has a chimerical quality: it comes and goes as fancy chooses, a victim of changing fads and fashions. Or as Stefan Collini has put it:
There is an inescapable indeterminacy about all questions of reputation where literary and intellectual figures are concerned. Membership of the jury is heterogeneous and potentially infinite; the various parts of a writer’s oeuvre or achievement may merit different ratings from different categories of reader; it is almost impossible to maintain a clear distinction between questions of merit and neighbouring territories of celebrity and utility; and at any given moment judgement is almost inevitably contaminated by hearsay, selective recall, and cultural lag.
Cultural lag is an appropriate term: it would be fair to say that Beaglehole, whose scholarship was so highly regarded in his lifetime, is out of favour in some quarters and that his reputation among Pacific historians is not quite what it once was. In the three and a half decades since his death, shifts in the way historians view the past have sometimes been unkind to Beaglehole. As Jane Samson has put it, “a new set of church fathers and scriptures has been proclaimed, and the usual search for heretics is on.” The other side of Beaglehole’s reputation is based on his civic engagement as a public intellectual, and this aspect of his life met with a mixed reception among contemporaries. Revered in some quarters, this introspective and somewhat retiring man was viewed askance in anti-intellectual circles and by New Zealand’s conservative National Party government. ...

That reputations come and go was graphically illustrated in a 2005 poll, conducted by Prime Television New Zealand, to identify and rank "New Zealand’s 100 History-Makers". Those polled placed the scientist Lord Ernest Rutherford, another New Zealander who has been admitted to the Order of Merit, at number one. Beaglehole missed out altogether, although two other historians were ranked sixty-third (Michael King) and eighty-seventh (Keith Sinclair). Neither, were they still alive, would have ranked himself ahead of Beaglehole. The omission of Beaglehole reflects the sheer capriciousness of such media circuses — for example, there was a comedian on the panel and two comedians were among the chosen one hundred. It also illustrates the extent to which reputation can be unrelated to actual achievement, how a posthumous reputation is apt to slide, and how people are unconsciously inclined to withhold recognition from those in walks of life different from their own. All the same, the aberration of Beaglehole’s omission may not have come about had the major biography by his historian-son been published a year earlier, in time to have brought Beaglehole to the panelists’ attention.

Biographies, of course, can be reputation-breakers as well as reputation-makers. For politicians, the so-called accolade of a biography can cut both ways — notable examples being the disintegrating effect that successive biographers have had on the once-high reputation of British prime minister Stanley Baldwin and the recent attempts to rehabilitate Baldwin’s successor, Neville Chamberlain. Biographies of historians are comparatively rare, typically expressions of avowal and affirmation, and distinctly elitist in the sense that only major historians enter the hall of biographical fame. Despite a roll-of-the-dice element in who gets chosen, the very fact of a biography is a measure of that historian’s significance. Sometimes they are rescue missions, attempts to restore to proper prominence historians who, in their biographer’s view, have been condemned to unjustifiable abeyance. Conversely, there are attempts to explain and celebrate the recrudescence of a reputation. Tim Beaglehole’s biography of his father, who was a major figure in New Zealand cultural and intellectual life as well as an outstanding historian, fits neither category. But it does invite reflection on the role of a biography in matters of reputation.

Simpson on Hart

And from the review noted in the preceding post, Simpson on Hart's The Concept of Law -
Herbert's major contribution to the philosophy of law was certainly the concise and highly readable The Concept of Law, although it is one of those books that becomes more difficult the more often it is read. ... As is the way with notable books, it has spawned a very considerable secondary literature, and the academic career of Ronald Dworkin was launched by his self-presentation as Herbert's major critic.
Simpson goes on -
At the time when this book was written, the principal function of legal philosophy was to provide an answer to a very general and extremely puzzling question, "What is law?" This was not a practical question; those who asked it and spilled much ink in attempting to answer it were commonly well versed in the practicalities of operating a legal system — giving legal opinions, arguing legal cases in court, delivering court judgements, or whatever. It was a question of a conceptual nature, about meaning. Herbert argued that it was more useful to identify a number of distinguishable puzzles, or intellectual anxieties, that underlay the general question, and he thought there were three of them.

One was the relationship between law and force or coercion: is a legal system best understood as a system of instructions backed by coercive force? The second was the problematic distinction between law and ethics or morality — how, for example, does a legal obligation such as paying taxes differ from a moral or ethical obligation to pay taxes, if indeed there is such a thing? What is the connection between law and ethics, and is some kind of relationship necessary to the very existence of law? The third is less easy to state simply; to what extent is law a matter of rules? This in its turn generated a number of subsidiary issues. What is a rule? What do we mean when we say a rule, or a legal rule, exists? What does it mean to say that courts apply legal rules, and is it in any sense true that they do so? Since Herbert's time, the emphasis in western legal philosophy has been on the analysis of the process of adjudication, which closely relates to Herbert's third issue. Thus Dworkin’s legal theory is concerned with little else, and not even with adjudication in some general sense, but only with adjudication by the Supreme Court of the United States. But Herbert's The Concept of Law does not explicitly have a great deal to say on adjudication as such. It does, however, have a great deal to say on a further question that did not feature in the trilogy I have set out — what is meant when we say that a legal system exists? In what sense do laws form a system, and what is meant by existence when predicated on such a system? Can laws exist without forming part of a system?

Although Herbert set out to write a book on the concept of law, he ended up writing a book on the concept of a legal system.
In characterising reception Simpson comments that
The secondary literature is now immense, and the publication in 1998 of a fragmentary reply to his critics on which Herbert worked for many years has spawned a further secondary literature in the collection of essays published in 2001 as Hart's Postscript: Essays on the Postscript to The Concept of Law. In a sense it has been downhill all the way—downhill, that is, from the lucidity and elegance of Herbert’s writing to the unattractive elaborations of some of his critics and defenders, downhill from Herbert’s direct analysis of law and legal institutions to writings about what other people have said about what other people have written about law and legal institutions. In British military circles there was, in my time, a bawdy monologue, much recited in pubs, which took the form of a bestiary. One of the creatures featured in it was the Fu-Fu Fly, which was said to fly in ever diminishing circles until it finally vanished up its own bottom, from which secure if unsanitary location it looked out at the world with scorn and derision. That, leaving on one side scorn and derision, is more or less the present picture in relation to much of the secondary literature on The Concept of Law. ...

If you think philosophizing matters — and I have always wondered how the question of whether it matters could be answered, or indeed whether the answer matters one way or the other — then the principal merits of Herbert’s distinguished book do not lie in the solutions offered by him, but rather in the identification and analysis of the problems presented by his attempt to elucidate, as he put it, the concept of law.

Bad Mr Gellner and Naughty Mrs Hart

AWB Simpson's review in 104 Michigan Law Review (2006) 1437-1459 of Lacey's 2004 A Life of H.L.A. Hart: The Nightmare and the Noble Dream notes that -
At this time, the Oxford philosophers, especially the group to which [Hart] belonged, were extremely confident of the significance of their work. Their lack of self-doubt was indeed to be little dented by the publication, in 1959, of a devastating criticism of the movement, Ernest Gellner’s Words and Things. Their initial reaction was the same as that of current law and economics devotees when they are confronted with radical criticism to which they can think of no response; they either ignored it, or were enraged by its impertinence, or both. Thus it was that the leading British philosophical journal, Mind, then edited by Gilbert Ryle, using what was known as the reversed in-tray system [Articles submitted were placed in a tray, and when publication of the next issue was imminent, the editor picked out from the top of the pile sufficient pieces thought publishable to fill the next issue. No system of peer review then complicated the task of the editor, whose decision was final], refused to review Gellner's book at all, a decision that gave rise to public controversy
Simpson goes on to offer other comments that will delight UC law students -
The practice of circulating and indeed selling copies of notes of lectures was then quite common. Indeed, some lecturers delivered their lectures at dictation speed; it was part of the lore of the school that William Holdsworth, the legal historian, who died before my time, used to repeat each sentence three times through his walrus moustaches: "The law of England, I say the law of England, the law of England ..." By this time even the most inattentive students would be aware that it was the law of England that was under discussion
and could presumably go back to sleep.
I can well recall my own astonishment when, after I had left Oxford, I learned that he had suffered a breakdown, triggered by Jenifer [Hart]'s public announcement of her early career as a communist spy in waiting. This had inevitably given rise to speculation that Herbert himself had been a spy. He had been hospitalized in the Warneford psychiatric hospital, commonly called Warneford College for the many students and occasional dons who passed into its care; it was under the supervision of Dr. Seymour Spencer, who had great problems in recalling the names of the other doctors who worked there. For a don to go there was unusual indeed. Some degree of psychological disturbance was as commonplace in Oxford as it is in American law schools, but was not usually viewed as a reason to seek medical care.
Strange creatures, those academics.
Waissman, a refugee who was a sad, lonely, and to some degree embittered person, died in 1959. Herbert attended his funeral, and arrived late and shivering for the meeting of the discussion group in consequence. He explained that there was no religious ceremony, and the philosophers, after silently consigning Waissman to his grave, were about to leave, when Gilbert Ryle, feeling that something should be said about the deceased scholar, leapt onto a convenient tabular grave stone and delivered an extempore Periclean funeral oration. It was raining heavily and blowing strongly at the time, and the proceedings, conducted by the Oxford philosophers all attired in soggy, flapping academic dress, resembling nothing so much as a group of immense crows clustered around carrion, excited the puzzled curiosity of some passing peasants.

16 April 2010

Court information

Considering the Court Information Bill (NSW) [txt] at the moment. The object of the proposed statute - which follows a 2008 Report on Access to Court Information for the NSW Attorney-General - is "to establish a new system for the provision of access to information held by courts in New South Wales", including -
(a) open access to certain court information, known as open access information, unless the court otherwise orders in a particular case,

(b) access to information, known as restricted access information (being information that is not open access information) if access is permitted by leave of the court or by regulations under the Act,

(c) access by news media organisations to certain restricted access information,

(d) access by parties to proceedings to any court information relating to the proceedings,

(e) imposition of conditions on access to court information relating to the way the information is provided or that restrict the disclosure or use of the information,

(f) protection of privacy and safety of participants in court proceedings, including limitations on access to personal identification information,

(g) the protection of court information from misuse and unauthorised access, use or disclosure,

(h) methods of access to court information, including charging of fees for access.
The Law Society of NSW criticised particular proposals last year [PDF].

The objects of the proposed Act are to -
1) promote consistency in the provision of access to court information across NSW courts,

2) provide for open access by the public to certain court information to promote transparency and a greater understanding of the justice system,

3) provide for additional access by the media to certain court information to facilitate fair and accurate reporting of court proceedings,

4) ensure that access to court information does not compromise "the fair conduct of court proceedings, the administration of justice or the privacy or safety of participants in court proceedings", based on restricting access to certain court information.
Under the proposed Act the 'Open access information' (which any person is entitled to access, unless the court otherwise orders in a particular case), includes -
i) in relation to criminal proceedings - indictments, court attendance notices, police fact sheets and statements of facts,

ii) in relation to civil proceedings - originating processes and pleadings,

iii) written submissions made by a party in proceedings,

iv) transcripts of proceedings,

v) statements and affidavits admitted into evidence, including expert reports,

vi) records of judgments and directions given in proceedings.
Restricted access information (for which there is an entitlement for access only if permitted by leave of the court or by regulations made under the proposed Act) includes -
a) personal identification information,

b) medical, psychiatric, psychological and pre-sentence reports,

c) criminal records,

d) victim impact statements,

e) letters of comfort provided by the prosecution in connection with criminal proceedings.
When deciding whether to grant leave for access to restricted access information, the court may take certain matters into account, including the -
a) public interest in access to the information,

b) extent to which the principle of open justice will be adversely affected if access is not provided,

c) extent to which an individual's privacy or safety will be compromised by providing access,

d) extent to which providing access will adversely affect the administration of justice.
A court and regulations may impose conditions on access, including restrictions on the disclosure or use of that information.

The Act would provids for a media organisation to have access to certain court
information that is restricted access information (unless the court orders otherwise), including -
1) transcripts of proceedings in closed court or proceedings on a voire dire,

2) transcripts of and evidence in proceedings on an application to a court for an order to prohibit or restrict the publication or disclosure of information,

3) the brief of evidence in criminal proceedings.
A party to proceedings and the party's legal representative would be entitled to access any court information (in addition to open access information) that relates to the proceedings unless the court orders otherwise in a particular case.

There would be no entitlement to access to court information under the proposed Act if providing that access would contravene a court order or a provision of another law.

A court may refuse to provide access to court information in a particular case if providing access would require an unreasonable diversion of the court's resources or it is necessary to refuse access to ensure the safe custody and proper preservation of court records.

In its comments on the 2008 Report the NSW Law Society noted -
concerns about the proposal in the Report for a special role for media interests, and an ability on the part of those interests to access a greater range of court information than that which is available to the general public. While it is acknowledged that the media can and does play a vital role in ensuring the communication of material already available under open justice principles to the general public, it is not readily apparent in the Report why that role necessitates greater access to court information than would generally be available to the public as a result of the proposed recommendations. To look at it conversely, on what basis can it be justified that the general public have less access to court information than media interests?
It went on to comment that -
It is readily acknowledged that the media play a key role in giving effect to the general public interest in making justice visible and open. However, this role does not warrant access to a greater field of substantive information than would otherwise be available to the general public. The media may have a pecuniary interest in the ability to access information, and particularly in an ability to do so quickly. However, this does not warrant greater access, merely quicker access.
Further -
There is no basis provided within the Report to explain why closed court transcripts, which the Report recommends be designated restricted information, should be made specially available to media interests. It is logically inconsistent for the Report to recommend that the media be granted special access to transcripts of closed court proceedings when it is acknowledged in the report that such transcripts are inappropriate for designation as 'open access' documents. If the material information is inappropriate for access by the public, it makes little sense to allow media interests, presumably with an intent to report on the contents, special access.

The rationale relied upon in the Report for special media access appears to be that such media interests can be appropriately regulated and therefore restricted from publishing sensitive details and personal information. This rationale is evident from the Report's recommendation that only employees of regulated mass media organisations be designated as 'media' for the purposes of access to court information. It is submitted by the Committee that this is a misguided approach, and that the emphasis should be placed on a clear delineation between accessible and restricted information, with clear sanctions for the inappropriate use of restricted information. It is suggested that it is both more appropriate and more practical to regulate the access and use to which court information may be put rather than assigning some media with special access rights in anticipation that those media can be regulated, are reputable and can be trusted not to misuse sensitive and potentially damaging information.

Notwithstanding the above, it is acknowledged that in some closed court proceedings, a media report on the proceedings (with applicable limitations on the disclosure of identities etc) may be the only available method by which the general public will become informed. It may be important for the proper and open administration of justice that the public be made aware of the nature of proceedings while the identities of those involved (and other confidential or sensitive information) is otherwise protected from disclosure. Nevertheless, this would appear to be a matter of procedure for the court exercising the discretion to close the courtroom. It is submitted that appropriate measures and orders can be made by the court in such conditions allowing media access with any appropriate limitations on the right of publication that the court deems appropriate in the circumstances. It would appear unnecessary and inefficient to attempt to contort the principles of a court information access regime to allow for preferential media access in such cases. Doing so leads to a complicated access regime that the Report is directed at avoiding.

Happiness ...

... is having a draft accepted 'as is' by a law journal and having a conference pay your airfare as a speaker (my treats for the day).

15 April 2010

Biometric registration

In September last year I noted razzamatazz regarding India's ambitious biometric national identity card, promoted as "pro poor" and as an anti-corruption mechanism.

A contact has pointed me to a new item in an Indian news service, which notes that as part of preparation in Gujarat for the 2011 census "a photograph and biometric data — including prints of all the 10 fingers of the hands - of all individuals above 15 years of age will be collected along with primary information about them". That data will be fed into the national database/s.

The report indicates that -
Initially, only the primary identification information about individuals will be collected; the photos and the biometric data will be collected at a later date. Anyone refusing to give the information sought by census officials can be fined Rs1,000.

Giving this information, Manish Bharadwaj, director of census operations, Government of India, said that this was the first time that the National Population Register (NPR) programme had been linked to the census exercise.
Participation is mandatory -
"Under the Census Act, it is mandatory for citizens to furnish information sought by census officials", Bhargava said. "Anyone who refuses to give the required information can be fined Rs1,000 by the designated officer."

Primary information about individuals ... will eventually form the database for the building of a National Population Register (NPR). In the first phase of the exercise that begins on April 21, census officials will visit every household in the state with two forms - one for the 'House-listing and Housing Census' and the other for personal information (such as name, gender, age etc) for the NPR.

"Individuals will be required to fill the NPR form along with the form for household census", Bharadwaj said.
We might however assume that some people will follow tradition and bribe a collector or two to subvert the registration process.
Two months after the task of collecting primary information from individuals is over, the work on their photo and biometric registration will begin. "The primary information, biometric data and the photos of the individuals surveyed will be handed over to the Unique ID Authority of India ... The authority will scan the data and match it with the national database to avoid duplication".
The UID Authority will provide the UID photo and biometric registration data to local authorities "so that people can inspect them".

A contact, knowing of my fondness for longhaired pigs, has meanwhile pointed to an post on the joys of Indian sanitation and the implications of not servicing illegal squatter developments. (Scroll down for the cute piglet)

biopolitics agitprop

'The Biopolitical Unconscious: Toward an Eco-Marxist Literary Theory' by Leerom Medovoi in 24(2) Mediations states that -
In keeping with Fredric Jameson's founding claim in The Political Unconscious that Marxism provides not just one more hermeneutics of literature and culture, but a project that integrates all other hermeneutics to their historical determination, this essay will argue that ecocriticism, perhaps the youngest of contemporary literary hermeneutics, likewise can and should be dialectically assimilated to the project of a Marxist literary and cultural criticism. In redescribing ecocriticism as the analysis of modern literature's determination by the category of the "environment" within the successive iterations of the capitalist mode of production, however, I will also argue that Marxist literary criticism must be inflected in a new way. Insofar as politics, understood in their broadest sense, designate social struggles over how life (human and nonhuman alike) will be used as a means to a collective end that is also life, I will propose that the "absent cause" of history, which in the proverbial last instance determines the form of modern literature and culture, must be understood as a biopolitical unconscious.
The craving for an ultimate and unconscious cause - exit God, hello the Marx Bros? - is reminiscent of claims by fans of the Akashic Field theory of "past, present and future universes" as an "evolving" "collective consciousness" that unites the living and dead and that provides an "empirical" "scientific" basis for human rights law. (I beg to disagree.)

Medovoi indicates that -
In recoining this classic Jamesonian term, I am joining it to Michel Foucault's well-known analysis of the rise of "biopolitics" during the early nineteenth century, the historical moment at which, Foucault argues, life itself for the first time became the object of politics. If, in fact, it was both human and nonhuman life that became explicit objects of regulatory or governmental power at around this time, as part of the political reckoning with the demographic and industrial revolutions of the nineteenth century, then for quite some time now we have been facing a political modernity in which life, or "bios", is at the core of capitalism’s mode of regulation. What the media typically call the "environmental crisis" is better understood as the current face of politics itself, namely the many different kinds of geopolitical struggle to reshape the circuits of power that flow between planetary life and accumulation on a global scale. Just as the early industrial phase in the capitalist mode of production established the preconditions for Marx's ability to critique and historicize the key categories of classical political economy, so now the contemporary movement toward a "green" regime of capital accumulation — one that seeks a "sustainable" relation to planetary life — permits us to historicize what Jameson called the "path of the subject", the key concepts, categories, or reading habits upon which ecocriticism depends: the "environment" or "ecology", indispensible abstractions that (like labor or exchange value) have only become generalized concepts through the work of an ensemble of concrete historical processes in need of investigation. A rigorous eco-Marxist literary criticism today will first need to grasp the historicity of these terms, and then retroactively develop a symptomatic reading of literary and cultural texts that attends to their complex determinations by the same biopolitical history of capitalism that (by way of a different circuit) gives rise to the critical apparatus.
Ending with a bang, not a whimper? Medovoi concludes that
Much of the rhetoric of ecopolitics today in fact works precisely in this historical tradition, arguing that we will have to "green" our relationship to the environment in order to make capitalism more sustainable. The political goal of a properly Marxist ecocriticism will not be to save the environment. It will be to abolish it.
Meanwhile, Fatema Ahmed in the LRB notes an interview with farceur Slavoj Žižek in Cahiers du Cinéma, in which he notes that his piece on Avatar was written without seeing the film -
as a good Lacanian, the idea is enough, and we must trust theory. Žižek promises that he will see the film and then write a Stalinist 'self-criticism'.
Presumably he'd get just as much publicity if he changed his name to Salvador Dali and aped the antics of Avida Dollars. Ahmed continues that -
The good Lacanian goes on to inform the Cahiers editors that he wrote about The Talented Mr Ripley before seeing it, and that although he has seen Psycho and Vertigo (the interviewers sound quite jittery by this point), there's a long chapter on Rossellini in Jacques Lacan In Hollywood and Out and, no, he hadn't seen the films when he wrote it. Out of respect for Lacan? Not this time: "As a good Hegelian, between the idea and the reality, I choose the idea."

14 April 2010

Counting pirates ...

... is less satisfying, it seems, than counting sheep. The US Government Accountability Office (GAO] has released a 41 page paper on Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods [PDF], which questions some of the pieties about piracy but won't provide unalloyed joy for the friends or enemies of Big IP.

The paper indicates that in October 2008 the US Congress passed the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act) in order to "improve the effectiveness of U.S. government efforts to protect intellectual property rights" and require the GAO "to provide information on the quantification of the impacts of counterfeit and pirated goods".

In response the GAO examined existing research on the effects of counterfeiting and piracy on consumers, industries, government and the US economy. It also "identified insights gained from efforts to quantify the effects of counterfeiting and piracy on the US economy". The research exercise drew on interviews with officials and subject matter experts from US government agencies, industry associations, nongovernmental organizations and academic institutions. It also involved study of literature that quantifies or discusses the economic impacts of counterfeiting and piracy.

The GAO concludes that -
counterfeiting and piracy have produced a wide range of effects on consumers, industry, government, and the economy as a whole, depending on the type of infringements involved and other factors. Consumers are particularly likely to experience negative effects when they purchase counterfeit products they believe are genuine, such as pharmaceuticals. Negative effects on U.S. industry may include lost sales, lost brand value, and reduced incentives to innovate; however, industry effects vary widely among sectors and companies.
It goes on to comment that -
The US government may lose tax revenue, incur IP enforcement expenses, and face risks of counterfeits entering supply chains with national security or civilian safety implications. The US economy as a whole may grow more slowly because of reduced innovation and loss of trade revenue. Some experts and literature also identified some potential positive effects of counterfeiting and piracy. Some consumers may knowingly purchase counterfeits that are less expensive than the genuine goods and experience positive effects (consumer surplus), although the longer-term impact is unclear due to reduced incentives for research and development, among other factors.
In discussing that uncertainty - the sky may not be falling or may not be falling at the same rate in all places - the paper notes that -
Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies. Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many US industries are leaders in the creation of intellectual property.
The report states that -
data show that between fiscal years 2004 and 2009, the domestic value and number of U.S. seizures of counterfeit goods imported from other countries have fluctuated. These seizures have been concentrated among certain types of products. For example, seizures of footwear, wearing apparel, and handbags accounted for about 57 percent of the aggregate domestic value of goods seized in those 6 years. ...

The value of wearing apparel and cigarette seizures generally declined, while the value of pharmaceutical seizures generally increased. Several factors influence trends in seizure values. For example, values of seized goods can vary from year to year due to counterfeiters' responses to changes in marketplace demand or enforcement actions. For instance, in fiscal year 2006, a federal enforcement investigation resulted in the seizure of 77 cargo containers of counterfeit Nike Air Jordan shoes and one container of counterfeit Abercrombie & Fitch clothing. The estimated domestic value of these goods was about $19 million, representing about 12 percent of the total domestic seizure value that year. In addition, the level of federal border enforcement effort varies across ports, resulting in different seizure rates.
It goes on to note that -
seized counterfeit goods are dominated by products from China. During fiscal years 2004 through 2009, China accounted for about 77 percent of the aggregate value of goods seized in the United States. Hong Kong, India, and Taiwan followed China, accounting for 7, 2, and 1 percent of the seized value, respectively.

CBP data indicate certain concentrations of counterfeit production among these countries: in 2009, about 58 percent of the seized goods from China were footwear and handbags; 69 percent of the seized goods from Hong Kong were consumer electronics and watch parts; 91 percent of the seized goods from India were pharmaceuticals and perfume; and 85 percent of seized goods from Taiwan were computers and consumer electronics. CBP data show that goods were also seized frequently from Russia, Korea, Pakistan, Vietnam, and certain Southeast Asian countries. Unlike imported counterfeits, there is little information on the extent and sources for domestically produced counterfeits. According to the Congressional Research Service, the United States is especially concerned with foreign counterfeits of U.S. intellectual property. Compared to foreign countries, counterfeits produced in the United States are estimated to be relatively low.

13 April 2010


Boys, you wanna give me some action? Interventions into Policing of Racialised Communities in Melbourne, a 40 page report [PDF] by the Springvale Monash Legal Service, examines African young people's experiences of policing practices in the City of Greater Dandenong, Flemington and Braybrook (ie three regions of the Melbourne metropolitan area). In particular it examines experience of 'community policing', highlighting "a vast gap between what African young people have to say about these issues and public discourse about these issues".

That examination drew on input from African young people and "experienced community workers". It involved qualitative research, using semi-formal interviews, focus groups, observational notes and documentation such as policy documents and correspondence. The researchers asked -
• What are African young people’s experience of policing?
• What are African young people’s understandings of the role and nature of that policing?
• How do community workers understand the role and nature of the policing of African young people?
• What do African young people and community workers understand as the source of conflict between young people and police?
• What outcomes are community workers, African young people, and police seeking via their involvement in community policing activities?
• What are some of the effects of involvement in community policing activities on the part of both African young people and the police?
The report claims that -
African young people are over-policed in the regions of the study. This overpolicing is racialised.

Police enforce particular notions of acceptable usage of public space. This results in police-youth conflict.

Routine police harassment of African young people as well as police violence is either under-reported to the relevant oversight bodies, or these bodies are not adequately investigating these incidents, or both. The lack of an effective oversight body amounts to African young people (and probably other groups as well) being structurally excluded from justice.

Despite generally having a good understanding of their formal rights, for the most part young people cannot assert these rights — in fact asserting them often results in police hostility and aggression.
It argues that -
Community policing activities do not necessarily result in police being more responsive to marginal communities' concerns.

Fostering closer relationships between young people and police can ultimately be damaging for young people. Police can use these relationships for intelligence gathering, which can lead to criminal proceedings; and to pursue policy objectives, such as advocating for particular 'solutions' to conflict over others.

Where the community sector and young people became involved in community policing activities, the need to push for young people's actual entitlements (for example to freely use public space) is shifted off the agenda.

Rather than being contradictory, concurrent community policing and overpolicing practices are in effect different tactics to exercise police authority to the same ends.

There is very little evidence that community policing ameliorates the commonly identified negative impacts of traditional over-policing practices.

Community policing contributes to over-policing by adding an additional layer of police presence and surveillance.

Furthermore, African young people experience intensified policing in this fashion because they are African.
In response it recommends that -
Any responses to community-police relations by community networks, welfare organisations or policy bodies are led by, and designed in collaboration with, those most heavily affected by policing — Indigenous people, young people, migrants, ethnic minorities, homeless people, those experiencing mental illness, GBLTI communities and others.

People's negative experiences of policing be publicly acknowledged by the community sector, and that the sector offers support to those people being negatively affected by policing.

Other options for intervening in negative community-police relations are carefully canvassed instead of, or in conjunction with involvement in community policing activities like those described in this report. Clear objectives and guidelines for any joint community-police activities should be set before community organisations facilitate further contact between young people and police.

Policy bodies and the community sector undertake more research, which seeks to examine relationships between police and racialised communities. This should include new arrivals under the refugee program, and other minority groups such as the Pacific Islander community.

The multicultural lobby and relevant policy bodies work to significantly widen the scope of what are considered 'legitimate' responses to policing issues.

Policy bodies support calls for greater police accountability, and actively support grassroots initiatives that seek to intervene in police-community relations.

Revenue Law

Students of corporate governance, of revenue or constitutional law, and of legal discipline will be delighted by Kennedy v Commissioner for ACT Revenue [2010] ACAT 17, a report from the ACT Civil & Administrative Tribunal.

The decision concerns an application by Kurt Kennedy to review a decision of the Commissioner for ACT Revenue that disallowed an objection to the payment of rates regarding a residential property in the ACT. The report notes that Kennedy is "a qualified legal practitioner" who has a master's degree in law. What's more, "at the time of the transactions in question [Kennedy] was working in the office" of the Commissioner for ACT Revenue. It states that -
In documents filed with the tribunal, the applicant made serious allegations of fraud and malfeasance against various officers of the Territory government, including the respondent and members of his staff and the Registrar General. No credible evidence, or indeed evidence of any sort, was brought to support those allegations, and the tribunal completely disregards them. The Registrar General was not joined as a party to the proceedings. To make such allegations without evidence and in the case of the Registrar General without giving the person against whom the allegations are being made the opportunity to respond, reflects adversely on the credit of the appellant. This is particularly so as he is an admitted legal practitioner, who must be taken to know of the seriousness of making allegations of this nature without supporting them by credible evidence.
In identifying the basis of the application the report had earlier noted that -
While the applicant and his wife are now the registered owners of the Property, at the time that the rates notice issued the crown lease under which they held, and continue to hold, their interests was not registered pursuant to the Land Titles Act 1925 ('LT Act'). The crown lease had been signed by both parties and was registrable, but the applicant had elected not to lodge it for registration with the Registrar General.

The applicant was issued with a rates notice by the respondent, but refused to pay it. He objected to the payment of the rates on the basis that his crown lease was not registered. This was because of this decision to not lodge the signed and stamped lease with the Registrar General. He maintained that he and his wife were not the 'registered owners' upon whom the liability to pay rates devolves.

The applicant by letter of 1 September 2007 objected under the provisions of the Taxation Administration Act 1999 ('TA Act') to the payment of rates and taxes. This objection was disallowed by the respondent.
Paragraphs 27-31 note that
The applicant further contended that the respondent had no power to levy rates on the Property, because the Property was held by him on a lease from the Commonwealth. The imposition of rates on the Property would amount to a charge by the Territory government against the Commonwealth. The applicant contended that the Territory government had no power to bind the Commonwealth, and therefore it could not levy rates on the Property.

The applicant further contended that as the rates assessment notice had been issued in the name of "K A Kennedy" rather than his full name "Kurt Alim Kennedy" the assessment notice was thereby invalid. (He did not make a similar submission in relation to the description of his wife, who is referred to in the valuation notice and assessment notice as “O Berjaoui” (T docks 38 and 39) As noted above, she arguably remains jointly and severally liable with the applicant for the payment of the rates as a matter of contract, having signed the New Lease.)

At the hearing of this matter the applicant also contended that the imposition of rates on the Property amounted to a charge by the Territory in the nature of customs or excise duties, and that as these were the exclusive province of the Commonwealth government under section 86 of the Constitution, the attempt by the respondent on behalf of the Territory to levy rates was unconstitutional.

In his written submissions (Paragraphs 42 of each of the applicant's submissions of 17 March 2009 and 4 May 2009) the applicant also contended that the imposition of an obligation on him to lodge the New Lease for registration and to pay rates was a breach or limitation of his human rights as protected by international agreements, but this matter was not pressed at the hearing.
The fun increases in para 42 -
The applicant also stated that as he had not received any services from the respondent in respect of the rates he did not consider that he had an obligation to pay them. The applicant did not appear to consider that because the payment of rates provided the many municipal services (not necessarily directly in respect of the Property) that he, along with other residents of the Territory took advantage of every day, he was deriving a benefit from payment of rates.
the report continues that -
The applicant is a qualified legal practitioner with a master's degree in law, and at the time of the transactions in question was working in the office of the respondent. He acknowledged that he had access to the calendar indicating when the rates notices for various properties were sent to their owners. He did not concede that the timing of the surrender and the issue of the New Lease had been undertaken having regard to these dates. The tribunal found his evidence on this point to be unconvincing.

The applicant contended that the use of initials for his given names together with his surname did not amount to a correct description of him. He did acknowledge that his letter of objection dated 1 September 2007 to the delegate of the respondent gave as his name on the first page "K A Kennedy" and that he had signed the letter in the same way. He did not dispute that the description of himself in this letter and his signature were references to him. The applicant also acknowledged that there was no other person with the initials "K A" and the surname "Kennedy" living at the Property.

The applicant stated his view that the imposition of rates through the agency of the respondent amounted to an action by of the Territory government that imposed a liability on the Commonwealth as the owner of the freehold of the land in the territory.

The applicant stated that the imposition of rates by the Territory amounted to the imposition of customs and/or excise duties, because the business of leasing out land is part of the commerce of the Commonwealth, and of getting a productive use of its land. The applicant contended that the provisions of the ACT (Self-Government) Act of the Commonwealth limited the power of the Territory to impose rates on the land, due to the absence of the RA and the TA Act from the schedule to the regulations made under the self-government act. Accordingly, in his view the imposition of rates on the Property exceeded the powers of the Territory government.

The applicant also denied that he had been involved in a tax avoidance scheme, because he was motivated by his preference to have an unregistered crown lease and not pay the fees for registration, rather than avoid tax. ...

Having considered all of these matters, the tribunal is satisfied that the steps taken by the applicant constitute an attempted tax avoidance scheme. This conclusion is reinforced by the failure of the applicant to give any coherent or substantial reason for entry into the scheme. The applicant would not acknowledge the indefeasibility of title and the ordinary security and commercial advantage that results from a registered crown lease. The applicant's failure to do so satisfies the tribunal that the only real motive for the surrender of the old crown lease and the acceptance of the New Lease was an attempt to avoid rates on the Property by means of a tax avoidance scheme.
Unsurprisingly -
The tribunal determines that the decision of the respondent on the objection of the applicant to the assessment for rates on the Property, was correct and should be upheld. There are no discretionary reasons why the tribunal should not do so: the applicant has not argued for the exercise of discretion. The tribunal notes that to waive the rates on the Property as a matter of discretion, even if that was available, would simply be to impose obligations on other ratepayers who comply with their legal obligations, while allowing the applicant to take advantage of the many municipal services that the payment of those rates provides.

Provocateurs, united, will never be defeated

Having shocked a bien pensant student by noting that I respect the writing of both Michael Kirby and Dyson Heydon (apparently such promiscuity deserves punishment by stoning) I note Alan Johnson's short dismissal of Žižek in Dissent.

Johnson quotes Norberto Bobbio as -
My experience of both public and private life has taught me that "for the most part", the solutions provided by people who avoid clear-cut "either-or" approaches are, if not better, then at least less imperfect. I am a convinced democrat, so convinced that I continue to defend democracy when it is inefficient, corrupt and risks plunging into one of two extremes: either war of everyone against everyone else or rigid order imposed from above. Democracy is where extremists do not prevail (and if they prevail then democracy is finished. This is also the reason why the extreme wings of a pluralistic political spectrum on the right and left are united in their hatred of democracy, albeit for opposing reasons.

Democracy and its ally reformism can make mistakes because democratic procedures themselves make the correction of mistakes possible. Extremists cannot afford to make mistakes because they cannot turn back. Mistakes made by democratic and reformist moderates can be put right, those made by extremists cannot, or, at least, can only be put right by shifting from one extreme position to another. ...

[We should respect] the most salutary fruits of the European intellectual tradition, the value of enquiry, the ferment of doubt, willingness to dialogue, a spirit of criticism, moderation of judgment, philological scruple, a sense of the complexity of things.
Johnson highlights Žižek's claim in the New Statesman invocation of Christianity as -
a destructive negativity, which does not end in a chaotic void but reverts (and organises itself) into a new order, imposing it on to reality
and claim that
Revolutionary politics is not a matter of opinions but of the truth on behalf of which one often is compelled to disregard the 'opinion of the majority' and to impose the revolutionary will against it"
Foucault and Schmitt did that schtick so much better but aren't round any more for a soundbite ... First As Tragedy, Then As Farce (London: Verso 2010), to adopt the title of Žižek's latest potboiler.

12 April 2010

the internet made me do it

A friend has pointed me to an ABC item on the latest alarums in South Korea - land of fibre to the toaster and cybercafes - regarding 'internet addiction'.

The ABC reports that the South Korean government "estimates the country has about 2 million internet addicts" and that "New measures are being introduced ... seeking to combat the problem of internet addiction".

Those measures supposedly follow the trial of a couple for "negligent homicide" - "their three-month old daughter died of malnutrition, reportedly because they were too busy raising a virtual child in an online game".

The two million "addicts" are part of S Korea's population of around 48 million people and are presented as "almost 9 per cent of the country's total number of web users".

The report doesn't offer details that would be useful in assessing what happened.

Was the death similar to Australian parents leaving kids (or pets) in a locked car on a hot day. Did they stay away from home from days on end? Simply dislike the child, ignore it and then reach for 'internet addiction' (so much more resonant that pachinko or television addiction or cinema addiction) as a defence or basis for lenient sentencing?

How addicted does an internet user need to be before culpability disappears? Is it more profound than alcoholism or drug addiction? Or just more convenient as a topic of biopolitics? Moral panic?

Soigné fastidious civilised cultured judiciary

After an afternoon contemplating a job as an airport grader in Antarctica (clearing snow from the field plus cooking for the blokes and what I take to be fixing the septic system) and introducing an Equity student to the delights of Dyson Heydon's 2004 Quadrant 'Judicial Activism and the Death of the Rule of Law' lecture, famous for the snark that -
the soigné, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary – our new philosopher-kings and enlightened despots – are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude – the great beast, as Alexander Hamilton called it – ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.
In short, radical legal change is best effected by professional politicians who have a lifetime’s experience of assessing the popular will, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and fortuitous basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions.
Professional politicians may not be an ideal class, but they are better fitted than the courts to make radical legal changes. It is curious that the Mason court, whose members individually have tended to stress that the Constitution was made by the people of Australia, and who collectively implied into the Constitution a provision requiring freedom of political communication on the basis that the Constitution provided for representative democracy, whereby parliamentary legislators are chosen directly by the people, tended to treat itself as another legislature even though it was not chosen by the people: Australian Capital Territory Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 137 per Mason J. Footnote 3 on that page contains the enigmatic observation: “It should be noted that the notion of representative government leaves out of account the judicial branch of government.” The perception that “all powers of government ultimately belong to, and are derived from, the governed”, and that the governed elect legislatures but not courts, has not led the High Court to the conclusion that the courts should assume a very different role from that of parliamentary legislatures.
I'm reading 'Oral History and the Study of the Judiciary' by Chad Oldfather in the March 2010 George Washington Law Review [PDF].

Oldfather comments that -
As Judge Posner put the point, in confessing his feeling "a certain awkwardness in talking about judges": "Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology". ... Quantitative studies provide a picture of the judiciary as a whole, but speak only in generalities. Qualitative accounts are useful to round things out, but the self-selected nature of judicial writings on the judicial process suggests that such accounts provide an incomplete perspective as well. Judges who have chosen to write about the processes of judging may have different perspectives than those who have not, and it is consequently difficult to conclude that their insights apply broadly to other judges.

A book like William Domnarski's Federal Judges Revealed holds out the promise of filling this gap. The book is constructed around oral histories of roughly 100 federal judges at both the district and circuit-court levels. Its raw material, in other words, consists of discussions in which a wide array of federal judges — not just those who have taken the initiative to address the matter in print — talk about the processes of judging. Here, then, we have the perspective of the average judge, and we have enough of a sample size to imagine that we might be able to engage in some generalization about the characteristics of the federal judiciary.

In focusing on oral histories, Domnarski has tapped into a source of information on judges and judging that has been largely overlooked. There are at least two reasons for thinking that this approach will yield worthy insights. First, because the interviews on which Domnarski draws were conducted orally, the judges lacked the ability to stage-manage to the same extent that they could in a lecture or written article. To be sure, the judges were undoubtedly still controlling the message. But an interviewer who establishes a good rapport with a judge can introduce a comfort level that perhaps leads the judge to be somewhat less guarded than she otherwise might. Second, the timing of these interviews is significant. The judges who sat for these interviews were almost uniformly at the end of their careers. For them, the battles had been fought, and any felt need to position themselves for a potential promotion had passed. This, too, encourages candor.

Domnarski is thus, to take just two examples, able to relate some revealing stories about the appointments process, and to provide as full and unguarded an account of the extent to which judges rely on their law clerks as is available anywhere. Domnarski encourages these sorts of conclusions about the unique contributions of oral history. He contends that "the sources we would ordinarily expect to turn to have not produced anything resembling a critical mass of information to allow us to begin making judgments about the performance of the federal judiciary, either on an individualized basis or on the judiciary as a branch of government". Only oral histories, he suggests, can tell us "who the judges are and what they do".
Oldfather goes on to comment that -
My aim in this Essay is to explore these claims and intuitions, with an eye toward determining just how useful oral history is to the study of the judiciary. Part I examines oral history as a methodology, on the understanding that we can appreciate the value of the products of oral history only after having a firm appreciation for oral history's methodological strengths and weaknesses. Part II reports the results of my review of three oral histories provided by the late Judge Thomas Fairchild of the Seventh Circuit, one of which was among those reviewed by Domnarski. Part III then turns to Federal Judges Revealed. It provides a brief overview of the book and an assessment of its contribution to the study of judges and the judiciary.

11 April 2010

Penal populism

Lock up n throw away the key (along with conventional law)?

That's one question after reading an item on today's SMH site, repackaging a media release announcing that -
the State's worst murderers and violent criminals will be kept behind bars after their sentences have finished under a radical plan by the NSW government that will target prisoners who resist rehabilitation.

Premier Kristina Keneally will today order Corrective Services to begin an audit of the 750 "worst of the worst" prisoners in NSW.

Prisoners refusing rehabilitation programs or judged not to have taken responsibility for their crimes will be detained indefinitely under new powers. The plan will build on the Crimes (Serious Sex Offenders) Act, which provides for the extended detention and strict monitoring of rapists and sexual offenders.
The article goes on to claim that -
Extended Supervision Orders would be expanded to keep murderers and violent criminals caged in the same way as sex offenders.

Prisoners such as Motekiai Taufahema, who murdered Senior Constable Glenn McEnally in 2002 and is due for release in two years, could be locked up for longer if he is deemed not to have reformed. ...

Civil libertarians said the plan undermined the justice system and would deter prisoners from rehabilitation if their sentences were effectively meaningless.

NSW Council of Civil Liberties secretary Stephen Blanks said: "The rule of law requires politicians to set the framework of justice and for judges to deliver sentences away from political influence.

The prison system is there to encourage prisoners to reform but, if they know they can effectively be re-sentenced by the government, there is no incentive to reform."
Vague reporting as an ailing Government staggers to an election should be read with caution but the claims are consistent with recent penal populism in NSW. Indefinite or permanent detention on the basis of 'deeming' (by an official?) is deeply problematical, antithetical to the principles that alleged offenders are presumed innocent, are tried in an open court in which they have an opportunity to defend themselves against charges (with the prosecution bearing the burden of proof), and if convicted are sentenced to a finite period of imprisonment. Having "done the time" the offender is free.

We might indeed choose to incarcerate some offenders permanently - there is nothing in the NSW Constitution to prevent life imprisonment for jaywalking - or to increase the tariff for particular offences (eg double the time in prison). However it is disturbing to see Governments availing themselves of scope for permanent detention of offenders on the basis that those people might commit offences in future, criminalising people on the basis of association, or keeping ostensibly sane people in custody because those offenders have refused to go through the motions of acknowledgement & repentance.

The NSW policy, if reported correctly, raises questions about the nature and effectiveness of rehabilitation in NSW prisons. It also raises questions about community perceptions of offenders and the rule of law, along with questions about law's conceptualisation of disability. Should we regard offenders who show no remorse for their offenders as being 'mad' (and thus appropriately addressed through the mental health system, potentially through life incarceration). How does that gibe with offenders who indeed feel no remorse but are sufficiently savvy to perform the street theatre that prevents deeming as recalcitrant?

The Premier's media release [PDF] indicates that -
The statewide audit will:
• identify which violent criminals are not taking responsibility for their actions;
• identify which criminals are participating in rehabilitation programs; and
• help determine whether stricter orders should be implemented to keep offenders behind bars.

Premier Keneally said the review is about strengthening measures to protect the community and keep dangerous people from returning to society.

"This is not a blanket approach – those prisoners who do the right thing will not be impacted by this review – but those refusing to take responsibility for their actions will be identified", Ms Keneally said.

"This is about protecting society from violent offenders who refuse to rehabilitate - plain and simple." ....

Corrective Services Minister Phil Costa said the NSW Government has a range of rehabilitation programs to help address offending behaviour.

"We make no apologies for running a tough corrective system, but it is also a system that provides many opportunities for those inmates who want to modify their offending behaviour," Mr Costa said.

"Inmates have the opportunity to pursue a range of education options from their School Certificate and Higher School Certificate to TAFE accredited courses that greatly improve employment prospects upon release."