11 June 2011


From 'The Information Essay' in the current issue of N+1 -
Just as this is an age of great wealth inequality, it is also an age of great inequality of knowledge or, more exactly, factual information. For all its democratic potential, the fact-filled internet has only heightened the pre-Google asymmetry between those, on one side, loyal to Baconian methods of patient, inductive gathering of facts — the ways of the card catalog and the archive, of the analysis and evaluation of empirical data — and those, on the other side, who didn't need to read Foucault or the Frankfurt School to nurture a suspicion that positivist orders of knowledge mask a hierarchy of power in which they are meant to occupy the lowest rungs.

It’s the Republican Party's deliberate disinformation strategy, more than any properties inherent in so-called information technologies, that has created these two parallel Americas. In one of them, weapons of mass destruction were found in Iraq, climate change is a patent hoax, and the Laffer curve is the most basic truth of economics. As for the inhabitants of the other universe — "the reality-based community” of old-fashioned skeptics and empiricists, frequenters of public and university libraries, readers of the New York Times and of Elizabeth Kolbert in the New Yorker, avid perusers of Harper’s Index and WikiLeaks — we possess ever vaster quantities of mostly accurate facts, and not much sense of what to do with them. Data data everywhere, and not a thought to think! Outside of a hedge fund or the CIA, there aren't too many places where knowledge is power. Much of the time, intellectually and politically, knowledge is powerlessness.

The division between empiricists and fantasists is clearest in politics. But it’s beginning to enter literature. Dickens in Hard Times made fun of Gradgrind — "Now, what I want is, Facts. Teach these girls and boys nothing but Facts. Facts alone are wanted in life" — and there is a way in which, until recently, information and what used to be called "imaginative literature" were usually understood to be addressing themselves to the right and left hemispheres of the brain instead of the political spectrum. Lately, however, there has also come to be a literary expression or embodiment of liberal empiricism, an emergent literary Gradgrindism that deserves analysis.

Apart from glimmerings in early forebears — Flaubert in Bouvard & Pécuchet, Dickens himself in Bleak House, a few chapters of Moby-Dick, and most famously Zola — the informationization of literature became most clearly visible in what we've called "the research novel" of the 1980s and ’90s: the fact-flaunting of writers as diverse as Sebald, Tom Wolfe, and Don DeLillo, whose brilliant but failed Cosmopolis gave us Eric Packer, a portrait of the artist as a hedge-fund tycoon and obsessive gatherer of facts. As James Wood observed in 2001, 'knowing about things' has become one of the qualifications of the contemporary novelist. Still, the research novel mostly subordinated its facts, even as these increased in density, to plot and character. What we begin to glimpse in recent years, especially in "literary nonfiction", is something different: the evolution of a style that resembles "information for information’s sake", in something like the art for art's sake of 19th-century French decadence. What can this new literature of information be saying? The nature of facts is supposed to be that they speak for themselves. The nature of literature of course is the opposite — that it always means more than it says. Maybe the new literature of information can tell us something about our relationship to facts that the facts alone refuse to disclose?

The dossiers of documents, the montages of objects, in magazines like Harper’s or Cabinet, stage first of all a deliberate refusal to use the information they display for any other purpose, like persuasion or synthesis. Information, they suggest, is the very thing itself, self-sufficiently eloquent — no embellishment or commentary required. These fact-heaps feed our appetite for what practitioners in these genres like to call reality, something said — by David Shields for instance — to be in short supply.

The absence in these texts of anything resembling argumentation is itself a tacit kind of advocacy. The assemblage of information (Wikipedia and WikiLeaks being collective examples of the form, and Jonathan Lethem’s famous essay-of-quotations being an individual one) promotes the cause of Roland Barthes’s open form, where meaning-making is fundamentally a readerly rather than writerly activity. It also brings to mind Walter Benjamin’s over-cited proclamation that montage is "useless for the purposes of fascism" — because it doesn’t predigest reality, in the manner of propaganda. The liberal empiricists’ idea is that facts, naked and massed together like the human beings in those Spenser Tunick photographs, serve the cause of political and intellectual freedom, because facts don’t tell you what to think. They report, you decide.

In the best of the empiricists’ works, information for information’s sake becomes information for art’s sake.
And from 'A Global Panopticon? The Changing Role of International Organizations in the Information Age' by Jennifer Shkabatur in 33(2) Michigan Journal of International Law (2011) 1-57 -
Achieving compliance is one of the most challenging aspects of international law. International organizations are entrusted with the responsibility to monitor state compliance with international obligations, but often fail to do so. International regulation therefore becomes ineffective. The Article argues that the introduction of information technologies transforms this reality.

The Article explores the powerful potential of online compliance monitoring in three major fields of international regulation: health, environment, and human rights. It demonstrates that information technologies allow international organizations to actively search for and unearth otherwise unavailable information on state compliance. As part of this, the Article provides the first legal account of how information technologies enabled the World Health Organization to overcome state resistance and detect the early signs of the recent global pandemics - SARS and Swine Flu. Further, the Article suggests how comparable measures can be adopted by other international regulatory regimes.

Discussing the normative implications of this phenomenon, the Article posits that it can generate an unprecedented "global panopticon": a situation in which states lose control over sensitive information and can always be watched by non-governmental bodies. The Article discusses the repercussions of this new reality, and offers a legal framework that mitigates the adverse effects of this “panopticon” while bolstering its benefits.
All in all unpersuasive.

'Much Ado About Data Ownership' by Barbara Evans in 25 Harvard Journal of Law and Technology (2011) suggests that -
Recently there have been calls to clarify ownership of data held in large health information networks. This article explores the realities of what patient data ownership would imply to explain why a clearer allocation of entitlements to raw health data would neither enhance patient privacy nor promote access to valuable data resources for public health and research. It updates the debate to account for the 2009 HITECH Act, which correctly recognized that raw patient data are not the valuable resource; these data acquire value only through the application of infrastructure services. The HITECH Act drew on a long tradition of American infrastructure regulation that offers real promise in resolving the infrastructure bottlenecks which (rather than the unresolved status of data ownership) have been the key impediment to data access. Despite this progress there are two unresolved problems, both heretofore neglected in the literature: First, the existing federal regulatory framework governing data access conceives the state’s police power to use data to promote public health much more narrowly than the police power is conceived in all other legal contexts. Second, existing regulatory provisions allowing nonconsensual access to data for research fail to incorporate any “public use” requirement to ensure that unconsented research uses of data are justified by a publicly beneficial purpose. As things stand, persons whose health data are used in research have no assurance that the use will serve any socially beneficial purpose at all. This article reframes the debate. The right question is not who owns health data. Instead, the debate should be about appropriate public uses of private data and how best to facilitate them while adequately protecting individuals’ interests.
Evans concludes that -
Many Americans share "a common belief that, today, people must be asked for permission for each and every release of their health information". They are mistaken. At all times in our nation’s history, there have been pathways for nonconsensual use of health data. The Institute of Medicine recently recommended moving away from a consent-based model altogether for certain types of health informational research and replacing it with two alternatives: one would rely on certified entities, operating under strict privacy and information security requirements, to manage data uses; the other would rely on "waiver of informed consent by an ethics oversight board". The waiver provisions of current regulations were never designed to serve as the gateway for nonconsensual use of data and they have multiple flaws. Data propertization will not solve these problems.

Psychologists have observed that feelings of ownership "are so basic to the human psyche that communities will create rudimentary property rights even in the absence of formal legal structures". Modern utilitarian property theory has not fully eradicated the popular conception of property “as an extension of the human person". This personhood-based account of property is implicit in the tendency to link property and privacy and may account for the strong urge people feel to consider ownership as a way to address data privacy and access issues. This urge must be resisted. It distracts from the more important questions, "What is an appropriate public use of private data?" and "How shall we make that decision?"

10 June 2011

The Ellsberg Model

'What if Daniel Ellsberg Hadn't Bothered?'(University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 11-23) by Heidi Kitrosser uses “constitutional counterfactuals” in asking what difference, if any, did the leak and subsequent publication of the Pentagon Papers make?
Despite this author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds, this essay does not build a counterfactual universe in which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak made in the universe that we do occupy.

This essay considers the impact of the Pentagon Papers leak on public and judicial attitudes toward secrecy-based assertions by the executive branch. I use the term secrecy-based assertions to cover two types of claims: claims that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see. This essay argues that the Pentagon Papers leak and its aftermath helped set in motion a process of social learning – albeit a non-linear one with plenty of limits and setbacks - that continues to this day on the dangers of excessive deference to secrecy-based assertions by the government.

With respect to assertions that the public would bless the government’s actions if only it knew what they know, the Pentagon Papers were widely viewed as giving lie to such claims as they related to the Vietnam War. The Papers’ revelations impacted Americans’ willingness to take on faith the honesty and competence of their government. Nor was this impact lost on the Nixon Administration, whose paranoia skyrocketed in the wake of the leak, contributing to a chain of nefarious activities that led to Nixon’s resignation and further catalyzed public distrust in government. This state of affairs led among other things to an influx of newly elected congresspersons championing restraints on the executive branch. Yet these events also gave rise to an influential and continuing backlash against restraints on presidential power, one that became most evident during the administration of George W. Bush and continues in the Obama Administration. As the backlash and the ongoing influence of its attendant constitutional claims illustrate, the impact of the Pentagon Papers leak on public, political, and judicial deference to executive power is hardly straightforward. Nonetheless, a key impact of the leak – indeed, the reason that it gave rise to so strong and continuing a backlash– is that it serves as a permanent, high-profile reminder that lies, mistakes, and incompetence may well lurk behind a government admonishment to “‘trust the President because only he [He?] knows the facts.’”

Closely related to wariness toward government claims of expertise based on secret knowledge is another type of skepticism fostered by the Papers’ leak: that toward government claims that information must be kept secret in the name of national security in the first place.

The impact of the latter, like that of the former, is hardly unmitigated. For example, the case law is littered with instances before, after, and even during the period of the leaks and ensuing scandals in which courts defer heavily to national-security based pleas to keep information secret. Furthermore, even as the Supreme Court refused to grant a prior injunction to prevent the Papers’ publication, a number of Justices suggested, in concurring and dissenting opinions, that post-publication punishment might be constitutional if authorized by statute.

Nonetheless, the leak of the Papers constitutes a moment of social learning embedded in our national psyche, counseling us to suspect overreaching when the government invokes national security to justify secret-keeping. Indeed, there is good reason, on which I elaborate below, to believe that the federal government would be less restrained than it currently is in punishing leaks of classified information were it not for the Pentagon Papers experience.

Pragmatism, Populism and Copyright

Thomas Cotter in 'Legal Pragmatism and Intellectual Property Law' (University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 11-22) advocates rejection of 'foundationalism' in favour of 'legal pragmatism'.

That foundationalism is -
the idea that any one body of law can be adequately explained by some grand theory, united by a single goal or value, or logically deduced from certain foundational principles.
Legal pragmatism instead is based on the idea that knowledge is instrumental and that, in turn, legal rules as well should be evaluated more by their practical consequences - consequences that may, it seems, be assessed from an economic perspective with a Chicago school flavour - than by their formal consistency or conformity to some abstract grand theory. Cotter emphasises the importance of "practical reason, the practice of making rational decisions in light of uncertainty" before going on to suggest that
that a legal pragmatist approach to IP law has both strengths and weaknesses. Among the strengths of such an approach are its recognition of the competing values that animate IP policy and doctrine; its understanding of the limits of both instrumental and natural rights theories in explaining and shaping the contours of IP rights; and its appreciation for the common law method of incrementally adapting doctrine to changing circumstances — in the present case, to changing technological environments. At the same time, however, some versions of a legal pragmatist approach risk exacerbating certain negative trends in the evolution of IP law and policy. An approach that naively embraces totality-of-the-circumstances tests, for example, may induce IP users to overcomply with their legal obligations and thus raise social costs without a commensurate public benefit. Similarly, an approach that overemphasizes the unquantifiable and the incommensurable may inhibit the use of economic analysis as a tool (albeit an imperfect one) for precisely stating one’s assumptions, predicting consequences, and testing results; and, more generally, may blunt the critical edge necessary to counter the ever-expanding scope of some IP rights. Policymakers, in short, should avoid the temptation to turn legal pragmatism’s antifoundationalist stance into a rigidly foundational principle of IP law and policy.
There is a more grounded approach in Stuart Banner's crisp American Property: A History of How, Why and What We Own (Cambridge: Harvard University Press 2011), which explores the history of spectrum licencing, patents, personality rights, real property and other rights in the US.

'Copyright and Social Movements in Late Nineteenth-Century America' [PDF] by Steven Wilf in 12(1) Theoretical Inquiries in Law (2011) argues that -
The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests to strengthen claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ everexpanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors as a social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this period, activists promoted the idea of the public — and not simply the author — as primary to the workings of American copyright. The framing of the purposes of copyright, the appeal to a broader public, and the complex negotiations surrounding the passage of an international copyright act after a long period of gestation was formative to the creation of modern United States copyright law. Ironically, the movement for international copyright also sharpened the identification of interest groups. The first modern American comprehensive copyright legislation, the 1909 Copyright Act, was drafted by gathering together these groups for negotiations remarkably similar in style to those which led to the protection of the rights of foreign authors — but which would strongly embrace a proprietary model.
Wilf's article is complemented by 'The Origins of American Design Protection' from Jason Du Mont & Mark Janis. Those authors comment that -
Design patent protection is the oldest American form of intellectual property protection for ornamental designs, but still the most enigmatic. Congress passed the first design patent legislation in 1842, operating on the assumption that existing rules for utility patents could be incorporated en masse to protect designs. This Article questions that assumption. Drawing on new archival research and historical analysis, this Article demonstrates for the first time how the design patent system originated. We analyze the international trade aspects of the first design patent legislation, linking the legislation with a brief burst of protectionist measures associated with the Whig party. We also examine technological innovations that ushered in the first major era of American industrial design in key antebellum industries, and we analyze lobbying efforts on behalf of those industries that led to proposals for early design protection, proposals that did not assume the incorporation of patent rules. We also prove for the first time how the American design patent system originated as a knock-off of British copyright and registered design legislation, and why the American system was likely forced into a patent rubric. Finally, we conclude by offering concrete suggestions for the courts and Congress to ease the design patent system back to its original roots.

09 June 2011

Summary Justice

Reading the 38 page Exercising Discretion: The Gateway to Justice report [PDF] from Her Majesty's Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate.

The report looks at cautions, penalty notices for disorder and restorative justice in England and Wales. It has been read by the UK mass media as indicating that "100,000 criminal offences wrongly result in an 'out of court disposal' every year" and more persuasively that "there is a need for a new approach, with greater consistency and transparency in the use of out-of-court disposals".

The authors kick off the executive summary by noting that -
In 1951, Sir Hartley Shawcross, who was then Attorney General, stated that 'It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution'. He continued with what is regarded as a classic statement on public interest: that there should be a prosecution 'wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest' ...

Offenders should never be allowed to think that they are immune from the law and from the consequences of committing crimes. However, this does not mean that every offender caught by police must be prosecuted in a criminal court in order to administer a just outcome. Effective justice that fits the circumstances of the crime can be achieved for victims and offenders – particularly young people – outside the formal court system by adopting different methods of dealing with crime. As a rule of thumb, where there is sufficient evidence, serious offences and perpetrators who carry on offending despite being given appropriate chances to stop need to be dealt with in court. Less serious cases can be dealt with using approaches known as ‘out-of-court disposals’, always provided that these are a proportionate response to the offence or offender. Such methods have often been called ‘diversions’ from the criminal justice system; but in recent years they have been applied widely to an increasing number of cases, with the result that they are now a substantial area of practice in their own right.

The most commonly used out-of-court disposals are cannabis warnings, cautions (simple or conditional) and penalty notices for disorder. In addition, ‘Restorative justice’ is now often included in this category, although it can also be used after a conviction at court.

These forms of justice are designed to simplify and speed up dealing with less serious offending. They were introduced as a proportionate response to so-called low-level crime. They do not require as much paperwork as a court case and when used effectively in neighbourhoods and communities can be a very efficient way of dealing with offending ‘on the spot’, particularly when police officers are able to check the identity and history of offenders using mobile technology. They are also generally less expensive.

Where there is sufficient evidence, police officers and prosecutors are responsible for deciding whether to send offenders to court or deal with them with such disposals. They therefore act as a gateway to criminal courts, and so play a vital part in the management of the criminal justice system, ensuring that the right cases are sent to court and less serious cases are managed effectively, using the appropriate disposal for the offence, offender and victim. The exercise of this discretion is not unfettered and sometimes the decisions are not as straightforward as they initially appear; but since the results have significant consequences for the victims of crime, offenders and communities it is important that there is real transparency and accountability for the decisions made.
Founded on that philosophy, the two agencies "conducted a focussed, indicative study of a small number of cases to look more closely at out-of-court disposals and the contribution they make in the fight against crime", asking is justice being served by making the right decisions in most cases and is there a wider understanding about why some offenders go to court and others do not?

The report notes that in 2009, 38% of the 1.29 million offences 'solved' by police were dealt with outside of the court system. It concludes that use of out-of-court disposals has "evolved in a piecemeal and largely uncontrolled way". Restorative justice may increase victim satisfaction and reduce re-offending but -
substantial growth in the use of out-of-court disposals has created some disquiet among criminal justice professionals over inconsistencies in their use, in particular for persistent and more serious offending. We found wide variations in practice across police force areas in the proportion and types of offences handled out of court.
In response "the time has come to formulate a national strategy to improve consistency in the use of out-of-court disposals", drawing on good practice, promoting understanding, reducing excessive variations, improving victim satisfaction, reducing re-offending and of course providing value for money.

The authors indicate that they are "acutely aware of the challenge that a national strategy may increase the bureaucratic burdens of prosecutors and police officers", commenting that they "do not believe that such increases are an automatic consequence", in contrast to -
more definite consequences to decisions about whether someone enters the formal criminal justice system or receives an out-of-court disposal: an individual’s chance of getting a job or travelling abroad can be affected, for instance, and there may be wider implications for public confidence.
The agencies found that the use of out-of-court disposals varied considerably across all 43 force areas in England and Wales in 2009, from 26% to 49% of all offences brought to justice.

Not all out-of-court disposals carry the same obligations of disclosure to a court or an employer, with the choice of disposal potentially impacting on an individual’s future prospects. The choice may be for bureaucratic reasons -
An offender in one area may be dealt with by way of restorative disposal for a first offence, whereas in another area he or she might have received a caution – which is visible in a Criminal Records Bureau (CRB) check. We did not find any force with an explicit policy to increase their use of out-of-court disposals. Where greater use is evident, this is linked in some places to a strong emphasis on achieving targets associated with improving performance in the level of offences brought to justice. Target chasing has not been conducive to the effective exercise of discretion.
The report goes on to note that -
There are clear time benefits for some disposals: for example, issuing a PND on the street as opposed to at a police station after arrest saves nearly three hours of police time. Charging the offender would take almost five hours more, as well as the time taken to deal with the case in court, where the offender’s first appearance may occur several days or weeks later. Further work is required, however, to assess administrative processes and times spent preparing and presenting the case in court, and to provide a more comprehensive estimate of potential savings and efficiency improvements.
Given the high victim satisfaction rate for conditional cautions, it is clearly a frustration to police that each one takes, on average, an extra hour to complete compared to a simple caution (due to the additional requirements to send it to the Crown Prosecution Service (CPS) for a decision). Police officers regard this as unnecessary bureaucracy that is deterring use of an effective and otherwise popular option, while CPS staff hold mixed views about who ought to be making the decision to issue conditional cautions.
The report concludes that -
Because out-of-court disposals have developed in a piecemeal fashion, they have not been regulated with the same intensity as the more formal criminal justice system. The expression ‘out-of-court disposals’ perpetuates a sense that they are much less important than a disposal in court – in effect a soft option. If there is to be a real change in this perception a greater understanding about what amounts to a proportionate response to offending will be necessary.

We identified wide variations in the application of out-of-court disposals, which go beyond the local differences one would naturally expect. We identified particular concerns about the use of out-of-court disposals for persistent offenders. Recording practices may have contributed to this difficulty.

It is not possible or desirable to strive for consistency at the expense of local discretion – but wide variations in practice may lead to a perception, real or imagined, of unfairness. And there is nothing more likely to diminish public confidence in the criminal justice system in its widest sense than a sense of unfairness. Greater consistency in the choice of out-of-court options in individual cases will influence public confidence in the criminal justice system: and there are now opportunities to achieve this, as traditional targets are swept away. ....

The current out-of-court disposal regime was found to be a legitimate and time-efficient option for dealing with less serious crimes. We have identified areas of good practice where out-of-court disposals have been used to achieve speedy disposals for minor offending which were both cost effective and proportionate, particularly when that 'disposal' was administered quickly after the event and in consultation with the victim, providing feedback whenever possible. We found that the level of victim satisfaction hinged largely upon the extent to which they have been kept informed and updated.

The application of sound commonsense principles should go a long way in remedying some of the difficulties we have identified. Perhaps the key to making the right decision is for the decision-maker to ask: ‘If all the facts and circumstances of this case were published, what would the public think?’


The NY Times reports that the leading European Union data protection regulators will investigate Facebook over privacy aspects of photo-tagging, specifically use of face-recognition software to suggest people's names for tagging in pictures without their permission.

The Article 29 Data Protection Working Party and individual EU privacy watchdogs will study Facebook's practice for possible rule violations, with regulators in Ireland and the UK for example considering the photo-tagging function on Facebook.

Gérard Lommel of the Working Party is reported as commenting that -
Tags of people on pictures should only happen based on people's prior consent and it can't be activated by default.
Facebook, recurrently criticised for volatile privacy policies (and for an apparent willingness to disregard privacy principles through unheralded introduction of new features that are belatedly withdrawn in response to consumer criticism) reportedly explained that -
We launched Tag Suggestions to help people add tags of their friends in photos; something that's currently done more than 100 million times a day. Tag suggestions are only made to people when they add new photos to the site, and only friends are suggested.
We might question that defence: just because a large number of consumers (naive or otherwise) do something does not mean that it is right. In March this year Facebook indicated that it planned to provide user addresses and mobile phone numbers to third-party application developers, and might disclose the home addresses and mobile numbers of minors. Such provision might delight application developers but is not legitimate merely because the cash registers jingle.

The Tag Suggestion feature is the default in the accounts of existing Facebook users. Interested in fixing the default? Facebook charmingly points you to its blog, which explains how users can disable the function if they do not want their names to be automatically suggested for other people’s pictures. A better practice would be to ensure that the photo-tagging feature is not the default and that instructions for disablement were clearly identified in each user's control panel, so that people were not forced to scrabble around in the Facebook blog. A express and proactive commitment by Facebook not to independently use face recognition is desirable.

Unsurprisingly, Lommel comments automatic tagging suggestions "can bear a lot of risks for users" and the European data protection watchdogs will "clarify to Facebook that this can't happen like this". Another Working Party member commented that -
We would expect Facebook to be upfront about how people's personal information is being used. The privacy issues that this new software might raise are obvious.
Facebook's history raises questions about whether it will indeed be "upfront" and whether it will abide by any commitment in the absence of regulation.

In the United States EPIC has indicated it plans to file a complaint with the Federal Trade Commission over the feature.

EU Directive on access to a lawyer

Reading the proposed Directive of the European Parliament and Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest [PDF].

The proposal aims to set common minimum standards on the rights of suspects and accused persons in criminal proceedings throughout the European Union to have access to a lawyer and to communicate upon arrest with a third person, such as a relative, employer or consular authority.

The proposal is the third stage in a series of measures identified in the 30 November 2009 European Council Resolution on a 'Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings'. Those measures were tied to the Stockholm Programme approved by the Council in December last year and represent -
a comprehensive package of legislation to be presented over the next few years, which will provide a minimum set of procedural rights in criminal proceedings in the European Union.
The first stage was Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation. The second stage ("currently under negotiation on the basis of a Commission proposal") concerns the right to information regaring criminal proceedings, setting out minimum rules on "the right to receive information on one’s rights, and on the charges, as well as on the right of access to the case file".

The proposed Directive noted here is based on Article 82(2) of the Treaty on the Functioning of the European Union, which provides that -
to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
The Directive thus "seeks to improve the rights of suspects and accused persons", with the Commission commenting that -
Having common minimum standards governing these rights should boost mutual trust between judicial authorities and thus facilitate the application of the principle of mutual recognition. A certain degree of compatibility between the legislation of Member States is pivotal to improve judicial cooperation in the EU.
The Commission notes that -
Article 47 of the Charter of Fundamental Rights of the European Union stipulates the right to a fair trial. Article 48 guarantees the rights of the defence and has the same meaning and scope as the rights guaranteed by Article 6(3) of the European Convention of Human Rights & Fundamental Freedoms (ECHR). Article 6(3)(b) ECHR stipulates that everyone charged with a criminal offence has the right ‘to have adequate time and facilities for the preparation of his defence’ while Article 6(3)(c) enshrines the right ‘to defend [one]self in person or through legal assistance of [one’s] own choosing’. Article 14(3) of the International Covenant on Civil & Political Rights contains very similar provisions. Both the right of access to a lawyer and the right to communicate upon arrest provide formal safeguards against ill treatment and thus protect against a potential breach of Article 3 ECHR (prohibition of ill treatment). The right to communicate upon arrest promotes the right to respect for private and family life in Article 8 ECHR. The 1963 Vienna Convention on Consular Relations provides that, on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.
The European Court of Human Rights has repeatedly held that Article 6 of the ECHR applies to the pre-trial stage of criminal proceedings and that a suspect must be offered the assistance of a lawyer at the initial stages of police questioning and as soon as deprived of liberty, irrespective of any questioning1. The Court has also ruled that these guarantees must apply to witnesses whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial.

The proposed Directive indicates that
A suspected or accused person deprived of his liberty should be entitled to communicate upon arrest with at least one person named by him, such as a family member or employer. Member States should also make sure that the legal representatives of a child suspected or accused of crime are informed as soon as possible that the child has been taken into custody and the reasons why the child has been taken into custody, unless it is contrary to the best interests of the child. This right should only be subject to derogation in very limited circumstances.

Where the detained person is a non-national, it is appropriate for the consular authorities of the person’s home state to be informed. Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the 1963 Vienna Convention on Consular Relations, which provides that on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.


From James Lundberg's review in Slate of Ken Burns' The Civil War -
The Civil War is a deeply misleading and reductive film that often loses historical reality in the mists of Burns' sentimental vision and the romance of [Shelby] Foote's anecdotes. Watching the film, you might easily forget that one side was not fighting for, but against the very things that Burns claims the war so gloriously achieved. Confederates, you might need reminding after seeing it, were fighting not for the unification of the nation, but for its dissolution. Moreover, they were fighting for their independence from the United States in the name of slavery and the racial hierarchy that underlay it. Perhaps most disingenuously, the film's cursory treatment of Reconstruction obscures the fact that the Civil War did not exactly end in April of 1865 with a few handshakes and a mutual appreciation for a war well fought. Instead, the war's most important outcome—emancipation—produced a terrible and violent reckoning with the legacy of slavery that continued well into the 20th century.

These are important realities to grasp about the Civil War, but addressing them head on would muddy Burns' neat story of heroism, fraternity, reunion, and freedom. It would also mean a dramatically reduced role for Foote, the film's de facto star. Foote's wonderful stories and synopses of the war's meaning, which manage to be at once pithy and vague, cast a spell on the viewer. When Foote tells us that "the Civil War defined us as what we are and … opened us to being what we became, good and bad things," we may not be quite sure what he means. But his accent, his beard, and his hint of sadness incline us to think there must be profound depths in his tortured language.

Too often, Foote's grand pronouncements and anecdotes become substitutes for more serious consideration of difficult historical dynamics. In the first episode, 'The Cause', Foote nearly negates Burns' careful 15-minute portrait of slavery's role in the coming of the war with a 15-second story of a "single, ragged Confederate who obviously didn't own any slaves." When asked by a group of Yankee soldiers why he was fighting, the Rebel replied, "I'm fighting because you're down here," which, according to a smirking Foote, "was a pretty satisfactory answer." In similar fashion throughout, Foote asks us to put aside the very troubled political meanings of the Confederate Lost Cause and join him in an appreciation of both its courtly leaders and its defiant rank-and-file soldiers.

Foote's powerful and affecting presence in the film would be less problematic if he shared airtime more equally with other talking heads. However, as he gets the starring role and the literal last word of the film, Foote creates an irresolvable tension at its center. As much as we want to remember the Civil War as a war for freedom, emancipation, and the full realization of American ideals, there is Foote calling us into the mythical world of the Confederacy and the Old South in spite of all they stood for.

IPA and Tobacco Trade Marks

Enjoying 'Factoids and legal bollocks in war against plain packaging', Simon Chapman's cogent evisceration of IPA claims regarding the proposed Australian plain paper tobacco packaging regime, previously noted in this blog.

Chapman comments that -
With the passage of the government's bill on plain packaging now assured by the support of the opposition, the Greens and all but one of the independents, an ever-desperate tobacco industry is now concentrating on the legal apocalypse that they say will descend on Australia through the courts.

These arguments are all a paper-thin house of cards, starting with the central problem that plain packaging will not extinguish brand identities. All brands will still carry brand names allowing smokers to clearly exercise their freedom of choice to select between the much-vaunted but mostly non-existent differences in brands. This is critical, because in the highly unlikely event of a ruling by the High Court in favour of the industry, all calculations of compensation will need to take account that branding differences have only been diminished, not extinguished.

Given that some 30-40 nations now have appropriated massive sections of packs with graphic warnings and that not a cent has been claimed or awarded in brand damage anywhere in the world for this egregious assault on brand identity, the prospects of any claim for huge compensation even in the unlikely event of a favourable ruling are vanishingly small. The companies would need to demonstrate with precision that sales losses arose from losing colours, logos and different pack shapes, not brand names.

Given that consumption is falling every year, this task would be like unraveling gossamer while wearing boxing gloves.
After noting that "Few of those megaphoning this legal Armageddon appear to have even read the draft Bill itself", Chapman critiques the much publicised claim that the restrictions will involve $3bn compensation by the national government to the poor cigarette companies.

In discussing the submission to Senator Fielding's inquiry into plain packaging by Tim Wilson of the IPA (the advocacy body that is a bastion of free enterprise and coy recipient of money from the cancer sticks industry) Chapman comments that -
At page four in his executive summary he says plain packs would lead to a court order to award the tobacco industry between $378 million and $3027 million per year. Table 2 (page 13) in his submission shows two lines of numbers for the total value of tobacco sales in Australia in 2006: one for the value including excise tax (which goes to the government) and one for the sales value ex-tax (in other words the returns to manufacturers and retailers combined). By taking the trouble to differentiate the two, Wilson must know that no court would order the return of the tobacco tax component to the companies: it’s the ex-tax value that fuels such a pipe-dream.

Wilson then calculates the ex-tax value on two assumptions: a 10% and a 30% fall in sales each year that might follow the introduction of plain packs. He calculates these two figures at $378 million and $1.135 billion. So where does the $3 billion factoid come from? Are you ready for this? The tax-included sales value of a 30% fall is $3.027 billion.

So how reasonable are Wilson’s assumptions that plain packs will cause a fall of a minimum 10% through to 30% a year? Between 1999 and 2003 the average annual fall in total dutied cigarettes was just 2.6%. The most sales have ever fallen in one year was just shy of 10% in 1999 after the combined impact of a change in the way cigarettes were taxed (from weight to per stick) and a big boost to the national quit campaign by health minister Michael Wooldridge.

Most analysts of the likely impact of plain packaging believe that its main impact will be on children over the next generations. Just as no Australian aged under 19 today has ever seen a local tobacco ad or tobacco sponsored sporting event, no child growing up after 2010 will ever see carcinogenic tobacco products packaged in carefully market researched attractive boxes. Smoking rates by kids today are the lowest ever recorded. Plain packs are expected to continue that downward momentum, starving the industry of new generations of new smokers as older smokers quit and die early. Plain packs will probably not influence long-term, older smokers much.

Wilson’s $3 billion number is thus based on a projected decline, which is so far off the planet of declines ever recorded, that it is dreamland stuff. Worse, it appears to be a willful selection of the tax-included biggest number he could sight in his own table. To the delight of the industry, it has now become a virulent factoid with Google showing more than 7000 hits for “plain packs cigarettes” and “$3 billion”.
It's good to see academia talking truth to power.

Margins and Personality rights

Two significant items on personality rights, privacy and defamation

'International Publications and Protection of Reputation: A Margin of Appreciation But Not Subservience?' by Barbara McDonald in 62(3) Alabama Law Review (2011) 477-511 -
explores the modern phenomenon of libel proceedings in foreign courts by citizens of other countries, the approach of courts and legislators in dealing with so-called "libel tourists", and the international policies and principles which determine whether a court will accept jurisdiction over a libel action or enforce a foreign libel judgment. It argues that, in this context, not all foreign claimants are to be dismissed as opportunistic "tourists" and also that, sometimes, regardless of enforceability, there is a value to a claimant in a respected foreign court’s ruling on the libel. Defamation law is strongly reflective of attitudes and national values. While core constitutional law values drive U.S. courts to depart dramatically from the usual assumptions about enforcement of the judgments of civilized nations, the article argues that courts must recognise that universal values of freedom of speech and protection of reputation may play out differently in countries of different social and historical backgrounds. The concept of a margin of appreciation, a concept borrowed from modern European jurisprudence, may assist courts to respect the libel laws of other countries where they do not conform exactly to those of the forum.
'Looking Again at Photographs and Privacy: Theoretical Perspectives on Law’s Treatment of Photographs as Invasions of Privacy' by David Rolph (Sydney Law School Research Paper No. 11/07) notes that -
Courts in the United Kingdom, Australia and New Zealand are increasingly entertaining claims for invasions of privacy. Many of these cases involve the publication of photographs by a media outlet. In the United Kingdom in particular, the means of protecting personal privacy has been the adaptation of the existing, information-based cause of action for breach of confidence. This has entailed treating photographs as a form of information. This essay analyses the imposition of liability for the publication of intrusive photographs, as it is developing in the United Kingdom, using Campbell v MGN Ltd [2004] 2 AC 459 and Douglas v Hello! Ltd [2008] 1 AC 1 as case-studies. It applies critical insights from leading theorists on photography, such as Barthes, Berger and Sontag, to suggest that the judicial treatment of photography is underdeveloped.

08 June 2011


With the gibe about 'points' in the preceding post it's timely to recall the 30 May statement by Senator Kim Carr regarding 'Improvements to Excellence in Research for Australia' -
After several years of development, the first round of the Excellence in Research for Australia (ERA) initiative was run in 2010, with results published by the Australian Research Council (ARC) earlier this year in the ERA National Report. The exercise has been an overwhelming success in meeting its objective of providing institutions, researchers, industry and students with a sound, evidence-based means of identifying areas of strength and potential, as well as areas where we need to do better.
So overwhelmingly successful, it seems, that it will be changed.
These assessments were made against international benchmarks using the indicators that have been developed over time – in many instances over many decades – by the disciplines themselves. This has underpinned the strong support for the ERA methodology across the higher education research sector.
The silence of the lambs is a signifier of "strong support"?

Now we need more support, more silence, and just a tweak or two of the infrastructure funding "roadmap" noted here?
I have said all along that we are keen to undertake meaningful consultation. We remain open to suggestions on enhancements to what we know to be a very good scheme.
Oops, some ungrateful lambkins have been bleating -
I have been aware for some time of concerns within the sector about certain aspects of the exercise, particularly the ranked journal lists. These concerns have been communicated to me directly, reported in the sector media, and voiced in the ARC's extensive sector consultations ahead of preparations for the second iteration of ERA in 2012.
Hardly surprising, dare I say, when a journal that purveys astrology, quantum mysticism, dowsing, remote healing and other manifestations of what hoary old sceptics such as myself would characterise - fairly or otherwise - as parapsychology (ie World Futures) is 'ranked' and therefore has a value for academic advancement. To adapt the words of Johnny Rotten, just get the DIISR points and don't worry about the bollocks.

The Minister went on to comment that -
The ARC has advised me that consultation has revealed that there is a widespread preference for limited change, to ensure that ERA 2010 and ERA 2012 outcomes can be compared. Overall, however, the ARC considers that making a small number of changes to the ERA 2010 methodology could substantially enhance the integrity and acceptance of the ERA 2010 evaluation exercise, without compromising comparability.

As always, we are in the business of making refinements that improve the operation of ERA. I therefore commissioned the ARC to produce an options paper outlining different ways we might be able to utilise these indicators to address these concerns, and to consider any implications arising from the potential adoption of alternatives. I placed particular emphasis on the absolute need to maintain the rigour of the ERA exercise, to ensure the comparability of the results of the next iteration with ERA 2010, and to pay close attention to the detailed concerns of the sector. Within those parameters, however, I wished to explore ways in which we could improve ERA so the aspects of the exercise causing sector disquiet – especially issues around the ranked journals list – could be minimised or even overcome.
Steady, Sir Humphrey, steady.
As the result of this process, I have approved a set of enhancements recommended by the ARC that deal substantially with those sector concerns while maintaining the rigour and comparability of the ERA exercise. These improvements are:
• refinement of the journal quality indicator to remove the prescriptive A*, A, B and C ranks;
• introduction of a journal quality profile, showing the most frequently published journals for each unit of evaluation;
• increased capacity to accommodate multi-disciplinary research to allow articles with significant content from a given discipline to be assigned to that discipline, regardless of where it is published ... ;
• alignment across the board of the low volume threshold to 50 outputs (bringing peer-reviewed disciplines in line with citation disciplines, up from 30 outputs)... ;
• modification of fractional staff eligibility requirements to 0.4 FTE (up from 0.1 FTE), while maintaining the right to submit for staff below this threshold where affiliation is shown, through use of a by-line, for instance).
As with some other aspects of ERA, the rankings themselves were inherited from the discontinued Research Quality Framework (RQF) process of the previous government, and were developed on the basis of expert bibliometric advice. Patterns of their utilisation by the RECs and detailed analysis of their performance in the ERA 2010 exercise, however, have made it clear that the journal lists themselves are the key contributor to the judgements made, not the rankings within them.

There is clear and consistent evidence that the rankings were being deployed inappropriately within some quarters of the sector, in ways that could produce harmful outcomes, and based on a poor understanding of the actual role of the rankings. One common example was the setting of targets for publication in A and A* journals by institutional research managers.

In light of these two factors – that ERA could work perfectly well without the rankings, and that their existence was focussing ill-informed, undesirable behaviour in the management of research – I have made the decision to remove the rankings, based on the ARC’s expert advice.
Carr concluded that -
The journals lists will still be of great utility and importance, but the removal of the ranks and the provision of the publication profile will ensure they will be used descriptively rather than prescriptively.

These reforms will strengthen the role of the ERA Research Evaluation Committee (REC) members in using their own, discipline-specific expertise to make judgments about the journal publication patterns for each unit of evaluation.
What that means - the Government's enthusiasm for openness and transparency has apparently yet to trickle down through some parts of the education machine - few people yet know. We might thus be cautious in endorsing the Minister's confidence that -
these improvements will strengthen the ERA methodology and minimise the unintended consequences arising from inappropriate external use of the indicators, while maintaining the comparability of future rounds with the ERA 2010 results.


Somewhat to my surprise this blog apparently features in a list of "the top 20 legal blogs across Australia, the UK and the US", along with gems such as Warwick Rothnie's blog and that of Stephen Warne. That has impressed one of my smarter students, underwhelmed my partner and amused practitioner peers.

I am unpersuaded that legal blogging is perceived by the academy as more than a quaint and vaguely threatening pastime, something that along with submissions to law reform bodies (highlighted in my 'Opening The Door To Justice: Questions About The National Information Regime' paper for last week's Justice Connections conference) is a diversion from the zealous pursuit of DIISR points, grant applications or the gameplaying highlighted in Pierre Schlag's paper highlighted earlier this week.

Lawrence Solum commented in 'Blogging and the Transformation of Legal Scholarship' in 84 Washington Law Review (2006) 1071-1088 that -
blogging is essentially epiphenomenal — an effect and not a cause. Blogging is merely a particular medium — a currently popular form of web-based publishing. Nonetheless, the emergence of academic legal blogging is an important indicator of other trends — real causes that are driving significant transformative processes. These trends include the emergence of the short form, the obsolescence of exclusive rights, and the trend toward the disintermediation of legal scholarship.
We should not ask "will blogging somehow transform legal scholarship?", as that is "the wrong question". (Solum's assessment is one with which I agree. This blog is neither an attempt to transform legal publishing (and writing) or to refashion teaching, although - as suggested by Melbourne academic Sinclair Davidson - it might be a contribution to a conversation.)

Douglas Berman's 'Scholarship In Action: The Power, Possibilities and Pitfalls of Law Professor Blogs' in the same issue of the WLR commented that -
A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs — like articles and books — are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions.

Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor’s vocation. And the key follow-up question is whether blogging should be part of that vocation.
Solum suggests that -
if blogs will play a role in the transformation of legal scholarship, it will be a modest one. It seems to me that blogs can function in two ways that contribute to the emergence of the new order of short-form, open access, disintermediated legal scholarship. First, blogs themselves can serve as the medium by which short-form scholarship is written and disseminated. That is, blog posts can be legal scholarship. If anyone ever thought otherwise, they simply were not paying attention. Blogs can be legal scholarship because anything that can be written can be written as a blog post. Blogs lend themselves to very short pieces — but blog posts of over one thousand words are not uncommon and even longer pieces can be broken into several posts. Second, blogs can serve to introduce and disseminate legal scholarship. In this regard, the interaction between SSRN and the blogosphere is instructive. On Legal Theory Blog, I mention or discuss several hundred SSRN papers every year. Other blogs interact with SSRN in similar ways. A similar point can be made about the blogosphere and other forms of legal scholarship. For example, the "Legal Theory Calendar" is a feature of Legal Theory Blog. The calendar publicizes talks, workshops, and conferences that may be of interest to academics who work in legal theory. Because many workshop, colloquium, and conference Web sites have a Web page that includes links to the papers that will be presented, blogs can link both to the event and to the downloadable paper—once again creating a new channel for the dissemination of legal scholarship. Moreover, each individual legal scholar can create her own blog — which can serve as vehicle for the promotion of the scholar’s own work.

One might think that blogs are replacing or supplementing the traditional intermediaries. There is something to that thought. I am not arguing that the old intermediaries will disappear. Blogs serve as an alternative channel of information about legal scholarship — an alternative form of "peer review" that is more competitive, open, and transparent than the traditional peer review processes. Blogs are more competitive for obvious reasons. Peer-reviewed journals are expensive to produce and their boards of editors are self-perpetuating; although some fields have many competing peer-reviewed journals, the editorial boards frequently interlock. By contrast, the entry barriers to starting a blog are low, and each new blogger is free to compete for readers. Blogs are more open and transparent — except for anonymous blogs — because their assessments of legal scholarship are available to the whole world via the Internet. By contrast, most peer-reviewed journals keep the identity of reviewers secret and reveal only which articles were accepted. The reasons for acceptance and rejection (but not the identity of the reviewers) are usually communicated to the author (or rejected aspirant), but are rarely disclosed to others. Of course, competition and transparency can cut in multiple directions. Some bloggers may compete for readers by emphasizing the accessible and eschewing complex ideas that are difficult to understand. Some bloggers may respond to transparency by self-censorship — blogging only when they have "something nice" to say. But precisely because blogging is transparent, such behaviors are likely to be noticed by readers. Blogs, like journals, acquire reputations that affect readership and the ways that readers use the information they glean from blogs.

Prediction is perilous, and I have no special knowledge of the future of legal scholarship. But I do have an opinion: we are moving in the direction of open access to disintermediated short-form legal scholarship. I am much less confident about the specific forms and institutions the future will take. But I do have an opinion: blogs will play only a modest supporting role in the future of legal scholarship. Scholarship is about "papers", not "posts".
In practice, in the enterprise university, scholarship is often about "points" rather than insights or "papers" per se. Reflecting the criticism by US Chief Justice John Roberts noted here, Berman comments that -
Although teaching realities in law schools still unduly reflect our trade school history, scholarship realities for law professors now unduly reflect a graduate school affinity. Formally and informally, law professors are discouraged from researching and writing on doctrinal issues. The forms and content of the most praised (and the most questioned) types of legal scholarship push law professors — especially pretenure law professors — to focus on big, abstract issues that will interest other academics, and to avoid working on small, concrete issues that concern practitioners, judges, and policymakers.

For some current and future law professors, the modern conception of "serious legal scholarship" is a cause for celebration. For those who enjoy researching and writing about big and abstract issues, the current norms of legal scholarship justify spending a lot of professional time on favored activities. But for those interested in the development of legal doctrines and legal practice, the modern professorial equation is much different. Indeed, the emphasis on certain types of scholarship not only discourages working on doctrinal issues, but also rewards law professors for maximizing time spent with other academics and minimizing time spent with students and practitioners. In the law professor marketplace, strong student evaluations or a major bar lecture is nice, but a workshop at Chicago or a conference at Harvard is golden. Lengthy articles, especially if well placed and well cited, lead to raises; innovative teaching materials or an effective amicus brief lead to inquiries about how a traditional article is progressing.
He concludes -
These observations about the modern state of law teaching and legal scholarship highlight additional reasons why I see blogging as a valuable activity for law professors. As suggested before, blogging produces an extraordinary synergy and connection between teaching and scholarship (and service, too). I have used my blog in different ways in six different classes I have taught in recent years. Blog posts have provided the stimulus (and some text) for much of the "traditional" scholarship I have recently produced. Blogging has directly and indirectly played a role in a broad array of service opportunities and activities. Indeed, my most thoughtful posts often at once serve as innovative teaching materials, an effective amicus brief, and the start of a traditional article.

After Panlock

A 36 page Centre for Employment & Labour Relations Law working paper by Caroline Kelly on 'The problem of workplace bullying and the difficulties of legal redress: an Australian perspective' [PDF] considers physical and psychological abuse in commercial and non-commercial environments. That abuse was analysed in a paper by Patricia Easteal at last week's Justice Connections conference.

Kelly comments that -
there has been an increasing recognition of workplace bullying as a serious issue both internationally and within Australia. Research clearly indicates its disturbing prevalence in the modern workplace and, moreover, illuminates the burdensome pecuniary and non-pecuniary costs of workplace bullying for the victim, the workplace and the wider community.

Presently there are various legal avenues that may be available to individuals who are the targets of workplace bullying. At common law, workplace bullying may give rise to a number of actions both in tort and contract. Under statute, targets of workplace bullying may be able to pursue legal redress pursuant to occupational health and safety legislation, anti-discrimination legislation or workers’ compensation legislation. In addition to this, in certain circumstances, targets of bullying in the workplace may also seek recourse through the Fair Work Act 2009 (Cth) if they can demonstrate the breach of an enterprise agreement or modern award, unfair dismissal or adverse action.
She argues that -
it is apparent that these avenues may prove inadequate or unavailable for many victims of workplace bullying; where some are highly limited in their application, others may give rise to evidentiary problems as well as great cost and uncertainty. Though a wide variety of avenues of legal redress exist, none target workplace bullying as a legally cognisable harm in itself. Both individually and collectively, it will be contended that these avenues ultimately fail to address this serious issue and that, as a result, the legal landscape that confronts victims of workplace bullying is fragmented and inaccessible, with a number of substantial lacunae. To further demonstrate this point, a case study which is representative of both the nature of workplace bullying itself, and the difficulties of pursuing legal redress in its wake, will be examined.
What is the solution? Kelly suggests that "legal reform is necessary to address this issue" -
Based, in part, on specific legislative initiatives that have been implemented in countries such France and Belgium, this paper will propose a new, targeted statutory regime which seeks, through civil means, to name, proscribe and prevent workplace bullying in specific terms. The proposed legislation seeks to tackle workplace bullying on an individual level, through the proscription of workplace bullying behaviours, and on an organisational level, through the imposition of new obligations upon the employer to provide a workplace free from bullying. The enactment of such legislation under the umbrella of the Fair Work Act would enliven the complaint and compliance mechanisms of both the courts and the regulatory agencies of the Fair Work System. The proposed legislation would therefore tackle the problem of workplace bullying systematically and comprehensively, operating in both a preventive and remedial capacity. Such an approach, this paper will argue, is fundamental in counteracting the cultural normalisation of bullying in Australian workplaces.

07 June 2011

Disciplinarity and 'chew-on-the-furniture' boring

From Pierre Schlag's 'The Faculty Workshop' (University of Colorado Law Legal Studies Research Paper No. 11-12 ) -
what we have in most faculty workshops are extremely stylized (and formally redundant) presentations. One can easily begin to suspect then that it's not at all about the speaker. And to say it outright: Most of the time it isn't. Instead, what matters most is the disciplining effect enacted through the highly stylized questions that the speaker is asked to answer. Again, most people think that it is the speaker who is being disciplined (and surely some speakers may feel that way on occasion). But the speaker is merely the occasion for the reciprocal disciplining of audience members by each other. We are signaling to each other via our questions and thereby constructing for ourselves and each other the appropriate genre for the law review article/faculty workshop performance.

Much of this reciprocal disciplining is a subtle negotiation — performed largely by way of non-verbal cues (smile, nod, sigh, sitting up, reclining back, dropping the eyelids down to half mast, taking care of email, whispering in a neighbor's ear, reading faces, and so on).

The non-verbal cues effectively valorize or devalorize the questions asked by the audience members. The speaker (being an outsider) is often oblivious to the specific meanings engendered: Not knowing the identity of the faculty characters (or the institutional dynamics) he or she can only make educated guesses as to where the valences of faculty power may lie.

Law professors, of course, will have a hard time thinking that such non-verbal cues matter much. Life of the mind and all that. But the cues actually do — because everyone (at least at non-dysfunctional law schools) refrains from saying what they actually think. If one of your colleagues asks a dumb question, for instance, you can't really be expected to say "Well, that's pretty fucking stupid — isn't it? Work on that one ahead of time — did you?" And likewise if the speaker drones on, you can‟t really say, "So your paper — it's kind of boring. Actually, chew-on-the-furniture hurt-yourself-boring." What could a speaker possibly say to that? "No, it's not." "Well, it's interesting to me." "I've got a lot of smart people on my side." You see the point. Besides, it's not nice. That's why the infinitely more delicate (even if not altogether conceptually nuanced) non-verbal cues are so important.

Of course, it's not just the non-verbal cues that matter. The actual questions asked are important as well. But you already know the standard questions. As a gentle reminder here, I will simply list them as rapidly as possible in a single paragraph. Please do read as quickly as you can. Here goes: the rules v. standards question, the institutional competence question, the this-bit-of-history is against you question, the have you considered ... question, the 'on page 18 you say ... and yet in footnote 262, you say' ... question, the capillary trench warfare question, the I've actually worked on this as a lawyer question, the real law/real politick question, the rational utility maximizer would have done otherwise question, the cognitive error/bias of your choice question, the where's your empirical support question, the in terrorem effects question, the perverse incentives question, the institutional design question, the but you have not dealt with ... question, the how would you deal with .... question, the somewhat nastier, wouldn't you have done better arguing that ... question, and, of course, the ubiquitous what should the courts do question.
Schlag comments that -
All these questions function to construct and delimit the "ideal" law review article — the one that will successfully negotiate the gantlets of faculty workshops everywhere and score five million plus downloads. There are actually several genres that conform to these requirements, but life is brief, patience is thin, and time is fleeting, so here very quickly then is the formula for the Mother of all Law Review articles (circa 2000-2010).

This is what you must write:
1. In the article, pick a fight with a certain accepted legal approach, tradition, whathaveyou which, as you are about to show, is on at least one significant point demonstrably wrong. Bonus points if the approach, tradition, whathaveyou is already not well liked.

2. Deploy a mid-level but intellectually non-trivial theory as your framework. It should come from some extra-legal field (eg psychology). It should not be so forward-leaning as to make your audience feel cognitively challenged, but it should nonetheless be sufficiently aggressive as to imply the breaking of new ground. (Stay away from the French.)

3. Make the mid-level theory yield (this is extremely important) what is at once a common sense and a center-liberal solution. This greatly increases your (incredibly marginal) chances that some official body will actually adopt your solution — adoption being something that is oddly treated as a sign of good scholarship as opposed to what it is (or might be) — namely, a sign of good service. Hewing to a common sense center-liberal solution also greatly increases your chances that the immediate audience will believe you are right.

4. Leave enough ambiguity in your text to prompt and sustain a maximum degree of self-gratifying audience projection. A relatively crude way of doing this (though it works) is to take a fairly well settled common law notion (eg "decide cases narrowly") which people already know and extrapolate it to a vastly more self-inflated version of itself—to which you will then attach a fancy new Latinate name. In terms of symbolic economy, it's a win/win: the old knowledge of law is made to feel hot and new while the hot and new is made to feel solidly grounded in the law. Remember: No one in the legal academy has ever gone wrong by regressing towards the mean unless, of course, 1) they overdo it, or 2) they're too obvious about it — as in actually announcing it: "Regressing to the Mean — A Proposal for ..." Even then, apparently, there's not much risk.

5. In terms of tone, you basically want the stylistic equivalent of (4) above. That is to say that you want to appear servile—while nonetheless making it obvious to others that this servile affect is in service of establishing your dominance. In sharp contrast to when you were a lawyer, you want to make sure everyone understands this.

Vote early, vote post-mortem

Announcing that "Many Zimbabwean voters are centenarians and some are in prams", a 62 page report by Professor R W Johnson for the South African Institute of Race Relations suggests that no fair referendum or election can be held in Zimbabwe on the basis of the current electoral roll.

In releasing Preventing Electoral Fraud in Zimbabwe [PDF] the Institute comments that -
Though life expectancy in Zimbabwe has dropped to 45 years, the voters’ roll, as it stood in October 2010, contains the names of:
• roughly 1 490 ‘new’ voters (never previously registered) aged over 100;
• some 41 100 voters (some new and some earlier listed) aged 100 or more, which is four times the number of centenarians in Britain;
• about 4 370 new voters over 90 years old; and
• a total of some 132 500 such nonagenarians.
The roll also has roughly 16 800 voters who not only share the same date of birth — recorded as 1st January 1901 — but were also toddlers at the time that Cecil Rhodes died in March 1902. All of them are now more than 110 years old.

The roll also lists about 230 new voters under the voting age of 18. In October 2010, many of them were under ten years old while one was a baby and quite a number were aged two.

To make matters far worse, the current roll is also based on the 2008 voters' roll, which contains about 2.5m names too many, given Zimbabwe’s probable population size. This phantom vote is more than enough to settle the outcome of any election. ...

Instead of removing these 2.5m fictitious entries, the Registrar-General, Mr Tobaiwa Mudede, an outspoken Zanu-PF supporter, has added more than 360 500 new voters to the current roll. Yet many are far too old or too young to merit inclusion. "If experience is any guide, phantom 'voters' are likely to vote early and often in the next Zimbabwean poll,” Johnson cautions.
Johnson comments that -
Comparing the voters’ roll as of October 2010 with the roll used in the 2008 harmonised elections, we find that in 2010 there are 366,550 new voters who have not appeared on any previous roll. This is extremely surprising considering that the overall population of Zimbabwe has been falling due both to a very high mortality rate and large-scale emigration. It might have been expected, nonetheless, that there would be some new voters in the youngest age group of roughly 18 to 25.

There is also a very unlikely total of 49,239 new voters over the age of 50 – and this when average life expectancy in Zimbabwe has fallen to 44.8 years. Even more surprising is the fact that 16,033 of these new voters are over the age of 70 years, while 1,488 of them are over the age of 100. ...

Then again, a number of these new voters have no valid address, despite the stipulation requiring this. ...

Further, it is important to point out that the 366,550 new voters who have been added to the roll as of October 2010 are by no means equally distributed around the country, as one might expect. In the extreme cases, one finds that the constituency of Cheredzi South has only 33 new voters added to its roll while the constituency of Gokwe Nembudziya has no less than 13,896 new voters added to its roll. There can be no satisfactory reason for such extraordinary variations.

One of the most striking anomalies is the number of exceptionally old people among the new voters. There are, indeed, no less than 4,368 new voters over the age of 90 years on the voters’ roll as at 1st October 2010. If one amalgamates the list of new voters with the old list, one finds an extraordinary total of 132,540 persons over the age of 90 on the roll. Given the average life expectancy of less than half that figure, this is completely incredible. In addition, we find that once again these nonagenarians are not evenly distributed among constituencies. Instead, they are again bunched into the same minority of constituencies which have had exceptionally high numbers of new voters added to them. ...

Finally, there are no less than 16,828 registered voters with the same date of birth, given as 1st January 1901. It might be argued that the enumerator simply gave this birth date to all very senior citizens who were in doubt as to their true age – though that already suggests an impermissible degree of official intervention in the registration process. However, if one's credulity is stretched by this extraordinary number of 110-year-olds, it is stretched way beyond breaking point when one learns that no less than 1,101 of these 110-year-olds are registered in Mr Mugabe's birthplace, Zvimba, presumably to act as a reserve category capable of producing particularly pleasing results for Zanu-PF there. ...

To conclude, then, the Zimbabwe voters’ roll, as at October 2010, is not only a wholly incredible document but an extremely dangerous one, which lends itself to all manner of electoral manipulation or ballot-stuffing. It is more or less guaranteed to produce disputed results. It is beyond redemption and cannot even be used as one of the building blocks in the construction of a new and authoritative voters' roll. It simply has to be scrapped completely, while work on a proper roll must begin again from scratch.
In Australia meanwhile the Australian National Audit Office (ANAO) has released a 122 page report on Management of the Aviation and Maritime Security Identification Card Schemes.

The report comments that -
Consistent with their legislative frameworks, the ASIC and MSIC schemes provide for the involvement of a range of entities, including both industry organisations and Australian Government agencies. OTS, a division within DIT, administers the regulatory framework for the schemes on behalf of the Australian Government, and AusCheck, a branch within AGD, coordinates the background checks of ASIC and MSIC applicants. There are also over 1200 industry participants that regulate access to secure areas where the display of ASICs and MSICs is required, in excess of 200 bodies that are authorised to issue the cards, and some 250,000 cardholders, who are required to meet their obligations to properly display a valid security card while in a secure area. ...

[S]some of the risks associated with the current delivery model could be better managed by OTS. These risks primarily relate to issuing bodies and visitor management and are inherent in the devolved nature of the schemes.

As previously noted, the regulatory framework of the ASIC and MSIC schemes includes over 200 authorised issuing bodies that process applications, produce and issue the identification cards. The majority of cards (80 per cent), however, are issued by a small number (20 per cent) of issuing bodies. Further, 35 per cent of all cards are issued by commercially based ‘third party’ issuing bodies, that have a limited ongoing relationship to the applicant. While the schemes prescribe mandatory standards for issuing bodies, these standards are not being consistently met by some issuing bodies. This includes how an applicant’s operational need for the card is established and maintaining adequate records to demonstrate that an applicant’s identity has been confirmed. ...

OTS has developed a compliance framework that aims to cooperatively encourage compliance through education and audit activities, with the focus being on high-risk participants. While the framework is appropriately targeted at high-risk participants, it could be strengthened if information obtained through OTS’s audit, inspection and stakeholder programs was used to better inform and focus the schemes’ compliance activities.

A further area of concern is visitors entering secure areas at airports. Visitors can obtain a visitor identification card (VIC) and, although a VIC holder must be supervised, they do not need to undergo the background check required for an ASIC. Concerns about the VIC regime have been raised by the Joint Committee of Public Accounts and Audit over a number of years. Revised regulations to tighten the VIC scheme are being developed, although these changes have been slow to eventuate. The total number of VICs being issued is not known, but around 40 000 were issued at one delivery gate alone at a major airport in 2009–10. Moreover, many VICs are issued repeatedly to the same individuals, effectively bypassing the ASIC background checking process. ...

It is difficult to obtain a reliable count of the total number of current ASIC and MSIC cards, or the currency of all cards on the AusCheck database. This is despite the database being established to provide a comprehensive record of all ASIC and MSIC applicants and cardholders. Each issuing body also maintains a database of its cardholders. Although AusCheck has developed a range of controls over the integrity of the information entered into its database, changes in one database do not always flow through to the other. As a consequence the two data sets differ markedly
The release coincides with claims that security at Australian defence facilities and embassies has compromised through deliberate fabrication by government vetting personnel of security clearances.

The ABC reports that whistleblowers who were formerly subcontracted to the Defence Security Authority (DSA) claim that they were given direct instructions from senior Defence staff to use false data in order to speed up security vetting of civilian and military personnel.

The three people were involved in checking documents supplied by applicants for a security clearance. Once the checks were complete a report was sent to ASIO to see whether the applicant was a person of interest on the ASIO data base. Pressure to reduce a backlog in processing (the DSA was handling about 23,000 security checks per year as of 2009) is claimed to have resulted in staff using bogus details to fill in gaps in thousands of applications, "including top secret level clearances sent to ASIO" -
Information like where you live, or previous employment, they didn't really care about that stuff, just make it up, put in some dates, put unemployed for periods that were missing, addresses just put the area address, or find a street or make some information up to fill in those gaps ...

There was a large percentage of the applications that came my way that did have gaps, that did have problems that needed to be phoned up about - I would think about 25 per cent.

The analyst started to get impatient with me because she said,'this is what you do, we do this all the time', manufacturing certain birth dates, filling in gaps of addresses. ...

I took a couple of applications aside from my day's work and I said this has this problem, and this has that problem, one of them didn't have a birth certificate, there is not an address here, no employment, questions like that," she said.

"[I] asked what do you want me to do about it? And I was told these words: 'Be creative'."

06 June 2011

InfoLib as usual

A report [PDF] by the UN Special Rapporteur on freedom of expression regarding the right to freedom of opinion and expression on the internet is business as usual

Special Rapporteur Frank La Rue warns that "fearful Governments are increasingly restricting the flow of information on the Internet due to its potential to mobilize people to challenge the status quo" -
In recent months, we have seen a growing movement of people around the world who are advocating for change – for justice, equality, accountability of the powerful and better respect for human rights.

However, the unique features of the Internet, which allow individuals to spread information instantly, to organize themselves, and to inform the world about situations of injustice and inequality, have also created fear among Governments and the powerful.
The report "explores key trends and challenges to the right of all individuals to exercise their right to freedom of expression" under article 19 of the International Covenant on Civil &Political Rights.
Legitimate expression continues to be criminalized in many States, illustrated by the fact that in 2010, more than 100 bloggers were imprisoned. Governments are using increasingly sophisticated technologies to block content, and to monitor and identify activists and critics.

There should be as little restriction as possible to the flow of information via the Internet, except in a few, very exceptional, and limited circumstances prescribed by international human rights law.

Essentially, this means that any restriction must be clearly provided by law, and proven to be necessary and the least intrusive means available for the purpose of protecting the rights of others.
Governments should "develop a concrete and effective plan of action" to make the net "widely available, accessible and affordable to all segments of the population".