17 March 2012

Benchmarks

'Reasonable Copyright' by Irina Manta indicates that -
Using the lens of the cognitive bias literature, this article examines and critiques the “reasonable man” standard found across a wide range of legal doctrines. I focus on the use of the standard in an extremely fuzzy area of the law: the law of copyright. In copyright, the test for infringement is whether a “reasonable observer” would believe that two works — often involving media that do not lend themselves to precise measurement— are substantially similar. I begin by exploring and casting doubt on the usefulness of the reasonable man standard in such a setting. Are judges and juries truly able to determine what an abstract reasonable actor would find substantially similar in the comparison of two works? What types of cognitive biases will likely cloud this determination? And are biases likely to have a stronger or weaker effect when infringement questions are subjected to group deliberation, such as within a jury, as opposed to the individual decision-making of judges? Next, I address the problems that I uncover in the copyright context by first reviewing some potential solutions including both a proposal to reduce the role of juries in substantial similarity determinations and the possibility of trial bifurcation. Ultimately, I show that an openly subjective standard that focuses on the intended audience of works and uses social science surveys as evidence of infringement should replace the prevalent “objective” reasonable observer standard. Implementing such a solution would at least partially acknowledge that we are dealing not with perfectly reasonable but rather boundedly rational actors. This article represents the first systematic use of the psychology and legal literatures on cognitive bias to demonstrate the flawed nature of the substantial similarity test. The test’s overhaul is more necessary than ever in light of the Supreme Court’s decision in Golan v. Holder and the emergence of new enforcement initiatives such as SOPA that foreshadow an increase in copyright infringement litigation.

Small Vegan Footprints

In what will presumably garner the requisite amount of attention along with notoriety academics Matthew Liao, Anders Sandberg & Rebecca Roach have written a thought experiment on 'Human Engineering and Climate Change [PDF]. The piece is concerned with genetic modification of people as a response to climate change, glossed by one irreverent contact as reducing the size of people's feet - and their predilection to eat red meat - in order to reduce their carbon footprint.

The authors comment that -
Anthropogenic climate change is arguably one of the biggest problems that confront us today. There is ample evidence that climate change is likely to affect adversely many aspects of life for all people around the world, and that existing solutions such as geoengineering might be too risky and ordinary behavioural and market solutions might not be sufficient to mitigate climate change. In this paper, we consider a new kind of solution to climate change, what we call human engineering, which involves biomedical modifications of humans so that they can mitigate and/or adapt to climate change. We argue that human engineering is potentially less risky than geoengineering and that it could help behavioural and market solutions succeed in mitigating climate change. We also consider some possible ethical concerns regarding human engineering such as its safety, the implications of human engineering for our children and for the society, and we argue that these concerns can be addressed. Our upshot is that human engineering deserves further consideration in the debate about climate change. ...

To be clear, we shall not argue that human engineering ought to be adopted; such a claim would require far more exposition and argument than we have space for here. Our central aim here is to show that human engineering deserves consideration alongside other solutions in the debate about how to solve the problem of climate change. Also, as we envisage it, human engineering would be a voluntary activity – possibly supported by incentives such as tax breaks or sponsored health care – rather than a coerced, mandatory activity.
In responding to suggestions that between that 18% and 51% of the world’s greenhouse emissions (in CO2 equivalents) come from livestock farming - a higher share than from transport - the authors suggest that reducing the consumption of ‘red meat’ could have "significant environmental benefits". How to reduce what another author dubs the 'dead cow economy'?
While reducing the consumption of red meat can be achieved through social, cultural means, people often lack the motivation or willpower to give up eating red meat even if they wish they could. Human engineering could help here. Eating something that makes us feel nauseous can trigger long-lasting food aversion. While eating red meat with added emetic (a substance that induces vomiting) could be used as an aversion conditioning, anyone not strongly committed to giving up red meat is unlikely to be attracted to this option. A more realistic option might be to induce mild intolerance (akin, e.g., to milk intolerance) to these kinds of meat. While meat intolerance is normally uncommon (Aparicio et al. 2005), in principle, it could be induced by stimulating the immune system against common bovine proteins. The immune system would then become primed to react to such proteins, and henceforth eating ‘eco-unfriendly’ food would induce unpleasant experiences. Even if the effects do not last a lifetime, the learning effect is likely to persist for a long time. A potentially safe and practical way of delivering such intolerance may be to produce ‘meat’ patches – akin to nicotine patches. We can produce patches for those animals that contribute the most to greenhouse gas emissions and encourage people to use such patches.
The carbon footprint could be reduced by making people smaller, using techniques such as preimplantation genetic diagnosis, hormone treatment and manipulation of genes to reduce birthweight. Aha! Next comes a comment that "another possible human engineering solution is to use cognition enhancements to achieve lower birth rates", ie the notion that smarter people have fewer kids. "Cognition enhancements may help increase the ability of people to educate themselves (Sandberg and Bostrom 2006), which would then affect fertility, and indirectly climate change", accompanied by "Pharmacological enhancement of altruism and empathy". From there it's on to the comment that -
human engineering could be liberty-enhancing when used alongside behavioural and market solutions. For example, given a certain fixed allocation per family of greenhouse gas emissions, each family may only be permitted to have two children, as Guillebaud and Hayes have proposed. However, if we were able to scale the size of human beings, then given the same fixed allocation of greenhouse gas emissions, some families may be able to have more than two children. Human engineering could therefore give people the choice between having a greater number of smaller children or a smaller number of larger children.
The authors note that -
the most obvious objection to our suggestion that human engineering solutions should be considered is: it’s a preposterous idea! In particular, who in their right mind would choose to make their children smaller? We are well aware that our proposal to encourage having smaller, but environmentally-friendlier human beings is prima facie outlandish, and we have made no attempt to avoid provoking this response. There is a good reason for this, namely, we wish to highlight that examining intuitively absurd or apparently drastic ideas can be an important learning experience, and that failing to do so could result in our missing out on opportunities to address important, often urgent, issues. History is replete with examples of issues or ideas which, whilst widely supported or even invaluable now, were ridiculed and dismissed when they were first proposed. ... The lesson here is that, whilst we may often be good at judging which ideas are unworthy of pursuing, we are nevertheless sometimes vulnerable to dismissing useful and valuable ideas.

The suggestion that we make our children smaller for the sake of the planet is the most controversial of the solutions described here. The reason that many people responded negatively to this idea seems not to be that they were doubtful of its effect on climate change if implemented, but that they doubt many people could be persuaded to implement it. There is something to this belief: in our society, being tall is viewed as being advantageous. Studies show that women find taller men more attractive than shorter men (Kurzban and Weeden 2005), and that taller people enjoy greater career success (Judge and Cable 2004). Given this, it seems plausible that people will not want to make themselves or their children shorter.

In response to this, we can note, first, that the fact that a particular human engineering solution may not appeal to some people is not a reason to avoid making such a solution available. Many things that are freely available in society appeal to a limited few and are given a wide berth by everyone else. Consider, for example, tattoos, bungee jumping, and running marathons. In the case of particular human engineering solutions with limited appeal, all other things being equal, it seems that it is better that these solutions are available and used by only a few than that they are unavailable to all.

Second, what may be unappealing today may not be so tomorrow. This could be because people’s attitudes about what is appealing can and do change, especially if there are ethical reasons for a particular type of intervention. ... Finally, we should note that whilst it is tempting to focus on the most provocative examples of human engineering solutions – which, in this case, also happen to be the least appealing – it is not the case that human engineering is synonymous with lack of appeal. As we mentioned earlier, one way to reduce size and therefore carbon footprints is to reduce height. But another way to reduce size is to reduce weight, which would presumably be less controversial. In general, there is no reason why it should not be possible to develop human engineering solutions that, as well as helping to fight climate change, are also highly appealing to individuals. Indeed, cognitive enhancements and pharmacological means of resisting meat are likely to appeal to many people, since improved cognition and the health benefits of vegetarianism are goods in themselves.
Using that mindset the authors would presumably embrace use of genetic modification (or merely patches) to inhibit a liking for alcohol, tobacco, narcotics and fast food.

Interesting ideas but not, I suspect, going to gain much traction outside the academic seminar.

Marriage

The UK Government has released a short paper [PDF] titled Equal civil marriage: a consultation, commenting that -
Same-sex couples now receive access to equivalent legal rights, bar the ability to be able to be married and to say that they are married. We do not believe this is acceptable.

The introduction of civil partnerships in 2005 was a significant and important step forward for same-sex couples in ensuring that their commitment to one another was recognised in law on the same basis as for opposite-sex couples; for the first time, couples were able to gain important rights, protections and responsibilities that they had been denied in the past.

We recognise that the personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they enter into a marriage. We do not think that the ban on same-sex couples getting married should continue. Put simply, it’s not right that a couple who love each other and want to formalise a commitment to each other should be denied the right to marry.
The paper indicates that -
This consultation is about how the ban can be lifted on same-sex couples having a marriage through a civil ceremony. Whilst many of the issues and questions outlined in this document relate to those individuals and organisations that will be directly affected by this, we recognise that this is of wider interest to everyone. We are therefore seeking a wide range of views in response to this consultation on how best this ban can be lifted.

Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony.

A civil partnership can only be between a same-sex couple i.e. either a man and a man or a woman and a woman and can only be conducted through a civil ceremony. A civil partnership can take place on secular premises but can also be held on religious premises, if the religious organisation in question has allowed this to happen (but the ceremony has to remain a civil one). In all cases a civil partnership registration must be secular (non-religious).

During a listening exercise held in autumn 2010 on the next steps for civil partnerships the Government identified a desire to look at equalising access to civil marriage for same-sex couples. As a result a commitment was made to work with all those with an interest in the issue on how legislation could develop. This consultation seeks your views on how this could best be achieved.
The paper notes that -
From these discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done. The consultation therefore, does not look at reforms to civil partnerships, for example opening up civil partnerships to opposite-sex couples.

In the development of this consultation paper, Ministers and officials have met with a range of organisations including lesbian, gay, bisexual and transgender groups, and religious and non-religious organisations to hear their views and understand the implications of any proposals on this issue.

We have listened to those religious organisations that raised concerns about the redefinition of religious marriage. We are aware that some religious organisations that solemnize marriages through a religious ceremony believe that marriage can only be between a man and a woman. That is why this consultation is limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnized. It will not be legally possible under these proposals for religious organisations to solemnize religious marriages for same-sex couples. There will therefore be no obligation or requirement for religious organisations or ministers of religion to do this. It will also not be possible for a same-sex couple to have a civil marriage ceremony on religious premises. Marriages of any sort on religious premises would still only be legally possible between a man and a woman.

Civil marriage for same-sex couples is not a new idea and an increasing number of other countries are introducing legal recognition of same-sex relationships on the same basis as for opposite-sex relationships.
The paper articulates 'Principles for change', indicating that -
The Government aims to address the following issues as part of this work:
i. To remove the ban on same-sex couples being able to have a marriage through a civil ceremony. The Government recognises that the commitment made between a man and a man, or a woman and a woman in a civil partnership is as significant as the commitment between a man and a woman in a civil marriage. If we recognise the commitment being made is as significant, it is only right that the Government provides couples with the same opportunity to recognise that commitment in the valued institution of marriage.There are a number of differences between civil marriages and civil partnerships as set out below. This consultation is not only about those differences, but also about the principle of no longer distinguishing in civil marriage ceremonies between same-sex and opposite-sex couples.

ii. To make no changes to how religious organisations solemnize marriages i.e. marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage and any subsequent legislation would be clear that no religious organisation could conduct a religious marriage ceremony on religious premises for same-sex couples.

iii.To allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.
Removing the bar on same-sex couples being married will enable for the first time, one partner to change their legal gender without having to formally end their marriage. This can be distressing for those couples who want to stay married but cannot currently do so because it is not legally possible for same- sex couples to be married. Equally, couples who are currently in a civil partnership would be able to convert their partnership into a marriage, rather than formally dissolving their civil partnership.
In a discussion of the 'Current position' it notes that although UK civil partnerships "were designed to provide equivalent rights and responsibilities to marriage there are some differences", such as -
• Civil partnership and marriage are two entirely separate legal regimes with different pieces of legislation covering each of them. Civil partners cannot call themselves married for legal purposes and married couples cannot call themselves civil partners for legal purposes. This means that when making a declaration of marital status to an employer, public authority or other organisation, an individual who is either married or in a civil partnership will often be effectively declaring their sexual orientation at the same time;
• Civil marriages are solemnized by saying a prescribed form of words whereas civil partnerships are formed simply by signing the register – no words are required to be spoken;
• Married couples and civil partners are entitled to similar rights and responsibilities but there are some differences around eligibility for some pension rights and laws around adultery and non-consummation and courtesy titles;
• Marriage can currently be conducted either through a religious ceremony or through a civil ceremony. Civil partnerships can only be conducted through a civil ceremony, although from December 2011 it has been possible for couples to have their civil partnership registration take place on religious premises, (although the registration itself must remain secular). This is an entirely voluntary provision for faith groups who want to host civil partnership registrations and does not lift the ban on any religious elements forming part of the civil partnership registration itself. The Government is committed to retaining this provision to enable same-sex couples to continue having a civil partnership registration on religious premises if that religious organisation has agreed.
The paper states that in order to achieve those aims the Government intends to -
• enable same-sex couples to get married through civil ceremonies.
• retain civil partnerships for same-sex couples, including the ability to have a civil partnership registration on religious premises (on a voluntary basis and retaining the ban on any religious elements forming part of the registration).
• allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.
• make no changes to how religious marriages are solemnized.
Under the proposals, the Government intends to allow couples in a civil partnership the option of ‘converting’ their existing civil partnership into a civil marriage.

Perspectives on gay marriage are provided in works such as Odd Couples: A History of Gay Marriage in Scandinavia (Amsterdam: Amsterdam University Press 2011) by Jens Rydstrom, When Gay People Get Married: what happens when societies legalize same-sex marriage (New York: New York University Press 2012) by Lee Badgett and The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton: Princeton University Press 2011) by Margot Canaday.

14 March 2012

Sentencing

The Victorian Sentencing Council has released a 153 page report [PDF] regarding appeals against sentencing.

In discussing the backlog in criminal appeals the report states that -
Data from the Productivity Commission show that, in recent years, there has been a large backlog of pending criminal appeals in the Court of Appeal. Since 2003–04, the backlog of criminal appeals has grown, although data from the Court of Appeal’s CourtView database show that the number of pending criminal appeals has substantially reduced in 2010–11.

At the peak of the backlog, in 2009–10, the number of pending criminal appeals was 548. Based on the number of criminal appeals finalised in that year (506), even if no new criminal appeals were lodged, it would have taken over one year to clear this backlog. In 2009–10, Victoria had the largest criminal appeal backlog compared with all other Australian states and territories.

The immediate cause of the backlog, as it stood in Victoria in 2009–10, is that, until very recently, increases in the number of criminal appeals lodged have outnumbered the criminal appeals finalised each year. There have been strong increases in the number of criminal appeals lodged in Victoria, in particular from 2005–06 to 2009–10. Although interstate comparisons must be made with caution, criminal lodgements fell in New South Wales between 2005–06 and 2009–10, while the opposite trend is evident in Victoria. Although finalisations of criminal appeals have also increased in Victoria over the same period, these have not been sufficient to allow the Court of Appeal to cope with the appeals that were lodged.

The most recent data available from the Court of Appeal’s CourtView database show that the backlog of criminal appeals in Victoria has dropped substantially. The number of pending criminal appeals reduced from 548 in 2009–10 to 404 in 2010–11, as criminal appeal lodgements dropped from 518 in 2009–10 to 397 2010–11 and criminal appeal finalisations substantially increased from 506 in 2009–10 to 623 in 2010–11. While there is still a backlog of pending criminal appeals of 404 as at 2010–11, CourtView data on criminal appeals for the first half of 2011–12 show further reductions in the number of pending criminal appeals. The number of pending criminal appeals as at 31 December 2011 was 259, a reduction of 145 criminal appeals from the 404 appeals that were pending as at the end of 2010–11.

These data suggest an early positive sign of a change to the previously increasing trends in criminal appeal lodgements and pending criminal appeals, although further trend data are required before fixed conclusions may be drawn. Although the backlog has been substantially reduced in 2010–11, it is unclear what other factors caused this backlog, which, up to 2009–10, had been large and increasing. This report examines a number of possible reasons for the observed increases in criminal appeal lodgements and the criminal appeal backlog.

One possible reason is that the increase in criminal appeals lodged between 2005–06 and 2009–10 may reflect an increase in the number of cases dealt with in the trial courts. Although the data suggest some relationship between trends in criminal case lodgements in the higher courts and criminal appeal lodgements, the increase in the number of criminal appeal lodgements cannot simply be attributed to any significant increase in the number of criminal cases.

Another possible reason is that there has been a change in the rate at which criminal cases are appealed. The data indicate that since 2005–06, in Victoria there has been an increase in the rate at which criminal cases are appealed. This can be compared with New South Wales, where the rate at which criminal cases are appealed has decreased. Similarly, while there is no discernable trend in the number of cases sentenced in the higher courts since 2001–02, the data also show an increase in the rate at which sentenced cases are appealed in Victoria between 2005–06 and 2009–10.
The report goes on to comment that
There may have also been changes to sentencing practices that may have led to more appeals against sentence by offenders. There is some evidence of an increase in sentence severity in the period from 2003–04 to 2008–09; however, investigation of the relationship between sentencing practices and the rate at which sentences are appealed has been inconclusive.

Further, it is possible that reforms to sexual assault laws since 2006–07 have contributed to the increase in criminal appeal lodgements from 2005–06 to 2009–10. This report finds that in 2007–08 and 2008–09, sexual offences comprised a substantial proportion of the Court of Appeal’s workload. In particular, rape is over-represented in both offender and Crown sentence appeals, compared with all cases sentenced in the higher courts. However, although there has been an increase in the proportion of criminal appeals that involve sexual offences, it is unclear whether these reforms have directly contributed to the increase in criminal appeal lodgements.

The data and analysis in this report shed light on these factors. The report does not seek to determine conclusively the precise roles of these factors and the complex interrelationships between them in contributing to trends in criminal appeal lodgements. The Council recognises that other factors may also have contributed to the increases in criminal appeal lodgements between 2005–06 and 2009–10.

It has not been possible to separate the criminal appeal trend data into sentence appeals; however, there is some indication of increases in sentence appeal lodgements, given the substantial proportion of criminal appeals that are referable to sentencing matters. Since 2008, the number of applications for leave to appeal against sentence and substantive offender sentence appeals listed and heard by the Court of Appeal has increased. These data could also be indicative of the effect that recent reforms introduced to target delay may be having on the Court of Appeal’s increased capacity to hear and determine more applications for leave to appeal and sentence appeals. The data also show that, until recently, success rates of applications for leave to appeal and substantive offender sentence appeals have increased over time, although there has been a downward trend in the number of applications for leave to appeal against sentence allowed since 2007. The success rates for substantive offender sentence appeals fluctuated between 2008 and 2010. The number of Crown sentence appeals listed and heard and their success rates have also fluctuated.

Data on the timing of sentence appeals in sentence appeal cases prior to the implementation of recent measures introduced by the Supreme Court and the Court of Appeal to address delay confirm the need for such measures. In 2007–08 and 2008–09, almost 60% of sentence appeals took more than 12 months to reach an outcome after the date of sentence. Analysis comparing the time taken to reach sentence appeal outcomes with sentence lengths shows that in almost one-third of cases offenders had served more than half of the non-parole period when the sentence appeal was determined.

Since 2007–08, the Court of Appeal has continued to increase the substantial proportion of sentence appeal judgments delivered on the same day as, or close to the day of, hearing the appeal. This, together with the most recent data available on criminal appeal lodgements and sentence appeals, provides further early indications of the effect that recent reforms may be having on addressing delay and reducing the criminal appeals backlog. Continued changes to these trends and reductions in delay may be expected in future under the significant legislative and procedural reforms to criminal appeals in Victoria, although it is too early to conclusively determine exactly what impact these reforms and changes will continue to have in further reducing the backlog of criminal appeals.
In relation to Crown appeals against sentence the report indicates that -
Crown appeals against sentence in Victoria have traditionally been considered to be rare and exceptional. The data show that, in the past decade to 2009–10, the number of Crown appeals against sentence has increased. While Crown sentence appeals are far from common when compared with offender sentence appeals, they can no longer be described as a ‘rarity’.

Data on success rates of Crown sentence appeals show that they have fluctuated between 2000–01 and 2009–10; thus, it is unclear whether success rates of Crown appeals have had a role in the increasing number of Crown appeals against sentence.

Although there have been a number of recent changes to the laws governing Crown sentence appeals, in particular the removal of the double jeopardy principle, recent consideration of these principles by the Court of Appeal suggests that these should not affect the frequency with which sentence appeals are brought by the Director of Public Prosecutions.
Regarding substantive issues in sentence appeals it comments that
The instinctive synthesis approach to sentencing in Victoria means that the scope for appellate intervention is narrowly confined. Gaining an accurate knowledge of the nature of the errors being argued and found by the Court of Appeal and of the changes made to sentences in resentencing can lead to a better understanding and informed debate about the concerns surrounding the broader operation of substantive issues in sentence appeals.

Data on the grounds of appeal argued and found to be successful in sentence appeals show con- sistent trends in the types of sentencing errors being argued and found to be successful on appeal. The data comprise two datasets collected over two discrete time periods using slightly different methodologies and thus the two datasets are not directly comparable. However, the data in each dataset indicate that the most prevalent grounds of appeal found to have been successful by the Court of Appeal relate to manifest excess or manifest inadequacy of sentence and errors relating to the weight given to sentencing factors and principles.

In resentencing, the Court of Appeal may make changes to the individual sentences imposed, orders for cumulation and/or concurrency and the non-parole period. In some cases, substantial changes may be made to individual sentences, but the overall effect on the total effective sentence may be minimal. In other cases, significant changes may be made to the non-parole period, but the individual sentences and thus the total effective sentence may remain unchanged. The implications of the minimal impact that resentencing can have on the total effective sentence have recently been considered by the Court of Appeal.

The data show that in 19.5% of successful offender sentence appeals, resentencing resulted in no change being made to the original total effective sentence. In 13.1% of successful offender sentence appeals, resentencing resulted in no change being made to the original non-parole period. In relation to Crown sentence appeals, the data show that where such appeals were successful, resentencing resulted in substantial changes being made to the total effective sentence and non-parole period. The data show that in the vast majority (74.1%) of successful Crown sentence appeals between 2007–08 and 2008–09, the increase in total effective sentence in resentencing was over 30.0%. In 44.4% of successful Crown sentence appeals, resentencing resulted in increases of more than 50.0% in the non-parole period.

Homeopathetic

The Age reports that
Homeopaths are facing a fight to defend their practice in Australia after the National Health and Medical Research Council flagged it might declare their work baseless and unethical.

A draft public statement seen by The Age concluded it was ''unethical for health practitioners to treat patients using homeopathy, for the reason that homeopathy (as a medicine or procedure) has been shown not to be efficacious''.

The confidential statement, which was not meant to be distributed, is based on a 2010 evaluation of homeopathy by the British House of Commons science and technology committee, which declared it was no more efficacious than a placebo.
That report, which noted that homeopathy's principles were ''theoretically weak'' and ''scientifically implausible'', was highlighted here. If the statement emerges intact from the NHMRC it will displease the "homeopathy community" and health insurance providers that have been promoting their products on the basis that alternative/complementary medicine is part of a package.

The absence of diagnostic and therapeutic validity, apart from the feelgood factor, for practices such as magic touch, remote healing and homeopathy should mean that such 'medicine' should be regarded - and funded - as an entertainment or an expression of faith rather than as something with an empirical basis.

The Age subsequently published a facsimile of the draft statement, which indicates that -
NHMRC’s position is that it is unethical for health practitioners to treat patients using homeopathy, for the reason that homeopathy (as a medicine or procedure) has been shown not to be efficacious. ...

There is sufficient scientific evidence to conclude that homeopathy is no more efficacious than placebo. Homeopathy, while not harmful in its own right, may pose a risk to patients if safe and efficacious conventional treatments are rejected or delayed in favour of homeopathic treatment.
It goes on to note that -
The Australian Government does not fund homeopathy as a treatment directly.

In Australia, complementary medicines such as herbal products, vitamins, minerals and nutritional supplements, some aromatherapy products and certain homeopathic products are regulated as complementary medicines under the Therapeutic Goods Act 1989 (Therapeutic Goods Act) by the Therapeutic Goods Administration (TGA). Homeopathic preparations are considered to pose a low direct risk. Those that contain ingredients more dilute than 1:10,000 parts and do not contain substances of animal or human origin are currently exempt from the requirement to be included on the Australian Register of Therapeutic Goods (ARTG). ...

The findings of the [UK] Homeopathy Report are the basis of the NHMRC‟s public statement on homeopathy.

NHMRC's position is that it is unethical for health practitioners to treat patients using homeopathy, for the reason that homeopathy (as a medicine or procedure) has been shown not to be efficacious.

DOD

The Australian Government has released redacted extracts from the Executive Summary and Key Findings [PDF] from the first volume of the Report of the review of allegations of sexual and other abuse in Defence: Facing the problems of the past.

The review was triggered by the 'ADFA Skype incident' last year and was conducted by Dennis Pearce, Melanie McKean & Gary Rumble.

The redacted report indicates that -
On 11 April 2011, the Minister for Defence Stephen Smith announced that an external law firm would be engaged by the Secretary of Defence to review allegations of sexual or other forms of abuse that have been drawn to the attention of the Minister’s office, as well as to the Department of Defence and the media.

The allegations followed an incident at the Australian Defence Force Academy. In response to these allegations, the law firm DLA Piper was engaged by the then Secretary of the Department of Defence to review each allegation methodically and at arm’s length from Defence to determine the most appropriate way for these complaints to be addressed.

The Review has had before it specific allegations within scope from 847 different people (sources). Many of these sources have more than one allegation within scope.

We have allegations across every decade from the 1950s to date. The earliest date of alleged abuse is 1951 (on a 13 year old boy, now a man in his 70s). We have allegations of events during 2011.

The allegations which have been raised with the Review are incredibly diverse. They are made by men and women in respect of conduct by men, women and groups. They involve minors and adults. They span 60 years. They come from diverse geographical locations. They come from different parts of the Defence organisation. They relate to the full range of possible involvement in the ADF—training, normal duties, deployment, hospitalisation and so on. The incidents range from extremely serious to (relatively) minor. The behaviour complained of ranges from that which has never been acceptable nor tolerated, to that which, whilst not acceptable, has in the past been tacitly tolerated.

It is not possible to summarise the nature of the allegations as a group. Each allegation has been considered in accordance with its circumstances.
The volume features several recommendations, some of which have been released -
Recommendation 3

If a new complaint resolution scheme is established, it should not be limited to people who have come to this Review but should be open to people who have not raised matters with this Review.

Recommendation 4

If a new complaint resolution scheme is established, each allegation reported on within Volume 2 should be reviewed to see if the allegation is suitable for the new scheme.

This is particularly important to allegations identified in Volume 2 for 'no further action‘. That recommendation is based on the remedies currently available for the members concerned. If new remedies are put in place, some of the 'no further action‘ matters may be suitable for reparations under the new system.

Recommendation 5

There should be further investigation of matters identified during Phase 1 as raising real concerns as to the occurrence of abuse and/or mismanagement by Defence of reports of abuse.

Issue 20

The Review considers that Phase 2 should consult with the Defence Force Ombudsman to determine a role for the Defence Force Ombudsman in overseeing whatever processes for investigation and reparation are adopted following this Report.

Recommendation 6

Further investigations to be made during Phase 2 should be conducted by an external review body. A body similar to that which has conducted Phase 1 of the Review should be established for this purpose.


Recommendation 7

Consideration should be given to establishing a capped compensation scheme for the victims of abuse within Defence. During Phase 2 a detailed proposal for a capped compensation scheme could be developed for the Government‘s consideration at the end of Phase 2.

Recommendation 8

Consideration should be given to establishing a framework for private facilitated meetings between victims, perpetrators and witnesses of abuse within Defence. During Phase 2 a detailed proposal for such a framework could be developed for the Government‘s consideration at the end of Phase 2.

Issue 21

Consideration should be given in Phase 2 to the appointment of an office or body external to Defence to oversight implementation of the recommendations made by this Review (including in relation to systemic issues) and thereafter to oversee the operation of the complaints system in practice, including, in particular, the treatment of victims.

Recommendation 9

Special counselling and health services in place for the duration of this Review should be extended into Phase 2 of the Review whilst a plan for providing health services to victims of abuse is prepared. Thereafter, the plan should be implemented such that victims of abuse within Defence have access to counselling and health services.

Recommendation 10

A suite of options should be adopted to provide means for affording reparation to persons affected by abuse in Defence comprising:
 public apology/acknowledgements;
 personal apology;
 capped compensation scheme;
 facilitated meeting between victim and perpetrator;
 health services and counselling.
A body or team should be tasked to develop detailed proposals for the suite of options, so that they may be presented for a decision on implementation.

While the suite of options are being developed, there should be further external investigation of matters recommended in Volume 2 for further external investigation. There could be referral of matters recommended for internal/external referral.

Volume 2 recommendations are limited to existing options. Accordingly, matters recommended for ̳no further action‘ in Volume 2 should be 'held', pending the development of the proposals and then - where appropriate - considered for possible action under any new processes adopted. There should be appropriate communication to complainants as to what will happen
during the transition stage and into Phase 2.

13 March 2012

Desperate and dateless

'Dating the State: The Moral Hazards of Winning Gay Rights' by Katherine Franke offers
a critical analysis of the complexities of having the state recognize and then take up gay rights as a cause of its own. I examine three principal contexts – the role of gay rights in the state of Israel’s re-branding campaign, the response to Iranian President Mahmoud Ahmadinejad’s 2007 speech at Columbia University in which he claimed that there were no homosexuals in Iran, and the role of gay rights in Romania’s effort to join the European Community – as examples of the moral hazards that a minority faces when the state takes up their interests and uses their rights for purposes that well-exceed the obvious interests of the new rights-bearing community. I conclude that critical awareness of the state’s role as fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

12 March 2012

Orwell's Armchair

'Orwell's Armchair' by Derek Bambauer comments that -
America has begun to censor the Internet. Defying conventional scholarly wisdom that Supreme Court precedent bars Internet censorship, federal and state governments are increasingly using indirect methods to engage in “soft” blocking of on-line material. This Article assesses these methods and makes a controversial claim: hard censorship, such as the PROTECT IP Act, is normatively preferable to indirect restrictions. It introduces a taxonomy of five censorship strategies: direct control, deputizing intermediaries, payment, pretext, and persuasion. It next makes three core claims. First, only one strategy – deputizing intermediaries – is limited significantly by current law. Government retains considerable freedom of action to employ the other methods, and has begun to do so. Second, the Article employs a process-based methodology to argue that indirect censorship strategies are less legitimate than direct regulation. Lastly, it proposes using specialized legislation if the U.S. decides to conduct Internet censorship, and sets out key components that a statute must include to be legitimate, with the goal of aligning censorship with prior restraint doctrine. It concludes by assessing how soft Internet censorship affects current scholarly debates over the state’s role in shaping information on-line, sounding a skeptical note about government’s potential to balance communication. ...

Internet filtering in America has evolved. The content that it targets has shifted, moving from a focus upon sex-oriented materials, particularly those inappropriate for minors, to concentrate on gambling, intellectual property infringement, and national security material. The approach employed by the state has shifted, from attempts to force intermediaries such as ISPs to act as agents in censorship, to less direct and less visible methods such as payment, pretext, and persuasion through pressure. And lastly – and most counterintuitively – the legitimacy has shifted, and not for the better. Hard censorship efforts such as the Communications Decency Act and the Children‟s On-line Protection Act were problematic in the wide sweep of their prohibitions, and in their attempts to wish problems away by hoping for technological solutions. Nonetheless, they represented censorship that was overt about its goals and rationales, and that attempted – with great imperfection – to engage countervailing concerns such as the rights of adult Internet users and the risks of overcriminalization.

Soft censorship does not share these virtues. It is less open and transparent about its restrictions, and often less precisely targeted (less narrow, in filtering lingo). Accountability is diffused, particularly when the state seeks to coerce private parties to block material, but then conceals its role. The absence of direct state action limits constitutional redress, and the absence of sufficient competition among broadband providers limits market constraints. Soft censorship is both more normatively problematic than hard censorship, and less restricted by the safeguards that Americans normally rely upon when their government seeks to shape what they say and what they read.

This Article proposes an unexpected solution: if Americans decide, through their elected officials, that certain material should not be readily available on-line, we should admit that we are willing to censor the Internet.

And, we should use specialized legislation to do so – legislation that is careful in what it targets, thorough in the procedural protections it creates, and balanced in the burdens it places upon intermediaries such as Internet service providers. The debate is no longer whether to censor: we are already doing that. The key question is how. We should prefer Orwell's Oceania to Orwell's armchair: censorship that is overt, robustly defended, and carefully limited forces us to take moral responsibility for our actions.

11 March 2012

It Slices, It Dices ...

Having ordered Tamara Piety's Brandishing The First Amendment: Commercial Expression in America (University of Michigan Press 2012) I'm contemplating an item in the Adelaide Advertiser reporting on the travails of vitamin or 'complementary medicine' vendor Swisse.

Legal historians will recall anti-trust litigation in the 1980s and 1990s over the global 'vitamin cartel', with criticism of anticompetitive practices and problematical claims regarding the efficacy or scientific basis of particular products. In 2001 for example the European Commission imposed a 462m euro penalty on Hoffman-La Roche (the world's largest vitamin producer) and 296m euro penalty on BASF (the second-biggest maker of vitamins), discussed in 'The Great Global Vitamins Cartels' by John Connor. In 2006 the Federal Court approved a $30.5 million settlement in Australia's first ever cartel class action. Although 'supplement' vendors are offering products that may be beneficial they are commercial enterprises and thus susceptible to the temptation to engage in hyperbole or be deliberately misleading.

Perspectives are provided in 'Commercialism, choice and consumer protection: regulation of complementary medicines in Australia' by Harvey, Korczak, Marron & Newgreen in 188(1) Medical Journal of Australia (2008) 21-25, Vitamania: Vitamins in American Culture (New Jersey: Rutgers University Press 1996) by Rima Apple, 'Dietary Supplements: Can the Law Control the Hype' by Iona Kaiser in 37 Houston Law Review (2000) 1249-1277, 'The effectiveness of popular, non-prescription weight loss supplements' by Egger, Cameron-Smith & Stanton in 171(11) Medical Journal of Australia (1999) 604-608 and 'Truth and Consequences: The Perils of Half-Truths and Unsubstantiated Health Claims for Dietary Supplements' by Vladeck in 19(1) Journal of Public Policy & Marketing (2000) 132-138.

The Advertiser reports that Swisse has taken action in the Federal Court hearing in an effort to overturn a Therapeutic Products Advertising Complaints Resolution Panel ban (under the Therapeutic Goods Regulations 1990) on particular advertising. That action follows a succession of complaints to the Panel - some by Swisse competitors - and consequent withdrawal of advertising (eg that noted here).

The Panel, which hears complaints about the promotion of products within the ambit of the TGA (Australia's counterpart to the FDA) -
gave the vitamin company until March 19 to withdraw its ads for 11 products and stop using the slogan, "You'll feel better on Swisse", saying there was no proof to back the claim. ...

The TGACRP investigated Swisse in January, finding many products offered were misleading, had not been verified, or aroused unwarranted expectations.

The panel ordered Swisse to pull any ad that claims products are "clinically proven" or "independently tested," as well as its "Tired? Stressed? You'll feel better on Swisse" tagline.

A 16-page report detailing the rulings was published on the TGACRP website last week, revealing the Swisse advertisements had breached several sections of the Therapeutic Goods Advertising Code and make claims about health benefits that were not substantiated. These included claims:
WOMEN'S Ultivite, plugged by Kruger, can offer benefits in relation to tiredness or stress.

MEN'S Ultivite can benefit memory function or heart health.

ULTIBOOST Sleep will result in a good sleep and that users will wake up "fresh".

ULTIBOOST Wild Krill Oil provides benefits for joint and heart health in ordinary consumers - and is absorbed twice as effectively as other fish oil capsules.
Twice as effectively?

The Advertiser goes on to state that -
The investigation was launched after the panel received two anonymous complaints about TV advertisements that ran for much of 2011.

Swisse did not provide evidence to support many claims but did present one report to the panel, which proved the Women's Ultivite product helped improve symptoms of pre-menstrual syndrome by 50 per cent. But the same study indicated that a non-active placebo also improved symptoms by 28 per cent. Swisse argued in the Federal Court in Melbourne on Friday the panel did not follow due process in reaching its verdict.

It argued the panel had banned the promotion of products - such as its Ultiboost Wild Krill Oil plugged by Brown - when the product wasn't included in the initial complaints of misleading advertising. The case was adjourned until Wednesday, with the panel agreeing to remove its findings and notices about the complaints from its website.
Unsurprisingly, the paper notes that
"Swisse has expressed its strong disagreement at the recent decision of the Complaints Resolutions Panel," a company spokesman said.

"Swisse considers that the review process leading to the decision was fundamentally flawed and is contesting the findings vigorously through appropriate channels."
Vigorous contest in legal channels is of course much easier if you've been making lots and lots of money selling Wild Krill Oil and similar treats. After a busy day marking assignments - and more assignments - I haven't yet had time to go in search of the oil of the non-Wild Krill. Somehow I doubt that there are many domestic, tame or otherwise non-Wild Krill hereabouts.

Swisse's site proclaims that -
Swisse has two key obsessions and both are about putting you, the consumer, first.

The first obsession is scientific validation and benchmark standards. We’re obsessed with research and clinical studies. The second is seeking feedback from our consumers and practitioners. Our biggest thrill is derived from consumer feedback, which affirms our mission to make you healthier and happier.

You will notice that Swisse formulae are constantly updated to keep us at the forefront of medical research and deliver maximum benefits to you. Swisse Ultivites are one of the only multivitamin antioxidant formulae in the world to have been shown to deliver therapeutic benefits in a rigorous, double-blind, placebo-controlled clinical study. Increased stamina, lower stress levels, relief from symptoms of nervous tension and a feeling of wellbeing are the real benefits that consumers report. Swisse is one of the best health insurance policies for disease prevention and a Happier and Healthier Life ....

When you buy Swisse, you’re investing in products with scientific validation and proven results.