09 August 2012

Litigation Funding

'Regulation of Litigation Funding' by Michael Legg at the UNSW Centre for Law, Markets & Regulation offers offers a concise overview of developments in the regulation of litigation funding in Australia.

Legg comments that
 The unregulated status of the litigation funding industry in Australia ended with the Corporations Amendment Regulation 2012 (No. 6) dated 12 July 2012. The effectiveness of this 'light touch' regime is likely to impact the protections that exist for consumers who are expected to avail themselves of class actions in seeking access to justice and the volume of litigation commenced against Australian businesses, especially listed corporations who are the target of shareholder class actions. 
He goes on to note that
 The Full Federal court in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (2009) 260 ALR 643 found that funded class action litigation was a managed investment scheme (MIS) subject to Chapter 5C of the Corporations Act. The New South Wales Court of Appeal in International Litigation Partners Pte Ltd v Chameleon Mining Ltd [2011] NSWCA 50 found that a litigation funder of commercial litigation was required to hold an Australian Financial Services Licence (AFSL). The Chameleon Mining case has been granted special leave by the High Court. The Federal Government initially instructed the Australian Securities and Investments Commission to grant interim class order relief to compliance with the AFSL and MIS regimes. 
The Corporations Amendment Regulation 2012 (No. 6) excludes litigation funding in relation to class actions or insolvency proceedings from the MIS and AFSL regime but imposes requirements on litigation funders to manage conflicts of interest. Pre-existing consumer protection laws such as prohibitions on misleading conduct, unfair contract terms and unconscionable conduct continue. However, two important regulatory pillars, capital adequacy and licensing, are omitted.

08 August 2012

Blawgs

'Law Faculty Blogs and Disruptive Innovation: The Data' (U Denver Legal Studies Research Paper No. 12-22) by J. Robert Brown Jr comments that
 Blogging by law faculty has been going on for more than a decade. During that period, law faculty blogs have become widespread. They have also been increasing used as authority in law review articles and court decisions. The ... paper sets out the empirical data that shows who, as of May/June 2012, is actually blogging at various law schools. This is a notoriously difficult data set to create since there is no single list of law faculty blogs. Moreover, some faculty blog at non-faculty blogs. 
The data in this document includes a breakdown of the number of law faculty bloggers by law school. Interestingly, most law faculty bloggers are at law schools outside the top 50 as ranked by US News. In addition, the data includes the number of citations for law blogs in both law reviews and court opinions. One law faculty blog has over 700 citations in law reviews. Another has over 40 citations in cases. 
Finally, the data includes a list of US law faculty in the top 200 of SSRN downloads for May 2012. The list includes any blogging affiliation of these faculty. The data shows that for faculty in the list but outside the top 10 law schools (based upon the ranking created by US News) many of them blog, suggesting that there is a correlation between blogging and SSRN downloads.

07 August 2012

Zombies

The delicious 'Death and Taxes and Zombies' by Adam Chodorow in Iowa Law Review (2012) comments that -
The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk. 
This article fills a glaring gap in the academic literature by examining how the estate and income tax laws apply to the undead. Beginning with the critical question of whether the undead should be considered dead for estate tax purposes, the article continues on to address income tax issues the undead are likely to face. In addition to zombies, the article also considers how estate and income tax laws should apply to vampires and ghosts. Given the difficulties identified herein of applying existing tax law to the undead, new legislation may be warranted. However, any new legislation is certain to raise its own set of problems. The point here is not to identify the appropriate approach. Rather, it is to goad Congress and the IRS into action before it is too late.

06 August 2012

Qld Cameras

The compliance review report [PDF] by the Queensland Office of the Information Commissioner on Camera Surveillance and Privacy: Review of camera surveillance use by Queensland government agencies and compliance with the privacy principles in the Information Privacy Act 2009 (Qld) has been tabled in the state Parliament.

The review examined camera surveillance in Queensland government agencies (including local government and public authorities), in particular the extent to which camera surveillance systems were designed and operated with privacy considerations in mind and an audit of camera surveillance usage. 

The 173 page report notes that
The reviewed camera surveillance systems were generally operated in a practical way, in order to deliver public safety and security, and with respect for privacy. This could be attributed almost entirely to the experience and commitment of the operatives who set up and run the systems. 
However, there were significant privacy-related gaps in the administration of the systems. One common example was the inability for individuals to discover or access footage which contained images of them. Another example was that arrangements with other agencies, particularly the Queensland Police Service, were operating informally, creating ambiguity about management responsibilities, such as ensuring that the use and disclosure of the footage was in accordance with the privacy principles. Each gap represents a risk, which if left unmanaged, could result in a privacy breach that could significantly affect members of the community. This review found this situation had arisen through a lack of corporate level direction and review and a lack of documented policies and procedures that addressed the complete spectrum of relevant considerations.
Acting Qld Privacy Commissioner Lemm Ex commented that -
By and large, the 20,000 or more cameras being operated by Queensland government agencies are being operated with attention to privacy issues. This has largely been due to the efforts of the operational staff, who have applied common sense to the development and operation of the systems. 
The ambiguity surrounding management responsibilities of camera surveillance systems represents a risk, which if left unmanaged, could result in a significant privacy breach. 
Agencies’ privacy vulnerabilities would be greatly reduced if corporate attention was given to the operation of the camera surveillance systems with privacy considerations in mind. 
This report recommends that all Queensland government agencies review their camera surveillance systems, and the policies and procedures regarding their governance to improve compliance with the privacy principles under the Information Privacy Act 2009 (Qld).
The report recommends that all Queensland government agencies operating camera surveillance systems:
  • implement a system for tracking the number and details of surveillance cameras operated by the agency. 
  • obtain and evaluate evidence regarding the effectiveness of camera surveillance for the purpose identified, the ongoing costs and benefits of camera surveillance systems and the features of camera surveillance systems required for the system to fulfil the agency’s purposes, before an agency implements or expands camera surveillance systems
  • ensure the management of their camera surveillance systems is consistent with their given reasons for the camera surveillance, both in documented policies and procedures, and in practice. 
  • ensure that information collected by the camera surveillance system is complete and up-to-date, including through clear policies and procedures for storage, retention and disposal of camera surveillance footage, and training. 
  • review the extent to which they have provided notices to the community about the use of camera surveillance, particularly in the immediate vicinity of the cameras.
  • ensure data security practices protect camera surveillance footage against loss, unauthorised access, disclosure, modification or other misuse and that these practices are described in documented policies and procedures. 
  • publish information about their holdings of camera surveillance footage including the currency of the footage, so that individuals can discover if there is any camera surveillance footage held by the agency which might contain images of them. 
  • provide publicly accessible information, preferably in the vicinity of each of the cameras they operate, informing the community of the camera’s ownership and a point of contact for the relevant agency. 
  • ensure they have policies and procedures in place which detail how individuals can obtain from an agency any camera surveillance footage which contains images of them, subject to exemptions prescribed in the Information Privacy Act 2009 (Qld). 
  • actively inform the community of the presence of camera surveillance systems, the rationale for their deployment, the privacy safeguards for the system and the mechanism by which the community can apply for access to the surveillance footage. 
  • review the way in which camera surveillance footage is scanned and material extracted in response to requests for copies of the footage, and ensure this process is demonstrably consistent with the privacy principles. 
  • ensure policies and procedures are in place for use and disclosure of personal information that ensure that personal information is used for secondary purposes or disclosed only as provided for in the Information Privacy Act 2009 (Qld), for example, with the consent of the individuals concerned; to prevent serious threats to health, safety or welfare; for law enforcement; or for research purposes. 
  • develop administrative arrangements for disclosure of information where this is usual practice, for example, a Memorandum of Understanding with the Queensland Police Service, and adopt a standardised request form which ensures disclosure of camera surveillance footage is in accordance with the privacy principles. 
  • review contracts with private security contractors to ensure contracts bind the contractors to compliance with the privacy principles. 
  • develop policies and procedures to ensure that any camera surveillance footage transferred overseas, for example placed on the internet, is done within a clear legislative authority.
Those recommendations reflect the report's conclusion that
By and large, the cameras … are being operated by people who were mindful of privacy issues. This was primarily due to the efforts of operational staff, who have applied common sense to the development and operation of the systems.
Nevertheless, the over arching finding of this review is that Queensland public sector agencies have further work to do in identifying, managing and reducing existing privacy risks to the community associated with agency use of camera surveillance footage. This is particularly critical given the increasing use of camera surveillance by Queensland government agencies and the need to satisfy higher community expectations regarding the management of such privacy risks.
Generally, executive management have not adequately turned their minds to the governance questions about camera surveillance: questions of the reason for having camera surveillance; the scope and boundaries of its use; its effectiveness, as demonstrated by hard evidence; how the camera footage should be used, disclosed, kept or destroyed; and most relevantly for this review, the privacy rights of individuals.
The disconnection between corporate governance and local operations has resulted in a range of privacy impacts, including concerning signs that legislative non-compliance is occurring in some respects. Widespread camera surveillance has costs, not least in the area of privacy. When a surveillance system is poorly managed, public concerns can arise about the advent of a ‘Big Brother’ culture, which includes a range of concerns about unnecessary surveillance, poorly targeted surveillance, costs outweighing benefits, information being gathered about individuals for secret or inappropriate purposes, lack of access and accountability in government and generally that the system is degraded and ineffective. These concerns are particularly liable to arise if the camera system fails to deliver on advertised benefits such as the prevention of crime.
What are those supposed benefits?  The report notes that five rationales are typically advanced for CCTV -
  • reassuring the public and thus increasing feelings of safety or reducing fear of crime; 
  • preventing crime and disorder by acting as an effective psychological deterrent to potential offenders; 
  • aiding the detection of crime and disorder and enabling a greater proportion of crime to come to the attention of police or security personnel; 
  • enhancing the apprehension and successful prosecution of offenders by enabling the effective deployment of officers and the gathering of evidence; or 
  • acting as a general site management tool that assists police or security personnel to effectively manage locations. 
It notes that “research has not found that camera surveillance necessarily delivers on these purposes".

The report is a useful complement to the broader Surveillance in Public Places – Final Report [PDF] by the Victorian Law Reform Commission in 2010 and the 2011 WA Auditor General report on Use of CCTV Equipment and Information [PDF] noted here.

Gendered

Under the headline 'Olympic Games and the tricky science of telling men from women (Gender tests may be the most controversial obstacle the athletes face. The London Games tries a new approach based on testosterone)' the LA Times last month commented that
Of all the obstacles athletes have had to overcome to compete in the Olympics, perhaps the most controversial has been the gender test. 
Originally designed to prevent men from competing in women's events, it is based on the premise that competitors can be sorted into two categories via established scientific rules. But the biological boundaries of gender aren't always clear. 
Consider the Spanish hurdler Maria Jose Martinez-Patiño. A gender test revealed that she had a Y chromosome, which normally makes a person male. She also had complete androgen insensitivity syndrome, or CAIS, which prevented her body from responding properly to testosterone and caused her to develop as a woman. 
The Spanish Athletic Federation got her test results in 1986, just before a major competition that would have set her up for an Olympic run. Though she won the 60-meter hurdles, the federation declared her ineligible for the 1988 Summer Games in Seoul. 
The International Olympic Committee has struggled with cases like these, variously using hair patterns, chromosomes, individual genes and other factors in their long-running attempts to distinguish men from women. All of these tests have been discarded. 
For the London Games, officials are going by a new set of rules that shifts the focus from DNA to testosterone, a hormone that aids muscle development, endurance and speed. 
To a group of increasingly vocal skeptics, the very notion of gender testing is flawed and efforts to measure it biologically are doomed to fail. But some experts said they had to try anyway. "There is no single metric for sex or athletic potential," said Eric Vilain, director of the Center for Gender-Based Biology at UCLA. But he called the new testosterone-based test a pragmatic solution to a real problem. "I have talked to many elite female athletes, and I haven't found one who is comfortable with the idea of having no testing," he said.
The IOC's new gender regulations disqualify from women's events those athletes who "have testosterone levels in the normal male range, which is 7 to 30 nanomoles per liter of blood". [PDF]
Nothing in these Regulations is intended to make any determination of sex. Instead, these Regulations are designed to identify circumstances in which a particular athlete will not be eligible (by reason of hormonal characteristics) to participate in 2012 OG Competitions in the female category. In the event that the athlete has been declared ineligible to compete in the female category, the athlete may be eligible to compete as a male athlete, if the athlete qualifies for the male event of the sport.
 Jon Bardin in the LAT reports that
Athletes with complete androgen insensitivity will be allowed to compete. 
It's impossible to say how many athletes in London will be affected by the new test ... Unlike past tests, which were given to all competitors in women's events, this one will be administered only when the chief medical officer of a national Olympic committee or a member of the IOC's medical commission requests it.  Ljungqvist said the test had a narrow purpose: "We are not determining the gender in an individual. What we are talking about is athletic eligibility."
The article notes that
Accusations of men masquerading as women in the Olympics go back at least as far as 1936, the year questions were raised about American sprinter Helen Stephens after her upset win at the Berlin Summer Games. Stephens passed some sort of gender test — the details are lost to history — and was awarded a gold medal. 
The Cold War raised tensions between the U.S. and Soviet-bloc teams. Whispers about men posing as women were rampant on both sides, leading the IOC to devise a testing procedure in the 1960s. Athletes had to parade nude in front of physicians, submit to genital exams and have their hair patterns analyzed before they could receive certificates of femininity. 
In 1967, that gave way to a more scientific test based on DNA. In people with two X chromosomes, one of them is inactivated and curls up into a tight ball, which the test detects. But the test proved inadequate in cases of conditions like complete androgen insensitivity syndrome, in which athletes had an X and a Y chromosome but the biological appearance of a woman. ... [T]he IOC switched to a test based on a gene called SRY, which initiates testes development. But since the gene is on the Y chromosome and merely tests for that chromosome's presence, it suffered the same flaws. Eight female athletes failed the SRY test at the 1996 Atlanta Games, though all had androgen insensitivity and were ultimately cleared to compete. 
That convinced the IOC to drop routine gender testing, but it and the International Assn. of Athletics Federations retained the right to test those suspected of competing under false pretenses or with medical conditions offering an unfair advantage. 
That's how South African runner Caster Semenya came to be tested at the 2009 World Championships in Athletics in Berlin. ... The international association conducted an inquiry and cleared her to race after a 10-month ban. She carried her country's flag in the opening ceremony for the London Games. 
Association officials were criticized for the seemingly arbitrary nature of their inquiry. The new IOC policy is crafted to be more transparent. ... 
To Martinez-Patiño, now a professor of sports science at the University of Vigo in Spain, the new rules echo the old — they just use a different metric. "Over time they will conduct research and demonstrate the ineffectiveness of this test," she said, "just as has happened with the others."

05 August 2012

Legal Pragmatism

Characterisations of contemporary legal pragmatism are quoted in ‘On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?' by Susan Haack in 3(1) Pragmatism Today (2012) 8-31. It is an updating of her 2005 article in 50 American Journal of Jurisprudence 71-105 ...
Of late, the word "pragmatism" appears in the titles of books, chapters, and articles on legal philosophy often enough to convey the impression that there must be some kind of renaissance of pragmatism going on among legal scholars. When you look at the contents of those books and articles, though, you are likely to find yourself more than a little confused about just what this apparent renaissance is a renaissance of. 
Pragmatism, you will read, is - 
  • simply a "general aversion to theory" (Atiyah, 1987); 
  • it is "solving legal problems using every tool that comes to hand, including precedent, tradition, legal text, and social policy [and) renounc[ing] the entire procect of providing a theoretical foundation for constitutional law" (Farber, 1988); 
  •  an "understand[ing] that what we see always depends upon our viewpoint, and that understanding others is frequently a matter of attempting to recreate the standpoint from which they view events" (Hantzis, 1988); 
  • "a realistic expression of the recognition that metatheoretical claims to truth are philosophically indefensible" (Patterson, 1990); 
  • "freedom from theory-guilt" (Grey, 1990); 
  • "a kind of exhortation about theorizing ... not say[ing] things that lawyers and judges do not know, but rather remind[ing] lawyers and judges of what they already believe but often fall to practice" (Smith, 1990); 
  • "looking at problems concretely, without illusions, with a full awareness of the limitations of human reason, with a sense of the 'localness' of human knowledge, the difficulty of translations between cultures, the unattanability of 'truth'" (Posner, 1990);   
  • the view that "practice is not undergirded by an overarching set or immutable principles, or by an infallible or impersonal method" (Fish, 1990); 
  • "a synthesis of contextualism and instrumentalism" (Grey, 1991); 
  • "antifoundationalism and social optimism" (Hoy, l991); 
  • the distinctly American philosophical movement begun by C. S. Peirce and William James, developed by John Dewey, and recently espoused by Richard Rorty ... a substantive position ... [which] yields relativism about truth and justice" (Warner, 1993); 
  • "an eclectic, result-oriented historically-minded antiformalism" (Luban, 1996); 
  • "a critique of essentialist/conceptualist formalism, and an admonition to avoid excessive theorizing or abstractions," urging "more dialogue, traditionalism, attention to context, and the middle way" (Tamanaha, 1997); 
  • the idea that "a satisfactory theory of adjudication for lawyers must enable lawyers to predict what courts will do" (Leiter, 1997·8); 
  • "a philosophical discourse that is general, hysteric, external, practical and progressive and beside it a legal antecedent discourse [that of Holmes] that is professional, obsessive, internal, theoretical, and conservative" (Alberstein, 2002); 
  • "a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans ... rejecting moral, legal and political theory when offered to guide legal ... decisionmaking" (Posner, 2003); 
  • "an extension of skepticism, ultimately rooted in Greek sophism" (Leaf, 2003); 
  • an acknowledgement that "devotion to theory may be just as damaging and unfruitful as devotion to traditional legal formalism" (Weaver, 2003); 
  • "an eclectic and self-reflective stance about both theory and methods; a recognition of a plurality of contingent ‘truths’ and 'meanings' that are grounded in concrete experience rather than absolute or fundamental truths; and avoidance of dichotomies and unidimensional approaches and an explicit incorporation of democratic ideals in both the outcomes (goals) of public policy and in the way that policy analysis is itself conducted" (Schneider & Ingram, 2003); 
  • the view that "the validity of consensus building depends not on its theoretical possibility of achieving 'win-win' solutions, but on the efficacy of consensus building in its application" (Coglianese, 2003).

Employment Pictures

'Menschenbild: The Conception of the Employee as a Person in Western Law' by Matthew Finkin in 23(4) Comparative Labor Law & Policy Journal (2002) 577-638 comments that
Even as the civil and common law reflect the Western Legal Tradition, they take very different approaches to employee privacy; the former respectful of it, the latter largely not. This divide is explored using Germany and the United States for comparative examination. Relying on a body of German legal historiography, the roots of the law's conception of the person (Menschenbild) is traced from the sixteenth century Natural Law thought, to the Prussian and Austrian Codes of the eighteenth century on through the economic liberalism of the nineteenth century, and so to today. It explains how German law in the period after World War II joined an eighteenth century idea of the person as a bearer of innate, inalienable rights with the idea of the workplace as a social setting in which these rights must be legally recognized. It explains how the United States cabined that very same eighteenth century concept to the political realm, and, in the employment setting, even today remains largely wedded to the nineteenth century conception of the person as the bearer of only the singular right to contract, i.e. tacitly to concede to the employer managerial power to invade the employees' privacy as a component of the wage bargain.
Finkin argues that -
the law of employee privacy sits astride a continental divide. With only modest oversimplification one can say that, on the civil law side, employees are perceived as persons who bear inalienable rights, assertable against their employers, including a right to privacy. Employers may limit their employees’ privacy only insofar as they are able to satisfy a public authority that the limits they seek to impose are narrowly tailored to realize legitimate, even necessary, business objectives. On the common law side, the law accords the employer near plenary power to govern the workplace; in fact, to govern the worker. By entering upon or remaining in employment, the employee is taken as a matter of contract to have assented to the employer’s control. As Clyde Summers put it, with only slight exaggeration, the law “endows the employer with the divine right to rule the working lives of its subject employees.” That power is limited only by occasional and usually highly particularized expressions of public policy, most commonly found in legislation. 
Great Britain is experiencing the centripetal force of moving in the European orbit, as Mark Jeffery explains, and Brazil is tugged in both directions as its economy develops, as Roberto Fragale Filho and Leonel de Rezende Alvim explain. But, in the main, and despite greater or lesser degrees of protection in France, Italy, and Spain, the generalization holds. 
The divide is captured in how these systems deal with an elemental aspect of employee life in the workplace, the freedom to converse with one another. Under French law, an employer’s power over work rules is limited by the principle that it may “not place restrictions on the rights of persons or on their individual or collective liberties unless these are justified by the nature of the work and are proportional to the goal sought.” Accordingly, the Conseil d’État struck down a work rule that prohibited not only political or religious discussion at the workplace, but all non-work related conversation, as an unjustifiable infringement upon individual liberty. In other words, under French law, the plant, office, or shop is a realm in which employees may maintain their sociability, so long as the work gets done. 
In the United States, employers in the late nineteenth century sometimes did forbid workers to converse with one another, on pain of immediate dismissal. Today, federal labor law forbids an employer from prohibiting co-worker conversation, but only as applied to speech on non-work (albeit paid) time when that speech concerns their wages, hours, and working conditions. With few exceptions, that is as far as the law goes. Employees who converse with one another on non-work time, but on other matters may be discharged for the conversation. In other words, subject only to a few narrowly crafted statutory exceptions, an employer in the United States may disclaim that the workplace has any room for human interaction and enforce rules to that effect. 
This state of affairs is perplexing. We take it as a commonplace that there is a Western Legal Tradition that draws from common roots and finds expression in a set of common values, however various the means of implementation. We would take it, then, that when the law on both sides of the Atlantic conceives of the legal attributes of being an employed person it would see pretty much the same thing. But the conception of the employee as a person - the law’s Menschenbild -  in the civil and common law differs and sharply. 
What follows will explore that difference using two countries for more specific examination - the Federal Republic of Germany and the United States. It will next take up the historical development of the law’s Menschenbild from social change beginning in the eleventh century and in legal thought that flowered in the seventeenth and eighteenth centuries. Though the well-spring of modern subjective rights is found in that period, legal theory did not at that time undertake any effort to apply them to the master-servant relationship. On the contrary, in the nineteenth century both Germany and the United States moved toward an economic liberalism that conceived of the employee as an abstract, atomistic entity characterized essentially by the capacity to contract. The sale of one’s labor was thought indistinguishable from the sale of any other commodity even though what was sold came to encompass control not only of the labor, but of the laborer. In the wake of enormous social upheaval in the early part of the twentieth century, both countries instituted collectivist approaches to the employment relationship. These laws conceived of the employee as analogous to a citizen of (or stakeholder in) the employing enterprise. That conception never took deep hold in the United States. It was twisted almost beyond recognition in German law of the Nazi period, but it was refurbished and renewed in German law of the post-War period. In that period, the fundamental differences reflected in the two respective country studies took shape. German judges fused elements of eighteenth century legal thought with twentieth century social thought to produce its current law. The United States remained (and remains) largely rooted in the nineteenth century.

Francis Gurry IP Lecture

Melbourne University has released video of Chief Justice Robert French AC delivering 'A Public Law Perspective on Intellectual Property' - the 2012 Francis Gurry Lecture.
The lecture addresses the intersection between intellectual property and public law. Understanding the importance of this intersection includes an appreciation of how key public law principles apply in the field of intellectual property law. The lecture focuses on three such areas of intersection. The first area is constitutional law: to what extent does the Constitution provide, and limit, legislative power in the area of intellectual property. The second area is the availability of judicial review of administrative action relating to intellectual property. The third area is more abstract, considering what normative rationales have underpinned the development of intellectual property law.