17 November 2012

Animal Acts

'The Origins and Efficacy of Private Enforcement of Animal Cruelty Law in Britain' by Jerry Anderson in 17(2) Drake Journal of Agricultural Law (2012) 263-310 notes that
 In 1822, the British Parliament enacted “An Act to prevent the cruel and improper Treatment of Cattle,” generally recognized as the first statute of any nation specifically targeting animal cruelty. Richard Martin, a colorful and eloquent member of the House of Commons from Galway, was the legislation’s principal author and champion and after the law’s enactment worked tirelessly to ensure its enforcement. Thus, this landmark statute is appropriately known as “Martin’s Act.” Martin’s Act made it a crime, subject to a penalty of up to five pounds or three months in prison, for any person to “wantonly and cruelly beat, abuse or ill treat” various types of livestock, including horses, cattle, and sheep. In one simple sentence, the Act established an important new norm governing the relationship of human to animals. 
The substance of Martin’s Act has been thoroughly examined, with a deserved focus on the Act’s departure from the traditional view of animals as property, subject to their owner’s absolute power. The Act criminalized behavior that previously had been considered well within the rights of the animal owner. Nevertheless, the new legal norm would have become a mere footnote in history had it not been for the immediate, vigorous, and sustained enforcement of its provisions. Remarkably, the enforcement of Martin’s Act crimes occurred largely through the efforts of private parties rather than public prosecutors.  
The Act enabled private enforcement by specifically authorizing the magistrate to issue a summons or warrant to offenders upon the sworn complaint of any person. Private enforcement was crucial because the abused animals could not speak for themselves and the animals’ owner (or the owner’s servant) was often the abuser. At the time Martin’s Act became law, English crime victims typically carried out their own prosecutions and only the most egregious felonies were prosecuted by the Crown. In animal cruelty cases, however, victims could not prosecute or even lodge a complaint; instead, prosecution would rest with third parties who had only a general moral interest in halting animal abuse.  
Martin himself brought many of the early prosecutions under his newly minted Act, and frequently patrolled the streets of London, on the watch for animal mistreatment. In 1824, he and other animal protection activists formed an organization - the Society for the Prevention of Cruelty to Animals - to take on the task of investigating and prosecuting abuse. The Society began slowly, hiring a few inspectors to frequent the London livestock markets and bring prosecutions. In the 1830s, it brought a total of 1357 prosecutions, mostly in London. In each subsequent decade, the Society added inspectors and increased prosecutions, so that by the 1890s it had a nationwide force of 120 inspectors and during that decade brought an astounding 71,657 prosecutions. 
Nearly two centuries after this beginning, the Society has retained its important role in the prosecution of animal abuse crimes, which now encompass cruelty to pets as well as livestock. In 2010, the Royal Society for the Prevention of Cruelty to Animals (RSPCA or “the Society”), which is self-described as “the largest non-governmental law enforcement agency in England and Wales,” fielded over a million telephone calls, investigated almost 160,000 complaints of animal cruelty, and secured convictions of 1086 offenders on 2441 charges. 
Although the RSPCA (and in Scotland, the SSPCA) is now incorporated by statute, it has no special authority beyond that of any other citizen; yet, it has become and remains the de facto prosecutorial authority for many animal cruelty cases. Thus, we have “something of a constitutional novelty for a significant body of law to be largely enforced through the efforts of a charitable organization, funded entirely by voluntary contributions.” 
In the United States, private prosecution of animal abuse began in New York City in 1866, after the American Society for the Prevention of Cruelty to Animals (ASPCA) was organized by Henry Bergh, using the RSPCA as his model. In some ways, the ASPCA enjoyed even greater powers than its British counterpart. For example, the New York legislature gave the society a right to issue its own arrest warrants in certain cases, a “truly extraordinary” delegation of criminal enforcement authority. Ernst Freund noted that this “partial reliance upon voluntary associations for the enforcement of the law” was a “peculiar feature” of anti-cruelty legislation in the United States. Several other states also gave enforcement powers to private humane groups during the last decades of the nineteenth century and early part of the twentieth century. As historian Susan Pearson has noted, the deputizing of animal welfare groups in the Gilded Age “expanded state power through private means.” Many states continue to allow private enforcement of animal cruelty statutes, although in most states the power does not appear to be frequently used. Although American private prosecutions of animal abuse cases never reached the prominence of RSPCA efforts, evidence shows that it arose from similar causes and suffered from similar disadvantages. This Article, however, will focus on the British system of private enforcement, which was a precursor to the American approach and had a longer history, with some comparative references to the American experience. 
Reliance on private prosecution of crimes was not unusual in early nineteenth-century Britain. The “prosecuting society” model had become well-established in Britain by the time the RSPCA began its activities. As early as the seventeenth century, interest groups formed to pool the resources necessary to prosecute criminal activity, in order to fill the vacuum created by a small or non-existent constabulary. In most cases, these prosecuting societies aimed to protect the self-interest of their members - such as the groups of shop-owners organized by Henry and John Fielding to prosecute thievery. Many of the societies were local, formed by groups of town citizens to provide adequate prosecution of crimes thought necessary to ensure public safety. In other cases, the groups formed to prosecute the type of moral offenses that public prosecutors were unable or unwilling to take on. 
None of these prosecuting societies, however, enjoyed the extensive, widespread, sustained success of the RSPCA. Moreover, at least on the surface, the RSPCA differed from these previous societies in terms of its primary motivations, which were altruistic rather than self-interested. This society was formed, not to promote the security of its members, but rather to protect those who could not protect themselves. This difference may be overstated; below the surface, RSPCA prosecutions may have served very similar moral improvement and social control motives of the vice societies and thereby, at least indirectly, may have served the security interests of the Society’s members. Nevertheless, the Society’s stated goal of protecting the powerless - i.e., animals - has more in common with the altruistic societies formed to protect abused children. In fact, in the United States, anti-cruelty groups protecting animals were closely linked to those protecting children. 
Although the Society engaged in educational campaigns and pursued Parliamentary objectives, vigorous prosecution of the law was an essential part of the organization’s strategy from the beginning. As Pearson notes, with regard to American anti-cruelty societies, the ability to prosecute made the educational efforts more effective, coupled as they were with the warning of prosecution in the future. The prosecutions not only stopped the particular abuser accused of the crime, they also provided a more general deterrent and helped to inculcate the public, the police force, and the judiciary with the new norm of behavior toward animals. In addition, the prosecutions helped define the contours of permissible treatment of animals, and in some cases expanded the accepted definition of animal cruelty. 
The RSPCA’s extensive campaign of prosecution provides modern reformers an opportunity to explore the implications of relying largely on private parties to enforce animal abuse crimes. In most criminal contexts, the victim sets the enforcement machinery in motion by complaining to the police and pressing the public prosecutor to pursue the case. In the case of powerless victims such as animals, however, that system does not work. Not surprisingly, animal welfare laws have suffered from low public prosecution rates, which one critic has attributed to “differences in the values people place on prosecution, the costs involved in investigating cases, and the difficulties of proving the criminal violations.” Private enforcement could overcome at least some of these obstacles, resulting in more vigorous enforcement of cruelty laws. Thus, analyzing the advantages and disadvantages of private enforcement, including its particular historical context, could help us assess whether a similar method would be appropriate and useful in enforcing animal cruelty laws today. 
This Article begins by setting out the details of Martin’s Act and subsequent amendments that expanded its reach. The Article then describes the RSPCA’s extensive campaign of animal cruelty prosecution and explores the historical conditions, both societal and legal, that motivated and enabled it. The Article places the activities of this prosecuting society in the larger context of the nineteenth century’s changing views of the role of criminal law and how it should be enforced. The Article then attempts to assess the efficacy of private prosecution in the context of animal abuse, in comparison to other types of crime. The Article concludes that private prosecution enabled the Society to more quickly inculcate the new norm of animal care and may have been necessary to ensure the anti-cruelty law’s effectiveness. Nevertheless, the private enforcement mechanism also had significant drawbacks that could never be completely eliminated. As modern animal welfare advocates search for the optimal methods of animal welfare reform, this remarkable history should prove instructive.

Branding TK

'Branding Indigenous Peoples' Traditional Knowledge' by Susy Frankel in The Law of Reputation and Brands in the Asia Pacific (Cambridge University Press, 2012) edited by Andrew Kenyon, Megan Richardson and Wee Loon Ng-Loy
discusses the limited ways in which branding strategies involving trade marks and geographical indications can be used to protect traditional knowledge. The chapter concludes that these intellectual property mechanisms cannot, on their own, achieve the goals of indigenous peoples in protecting traditional knowledge and in utilising that knowledge for development.
Frankel notes that
Traditional knowledge (TK) is not only information to many indigenous peoples; it is part of their identity. In a broad and non-legal sense of the concept of brand, indigenous peoples are in part identifiable and, thus, branded by association with particular manifestations of their knowledge. When others make use of that knowledge without the permission of indigenous peoples and when the outputs resulting from the use of that knowledge are severed from the indigenous people, from whom the knowledge was sourced, two kinds of complaints arise. The first is that the indigenous peoples identity has been impacted adversely and the second is that no benefits that flow from the use are returned to the indigenous peoples. Thus, the reasons that indigenous peoples seek protection for traditional knowledge are many and varied, but broadly fall into two areas. The first is protection against offensive use of traditional knowledge, and the second is some kind of control that means indigenous peoples consent must be obtained for uses of their traditional knowledge. Consent may be separate from any benefit sharing or could be given with the condition that some kind of benefit returns to the indigenous people from the commercial use. Through these means and indigenous peoples own development of their knowledge, indigenous peoples hope to improve their economic and cultural situation. 
Because indigenous peoples’ own identity is marketable, it is a kind of brand. The attraction of the exotic, of the natural and previously ‘undiscovered’ remedy, are examples of how western consumers are attracted to the products of traditional knowledge. Around the world there are many examples of how westerners make use of indigenous culture. Some examples include the Fiat Motor Company using a Māori haka, the Lego company using Māori names, and the artwork of aborigines in Australia featuring on tourist advertisements. But what advantages and disadvantages lie in branding traditional knowledge in this way? Could indigenous peoples extract even greater value from their traditional knowledge by using the branding tools of intellectual property law? Those tools are primarily trade mark and geographical indications. Is either of these legal regimes of any assistance to protecting traditional knowledge? Is either of these legal regimes of any assistance to indigenous peoples’ development? 
There are broadly two ways in which branding traditional knowledge is relevant to these wider questions. The first is what might be described as active branding and the second is defensive branding. Active branding is when indigenous peoples seek to brand aspects of their own traditional knowledge in order to exploit that knowledge. Defensive branding techniques are those that may exist to prevent others from branding indigenous peoples traditional knowledge. This chapter discusses each of these approaches and the pros and cons of each of those approaches for indigenous peoples.
'Navigating the Landscape of Indigenous Knowledge – A Legal Perspective' by Natalie P. Stoianoff in (2012) 90 Intellectual Property Forum Issue 23 notes
 Australia is a party to a number of international treaties and declarations which recognise the significance of traditional and Indigenous knowledge and cultural expressions, and emphasise the need to respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities. For example, the Convention on Biological Diversity 1992 (CBD) provides member nations with the opportunity to establish regimes that would regulate foreign and domestic access to valuable genetic resources and traditional and Indigenous knowledge while establishing benefit-sharing mechanisms relating to that access. The CBD has also led to significant international debate on the interrelationship with intellectual property rights, particularly patent rights and plant breeders’ rights, which are often the end goal of the desire to access such genetic resources. Australia has been reluctant to take the necessary steps to adequately protect Indigenous knowledge and to ensure that equitable benefit sharing occurs in the use of that knowledge across the country. Conversely, some Indigenous communities have taken their own steps either to engage creatively with the intellectual property regime or to operate outside of that regime. This article will navigate this complex landscape and consider some of the solutions posed by other nations and regions of the world.


'Parody As Brand' (Stanford Public Law Working Paper No. 2170498) by Stacey Dogan and Mark Lemley comments (and subsequently available here) that
[US] Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody reflects too much uncertainty, leaving would-be parodists vulnerable to threats of legal action by trademark holders. In particular, given the flexibility of likelihood of confusion analysis, parodists’ fate is usually determined by the subjective judgment of courts, whose treatment of parody often seems to turn on instinct rather than trademark principles. We suggest some doctrinal tools that offer greater predictability and quicker resolution of parody cases, while avoiding some of the shortcomings of more traditional infringement analysis. … 
Parodies make fun of a thing by copying enough of it to make it recognizable while subverting the message of the original. Most people don’t like being made fun of. Some of those people turn to intellectual property (IP) law in an effort to suppress those parodies. 
When IP owners use copyright law to suppress parodies, the courts have generally rejected those claims. The Supreme Court in Campbell v. Acuff-Rose Music, Inc. gave parody a fairly wide exemption under the fair use doctrine, at least where the parody didn’t substitute for the original work (as it almost never will). More recently, the Seventh Circuit held in a case involving a South Park episode that parody could defeat a copyright claim on a motion to dismiss, because the court needed only to compare the copyrighted work with the parody in order to resolve the fair use issue. 
While copyright law gives broad rights of control over the creative work itself, trademark law protects consumers from confusion about the source of products. Given that, it might stand to reason that rejecting legal attacks on parodies is even more straightforward under trademark law; the interest of trademark law seems less connected to the suppression of parody than does copyright law. 
Nonetheless, courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. Our goal in this Article is to understand why, and to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite increasing attention to speech interests in recent years, the law’s treatment of parody reflects too much uncertainty, leaving would-be parodists vulnerable to threats of legal action by trademark holders. In particular, given the flexibility of likelihood of confusion analysis, parodists’ fate is usually determined by the subjective judgment of courts, whose treatment of parody often seems to turn on instinct rather than trademark principles. We suggest some doctrinal tools that offer greater predictability and quicker resolution of parody cases, while avoiding some of the shortcomings of more traditional infringement analysis.

16 November 2012


Habersberger J in Levy v Watt [2012] VSC 539 has found that the relatives of a deceased man were entitled to retain possession of a Rupert Bunny painting, Girl in Sunlight, stolen from the man in 1991 and subsequently bequeathed by an acquaintance of the deceased to the acquaintance's solicitor. The defendants - the executors and residuary beneficiaries of owner’s estate - did not learn the whereabouts of the painting until 2010 when police seized the painting.

The solicitor as plaintiff in this case claimed that the relatives' documentary title to the painting had been extinguished under Limitation of Actions Act 1958 (Vic). The Court disagreed, holding that s 27(b) of the Act operated to extend the limitation period.

It was held that the relatives' documentary title to the painting was superior to the solicitor's possessory title; the relatives were entitled to retain the painting. The Court indicated that
The parties to the proceeding are innocent of any wrongdoing and unfortunately one side has to lose. On the one hand, the plaintiff, Frank Ernest William Levy, a solicitor, was left the painting by a grateful client in his will. On the other hand, the defendants, Maxwell James Watt and Michael Ian Watt, are the executors and residuary beneficiaries of their uncle, Albert James Watt, from whom the painting was stolen in April 1991. 
The uncle purchased the work in 1953 from Melbourne auction house Decoration Co for 26 pounds 5 shillings. In 1991 the painting and a television set were stolen in a burglary of his house, timed between 11.00 and 11.20 am. The police investigation failed to identify the thief or to produce any information regarding the painting's whereabouts. The nephews continued their uncle’s efforts to locate the work, after his death in 1993, including offering a “substantial reward” and engaging ARM International Pty Ltd to undertake an investigation.

 In 2010, the nephews became aware that a major Rupert Bunny retrospective was to be held at the National Gallery of Victoria and again publicised the theft. Email to one of the defendants' daughter to those associated with the exhibition. Contact with an informant resulted in execution of a search warrant at the solicitor’s home, with the painting being found on display in the dining room. (The solicitor is not accused of stealing the work or knowingly receiving stolen property.) The stolen work was seized by the police. The solicitor then became aware that the painting had been stolen; he co-operated with the police in their investigations. He had gained possession of the work through the will of a deceased client.

The Court notes that
 On 18 June 2010, an interpleader hearing, initiated by Detective Senior Constable Katherine Laird under s 125 of the Police Regulation Act 1958, came before Magistrate Johnstone in the Magistrates’ Court. At the conclusion of that hearing on 18 June 2010, his Honour ordered that “the Rupert Bunny painting Girl in Sunlight be returned by Victoria Police to the Watts on the basis that they jointly and severally keep the painting until such time as ownership is determined by a court or the matter of ownership is not pursued within in [sic] a limited period of six months”. The Painting was also to be insured by the Watts for not less than $200,000. The period of six months within which Mr Levy [the solicitor] was to commence a proceeding to pursue ownership of the painting was included at the request of the Watts’ counsel and was not resisted by Mr Levy’s counsel.
On 29 September 2010, Mr Levy commenced this proceeding seeking a declaration that the defendants’ proprietary rights in the Painting had been extinguished and that Mr Levy was the owner of it. He also sought an order that the Painting be returned to him. It was pleaded in the statement of claim that if the Painting was removed without the consent of Mr James Watt on 11 April 1991 then there had been successive conversions of the Painting (by the thief in April 1991, by Mr Rand in about 1994 when he acquired the Painting, by the executors of Mr Rand’s estate when they obtained a grant of representation in February 1998 and by Mr Levy when he took physical possession of the Painting in early 2008) and that by operation of s 6 of the Limitation of Actions Act 1958, any title of the defendants to the Painting had been extinguished on the expiration of six years after 11 April 1991.
The plaintiff’s claim was based entirely on the operation of the Limitation Act, with his representatives arguing that any cause of action which the defendants may have had regarding the work had long since expired (under s 5(1)(a) of the Act) and that any title to the work had been extinguished under s6(2) of the Act. The solicitor’s possessory title to the work should prevail, as the defendants’ documentary title was extinguished upon expiration of six years from the date on which the painting was stolen, so that the solicitor's possessory title prevailed against the world at large. That conclusion was unaffected by the Magistrate’s order, which rendered the defendants “mere custodians” of the work pending the Supreme Court’s determination of the competing claims to the entitlement to the Painting. The defendants’ reliance on s 27(a) or 27(b) of the Act  to postpone the operation of the limitation period on an allegation of fraud could not succeed, because conversion was not an action “based upon” fraud and s 27(b) did not apply because the fact of the theft was not concealed from the uncle by fraud. The defendants could not prove that the plaintiff or any of his agents or persons through whom he claimed had committed any fraud. Using the Briginshaw standard the Court could not place any weight on the defendants’ circumstantial case for a postponement of the limitation period.

The defendants submitted that because the limitation period was postponed pursuant to s 27(a) or 27(b) it did not commence to run until May 2010 when the defendants learned who had possession of the work. The thief never had any valid title to the painting and thus - nemo dat quod non habet - could not pass a valid title to the solicitor. Alternately, if the defendants were unable to rely on the postponement provisions they could still succeed on the basis that they currently had possession of the work and the qualification of s 125 of the Police Regulation Act 1958 (Vic) – ie that a delivery order did not affect the rights or liabilities of persons claiming the goods or the person to whom such goods were delivered – did not assist the solicitor, because he had not been in possession of the work since the police lawfully executed the search warrant in May 2010. Possession was argued as giving the defendants a superior right to the painting unless the solicitor could establish title to it by showing that the thief was a bona fide purchaser for value without notice.

15 November 2012


'Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence' (Edinburgh School of Law Research Paper No. 2012/25) by Liz Campbell explores
whether the presumption of innocence is compromised by State declarations that a person is other than innocent, but which are neither predicated on nor equivalent to a criminal conviction. The task ultimately is threefold: in a descriptive sense, to establish the existing parameters of the presumption, in particular tracing its incremental expansion by the European Court of Human Rights; secondly, to present a normative argument as to what I believe the presumption should also entail, drawing on its recent doctrinal extension but moving beyond this in certain respects; and then finally to ascertain whether any labels or declarations by the State either before or absent a finding of criminal liability are problematic as regards the presumption of innocence as I propose it should be construed, and what ought to be done about this.
Campbell concludes -
Labels in the criminal justice system have a declaratory function; offences thus need to be named and classified appropriately. Similar caution and fairness is imperative in the official classification and naming of persons based on their actions, given the meaning it may express to fellow citizens. Such labels or measures may be desirable: there is a weighty consequentialist argument for stigmatising certain behaviours on the basis that this is beneficial to society in terms of deterrence and retribution. Nevertheless, ascribing the label of ‘criminal’ risks breaching the presumption of innocence and its underlying values, even when this occurs outside of the criminal process. 
Moving from the traditional dichotomous conceptions of guilt and innocence, this paper draws on an understanding of the criminal justice system as involving a continuum of culpability and associated labelling. Using the presumption as an interpretative device allows us to get to the core of what is troubling about certain State practices. Beyond this, this paper presented an expanded interpretation of the presumption to take in persons who have not been charged, drawing on both its epistemic purposes and broader significance in terms of civic trust. 
Building on this understanding, the paper sought to determine whether certain expressions of suspicion through official labels or declarations of guilt engage or breach the presumption of innocence. At first blush, it might seem that attaching the label of arrestee, suspect, or accused speaks to the State’s suspicion of a person’s culpability or likelihood to offend, and thus distinguishes them from ‘truly’ innocent people who have never come to the attention of the police. By devising a typology focusing on stigma, state intention and public dissemination, this paper concludes that while the unfortunate effect of some measures by the State may stigmatise a person, this is not in breach of the presumption of innocence. Rather, the presumption is compromised only where the declaration involves a public expression of censure on the balance of probabilities, given that such State action usurps the role of the criminal courts and evades the associated protections through the creation of a ‘shadow criminal law’


Walter White on wheels? The National Drug Law Enforcement Research Fund (NDLERF) has released Evaluating drug law enforcement interventions directed towards methamphetamine in Australia, a 133 page report by Alison Ritter, David Bright and Wendy Gong on a study over 2008 and 2009.

The aims of the research were to inform drug law enforcement interventions by providing a rich description of the Australian methamphetamine supply chains and to conduct an initial economic evaluation comparing law enforcement interventions directed at the methamphetamine market.

The authors comment that
Governments and policymakers are interested in determining which interventions are more or less effective than others, such that the scarce funding resources can be allocated in the most efficient manner possible. There is scant research available to law enforcement to guide such decisions. The main impediments to such research are the fundamental methodological challenges inherent in such an undertaking. This project is an attempt to conduct a preliminary analysis comparing the costs and impacts of different types of law enforcement.
It is a ground-breaking study as this has not been previously attempted and it should be seen as the initial development of a methodological approach that can be improved upon with subsequent research. The project aimed to determine the relative cost-to-impact ratios of different law enforcement strategies aimed at reducing methamphetamine production and distribution. In an environment focused on efficiency in resource allocation, it is hoped that this research will provide the impetus for further research on the effectiveness of drug law enforcement. As the results of such research accumulate, it is hoped that policymakers will be able to use the information to improve decision making on law enforcement investment.
The NDLERF states that the report -
provides both a rich description of the Australian methamphetamine supply chains and also conducts an economic evaluation of four law enforcement interventions directed at different levels of the illegal methamphetamine market.
There are two supply chains for methamphetamine in Australia: the first commences offshore and includes the importation of end-product and precursors; the second supply chain commences domestically (with sourcing of precursors) and involves domestic manufacture and distribution. The supply chains converge at the wholesale level within Australia. The report examines found evidence of diverse organised crime groups involved in methamphetamine manufacture and trafficking. These organised crime groups will cooperate with each other for financial gain. The methamphetamine market is characterised by corporate organisational structures with vertical integration, such as Outlaw Motorcycle Gangs; freelance structures via sole operators, such as “meth cooks”; and communal organisations tied with common backgrounds/values (ethnically-based organised crime groups).
The study also assesses the difference between four drug law enforcement interventions in terms of the impact (value of seized product) against expenditure (government costs). The economic model results indicated that the highest ranked intervention, in terms of average costs to impact, was clandestine laboratory detections. Ranked second was end-product trafficking seizures (domestic); third was precursor seizures and the lowest ranked intervention relative to all four was end-product border seizures, but these last two were not substantially different.
In discussing prices the authors comment that -
Three prices exist in the methamphetamine market—prices for precursors, prices for the crystal methamphetamine form and prices for the non-crystal methamphetamine form. Our research on precursor prices reveals that prices of precursors purchased offshore are very inexpensive, whereas within Australia, high prices are paid. This may reflect successful law enforcement efforts at reducing importation of precursor chemicals.
An important feature for any illicit market is the extent of profitability. Profitability is measured by the degree of mark-up in price between two levels of the market. However, we do not have a direct measure of markups per se. An indirect calculation is the quantity discount coefficient, which is derived from the price–weight relationship at different weights. The quantity discount can be calculated on two aspects of price - the changes in the unit price (which reflects the extent of a change in price per standard unit purchased), or the changes in the total price (which reflects margins on total amount sold). We estimated the quantity discount coefficient for both unit price and for total price across the two methamphetamine forms (crystal and non-crystal). This is the first attempt to conduct such analyses for methamphetamine in Australia.
The results of the regression showed that the quantity discount coefficient β1 (quantity discount estimate) for total transaction price for crystal methamphetamine was 0.8727 and for the non-crystal form of methamphetamine, it was 0.8453 (if the coefficient is equal to 1.00 then there is no difference between price paid and price sold). The goodness of fit is reasonably high (R2 above 0.90 in both cases). Comparing the quantity discount coefficient with other drugs in other countries, the Australian coefficient is large, indicative of lower unit price change. This means that running a methamphetamine drug business in Australia may pose lower risks than in the United States, although this is completely suppositional.
Another implication from these results is that methamphetamine seems to be subject to the following pricing rule - for every 10% increase in transaction size, the unit price will fall by 1.21% for crystal form and by 1.47% for non-crystal form. Interestingly, these are smaller than for cannabis (2.5%). To calculate the mark-ups from the quantity discount coefficient, one needs to know the ‘branching ratio’ (ie how many times the drugs are cut during distribution by one dealer). However, the branching ratio is not known, so we use hypothetical numbers. Thus, for example, with a cut between four to 20 times for the crystal form, the mark-ups can range from 119% (at 4 times) to 146% (at 20 times). If the branching ratio is larger, the mark-ups will be higher.
The regression results can also be used to compare the price of crystal and non-crystal. Those prices vary according to their weight, as expected. Our research shows that price differences between crystal and non-crystal forms of methamphetamine are not large at lower seizure weights, while at higher weights (eg at a weight of a pound (455g)) the crystal form of methamphetamine has a higher price than the non-crystal form (about 1.5 times higher). At higher market levels, this price differential is even greater, with crystal methamphetamine being worth almost double that of non-crystal methamphetamine.
Finally, we were unable to determine whether criminal networks adjust price, purity and/or both in order to maximise profits. Our purity analyses revealed that purity varied greatly across weight. In addition, our analysis did not support the assumption of higher weight associated with higher purity. Furthermore, the data analysed here reinforces that caution needs to be taken when using average purity (which may be highly misleading).
Finally, future research should incorporate purity with price, if data which matches purity with price can be obtained.
They go on to comment that -
According to reports from key informants (KIs), the increasing restrictions on the availability of pseudoephedrine in Australia (eg Project STOP, rescheduling of pseudoephedrine-based products) have resulted in a trend of increasing bulk importations of raw pseudoephedrine. With this shift, the interception of precursors at the border will be a priority for law enforcement agencies. Key informants also reported an increase in the use of pre-precursors within domestic manufacture. There are multiple sources for precursors and reagents (eg legitimate industry, break and enter, shell companies etc). Techniques and strategies used by criminal groups to obtain the required chemicals are likely to continue to evolve. For example, the use of pre-precursors in manufacture is now growing as the availability of precursors is restricted. 
The methamphetamine market is dynamic and constantly changing. For example, when a few ‘cooks’ are imprisoned, their preferred methods are no longer common; but the processes can resurface when cooks with specialised knowledge and skill are released from prison. Pseudo-runners appear to be a declining trend (given Project STOP and other restriction on the availability of pseudoephedrine). There has also been a trend back to P2P-type methods in response to restrictions on the availability of pseudoephedrine. Drug law enforcement will be required to focus on the precursors and manufacture techniques utilised for P2P manufacture. There is some regional variation in manufacture methods across Australia. This may be to do with ‘cooks’ availability and their preferred method, but the variation also relates to access to chemicals (eg the Nazi method predominates in Western Australia possibly due to ready availability of ammonia). New methods continue to be invented and used within Australia. Law enforcement will continue to rely on intelligence gathering about manufacture methods to keep abreast of new manufacture processes as they emerge. 
The shift to importation of raw pseudoephedrine in bulk and the increased use of P2P methods may lead to an increase in the number of large clandestine laboratories in Australia. The dismantling of clandestine laboratories will increasingly rely on successful investigations into organised criminal groups who operate large clandestine laboratories. 
The separation of manufacture into discrete steps at different sites may create the impression of small timers but in fact, there is evidence that they can be coordinated by large syndicates which split up the manufacture process as a risk management strategy.


'The Right to Be Forgotten in the Internet Era' (ICRI Research Paper No. 11, 2012) by Hans Graux, Jef Ausloos & Peggy Valcke comments
Especially after its appearance in the European Commission's recent proposal for a new Data Protection Regulation, the 'right to be forgotten' has provoked quite some criticism. Much of the opponents, however, seem uninformed on the actual scope and meaning of the proposed provision. Additionally, the concept is often confused with the much older 'droit a l'oubli', which finds its rationale in the protection of privacy as a fundamental human right. This text starts by giving an overview of the more traditional droit a l'oubli and how it is applied throughout Europe. Subsequently, the more modern 'right to be forgotten' is analyzed from a normative, market, technological and legal perspective. Finally, this text makes a thorough and critical analysis of the current proposal. Despite its laudable goal, some deficiencies should be resolved. But, in general, the right seems to restore the power balance by giving (back) effective control to individuals over their personal data.


'Law is not Turgid and Literature not Soft and Fleshy: Gendering and Heteronormativity in Law and Literature Scholarship' by Greta Olson in 36 Australian Feminist Law Journal (2012) 65-86
uncovers a pattern of gendering in Law and Literature research that has contributed to limited understandings of the disciplines, taken singly, as well as to the projection of a heteronormative script on their relations to one another. This includes the troping of literature as feminine and that of law as masculine, and the emplotment of their relationship as that of an initially antagonistic yet ultimately satisfying heterosexual romance. Accordingly, actual forms of discrimination towards women are confused with contradictory images of a feminized literature as an empathetic, eloquent and morally superior woman. This idealized image of literature is figured as initially suffering under the regime of rationalistic, masculinized law but then reforming ‘him’ through the power of love. To posit law as a man and literature as a woman is to elide their similarities and reify their differences. After assembling evidence of gendering in US American Law and Literature work and to a lesser degree in British critical jurisprudence, the essay outlines historical reasons for why it is problematic to think of literature as morally uplifting and feminine and law as ‘brutish’ and masculine. Instances of ethical and contingent applications of law speak against any monolithic narrative that suggests that literature is inherently more morally conscious. Literature has proven to be a privileged forum for doing the police work of enforcing the gender binary as well as for maintaining other social divisions. In closing, the essay describes strategies to degender Law and Literature in an effort to move the conversation forward. 

Olson comments that -
What then might be some less sexist and heteronormative trajectories for Law and Literature? In the first case connections need to be made between specific legal cultures and the projections of gendered divisions onto these cultures’ laws and literary texts. Indivisible from their socio-historical contexts, law and literature need to be addressed in terms of their discursive and processual interrelatedness. This emphasis on overlaps may be pursued under the rubric of Law and Literature. Yet as the remarks above have shown, the pattern of idealising and feminising literature and derogating law as unfeeling and masculine appears to be a powerful template in Law and Literature. A slippage between categories occurs, and differences are reiterated rather than contested. In the case of much US American work, stereotypes about women and women’s better moral character endemic to the nineteenth-century novel are projected onto an anthropomorphised version of literature. In British critical jurisprudence, the feminised absolute Other is confused with gendered subalterns who suffer under prevailing legal practices. 
What then might be some strategies for avoiding the limitations of the gender binary? Firstly, Law and Literature need to address literature and its institutions with similarly critical perspectives as those that have been taken to law. The monolithic rendering of law as ethically challenged and manly and literature as a repository of teaching the ‘good’ and feminine has failed to address the latter’s enmeshment in hierarchies of power. One needs to be just as canny about the ideological commitments of literature and literary valuations as one is critical of abuses of law. I contend that the critique of law that has been consistently undertaken in Law and Literature scholarship during the last forty years has not been matched by a similarly critical interrogation of literature from within the interdiscipline. Secondly, I would advocate a move towards understanding both law and literature as cultural practices that manifest themselves in texts. This might help practitioners to avoid resorting to the gendered figurations of literature that have proven to be so dominant. Another strategy for degendering Law and Literature may be to concentrate on medial forms other than the nineteenth-century realist novel. A certain distrust of what might be called the medial and visual turn in legal practice that is amply apparent, for example in Richard Sherwin’s work, may absolve scholars from idealising and feminising The Sopranos (1999-2007) or CSI (2000-) as much as they might be inclined to do a Dickens novel. 
In this essay I have sought to uncover two discursive patterns of gendering in Law and Literature scholarship. In the first instance the novel or literary prose is equated with a morally superior woman, or, in more psychoanalytic work, with a more ethical feminine Other. This pattern necessarily involves figuring law as an ethically stunted man. In the second case the gendering transpires less obviously: the novel becomes the locus of speech for feminised persons who have had injustices done to them in legal practices. Alternatively, in postmodern jurisprudence that is informed by an ethics of alterity, the face of the Other is imagined as a feminised subaltern, an eloquent suffering Other who calls law to a justice of contingency. This gendering works prescriptively to reinforce not only disciplinary divisions between law and literature but also to reify what many individuals experience as the prison house of the man/woman binary. Furthermore, gendering in Law and Literature functions to enforce a heteronormative script that suggests that both law and literature will remain unfulfilled unless they complete one another erotically. Law, I want to argue, is not inherently ‘turgid and hard’ and literature is not intrinsically ‘soft and fleshy’: it also partakes in maintaining social distinctions that involve access, privilege and material goods. 
I wish to reiterate that my purpose in this essay has not been to equate the feminist critique of law with the heteronormative gendering that transpires in Law and Literature scholarship. Whether a critique of the assumption that the legal subject is a man with property or the sexist assumptions that have been at the basis of many laws and legal cases dealing with abortion, rape, marriage, custody rights and taxation, this work has methodically opened up legal practice to a recognition of areas of former occlusion. Rather I have wanted to show that the gendering of law as masculine and literature as feminine does a disservice to individual men and women and those persons who do not readily fit into these identity assignments. It also fortifies existing disciplinary boundaries within Law and Literature rather than dismantling them. This gendering reifies assumptions about difference that may in turn reinforce forms of prejudice that will enter through another door. We are back to a low point in gender theory that ‘men are from Mars and women from Venus’. My suggestion for the future of Law and Literature is that we depart from a reliance on the tropes of the romance narrative, that we acknowledge both law’s and literature’s different and overlapping histories of gendering subjects in narrow and prescriptive ways. Let us move on then to a degendered form of dialogue.
'Text Work as Identity Work for Legal Writers: How Writing Texts Contribute to the Construction of a Professional Identity' by Shelley Kierstead & Erika Abner in 9 Legal Communication & Rhetoric: JALWD (2012) indicates that
 The authors conduct an analysis of a number of first year and practitioner legal writing texts in order to examine whether and how these texts focus on the development of a legal identity: in particular, through the creation of a personal, professional, or discoursal voice. The question of creation of a legal identity is significant, in part, because of the increased focus on teaching and learning professionalism and professional behaviors, both within law schools and in practice. The authors conclude that there is a limited focus within the texts on the identity work inherent in learning to write with authority under conditions of uncertainty. The social practice of writing tends to be under-emphasized.
Kierstead & Abner comment that
The legal writing literature is consistent with the literature on doctoral students in its limited focus on the identity work inherent in learning to write with authority under conditions of uncertainty; the social practice of writing receives relatively little attention. 
Within the context of the three apprenticeships described earlier in this work, first-year writing texts provide quite strong coverage of the first apprenticeship - learning to “think like a lawyer.” Additionally, in providing samples and directions for writing particular legal documents, they provide a good foundation for students to begin engaging in the second apprenticeship of technical expertise, though the conflation of good legal writing with good writing might be seen to underplay the extent to which the development of this expertise requires hard work with a unique writing approach. Further, the texts tend to underestimate the extent to which actual work within the community of practice will affect the development of technical writing competence. 
Consistent with other accounts of legal education,  the first apprenticeship does seem to overshadow the other two within the texts. Though first-year texts make some reference to professional responsibility and client service, these references are minimal compared to the coverage of legal analysis and formulas for completing legal writing tasks. There seems to be room for attention to further linkages between personal values and interests, and how these factors work with others to shape the written products that ultimately represent the lawyer to the rest of the profession, and potentially to broader audiences. There is also, we argue, potential for the texts to adopt a more nuanced teacher–learner approach that recognizes the multi-faceted, recursive nature of the writing process. The practitioner texts do address all of the three apprenticeships: the intellectual aspects of writing, the skills aspects of writing (generally the purpose of each book), and either implicitly or explicitly, the identity aspects of writing. Lawyers are positioned as powerful in their control over writing through their ability to confuse, to hide, to manipulate, to create clarity, or to persuade. The identity aspects of these texts also include a component of what we can only describe as the “self-loathing lawyer”: lawyer-authors who apparently find their community to be populated by a particular kind of malefactor. The texts may also promote the expert–novice relationship between author and new lawyer, based on the author’s considerable experience. Students are encouraged to embrace the authors’ views of effective legal writing, whatever it may be, as an antidote to a prevailing culture of poor writing. The message to students and lawyers is that if they do not make the effort to write well, they are implicated in the community’s indifference to good writing. 
A number of interesting trends and contrasts emerge from the legal writing literature. Writer’s “voice” tends to receive a similar degree of coverage in both the first-year and practitioner texts. Contrasts emerge, however, in relation to the representation of the legal writer. The range of descriptions found within practitioner texts is not replicated in the first-year texts, which tend to quite consistently characterize the writer as a problem solver. Likewise, the negative rationales for poor legal writing found within the practitioner texts do not appear within the first-year texts. These “disconnects” seem likely to create dissonance for young professionals in still-early stages of identity development. Neither set of texts explicitly recognizes the depth of transitional issues in writing in school and writing at work. 
The findings within this study are important at a number of levels. At a very basic level, they clarify that texts do contain both spoken and unspoken messages that have the potential to contribute to the manner in which professional identity is shaped. An awareness of these messages provides rich potential for discussion with students and for students to engage with the identity question, including their acknowledgment of “self” as part of the writing process. The simple (yet express) articulation for students that they are entering into a new discourse community that is difficult, and at times unsettling, may decrease the extent to which many of them feel alienated from law, particularly within their first year of study. Introducing students to “templates” for legal documents such as memoranda and advice letters after they have become familiar with legal analysis skills and legal language more generally may allow them to recognize the connection between personal and professional written identity before they are asked to become conversant with technical document format requirements. (There is, after all, no requirement that specific kinds of legal documents be taught in the first year even if there is a requirement that legal writing be taught in the first year.) Further, recognizing legal writing as difficult work that does not necessarily flow naturally from one’s prior writing experience can be empowering to the struggling legal writer. Identifying for upper-year students the challenges of multi-functionality, complexity, and power relations that they can expect to face when transitioning into a work setting has the potential to better prepare them for their post–law school career. Students may need to understand how to manage the advice literature that minimizes or denigrates lawyers’ commitment to a professional identity that includes effective writing. 
Similarly, practitioner texts could assist new lawyers by acknowledging and surfacing the transition issues from writing in school to writing at work, in particular, by identifying the multiple power relations inherent in many documents. Such texts could provide support for the complexity of learning about document rhetoric - audience, purpose, and tone - across a range of document types. Given the nature and complexity of lawyers’ writing, simplified frameworks are only marginally useful. Rather than rely primarily on the author’s individual experience (while valuable), authors could investigate and provide evidence-informed rules and guidelines. Finally, authors could provide positive representation of lawyers as problem framers and problem solvers within an ethical approach to the administration of justice and the creation of relationships.

Cohen on Privacy

 'What Privacy is for' by Julie E. Cohen in 126 Harvard Law Review (2013) comments that
 Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst—anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. Its function is principally a defensive one; it offers shelter from the pressures of societal and technological change. So characterized, however, privacy is reactive and ultimately inessential.
In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. The self who is the real subject of privacy law- and policy-making is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, the purpose of privacy is quite different. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which self-definition and the capacity for self-reflection develop.
So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk. First, privacy is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance, whether public or private, is foundational to the capacity for critical self-reflection and informed citizenship. A society that permits the unchecked ascendancy of surveillance infrastructures cannot hope to remain a liberal democracy. Under such conditions, liberal democracy as a form of government is replaced, gradually but surely, by a form of government that I will call modulated democracy because it relies on a form of surveillance that I will call modulation: a set of processes in which the quality and content of surveillant attention is continually modified according to the subject’s own behavior, sometimes in response to inputs from the subject but according to logics that ultimately are outside the subject’s control. Second, privacy is also foundational to the capacity for innovation, and so the perception of privacy as anti-innovation is a non sequitur. A society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. Efforts to repackage pervasive surveillance as innovation—under the moniker “Big Data”—are better understood as efforts to enshrine the methods and values of the modulated society at the heart of our system of knowledge production. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value.

Junk Food

'A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes' by Katherine Pratt in 87(73) Tulane Law Review (2012) looks at fat taxes.

Pratt comments that
This Article constructively critiques the two arguments that public health advocates have made in support of anti-obesity soda taxes or junk food taxes. Part II discusses and critiques the first argument, an economic externalities argument that government should tax soda or junk food to internalize the disproportionately high health care costs of obesity. Part II also explores alternative economic internalities argument for food or soda taxes, with a focus on incomplete information, bounded rationality, and bounded willpower. Part III discusses and critiques the second argument made by public health advocates, that government should adopt anti-obesity measures to improve population-wide health. This Part considers the appropriate scope of public health law interventions with respect to behavioral risk factors (for example, diet), comments on empirical evidence offered by public health advocates to support proposed soda taxes, and cautions public health advocates to consider possible unintended consequences of anti-obesity proposals.
Obesity policy debates present a conflict of fundamental values, such as health, fairness, efficiency, and autonomy. Part IV attempts to reconcile these values and responds to the “personal responsibility” objection to soda taxes and food taxes. Part V considers various factors that would affect behavioral responses to proposed soda taxes and food taxes and addresses concerns that such taxes would be regressive and thus unfair to low-income consumers. This Part also explores the tax design implications of the literature on tax salience and on asymmetric paternalism and libertarian paternalism. Part VI suggests the way forward for public health advocates, including a proposal to enact a tax on nutritionally poor foods and drinks, paired with a salient benefit. In addition, this Part recommends enactment of a federal system of food classification, based on nutrient profiling methods, along with a federal system of front-of-package nutritional labeling.

14 November 2012


'The toilet as the Zizekian Vase: on the philosophical surplus of psychoanalysis' by Gabriel Tupinambá in 6(2) International Journal of  Žižek Studies (2012)  states that
The present paper investigates what would constitute a strictly Žižekian problem – that is, a problem which is born out of the inclusion of Žižek, who is himself a Lacanian, into the Lacanian field.
This properly Hegelian totality brings to the fore a productive, but profound contradiction in the reception of the Lacanian teaching, best exemplified by the comparison of Žižek and Jean-Claude Milner and their different diagnoses of the political limits of psychoanalysis. Expounding the relation between the two different positions and their respective readings of Lacan’s institutional and conceptual inventions of the late 60’s, the paper argues that Žižek’s conceptual framework is neither reducible to the Lacanian orthodoxy, nor does it constitute an altogether different field - a position we develop through a comparison of Lacan’s famous reference to the (Heideggerian) vase and Žižek’s rather infamous ideological analysis of toilets.
Meanwhile, as a hoary old sceptic, I'm unimpressed by the latest expression of quantum mysticism, this time in media coverage of Stuart Hameroff's deliciously zany theory of the soul. Yes, it's newspapers and bloggers taking the 'quantum theory of consciousness' for a spin around the block again.

Supposedly 'our souls' are "contained inside structures called microtubules which live within our brain cells", with "our experience of consciousness" being the "result of quantum gravity effects inside these microtubules", aka orchestrated objective reduction (Orch-OR).
In a near-death experience the microtubules lose their quantum state but the information within them is not destroyed. Or in layman's terms, the soul does not die but returns to the universe.
"Let's say the heart stops beating, the blood stops flowing, the microtubules lose their quantum state," Dr Hameroff said.
"The quantum information within the microtubules is not destroyed, it can't be destroyed, it just distributes and dissipates to the universe at large.
"If the patient is resuscitated, revived, this quantum information can go back into the microtubules and the patient says 'I had a near death experience'."
In the event of the patient's death, it was "possible that this quantum information can exist outside the body indefinitely - as a soul".
Uh huh.

Let's ignore arguments by physicists and biologists that the microtubule theory is bunk or the long history of eminent scientists and intellectuals saying awesomely silly things. Forget about people who expended a lot of effort and money in trying to catch the soul (which apparently escaped into the atmosphere with the dying person's very last breath) or the enthusiasts who have claimed to be able to weigh the soul (eg comparing the weight of the dying person and the cadaver).

Let's not even ask whether 'soul' has much meaning other than as a religious artefact and notion that has provided millennia of contention. One response might be that there's no persuasive evidence that the quantum information arrives or departs, communicates with 'memory water', resides in coffee cups and rocks, or accounts for 'phenomena' such as reincarnation and astral travel.

Brains as "quantum wave transceivers" in tune with the infinite? At least the microtubule theory doesn't require thermionic valves, hardware that is increasingly difficult to source but apparently necessary if you are using a valve radio to contact the dead.

13 November 2012


'Conceptions in the Code: What 'the Copyright Wars' Tell Us About Creativity, Social Change and Normative Conflicts in the Digital Society' by Stefan Larsson in 4(3) Societal Studies (2012) 1009-1030
theoretically via scholarly literature the consequences of how the networked technology, the Internet is conceptualized. The Internet, as argued here, can be understood in many ways, in the sense that the digital environment is very much dependent on metaphors and conceptual loans to be spoken and thought of. This affects our behaviour and social norms and forms a number of legal challenges emerging in the transition from pre-digitalization to digitalization. The objective of the article is to understand digitalization and social change better, including legal dilemmas, from a conceptual metaphor perspective; hence the article is looking for conceptions 'in the code'. In order to do this, three main topics around which the analysis circles, are chosen: conceptions of the Internet and how metaphors control what we think of it; the role of digital technology in creating a gap between law and social norms: the example of copyright; and, legal conceptions of creativity challenged in a digital context. This means that the article opens a multidisciplinary dialogue between the cognitive theory and the sociology of law, which here, for example, relates to studies in culture and technology, in order to speak of legal and social issues related to digitalization.
Larsson  comments that -
This article is a theoretical, an explorative and an interdisciplinary piece, and it analyses via scholarly literature the consequences of how the networked technology that is the Internet is conceptualised. The Internet, as argued, is a combination of its infrastructure and protocol, and the social organisations forming upon the technology that sets up the constraints and possibilities by its structure and protocol. For example, the digital environment is very much dependant on metaphors and conceptual loans to be spoken and thought of. This is a way to exemplify how technology often plays an important role in processes of social and normative change, which may affect behaviour and social norms, in this case forming the legal challenges emerging in the transition between pre-digitalisation and digitalisation. Seen from the perspective of social change, indicated by the title, the 'law lag' stimulates a viable and relevant discussion. This analysis is made regarding the very concepts themselves that are used for describing the new organisation and societal challenges that have merged in and around the digital technologies and their artefacts. The awareness of how concepts are renegotiated is of relevance for this analysis ... This highlights the importance of metaphors and the cognitive structures they relate to, not the least important for law, including copyright law in a digital society.

12 November 2012

Organ Registries and Embryos

The Health Records and Information Privacy Amendment (Information Transfer) Regulation 2012 in NSW amends the Health Records and Information Privacy Regulation 2012 to allow an organisation that holds health information from the organ donor register maintained by Roads and Maritime Services - ie the NSW state government public transport and licensing authority - to use and disclose that information for the purpose of providing that information to the Australian Organ Donor Register or the NSW Organ & Tissue Donation Service.

The regulations are under the Health Records and Information Privacy Act 2002 (NSW).

 In Grant v YYH Holdings Pty Ltd [2012] NSWCA the New South Wales Court of Appeal has dismissed an appeal in relation to proceedings where a tortfeasor had bred progeny from 16 Awassi sheep owned by two farmers.

A cause of action in conversion and detinue in the initial 16 sheep was found to have been extinguished by operation of the Limitations Act 1969 (NSW). However, the Court found that title in any progeny continued to exist. It accordingly held that the farmers were entitled to the return of all progeny and any embryos and semen from the original 16 sheep.

The judgment includes reference to historic case law regarding swans, beavers, racehorses and other creatures, such as Jones v De Marchant (1916) 28 DLR 561, the Case of Swans [1572] EngR 403; (1572) 7 Co Rep 15b and Borg v Howlett [1996] NSWSC 153.

11 November 2012

Genome sequencing

Last week I co-authored a submission to Australia's National Health & Medical Research Council regarding that organisation's increasingly permissive and privacy-erosive stance on genetic testing.

It is interesting to note 'Currents in Contemporary Bioethics: The Case against Precipitous, Population-Wide, Whole-Genome Sequencing' by Mark Rothstein in 40(3) Journal of Law, Medicine and Ethics (2012) 682-689.

Rothstein comments that
Whole-genome sequencing has demonstrable value in elucidating the genetic etiology of rare disorders, in identifying atypical variants in common diseases, in determining pharmacogenomically appropriate drugs and dosages, in performing tumor genome sequencing, and in aiding other clinical applications for the diagnosis and treatment of individuals who are symptomatic or whose family health history places them at substantial risk. Undoubtedly, the clinical applications of wholegenome sequencing will increase in the future.
Whole-genome sequencing raises important ethical and policy issues, but there is little evidence that societal considerations will slow the pace of development, promotion, or use of new sequencing technology. For a variety of scientific, medical, and commercial reasons, scientists and entrepreneurs are determined to begin population-wide, wholegenome sequencing as soon as it is technically feasible and financially viable. 
This article critically evaluates the headlong rush to perform population-wide, whole-genome sequencing. After considering the context and implications of whole-genome sequencing, the article concludes that, at the present time, the likely harms from population-wide, wholegenome sequencing greatly exceed the likely benefits.
He highlights ten concerns about population-wide, whole-genome sequencing:
  • 1. Lack of Clinical Utility
  • 2. Lack of Test Regulation
  • 3. Lack of Data Storage and Usage Protocols
  • 4. Lack of Standards for Interpretation
  • 5. Lack of Genetics Professionals
  • 6. Lack of Population Health Literacy and Numeracy
  • 7. Lack of Equitable Access to Genetic Services
  • 8. Lack of Return on Investment
  • 9. Lack of Health Privacy and Nondiscrimination Protections
  • 10. Lack of Attention to Psycho-Social Harms and Long-Term Implications
Rothstein concludes -
The medical case for selective introduction of whole-genome sequencing into clinical settings is unassailable. For an expanding number of health conditions and clinical scenarios, whole-genome sequencing is appropriate and holds great promise for significantly improved health outcomes. Nevertheless, at the present time these factors do not militate in favor of population-wide, wholegenome sequencing for asymptomatic individuals. There is insufficient clinical utility and too many ethical, legal, and psycho-social risks.
Population-wide, whole-genome sequencing is not a scientific “manifest destiny.” Merely because it can be done does not mean that it ought to be done – or at least that it ought to be done now. Unconstrained scientific excitement and unabashed commercial exuberance notwithstanding, the heedless and premature wholegenome sequencing of asymptomatic individuals would be foolhardy and dangerous social policy. Moreover, unjustified genome sequencing would contravene medicine’s prime directive of primum non nocere, first do no harm.
'Associational Privacy, the Presumption of Innocence, and 'Corruption of Blood' as Constitutional Metaphors in the Debate on 'Familial Searching'' (Penn State Law Research Paper No. 14-2013) by David H. Kaye 
analyzes three constitutional claims about the emerging practice of trawling DNA databases for “near misses” to crime-scene samples that might reflect the fact that the DNA came from a first-degree relative of the nearly matching (but excluded) individual. These claims are that this type of “outer-directed” trawling (which casts suspicion on individual outside the database) is an infringement of constitutionally protected familial privacy, an affront to the presumption of innocence, and an unconstitutional “corruption of blood.” Upon inspection, the relevant constitutional provisions lend no more than metaphorical support to these objections to “familial searching.”

Death and taxes

With recent US brouhaha about the 1% (or 0.1%) in mind it is interesting to look at 'The Swedish Inheritance and Gift Taxation, 1885–2004' (Research Institute of Industrial Economics Working Paper No. 936, 2012) by Gunnar Du Rietz, Magnus Henrekson & Daniel Waldenström which follows the money in a study of the evolution of the modern Swedish inheritance taxation from introduction in 1885 to abolition in 2004.
A thorough description is offered of the basic principles of the tax, including underlying ideas and ambitions, tax schedules, and rules concerning valuation of assets, liability matters and deduction opportunities. Using these rules, we calculate inheritance tax rates for the whole period for a number of differently endowed family firms and individuals. The overall trend in inheritance tax burden exhibits an inverse-U shape for all firms and individuals. Up until World War II, inheritance tax rates were very low (never above six percent), but in the postwar era tax rates increased rapidly for both inherited firms and individual fortunes. Effective tax rates peaked in the mid-1970s. Valuation reliefs were introduced in the 1970s, which sharply reduced tax rates for inherited family businesses. Tax rates for deceased individuals were first cut in 1987 and then significantly reduced in 1991–1992. Finally, inheritance and gift tax revenues were relatively small, around a quarter of a percent of GDP. 
The authors conclude
In this paper we have analyzed gift, inheritance and estate taxes in Sweden. The analysis begins in 1885 when (a modern form of) inheritance taxation was first introduced in Sweden. In the 1910s, a formal gift tax was launched and during the period 1948–1958 there was also an estate tax in addition to the inheritance and gift taxes. The analysis stops in 2004 when the Swedish inheritance and gift taxation is abolished.
The inheritance tax was introduced in 1885 as a single tax – the 1884 stamp ordinance – with the estate report as the tax base. The first modern inheritance tax was introduced in the form of the 1894 stamp ordinance. It increased the maximum tax rate for spouses and children to 1.5 percent of taxable lots and to 6 percent for other heirs. The 1914 inheritance and gift tax ordinance – introduced in 1915 – integrated the two taxes and was also the first modern gift tax. It had a maximum marginal tax rate of 4.5 percent for spouses and descendants, and 18 percent for other non-legal heirs. After 1911, sizeable tax increases were implemented on two occasions.
The first substantial tax hike took place in 1934. In 1933, the government proposed a new high state tax on inheritances and gifts. This bill was, however, rejected by Parliament. After having failed to introduce an estate tax, the new Social-Democratic minority government instead substantially raised the taxes on gifts and on inheritance lots (arvslottsskatten). The maximum rate for children and spouses was raised from 4 to 20 percent and the maximum rate for others (Tax Class IV) from 18 to 35 percent.
The second drastic tax increase occurred in 1948 when a new and more successful attempt was made to introduce an estate tax – the 1947 estate tax ordinance. The new, high estate tax was imposed side by side with the earlier taxes on gifts and inheritance lots, but the estate tax was made deductible before the inheritance tax was calculated. The maximum marginal tax rate (the net sum of inheritance and estate taxes) for descendants and spouses was raised in 1948 from 20 to 60 percent and for others from 35 to 67.5 percent.
The marginal inheritance tax rate peaked in 1971–1973 at 65 percent for descendants and 72 percent for other family members. During the period 1948–1973, the average inheritance tax for wealthy persons and owners of large closely held corporations exceeded 48 percent.
Owing to the introduction of a tax relief for small firms in 1971, and a reduced valuation of business capital in 1974, the inheritance tax burden already peaked in 1973 for smaller family firms. In 1978, the valuation of business capital (defined as company net worth) was reduced to 30 percent of book value. Even though this caused the tax burden for family firms to drop, the high and progressive inheritance tax continued to make it difficult to transfer firms to family successors, and even for larger family firms to continue as independent entities. For large individual estates, the inheritance tax continued to be around 40–50 percent of the estate through 1991. A substantial reduction of tax rates was implemented in 1992, and then the tax on bequests to spouses was removed in 2003 followed by the final abolishment of the entire inheritance and gift tax in December 2004.
Inheritance and gift tax revenues were never particularly important as a source of revenue for the central government; with few exceptions less than two percent of total tax revenue was raised this way, and in the last forty years before abolishment the share was around one tenth of that level. Instead, these taxes were primarily motivated by distributional concerns, relating to an urge to even out large inequalities of opportunity arising from inherited wealth at the top of the wealth distribution. Society apparently accepted paying a price in terms of excess burden to secure a more even distribution of opportunity, but the low revenue from this source in the postwar period casts doubt on the effectiveness of the inheritance and gift tax in this regard.
Exactly what factors that can explain the removal of the inheritance tax in 2004 have not been analyzed systematically by researchers. According to Lodin (2009), the tax was abolished as part of a logrolling scheme between the Social Democrats and the Left Party, but whether there were other, more structural, determinants related to taxpayers’ avoidance or to the public opinion remains to be established by future research.