Poor Privacy

'The Class Differential in Privacy Law' by Michele Gilman in 77(4) Brooklyn Law Review (2012) 1389-1445 analyzes

how privacy law fails the poor. Due to advanced technologies, all Americans are facing corporate and governmental surveillance. However, privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to be stigmatizing and humiliating, and it thus not only compounds the harmful effects of living in poverty, but also dampens democratic participation by the poor. The poor interact with the government and low-wage employers in ways that are on-going and interpersonal, and as a result, the "right to be left alone" embodied in current privacy law does not protect their interests in dignity and autonomy. This article argues that poor Americans experience privacy differently than persons with greater economic resources and that the law, in its constitutional, statutory and common law dimensions, reinforces this differential. This class differential in privacy law has costs not only for the poor, but for all citizens.

She concludes that -

While most Americans are vaguely aware that they are subject to surveillance, they do not feel its effects concretely, and they are willing to relinquish some privacy for increased security and for the conveniences of technology. Yet for the poor, surveillance is neither vague nor invisible. Rather, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to stigmatize and humiliate, not only compounding the harmful effects of living in poverty, but also dampening democratic participation by the poor.

Yet privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, the poor interact with the government and low-wage employers in ways that are ongoing and interpersonal, and as a result, the “right to be left alone” embodied in current privacy law does not protect their interests in dignity and autonomy. Privacy law, in its constitutional, statutory, and common law dimensions, protects reasonable expectations of privacy, but courts have long held that people give up expectations to privacy when they seek help from the government or go to work. The law thus reinforces the existing class differential in privacy practices. This class differential has costs not only for the poor, but for all citizens. The poor do not need to be left alone; they need to be treated with dignity. Privacy should not be for sale. All Americans would benefit from enhancing the privacy rights of the poor, and united, we can provide a powerful check on expanding surveillance that impacts the poor and rich alike.

Teaching and Litigation

Reading the judgment in Weir v Geelong Grammar School (Civil Claims) [2012] VCAT 1736, a case that's delighted my students this year.

It concerns action by Rose Ashton-Weir and her mother Elizabeth Jane Weir [Jane weir] against Geelong Grammar for that very up-market school's alleged failure to provide sufficient support for 'gifted' Rose to get into Law at Sydney University. The plaintiffs lost the case. The Tribunal considered claims of breach of contract and misleading &  deceptive conduct pursuant to the Fair Trading Act 1999 (Vic), finding that there was no breach of contract and no relevant misleading or deceptive conduct.

It also found that if the plaintiffs had succeeded, there were problems with the damages claims. Ms Weir had argued that the school should pay for her increased rent when she had to move to new larger premises to accommodate Rose after her daughter returned from Geelong Grammar. She also sought damages regarding loss of earnings regarding a proposed chocolate fortune cookie business.

Ms Weir claimed $500 as the removalist costs of Jane moving from country NSW to Sydney in mid 2009 so that Rose could be accommodated at home, $39,000 (the difference between the rent paid by Jane in Sydney from December 2009 to February 2012, and the rent that she'd been paying in country NSW), and $450,000 (loss of potential earnings in a business venture, based on projected net profits from August 2009 to August 2012, and the refund of the Geelong Grammar fees in Terms 1 and 2 of 2008).

Her daughter claims that "the inadequate education supplied by the School" had set her back:

if the School supplied a proper education, Rose would have been studying Law at Sydney University by now. The School’s failures caused Rose to miss out on entrance to Law. She will have to study Law at post graduate level. She will incur additional University fees and see a deferral of her ability to earn income. Rose claims $95,000.

Lulham DP noted

She [the mother] did not prove, for example, that her residence on Copacabana was so small that Rose could not be accommodated there. People who claim damages have an obligation to mitigate their damage, and if Copacabana was inadequate for Jane and Rose to cohabit, that would not explain why Jane had to move to Double Bay at around 2.5 times her Copacabana rent.

The loss of prospective earnings from the chocolate biscuit business was unsurprisingly rejected as being  losses that fell outside the rule in Hadley v Baxendale, ie  not losses that arose naturally (first limb) or were not losses which were in the contemplation of the defendant at the time the contract was made (second limb).

Lulham DP was unimpressed by the claim for Rose’s loss of income as a lawyer, commenting that

Rose’s claim for damages is illusory. The fact that Rose has gained admission into a double degree at Sydney University reflects well on Rose in Year 12, but also reflects poorly on her claim against the School because it shows that Rose did not suffer any damages at law.

Rose asserts that she will complete her degrees, then study Law, then graduate from Law, then gain employment as a lawyer. Assuming that events pan out in that way, the costs and deferral of income arising from them will not have occurred in “the usual course of things”, within the meaning of Hadley v Baxendale. Rose assumes that the School somehow guaranteed that she would gain admission to Law school immediately after Year 12, and there is no basis for that.

As with Jane, Rose must mitigate her damage. Rose conceded that her Year 12 marks were sufficient to gain her entry into a law school other than Sydney University. Her decision not to take that path is contrary to her duty to mitigate.

Heaven forbid, Rose might have even chosen to study law at UC!

It appears that Rose had been pushed by her parents (particularly her mother) to go to Geelong Grammar, where she was unhappy, did not interact well with other students and teachers, and frequently failed to attend meals and class. She frequently failed to do homework and bring books to class.

School end-of-term reports apparently indicated that she had struggled to meet 'basic expectations and routines', 'eventually was able to organise herself to be on time for meals but not for class attendance', 'was not socialising with students or staff', 'had taken Rose some time to understand the purpose and intensity of [Geelong Grammar's Timbertop program]', 'had been unmotivated at times and had struggled to fulfil commitments', had 'not recognised that the curriculum was not negotiable' and needed to improve her 'attitude and effort'. She 'made a poor effort, displayed very poor organisational skills, displayed unsatisfactory behaviour, was disorganised, unmethodical and careless'. She 'had not submitted work and refused to take responsibility', was 'not good at following up missed work, and was easily distracted'. Those comments are perhaps indicative of teenage unhappiness, rather than brilliance.

Her mother had gained a psychological report when Rose was 13 years old that indicated Rose was highly intelligent - useful if you are aiming at a law degree - but lacked organisational skills and needed a structured environment. The plaintiffs apparently interpreted that report as meaning Rose was “gifted” but had a “disability” (ie lack of organisation and ability to apply herself, a disability that alas seems to be experienced by some law students). Their expectation was that Geelong Grammar would reflect that assessment in its dealings with the student.

They sued the school because it did not help Rose reach her potential as a “gifted” student, and she did not get into Law at Sydney University, although her results were sufficient to get into Law at other NSW universities. She instead chose Arts/Science at Sydney University.

Lulham DP commented

 Being “gifted” is a 2-edged sword – you have to apply yourself. The world is full of talented people and talent alone is not enough.

Lulham noted Yee Tak On v Dr Linda Hort (ANU College) [2012] FMCA 391.

In that case Yee sued the Australian National University when he failed a preparatory course and so was unable to enrol for an undergraduate Law degree. Yee claimed that because he was given a lot of homework and was unable to complete assignments, his results did not meet the standards required for him to gain enrolment as an undergraduate. He sued the ANU for misleading conduct and for maladministration of its course.

The Federal Magistrates’ Court summarily dismissed Mr Yee’s application. Neville FM indicated that

It is not uncommon that courses in educational institutions ... are not delivered to the absolute, highest quality. Such is the reality of most human endeavour. However, it is one thing for educational courses, to be, among other things, of varying quality: it is quite another for the delivery of a course to provide a base, in law, for a dissatisfied student to claim the relief sought by Mr Yee. ... I do not see that a legal base has been established, or that it could be established, to support the claims for which he contends ... While Mr Yee obviously has a grievance with the College, in my view, that grievance is insufficient, as a matter of law, to provide any foundation for the claims he has set out in his application.

Last year in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) Maria Abramova sued the Oxford Institute of Legal Practice (OxILP) for £100,000 for negligence and breach of contract after she failed her Property Law and Practice admission exams. She claimed she found it "psychologically difficult" to take legal exams and that the Institute had been negligent in her preparation. The judgment by Burnett J is uncomfortable reading, stating that

The claimant was a witness who, in my judgement, was ready to blame anyone but herself for her misfortunes. She was inappropriately, and in my view without foundation, willing to make criticisms of those who taught her.  I came away with the clear impression that when the claimant said that it did not occur to her that she might fail, she meant it.  She still finds it difficult to comprehend why she failed.  Furthermore, she continues to labour under the impression that when she was told by various members of staff that her answers were wrong or inadequate, that in fact the answers were right. The evidence from the staff that they gave the claimant every assistance when she asked for it was compelling. ... There were, in addition, times during her evidence where I concluded that the claimant was being less than frank.

Burnett J in concluding stated that

I am unable to accept that the teaching in examination techniques was inadequate, still less negligent ....The success of the overwhelming majority of students at OXILP is itself testimony to the quality of the teaching, reflected also in the overall assessment of outside observers. ...

The question formulated in argument was whether, had the claimant been taught as she suggests that she should have been, there was a realistic chance she might have passed the course, or would it be no more than speculative that she might. In my judgement the answer is that there was no realistic chance of the claimant passing the course. For whatever reason, the claimant did not display aptitude necessary to succeed on the Legal Practice Course. ... The breadth of her difficulties in passing various papers suggests a fundamental problem which the lack of success in the New York bar examinations confirms. Despite her academic ability, which is beyond doubt, the claimant's difficulties in achieving success in the Legal Practice Course were profound, indeed fatal to that success.

 In 2010 Tony Chinedu Wogu as a self-represented litigant failed in his bid to sue the University of Bradford for a mere £5m compensation, alleging that a 2.2 and not a First in Computing Science was the result of discrimination and breach of contract.

The University successfully argued that the matter should be struck out, characterising the £5m claim as "unsustainable and unrealistic" and going on to label the suit as one that was "incoherent and makes no sense", "a waste of the court's and the parties' time and resources". Collender J struck out the case, commenting that "this court has not the power or expertise to simply examine or to determine the proper degree grade to which the claimant would have been entitled from the University of Bradford" and noting that Wogu should lodge an internal appeal with the University before bringing the matter back to court.

Psychiatric Accommodation

The NSW Ombudsman has released a report arguing that around one third of NSW psychiatric patients living in mental health facilities did not need to be there but could not be discharged because other accommodation is unavailable.

The Denial of rights: the need to improve accommodation and support for people with psychiatric disability report centres on examination of the files of 95 people in 11 mental health facilities, alongside consultation with around 300 stakeholders. In an echo of past reports across Australia anmd the National Mental Health Commission's 'scorecard' released this week, the Ombudsman commented that

Our inquiry identified people aged 24 and 25 years who are capable of living in the community with the right support and who have already been in hospital for over five years. It is unacceptable that these young people may be facing a similar future to others in our review who were admitted to hospital as teenagers and only left when they were discharged to aged-care facilities.

The report states that

NSW mental health and disability legislation and United Nations principles emphasise the right of people with mental illness and psychiatric disability to live in the community and to receive support in the least restrictive environment possible. However, our inquiry has found that many people are staying in mental health facilities beyond the point at which they need to be there. 

The conservative estimate is that one-third of people currently living in mental health facilities in NSW could be discharged to the community, if appropriate accommodation and supports were available. 

Our inquiry confirmed that the scarcity of appropriate community-based accommodation and support, and the exclusion of people with a primary diagnosis of mental illness from accommodation funded under the DSA, are critical factors affecting the ability of mental health inpatients to move into the community. We also found a number of barriers to discharge within the mental health system. 

We identified problems with the work undertaken by mental health facility staff to plan for, and facilitate, the discharge of individuals into the community. In particular, we found that: 

• no discharge planning had occurred for almost one-third of the people who were considered to be clinically well enough to leave hospital; 

• mental health staff in some districts appeared to have limited knowledge of available accommodation and support options, and the eligibility criteria of services and programs; 

• the amount and quality of discharge planning was highly variable and, in some cases, appeared to be influenced by factors other than the person’s mental health and the availability of community accommodation and support; and 

• there were often long periods of time between staff making a referral to a service for accommodation support and following it up; and delays in staff identifying an action to progress discharge planning and carrying it out.

 We found that the discharge of patients is also adversely affected by:

• the limitations of the rehabilitation that patients can undertake within the hospital setting; • the views of mental health staff about the best interests of individual patients, and the views of the patients themselves; and • the difficulty of transferring patients to less restrictive options in other Local Health Districts. 

Our inquiry points to the need for a state-wide review of discharge planning practice in mental health facilities to ensure that:

• practice is in line with relevant policy and legislation; 

• decisions regarding support needs and readiness for discharge are informed by recent and accurate information; and 

• internal factors adversely affecting discharge are identified and addressed. 

We found that appropriate community supports – including clinical support and long-term and highly supported accommodation – are in short supply, and that this is preventing the discharge of people from hospital. 

In addition, our inquiry showed that people in mental health facilities are largely excluded from the accommodation and support that is provided by the disability sector due to their diagnosis and/or location. 

Many of the people we consulted raised concerns about the availability and adequacy of community mental health support. We were advised that community mental health teams do not currently have the capacity to provide sufficient, and timely, support due to factors such as unfilled mental health positions in some districts, and excessive caseloads. 

We were told that the limited capacity of community mental health teams adversely affects discharge planning in mental health facilities – it limits the community team’s capacity to accept new referrals, and influences the decisions of mental health facility staff about whether a patient could be appropriately discharged to the community. 

Senior mental health staff also expressed concern about people living by themselves in the community who are at risk due to the lack of available clinical support. Availability of appropriate community-based accommodation and support Multiple inquiries since 1983 have repeatedly reported shortages of suitable supported accommodation in the community for people with mental illness – particularly long-term and 24/7 supported housing options. We found that this continues to be a major reason why people remain in mental health facilities longer than necessary. 

Our inquiry indicates the need for an increased supply and range of supported housing options that provide on-site support for 16 to 24 hours per day, and for services and support for people with psychiatric disability to be driven by flexible, person-centred and individualised approaches. 

We found that the available long-term and highly supported housing options are very limited:

• Across NSW, there are only 114 beds in community residential services operated or funded by the mental health sector that provide 24/7 support. 

• This is insufficient to meet existing demand, let alone meet the needs of other people in mental health facilities who could be discharged if appropriate options were available. 

• While the Housing and Accommodation Support Initiative (HASI) is an effective model of supported accommodation and agency partnership for people with severe mental illness and associated disability, the number of places is insufficient to meet demand, and it has not typically provided support for more than eight hours per day. 

• The disability sector has a much larger number of long-term and highly supported accommodation options, including more than 4,000 beds in ADHC-operated or funded group homes. However, ADHC policy currently excludes people with psychiatric disability who have a primary diagnosis of mental illness from most of this accommodation. 

While there is current work underway in the mental health and disability sectors to expand supported accommodation options, it will not resolve the problems identified in our inquiry:

• Health is expanding HASI in NSW to include 48 packages of 16 to 24 hours per day support, over four years. This is a welcome development. However, on its own, it is unlikely to make a significant dent on unmet demand. 

• ADHC, via Stronger Together, has increased, and is continuing to expand, the number and range of supported accommodation places for people with disabilities. 

However, an existing ADHC policy exclusion means that the additional places will not typically be available to people with psychiatric disability, even if they meet the criteria of the DSA. 

Access to accommodation and support under the Disability Services Act 1993 The access of people with psychiatric disability to services and support under the DSA is central to this inquiry. 

As a rights-based piece of legislation, the DSA aims to ensure that services are provided to people with disabilities in order to assist them in achieving their maximum potential as members of the community, and to promote increased independence and integration in the community. People who have a disability caused by a psychiatric impairment are included in the target group for services under the DSA. The Act includes specific reference to people with mental illness and associated disability, indicating that people in mental health facilities are included in the target group, and that the Minister for Disability Services can provide financial assistance to the Minister for Health to enable the funding of psychiatric disability services. 

Yet, despite these legislative provisions, people with a primary diagnosis of mental illness and associated disability do not currently have consistent access to the full range of disability services. In particular, they do not have access to the majority of supported accommodation that is funded under the DSA. 

This is mainly because ADHC’s policy that governs access to this accommodation – the Allocation of Places in Supported Accommodation policy – specifically excludes people with a primary diagnosis of mental illness, on the basis that Health is considered to have responsibility for providing this support. The effect of this policy – which appears to be ultra vires – is that these individuals are being excluded from their rights under the DSA. 

Our file review found that excluding people with a primary diagnosis of mental illness is highly problematic. In particular, we found that:

• this approach to determining eligibility does not adequately take into account the person’s functional impairment and psychiatric disability – the key reason why they need disability services and supports; 

• it is not clear how ADHC determines whether mental illness is a person’s primary diagnosis, and there is no policy guidance on this critical issue; and 

• application of the policy requirements appears to be inconsistent, with some people with psychiatric disability accepted onto ADHC’s register for supported accommodation, but not others. 

More broadly, the access of people with psychiatric disability to services under the DSA, and to the disability reforms underway in NSW, is currently restricted as a result of demarcations between ADHC and Health, and differing views as to which sector – disability or mental health – has responsibility for providing accommodation and disability support to these individuals. 

In this regard, our inquiry supports the position of the Productivity Commission in relation to the proposed National Disability Insurance Scheme (NDIS). In the final report from its Disability Care and Support Inquiry, the Commission contended that clinical mental health care should rest with the mental health sector, and the disability sector (NDIS) should have a role in meeting community-based disability support needs, including accommodation support, for people with significant and enduring psychiatric disability who do not require on-site clinical services. 

The Commission’s position is consistent with the view advanced by the (then) NSW Government in its submission on the NDIS. Importantly, the Government’s submission supported the adoption of an inclusive, coordinated approach in relation to people with psychiatric disability, and emphasised the need for:

• a joint strategy involving the mental health and disability sectors, to build cross-sector capacity and skills and a joint understanding of roles and responsibilities; and 

• a collaborative, person-centred approach to planning to determine the sector(s) that best meet the identified needs of individuals, and to further determine their respective roles and responsibilities. 

This position is in line with the ADHC and Health Memorandum of Understanding on the provision of services to people with an intellectual disability and a mental illness. However, this Memorandum only applies to people with these dual diagnoses – there is no agreement between the disability and mental health sectors relating to people with a psychiatric disability who have a primary diagnosis of mental illness. While we are mindful of the potential resource implications for the disability sector in enabling the access of people with a psychiatric disability to services under the DSA, it is clear from our inquiry that this must occur. The continuing infringement of the rights of these individuals is unacceptable. 

In responding to this issue, it will be essential that ADHC and Health work together in building a support system to meet the needs of this vulnerable client group. It will also be important that, as a part of planning for the NDIS, this new system both conforms to the DSA and adopts a person-centred approach. 

However, the demarcation between ADHC and Health relating to support for people with psychiatric disability is longstanding, and may not be easily resolved through good leadership and goodwill. It will be important to ensure that implementation of the joint strategy is effectively monitored. If matters relating to cross-agency work cannot be resolved, government may need to consider whether a change to the existing agency clusters would bring mental health and disability closer together.

Denominations

In a forthcoming book chapter I've noted Australian recognition of religions, with for example the Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120.

Section 26 of the Marriage Act 1961 (Cth) states that "The Governor-General may, by Proclamation, declare a religious body or a religious organisation to be a recognised denomination for the purposes of this Act".

The current version of the Marriage (Recognised Denominations) Proclamation 2007, ie the proclamation under that section of the Act, identifies the following religious denominations. Jedi, to the distress of one student, is not featured on the list.

• Aboriginal Evangelical Fellowship of Australia 

• Ananda Marga 

• Anglican Catholic Church in Australia 

• The Anglican Church of Australia 

• The Antiochian Orthodox Church 

• The Apostolic Church (Australia) 

• The Apostolic Church of Queensland 

• The Armenian Apostolic Church in Australia 

• The Assemblies of God in Australia 

• Associated Christian Ministries 

• Associated Christian Spiritual Churches of Australia 

• Associated Mission Churches of Australasia Incorporated 

• The Association of Vineyard Churches Australia 

• Australian Christadelphian Ecclesia

• The Australian Church of Antioch 

• Australian Fellowship of Bible­believing Churches 

• Australian Fellowship of Mission Centres (Youth with a Mission) 

• Australian Indigenous Ministries 

• Australian Unitarian Druze 

• Autocephalic Greek Orthodox Church of America and Australia 

• Baha’i Faith 

• Baptist Union of Australia 

• The Belarusian Autocephalous Orthodox Church in Australia and Abroad 

• Bethesda Ministries International Incorporated 

• Brethren 

• C3 Church 

• Global Calvary Life Assemblies 

• Chinese Methodist Church in Australia 

• Christian and Missionary Alliance of Australia 

• Christian Brethren Christian Church in Australia 

• The Christian Church 

• The Christian Israelite Church 

• Christian Life Churches International 

• Christian Outreach Centre 

• Christian Reformed Churches of Australia 

• Churches of Christ in Australia Church of God (Australia) Limited 

• Church of Jesus Christ of Latter­Day Saints 

• Church of Scientology Incorporated 

• The Church of the Foursquare Gospel (Australia) Limited 

• Church of the Foursquare Gospel in Australia 

• Church of the Nazarene 

• Church of Tonga in Australia 

• The Community of Christ Congregational Christian Church in Samoa

• Congregational Federation of Australia Connexions Ltd 

• Cook Islands Christian Church 

• Coptic Orthodox Church of Australia 

• CRC Churches International 

• Crosslink Christian Network 

• Dream Centre Christian Church Limited 

• Evangelical Presbyterian Church of Australia, 

• Federation of Australian Buddhist Councils 

• Federation of Reformed Christian Churches of the Pacific Australia Incorporated 

• Fellowship of Congregational Churches 

• Fellowship of Evangelical Churches in Australia 

• Fellowship of Independent Evangelical Churches 

• Free Reformed Church of Australia 

• Free Serbian Orthodox Church, Diocese for Australia and New Zealand 

• Full Gospel Churches of Australia 

• German Evangelical Lutheran Church 

• Goshen Ministry International Outreach 

• Greek Orthodox Archdiocese of Australia 

• Hindu Council of Australia 

• Holy Apostolic Catholic Assyrian Church of the East 

• Hungarian Reformed Church of Australia 

• Iglesia ni Cristo 

• Independent Baptist Fellowship 

• Independent Baptists of Australia 

• Independent Church of Australia

• International Council of Spiritualists 

• International Society for Krishna Consciousness 

• Islam 

• Jehovah’s Witnesses 

• Jewry 

• Latvian Evangelical Lutheran Church in Victoria, 

• Liberal Catholic Church 

• Lutheran Church of Australia Incorporated 

• Macedonian­Bulgarian Eastern Orthodox Church 

• Macedonian Orthodox Church, Diocese of Australia and New Zealand 

• Ministers Fellowship International 

• New Apostolic Church in Australia 

• New Church in Australia 

• New Life Churches of Australia 

• OzReach 

• Pacific LMS Church Australia Incorporated 

• Potters House Christian Fellowship of Australia 

• Power of the Spirit Ltd 

• Presbyterian Church of Australia

• Presbyterian Church of Eastern Australia 

• Presbyterian Reformed Church 

• Reach Out for Christ Limited 

• Reformed Presbyterian Church of Australia 

• Religious Society of Friends

• Revival Centres International Revival Fellowship 

• Rhema Family Churches Australia 

• Roman Catholic Church 

• Romanian Orthodox Church 

• Russian Orthodox Church Outside of Russia 

• Salvation Army

• Serbian Orthodox Church in Australia and New Zealand

• Seventh­day Adventist Church 

• Sikh Council of Australia Incorporated 

• Society of Saint Pius X Limited 

• Southern Cross Association of Churches

• Strict and Particular Baptist Churches of Australia 

• Ukrainian Autocephalic Orthodox Church in Diaspora, Diocese of Australia and New Zealand 

• Unitarians United Aborigines Mission 

• United Church of God — Australia 

• United Pentecostal Church of Australia 

• United Spiritualism of Australia 

• Uniting Church in Australia 

• Victorian Spiritualists’ Union 

• Victory Life Centre Incorporated 

• Welsh Calvinistic Methodist Connexion in Victoria 

• Wesleyan Methodist Church 

• Westminster Presbyterian Church 

• Worldwide Church of God 

• Worship Centre Christian Churches Worldwide (Australia) Ltd

Sharia and LGBTIQ

'Is Green a Part of the Rainbow? Sharia, Homosexuality and LGBT Rights in the Muslim World' by Javaid Rehman & Eleni Polymenopoulou discusses

 the legitimacy of the claims for the criminalization of homosexuality under Sharia law. It submits that discrimination against LGBT individuals and repression of homosexuality are incompatible not only with human rights law, but also with the Sharia and the essence of the Islamic religious scriptures. In the view of the authors, a more thoughtful reading of the Qur’an and the Sunna affirms the compatibility of religion and sexual diversity, and the Qur’an, contrary to common belief, recognizes gender identities, and embraces sexual diversity. A contemporary approach to Sharia should complement international law standards on sexual minorities’ rights in order to achieve a sustainable change in Islamic state practices. In this respect, the paper suggests that the recent initiatives within the UN, including Resolution 17/19 on sexual orientation (14 July 2011), represent positive, though insufficient, steps for the implementation of LGBT rights in the Muslim world. An approach to LGBT rights, which takes into consideration the compatibility of religion and sexual diversity is necessary, not only for the Muslim states to comply with international human rights law, but also for the international community to promote the idea of human dignity and equal respect for human beings and cultures.

The authors note that

A change of the traditional Islamic views on the matter of homosexuality is certainly a gradual and long-term process: the “traditional” interpretation of the Islamic scriptures benefits both from the authority of established Islamic scholars, who promote discrimination and stereotypes by excluding LGBT individuals from the Islamic Ummah, but also, from the widespread censorship of opposite views. However, traditions change, and should be subject to change, when they are contrary to international human rights standards. A distinction should be made here. On the one hand, are the states, which impose torture and death penalty for homosexual behavior or same-sex relations (sodomy and related offenses). On the other hand, there are states, which do not impose torture or death penalty for such activity, but do maintain penal laws criminalizing homosexual practices and related behavior. Furthermore, there are states, which do not even regard homosexuality and lesbianism as attracting any form of criminal sanctions, but nevertheless remain reluctant to include sexual orientation as valid grounds for the nondiscrimination principle.

In the last years, however, several Muslim states have started reformulating their harsh domestic laws. In 2010-2011, for instance, the death penalty for homosexuality was abolished in some OIC member states, namely, the UAE, Afghanistan, and Iraq Additionally, many others have, at least formally, have abolished laws on gender and sexual expression over the last decade, namely, Burkina Faso, Chad, Côte d’Ivoire, Djibouti, Gabon, Guinea Bissau, Mali, Niger; Bahrain, Indonesia, Jordan, Kazakhstan, Kyrgyzstan, Tajikistan and Turkey, excluding the Turkish Republic of Northern Cyprus; Albania and Azerbaijan; and the Suriname in the Caribbean). Iran, in 2012, also amended its criminal code: execution by stoning has been abolished, and some mitigating circumstances have been introduced in the criminal code, that could save some LGBT individuals from the application of the death penalty.

One can also identify similar positive trends in Muslim states domestic jurisprudence. On the one hand, several recent judgments reveal a progressive understanding of issues related to gender orientation. For example, in May 2012, the Pakistani Supreme Court issued its judgment in the famous “trans-gender” case, acquitting two persons who had been accused for same-sex marriage – one of them being a transsexual, who had already had a sexual assignment operation. On the other, domestic courts have shown a more decisive position against homophobia. For example, in July 2012, a domestic court in Morocco, indicted an Islamic cleric on the grounds of incitement to hatred. The cleric was calling for the murder of a journal editor who was, in his turn, urging for larger sexual freedoms in the country. Despite their weaknesses, this type of judgments, mark the beginning of a more modern understanding of Islam, and may therefore provide fertile ground for further social and legal transformations. Other domestic courts jurisprudence, particularly from these states, which have had the experience of colonial domination, could also play an essential role for future legal amendments. The judgment of the Delhi High Court for example, in the Naz Foundation case, could be a useful paradigm for the future empowerment of sexual minorities in the Muslim world.

Innovation and IP

'Patent Laws and Innovation: Evidence from Economic History' by Petra Moser (Stanford and the National Bureau of Economic Research, 2012) asks 

What is the optimal system of intellectual property rights to encourage innovation? Empirical evidence from economic history can help to inform important policy questions that have been difficult to answer with modern data: 1) Does the existence of strong patent laws encourage innovation? And 2) May patent laws influence the direction – rather than the rate – of technical change? Economic history can also help to shed light on the effectiveness of policy tools that are intended to address problems with the current patent system: 3) How do patent pools, as a mechanism to mitigate litigation risks, influence the creation of new technologies? 4) Will compulsory licensing, as a mechanism to improve access to essential innovations in developing countries, discourage innovation in the developing countries? This essay summarizes results of existing research and highlights promising areas for future research.

As a PBR buff I particular the illustration of the alarm-equipped cage built around the Stark Brother’s Golden Delicious tree to prevent competitors from stealing shoots of the tree. (The illustration features in 'Did Plant Patents Create the American Rose?' by Moser and Paul Rhode in The Rate and Direction of Inventive Activity Revisited (University of Chicago Press, 2012) edited by Joshua Lerner and Scott Stern.)

Moser concludes that

The weight of the historical evidence suggests a number of conclusions: 1) stronger patent laws are neither a necessary nor a sufficient condition to encourage innovation; 2) radical changes in patent laws may influence the direction, if not the level, of technical change; 3) policies that strengthen the monopoly power of patents by allowing competing firms to combine their patents may discourage innovation, while 4) policies that weaken patents by allowing a new set of firms to produce patented inventions may encourage innovation. This essay has presented research results and open questions in the economics of patent laws, and how patents influence innovation. The sum of the existing evidence suggests that patent laws are neither necessary nor sufficient to encourage innovation.

Exhibition data indicate that only a small share of innovations are patented, less than 20 percent overall, and that the usefulness of patents varies most strongly across industries – irrespective of substantial differences in patent laws. These results suggest that providing stronger patent rights may do little to increase inventors’ use of patents and fail to strengthen incentives to invent. Instead, stronger patents may encourage the strategic use of patents, for example by patent trolls, increase litigation risks, and discourage innovation, especially for industries in which the boundaries of intellectual property right are difficult to define. Supreme Court decisions to uphold contested patents, with split courts and surprising outcomes, have created empirical variation to examine these effects.

Historical evidence on patent pools, as a mechanism to resolve litigation, highlight the need for policies that prevent (rather than resolve) litigation. A pool that formed in 1856 to resolve litigation among major producers (and the 19th-century equivalent of a patent troll) appears to have discouraged innovation, possibly by increasing litigation risks for outside firms even as reduced litigation risks for members. The example of the sewing machine industry also suggests that the creation of a pool may discourage outside firms, which tend to be smaller and more innovative, from competing directly with the pool. Although these results are based on a single industry, they highlight the need for additional systematic analyses to examine the effects of pools on the nature of competition and innovation. Such analyses can exploit the large number of pools that have formed since the 1850 across a broad range of technologies and antitrust regimes (e.g., Gilbert 2004, Vaughan 1956).

By comparison, historical evidence from the TWAE indicates that compulsory licensing, which weakens the monopoly power of patents, may encourage innovation, at least in the licensing country. Additional analyses are needed to better understand the mechanisms by which compulsory licensing may encourage invention and to determine the effects on countries whose inventions are licensed. For example, policies that encourage voluntary licensing may be substantially more effective in increasing rates of innovation, if they improve access to critical technical information that patentees tend to omit from patent documents. Compulsory licensing may also encourage by increasing the intensity of competition, highlighting the need for additional systematic analyses of the interaction between patent laws and competition policy.

Finally, it is important to keep in mind that patent policy is just one of many levers through which economic policy can encourage innovation. Other types of intellectual property right – such as copyright, which protects books, music, software, and other types of intellectual assets – may have equally important effects on consumer welfare. Existing empirical analyses have exploited periods of piracy, for example, after the creation of Napster, to examine the effects of copyright on music (for example Oberholzer-Gee and Strumpf 2007; Waldfogel). 

Additional analyses are urgently needed, for example to understand the effects of long-lived copyrights (life of author + 70 years in the United States today) on creativity and the diffusion of knowledge. Similarly, national governments have begun to increasingly use prizes as an alternative to patents, and economic analyses are needed to investigate if and how prizes encourage innovation. More generally, science policy, and the ability to attract – and retain - high-skilled workers is likely to be a key factor in determining variation in rates of innovation across and within countries. Economic history offers rich opportunities for such research.

'Swimming Against the Current: The Rise of a Hidden Developmental State in the United States' [PDF] by Fred Block in (2008) 36(2) Politics & Society 169 comments

 Despite the dominant role of market fundamentalist ideas in U.S. politics over the last thirty years, the Federal government has dramatically expanded its capacity to finance and support efforts of the private sector to commercialize new technologies. But the partisan logic of U.S. politics has worked to make these efforts invisible to mainstream public debate. The consequence is that while this “hidden developmental state” has had a major impact on the structure of the U.S. national innovation system, its ability to be effective in the future is very much in doubt. The article ends by arguing that the importance of these development initiatives to the U.S. economy could present a significant opening for new progressive initiatives. 

On a number of key dimensions, the trajectory of the United States has diverged sharply from that of Western Europe over the past thirty years. The divergence is most marked in social policy and the philosophy of governance, where the choices made by the United States have been influenced by market fundamentalism — a vastly exaggerated belief in the capacity of market self-regulation to solve economic and social problems. To be sure, many Europeans have also been taken with the idea of Afree markets since the fall of the Berlin Wall, but their actual policies have been far more restrained in cutting back gov- ernment regulation of business, leaving the poor and sickly on their own, and directly challenging the institutionalized role of organized labor at the work-place and in the political arena. As a consequence, most Western European societies have not experienced the dramatic increases in economic inequality and heightened economic insecurity that have occurred in the United States. 

But in one important and often overlooked respect, European and U.S. policies have converged. On both sides of the Atlantic, governments have played an increasingly important role in underwriting and encouraging the advance of new technologies in the business economy. Consistent with ideas of the “knowledge economy” or postindustrial society that stress the economy’s immediate dependence on scientific and technological advance, governments have embraced developmental policies that support cutting edge research and work to assure that innovations are transformed into commercial products by companies.4 Governments do this because they recognize that in a competitive world econ- omy, failing to create new high value added economic activities in the home economy will ultimately threaten their citizen’s standard of living.

But the way in which governments pursue these policies differs dramatically between Europe and the United States. In Europe, both national governments and the European Community are open and explicit about their developmental agendas, and political parties occasionally compete over which will be more effective in pursuing such initiatives. In the United States, in contrast, the developmental state is hidden; its existence is not recognized in political debate or in the media. Congress, under the rubric of “competitiveness policy,” periodically passes legislation that bolsters and expands the developmental capacities of the U.S. state, but this happens with little public debate or discussion.

The hidden quality of the U.S. developmental state is largely a result of the dominance of market fundamentalist ideas over the last thirty years. Developmental policies have lived in the shadows because acknowledging the state’s central role in promoting technological change is inconsistent with the market fundamentalist claim that private sector firms should simply be left alone to respond autonomously and spontaneously to the signals of the marketplace.

For example, in their highly influential book, Free to Choose, Milton and Rose Friedman see no economic justification for the government funding scientific research through the National Science Foundation. If funding scientific research is not a proper governmental role, then certainly there is no justification for public agencies getting involved in the commercialization of new technologies.

In this sense, it is remarkable that the United States has any kind of developmental policies outside of the defense and national security sectors. That they exist at all is testimony to the powerful dynamism of an emerging knowledge economy that has been able to swim upstream against the current of a hostile political philosophy. But the inevitable result is that U.S. developmental practices have been significantly distorted by the constraints within which they have emerged. It is here where the divergence between the United States and Europe again becomes apparent. In Europe, developmental state policies often work in synergy with the legacy of social democratic and Christian democratic policies that emphasize social inclusion, partnership between business and labor, and a commitment to the sharing of rewards. In the United States, in contrast, the “winner takes all” model with its attendant increases in inequality tends to work at cross purposes with developmental state policies. 

The argument is developed in five main sections. The first section introduces the concept of a Developmental Network State and tells the story of how this institutional structure emerged in the United States beginning in the 1980’s. The second explains how partisan politics and ideology worked to keep this U.S. developmental system hidden. The third provides an overview of how the Developmental Network State functions currently in the United States. The fourth section explains how its peculiar development, and particularly its covert character, undermines the sustainability of U.S. developmental efforts. The conclusion argues that the pressing need to reform the Developmental Network State provides significant political opportunities for progressives in the United States.

PostSecular

'Post-Secularism or Liberal-Democratic Constitutionalism?' by Veit Bader in 5(1) Erasmus Law Review (2012) comments that

The increasingly fashionable concept and framing of post-secularism aims to construct simplistic dichotomies and clear-cut ruptures between pre-secular, secular and post-secular ages or epochs, in order to paint generalised and homogenised pictures of societies and their inevitable evolution. This conceptual strategy drastically reduces, or even neglects, historical contingency and societal complexity. Against the background of a brief reflection on thepossibilities and limits of a transcultural and transhistorical concept of religion, this article engages in a critical discussion of ‘Secularisation and the Conditions of Post-Secularism’ from a sociological point of view and critically reflects on some of the ‘normative issues of how citizens’ of a ‘post-secular society should understand themselves’. In this regard, the main assertion is that we should opt to drop both secularism and post-secularism from our constitutional and legal language, and replace it with priority for liberal democracy or, more specifically, with liberal-democratic constitutionalism.

The article offers a perspective on Habermas' 'Notes on Post-Secular Society' in 25(4) New Perspectives Quarterly (2008).

Bader comments that

Secularism denotes a family of concepts such as secular, secularity, secularisation, and secularism, with regard to institutions, social processes and politics, principles, and meta-narratives. In order to understand these different meanings and their relationships, we have to disaggregate or disentangle this cluster and, in doing so, we have to use ordinary constitutional or legal language instead of treating it as a poor proxy of secularism. In a detailed analysis and criticism of Indian and Turkish constitutions and jurisprudence, twelve different meanings of secularism have been established. This analytical taxonomy, which could also be derived from constitutions and court rulings in other countries, serves a dual aim. It helps to clarify our semantic understanding, and it allows for the discussions of our normative disagreements on LDC [liberal-democratic constitutionalism] point by point, instead of mixing everything up. This article moves from rights and institutions, to principles and to meta-narratives or deep justifications.

Secularism 1: Secularity of the state or the autonomy of the state from (organised) religions.

Any decent and, a fortiori, any minimal liberal state, requires a certain threshold of institutional, organisational, and role autonomy, which is incompatible with theocracy and the replacement of state-law by encompassing religious law. This may be the least contested meaning of secularism. Yet it is also obvious that Western states were not secular in early modernity, that even nowadays none of the existing states is strictly secular, and that so-called secular states, such as Nazi Germany, the Soviet Union, Cambodia under Pol Pot, Iraq under Saddam or Libya under Khaddaffi, have violated minimal morality as often as, or even more so than, so-called religious states. Thus, the and the tricky issue involves spelling out the minimal threshold of differentiation of state, or even politics, from religion, since strict separation is, as we have seen, a non-starter.

Secularism 2: Equal associational freedoms and collective toleration.

LDC requires not only this first autonomy, but also a second autonomy of religions from the state, which is extensively violated by self-declared secular states (such as France and Turkey) through massive state-supervision and -control of religion. This version of secularism 1 is inimical to external and associational religious freedoms, and clearly incompatible with liberal constitutionalism 1. Collective toleration and associational freedoms are clearly not modern, liberal inventions, but liberal constitutionalism additionally requires equal legal associational freedoms and non-discrimination, not fully guaranteed in pre-liberal arrangements (e.g. in the Ottoman Empire).

Secularism 3: Freedom of conscience and individual religious freedoms.

The protection of freedom of conscience and of individual religious freedoms against the state, against all majorities – secular as well as religious majorities – and against all minorities (and their organisations) is a specific modern requirement of liberal constitutionalism 2. Yet, individual and associational religious freedoms are often in tension with each other, and this inherent tension between liberal constitutionalism 1 and 2, or in more common language, this conflict between individual and collective religious rights, is often neglected or downplayed in three ways. Firstly, by declaring religious freedoms as primarily a matter of individual conscience in the private sphere, and neglecting or severely curtailing external and associational freedoms. Secondly, by massive and illegitimate state intervention in the internal affairs of religious associations even in core issues of belief and practice. And thirdly, by doctrines and practices of unconditional or absolute deference that do not protect even the most basic rights of minors, women and dissenters within majority or minority religious groups and organisations.

Secularism 4: Protection of religious minorities against unbound democratic majoritarianism.

Liberal Constitutionalism, in addition, requires the protection of individual and associational civil rights and of minority rights. As such, it is generally incompatible with unbound democratic majoritarianism: liberal-democratic constitutionalism is constitutional democracy, not only majority rule. This liberal constitutionalism 3 is particularly important in two situations: Firstly, in cases of aggressive secular majorities – and even more so in cases of aggressive secular ruling elites not forming majorities, as in Turkey – threatening to seriously restrict equal religious freedoms of religious majorities and minorities. Secondly, in countries with potentially or actually totalistic, illiberal religious majorities which threaten – by majority-decision – to restrict equal freedoms from religion (of secular or non-religious people) not to believe and practice any religion, as well as the freedoms of religious minorities. Liberal Democracy is, as we should know, a fairly late historical and theoretical compromise of freedom and democratic equality, full of internal tensions.

Before turning to democratic constitutionalism, let me point out that these four pillars of liberal constitutionalism are phrased here in traditional constitutional terms; calling them secularism 1 – 4 clarifies nothing, and brushes over the tensions and incompatibilities between liberal constitutionalism and secularism.

Secularism 5: Popular sovereignty and protection against political discrimination: political secularism or secular democracy.

Modern democracy, again different from ancient, but also from classical, liberal democracy, stands for vox populi vox dei, for equal political status of all citizens and for equal political rights in opposition to all ascriptive discriminations, particularly on religious grounds. This is often called political secularism or democratic secularism. As in the case of the secularity of the state, one can call any democracy that does not discriminate on religious grounds a secular democracy. Thus, modern democracy is secular by definition, indicating popular sovereignty, or the condition that all defenders of absolute truth-claims, religious as well as secular ones, have to solve their respective fundamentalist dilemma that their absolute truths are treated as opinions when it comes to democratic decision-making. Yet, identifying secularism and democracy, or declaring their deep harmony, makes it impossible to see and investigate serious tensions. In my view, secularism can be, and actually is, inimical to modern, democratic constitutionalism, at least in four regards, and ironically, all these serious restrictions of democracy are legitimised as being necessary in order to defend democracy.

Firstly, modern democracy requires a free and equal political process and multiparty competition, and these minimal institutional requirements of democratic constitutionalism 1 have often been violated by secularism as an aggressive, elitist strategy of modernisation (e.g. by Kemalist secularism). Secondly, massive restrictions on the freedoms of political association, prohibition of political parties and dismissal of elected MPs, assemblies and even elected (state-)governments by militant democracies, such as Turkey or India, are inimical to this second core element of democratic constitutionalism. Thirdly, free speech, its third core element, is often violated or seriously restricted by secularism-restraints (see secularism 6). Fourthly, many varieties of foundationalist secularism (10 -12) are inimical to its fourth core element, the pluralist, non-foundational character of modern democracy.

Secularism 6: Freedoms of political speech or exclusivist secularism?

Freedoms of political communication, particularly of political speech, are the core of a liberal understanding of modern democracy, as opposed to elitist, majoritarian or statist restrictions. Restrictions on public reason or political speech by excluding religious reasons (as still defended by Habermas, see above) extend beyond legitimate restrictions on grounds of incitement to violence and serious discriminatory speech. Exclusivist secularism (in politics, law, constitutional jurisprudence or philosophy), incompatible with liberal democracy and inclusive secularism, does not clarify the issue: at stake is not the secular or the religious character of speech, but whether or not it presents a clear and present danger or seriously discriminates.

Secularism 7: A social or a socialist state?

Many constitutions require the state to be a social or even a socialist state (e.g. India), but what has this to do with secularism? On the one hand, one might say that the guarantee of basic subsistence rights (not just charity) to all citizens/residents should not allow for religious or all other ascriptive discriminations or exclusions. Yet, on the other hand, LDC seems compatible with a wide institutional variety of welfare regimes (faith-based providers amongst them) whereas secularism would require state-provision only, excluding faith-based welfare provisions.

Secularism 8: Strict separation?

Strong or moderate, benevolent, ameliorative secularism? In terms of institutional arrangements, the principle of secularism seems void and indecisive, allowing for both strict separation as a non-existent utopia (strong secularism), as well as various existing or alternative forms of selective cooperation between states, politics and (organised) religions. Does LDC require one state-law only for all citizens/residents, as strong secularism holds (as the Turkish Constitutional Court, endorsed by the Grand Chamber of the ECtHR in the Refah case 2003 declared), or is it compatible with limited opportunities for religious legal pluralism in marriage and divorce law under conditions of freedom of entry and exit and voluntary choice of law (of limited scope), and of state guarantee of basic interests and rights (as a whole variety of weaker versions of secularism suggest)?

Secularism 9: Strict neutrality or relational, inclusive neutrality, principled distance?

Strict equality or fairness as even-handedness? Second order principles are unavoidable; yet, highly abstract and indeterminate meta-rules (expressing something like the constitutional creed or faith), which may help interpret and balance conflicting legal principles and rights. The issue is whether secularism in general (or secularism-as-strict-neutrality and strict equality) contains the right principles in this regard, or wether these principles should rather be reconceptualised as relational or inclusive neutrality, or as fairness as even-handedness in cultural and religious matters (as I have argued with Carens, Bhargava, Ferrari and others).

Secularism 10: Ethical secularism?

Though modern, pluralist democracy cannot be strictly anti-perfectionist, it should be as anti-perfectionist as possible; it should not explicitly privilege a specific way of leading a good life (e.g. a comprehensive liberal ethics or a secular, humanist ethics as a supreme way of life). Ethical secularism (as declared by the Turkish Constitutional Court) – distinct from political secularism – is surely incompatible with LDC.

Secularism 11: Foundational or justificatory secularism?

Liberal-democratic constitutionalism does not require any deeper, metaphysical, philosophical or theological, normative foundation. Modern, pluralist liberal democracy is an open project helping to prevent the political form of a society from being seen as the realisation of a transcendent vision or an ultimate philosophical foundation. Secularism, also in this regard – e.g. the exclusivist claim of an independent political ethics mode (from Bayle and Spinoza to Habermas – see above) – is rather parochial (secularist or humanist enlightenment exclusivism), and potentially or actually inimical to liberal-democratic constitutionalism.

Secularism 12: A generalised meta-narrative or symbolic universe?

LDC thrives through competing symbolic universes (i.e. overarching cognitive and normative views of the cosmos, nature and society), and constitutionalising secularism as a meta-narrative of rationalism, science, modernisation or civilization (as in Turkey or India) is incompatible with the open character of pluralist democracies. It induces Contitutional Courts to declare rationalism or scientism as a general foundation and/or universally accepted ideal, to construct all religion as dogmatic and inimical to humanity, civility, freedom, democracy, and to speculate on the true, essential meaning of religions by declaring all contrary official statements of religious parties and representatives as a pretext.

Helicopter Parents and the Law

'Tort Liability in the Age of the Helicopter Parent' by Elizabeth G. Porter in Alabama Law Review argues that

 Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct related to their parenting practices.

This Article critically examines the common law of parental (non-) liability, both historically and in light of current cultural trends. Parental liability takes two forms: liability for parents’ harm to their children, and liability of parents for harms caused to others by their children. Individually these subjects have received remarkably little scholarly attention; together they have received none. Yet both types of parental liability are central to ongoing cultural debates about parenting, as well as to current controversies about the role of courts in establishing legal duty. A thorough re-consideration of parental liability is particularly timely in light of the new Restatement (Third) of Torts, which speaks directly to issues that are central to both forms of parental liability.

This Article concludes that courts should hold parents to a standard of reasonable care. The American common law’s squeamishness about parental liability is understandable, but unnecessary. Just as helicopter parents overreact to unsubstantiated fears of stranger abduction based on anecdotes and media hype, limits on common law parental liability are overreactions to unsubstantiated fears of collusion, government interference and biased juries. To be sure, aspects of parental liability raise significant concerns, but courts can and should address them narrowly using established tort law principles, without imposing blanket no-duty rules. Juries, in short, should be allowed to judge parents.

Porter comments that -

Holding parents to a consistent standard of reasonable care with respect to their children would alleviate the policy and the doctrinal harms of the current approach. As a matter of family law policy, the current common law standards applied to parents represent clashing views of childhood and the role of parents. Furthermore, they are inconsistent with prevailing legal norms related to the regulation of families. The standard of reasonable care, which does not demand perfection, strikes a familiar and proper balance between the benefits and burdens of parenthood. As a matter of tort doctrine, imposing a standard of reasonable care on parents would contribute toward greater consistency and equity in negligence law by alleviating the problems associated with judges using duty to advance unarticulated or unjustified policy goals. Nevertheless, many of the original justifications for parental immunity remain entrenched in modern case law. In essence, these justifications are all based on valid fears about granting juries, judges, or anyone, the power to evaluate parents. While recognizing the legitimacy of these concerns, this Part addresses each and concludes that, taken either collectively or individually, they do not require existing limitations on parental liability.

A. Fear of a “helicopter parent” standard of care.

According to cultural commentators and recent scholarship, many middle and upper class parents with one or two children have become suffocating fear-mongers whose personal identities are largely dependent on ensuring the minute-by-minute safety and optimal educational development of their children. Scholars argue that this mainstream, middle class, predominantly white value system will permeate (or has permeated) legal norms, thus forcing all families to conform to risk-averse, expensive, and time-consuming supervision of children in order to escape criminal or civil sanction. Related to this is a measured but distinct idealization of “the old days,” generally meaning the 1970s, when parents “may” have allowed “the youngest of schoolchildren” the independence to “climb trees, ride [their] bikes in the neighborhood, stay home alone for an hour or two, and walk [themselves] to school.” Scholars have argued that the narrowing of the parental immunity doctrine “is an important enabling structure for the incorporation of the practices of Intensive Parenting.”

Unquestionably, social norms concerning children change over time. In colonial America, children were left largely unattended while parents labored, and were fostered out as apprentices at ages as young as seven. One result of this was likely early self-reliance, but it was also rather common for children to come to serious physical harm. In the nineteenth century, some children worked both in farms and in urban factories. However, hovering parents are hardly a new phenomenon. Even in the nineteenth century child-centered, intensive parenting was becoming the middle class norm in both urban and agricultural areas. Mothers were charged with providing constant and appropriately educational stimulation for children, as well as creating “an idyllic childhood rich with wonderful experiences that would create fond memories and produce healthy minds and bodies.” Voluminous advice literature assisted women in these endeavors. There were helicopter mothers long before there were helicopters.

Moreover, even the most vehement anti-helicopter parents (themselves generally members of the middle class parenting culture they criticize) subscribe to increased safety norms over time. As Lenore Skenazy, leader of the “Free Range Kids” movement, puts it, “Free Rangers believe in helmets, car seats and seat belts—safety!” And, statistically speaking, such safety norms have dramatically improved safety outcomes for children.

The fact that norms evolve, and that middle class parents have led the way by minimizing risks and maximizing educational opportunities, does not alone justify granting parents immunity from liability. Indeed, it is ironic to argue that parents must be sheltered from other parents who believe too firmly in over-sheltering. The same acts and omissions involved in parenting cases—children drowning when left unattended by the pool; children getting hit by cars; children holding keg parties when their parents are away for the weekend, leading to drunk driving deaths; children falling out of windows, shopping carts, or off slides—are routinely litigated against other supervisory figures, including schools, colleges, day cares, babysitting agencies, product manufacturers, and businesses. Those other parties cannot raise the “helicopter parent” defense. The effect of limitations on parental liability is to give children’s primary caretakers—those who get the benefit and services of children—the least legal responsibility.

The impact on others of shielding parents from liability is starkly evident in joint liability cases. When a child is injured and brings suit against a product manufacturer—for example, the maker of a tractor mower, of a shopping cart, or of lead paint—it is nonsensical to prohibit a jury from assigning some portion of responsibility to the parent who was allegedly supervising the child. Yet courts often bar contribution suits against parents, although those parents’ negligent supervision might arguably have been the primary cause of the child’s injury. In several New York cases involving children’s alleged injury from lead paint, courts simply brushed aside parental immunity and allowed the claims. Bernstein and Triger, concerned about over-parenting, take this as an ominous sign that “courts are increasingly willing to consider imposing liability on parents who do not comply with existing monitoring norms.” But if a parent is aware of a risk to her child and has been informed about how to mitigate and eliminate that risk, but negligently fails to take action, it is fair that the parent should bear part of the legal responsibility for the harm she caused. Parents, like other parties, should conform to norms of reasonableness.

The lead paint cases highlight another problem with the immunity rule: Courts—themselves prey to the cultural biases of judges—may not be consistently reasonable in their determination that the immunity should apply. In Zellmer v. Zellmer, the defendant step-father was granted immunity (conditioned on a factual finding that he was acting in loco parentis) for the drowning death of a three-year-old. The court’s holding necessarily implied that the defendant’s conduct constituted “ordinary negligence,” as to which immunity applied. But even at the summary judgment stage, there was evidence that pointed to willful misconduct, including testimony that the girl would not have gone outside on a cold December night alone, dressed only in a light shirt, when she was home sick from daycare; and evidence that the defendant had taken out a life insurance policy on the girl immediately upon marrying her mother three months earlier. Ultimately the defendant was criminally prosecuted and convicted of murdering the three-year-old girl. The civil court’s immunity determination not only usurped the jury’s province to assess the quality of a defendant’s conduct; it was also incorrect. Fears of over-judgmental, culturally prejudiced juries are understandable, but do not justify a common-law carve-out for parents in tort. Courts can address concerns about the standard of care in the context of individual suits, using basic tools of the trade: admitting expert and lay testimony on the standard of reasonable care within a community; and giving jury instructions making explicit that parents are not insurers of or for their children; and defining a reasonable standard of care. Several states that have abolished parental immunity have replaced it with a “reasonable parent” standard, a semantic device that reinforces the nature of parents’ roles. As they always have, courts may direct verdicts if no reasonable juror could find liability, and may use remittitur or remand for a new trial if the jury’s damages award is excessive or seems based on prejudice or passion. Notably, there has been no scholarly analysis in states that have abolished parental immunity arguing that ensuing cases were unduly prejudicial toward parents or held parents up to an idealized standard of care.

B. Fear that parental liability creates undue state interference in the family.

A related concern animating limits on parental liability is the fear of undue government interference in the family, or—as one court put it—“interjecting the court into family affairs as some overarching nanny.” Here too, while the fear is legitimate, allowing juries to adjudicate civil tort suits against parents is a relatively minimal intrusion into family life in comparison with other longstanding forms of family regulation: Both social and legal norms have always recognized limits on parental authority that go far beyond allowing parents to be defendants in civil tort suits. The Supreme Court has recognized the significance of parents’ rights to make decisions regarding their children’s upbringing, education, and religious practices. But the constitutional recognition of family privacy has always been limited by reasonable governmental regulation, including laws requiring education, prohibiting child labor, and laws governing custody disputes. Notwithstanding its rhetoric, the Court’s holdings regarding parental rights have always been rather muted and pragmatic. As the Court stated in Meyer v. Nebraska, “the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally.”

Parental immunity took root at the turn of the twentieth century, a time period marked by an explosion of interest in privacy and the founding of formal studies of child development. It was also marked by an equally intense interest in child welfare, backed up by a range of legal procedures that demolished the privacy of families considered to be deviant, which at that time (as often is true now) meant families living in urban poverty. The New York Society for the Prevention of Cruelty to Children, founded in 1874, set out to “rescue” children living in slums from “the human brutes who happened to possess the custody or control of them.” A major child psychology textbook failed to mention the effect of parenting, but focused on the dangers of a bad environment—parts of the city where “there are many pool-rooms, saloons, and gambling houses.”

Propelled by the influential Society, New York passed laws authorizing “intense scrutiny of family life, the frequent arrest and incarceration of parents found wanting, and the systematic institutionalization of their children.” By the end of 1884, fifty-six cruelty societies existed nationwide. In 1903, Colorado became the first state to criminalize the vague offense of contributing to the delinquency of a minor. Thus, parents who were poor or otherwise considered socially deviant risked having children forcibly taken away, or risked criminal sanctions for their children’s poor behavior. At the same time, middle and upper class parents were literally immune from civil liability for even obvious and severe physical abuse. As evidenced by parental immunity cases, the privacy class divide remains today. Wealth buys parents both physical privacy—their disciplinary tactics and parenting mistakes are hidden within private homes —and legal privacy. Just as nineteenth century judges were “far more likely to appreciate the benefits of the tort immunity rule (to propertied husbands) than to register its costs (to battered wives),” judges empathize with the supervisory challenges facing parents rather than the un-redressed harms to children.

In contrast, Hasday points out, government programs intended to support poor families are “driven by suspicion of parental judgment, and an eagerness to scrutinize parental conduct and parental behavior.” Moreover, legislatures have passed a wide range of statutes intended to incentivize parents to assume responsibility and punish those who do not. These statutes, which impose civil or criminal sanctions on parents for children’s willful and malicious acts, vandalism, truancy, and for contributing to children’s delinquency, indicate that parental responsibility—and liability—is a social norm. Unfortunately, many of those limits fall disproportionately on poorer families. Similarly, poor and fragmented families are vastly more likely to have their children removed and placed in the foster care system—a modern, more humane version of the institutions supported by the child cruelty societies—or their parental rights terminated. And among parents do neglect their children, working class or unemployed parents are far more likely to be prosecuted than middle or upper class parents. Thus, to the extent that there is a social norm of non-interference in the family, it is not enforced uniformly or fairly. The parental immunity doctrine thus illustrates the stark contrast between the broad privacy rights accorded middle and upper class parents (those most likely to be defendants in civil lawsuits) and the long tradition of interference in families that are poor or otherwise deviate from prevailing social norms. In this context, privacy is “a virtual commodity purchased by the middle class and the well to do.”

Indeed, the common law of parental liability itself demonstrates the increasing acceptance of state regulation of families. At first the immunity covered all parental conduct, and paralleled an immunity that applied between spouses. Now inter-spousal immunity has been almost entirely abolished and there are significant limitations on parental immunity. In addition, the common law recognizes that parents owe an affirmative duty to control their children from harming others.

HCA Jurimetrics

'The High Court on constitutional law: the 2011 statistics' by Andrew Lynch and George Williams in 35(3) UNSW Law Journal (2012) 846-865 [PDF] presents

 statistical information about the High Court’s decision making for 2011 at both an institutional and individual level, with an emphasis on constitutional cases as a subset of the total. The authors emphasise the importance of acknowledging the limitations that inhere in an empirical study of the decision-making of the High Court over just one year. In particular, care must be taken not to invest too much significance in the percentage calculations given the modesty of the sample size, especially in respect of the smaller set of constitutional cases. Nevertheless, this annual exercise remains worthwhile in that it offers assistance to those followers of the Court’s decisions who are interested in the way in which the dynamics between its individual members translate into institutional outcomes. It provides simple empirical data about the functioning of the Court that may otherwise be left merely to impression.

The authors endeavour to draw readers’ attention to trends and patterns observed in earlier years where these enhance understanding of the significance of these results. As it turns out, the results of our 2011 survey of decision-making on the Court provide a clear demonstration of the value of looking at the Court on a yearly basis. They are, in several key respects, notably different from those of the immediately preceding years. Statistical representations of the way in which the High Court and its Justices decided the cases of any given year are only a supplement, rather than any kind of substitute, for scholarship that subjects the legal reasoning contained in the cases to substantive analysis or examines the impact of the Court’s decisions upon government and the community.

The authors also refrain entirely from making the exercise one from which they presume to make inferences about the particular working relationships amongst the Court’s members. The results are drawn only from what may be observed from the public record of the Court’s decided cases. This remains inadequate source material from which to assess, for example, the level of influence which any Justice has amongst his or her colleagues.

They conclude -

2011 was the year that the French Court returned to the norm. Gone were the historically high levels of unanimity of 2009 and 2010, with last year instead presenting a more familiar, fractured Court. It is difficult for any bench composed of seven independent judges to sustain high levels of agreement across the work of the High Court, let alone in controversial constitutional cases. What was remarkable was that the French Court did so for its first two years.

A central reason for why unanimity proved more elusive in 2011 was the so-called ‘Heydon effect’. Justice Heydon has been a more regular dissenter during his tenure on the High Court than many of his colleagues, but in 2011 he greatly exceeded his earlier results on this score. His rate of dissent across all cases for the year tripled from a previous high of around 15 per cent to over 45 per cent. This amount of formal disagreement has only been exceeded once in the annual surveys we have conducted on decision-making in the Court – and that was by the Court’s greatest ever dissenter, Kirby J, in 2006. Justice Kirby’s level of dissent in other years during the Gleeson era was anything upwards of around 25 per cent but never as high as that of Heydon J last year.

2011 may prove to be an aberration in Justice Heydon’s rate of dissent.

Certainly it would seem difficult to sustain, but conversely it would be surprising if it subsided dramatically. That the latter appears unlikely is borne out by other indicators. There has been a gradual, but noticeable, change in tone and approach in many of his judgments, with a greater willingness on his part to express his legal opinion even more forcefully and in striking and colourful language. In Momcilovic, for example, he went further than any other judge in holding, in dissent, the whole of the Charter to be invalid. He did so in a judgment that was dismissive of the Charter, and of human rights statutes and human rights principles in general, stating at one point that:

The odour of human rights sanctity is sweet and addictive. It is a comforting drug stronger than poppy or mandragora or all the drowsy syrups of the world. But the effect can only be maintained over time by increasing the strength of the dose.

With Heydon J, a reader never need doubt where he stands on a legal question, and his often sharply critical reaction to the judgments of other members of the Court stands up well with the best traditions of High Court dissent.

Justice Heydon will, however, have limited opportunities for future dissent. The requirement in section 72 of the Constitution that High Court judges retire at the age of 70 means that he must leave the Court in early 2013. He is not alone in his impending departure. Going first is Gummow J, who retired in October 2012. Justices Hayne and Crennan must then retire in 2015. All up, a majority of the Court will depart in a little over three years, with only French CJ and Bell and Kiefel JJ of the current bench then remaining (with their years of retirement being, respectively, 2017, 2021 and 2024). The stability of membership that marked the early period of the French Court is about to end, as the Court’s personnel undergoes rapid change.

Given the breakdown in 2011 of the trends of the French Court in its first two years, it will be interesting to observe how the Court decides those matters before it in the last remaining months of its present composition. Even more interesting will be to see the changes that follow from the replacement of those two Justices who appear to play such different roles on the High Court today – Gummow J whose opinions have consistently reflected majority thinking on the Court since his appointment in 1995 and Heydon J who now most regularly represents the alternative minority voice on the institution.