04 January 2014


'Confidentiality and the Problem of Third Parties: Protecting Reader Privacy in the Age of Intermediaries' by BJ Ard in (2013) 16 Yale Journal of Law & Technology 1 argues that
We often regulate actors as a proxy for protecting categories of information. Rather than directly protect reading records, for example, we target actors like libraries who are likely to possess them. This approach has proven increasingly untenable in the digital age, where the relevant actors are difficult to identify and constantly shifting. Unanticipated third parties now insert themselves as intermediaries or eavesdroppers in all manner of transactions, even in protected spaces like libraries. Where this happens, actor-defined regimes fail to vindicate their privacy commitments even within the institutions for which they were designed. 
Libraries provide a clear example of this problem. Private reading historically has been protected through a regime that restricts libraries’ ability to exploit reading records. Yet this regime now fails to protect reading records even in libraries because it does not bind third parties who provide library services digitally. Illustrating the point, Amazon facilitates e-book lending for a number of public and academic libraries. Although Amazon collects detailed reading records from patrons utilizing these services, the library confidentiality regime does not restrict what it can do with the records. These patrons accordingly confront the risks to intellectual privacy the library regime was meant to counter. 
This Article proposes a content-defined approach whereby confidentiality obligations would attach to particular types of information regardless of which actors possessed it. Such an approach would not only save extant confidentiality regimes from obsolescence, but also provide a vehicle for extending privacy commitments to future data practices that implicated the same types of sensitive records.

Fake Deaths By Drowning

Having got rid of a book chapter on financial crime, inc insurance fraud, I was amused to see reports of the reappearance of former US banker and 'dead person' Aubrey Lee Price, the latest in a long line of people who supposedly died in boating accidents, swimming accidents or by watery suicide. (The Sanchez fraud is noted here.)

British MP and former Aviation Minister John Stonehouse (1926-1988) shed his clothes and his identity in 1974, faking his own death by drowning off the beach in Miami as his business group collapsed and investigators were about to discover that a fund for Bangladeshi hurricane victims was missing £600,000.

Stonehouse disappeared to Australia on a false passport in the name of Joseph Markham, a dead constituent. He was discovered in Melbourne, happily living with his mistress and masquerading as Clive Mildoon, another dead constituent. In 1976 he was sentenced to seven years in prison for theft, forgery and conspiracy to commit insurance fraud. An account is provided in his autobiography Death of an Idealist (WH Allen, 1975) and My Trial (Star Books, 1976).

In 1981 former US state official Robert Granberg supposedly drowned after falling off a boat while on a fishing trip with friends. Although no body was recovered he was officially pronounced dead. His grieving widow sought payouts from several life insurers, one of which balked because Granberg had been "grossly overinsured" (for an aggregate US$6m on an annual income of around US$18,000). 

Investigation revealed that Granberg wasn't sleeping with the fishes; instead he was using several fake identities (including a fake passport, used to travel to London) and periodically meeting with the newly-wealthy merry widow. Granberg was convicted of fraud. His associates were convicted on other charges, including conspiracy and mail fraud.

Ivan Manson was more fortunate, disappearing on a fishing trip in New Zealand during 1975. He apparently fled to Australia, reportedly being identified from fingerprints as one of the victims in a 1995 car accident in Caboolture.

UK businessman Carl Hilderbrandt appears to have emulated Stonehouse in 1990. He skipped bail on fraud charges and faked his death by drowning. He assumed false identities by obtaining passports in the name of dead children - ie a 'rebirthing' scam - and moved to the US where he lived until detected in 1997.

US businessman Phil Champagne 'died' in a boating accident in 1982, his family's sorrow presumably assuaged by a US$700,000 insurance payout (on a US$1.5m policy).

A decade later Champagne was arrested for counterfeiting US currency in an Idaho shed. He had appropriated the persona of Harold Stegeman, an 8 year old who died in 1945. Champagne pleaded guilty to false statements in a bankruptcy hearing, loan application and passport application. His life after death is profiled in Man Overboard: The Counterfeit Resurrection of Phil Champagne (Northwest Publishing, 1995) by Burl Barer.

Bennie Wint supposedly drowned off Daytona Beach, Florida, in 1989. He was about to be married and reportedly feared prosecution in connection with illicit drug activity. His bride-to-be saw him go into the surf for a swim; he emerged unscathed and undetected from those treacherous waters, moved to a new life in Alabama under the name of William Sweet, found a new partner, fathered a son and was identified in 2009 after his fingerprints matched those of the 'dead' Mr Wint.

Florent Terrassin of Les Coteaux, Quebec supposedly downed while fishing in the St. Lawrence River, where he left his wallet, fishing kit and a shoe. His grieving widow Josette sought to collect C$300,000 insurance. The couple were charged with conspiracy and mischief after the dead man was found alive in his bed in the US after a phone call to his son.

Jenaro Jiménez Hernández of Cádiz supposedly died while spearfishing off Spain's Atlantic coast, leaving his BMW parked at Los Alemanes beach, a grieving and pregnant widow, and some uncomfortable debt. A four-day search by air-sea was unavailing, apart from discovery of a flipper by a police diver. Moroccan authorities were contacted in case the body washed up on their shores. He appears to have cycled to Gibraltar, then flown to South America on a false passport, along with a large sum in cash with him. On his return from Paraguay he was reportedly charged with fraud, unlawful appropriation and using false documents.

Anthony Angell also swam away from his inconvenient old identity and pressing debts, supposedly drowning off Beachy Head and being reborn as Anthony John Allen. In that guise he murdered his new wife Patricia and her two children, who disappeared (apparently dumped at sea). Angell/Allen was convicted of the murder over 25 years later. The incident is discussed in Presumed Dead: The True Story of an Unsolved Mystery (Time Warner, 1992) by Eunice Chapman, Allen's sometime partner.

Beachy Head was also the site for the supposed demise of Fiona Mont in 2000, of interest to the UK police over alleged involvement in a £300,000 computer fraud in 1999. She skipped bail, according to some newspaper reports faked her own death at the popular suicide spot and allegedly left Britain the next day in a light aircraft piloted by her boyfriend, a convicted drug smuggler. She was identified in Spain and extradition began a year later, with critics claiming that the two-day police helicopter and coastguard search at Beachy Head cost taxpayers over £30,000. (Mont and associates have contested particular claims; readers should undertake their own research before drawing any conclusions.)

Australian Harry Gordon faked his own death in a boating accident in 2000, with the expectation that his wife could benefit from his life insurance. Using a new identity he lived in Spain, the UK, South Africa and New Zealand and remarried. He explained discrepancies by claiming he was under witness protection. Gordon's deception was discovered in 2005; he went on to write The Harry Gordon story: how I faked my own death (New Holland, 2007).

John and Anne Darwin were jailed for six years in the UK in 2008 for fraudulently claiming £250,000 in insurance payouts after faking John's death. She convinced insurers, the police, the coroner and her own sons that John had drowned through a canoeing accident in 2002. He was discovered five years later, reportedly claiming that he had no memory of the intervening years. He had been in close contact with his wife during that time and apparently fraudulently obtained a passport, using the name of a dead child.

One of his sons commented
Dad told one nasty lie and disappeared and said he was dead but she lied for six years. She was the face of the lies and she kept lying, even when the evidence was so overwhelmingly against her. She dragged us through hell by forcing a court case.
The same year saw conviction in New Zealand of Bruce Dale, who staged his drowning at Port Waikato (abandoning a wife and three children) in 2002, moved to Christchurch with a new identity as Michael Francis Peach, acquired a house and business, and found a new partner under the Peach identity. His first family claimed NZ$1.12 million in insurance in 2007. Dale's reinvention was discovered when he applied for a passport in his real name. He pleaded guilty to four charges of fraud.

Price allegedly embezzled several million dollars from his bank before leaving a suicide note in June 2012 indicating that he was going to jump off a ferry from Key West to Fort Myers, Florida. He was found alive and well in Georgia after being stopped for driving 'suspiciously slowly' in a pickup with tinted windows - gold tinted windows in some reports.

In 2008 Minnesota IT entrepreneur Travis Scott collected US$11.5m after his Prairie supercomputer business was struck by lightning. In September 2011, after pleading guilty to fraud, he left a suicide note indicating that he'd drowned in Lake Mille Lacs. In reality he'd flown to Manitoba, where he was eventually arrested for trying to pass forged prescriptions at a Winnipeg pharmacy.

In 2008 hedge fund manager Samuel Israel III - accused of a US$450m fraud - supposedly leapt off a Hudson River bridge, leaving his SUV with the words “suicide is painless” written in the dust on the hood. A month later he turned himself in, apparently having spent the time at a Massachusetts campground. His fraud is discussed in 'Portraits of five hedge fund fraud cases' by Majed Muhtaseb and Chun Yang in (2008) 15(2) Journal of Financial Crime 179-213 and in Octopus: Sam Israel, the Secret Market, and Wall Street's Wildest Con (Broadway Books, 2012) by Guy Lawson.

Fake death by drowning being a cultural meme - and more convenient than being supposedly devoured by lions, crocodiles, wild pigs or bears - Price's supposed demise had precedents elsewhere in Florida.

Tampa restaurateur H.E. 'Gene' Holloway - deeply in debt and with a US$16m insurance policy - for example supposedly came to a watery end by falling overboard from a yacht at night near Key West. Associates claimed they had unavailingly thrown life jackets. He was discovered in Toronto during a drug bust two months later - perhaps the fishes threw him back - with a new girlfriend and cosmetic surgery.

Kerry Scheele sought to evade child support and collect a US$1m insurance policy by drowning during a lobster diving trip near Big Pine Key. Scheele swam ashore, hid his rented diving kit in the mangroves and then travelled to his girlfriend in Wisconsin.

Further afield Louisiana resident Milton Harris disappeared off a ferry in South Australia, being sprung when an intrepid 70-year-old dived in to save him only to discover Harris sitting on the seabed breathing from an oxygen tank. In 1985 Harris vanished off a Cook Strait ferry in New Zealand. Prudential Insurance and Lloyds made payments to his family on the assumption that Harris was dead, with Lloyd’s stopping payment on two NZ$2.9m life insurance polices after discovering that Harris had previously jumped. He was found four years later, living in New Zealand with a new wife on some US$60,000 of Prudential's insurance money generously provided by his first wife. Harris was extradited to the US and Prudential took action against his first wife and son for fraud. Three years after release from prison, Harris was missing again.

03 January 2014


'Identity and the Hybridity of Modern Finance: How a Specifically Modern Concept of the Self Underlies the Modern Ownership of Property, Trusts and Finance' by Jongchul Kim in (2013) The Cambridge Journal of Economics argues that
Postmodern thinker A. N. Whitehead argued that the idea of the identity of the self is one of the significant mistakes made by modern philosophy. From this postmodern perspective, this essay examines how this mistaken concept underlies the modern ownership schemes of property, trusts and finance. It argues that exploiting the hybridity of money and credit explains the development of modern ownership from property to trusts and modern finance, and that, in the process of exploiting this hybridity, property owners struggle to endure and secure their identities permanently. This essay also analyses unethical aspects of the hybridity of modern finance, as well as its systemic vulnerability, which contributed to the financial crisis of 2008. The essay concludes with a brief discussion of a general reform principle for the financial sector. 
Kim comments that
The ideas of identity and person are premises of modern Western philosophy. The modern philosophers Friedrich Hegel and John Locke explained the relationship between person and property. Critical legal theorist Roger Cotterrell (1987) explored how the legal relationship between person and property is extended to collective ownership and is made permanent by the legal institution of the trust. Legal theorist Frederic Maitland (1911) argued that this legal idea of the trust developed into the idea of the trust fund, which is prevalent in modern finance. John Maynard Keynes (1972) argued that the money motive of financial investors is a semi- pathological desire to secure “a spurious and delusive immortality.” These scattered, fragmented insights can lead us to link modern ideas and institutions such as the identity of the self, property, trusts, finance and the psychological desire for immortality. This linking helps us understand how the concept of modern ownership comes from the modern mind (especially that of a dominant group), which interprets and perceives itself and the world in a peculiar manner. This understanding remains elusive, however, as long as these scattered insights remain fragmented because each of them by itself is limited. For example, Hegel and Locke assumed that the modern idea of person was a “universal” concept, and even Cotterrell believed that conceptualizing a person as the owner of property is common sense (1987: 83). Thus, these three theorists failed to realize that the modern idea of personhood is a peculiar way of understanding the self and is ontologically problematic. Maitland did not develop his argument that the trust led to the trust fund in detail. Keynes understood the desire for immortality in a Freudian manner and never linked this desire with the mistaken modern idea of the identity of the self. This essay attempts to overcome the limitations of these scattered insights and to rethink the ontology of modern ownership. 
Philosophers have debated the question of whether there is a persistent subject that undergoes change through time. Postmodern philosophers Alfred North Whitehead (1978: 167) and Friedrich Nietzsche (1989: 45) argued1 that this idea of personal identity is one of the significant mistakes made by modern philosophy. According to them, the idea comes from the false conception that reality has the same structure as language. Our language takes the form of “subject and predicate.” When we think that reality has the same “subject-predicate” structure as language, we separate the subject from the predicate, or the “doer” from the “doing.” 
Based on the mistaken idea of identity, Hegel devised the concept of dialectics to explain how the various institutional forms of identity—such as money, the state, and the world spirit— have developed. From a postmodern critical perspective, in contrast, this essay argues that rather than dialectics, the exploitation of the hybridity of money and credit explains the development of modern ownership from property to trusts and modern finance, and that, in this process, property owners struggle to endure and secure their identities permanently. As a result of this hybridity, the financial instruments of modern banking can be called credit-money. These instruments include bank-notes, which are issued by commercial banks, and the shares of money market mutual funds (MMMFs) and repurchase agreements (repos), which have been issued by shadow-banking institutions in the twentieth and twenty-first centuries. Credit-money is self-contradictory because the concept of money is inherently contradictory to the concept of credit. The transfer of a credit instrument creates a creditor-debtor relation that imposes a repayment obligation on a debtor. In contrast, money, including cash issued by a central bank, is defined as anything that is generally acceptable in the final settlement of creditor- debtor relations. The discussion of the ontology of modern finance must be founded upon historical reality. We thus have to choose historical accounts that stimulate our new interpretation. The accounts that help us do so are those of Maitland (1911), Alan Macfarlane (1973), Ronald Stanley Neale (1975) and Jongchul Kim (2011), which are critical of classical theories such as those of Karl Marx, Max Weber and Crawford Brough Macpherson, and which emphasize the central role of the trust in explaining the nature of modern ownership. For the discussion of shadow banking, this essay also relies on the research of Gary Gorton and Andrew Metrick. 
This essay first examines the peculiar modern relationship between person and property. It then examines how this relationship is made permanent by both the trust and modern finance, which exploit a hybridity between person-property relationships and creditor-debtor relationships. Next, it examines how this hybridity has been exploited in shadow banking in the twentieth and twenty-first centuries. Finally, it comments on the moral implications of the idea of personality and modern banking in regards to forgiveness and briefly suggests as a general principle for financial reform the abolition of hybridity through the creation of a clear distinction between creditors’ rights and owners’ rights.


'Revisiting Mary Ann Glendon: Divorce, Dependency, and Rights Talk in Western Law' by Margaret F. Brinig and Linda C. McClain in Hugues Fulchiron (ed) Solidarities Between Generations (Bruylant, 2013) comments that
This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. 
A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let alone,” while European conceptions of the person are “dignitarian,” envision the rights-bearer as situated in family and community relationships, and support a more communitarian and generous model of social provision and of social responsibility to address dependency. 
This essay argues that, to some extent, these two allegedly distinct traditions have merged in the more than twenty-five years since Glendon wrote her comparative study. Thus, certain trends in U.S. law regulating abortion and divorce (and marriage) seem at odds with the notion of a law that prizes adult liberty over responsibility and consonant with a more communitarian conception of social relationships, while certain trends in European law seem more individualistic and liberalizing and less communitarian. The dramatic changes in family law and social welfare law in the United States as well as in Europe (particularly in France, a country Glendon emphasized) make it a propitious time to look again at Glendon’s three topics -- abortion, divorce, and dependency -- and the relationships among them. 
Our essay illuminates how gender is a salient feature of all three topics, since women, not men, make the abortion decision, women, in the U.S. and France, initiate the majority of divorces, and women, more than men, shoulder caregiving responsibilities. The essay briefly addresses three issues that Glendon did not foresee or anticipate in her earlier work: (1) the role of financial insecurity in deterring marriage and contributing to a growing “marriage gap” between rich and poor and the separation of marriage from parenthood; (2) the opening up of civil marriage, in some European nations and in several states within the U.S. to same-sex couples and, parallel to this, the creation of new legal forms parallel to civil marriage (some also open to opposite-sex couples); and (3) elder care and prolonged parental care for young adults as increasingly visible issues of dependency and intergenerational solidarity.

02 January 2014

Art Fraud

'Framing the picture: The Canadian print media’s construction of an atypical crime and its victims' by Josh Nelson and Adie Nelson in (2013) 19(3) International Review of Victimology 285-305 comments that
While many have investigated media constructions of ‘newsworthy’ and ‘non-newsworthy’ crimes and their victims, the overwhelming focus of these analyses has been upon violent crime in its myriad forms. In contrast, this article examines the Canadian print media’s peculiar construction of crime, criminals, and victims in the world of art fraud from 1978 to 2012. Just as art fraud is not thought of as normal ‘crime news’ and is bracketed away elsewhere, the victims of art fraud tend not to be regarded as ideal victims. We note that allegations of art fraud in Australia and elsewhere have occasionally provided a catalytic environment for discussions of ‘who is an “Aboriginal artist”?’, ‘what is “Aboriginal art”?’, and ‘who owns Native culture?’ However, the Canadian print media’s response to allegations of fraud in relation to the art and artistry of Canada’s indigenous peoples suggests how contemplation of these questions can be forestalled.
'The Beltracchi Affair: A Comment on the “Most Spectacular” German Art Forgery Case in Recent Times' by Duncan Chappell and Saskia Hufnagel in (2012) 7 The Journal of Art Crime 38-43 [PDF] comments that
On the 27th of October 2011 the four persons accused of the 'most spectacular' art forgery case in German post-war history were sentenced to jail terms ranging from 21 months to 6 years. The accused were Wolfgang Beltracchi (61), the painter of the forged works; his wife Helene Beltracchi (53) and her sister Jeanette Spurzem (54) who helped him in various ways; and the 'logistical expert' in the case, Otto Schulte-Kellinghaus (68). Considering the financial damage the forger group had caused, the embarrassment of buyers, dealers, experts and auction houses, as well as the considerable publicity the trial incurred, this seemed a remarkably mild verdict. However, observing the way in which art forgers at large appear to be dealt with by the justice systems of various countries, it could be said that the case just confirms a reoccurring pattern of lenient sentencing. This article will examine the case and its repercussions.
'The Strange Business of Memory: Relic Forgery in Latin America' by Paul Gillingham in (2010) Past and Present (2010) 206 (suppl 5) Past and Present 199-226
 surveys assorted cases of relic forgery from colonial and modern Latin America, to argue that such forgeries are (a) particularly widespread in the region; (b) part of a quite formalized sector of the region’s informal economies; and (c) commodities produced by a wide range of elite and non-elite actors. To explain why this should be, it suggests a very schematic typology of relic forgery in Latin America (taken here as a broad, Chicano construct, encompassing parts of California and upstate New York) and attempts a superficial political economy of relic forgery. This last focuses particularly on the modern period, and on the role of archaeology in a strange business: the materialization of memory through fraud. 
Forging relics is, as other essays in this volume suggest, a practice that spans a whole range of times, places, and cultures. Some relics, like Mohammed’s toothpick or splinters of the One True Cross—usefully interchangeable, one might think—became ubiquitous precisely because of the ease with which they could be mass-produced. Three hundred men, Luther mocked ponderously, would not have sufficed to carry off all the fragments of the One True Cross. Such forgery is merely a subset of the broader category of artefact and antiquity fraud. There is surprisingly little historical literature on this exotic trade; yet it is, as any curator or collector knows, extremely commonplace. Museum director Thomas Hoving estimated that thirty per cent of the objects offered to the Met were fakes. Even the most knowledgeable collectors, he wrote, would purchase some forgeries over a career’s span, for fakes abounded in every market; antiquity fraud was a ‘massive, truly monumental industry’. Hoving’s choice of ‘industry’ was neither verbal sloppiness nor hyperbole, but a reasonable definition of a complex business bound tightly to the laws of supply and demand. Thus post-war Rome, for example, became a centre of forgery due to a potent combination of strong American demand for antiquities, their relative scarcity and the poverty of restorers, sculptors, and the academics who verified and gave provenances for their fakes. (This was not Rome’s first period of notoriety for art fraud: in the first century AD Seneca the Elder found half a dozen workshops forging Greek jewels and intaglios, while ‘painters’ galleys’ in the seventeenth and eighteenth centuries mass-produced old masters.) Forgeries can have impacts well beyond a misleadingly labelled display case or a stung collector. The Donation of Constantine lent medieval popes a theocratic claim to temporal jurisdiction that legitimized sweeping land grabs: Pope Adrian IV’s grant of Ireland to England, Pope Alexander VI’s division of the non-European world into Spanish and Portuguese territories. Yet for all that the historical significance of forgeries has been minimized, while the production of fake antiquities has been universal, ubiquitous, and unusually intense in the late nineteenth and twentieth centuries. 
Certain characteristics of Latin American societies in both colonial and modern periods favoured comparatively widespread artefact fraud. Material incentives for forgers were consistently powerful, whether afforded by fluid property rights or by the proximity of monied consumers in North America. Opportunities for forgers were likewise strong: historically low literacy levels have magnified the power of the inventive, forging minorities, while conquest and kulturkampf in the sixteenth century generated a relative ignorance of the pasts of complex indigenous societies with highly sophisticated material cultures. Artefact fraud has been consequently commonplace. Its production ranges from the banal — Aztec black pottery, a form of deceptive, unlabelled tourist art since at least the 1820s — to the spectacular, such as the Aztec crystal skulls; and from the micro — the Ica stones of Peru, say — to the distinctly macro, whether the pyramid of the sun in Teotihuacán, to which the lead archaeologist added an extra level for aesthetic reasons, or the lost city of Quechmietoplican, a Mesoamerican fantasy dreamed up by nineteenth-century tourist guides on the basis of abandoned mine-workings. By the late nineteenth century forgery was quite literally an industrial process in Mexico, where artisans used high-speed rotary wheels to cut and polish stone and crystal, softened obsidian in petrol baths, soldered together filigree goldwork and, most impressive of all, used galvanization to transform waxwork dummies into copper moulds for production-line baking of ‘prehispanic’ pottery. (The government’s Inspector of Monuments collected over 80 such moulds.) Given the lack of competitiveness in Mexico’s more formal industries —it cost nineteen per cent more to produce a piece of cloth in Veracruz than it did in Manchester— artefact forgery may have been the country’s most successful export industry. By the 1930s, at any rate, purportedly prehispanic artefacts were so ubiquitous in the United States that one archaeologist claimed one of his ‘most frequent sources of Mexican objects’ to be Irondequoit Bay in New York State, where the ‘housewives and widows’ of collectors dumped them. Gringos were not the only dupes: Diego Rivera’s vast collection of pre-Columbian art was ‘riddled with fakes’. 
Given such a rich hoard of stories of artefact fraud, it is tempting to blur categories and to define a relic as vaguely as possible: as, perhaps, ‘something which remains or is left behind, particularly after destruction or decay’. This is clearly analytically unsatisfactory, reducing both the precision and the cumulativity of any comparative studies. An exacting, functionalist definition of relics—as uniquely religious inventions, specifically body parts, intimate personal possessions and contact materials that are thought to provide supernatural means to pragmatic ends—is the easiest defended. There are, admittedly, frequent linguistic attempts to sacralize secular artefacts: deeming national heroes ‘martyrs’, their bones ‘relics’, their graves ‘altars to the patria’, their memories the objects of ‘cults’. A handful of the most successful —the bones of Emiliano Zapata, or the would-be bones of Cuauhtémoc, or the Aztec crystal skulls— seem to attain for some followers the sacral function of religious relics, becoming objects that wield magical as well as mnemonic power. The overwhelming majority do not. Yet if non-religious artefacts are generally not believed to possess the numinous power of religious relics, they do share other key characteristics. What we might call ‘secular relics’ satisfy David Hume’s actor-centred description of the miraculous, namely materials which generate ‘the passion of surprise and wonder … an agreeable notion [that] gives a sensible tendency towards the belief of those events from which it is derived’. Relics religious and secular all work at the intersection of credulity and power; both types are examples of what Pierre Nora described as a material lieu de mémoire, namely ‘any significant entity … which by dint of human will or the work of time has become a symbolic element of the memorial heritage of any community’. Such symbolic capital is readily converted, as Pierre Bourdieu has argued, into economic or political capital. The relationship is old enough to be recognized in some etymologies; thus the root of the word for relic in Serbian—mošti—is moć, or power. In widening our focus beyond the purely religious we lose some precision; but in exchange we may gain some analytical insight, for relics religious and secular are surrounded by many similar social relationships and practices. Hence, in this essay, relics will be broadly defined as artefacts of widely accepted charismatic power, whether they serve as the sign for a famous individual or as the sign for a major, transformative idea. 
There are assorted approaches that might be used here: the history of magic, religion, or memory, the anthropology of ritual and material culture, the sociology of community, instrumentalist theories of nationalism. The latter, perhaps an obvious choice for the analysis of secular relics at least, suffers however from a double weakness. Constructivist readings of hero/relic cults tend to assume a top-down flow of production, in which these signifiers of identity are invented by narrow coteries of metropolitan elites and artlessly consumed by their gullible subjects. Instrumentalist readings of symbolic manipulation further tend to assume that the mere existence of a statue, a reliquary, a grave, a postage stamp, or any other place of memory constitutes in itself conclusive proof that the represented symbol is central to both producers and consumers of that memory. I am unconvinced that either of these assumptions works everywhere, all the time. Some straightforward quantification of the resources invested —by both producers and consumers of symbols— would be a useful rule-of-thumb gauge of those symbols’ significance in the everyday scheme of things. It is worth remembering, moreover, that Pierre Nora’s ‘entirely symbolic’ history, or ‘history of the second degree’, was originally deeply reliant on an older, more positivist historiography which he and his followers effectively cannibalized. Without such older historiographical traditions to relate to, it becomes impossible to ‘point up the links between the material base of social existence and the most elaborate productions of culture and thought’. How does an ‘entirely symbolic’ historiography know what that material base looks like? How could we assess the ‘reuse and misuse’ of historical narrative in the utter absence of a professional historical narrative? Cultural analyses which overly despise the material can produce partial, and eventually sterilely interchangeable, understandings of the past—understandings of the sort which Nora, at base an empiricist whose meisterwerk filled seven volumes, might despise. Hence, in this survey, the use of culture and political economy as twin organizing concepts in attempting a relic-centred brand of the history of memory. An understanding of a relic’s cultural context is essential to understand the sources of its power; but a grasp of a relic’s political economy is also essential to understand why and how people fetishize, materialize, and trade these symbols across the world.

Collective Rights Administration

The vicissitudes of the Educational Rights Collective of Canada (ERCC) - one of the Canadian copyright collecting societies (aka copyright collective rights administration bodies) - offer a perspective on Viscopy and the Australian droit de suite regime.

Canadian copyright law empowers that nation's educational institutions to copy and use certain radio and television programs for free, paying royalties for some programs to the ERCC with the tariff being formally certified by the Copyright Board of Canada (broadly equivalent to the Copyright Tribunal in Australia under under s 138 of the Copyright Act 1968 (Cth)). Certification reflects s 66.52 of the Canadian Copyright Act.

The ERCC has indicated that
Royalties received by ERCC pursuant to its tariffs have always been modest; in recent years, they have not exceeded $10,000 on average. These amounts never came close to  covering the collective’s obligations; it continues to carry significant payables dating back to the hearing into the 1999-2002 tariff.
Royalty receipts have been supplemented by loans in the amount of $20,000 from each of its six founding member collectives [ie the leading Canadian rights administration bodies]. These loans have never been paid back. 
Costs have continued to exceed revenues, and debts have always largely exceeded any amount available to the collective. As a result, nothing has ever been distributed to rights holders. 
Recent amendments to the Act have made it increasingly unlikely that ERCC’s costs would ever be covered by royalty receipts. 
Unable to sustain continued losses, ERCC’s board of directors, comprised of one representative of each founding member collective, has recently voted to recommend to the five remaining members (one member having left ERCC a few years back) to dissolve ERCC and to write off the $20,000 loans as well as any accumulated interest. The five members are in the process of signing the required special resolution to commence the dissolution procedure. Accordingly, within approximately 120 days of November 4, 2013, there will be no entity to administer the receipt of any royalties pursuant to the 2012- 2016 tariff.
The ERCC has formally sought a variation to the current tariff "as part of the process to have an orderly winding down of its affairs".

The Board notes [PDF] that
The ERCC argues that the variance it seeks will not prejudice the interest of any rights holders, whether or not they are represented by ERCC or its member collectives. ERCC has never had any money to distribute to royalty claimants and never will. Outstanding debts, including founding member loans, stand at approximately $830,000. Funds in hand currently are less than $40,000. Founding members’ loans will not be refunded. Once windup fees of approximately $15,000 are paid, other creditors will receive less than five per cent of what they are entitled to receive. Any additional royalties that ERCC might receive would serve to pay first the balance of these debts and second the member loans before any payment could be made to royalty claimants. 
ERCC’s unstated conclusion appears to be that since the cost of receiving royalties is expected to always exceed the amounts that may be so received, especially now given recent amendments to the Act, it is in the best interest of all concerned that the tariff be terminated and the collective dissolved. 
ERCC states that it cannot be wound up until arrangements have been entered into with its debtors and creditors, which it expects will occur shortly after the Board’s decision is received. The application ends with an expression of “hope that the Board recognizes the futility of the situation ERCC and its members find themselves in and hope that the Board will approve the requested variance as expeditiously as possible.”

Marriage and Capacity

Two recent cases in the UK Court of Protection throw light on migration scams, exploitation (and desperation) regarding marriages that are subsequently held to be invalid.

In A Local Authority v SY [2013] EWHC 3485 (COP) Keehan J found that
TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective. 
TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY. 
I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation. 
Fortunately, it would appear that TK's involvement in SY's life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham 'marriages' are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation. 
It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought.
I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage.
TK man had arrived in the UK from Pakistan to study in 2009 but his application to stay was refused after an immigration tribunal concluded he had submitted forged documents and attempted to deceive officials. TK's rights of appeal regarding that refusal were exhausted in June 2011. In August 2011, pending deportation, he began a relationship with SY. She is "a 19 year old young woman who has mild to moderate learning disability and is extremely vulnerable". SY, with an IQ of 49 and a history of involvement with welfare authorities, was held to lack capacity to litigate. She was also held to lack capacity to make decisions regarding her residence, the contact she should have with others, the care package she should receive, and entering into a contract of marriage.
 On 23 January 2012 her then carers notified the authority that she had returned from TK's property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a 'lawyer' about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner. ... 
On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home. ...
On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY. … 
On 17 July 2012 TK's appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that "The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8 …". He later observed that "viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place". He was found not to have given a truthful account in his evidence and not to be a credible witness.
There is a similar exploration of capacity in YLA v PM & Anor [2013] EWHC 4020 (COP)

31 December 2013

Exit ramps

From 'Forensic Topology: The bank burglar as urban planner' by Geoff Manaugh in (2013) 49 Cabinet -
In the 1990s, Los Angeles held the dubious title of “bank robbery capital of the world.” At its height, the city’s bank crime rate hit the incredible frequency of one bank robbed every forty-five minutes of every working day. As FBI Special Agent Brenda Cotton—formerly based in Los Angeles but now stationed in New York City—joked at an event hosted by Columbia University’s school of architecture in April 2012, the agency even developed its own typology of banks in the region, most notably the “stop and rob”: a bank, located at the bottom of both an exit ramp and an on-ramp of one of Southern California’s many freeways, that could be robbed as quickly and as casually as you might pull off the highway for gas. 
In his 2003 memoir Where The Money Is: True Tales from the Bank Robbery Capital of the World, co-authored with Gordon Dillow, retired Special Agent William J. Rehder briefly suggests that the design of a city itself leads to and even instigates certain crimes—in Los Angeles’s case, bank robberies. Rehder points out that this sprawling metropolis of freeways and its innumerable nondescript banks is, in a sense, a bank robber’s paradise. Crime, we could say, is just another way to use the city. 
Tad Friend, writing a piece on car chases in Los Angeles for the New Yorker back in 2006, implied that the high-speed chase is, in effect, a proper and even more authentic use of the city’s many freeways than the, by comparison, embarrassingly impotent daily commute—that fleeing, illegally and often at lethal speeds, from the pursuing police while being broadcast live on local television is, well, it’s sort of what the city is for. After all, Friend writes, if you build “nine hundred miles of sinuous highway and twenty-one thousand miles of tangled surface streets” in one city alone, you’re going to find at least a few people who want to really put those streets to use. Indeed, Friend, like Rehder, seems to argue that a city gets the kinds of crime appropriate to its form—or, more actively, it gets the kinds of crime its fabric calls for. 
Of course, there are many other factors that contribute to the high incidence of bank robbery in Los Angeles, not least of which is the fact that many banks, Rehder explains in his book, make the financial calculation of money stolen per year vs. annual salary of a full-time security guard—and they come out on the side of letting the money be stolen. The money, in economic terms, is not worth protecting.


Following up the September item on law and de-extinction …

'The Ethics of Reviving Long Extinct Species' by Ronald Sandler in (2013) Conservation Biology comments that
 There now appears to be a plausible pathway for reviving species that have been extinct for several decades, centuries, or even millennia. I conducted an ethical analysis of de-extinction of long extinct species. I assessed several possible ethical considerations in favor of pursuing de-extinction: that it is a matter of justice; that it would reestablish lost value; that it would create new value; and that society needs it as a conservation last resort. I also assessed several possible ethical arguments against pursuing de-extinction: that it is unnatural; that it could cause animal suffering; that it could be ecologically problematic or detrimental to human health; and that it is hubristic. There are reasons in favor of reviving long extinct species, and it can be ethically acceptable to do so. However, the reasons in favor of pursuing de-extinction do not have to do with its usefulness in species conservation; rather, they concern the status of revived species as scientific and technological achievements, and it would be ethically problematic to promote de-extinction as a significant conservation strategy, because it does not prevent species extinctions, does not address the causes of extinction, and could be detrimental to some species conservation efforts. Moreover, humanity does not have a responsibility or obligation to pursue de-extinction of long extinct species, and reviving them does not address any urgent problem. Therefore, legitimate ecological, political, animal welfare, legal, or human health concerns associated with a de-extinction (and reintroduction) must be thoroughly addressed for it to be ethically acceptable
'Reintroduction and De-extinction' by Dolly Jørgensen in (2013) 63(9) BioScience 719 argues
 We are entering an age in which species extinction may be reversible. De-extinction, as it has been labeled, can apply to any species for which DNA can be recovered, from woolly mammoths of the Pleistocene to thylacines and passenger pigeons from the twentieth century. These developments, which were showcased in March 2013 at a daylong conference called TEDxDeExtinction, held in Washington, DC, (http://tedxdeextinction.org), are exciting to some scientists and terrifying to others. If we are to embark on this de-extinction journey, an act some might label playing God, we need to establish the rules of the game. I want to suggest that the well-established standards for species reintroduction projects provide a solid foundation on which de-extinction can be built. 
Critics of de-extinction in the popular science media have quickly pointed out drawbacks. From an ethical perspective, they have pointed to potential violations of animal welfare standards, the potential drain on resources that could be used in the conservation of still-existing species, and the implication that species destruction might be seen as permissible if it is reversible. The ecological objections have included the lack of ecosystems in which the re-created creatures could live, the potential invasiveness of the species in the ecosystem, and the potential for new disease vectors. Exploration of de-extinction's ethical dilemmas will require serious scientific and public debate, including a significant contribution from humanities researchers, including philosophers and historians, who have the appropriate theoretical background for conceptualizing what is at stake. I will not tackle those ethical issues here. The solution to the ecological dilemmas, however, may already be at hand through the application of reintroduction standards.


Alongside the 100 page Indian Supreme Court decision [PDF]  overturning the Delhi High Court's decision on section 377 of the Indian Penal Code I've encountered ‘A Gang of Judicial Assassins’: George Bateson and Colonial Sodomy Laws' by John Waugh in Intimacy, Violence and Activism: Gay and Lesbian Perspectives on Australian History and Society (Monash University Publishing, 2013) 25 edited by Graham Willett and Yorick Smaal.

The Supreme Court decision is poorly written and poorly conceptualised in terms of human rights protection under the Indian Constitution, dignity, privacy, 'Indian values' and the impact of the Code on consenting male adults.

Waugh comments -
 One night in November 1860, Melbourne police burst into the room where George Bateson, a 42-year-old Englishman, was in bed with a young man. Bateson was arrested and later convicted of sodomy. In prison, he poured out his outrage in a long series of letters in which he claimed to be the innocent victim of a conspiracy. 
This paper puts Bateson’s case in its legal context by outlining the laws that applied to sex between men in colonial Australia, and considers two highly unusual aspects of the case: the police entrapment of Bateson, and the cache of letters in which he gives his version of the events leading to his conviction.
Waugh notes -
One Monday night in November 1860, George Bateson, a 42-year-old stock agent, was walking along Bourke Street in Melbourne’s theatre district. He got into conversation with William Gardner, 19, a ship’s carpenter, who had been at the theatre. Bateson invited him to have something to drink; they went to a pub and then went walking near the city’s first exhibition building, in William Street, where, Gardner said, Bateson hugged and kissed him. Seeing a light in the sky, they walked to Batman’s Hill (near today’s Southern Cross Station) and watched a ship on fire in the distance. They finally separated around 2 am, after arranging to meet the following night. 
On Tuesday night the two men went to the theatre, where Bateson bought Gardner a ticket and a glass of ale. After the show, they had a cup of coffee and then went to the hotel where Bateson was staying. They had another glass of ale, and Bateson asked Gardner to stay the night with him. The two spent the night together in bed, during which (according to Gardner) Bateson had anal intercourse with him. The following morning they arranged to meet again on Friday. 
This much of the story could, with a few variations, be a seduction tale from many different times and places, but the conclusion brings it back to its actual setting, at a time when sodomy was a hanging offence. On Friday Bateson and Gardner went to the theatre again, then back to Bateson’s hotel and to bed. While they were in bed together, two detectives burst into the room, where they found Bateson on top of Gardner. They arrested the two men and took away the sheets, which a doctor later testified had semen on them. 
Gardner had gone to the police on Wednesday morning. They told him to keep his appointment with Bateson on Friday, when they would be watching. The two detectives hid in a closet outside Bateson’s room, and on a prearranged signal from Gardner they rushed in and arrested both men. Bateson was charged with sodomy and later convicted. His mandatory death sentence was commuted to fifteen years hard labour, the first three in irons. 
Robert French noted Bateson’s case briefly in his pioneering paper on archival sources for gay history in 1992, highlighting its connection with the theatre world, but extensive records that were unavailable to French give the case an added and somewhat different significance. My focus here is not on the questions of identity, sexual repertoire, language, legal severity and the development of subcultures to which attention has been given in other studies of colonial Australian prosecutions for sex between men. Instead, I put Bateson’s case in its legal context by outlining the laws that applied to him and others at the time, and I consider two aspects of the case that make it very unusual for its period: the police entrapment of Bateson, and a cache of letters which give his version of the events leading to his conviction. The official disapproval of Bateson’s entrapment indicates one of the reasons why this kind of police activity was much less common in the mid-nineteenth century than it became a century later. Bateson’s letters prompt some observations on the reasons why the voices of the accused are usually missing from the records of colonial sodomy prosecutions.