09 August 2014


'Confronting the Two Faces of Corporate Fraud' by Miriam H. Baer in (2014) 66 Florida Law Review 87 comments 
Some criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self.
Although the law and economics and behavioral psychology accounts separately offer important lessons for observers of corporate fraud, neither theory addresses the regulatory implications confronting opportunistic behavior and temporal inconsistency at the same time. How can an internal corporate enforcer best respond to the “two faces” of corporate fraud? This Article explores this question, first by analyzing the interaction between the two dispositions, and then by considering the relative merits of various enforcement approaches.

07 August 2014


'Freedom of Association: It's Not What You Think' by Kimberley Brownlee in (forthcoming) Oxford Journal of Legal Studies comments that
 associative freedom is not what we tend to think it is. Contrary to standard liberal thinking, it is neither a general moral permission to choose the society most acceptable to us nor a content-insensitive claim-right akin to the other personal freedoms with which it is usually lumped such as freedom of expression and freedom of religion. It is at most 1) a highly restricted moral permission to associate subject to constraints of consent, necessity, and burdensomeness, 2) a conditional moral permission not to associate provided our associative contributions are not required, and 3) a highly constrained, content-sensitive moral claim-right that protects only those wrongful associations that honour other legitimate concerns such as consent, need, harm, and respect. This paper also shows that associative freedom is not as valuable as we tend to think it is. It is secondary to positive associative claim-rights that protect our fundamental social needs and are pre-conditions for any associative control worth the name.
Brownlee argues that
Freedom of intimate association with family members, friends, and acquaintances is not what we tend to think it is. It is not, as John Stuart Mill thinks, ‘the right to choose the society most acceptable to us’. Nor is it, without significant qualifications, what the US Supreme Court describes as the protection of our choices to enter into and maintain certain intimate human relationships as a fundamental element of personal liberty. Nor does it entail in any general sense the right to exclude. Contrary to these standard liberal positions, intimate associative freedom is neither a general moral permission to associate or not as we wish nor a content-insensitive moral claim-right that protects us in behaving wrongly when we do so. Both as a permission and as a claim-right, associative freedom is highly constrained and content-sensitive. As such, it differs from the other personal freedoms with which it is usually lumped such as freedom of expression and freedom of religion, which are largely content-insensitive claim-rights that do protect us in behaving wrongly within their domains. 
Associative freedom is also not as valuable as we tend in liberal societies to think it is. Although considerable associative control is necessary for self-respect, wellbeing, and the cultivation of judgement, nevertheless it is not the most important associative right we have. Our fundamental associative interests ground more important positive claim-rights. These are, first, the right to have intimate associates (not necessarily of our choosing) during periods of abject dependency and risk of abject dependency and, second, the right to have minimally adequate opportunities to cultivate intimate associations when we are not abjectly dependent. These positive protections are necessary pre-conditions for any meaningful associative freedom worth the name. As such, they not only limit our moral permissions to associate or not as we please, but also trump our moral claim-rights to refuse to associate. Appropriate state institutions cannot fully guarantee these positive protections because, first, it is part of the nature of intimate associations that they tend to require more investment, care, and persistence than state provisions can secure and, second, such institutions are hostage to people’s willingness to perform their functions. But, of course, state institutions can go some way to filling basic associative gaps, and can do much to assist (or impede) people in carrying out their personal associative duties.

Fourth Amendment and Participatory Privacy

'Two More Ways Not to Think About Privacy and the Fourth Amendment' by David Alan Sklansky in (forthcoming) University of Chicago Law Review
challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.
'The Surveillance-Innovation Complex: The Irony of the Participatory Turn' by Julie E. Cohen in Darin Barney, Gabriella Coleman, Christine Ross, Jonathan Sterne and Tamar Tembeck (eds), The Participatory Condition (University of Minnesota Press, 2015, Forthcoming) comments
Over the last several decades, surveillance has become increasingly privatized and commercialized and increasingly participatory. This shift has challenged established habits of conceptualizing surveillance as discipline and control. Surveillance theorists have responded by turning to theories of networked flow, mass-mediated commodification, and performance to help explain the social, political, and psychological effects of surveillance. This chapter steps into that discussion, arguing that the effects of the participatory turn in surveillance are even more fundamental, and concern the extent to which we understand surveillance as itself subject to regulation. The rhetorics of participation and innovation that characterize the participatory turn work to position surveillance as an activity exempted from legal and social control. The resulting model of surveillance is light, politically nimble, and relatively impervious to regulatory constraint. Commentators have long noted the existence of a surveillance-industrial complex: a symbiotic relationship between state surveillance and private-sector producers of surveillance technologies. The emerging surveillance-innovation complex represents a new, politically opportunistic phase of this symbiosis, one that casts surveillance in an unambiguously progressive light and repositions it as a modality of economic growth.

Zombie Theory

'From the classical polis to the neoliberal camp: mapping the bipolitical regimes of the undead in Dawn Of The Dead, Zomi 2 and 28 Days Later' by Tamas Nagypal in (2014) 13(2) Journal of Cultural & Religious Theory 13 [PDF] is claimed to
map the (bio)political conflicts around the undead body that emerged in early postmodern zombie films and to look at a possible contemporary resolution of these conflicts in the genre’s currently dominant form. The theoretical starting point of the analysis is the Lacanian psychoanalytic concept of the living dead developed by Slavoj Zizek that links the sublime bodies of the undead, situated outside normative social boundaries, to a revolutionary mode of subjectivity. His model allows to read these films as allegories for popular uprisings against the global neoliberal consensus forming in the late 1970s that stroke a heavy blow at underprivileged populations by advocating the dismantling of the welfare state and the deregulation of the market through an increase of privatization and individual responsibility. 
At the time of George Romero’s Dawn of the Dead (1978) and Lucio Fulci’s Zombi 2 (1979) the new status quo is not yet solidified, which is why, I suggest, these films try to locate the problem of the emergent global mass of bodies, deemed superfluous for the entrepreneurial logic of neoliberal production, in the framework of the classical exclusory politics of the city-state threatened by the revolution of the proletariat. It is Fulci’s film which takes an ultra-leftist stance here by supporting, with the risk of appearing ridiculous, the political takeover of the world by its underclass zombies while Romero’s Dawn remains skeptical about the power of the masses, retreating rather to a conservative position of established middle class family values and patriarchy. By contrast, in Danny Boyle’s 28 Days Later (2002), a film that has arguably jumpstarted and renewed the zombie genre for the 21st century after 9/11, the biopolitical apocalypse, i.e. the Western bourgeois citizen’s indistinction from the precarious bodies of displaced Third World masses, is not a threat anymore but an irreversible event of the past which seems to make classical political struggles both on the right and the left pointless. To analyze this shift, I utilize Giorgio Agamben’s concept of the camp as the biopolitical paradigm of modernity to demonstrate how in the permanent state of emergency issued in 28 Days Later because of the zombie-plague, the non-infected human subjects become treated as undead themselves, as bare life in the zone of indistinction they encounter in the refugee camp they seek shelter in. I argue that Boyle even goes a step further in the conclusion of his film presenting a scenario where the successful elimination of the fascist-type prison camp with its sovereign military leader and temporarily fixed boundaries between inside and outside actually leads to the universal extension of the zone of indistinction rather than to its overcoming. With the disappearance of the zombies as exceptions, their status becomes internalized by the film’s surviving characters, indicating the successful transformation of their consciousness about their precarity caused by the absence of the state into self-responsibility aligned with the (re)productive purposes of neoliberal governmentality.
Nagypal goes on to comment
In Dawn of the Dead, the classical political model of the city is applied by the four leading characters when they occupy a shopping mall full of zombies. Their plan is to clear the building, barricade the entrances, and make a space for themselves safely separated from the external threat. Despite their classical aspirations, however, their project is already overdetermined by biopolitical concerns since the aim of their actions, much like the aim of the mall as an institution, is to preserve their biological lives and to survive through enjoying the fruits of consumerism. The real question is, then, how are their lives nonetheless separated from the living dead whom they discover wandering around in the shopping center resembling mindless consumers? The key difference is that in the eyes of the protagonists, the zombies can’t consume/enjoy “properly”. As one of the characters points out, they are drawn to the mall because they used to have good memories about it back when they were human, but now it’s just a reflex, a remainder of social conditioning that they are left with after their consciousness is gone. For this reason, Romero’s zombies, rather than being bereft of symbolic substance resemble what Zizek called “dead while alive” subjects who are fully colonized by the dead symbolic order. In the eyes of the people inside, the zombies are not human precisely because they take the symbolic law (the injunction to consume in this case) all too literally; they are trying too hard, unable to enjoy the heaven surrounding them. They resemble psychotics in the Lacanian sense, people for whom the phallus as the signifier of castration is foreclosed, not effective, making them unable to discern the lack in the big Other that would allow for a critical distance from symbolic norms. By contrast, the four main characters perform their superiority through an ironic denigration of middle class consumption rituals of the post-war era; they pretend to be shoppers, mock the installations of commodities, act as if they were on a date in the mall, etc. 
Such a binary, although it masquerades as the critique of suburban bourgeois culture, betrays both a neoconservative and a neoliberal politics. On the one hand, the living dead stand for the horror of a fully realized democratic promise inherent in the blindly equalizing ideal of consumerism, for the conservative fear that the American welfare state would overturn established social hierarchies. On the other hand, this taking refuge in one’s inner resistance to ideological state apparatuses can be seen here also as the founding gesture of a neoliberal ideology that splits the population in two parts, into rational citizens capable of responsibly taking care of themselves in the absence of the state and social security, and mindless zombies who lack the capacity to do so and who thus stand for a biopolitical excess of precarious bodies useless for the new paradigm of capitalist production. Accordingly, the neoliberal-neoconservative project of the four protagonists entails the neutralization of the threat of a universal zone of indistinction by recreating the binaries of the classical polis through the mockery of the biopolitical situation which nonetheless keeps unconsciously controlling their lives. The human equals ironic consumer versus zombie equals mindless consumer distinction is their attempt to resuscitate the ancient opposition between citizen and slave, but this binary remains fragile, which is apparent in the way it ends up being redoubled along gendered lines within the group of the four survivors as Romero makes Fran, the pregnant woman regress into the stereotypical mindless female consumer who cannot quite elevate herself to the ironic reflexivity of the men in her company.
Christopher Flavin's 'The Walking Dead: The Panoptic Gaze and Ideologic Zombies' in the same issue of JCRT comments that
The image of the zombie horde as a sea of undead ghouls, pressed against the fences and barricades surrounding the final pockets of civilized life, is a mainstay of postmodern zombie films and literature. The specifics of the environment vary, from the posh and almost normalized surroundings of the upper classes in Fiddler’s Green (Land of the Dead), to the stark walls and hurricane fencing of a Georgia prison (The Walking Dead), and even the familiar, cozy environs of the Winchester Pub (Shaun of the Dead). The commonality they share is the fixation of the horde on the living who shelter behind the walls and wire, the handful of humans who attract the living dead and represent the individualization and agency which is effaced by assimilation into the horde. The sound and texture of the horde, which varies with each iteration, is underscored by the unwavering gaze of the undead which remains fixed on those inside the defenses. It is this gaze, the ceaseless observation of the living by the dead and the unblinking assessment and interpolation it suggests, that gives the zombie its power to horrify and fascinate. The watchfulness of the zombies outside the walls is, in turn, mirrored by the self-awareness and introspection of the humans who seek to evade the observation of the dead as they must monitor themselves and those around them in order to maintain some sense of security and individuality. The living must watch themselves as closely as they watch the dead, and as closely as they are watched by the dead. 
This heightened state of awareness, bordering on paranoia, becomes a form of panoticism obsessed with watching in all directions and yet seeing only the reflection of the watchers themselves, which partially explains why many are interested in zombies and their utility as a metaphor in the post-millennial age. The consumptive gaze of the ghoul, multiplied thousands of times through the swarming horde, is a natural vehicle for postmodern concerns about information mining, identity theft, cyber-security, NSA monitoring, and the unending observation of security cameras. The gaze of the horde, like that of the information consuming technologies which surround us, never blinks or wavers; it remains focused on its target until the object of its fixation is either consumed entirely or is incorporated into the horde and made an extension of its ideology. The power of the zombie in this environment comes from its automaton nature, its mechanical expression of its fundamental state, and the potential for complete interpolation and consumption it represents. Yet, the zombie retains a somewhat human appearance; it still looks like the person it once was and evokes sympathy and identification from the living. It is only when the individual zombie is subsumed in the horde, surrenders its last vestiges of individuality and becomes an extension of the post-human mass pressing in on the living from all sides, that the zombie becomes both truly dangerous and truly terrifying. 
Read from a Foucaultian perspective, the isolated enclaves of civilization under constant surveillance by both the undead horde and the living residents mirror the evolution of social discipline and control within a carceral system. This interpretation can be analyzed on two fronts. The first of these is as a rhetoric of control and regimentation which develops among the living who function as their own wardens and must recognize their complicity in their own increasingly regimented positions within society. This recognition and voluntary complicity creates a space in which the visible power structures have been atomized to the individual level and in which a degree of continuous surveillance and reinforcement functions unchecked. While not a truly panoptic scenario in itself, the knowledge of being continually watched and the need to continuously watch each other informs each of the characters and their position within their society. Secondly, and perhaps more interestingly, these structures are frequently overlaid on individual zombies, representing them as individuals rather than parts of the horde, which results in a parallel diaspora among the living and the dead, in which the dead mirror the living and become the focus of the terminal gaze of the observed group. 
While the specific elements and individuals represented differ substantially in their response to the threat posed by the undead masses outside the walls, all of them reflect a conscious or unconscious understanding of the need for regiment and enforced order, the effective isolation of the individual and the group from the outside world, and the ingrained need for vigilance on the part of the individual to insure the maintenance of order in the face of externalized chaos. At first glance, the scenarios presented by many zombie films and novels would appear to be versions of Bentham’s panopticon, environments in which the members of the community exist under the potential for constant scrutiny from without and where the potential for the observation of transgressions places the onus of complicity and regimentation on the individual in order to maintain social order and discipline. While this is, in a limited sense, accurate, it is also an incomplete reading. The stratification of society, the degree of isolation imposed on the individual and the community, and the distinctions between the communities inside the walls and those outside reflect aspects of the disciplinary systems outlined by Foucault. However, the practical application of these systems in film, fiction, and in the obsequious zombie walk creates a space in which identity and cultural positioning are questioned and deliberately disrupted. 
The origin of the disruption represented by the modern zombie is much closer to the circumstances described by Michel Foucault in response to a seventeenth century plague, in which a town deliberately isolates itself and regiments its citizenry in an effort to prevent the spread of contagion. The power dynamics which Foucault examines provides a lens for similar regimentation among the survivors of the zombie apocalypse. The plague comparison itself is particularly apt in light of the explanation provided by the films for the existence of the living dead. In the case of Romero’s films, the explanation is provided by unexplained extraterrestrial radiation, while films such as 28 Days Later are plagued by ghouls who are infected with “rage,” which is transmitted through the blood and saliva just as the virus of World War Z is transmitted. The viral, infective metaphor is particularly apt with the technological, post-human implications of the zombie. The metaphor of infection removes human agency from the equation and further alienates the undead from their living counterparts. These vectors underscore the fact that the undead in such films, while they fall securely within the genre of zombie films, are not, technically speaking, zombii or zombies. 
The key difference between the classic zombie and the modern undead is the ideological and subjective positioning in which they both engage. While the terms “zombie,” “living dead,” and “undead” have effectively become nearly interchangeable in the popular culture, the distinction between the three is important here, as the living dead are “technically speaking, not zombies … Romero’s ghouls are incapable of production (including social reproduction) because they lack ideological normaltivity.” By extension, the same claim can be made of the undead in the majority of such films that draw their inspiration from Romero’s work. The normalitivity referred to can be quantified through the production value the undead represent either economically or ideologically, as they are deployed within the film and which is summarily disrupted by the environment in which it is staged. 
The disruption of the economy and ideology of the “normal” world by the individual, albeit because of circumstances beyond their control, is closely aligned with the loss of individual agency and identity. It is not the transition through death the viewer or the character fears, but rather the erasure of ideological independence and the appearance of autonomy. As Stanley Solomon notes, commenting on Romero’s Night of the Living Dead, the terror in the film does not spring from either the existence of the living dead or their distorted mirroring of the living, but rather their implacable nature, the persistence with which they pursue and remain, and the fact that they will eventually succeed in violating the boundaries which keep them at bay and contaminate the living, regardless of the resistance they meet. The threat of sustained violation, penetration, and consumption which begins with their surveillance of the living and corruption of the social order from a distance both makes the eventual collapse of the barriers more horrific and cathartic. While the living will be transformed and subsumed by the horde, the erasure of the individual can be seen as darkly liberating if for no other reason than it ends the threat of constant observation and the rigid discipline the living are forced to maintain if they hope to remain separated from the undead. 
The relentlessness of the zombie, their transgression of social taboos and rejection of the imposed social order, represent an essentialist reduction of the individual to their most basic drives and appetites. This specter of autocannibalism, the consumption of the representative self by the projected self on multiple levels, and the implacability of their desire form the sources of terror that underscore the discipline imposed on the living. Rather than encouraging antisocial behavior, the knowledge of the presence of the living dead surrounding the living on all sides, and the collective confirmation of their potential for observing and subsuming the living serves to unify group identity and social norms, thereby reinforcing the perceived social order and self- monitoring within the human cities as a refutation of this drive.
'Post-Industrial Property' by Julie E. Cohen comments -
The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property is property is instructive. Copyright and patent scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of contemporary intellectual property debates about the appropriate extent of rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that intellectual property is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model — that in the post-industrial era of wealth production, the cosmology of property can no longer place terra firma at the center.
This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the intellectual property question. Property in intellectual goods — post-industrial property — resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for intellectual property must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within intellectual property ecologies; and the widespread use of licensing to delineate rights and obligations.


In Palmer v Nationwide News Pty Ltd [2014] QSC 174 the Queensland Supreme Court has determined that all but one of the three articles published by The Australian newspaper regarding colourful entrepreneur and MP Clive Palmer and his mining company, Mineralogy, were incapable of conveying the imputations pleaded by Palmer in defamation action against the newspaper and its journalists. The QSC held that most of the articles were regarding Mineralogy and did not relate to Mr Palmer.

06 August 2014


'Let the Sunshine in: Why Countries Adopt Freedom of Information Acts' by Patrick Brown, Jerg Gutmann and Stefan Voigt comments
Over the last decade, some fifty countries around the world have adopted Freedom of Information Acts (FOIAs), which allow citizens to force the release of information from public offices. Here, we are interested in analyzing the determinants for adopting FOIAs. We apply a set of survival analysis techniques to identify the cultural, political and economic determinants that lead countries to adopt a FOIA. We further distinguish the adoption of constitutionally entrenched information rights from weaker forms of self-commitment to government transparency. We find that there are marked differences in the variables explaining the existence of FOIAs and their inclusion in the constitution.
Governance, more recently also referred to as quality of government, plays a prominent role in contemporary discussions of institutional reform and economic development. If one aims at designing institutions that ensure impartiality in the exercise of public authority, the transparency of government actions is a key ingredient. While a free media is a central instrument of civil society to provide transparency, governments themselves can contribute to the transparency of their actions – and particularly those of the administration – by promising citizens access to information. Freedom of information acts (FOIAs) guarantee this access in different shapes and to a varying degree. A FOIA regulates the right to access information that is held by public authorities. Individuals and groups covered by a FOIA have the right to request and receive information that is deemed public record. 
By the end of 2012, 91 countries the world over had adopted FOIAs. Countries in Europe and North America are at the forefront with an adoption rate above 80 percent, followed by a 70 percent adoption rate in Latin America. Yet, to this day, no country in the Pacific region has implemented such a law and only some have on the African continent. Looking beyond the mere introduction of laws and ordinances, we find that 57 countries worldwide have even entrenched freedom of information rules in their constitution. Again, over 50 percent of the countries in Latin America belong to this group, but no countries located in the Caribbean. The current distribution of FOIAs, either as simple laws or constitutional clauses, is illustrated in Figure 1.
While Sweden was the first country to adopt a FOIA in 1766 and remained the only country for over a century, FOIAs have spread rapidly over the past ten years with almost 50 countries adopting such laws between 2001 and 2010. xxxxx The rise of “good governance” occurred simultaneously with the rise of FOIAs. In good governance, both accountability and transparency are key. FOIAs are to increase the transparency of the administration and thereby improve the accountability of the entire executive. FOIAs can be interpreted as one means to achieve good governance and this paper would, hence, constitute a contribution to the governance literature. As we are interested not only in the introduction of FOIAs, but also in their possible entrenchment in the constitution, this paper also seeks to contribute to a recent literature on endogenous constitutions (Hayo and Voigt 2011, 2013). 
Listening to advocates of FOIAs, one might get the impression that these laws are some kind of panacea. Banisar (2006), e.g., argues that FOIAs are a prerequisite for informed democratic participation. Further, they would allow countries in transition to distance themselves more credibly from their recent past. By allowing individuals to protect their own rights and by curbing government mismanagement and corruption, they could also increase the level of trust that citizens have in their government. 
In one of the first studies concerned with the effects of FOIAs, Islam (2006) finds a positive correlation between two indicators for FOIAs on the one hand – namely their mere existence as well as the number of years that they have been in existence – and a set of governance indicators on the other hand. Her results seem to indicate that by introducing FOIAs, governments can promote good governance. Using instrumental variables regression, she finds that better governments do not necessarily promote more economic transparency and they are not more likely to adopt FOIAs. However, in the absence of suitable instrumental variables for FOIAs, the question of whether greater transparency promotes better governance cannot be answered conclusively. More recently, Costa (2013) finds that countries that have adopted a FOIA subsequently experience a decrease in the quality of governance and an increase in perceived corruption. Prima facie, the latter results appear more credible because they are based on a differences-in-differences approach, whereas Islam presents simple correlations based on a cross-section and is, hence, not able to establish any causality. 
These results are somewhat contradictory, but it seems that FOIAs can have important and far-reaching effects. This is why we are interested in the determinants that lead countries to introduce a FOIA. Taking into account that FOIAs can be adopted as an ordinary law (FOIALEG) or in a country’s constitution (FOIACON), we ask two questions: (1) What are the determinants for the adoption of FOIAs tout court? And (2) what are the determinants for the inclusion of FOIAs in a country’s constitution? Under the assumption that constitutions are more difficult to amend than introducing ordinary legislation, giving FOIAs constitutional status could be indicative of the importance attributed to the promises contained in FOIAs. 
Banisar (2006) also speculates on possible motives for the introduction of FOIAs. He suggests three reasons, namely (1) corruption and scandals, (2) international pressure, and (3) modernization and movement towards an information society. These reasons would reflect an increased demand for transparency from within civil society as well as from other countries and a reduction in the costs of processing information and thus of supplying transparency. 
Along the lines of the “varieties of capitalism” literature à la Hall and Soskice (2001), McClean (2010) argues that the difference between competitive vs. coordinated market economies is a crucial determinant of transparency: The more coordinated a country’s economy is, the less transparent it will likely be. In coordinated economies, the most powerful interest groups should be hostile to sharing their exclusive access to the government. McClean illustrates this political economy-argument and its limitations by drawing on the U.S. and the U.K. as examples of competitive economies and Germany as well as Sweden as examples of more coordinated economies. 
The only paper to date that systematically analyzes the determinants of FOIA- adoption in a large cross-section of countries is Berliner (2014). He argues that the adoption of FOIAs provides political and expressive benefits for political actors and conjectures that FOIA-passage is more likely in countries where political competition and uncertainty create an incentive to institutionalize transparency. As political actors are facing strong opposition and a highly competitive political environment, political benefits can supposedly be derived from access to information in the future. Hence, when the likelihood of re-election is low due to intensive political competition, the incentive to institutionalize transparency would be high. Expressive benefits could be derived from earning the recognition of international stakeholders. When both these benefits outweigh the substantial costs for political actors – namely an increased risk of exposure of corrupt activity and the loss of profits from having a monopoly on government information – then the likelihood of adoption is – according to Berliner – particularly high. However, one could make the argument regarding political competition in exactly the reverse direction: When the potential costs of losing an election are high due to an uncompetitive political system, a risk averse government will be tempted to insure itself against the loss of political control (analogous to Ginsburg’s (2003) argument regarding judicial review). Politicians might consequently introduce a FOIA even at the cost of giving up some of the rents from their time in office. 
Berliner (2014) uses an event history approach to model the timing of FOIA adoption across countries. He analyzes the post-Cold War period from 1990 to 2008 and confines the analysis to developing countries, arguing that government transparency was already high in the most developed countries before the formal adoption of FOIAs. Many autocratic regimes are removed from his sample. His empirical results seem to support the role of political and expressive benefits in explaining variation in the timing of FOIAs. Furthermore, Berliner (ibid.) shows that transnational civil society, democratic transitions and IMF conditionality have no systematic effect across countries. In an attempt to elucidate the determinants of FOIAs, Berliner’s pioneering contribution on FOIAs has put a magnifying glass on post-Cold War developing countries. However, his work has some limitations, including (1) limited geographic scope, (2) a limited time frame and, most importantly, (3) a questionable operationalization of some determinants, including his modelling of spatial and time dependence. We seek to improve upon some of these limitations and provide a more comprehensive analysis based upon survival analysis techniques applied to a sample of 136 countries.
The rest of the paper is organized as follows: In Section 2, we present our theoretical framework and develop a number of hypotheses. Section 3 presents the data and the empirical model. In Section 4, the results are discussed. Section 5 concludes and provides an outlook.

05 August 2014


'Six theories of neoliberalism' by Terry Flew in (2014) 122(1) Thesis Eleven 49–71 comments
This article takes as its starting point the observation that neoliberalism is a concept that is ‘oft-invoked but ill-defined’. It provides a taxonomy of uses of the term neoliberalism to include: (1) an all-purpose denunciatory category; (2) ‘the way things are’; (3) an institutional framework characterizing particular forms of national capitalism, most notably the Anglo-American ones; (4) a dominant ideology of global capitalism; (5) a form of governmentality and hegemony; and (6) a variant within the broad framework of liberalism as both theory and policy discourse. It is argued that this sprawling set of definitions are not mutually compatible, and that uses of the term need to be dramatically narrowed from its current association with anything and everything that a particular author may find objectionable. In particular, it is argued that the uses of the term by Michel Foucault in his 1978–9 lectures, found in The Birth of Biopolitics, are not particularly compatible with its more recent status as a variant of dominant ideology or hegemony theories.It instead proposes understanding neoliberalism in terms of historical institutionalism, with Foucault’s account of historical change complementing Max Weber’s work identifying the distinctive economic sociology of national capitalisms.
There can be little doubt about the take-off in the use of the term neoliberalism. From being a term that was rarely used prior to the early 1990s, it has become a ubiquitous concept in critical discourse. Data from the Google ‘culturomics’ app – which undertook lexical analysis of the 15 million-plus books that had been scanned into the Google library in 2012 – identified a nine-fold increase in identification of the word ‘neoliberalism’ in its collection between 1990 and 2007 (see Figure 1). This is easily confirmed byany database search: a keyword search of my own university’s electronic databases drewme to 28,126 results: articles in question referred to ‘enjoying neoliberalism’ (Dean2008); ‘burying neoliberalism’ (Andrews 2009); ‘narrating neoliberalism’ (McNeill2005); ‘magical neoliberalism’ (Fuguet 2001); ‘neoliberalism and literary discourse’(Costa 2010); ‘neoliberalism, performativity, and research’ (Roberts 2007); ‘queering Chineseness, unthinking neoliberalism’ (Wong 2008); ‘The Soul of Neoliberalism’(Moreton 2007); ‘the end of neoliberalism’ (Grantham and Miller 2009), and much more. The range of academic journals and disciplinary bases from which such articles appear is also highly eclectic. While neoliberalism as a concept has its origins in economics, its contemporary influence has extended far and wide across the humanities and social sciences (cf. Kipnis 2007; Mudge 2008; Boas and Gans-Morse 2009). It is the inclusiveness and apparent interdisciplinarity of the term neoliberalism that accounts for part of its appeal. The extent to which it has displaced earlier terms can be seen from Figure 1 in the relationship of the term to the term ‘monetarism’. As the figure indicates, monetarism was a widely used term in the 1970s and 1980s, particularly associated with critiques of the policies of the Thatcher government in the UK and the Reagan administration in the US. Yet the use of the term declined in the 1990s, and its decline coincided with the rise of neoliberalism as a common term. One of the difficulties with a concept such as monetarism was that, at some level, it does require an understanding of technical aspects of economic theory (particularly in the relationship it posits between the money supply and interest rates) that is unlikely to be possessed outside of the economics discipline. By contrast, a working understanding of what neoliberalism is seems to have developed in a range of disciplines, with a surprisingly strong degree of confidence about what the concept means. The term ‘neoliberalism’ has been able to move easily through the arts and humanities disciplines, in ways thatterms grounded more specifically in economics, such as monetarism, or politics, such asthe ‘new right’, cannot.
In this paper, I attempt to give some order and coherence to these many and varied used of the term neoliberalism. I will begin by noting that much of the usage of the term is intellectually unsustainable, particularly where it functions as an all-purpose denunciatory category or where it is simply invoked as ‘the way things are’. I will then consider two more sustainable uses of the term: as a technique of government prevalent in the Anglo-American economies, and as the currently prevalent form of the dominant ideology. I draw attention to debates about dominant ideology theories before considering an approach derived from the work of Michel Foucault, but which grounds his work more specifically in a Marxist approach (Marxist-Foucauldians), alongside some more specific observations on Foucault’s The Birth of Biopolitics itself (Foucault 2008). In order to retain any utility, it is argued that uses of the term neoliberalism have to be,as Mitchell Dean (2010: 1) has noted, ‘circumscribed to a limited range of schools or forms of thought and . . . practices and policies concerned with the construction of market and market-like relations’ in the political-economic space. Foucault’s account of neoliberalism provides an interesting case study of the relationship between ideas and institutional change, developed along what I would describe as more Weberian than Marxist lines. It points towards a historical institutionalism that enables important comparative analysis of political-economic formations to be undertaken. In using the term in this way, however, a strong implication is that it needs to be steered away from using it as a synonym for neo-Marxist hegemony theory, or as the dominant ideology of global capitalism. If it is simply a synonym of this sort, then it is a term best abandoned as having had its intellectual currency devalued through excessive use.

04 August 2014

Jones v Tsige

‘Privacy, Corrective Justice and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario’ by Thomas D C Bennett in (2013) 59 McGill Law Journal 49 [PDF] comments
Elaboration of the law relating to invasion of privacy has been proceeding apace in the common law world in recent years (for example, in England and in New Zealand). As such, we might see recent development in this area of the law in Canada as an instance of playing catch-up. Such a view would, however, be wide of the mark. For when I scrutinize the recent Canadian case of Jones v. Tsige, I find that it brings into focus issues that require more judicial and academic work across the common law world (and indeed beyond). These issues are the process of judicial elabo- ration of the law (“incrementalism” to common lawyers), the moral impulses at work in the law, and the relevance of imagination to its operations. I will examine each of these matters in detail below. And, at the conclusion of this essay, I will use them to point up a contrasting tendency for judges and, in particular, the English academic community to get bogged down in matters of technical detail and to lose sight of these large issues that invest this branch of the law with politico-legal significance. 
Jones is particularly worthy of study because it represents a significant incremental step for the common law: the recognition of a novel head of tortious liability. That this has taken place in order to secure protection for a controversial interest, privacy, only adds to the case’s importance. 
By way of comparison, in England a (more limited, information- focused) tort of “misuse of private information” has been recognized in recent years, and the broad academic consensus is that this English tort is the result of the incremental development of the older equitable doctrine of confidence. The “intrusion upon seclusion” tort recognized in Jones, however, has developed very differently; it has not evolved from a pre- existing cause of action. Key to this is the fact that in Jones, Justice Robert J. Sharpe (who gives the lead judgment) makes an appeal to “Charter values” as a justification for extending the scope of tortious liability to cover intrusions upon the plaintiff’s privacy. Broadly speaking, this idea bears significant similarity to the notion of “indirect horizontality” under the Human Rights Act in the U.K. But Jones is not simply a matter of the indirect horizontal application of the Canadian Charter of Rights and Freedoms; that horizontality is supplemented by an appeal to another overarching principle which underpins tort law itself: corrective justice. I will explore the role that corrective justice plays in the judgment and will also seek to contribute to a wider academic debate on the position that this concept occupies in tort law more generally. 
We will see in Justice Sharpe’s judgment in Jones a particular imaginative process that can be analyzed by reference to a notion of “legal imagination”. Justice Sharpe’s exercise of the “legal imagination” leads him to identify and make use of a particular incremental method to achieve the development he seeks. We will see that he appeals to an established principle underpinning tort law generally: its “protective purpose”. I will also note the limits of the (Canadian legal) system in which Justice Sharpe is exercising imagination and delineate the edges of the “space” within which he is operating. Justice Sharpe recognizes that, in order to deflect the most vehement criticism that might be levelled against his judgment, he must point to at least some doctrinal evidence that tort law may protect against intrusions upon privacy. It is noteworthy in this respect that he states that the court has “recognized” rather than created the new tort. Moreover, his assertion that the court should develop the common law in accordance with Charter values pays heed to the notion that higher-order constitutional principles ought to be reflected in burgeoning tortious development while recognizing that the limits of this are to be set by higher courts (in this instance, the Supreme Court of Canada). Finally, I will consider the incremental nature of the development which Justice Sharpe pursues and, ultimately, achieves. 
The essay concludes that this development of tort law may properly be classed as an incremental step since it fits two academically-recognized and judicially-accepted models of incrementalism. As such, I will demonstrate how Justice Sharpe’s judgment in Jones may be defended against accusations that he has stepped beyond the role of the courts and intrud- ed into the realm of the legislature. It is also worth mentioning at the outset one aspect of the case with which this paper is not concerned. This is the measure of damages that the court ultimately awarded the plaintiff in Jones and the method by which Justice Sharpe came to his decision on quantum. While it is doubtless an important aspect of the case in its own right, this essay does not intend to engage with it. The reason for this is that the essay focuses on the way in which liability may be established for a novel tort, as opposed to discussing the remedies that may then become available.