03 October 2015

Perspectives on the organ trade

'Commerce in Human Organs: A Study of Jewish Legal Themes Underlying a Contemporary Controversy' (Albany Law School Research Paper No. 1 for 2015-2016) by Sarah Beth D'Alessandro seeks to
highlight the various legal concepts and themes present in contemporary debates amongst Jewish legal scholars and analyses performed according to traditional Jewish law. This paper discusses the legality of transferring an organ regardless of the motivation or any accompanying compensation including issues related to wounding oneself in the case of inter vivos transplantation and issues relating to treatment of dead bodies in the case of postmortem transplantation. This paper discusses the permissibility of payment and rules governing payments as well as various social policy concerns such as motivating desired behaviors, paternalistic protective measures and the tension between individual concerns and communal concerns.

Maori Constitutionalism

'To Work Out Their Own Salvation': Māori Constitutionalism and the Quest for Welfare' by Māmari Stephens in (2015) 46 Victoria University of Wellington Law Review comments 
 New Zealand recently celebrated 75 years of the implementation of the welfare state in 1938. While debate continues about the nature and effectiveness of state welfare provision, welfare is arguably a matter of constitutional concern in New Zealand. Further examination of New Zealand legal history also shows that the welfare of Māori is indeed a matter of deep constitutional concern to Māori, who have consistently sought legislative and extra-legislative ways to have public power used for broad Māori welfare concerns. It is possible to identify a kind of Māori welfare constitutionalism at work, that is arguably in tension with the thinking and practice that produced the welfare state.


The taut 'Proving Genocide: The High Standards of the International Court of Justice' by Peter Tzeng in (2015) 40(2) Yale Journal of International Law comments
 On February 3, 2015, the International Court of Justice rendered a final judgment in Croatian Genocide. As in Bosnian Genocide, the Court failed to justify the high standards of proof it applied to proving the dolus specialis of genocide.
Tzeng concludes
The Court in Bosnian Genocide and Croatian Genocide, however, appears to have applied the high standard without the moderating principle. Although it is widely recognized that proof of dolus specialis, a mental state, is often in the exclusive control of the perpetrator, the Court in both Bosnian Genocide and Croatian Genocide apparently did not allow more liberal recourse to inferences of fact and circumstantial evidence, as it strictly applied the "only reasonable inference" test.
Defining standards of proof is not a trivial exercise. The Court's dispositions in Bosnian Genocide and Croatian Genocide arguably turned on the standards of proof, which exculpated the states in question from liability for unforgivable genocidal acts. This is not to say that the Court's standards were too high; that debate has been ongoing for years. But if the Court wishes to follow Judge Higgins's recommendation to establish consistent standards of proof, then at the very least the Court must accompany those standards with well-reasoned justifications. Otherwise, we are left wondering whether consistent standards are any better than inconsistent ones

01 October 2015

Confidentiality in APS contracts

The Australian National Audit Office has released its report on Confidentiality in Government Contracts: Senate Order for Departmental and Entity Contracts (Calendar Year 2014 Compliance).

The report summary states -
The Senate Procedural Order of Continuing Effect: Departmental and Agency Contracts (the Senate Order/the Order) was introduced in 2001 to improve public access to information about government contracting. At the time, the level of information available to the Parliament and to the public about government contracting had not kept pace with the increased rate of contracting out.
Successive governments have agreed to comply with the Senate Order and its subsequent amendments. Under the Order, Ministers must table letters of advice that all entities which they administer have placed on the Internet lists of contracts valued at $100 000 or more, by no later than two calendar months after the end of each financial and calendar years. These lists are to: include the details of each contract1 which has not been fully performed or which has been entered into during the previous 12 months; and indicate whether the contracts contain confidentiality provisions or other requirements of confidentiality, and a statement of the reasons for the confidentiality.
The Department of Finance is responsible for providing entities with policy guidance on procurement, including confidentiality in procurement and compliance with the Order. This guidance is set out in: Resource Management Guide No. 403 (RMG 403)—Meeting the Senate Order on Entity Contracts which articulates the rationale for the Order, outlines its requirements and is designed to provide guidance to support entities in developing their Senate Order Internet listings; and Buying for the Australian Government, Confidentiality Throughout the Procurement Cycle (the Guidance) which contains advice on managing confidentiality throughout the procurement process, and includes the Confidentiality Test that is designed to assist entities to determine the appropriate inclusion of confidentiality provisions in contracts.
To support the Order, the Senate also requested in 2001 that the Auditor‑General annually examine a number of the contracts reported to contain confidentiality provisions, and report any inappropriate use.
Audit objectives and scope
The objective of the audit was to assess the appropriateness of the use and reporting of confidentiality provisions in a sample of Australian Government contracts. The criteria were: entities published contract listings on their websites and Ministers’ letters were tabled in accordance with the content and timing requirements of the Order; confidentiality provisions were used appropriately in a sample of contracts which were reported to contain confidentiality provisions by the selected entities; and the selected entities accurately reported contract information, including the use of confidentiality provisions, in the contract listings and on AusTender.
The selected entities for the audit were: Department of Finance (Finance); Department of the Prime Minister and Cabinet (PM&C); Department of Social Services (DSS); and Department of Veterans’ Affairs (DVA). The sample of contracts was taken from the selected entities’ Senate Order listings for the 2014 calendar year and AusTender. Two entities DSS and PM&C had significant machinery of government changes during 2014.
Overall conclusion
The Senate Order was introduced to improve public access to information about government contracting. The results of this audit indicate that while the reported use of confidentiality provisions is low, entities’ reporting practices are not always adequate or reliable enough to meet the requirements of the Order. Transparency of contract information can be affected as a result.
The 2014 Senate Order listings contained 41 469 contracts for goods and services totalling $216.3 billion, of which 1 855 contracts (4.5 per cent) valued at $30.1 billion (13.9%), were reported as containing confidentiality provisions. The reported use of confidentiality provisions by entities was in keeping with 2013 levels, and continues to reflect a significant decline from the 24 per cent of contracts reported in 2001, the year the Order was introduced.
Entities are expected to support their Ministers to comply with the Senate Order though publishing contract listings in accordance with content and timing requirements. This audit found that entities did not always meet these requirements and Ministers could be better supported through entities publishing lists by the due date and verifying that contract details are accurately reported. In this respect in 2014, the ANAO observed: overall entity performance in meeting the content requirements of the Order had declined in comparison to 2013—only 24 per cent of entities were fully compliant; for the four entities examined in detail by the ANAO, none of the contract listings fully complied with the Order’s publishing requirements. The main reason for non-compliance was the reporting of contracts outside the relevant contract period; and a small number of entity listings (15 per cent) were published late (within one month of the due date), and as at 30 June 2015 one entity, had not published a listing or a notice that no relevant contracts had been entered into.
Despite the low proportion of contracts reported as containing confidentiality provisions, specific confidentiality provisions in contracts continue to be incorrectly used and reported in 2014. The ANAO’s examination of a sample of 101 contracts reported to contain confidentiality provisions, found that for 80 per cent of the contracts the use of confidentiality provisions did not comply with the Guidance or was misreported. The level of inappropriate use has increased by 17 per cent compared to the 2013 Senate Order compliance audit. ...
Confidentiality provisions in government contracts can impede accountability and transparency in government purchasing. A request for specific information to be kept confidential must be assessed against the Confidentiality Test criteria and entities should make sure decisions to include confidentiality provisions are documented. In this respect, the audited entities were not able to provide documentation supporting their assessment of suppliers’ claims against the Confidentiality Test, and reasons for agreeing for the information to remain confidential.
The results of this audit indicate that processes to capture information about basic contract details and the reporting of existence of confidentiality provisions needs to improve. Entities currently must report on procurement contracts for the purposes of the Senate Order and separately on AusTender to meet requirements of the Commonwealth Procurement Rules. Of the 2 171 procurement contracts listed in the audited entities’ Senate Order listings, 1 936 (89 per cent) had a corresponding entry in AusTender. In the ANAO’s sample only 17 per cent of contracts were found to be accurately reported, taking into account the basic contract information and the correct type and reason for confidentiality provisions.
The ANAO has previously observed shortcomings both in the application of the Confidentiality Test and in the accuracy of Senate Order and AusTender reporting. The results of this audit show that there continues to be scope for entities to improve their assessment of suppliers’ claims for confidentiality of contractual information and implement more rigorous quality assurance processes for reporting confidentiality provisions in contracts.
The Department of Finance supports entities to comply with the Senate Order through providing whole-of-government procurement guidance and communicating the key requirements of the Order. Opportunities exist for Finance to improve advice through direct reference to the Confidentiality Test in the Commonwealth Procurement Rules, and disseminating better practice examples of entity assurance mechanisms.
The ANAO has made three recommendations to assist improving the use and reporting of confidentiality provisions. ...
These recommendations are based on findings at the audited entities and are likely to be relevant to other Australian Government entities. Therefore, all Australian Government entities are encouraged to assess the benefits of implementing these recommendations in light of their own circumstances, including the extent to which the recommendations, or parts thereof, are addressed by practices already in place.
Recommendation No. 1 Para 3.16 To improve the appropriate use and reporting of confidentiality provisions in contracts by entities, the ANAO recommends the Department of Finance revises guidance for confidentiality in procurement by including: (a) reference to the Confidentiality Test in the Commonwealth Procurement Rules; and (b) strengthening current guidance to include examples of entity assurance mechanisms. Department of Finance response: Agreed
Recommendation No. 2 Para 3.20 When considering requests to keep information contained in a contract confidential, the ANAO recommends that entities implement procedures that require: (a) a case-by-case assessment of supplier requests against the Confidentiality Test; and (b) adequate documentation of the reasons for agreeing to keep specific information in contracts confidential. Responses from audited entities: Agreed
Recommendation No. 3 Para 4.17 To improve the quality of information on AusTender, the ANAO recommends that entities implement appropriate quality assurance processes upfront at the point of contract creation to confirm the completeness and accuracy of reported contract information. Responses from audited entities: Agreed

Personhood Tiers

'Tiered Personhood and the Excluded Voter' by Atiba R. Ellis in (2015) 90(2) Chicago-Kent Law Review 463 comments
The modern discourse critiquing vote denial policies in the United States has taken two distinct paths. The first and more recent path has been to critique the effects of legislation like voter identification laws, narrowed early voting opportunities, and similar enactments to hyper-regulate the voting process, effecting, as some argue, the ability for the poor, the elderly, and minorities to vote. The second strain of this voter suppression discourse relates to the express exclusion of persons who have been convicted of felonies from the exercise of the franchise. While both vote denial by effect or by express disenfranchisement have raised numerous civil rights concerns, few scholars have treated these issues in tandem or examined the ideological interconnections between these doctrinally distinct voter suppression doctrines. This essay will use the lens of “tiered personhood” to conceptualize the dual aspects of the voter denial problem as a unified phenomenon of political subordination intended to exclude certain persons from the political community. This essay argues that this voter suppression dynamic creates statuses as between persons based upon the ability to exercise complete or less than complete constitutional rights driven by an ideology of exclusion of those deemed “un-worthy” of full membership in the political community, thus excluding those persons from full citizenship. With the problem framed in this way, the essay will briefly use this lens to analyze the disparate treatment of convicted felons and the disparate impact of voter suppression legislation as parallel mechanisms that serve the same end — the maintenance of an American political underclass. The essay will then propose a sketch of a new model for subverting this underclass dynamic — a communitarian re-conception of American political community based on a premise of inclusion within that community rather than a dynamic of exclusion.

29 September 2015

Holmesian Legal Pragmatism

'Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey' by Allen Mendenhall in (2015) 48(1) The South Carolina Review 93 comments
Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey. 
Mendenhall concludes
It is difficult to imagine the emergence of legal pragmatism as a named discipline or a celebrated method apart from the contributions of Peirce, Dewey, or James. The jurisprudence of Benjamin Cardozo and Posner, among others, seems to have cobbled together its substance from these pragmatists who inspired Holmes. Nevertheless, Posner notes a difference between philosophical and legal pragmatism. Contra philosophical pragmatism, which Posner deems “orthodox” pragmatism, legal pragmatism focuses on the everyday. “Everyday pragmatists,” Posner clarifies, “tend to be ‘dry,’ no-nonsense types” (Posner, Law, Pragmatism, and Democracy 12). More often than formalist judges, judges who are pragmatic implement anti-foundational and precedent-based techniques to transform the useful or the convenient into the legal or operative. “An everyday-pragmatist judge,” Posner submits, “wants to know what is at stake in a practical sense in deciding a case one way or another. . . . [He] does not deny the standard rule-of-law virtues of generality, predictability, and impartiality, which generally favor a stand-pat approach to novel legal disputes. He just refuses to reify or sacralize those virtues. He dares to balance them against the adaptationist virtues of deciding the case at hand in a way that produces the best consequences for the parties and those similarly circumstanced” (Posner, Law, Pragmatism, and Democracy 12).
A pragmatist judge might therefore dissent on the grounds that the majority opinion abstracts into airy flourishes about “justice,” “rights,” and “equity.” Opinions that turn on such loaded terminology, the pragmatist judge might say, reveal more about judges’ personal ideologies than about the meaning of the terminology.
Legal pragmatism would seem to be, in this respect, both common sense and no-nonsense. Certainly that is how Holmes thought of the law. “[T]he only definition of law for a lawyer’s purpose,” the English jurist Sir Frederick Pollock wrote to Holmes, “is something which the Court will enforce” (Pollock to Holmes 3). Holmes agreed with his friend and pen pal. It was not that he considered the law to be without philosophical substance or that he delighted in its inevitable malleability; it was that he had it out for jurists who overstated the ontology of the law and glorified the law as the earthly manifestation of divine purpose or as a majestic surrogate for morality.
Law did not work this way; it was not divorced from the mundane social sphere or autonomous from ordinary, routine human interactions. Indeed, it derived from those things. Lawsuits with specific facts and murky issues came before the courts, which assessed the arguments of both sides and extracted a general rule based on the evidence and consistent with the principles expressed in patterns of established precedent. The actions of a few people were thereby plugged into a vast network of human relations spanning different times and places; what linked the people and places was the general rule, which had been in circulation long before the parties disputed. When they initiated suit, the parties did not know which general rule the judge would apply to their case, but their aim was to present the facts in such a way as to implicate the general rule that would allow them to prevail. In essence, the parties knew the facts of their case and had an assortment of general rules to choose from, and based on the precedents related to their claim, they predicted what the judge or jury would need to hear in order to find or rule in their favour. Legal pragmatism looks at this process and does not see anything ontologically or epistemologically magnificent. It looks at this process and sees, rather, a plain representation of the way things are and a possible prophecy about the way things might be.
As a link between the old and the new, Holmes appreciated the ways in which the law, like history itself, unfolds in stages and in accordance with community consensus. He had witnessed firsthand the stark cultural transitions in New England before, during, and after the Civil War, and he understood the importance of adjusting to change, or rather of accommodating it. He neither liked nor disliked the concept of change; he simply recognised that it was what it was and would happen despite anyone’s preferences for or against it.
That became his take on the law as well: it was neither good nor bad; it just was. Some people sought to remake it—they were supposed to be the legislators and their constituents — but whatever passed as law at any given moment was just a temporary place-marker until something different came along. This does not mean that he did not welcome certain changes, only that he did not see those changes as a step towards realizing an abstract teleology. When other justices or jurists seemed to champion an absolute or teleological position about the law, Holmes knew he had to dissent, and to dissent well, lest the law itself become fixed in a maladapted state from which it could not recover. By the time 1881 came to a close, Holmes had made his mark. The Common Law had been favorably received; it earned him the reputation of an accomplished jurisprudent and guaranteed his continued friendship with such renowned legal figures as Pollock. It also made him a discussion point among important political figures and public intellectuals.
1882 ushered in a new phase of his life. He began to adjust to the duties and responsibilities of life on the bench. His lifelong hero Emerson died that year, and as a novice justice on the highest court in Massachusetts, he was faced with rare opportunities to give Emersonian expression to pragmatic principles that would obtain to the people of that state.
Emerson’s ideas remained persuasive to Holmes and others inasmuch as they addressed theories that had not gone away. But Emerson’s language no longer conveyed the convictions of the age and no longer registered a perspective familiar to the younger generation. The country was asking questions, and the answers were not to be found in pure transcendentalism. Holmes realized this and so sought to repackage Emerson in idioms that the current era could recognize and through a medium that would have a direct impact on the problems concerning Americans. Eventually he would sit on the United States Supreme Court, and from that revered post he would begin to promulgate and preserve his lively variety of pragmatism — which synthesized Emerson, Peirce, Dewey, and James — in the legal canons of the country
Mendenhall'a 'Oliver Wendell Holmes Jr. and the Darwinian Common Law Paradigm' in (2015) 7(2) European Journal of Pragmatism and American Philosophy 129-151 is characterised as building on
recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir Matthew Hale, and Sir William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: ‘What’s the Use in Calling Emerson a Pragmatist?’.
'Past Present' (University of Miami Legal Studies Research Paper No. 2015-14) by Patrick Gudridge is described as
the beginnings of a much more ambitious exploration of the Holmes opinion in Moore v. Dempsey and the question of what we might make of it. Moore, I want to argue, is an under-appreciated gateway, points to a notably profound and sober passage back and forth across a longer, accumulating run of pronouncements and possibilities within American constitutional law “writ large” (borrowing Larry Tribe’s apt phrase).
Moore addressed events in Phillips County, Arkansas, beginning in 1919 - the “Elaine Massacre,” white killings of African American tenant farmers and their families consequent to a union organizing effort, deaths (we now estimate) of maybe 243 African Americans and one to five white participants: perhaps the single bloodiest incident in “the war of race” that raged throughout the period after Reconstruction running well into the twentieth century. The Supreme Court’s ruling, as Holmes constructed it in his majority opinion in Moore, was in the end a plainly aggressive intervention in the Phillips County outrage, demanding federal district court full review of local murder prosecutions of African Americans, but as written it looks to be near to microscopically terse. Holmes of course is an uncertain, controversial, and difficult writer for us now. But the opinion taken as it is, I think, quite surprisingly opens up, travels back and forth across a wide “past” (further and wider than this draft shows), and an emphatic approach to constitutional law still available for use in what we think of as “present” (in more ways than this draft suggests).

Public Safety Broadband

The Productivity Commission has released its draft Public Safety Mobile Broadband report regarding "the best way to deliver a Public Safety Mobile Broadband (PSMB) capability for emergency services that is reliable, interoperable and works across Australia".

The terms of reference are -
The Commission is to undertake a 'first principles' analysis of the most efficient, effective and economical way of delivering this capability by 2020, to coincide with the nationally agreed framework to improve government radio communications, including interoperability.
Particular regard should be given to:
1. The most cost-effective combination of private and public inputs, services and expertise to deliver the capability. This should include an assessment of the relative costs, benefits and risks of: a. deploying a dedicated PSMB network b. an approach that is fully reliant on commercial networks, and/or c. a combination of the two.
2. The ability for the capability to: a. be nationally interoperable, within and across agencies and jurisdictions b. operate in both metropolitan and regional Australia c. integrate voice communications that are traditionally carried on narrowband networks d. maintain integrity and security of communications e. ensure accessibility, priority and sufficient capacity for PSAs, particularly during periods of peak demand and during a localised incident f. be resilient and maintain continuity of service including under adverse operating circumstances g. consider the sustainability of arrangements in the context of rapidly changing technology and increased demand, including convergence of voice and data services h. be cost-effective, in terms of both capital and operating cost i. be nationally available by or before 2020, and j. be compatible with a variety of end-user devices.
3. Relevant domestic and international reports and experiences (e.g. work underway through the Asia Pacific Telecommunity Wireless Group (AWG), International Telecommunication Union (ITU), 3rd Generation Partnership Project (3GPP) and implementation of similar capability in other countries) that may be applicable to Australia.
In conducting the analysis, the Commission is to have regard to the Australian Communications and Media Authority's (ACMA) role as the independent national regulator and technical expert on communications matters, with final decision-making responsibility for allocation of and conditions of access to spectrum. The Commission should also, where practicable, have regard to the Government's broader review of the spectrum policy and management framework. Based on information provided by PSAs about their operational requirements, the ACMA has previously conducted an engineering analysis into the spectrum requirements for a PSMB capability. This analysis was carried out within parameters established by the Public Safety Mobile Broadband Steering Committee (PSMBSC) and the Terms of Reference for that committee. However, spectrum alone will not achieve a PSMB capability as infrastructure and supporting networks with compatible end-user equipment are required.
The Commission's analysis is concerned with an overall consideration of the most efficient, effective and economical way of delivering this capability, including a re-evaluation of user needs and project requirements given the passage of time.
Key points •in the draft report are -
  •  Public safety mobile broadband (PSMB) holds considerable potential to improve how the police, fire, ambulance and other public safety agencies (PSAs) deliver their services. It will allow frontline officers to access high speed video, images, location tracking and much more.
  • PSAs currently rely on their own radio networks for voice communications and some low speed data. Mobile broadband use has been modest due to concerns that the quality of commercial services is insufficient to support ‘mission critical’ operations. 
  • The network capacity that PSAs require is uncertain. PSAs are seeking a higher quality of service than what is currently available on commercial networks. However, the standards required (in terms of coverage, reliability, security, priority access and so on) are not specific. 
  •  There are many ways to provide a PSMB capability, including the construction of a dedicated network, a commercial approach, or some combination (hybrid) of the two. A dedicated network would give PSAs access to (and control over) their own PSMB network using their own parcel of spectrum. A commercial approach would mean that PSAs obtain PSMB services from one or more of the commercial mobile carriers through a contract for service..
  • The Commission has undertaken an illustrative evaluation of the costs of several specific delivery options over a 20 year period. The cost of a dedicated network was estimated to be in the order of $6.1 billion, compared to $2.1 billion for a commercial option. Even the lowest cost hybrid option is twice as expensive as a commercial option. 
  • A commercial option is cheaper because it requires significantly less ‘new investment’ than a dedicated or hybrid option as considerable existing infrastructure could be used or shared. 
  •  Risk factors also influence the relative merits of different options.  A dedicated network would likely take longer to deliver and offer less flexibility to scale up network capacity in the short term, relative to other options. Providing priority services under commercial or hybrid options would be more technically complex than under a dedicated option. There are also commercial risks arising from limited competition and supplier ‘lock in’. 
  • The benefits of each option are not expected to vary markedly, since the options under evaluation have been designed to deliver a similar level of PSMB capability. On that basis, the cost evaluation is likely to provide the best guide to net community benefit for each option. 
  • On first principles, a commercial approach represents the most efficient, effective and economical way of delivering a PSMB capability to PSAs. 
  • Small scale trials would provide an opportunity for jurisdictions to gain confidence in a commercial approach; gauge the costs, benefits and risks of PSMB; and develop a business case for a wider scale roll out. 
  • Competitive procurement is essential. Splitting up tenders, leveraging infrastructure assets and insisting on open technology standards can help governments secure value for money. 
  • Achieving interoperability will require jurisdictions to agree on common technical standards. PSAs will also need to adapt their operations to make the most of PSMB. This includes protocols for sharing information and network capacity among agencies. 
  • Spectrum allocation is an Australian Government responsibility. Any spectrum made available for PSMB should be priced at its opportunity cost to support its efficient use.