10 May 2016


'Pragmatism, Realism and Moralism' by Matthew Festenstein in (2016) 14(1) Political Studies Review 39-49 comments
Pragmatism is often seen as an unpolitical doctrine. This article argues that it shares important commitments with realist political theory, which stresses the distinctive character of the political and the difficulty of viewing political theory simply as applied ethics, and that many of its key arguments support realism. Having outlined the elective affinities between realism and pragmatism, the article goes on to consider this relationship by looking at two recent elaborations of a pragmatist argument in contemporary political theory, which pull in different directions, depending on the use to which a pragmatist account of doxastic commitments is put. In one version, the argument finds in these commitments a set of pre-political principles, of the sort that realists reject. In the other version, the account given of these commitments more closely tracks the concerns of realists and tries to dispense with the need for knowledge of such principles.
Festenstein states
The political seems to be difficult terrain for pragmatists. The most prominent pragmatist social and political theorist, John Dewey, forcefully presses an avowedly unpolitical conception of democracy, as ‘primarily a mode of associated living, of conjoint communicated experience’, ‘the idea of community life itself’, or a ‘personal way of individual life’ (e.g. Dewey, 1916: 93, 1927: 328, 1939: 226). Pragmatism is often thought to view politics as primarily a matter of collective problem-solving, glossing over core political phenomena such as power and conflict which subvert the hopes for such a shared enterprise.
The purpose of this article is to explore the relationship of pragmatism to the ‘realist’ current in recent political theory which has sought to emphasise the specifically political character of political theorising. The recent interest in realism in political theory seeks to trace the distinctive contours of politics as a dimension of human activity and to overturn what it identifies as the moralistic tendencies in political philosophy. The article begins by offering an overview of key realist themes and the overlap between these themes and pragmatist commitments. With this basic position blocked out, the article goes on to explore two contrasting recent versions of a pragmatist political argument, developed by Cheryl Misak and Robert Talisse, on the one hand, and by Thomas Fossen, on the other. These pull in different directions, I will suggest, depending on the account they offer of practical doxastic commitments and the implications that they draw from this. In the first version, the argument finds in these commitments a set of pre-political principles, of the sort that realists reject. In the other version, the account given of these commitments tries to dispense with the need for knowledge of such principles.
It should be noted that pragmatism and realism are both constituted by an undisciplined rabble of doctrines, temperaments and sensibilities: there is no scope to do justice to this variety and I will impose some artificial tidiness on each position. Furthermore, this is not a study in influence or ‘genealogy’. For some realists, pragmatists are indeed an interesting reference point or source of inspiration: Raymond Geuss (2001) and Chantal Mouffe (2000) for example are directly responsive to authors usually classified as pragmatist. For others, notably Bernard Williams (2002, 2005) in much of his later work, Richard Rorty in particular serves as a foil and a goad: however far Williams was going, it was not that far, or in that direction. However, nothing in the [article] hangs on establishing paths of influence.

08 May 2016

US BodyCams

'Justice Visualized: Courts and the Body Camera Revolution' by Mary D. Fan in (2016-17) 50 UC Davis Law Review (forthcoming) comments
 What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story – or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception. Now a revolution is coming. Across the nation, police departments are deploying body cameras. Much of the current focus is on how body cameras will impact policing and public opinion. Yet there is another important audience for body camera footage – the courts that forge constitutional criminal procedure, the primary conduct rules for police. This article explores what the coming power to replay a wider array of police enforcement actions than ever before means for judicial review and criminal procedure law. The body camera revolution means an evidentiary revolution for courts, transforming the traditional reliance on reports and testimony and filling in gaps in a domain where defendants are often silent. 
The article envisions a future where much of the main staple events of criminal procedure law will be recorded. Analyzing body camera policies from departments across the nation reveals that this future is unfolding now. The article proposes rules of judicial review to cultivate regular use of the audiovisual record in criminal procedure cases and discourage gaps and omissions due to selective recording. The article also offers rules of restraint against the seductive power of video to seem to depict the unmediated truth. Camera perspective can subtly shape judgments. Personal worldviews impact image interpretation. And there is often a difference between the legally relevant truth and the depiction captured on video. Care must be taken therefore to apply the proper perceptual yardsticks and reserve interpretive questions for the appropriate fact-finders.

ICC on specialised IP jurisdictions

The International Commerce Commission (ICC) has released a report on Adjudicating Intellectual Property Disputes: An ICC report on specialised IP jurisdictions worldwide.

The report comments
Along with the rapid progress of the global innovative economy, the importance of intellectual property rights to businesses has grown and the number of intellectual property (IP) applications and registrations has been increasing dramatically each year. In 2014, patent applications worldwide grew by 4.5% to around 2.7 million, and trademark applications rose to around 7.44 million, with a growth of 6% (compared to 2013). Concurrently, more filings of IP rights in recent years have also resulted in more disputes related to IP. In China alone, the number of new first instance IP-related lawsuits in 2014 came to 116,528, marking a 15.6% increase over the previous year. More IP-related lawsuits have not only raised public awareness of the importance of IP enforcement, but have also led to increased reflection concerning the efficiency, impartiality and predictability of court trials for IP disputes. 
These developments have led some countries to establish — or to consider establishing — specialised IP jurisdictions (SIPJs) for resolving IP-related disputes.
A SIPJ is broadly defined as
as a tribunal or court, or a permanent division or a chamber within a civil or commercial court or administrative body, having exclusive authority to hear IP disputes or a particular kind of IP dispute. The report focuses on contentious proceedings relating to IP infringements and the invalidation of registered IPRs; it does not deal with proceedings relating to the registration of IPRs or tribunals focused on the valuation of remunerative IPRs, such as copyright royalty tribunals.
The report states
Although created in the context of diverse legal, economic, cultural and historical frameworks, SIPJs have often been established in different countries for similar reasons — to increase judicial specialisation in IP-related issues, promote consistency and predictability in trials and case outcomes, and reduce the risk of judicial error — even if with local nuances. 
However, the form that SIPJs take and the scope of their competence can vary widely from country to country. Some are empowered to try both administrative and civil IP disputes, such as China, Japan and Russia, while others may be purely civil or administrative. Some are established as separate judiciary institutions, totally independent of civil and administrative courts, and others are structured as a chamber or tribunal within a civil or commercial court. The modes of trial practiced by SIPJs also differ to some extent.
The ICC states that it has
prepared the present study to assist countries in their consideration of whether, and how, to establish or improve SIPJs so as to enhance overall efficiency and expertise in IP-related trials. The report provides an overview of the structures and trial procedures of SIPJs in various jurisdictions around the world, with a view to contributing to a better understanding of the current landscape of SIPJs and the way they function. It is intended to build on and complement work already done by the International Bar Association, and by the US Patent and Trademark Office and the International Intellectual Property Institute in this area by exploring more specific issues related to the functioning of SIPJs. 
 The report was based
on a survey of ICC members which aimed to obtain first-hand information from parties and practitioners on the litigation mechanisms in their countries for trying IP disputes. The respondents are all attorneys or IP practitioners with hands-on litigation experience and expertise in IP. Altogether, information was obtained from a diverse group of 24 countries from Europe, Asia, and North, Central and South America. The survey was designed to first determine if a country had an SIPJ and, if so, to collect information on various SIPJ-related issues, from the rationale behind the establishment of SIPJs to their structures and the speci cs of the trial process. Among the issues surveyed, particular attention was paid to the standing and qualification of representatives of parties in the SIPJs and the selection of judges for SIPJs.
The ICC's conclusions are -
... a significant number of countries around the world have established SIPJs that are very diverse. This diversity can especially be seen in their different structures and in their mechanisms in relation to the appointment of judges and experts and the representation of parties. The same basic principles are however applied across the different countries surveyed, e.g. in relation to expedited proceedings and legal doctrines.
Based on the information obtained, this study draws the following conclusions, which could assist countries in their consideration of whether, and how, to establish or improve SIPJs.
 SIPJs can improve the efficiency and quality of IP-related litigation processes and outcomes
A large majority of the countries surveyed for this study has established SIPJs in various forms, and the respondents from most of the countries that have not established them believe it would be desirable to do so.
Some of the specific reasons expressed by respondents in different countries as to why SIPJs are established include:
  • “...to develop IP expertise in specialised judges, and unify standards of trials”,
  • “to develop IP expertise in specialised judges; and to streamline the jurisdiction of national courts over intellectual property matters with a view to simplifying proceedings”, 
  • “to develop IP expertise in courts, and for parties’ convenience” and 
  • “creation of subject matter experts/expertise; effectiveness of the decision; enhance efficiency and accuracy; consistency and predictability of case outcomes”.
All of these clearly indicate that SIPJs are seen to increase the effectiveness of enforcement of IPRs and are welcomed by practitioners and litigants in the surveyed countries.
The contribution of SIPJs to developing IP expertise in courts, unifying standards of trials, enhancing the efficiency and accuracy of trials and ensuring the predictability of case outcomes thus argues in favour of their establishment and maintenance.
 The need for and the most appropriate form of SIPJs depend on individual country needs and circumstances
Despite the largely coincident reasons motivating di erent countries to establish SIPJs — as described above — the choice of form for SIPJs often varies according to the different national legal cultures, economic contexts and priorities. Where IP disputes are numerous and technically complicated, SIPJs may have a more elaborate structure and larger dedicated sta (e.g. a separate court with experienced judges). Where a country’s economic and legal environment suggests little demand for an SIPJ, it can be concluded that such a solution is not beneficial. Likewise, if civil or commercial courts are able to handle IP disputes effectively on their own, SIPJs may not be an urgent priority. The need for and design of SIPJs should emerge from actual social, economic and legal needs — as is the case in most countries.
China, for example, is a vast country with a huge number of IP-related disputes, requiring a large number of judges versed in IP. Nevertheless, the training of judges to meet this demand is a tremendous task; even if the judges are qualified for the job, different judges with distinct educational backgrounds and experience may have different views on similar legal or factual issues. Consequently, unifying IP trials, especially in respect of cases involving complex technological issues, was a fundamental consideration for establishing SIPJs in China. SIPJs could therefore be helpful for those countries with a large territory or population — and, therefore, usually with more courts — if they have sufficient IP disputes.
In short, if the aim of an SIPJ is to increase the efficiency and quality of IP-related dispute resolution, and thus to meet the needs of the national economy, it should only be established if it adequately serves these goals and should be designed in the most appropriate way to fulfil them.
Proper trial mechanisms and judicial expertise are essential
Where there is a need for SIPJs, the overall mechanism of the SIPJ (i.e. the procedures and personnel arrangements) is very important for the way IP cases are decided. It is advisable that SIPJs be staffed with knowledgeable judges and, especially for patent cases, be structured so as to enable the court to understand the technical issues in dispute — which are often complex — whether by involving judges with a certain technical background, technical experts (as court or party appointed experts) and/or IP practitioners or other specialists. This was particularly highlighted by respondents to the survey.
The appropriate mechanism for any particular SIPJ will again be influenced by the judicial system, legal tradition and ideology, and socio-economic context.
Based upon the analysis of the survey results, ICC concludes on balance that SIPJs present an advantage in the current economic and legal environment worldwide in jurisdictions where there is a suffcient body of IP litigation and can, in many circumstances, enhance the efficiency of IP enforcement.
The structure and mechanisms of SIPJs should be designed in response to the specific context of the country, and with the aim of developing IP expertise in the judiciary, unifying trial standards and practices, enhancing efficiency in trials and ensuring the predictability and accuracy of case outcomes.
ICC recommends that countries should consider establishing and adopting some form of SIPJs, or improving existing SIPJs, according to their respective economic and legal situations, and hopes that the present study will assist in this reflection.


Consumer Affairs Victoria has announced plans to litigate against scammer Belle Gibson and has secured an enforceable undertaking  by Gibson's publisher.
Consumer Affairs Victoria is preparing to take legal action against Inkerman Road Nominees Pty Ltd (in liquidation) ACN 164 850 748 (formerly known as Belle Gibson Pty Ltd) and its sole director, Ms Annabelle Gibson, following an in-depth investigation into alleged contraventions of the Australian Consumer Law and Australian Consumer Law (Victoria).
The alleged contraventions relate to false claims by Ms Gibson and her company concerning her diagnosis with terminal brain cancer, her rejection of conventional cancer treatments in favour of natural remedies, and the donation of proceeds to various charities.
Consumer Affairs Victoria Director Simon Cohen has applied for leave to commence proceedings against Inkerman Road Nominees Pty Ltd (in liquidation) in the Federal Court of Australia. Leave is required because the company is in liquidation.
If leave is granted, Mr Cohen intends to commence proceedings against Inkerman Road Nominees and Ms Gibson.
Mr Cohen added he was pleased that Penguin Australia Pty Ltd, publishers of The Whole Pantry book, had willingly co-operated with a concurrent investigation that examined whether the company had also contravened the ACL (Vic).
Mr Cohen said Penguin had agreed to an enforceable undertaking acknowledging that it had not required Ms Gibson to substantiate her claims prior to the book’s publication.
Included in the terms of the enforceable undertaking is that Penguin will make a $30,000 donation to the Victorian Consumer Law Fund.
Penguin must also enhance its compliance, education and training program with a specific focus on ensuring all claims about medical conditions are substantiated, and that statements about natural therapies are accompanied by a prominent warning notice.
“This is an important step in ensuring that consumers receive only verified information and are not deceived, particularly where serious matters of health and medical treatment are concerned,” Mr Cohen said.
Meanwhile in New Zealand the Commerce Commission has reached an interim agreement with TM Publisher, an overseas company that sent invoices for unsolicited services to New Zealand trade mark holders.
 Under the interim court enforceable undertakings TM Publisher has agreed that anyone who paid the invoice from 6 April 2016 will be refunded directly by ANZ bank. 
The Commission is still in negotiations with TM Publisher about payments it received before 6 April 2016. ...   
TM Publisher’s bank account was frozen in March 2016. It contained over $200,000 in payments from New Zealand businesses. 
The invoice relates to an overseas, web-based trade mark publication service. It is not connected to the Intellectual Property Office of New Zealand (IPONZ). The invoice does not make clear that the recipient does not have to pay for the services.