31 August 2016

Sets

The fascinating 'Legal Sets' by Jeremy N. Sheff proposes that
legal reasoning and analysis are best understood as being primarily concerned, not with rules or propositions, but with sets. The distinction is important to the work of lawyers, judges, and legal scholars, but is not currently well understood. This Article develops a formal model of the role of sets in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure of many so-called “hard cases,” and help organize the available options for resolving them according to their form. This set-theoretic model can also help to cut through ambiguities and clarify debates in other areas of legal theory—such as in the distinction between rules and standards, in the study of interpretation, and in the theory of precedent. Finally, it suggests that recurring substantive concerns in legal theory—particularly the problem of discretion—are actually emergent structural properties of a system that is composed of “sets all the way down.”
Sheff comments
The model developed in this paper will be useful to legal educators and law students, as a guide to the types of analytical moves that are part of “thinking like a lawyer.” And the tools of set theory are also of use to the practicing lawyer or judge—who must navigate and deploy the strategies discussed herein as part of the practice of their profession. But these insights may be intuitively grasped without resort to the formal architecture of symbolic logic. The key payoff of the set-theoretic model I will develop here engages legal theory, where heated substantive debates often leave important formal ambiguities unexamined. Not only can the set- theoretic model help cut through those ambiguities, it shows how some of these substantive debates are actually over inescapable structural features of law. 
The Article proceeds in four stages. Part I provides a brief overview of na├»ve set theory for those unfamiliar with it, introducing the terminology and concepts that will be deployed in the analysis that follows; those who feel comfortable with the concepts and notation systems of set theory and predicate logic may skim or skip this section. Parts II and III build the scaffolding of a set-theoretic model of law, and as I have warned they require some patience to see through. Part II demonstrates how the tools of set theory can be deployed to analyze the relationship between rules and cases, and to show how more complex legal doctrines build on set-theoretic concepts. Part III demonstrates more complex interactions of rules and cases, focusing on “hard cases” in which multiple applicable legal rules appear to contradict one another. This Part provides a more thorough description of the aforementioned strategies legal actors can use to negotiate such doctrinal conflicts at various levels of formal structure. Part IV discusses some implications and limitations of a set-theoretic understanding of legal doctrine, including its interaction with other aspects of legal theory. In particular, it shows how a set-theoretic understanding of legal practice cuts through ambiguities in the debate over the relative merits of rules and standards, in general jurisprudence and associated theories of interpretation, and in the theory of precedent.

Liability

'Lawyers’ professional liability: comparative perspectives' by Herbert M Kritzer in (2016) International Journal of the Legal Profession 1-17 comments
 Among the four mechanisms of discipline and regulation of legal professionals identified by David Wilkins, liability controls have received almost no attention from scholars who study legal professions. This paper presents a comparative analysis of what is known about lawyers’ professional liability drawing on reports concerning a group of 13 countries representing every continent. The discussion covers three topics: the frequency of LPL claims; the areas of practice that produce LPL claims; and insurance requirements and arrangements for compensating those who successfully bring an LPL claims. The analyses show that empirical information is available for only a small subset of the countries considered, but what is available shows very substantial variation in both the frequency of claims and the areas of practice producing those claims. Insurance requirements and arrangements also vary substantially, with LPL insurance being mandatory in only about half of the countries. 
Kritzer argues that
Legal professions are subject to regulation and discipline through a variety of mechanisms. Wilkins ('Who should regulate lawyers?' (1992) 105 Harvard Law Review, 799, 805) identified four such mechanisms: disciplinary controls by institutions such as the courts or the profession itself; institutional controls, meaning regulation by the venues before which legal professionals appear; legislative controls, meaning a legislatively-established administrative agency; and liability controls whereby those with grievances with a legal professional seek redress by initiating a claim which could ultimately be decided through litigation. This paper focuses on the fourth of these mechanisms: lawyers’ professional liability (LPL), a topic that has until recently received little attention from students of the legal profession. The central question addressed here is cross-national variation in certain aspects related to the role of LPL as a potential mechanism of regulation. Liability controls focus primarily on compensating clients for injuries they have received due to actions of their lawyers; in some circumstances lawyers can also be liable to non-clients, either third-party beneficiaries of the original client or adverse parties. While there may be some circumstances in which a disciplinary body can order a lawyer to provide compensation to a client who has been harmed, that route for compensation is not considered in what follows.
Liability controls of lawyers differ from the other methods of regulation by assigning a primary role to the client thereby prioritizing access to justice for the client. The other mechanisms are designed largely to prevent harm by establishing a set of norms and rules that provide direction for practitioners. Those other mechanisms do include sanctioning tools that can serve a deterrence function; in an extreme case they may protect consumers from errant lawyers by removing the lawyer’s authority to practice. However, mechanisms other than liability controls typically do not include a compensation as a primary function. Moreover, the threat of liability means that even where insurance is not required most lawyers, at least in the United States, carry professional liability insurance that serves as a guarantor of compensation when a lawyer is determined to be liable.
A comparative look at liability claims against legal professionals adds an important dimension to our understanding of how professions are regulated. As the subsequent sections show, the information available cross-nationally is limited in many ways. While legal provisions regarding the professional liability of legal professionals are relatively easy to determine, the processing of liability claims requires systematic data that are not currently available for most jurisdictions. This article shows the limits of the information that is available and provides an overview of what can be discerned.
After a brief discussion on methodology in the next section, I consider some of the problems of comparing lawyers’ professional liability across countries. Subsequent sections cover frequency of legal malpractice, the frequency of LPL claims, the areas of practice producing LPL claims, and issues related to LPL insurance.

29 August 2016

Tobacco Litigation

'Tobacco Litigation in International Courts' by Sergio Puig in (2016) 57 Harvard International Law Journal comments
 For years, tobacco interests have played an important role in developing international law. Recently, cooperation among nations concerned with the risks and health consequences of smoking tobacco has resulted in the adoption of international treaties, regional directives, and common administrative and regulatory practices. As a result, a wave of litigation before international courts and tribunals, including the European and Andean Courts of Justice, Investor-State Tribunals, and the World Trade Organization’s dispute settlement body, has led to novel legal questions.
This Article is the first to trace, survey, and recount the history of tobacco litigation before international courts and tribunals and to assess its contribution to international law. In particular, it pays new attention to recent efforts by tobacco interests to challenge compelled speech by exporting the far-reaching Free Speech Clause of the United States into international law, especially in the context of marketing controls, mandatory graphic warnings, and “plain packaging” labels.
This Article shows that, contrary to conventional wisdom, international courts and tribunals can play a central role in advancing and enhancing complex national, regional, and global regulations rather than eroding sovereign regulatory space. Complete deference to states’ policies, however, can also be risky as it may perpetuate the use of economic and political influence to distort the functioning of government. Hence, the history of international tobacco litigation reveals a more complex interrelationship between domestic institutions and international law than many scholars acknowledge.

Family Property

'Constitutional Law and the Limits of Discretion in Family Property Law' by Patrick Parkinson in (2016) 44(1) Federal Law Review 49-75 comments
 The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown.
Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making.
The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.

Sumptuary Law and OMGs in Queensland and Victoria

The Queensland Premier in an exercise of 'tougher than you' has announced 'Bikies to be banned from “wearing colours” in public', an initiative of interest to criminologists and scholars of sumptuary law.

The media release states
Outlaw Motorcycle Gangs will be banned from wearing their colours in public anywhere in Queensland under the Palaszczuk Government’s tough new package of laws to better tackle serious organised crime.
The move will extend the current prohibition on wearing colours in licenced venues into all public places across the State.
Premier Annastacia Palaszczuk said Outlaw Motorcycle Gangs have been a very visible and intimidating part of organised crime.
“The days of brazen, menacing rides through our streets and cities in daunting gang colours are over,” Ms Palaszczuk said.
“Under Campbell Newman’s laws, gang colours were still permitted on our streets. Under my laws, they won’t be."
“The gangs can expect no let-up from police and prosecutors. I want more convictions not less, something we haven’t seen under the LNP laws."
“My Government’s new laws will give the police and our courts workable, enforceable laws to convict those involved in all forms of serious crime,” the Premier said.
Attorney-General and Minister for Justice Yvette D’Ath said the extension of the ban will target outlaw motorcycle gangs, without impacting legitimate, law-abiding motorcycle riders and clubs.
“The Taskforce Report on Organised Crime Legislation recommended the Government retain the provisions in the Liquor Act that ban the wearing of prohibited items such as OMCG colours in licenced venues,” Mrs D’Ath said.
“The Government is adopting that recommendation but taking it further, because we recognise the fear and intimidation caused by colours, wherever they are worn."
“They can also intimidate victims or witnesses to crimes, who may fear the consequences if they come forward."
“That intimidation goes directly to the behaviour of OMCGs that is rightfully a concern to the Queensland public and Queensland Police."
“We want to ensure the safety of our community, and are committed to giving law enforcement agencies the tools they need to make that happen.”
It is intended the offence will carry escalating penalties including imprisonment, and police will be empowered to confiscate banned items on the spot.
The Palaszczuk Government’s commitment to tackling organised crime in all its forms means the provisions that will prevent outlaw motorcycle gang clubhouses reopening can also be used to shut down premises such as call centres being used for boiler room fraud rackets.
Police Minister Bill Byrne said the new laws will also retain additional mandatory penalties as an inducement for offenders to cooperate with police.
“Our crackdown on serious organised crime will be all-encompassing,” Mr Byrne said.
“That’s why police have been involved through the development of this new regime."
“Key stakeholders have had also had input into the Commission of Inquiry into the Criminal Organisations Act and the Taskforce on Organised Crime Legislation.”
The new package will be introduced to Parliament in the next fortnight to allow consultation on the specific provisions of the draft legislation. The Government will work toward the passage of the laws through the Parliament by the end of this year.
The Victorian Law Reform Commission's report on Regulatory Regimes Preventing the Infiltration of Organised Crime into Lawful Occupations and Industries at the beginning of this year states
On 29 October 2014, the then Attorney-General, the Hon. Robert Clark, MP, asked the Victorian Law Reform Commission to review and report on the use of regulatory regimes to help prevent organised crime and criminal organisations entering into or operating through lawful occupations and industries. In the terms of reference, and in this report, the term ‘infiltration’ means both entering into and operating through lawful occupations and industries by organised crime. 
There is a growing recognition—both in Australia and internationally—that the infiltration of lawful occupations and industries is an important strategy of organised crime groups. Alongside this, there is a growing interest in the use of regulatory regimes to deter and detect that infiltration. Under the terms of reference, the concept of infiltration involves both the entry of organised crime groups into an occupation or industry (for example, through owning or operating a business), and the operation of organised crime groups through an occupation or industry. ‘Operating through’ an occupation or industry includes the use of professional facilitators and specialist service providers. 
The terms of reference do not ask the Commission to make recommendations for law reform. Instead, the Commission is asked to establish a framework of principles for assessing the risks of organised crime infiltration of occupations and industries, and for developing suitable regulatory responses to those risks. 
The Commission’s report therefore contains guidance of a general nature that can be applied to any lawful occupation or industry that may be at risk of organised crime infiltration. Given the diversity of occupations/industries that may be vulnerable to infiltration, and the different forms that infiltration may take, it would not be possible— or advisable—to attempt to present a ‘one size fits all’ regulatory response that could be applied to all lawful occupations/industries at risk of organised crime infiltration. Any changes to the regulatory regime of an occupation or industry to address a risk of infiltration must be proportionate to that risk and the harm likely to be caused by infiltration, and take into account the other policy goals of the regulatory regime. The Commission’s consultations made clear that a regulatory response to infiltration will only be effective and proportionate if it is specific to the at-risk occupation/industry and the particular vulnerabilities and opportunities that organised crime groups may seek to exploit within it. 
The Commission recommends that the report be read in conjunction with the Victorian Guide to Regulation and used by policy makers in assessing the risks of organised crime infiltration of lawful occupations and industries, and in developing regulatory responses to those risks. 
The following key messages emerge from the Commission’s report. 
The nature of organised crime 
Organised crime comprises an increasingly broad range of activities. An effective regulatory response to organised crime infiltration requires an understanding of the breadth of activities that may benefit from (or require) the infiltration of lawful occupations and industries, and the particular forms of conduct that organised crime groups may engage in once infiltration has occurred. While infiltration may enable the conduct of ‘traditional’ organised crime activities such as the trafficking of illicit commodities and money laundering, it may equally enable conduct such as fraud (including investment, taxation or identity fraud), unlawful practices that are specific to an occupation or industry (such as illegal commercial fishing or waste management practices), or labour exploitation or trafficking.   
Regulators should have an understanding of contemporary forms of organised crime activity, and remain abreast of changes to such activity as organised crime groups seek out new markets and means of profit-making. This understanding is necessary not only for the identification of risk factors for infiltration and the choice of regulatory strategies but also for the implementation of the regulatory response. In tackling organised crime, it is becoming more common to take a multi-disciplinary approach to enforcement and consider the enforcement actions available to several government agencies. This requires an understanding of the numerous types of activity in which organised crime groups may be engaged in a particular occupation or industry, such as taxation fraud, employment law contraventions, or migration law contraventions. 
Identifying risk factors for infiltration 
Existing analyses of common risk factors for organised crime infiltration are at an early stage of development, and are relatively few. Drawing on the existing analyses and its own consultations, the Commission has identified a series of high-level risk factors that can assist policy makers in identifying a risk of infiltration of a particular occupation or industry. However, as the Commission’s consultations made clear, a more detailed, specific risk assessment of a particular occupation or industry should also be conducted to determine the precise vulnerabilities that organised crime groups may exploit and the appropriate regulatory strategies to reduce those vulnerabilities. 
Collaboration and information sharing 
An effective regulatory response to organised crime infiltration will require some degree of collaboration among regulatory, law enforcement and other government agencies. No one agency will hold all the necessary information, or be equipped with all the necessary powers and skills, to address organised crime infiltration. 
Information sharing among government agencies is key to any collaborative work. The Commission has suggested that improved information sharing requires addressing any legislative barriers to information sharing, instituting appropriate governance arrangements for the sharing of sensitive information, and creating some form of centralised information-sharing mechanism, whether this comprises a multi-agency network through which information can be requested and circulated, or a centralised agency that can source and evaluate information from multiple agencies where a regulator has concerns about a particular licence applicant or other regulatory matter. 
Collaboration between government agencies and industry is also key. Regulators will need to engage with industry in identifying risks of infiltration, developing a regulatory response, and implementing that response (including utilising industry members as a source of information about organised crime infiltration). 
Strategies to reduce the risk of infiltration: licensing and beyond 
The report sets out four main strategies for reducing the risk of organised crime infiltration of a lawful occupation or industry: • assessing the existing regulatory regime • restricting entry into an occupation or industry through a licensing scheme • regulating post-entry behaviour in an occupation or industry • addressing the use of professional facilitators. 
Restrictions on entry 
Where no regulatory regime currently operates, or the existing regime is deficient, it may be appropriate to restrict entry to the occupation or industry through a licensing scheme. However, licensing should not be a default response to a risk of organised crime infiltration. The report sets out a range of factors that should be considered in deciding whether licensing is appropriate, including whether the form of infiltration is of a type that could be addressed through licensing measures, whether the regulator would be willing and able to conduct a rigorous examination of licence applicants, whether the regulator (or possibly Victoria Police) would have the powers and resources to prevent unlicensed operation, and the potential anti-competitive effects of licensing on the occupation/industry. 
Where a licensing scheme is used, a host of factors will need to be considered in order to detect any links to organised crime when assessing a licence applicant’s probity and suitability. This includes enquiring into the professional competency of the licence applicant, the beneficial owners of corporate applicants, any history of prior unlawful behaviour (whether criminal or non-criminal) and adverse administrative decisions, and the financial capacity of the applicant to conduct the licensed business. Although criminal intelligence may be heavily relied on in some licensing decisions, it is particularly important that regulators consider a broad range of information in assessing probity and suitability, so as not to place an unreasonable burden on law enforcement agencies, and to establish the most complete picture possible of the applicant’s probity and suitability. 
Post-entry regulation 
The post-entry regulation of an occupation or industry is just as important as any restrictions on entry. 
Any licensing scheme will need to be supplemented with the ongoing regulation of an occupation or industry in order to detect organised crime groups that evaded detection during the licensing process, or which have corrupted existing occupation/industry members. 
Post-entry regulation is also a potential alternative to restrictions on entry. It may be that the particular vulnerabilities of an occupation/industry are best addressed through a targeted, post-entry measure, such as record-keeping requirements or restrictions on cash-based transactions. 
Post-entry regulation also provides an opportunity to ‘widen the regulatory gaze’ and harness the capacity of third parties—such as occupation and industry members, customers, and employees/workers—to participate in regulation. In some industries, for example, legitimate businesses may play a key role in deterring and detecting organised crime infiltration by conducting supplier or customer due diligence. 
The report outlines five forms of post-entry regulation that should be considered in order to reduce the risk of organised crime infiltration:
• ongoing monitoring of probity and suitability 
• customer and supplier due diligence measures 
• record-keeping requirements 
• restrictions on cash-based transactions 
• controls on coercive conduct. 
Professional facilitators 
The use of service providers and ‘professional facilitators’ by organised crime groups is one potential form of infiltration. Professional facilitators may include lawyers, accountants, financial advisers and real estate agents, who wittingly or unwittingly assist with money laundering or other unlawful conduct. Insofar as professional facilitators may be key enablers of such activity, there may be significant disruptive value in addressing their use by organised crime groups. 
Any regulatory strategies that seek to address the use of professionals should have regard to the continuum of facilitating conduct by professionals, which ranges from unwitting assistance through to wilful blindness and, at its highest, voluntary and deliberate facilitation of unlawful activity. With this in mind, consideration should be given to three key regulatory strategies that may help to prevent the use of professional facilitators by organised crime groups:
• professional ethics education and support measures 
• customer due diligence measures 
• accessorial liability provisions. 
The Commission notes that one key issue concerning professional facilitators is the current scope of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), which at the time of delivery of this report was under review by the Commonwealth government in relation to its proposed extension to lawyers, accountants and real estate agents. Being Commonwealth legislation, the Commission has not commented on this proposed reform, and has confined its attention to strategies that may be used under Victorian regulatory regimes. 
A comprehensive regulatory response 
By aligning this report with the Victorian Guide to Regulation, the Commission seeks to emphasise that any regulatory response to organised crime infiltration must be comprehensive; that is, it should begin by clearly identifying the particular vulnerabilities of an occupation or industry to infiltration, identify regulatory strategies that directly address those vulnerabilities, and ensure that the regulatory response is able to be effectively implemented. 
The third step—implementation—requires a consideration of:
• which agency—or agencies—are most appropriate to administer the regulatory regime 
• the need to foster information gathering from a broad range of sources 
• which investigative powers are required • the necessity of a robust enforcement response. 
In this respect, it is especially important that policy makers first consider the utility of any existing regulatory regime before developing new regulatory strategies. An existing regime may be sufficient ‘on paper’, but its effectiveness may be hampered by inadequate regulatory skill sets, insufficient collaboration and information sharing among relevant government agencies, or a limited and risk-averse enforcement response. Any such issues should be identified and redressed before new regulatory measures are considered.