Compulsory Treatment

'Is involuntary (compulsory) treatment ever justified in patients with SE-AN: An international perspective’ by Joel Yager, Terry Carney and Stephen Touyz in  Touyz, Le Grange, Lacey and Hay (eds) Managing Severe and Enduring Anorexia Nervosa (Routledge, 2016) comments

Contemplating suitable circumstances and justifications for the involuntary treatment of severe and enduring anorexia nervosa (SE-AN) presents numerous challenges. While there is considerable support for resorting to civil committal powers to coerce selected SE-AN patients into treatment (Bowers, 2014), there is on-going debate about the characteristics of the group for whom this is justified and about when a patient should be permitted to decline treatment where refusal is likely to result in their death (Gans and Gunn, 2013; Giordano, 2010; Lopez, Yager and Feinstein, 2010).

International approaches to span a wide range of clinical, ethical and legal positions (Carney, et al., 2006). In federations such as the United States, Canada or Australia, legal and clinical responses can vary from one part of the country to another due both to policy choices by clinicians about the use of the law, and because the constitutional authority to make laws lies with the States or Provinces, rather than the central government, enabling quite different approaches to be taken from one jurisdiction to the next. In Australia for instance some jurisdictions (such as Victoria) rely on mental health (civil commitment) laws alone, while in the neighbouring jurisdiction of New South Wales the more ‘empowering’ philosophy of adult guardianship (with its interposition of a guardian between patient and clinician) is open to be used as an alternative to mental health laws (and even child protection laws have also been utilised) (Carney, Tait, Saunders, Touyz, and Beumont, 2003). Mental health laws also differ amongst themselves (some favour empowering clinicians to invoke coercion subject to later review, others insist on prior approval of a legal body: Carney, Tait, Perry, Vernon and Beaupert, 2011) and differ between countries in whether courts (as in the US and much of Canada) or multi-disciplinary tribunals authorize or review the exercise of coercive powers (as is the case in Britain and Australia), as well as in whether involuntary detention grants authority to impose treatments such as medications (as in Australia), or requires separate legal authorization.

This chapter explores the often vexed and complex dilemmas confronting the clinician when having to decide upon the involuntary treatment of a patient with severe and enduring AN (SE-AN). It explores the literature beyond the evidence-base. It then provides some considered wisdom, extracted from the published literature, to guide the clinician through what often can become an emotionally charged encounter with an oppositional patient. Clear decision making based upon sound clinical principles can often pave the way for a more successful outcome without what many would consider a ‘bruising battle’ of wills. Finally, the road ahead is addressed looking at compulsory treatment from an international perspective and briefly touching upon the urgent need for research to determine whether such patients do have the mental capacity to make such potentially life-saving decisions.

Justiciability

'The Changing Landscape of Non-Justiciability' by Rayner Thwaites in (2016) New Zealand Law Review (Forthcoming) comments

What is judged to be non-justiciable and how that is determined has changed markedly in the last several decades and the concept remains in flux. There has been recent British and Australian case-law on the concept in the highest appellate courts, providing an opportune moment to survey the contemporary landscape of non-justiciability. The contemporary non-justiciability cases concentrate in the area of foreign relations law, in cases arising from the ‘war on terror’, though they range over broader subject matter. I argue that contemporary Australian and British approaches to non-justiciability, though developed in very different legal contexts, are presently converging, and situate New Zealand case-law in relation to these developments. I argue that non-justiciability is a concept of continuing utility in New Zealand and elsewhere in the common law world. Accounts discerning, and arguing for, the redundancy of non-justiciability mistake its transformation for its demise.

Sexting

In South Australia the Summary Offences (Filming and Sexting Offences) Amendment Bill 2016 (SA), to amend the Summary Offences Act 1953 (SA) has had its second reading.

The proposed section 26DA, regarding a Threat to distribute invasive image or image obtained from indecent filming, provides

 (1) A person who— (a) threatens to distribute an invasive image of a person; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, is guilty of an offence. Maximum penalty: (a) if the invasive image is of a minor—$10 000 or imprisonment for 2 years; (b) in any other case—$5 000 or imprisonment for 1 year.

(2) A person who— (a) threatens to distribute an image obtained by the indecent filming of a person; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, is guilty of an offence. Maximum penalty: (a) if the person filmed was a minor—$10 000 or imprisonment for 2 years; (b) in any other case—$5 000 or imprisonment for 1 year.

(3) It is a defence to a charge of an offence against subsection (1) or (2) to prove— (a) that— (i) the person filmed consented to that particular distribution of the image the subject of the filming; or (ii) the person consented to distribution of the image the subject of the filming generally; and (b) that the person had not, at the time of the alleged offence, withdrawn consent to the distribution of the image.

(4) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct, and may be explicit or implicit.

Section 26C, regarding Distribution of invasive image is to be amended

26C(1) Maximum penalty: (a) if the invasive image is of a minor—$20 000 or imprisonment for 4 years; (b) in any other case—$10 000 or imprisonment for 2 years.

Big Data and Small Data

'Big Data Blacklisting' by Margaret Hu in (2015) 67 Florida Law Review comments 

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation of rights and privileges through government-led big data programs as a constitutional harm under substantive due process, and identifies the obstruction of core liberties.

 Hu's 'Small Data Surveillance v. Big Data Cybersurveillance' highlights

some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals’ digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the 24/7 surveillance of the body and the 360° surveillance of the biography. Further, data science logic and reasoning, and big data policy rationales, appear to be driving the expansion of these emerging methods. Consequently, I suggest that an inquiry into the scientific validity of the data science that informs big data cybersurveillance and mass dataveillance is appropriate. As a topic of academic inquiry, thus, I argue in favor of a science-driven approach to the interrogation of rapidly evolving bulk metadata and mass data surveillance methods that increasingly rely upon data science and big data’s algorithmic, analytic, and integrative tools. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court required scientific validity determinations prior to the introduction of scientific expert testimony or evidence at trial. I conclude that to the extent that covert intelligence gathering relies upon data science, a Daubert-type inquiry is helpful in conceptualizing the proper analytical structure necessary for the assessment and oversight of these emerging mass surveillance methods.

 Her 'Taxonomy of the Snowden Disclosures' in (2015) 72 Washington and Lee Law Review offers

a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just a careful inquiry into the legal and constitutional framework that guides the oversight of these programs. A close interrogation also requires a careful inquiry into the big data architecture that guides them. This inquiry includes examining the underlying theories of data science and the rationales of big data-driven policymaking that may drive the expansion of big data cybersurveillance. These technological, theoretical, and policymaking movements are occurring within what has been termed by scholars as the National Surveillance State. Better understanding the manner in which intelligence gathering may be shifting away from small data surveillance methods and toward the adoption of big data cybersurveillance methods — and assessing the efficacy of this shift — can factually ground future debates on how best to constrain comprehensive and ubiquitous surveillance technologies at the dawn of the National Surveillance State. "

Speech

'A Free Speech Response to the Gay Rights/Religious Liberty Conflict' by Andrew Koppelman in Northwestern University Law Review (Forthcoming) comments 

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free speech problem, but the Supreme Court has left the pertinent doctrine in a state of confusion. I offer a better account of free speech law, one that depends on some neglected free speech values – the protection of religious disagreement, the promotion of mutual transparency among persons, and the positive valuation of ethical confrontation. I conclude that, under familiar rules of constitutional avoidance, state antidiscrimination laws should be construed to allow this kind of speech.

Bureaucracies

'Is Our Legal Order Just Another Bureaucracy? ' by Robert P. Burns comments

A classic formulation portrays bureaucracy as the characteristic modern institution, incomparably effective as the home of instrumental rationality and domination through knowledge. We often understand our legal order as controlling bureaucracy by insisting that bureaucrats “play by the rules.” Courts, in this view, uphold the rule of law in the face of a threatening purely instrumental reason. However, an understanding of the courts as the enforcers of legal rules fails to offer an account of how the legal order itself is not just another bureaucracy. This essay argues that we must look elsewhere for an understanding of the legal order as something more than bureaucratic.

Burns suggests that

In our usual public discourse and debate, the rule of law is a very good thing, so good that we are committed to exporting it around the world. By contrast, bureaucracy is very bad, a threat to human freedom and flourishing. Indeed, one of the distinctively modern themes, associated with Max Weber and Franz Kafka, is “organizational gothic, with organ izations as ‘sites of darkness, labyrinths with endless corridors’; and locked doors hiding secrets shifting from the ‘dark street’ to the ‘cramped office’ ...”  So it would seem to be a very simple thing to distinguish a legal order from a bureaucracy. Alas, it turns out not to be so. Our notions of the rule of law and of bureaucracy are far from univocal. Indeed, they seem “essentially contested.”

Casting some light on this distinction is not simply a matter of attaining conceptual clarity for its own sake. One of our major political tasks concerns what Lon Fuller called our “modes of social ordering,” what kinds of institutions and practices are appropriate to bring good order to the more or less distinct realms of social life. Where should we resort to informal bureaucratized psychological pressure, as we do in our criminal justice system 95% of the time? Where should we rely on the instrumental application of social scientific methods, as we mainly do in Antitrust Law? Where should we rely on the broadly clinical judgment of administrators  “bred to the facts” and committed to the relatively unconstrained definitions of agency purpose?   Where is it important to strictly follow predictable formalist modes of legal reasoning, designed to enhance predictability and control official discretion?  Where should we provide plenary narrative - dramatic consideration of a human situation that relativizes “the rule of law as a law of rules,” as we do in the relatively few jury trials we still conduct. Some of these approaches can fairly be called bureaucratic, and some not, and so it is useful to get a grip on the practical meaning of the terms.

My argument here proceeds in twelve steps. First, I describe why (almost) no one wants to be a bureaucracy and why American lawyers would recoil from considering our legal order to be just another bureaucracy. Second, I provide a classical understanding of bureaucracy that still has power, as a form of social ordering that effectively deploys instrumental reason in the service of a predetermined goal set by a sovereign will. Third, I recount a familiar understanding of the relationship between courts and bureaucracies, in which courts impose rules that constrain the wholly instrumental pursuit of those goals. Fourth, I puzzle over the obvious problem for this latter understanding, namely that bureaucracies can be highly rule-bound without ceasing to be bureaucracies. Fifth, I concede that courts may have a different attitude toward rules than do bureaucracies, but that this distinction does not necessarily signal a difference in kind. And, sixth, post-formalist courts have relaxed that different attitude to the point where courts begin to look like premodern bureaucracies. Still and this is my seventh point, there remain aspects of  our legal order that are discontinuous with bureaucratic ordering. They are, eighth, currently under siege, something that may simply pose a question of political will or, more ominously, reflect an inevitable “the bureaucratization of the world” and the epochal dominance of instrumental reason in modernity. Ninth, these residual elements in our legal order still allow some judges and juries to realize the values implicit in our deepest convictions – what Paul Riceour called an ethics already realized – and, tenth, allow us to make judgments of relative importance among the inevitably competing values in a world where “justice is conflict.” Eleventh, on the theoretical level, that would suggest an account of the way in which our trial and appellate procedures actually could provide access to the valid norms implicit in our common life. Twelfth, in our post-modern world, this theoretical account would probably rely on a kind of realism in which we know these norms because we are immersed in them through our practices.

Libertarianism

'Information Libertarianism' by Jane R. Bambauer and Derek E. Bambauer in (207) 105 California Law Review  argues

Recent First Amendment precedent is widely attacked as unprincipled: a deregulatory judicial agenda disguised as free speech protection. The scholarly consensus is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing government to employ more direct regulations with fewer collateral consequences. Even an expansive First Amendment is compatible with the regulatory state, rather than being inherently libertarian. Normatively, courts should be skeptical when the state tries to design socially-beneficial censorship. 

This Article advances a structural theory that complements classic First Amendment rationales, arguing that information libertarianism has virtues that transcend political ideology. Regulating information is peculiarly difficult to do well. Cognitive biases cause regulators to systematically overstate risks of speech and to discount its benefits. Speech is strong in its capacity to change behavior, yet politically weak. It is a popular scapegoat for larger societal problems and an attractive tool for rent-seeking interest groups. Collective action, public choice, and government entrenchment problems arise frequently. First Amendment safeguards provide a vital counterpressure. Information libertarianism encourages government to regulate conduct directly because when the state censors communication, the results are often counterproductive. A robust First Amendment deserves support regardless of ideology.