Citizenship Selling

'Millionaire mobility and the sale of citizenship' by Kristin Surak in (2020) Journal of Ethnic and Migration Studies asks

Why do wealthy people purchase citizenship in peripheral countries? This article investigates the demand for citizenship by investment programmes, which enable naturalisation based on a donation or financial investment. Extending research on long-distance naturalisation among the middle class and on residence by investment programmes, I examine the motives of the wealthy using citizenship by investment options. Based on over one hundred interviews with rich naturalisers and intermediaries in the citizenship industry, I find that mobility, both in the present and as a future hedge, is a strong driver, followed by business advantages. Often it is privileges in third countries – not the place granting the citizenship – that are sought. In contrast to middle-class strategic naturalisers, quality of life, education options, and job prospects were not important, though navigating geopolitical barriers and risks were. Many naturalisers were not compensating for the failures of their citizenship at birth, but manoeuvering within a world of state competition. Finally, some individuals inverted the citizenship hierarchy and downgraded from ‘first tier’ memberships when, after years of living abroad, their nationality became a liability. The conclusion elaborates on the duplex structure of intra-state and inter-state inequality that channels demand, and the implications for citizenship more broadly.

Identity

Biometrics as imperialism: age assessments of young asylum seekers in Denmark' by Nanna Dahler in (2020) Race and Class comments

This article explores medical assessments of the age of unaccompanied minors seeking asylum in Denmark, to show how, through the medical and bureaucratic aspects of the process, it serves as an imperialist technology of control, as those judged under 18 have greater protection in the asylum system. Since the biggest group of people who are age-estimated in Denmark are Afghans, the author looks at the relationship between Denmark and Afghanistan and draws on interviews with people who underwent the process. By connecting medical documents with biometric measurement in colonial contexts and the current expansion of biometric surveillance, the author argues that the collection of intrusive physical data from Afghan minors is to be understood as a colonial mapping of the body. The Danish Immigration Service’s age decision-making process articulates a form of administrative rule that works to depoliticise questions of dispossession and death, and is a form of colonial violence enabled by humanitarian discourse and law.

Publics

'Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public' by Elizabeth Sepper and Deborah Dinner in (2020) 54 University of Richmond Law Review 759 comments

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. That same year, the growing feminist movement also launched protests for women's equality in public accommodations. 

Our essay analyzes two case studies, from New Jersey in the late 1960s and California in the mid-1980s, to show what we might learn by integrating the histories of LGBTQ and feminist public accommodations activism. These case studies offer two lessons. First, the regulation of cisgender women and LGBTQ people stemmed from common sources of both law and custom. Public authorities and private businesses limited the access of unescorted heterosexual women, gay people, and gender nonconformists to public accommodations and surveilled their gathering in public space. For each of these groups, such policing was justified by fears of sexuality perceived to threaten the hetero-patriarchal family. Second, feminist and LGBTQ people's respective fights for equality in public reinforced one another. Before 1969, no city, state, or federal law prohibited sex, sexual orientation, or gender identity discrimination in public accommodations. Beginning in the 1960s, the LGBTQ and feminist movements pursued court battles and legal reforms. They ensured that liquor licensing no longer targeted cisgender women and LGBTQ people. Over the course of the 1970s and ‘80s, virtually all states came to adopt public accommodations laws prohibiting sex discrimination, and cities and states slowly began to explicitly include sexual orientation as well. Feminist and LGBTQ legal victories evolved in an interdependent rather than isolated manner.

Dirigisme

'From Industrial Policy to National Industrial Strategy: An Emerging Global Phenomenon' by Thomas A. Hemphill in (2020) Bulletin of Science, Technology and Society comments

In February 2019, the German federal government announced its new “National Industry Strategy 2030.” Many economies — including the United Kingdom (2017), European Union (2017), and Saudi Arabia (2018) — have announced national industrial strategies addressing the competitive threat of the People’s Republic of China’s 2015 “Made in China 2025” 5-year economic plan to become a global leader in 10 advanced technology manufacturing sectors. The use of the 20th-century term “industrial policy” heralds back to public policy antecedents of what is now evolving globally in the 21st century as national “industrial strategy,” a concept explored in this article. Unlike traditional 20th-century efforts at industrial policy (which focused on public policy efforts to maintain domestic primacy of declining, older industries), national industrial strategy recognizes (and generally accepts) the international global economy as a foundation of competition. Most importantly, national industrial strategy focuses on technologically emerging industries as well as the national government working collaborative in a partnership with these emerging industries to meet future growth challenges and opportunities

Corporate Insanity and Legitimacy?

Strange times indeed. 'The Corporate Insanity Defense' by Mihailis Diamantis in (2020) 111 Journal of Criminal  Law and Criminology comments

Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal corporations are strongest when those minds are well-ordered. That is when misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally-functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where sanctions would achieve little by way of deterrence. Punishing such corporations undermines the goals of criminal law, leaves victim interests unaddressed, and is unfair to corporate stakeholders. 

This Article argues that some corporate criminal defendants are entitled to raise the insanity defense. Recognizing the corporate insanity defense would better serve victims’ and stakeholders’ interests in condemning and preventing corporate misconduct. Statutory text makes the insanity defense available to all qualifying “defendants.” When a corporate criminal defendant’s “mind” is sufficiently disordered, basic criminal law purposes also support the defense. Corporate crime in such cases may trace to dysfunctional systems or subversive third-parties rather than to corporate malice. For example, individual corporate employees may thwart well-meaning corporate policies to pursue personal advantage at the expense of the corporation itself. In such cases, corporations may seem more like victims of their own misconduct rather than perpetrators of it. 

Justice and prevention favor treatment of “insane” corporations rather than punishment. Treatment would be an opportunity for government experts to reform dysfunctional corporations in a way that predominant modes of corporate punishment cannot. Effective reform takes victims seriously by minimizing the chance that others will be harmed. It also spares corporate stakeholders unnecessary punishment for corporate misconduct that could be sanctioned in more constructive ways. This is what the corporate insanity defense offers.

Ingenious but unpersuasive.

'Corporate Law Versus Social Autonomy: Law as Social Hazard' by Michael Galanis in (2020) Law and Critique states

 This article argues that corporate law has become the legal platform upon which is erected a social process impeding society’s capacity to lucidly reflect on its primary ends; in this sense, corporate law is in conflict with social autonomy. This process is described here as a social feedback loop, in the structural centre of which lies the corporation which imposes its own purpose as an irrational social end, i.e. irrespective of its potentially catastrophic social consequences. The article argues that resolving the conflict between corporate law and social autonomy is impossible, because it presupposes a change of social paradigm towards one where corporate law as business organisation law has no obvious fit. This questions the social legitimacy of corporate law, signifies its non-permanence and thus opens up the field for seeking radical alternatives in the future. 

Galanis argues

Even the keenest ‘black-letter’ admirer of existing laws would accept that social institutions ought to be open to change, in order to adapt to evolving social goals. However, adaptation is not always possible or at least as straightforward in practice, so that even radical action, such as the recent response to the coronavirus pandemic, may not have a lasting effect or may even exacerbate social hazards. Social institutions and their users can function as forces of inertia, so that society is unable to effectively meet its challenges by redefining its ends. Institutions appear as if they have acquired a dominant agency of their own, even when inertia is socially hazardous. 

This article claims that what is currently regarded as standard corporate law has a role in the emergence and persistence of such an inertia problem in our society. Within capitalism, corporate law is a central institutional component of a ‘social feedback loop’—i.e. a self-reinforcing social process—by which the primary corporate purpose, namely wealth accumulation, is amplified and imposed upon society as a supreme and indisputable social end. The mechanics of this loop are fairly simple. Firstly, as an extremely effective device for protecting corporate wealth and for promoting organisational expansion, the basic anatomy of corporate law has found an unprecedented fit with the primary capitalist purpose of infinite wealth accumulation. It has enabled business growth to the extent that economic activity is primarily organised within and between private, manager-controlled bureaucracies. Thus, corporate law is the legal platform for the bureaucratisation of the economy. At the corporate level, bureaucratic organisation tends to suppress the questioning of objectives. Therefore, once these are internally set by management, they are constantly reproduced by a feedback process within the corporate organisation. Secondly, due to its social dominance, the bureaucratic corporation externalises those privately-set objectives so that they are eventually elevated to social ones and this creates a wider social feedback loop. Corporate law is thus a legal structure for this social process which has become so pervasive that it hinders society’s reflective capacity in relation to its objectives. This capacity is the essential basis of social autonomy, since an autonomous society is founded on the recognition that social goals are endogenously fashioned and therefore subject to social scrutiny without predeterminations. 

In other words, by providing the legal foundation for the proliferation of the bureaucratised business organisation, the structural core of the feedback loop, corporate law serves as an institution rendering our society essentially heteronomous, i.e. a society founded on the belief that its primary ends are exogenously and eternally determined. This way, material accumulation acquires eternal validity as a primary social end and its consequences are ignored or marginalised. Corporate law is thus inevitably in conflict with social autonomy and therefore it is a socially hazardous institution. 

On this basis and drawing from the theory on bureaucracy and Castoriadis’ social philosophy, this article argues that the social legitimacy of corporate law needs critical re-examination. While engaging in a detailed discussion of alternative organisational forms is beyond this article’s scope, the finding that corporate law is socially hazardous is in itself important: it sets the basic parameters for further research on how business organisation law can be radicalised, in order to dismantle the social feedback loop presented here and sustain social autonomy. The discussion will proceed as follows. The next Part will examine the role and organisational impact of corporate law as a vehicle for business. The third Part will analyse the social significance of these organisational changes to argue corporate law is a socially hazardous institution which reproduces social heteronomy by locking social ends within a capitalist frame. The fourth Part will explore the possibility of instituting social autonomy, as a social ideal, but show that corporate law in its current form can have no obvious place in a society organised on this basis. In the light of these findings, the concluding section summarises the basic parameters of future reform for restoring the social legitimacy of business organisation.

Natural Law

'What Role for the State? (And a Comment on the Common Good)' by Matthew J. Lister in (2019) 44 Australasian Journal of Legal Philosophy comments

In his Natural Law and the Nature of Law, Jonathan Crowe has written an important and interesting book, one that should be read by people interested in jurisprudence, ethics, and political philosophy. Its distinctive strength is in the way Crowe shows how much can be done within a natural law framework that does not assume a theological background. A distinctive feature of Crowe's approach to natural law, one that distinguishes it from other well-known approaches, is its argument that only a minimal state, if any state at all, is required by or even compatible with natural law. It is this claim that I focus on in this paper. I show that these anti-state arguments do not work, and that a much more robust, largely state-like, type of political society is necessary if the requirements of natural law that Crowe accepts are to be met. In doing this, I also draw some related conclusions about the proper understanding and reach of the common good. In arguing for this conclusion I do not attack Crowe's general approach, but rather make what I hope to be an internal critique of the argument. If I am successful in this, then there will be reason for people who are sympathetic to the overall project to reject some of Crowe’s sub-conclusions, even if they wish to remain working in the natural law tradition overall. And, there will be reason to accept that something like the modern state will be necessary - at least for some time and for people like us - if we are to live good lives.

Roosters, Eggs and Wednesbury Reasonableness

In Zhong v Attorney-General [2020] VSC 302 Croucher J  comments

[8] Now, Mr Zhong is back in this Court again, still unrepresented, seeking judicial review of those most recent decisions. The amended originating motion, supporting affidavits and submissions in this Court were all drawn by Mr Zhong. Those documents contain a farrago of claims, some of which are hard to follow or are misconceived. Many are just scurrilous and should not have been made. Nevertheless, among his many complaints, Mr Zhong contends that his conviction makes about as much sense as the trial, conducted in Switzerland in 1474, at which a rooster was convicted of laying an egg. While nicely put, the difficulty with that complaint, and several others, is that they tend impermissibly to invite merits review. Mr Zhong also appears, at times, to think that merely to utter such a submission means that it must be accepted. That said, I have taken complaints like those, in substance, to be grounds alleging something akin to “Wednesbury unreasonableness”. Mr Zhong also claims that, despite his written and oral requests, the Attorney erroneously has declined to provide reasons for her decision. 

[9] The Attorney makes three principal responses. First, she submits that neither decision is reviewable. Secondly, it is submitted that, even if the decisions — or the processes by which those decisions were reached — are reviewable, Mr Zhong’s claims, in substance, impermissibly invite merits review, have previously been adjudicated on appeal or are otherwise not made out. Thirdly, while it is conceded by the Attorney that no reasons were provided to Mr Zhong, it is submitted that he made no request for reasons under s 8 of the Administrative Law Act 1978 (Vic) (“the ALA”) and that neither the common law nor the Charter requires the giving of any such reasons. 

[10] The state of the law binding on this Court appears to be that the Governor’s exercise of the prerogative of mercy in not reviewable at all. Some recent decisions, however, in other jurisdictions with analogues of s 327 of the CPA, have allowed that at least the process by which the Attorney’s decision to decline to refer a case to the Court of Appeal is reviewable. But those decisions are not binding on this Court. That said, it is unnecessary to determine those issues finally, because I am satisfied that none of Mr Zhong’s grounds can succeed in any event. In consequence, the answers to the important questions concerning reviewability should await a case in which they might be determinative of the outcome. Similarly, while the applications raise nice questions concerning whether the Attorney has an obligation to provide reasons under s 8 of the ALA, I am not satisfied that Mr Zhong made a request for reasons. Nor am I persuaded that the Attorney has a duty to provide reasons at common law or pursuant to the Charter.  

[11] Accordingly, I would dismiss these applications. 

[12] Whether Mr Zhong has persisted in seeking to overturn his conviction out of a genuine sense of outrage, or in pursuit of forgiveness, or to play Jesus to the lepers in his head, or perhaps just in the hope of rebuilding his relationship with his daughter, I cannot say. Nor, of course, is it mine to reason why. But, whatever his motive, no one could deny that he has been dogged in what has turned out to be a long and losing fight. 

[13] That said, perhaps all is not lost for Mr Zhong. Despite the orders I must make, I am nevertheless concerned about aspects of his trial and the safety of his conviction. I am also troubled that neither the Attorney nor this Court had access to the complete trial transcript or trial exhibits. These matters have driven me to the unusual course of making an unsolicited recommendation to the Attorney that she might consider a fresh petition in any event. Indeed, I would go so far as to say that, even on the limited material before this Court, if, as a member of the Trial Division, I had been asked (along with other judges) to provide an opinion to the Attorney pursuant to ss 327(1)(b) and (3) of the CPA, I would have opined that she should refer the whole case to the Court of Appeal pursuant to s 327(1)(a). 

[14] If a new petition is to be filed, this time, it must include the complete trial transcript and all trial exhibits. Also, it should be far more targeted than previous petitions, and should exclude the reams of drivel and bile with which Mr Zhong has burdened Attorneys past and present. I think he would need (and it would be preferable for all if he had) expert legal help to achieve that. Maybe a kindly barrister or two would pitch in.

The rooster case - alas the poor bird got toasted - appears in 'Nature on Trial: The Case of the Rooster That Laid an Egg' by E V Walter in (1985) 10(10) Comparative Civilizations Review, drawing on the problematical 1906 The Criminal Prosecution and Capital Punishment of Animals by E P Evans.