Publish And Be Damned?

A paper on 'Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory' by Paul Robinson, Michael Cahill & Daniel Bartels argues that

Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.

The paper summarises the results of

an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.

Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. [The paper] reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.

The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.

Human Rights

The Australian government has released the report of the National Human Rights Consultation Committee, a gathering of the Great & the Good comprising Father Frank Brennan, Mary Kostakidis, Mick Palmer and Tammy Williams.

That report was submitted to the Attorney-General, the Hon Robert McClelland MP, on 30 September 2009. It reflects over 35,000 submissions and community input via "66 community roundtables and three days of public hearings", collectively described by Mr McClelland in his 8 October speech as "most extensive consultation on human rights issues, and probably on any issue at all, in Australia's history". Metrics, metrics, uber alles!

The Attorney-General has also announced the start of public consultation on the 188 page report of the Access to Justice Taskforce [PDF], which was released along with the 16 page Strategic Framework for Access to Justice [PDF] on 23 September. The report features recommendations regarding improved access to the federal civil justice system. Submissions as part of that consultation can be made through consultation fora, online or by snail/email. The deadline for submissions is 30 October 2009, arguably not a very generous timeframe.

The Strategic Framework is described as

based on five key principles of accessibility, appropriateness, equity, efficiency and effectiveness and will support a justice system that aims to:

* allocate resources more efficiently;
* promote fair outcomes;
* encourage the early resolution of problems and disputes;
* enable matters to be directed to the most appropriate method for resolution;
* identify broader issues which may cause specific legal problems; and
* empower individuals, where possible, to resolve their own disputes.

The Attorney-General commented that

Increasingly, the experience of ordinary Australians dealing with the justice system is marked by confusion and complexity. People often don't understand legal events, what to do or where to seek assistance, while many are excluded because information is complicated or simply difficult to find.

The Framework looks at how the justice system operates as a whole and in doing so, seeks to encourage better information, early intervention, and improved avenues to resolve disputes without the need for litigation.

A modest starting point for improved access might be to reconsider A-G's electronic publishing system, which resulted in non-intuitive URLS of daunting length for both documents.

The National Human Rights Committee report 'went live' with the Attorney-General's words that

most people who participated in the Consultation are convinced that Australia is one of the best places to live.

Australians can indeed be proud of our nation. We enjoy a strong parliamentary democracy, with universal suffrage and a clear system of checks and balances which contribute to maintaining our strong and independent democratic institutions, underpinned by the rule of law that applies equally to all – irrespective of any office a person may hold.

Our common law recognises a number of human rights principles and we have a range of anti-discrimination laws to prohibit unfair discrimination on the grounds such as race, age, sex and disability.

The meaningfulness of remedies under those statutes for sometimes problematical. Mr McClelland indicated that

We are also a party to a number of international instruments which outline fundamental human rights that are recognised by the international community. Australians are well served by the Australian Human Rights Commission, the Ombudsman and our independent judiciary. In addition to this institutional framework, Australia also has an independent media and a robust non-government organisation sector.

The Minister then conceded that "the patchwork quilt of protections needs some mending", noting that

it is fair to say that the Committee's observation that Australia has a 'patchwork quilt' of protection for human rights is quite apt.

For most of us the 'patchwork quilt' is working well. But, as the Committee's report highlights, there are times when individuals, especially those who are vulnerable or disadvantaged, miss out including the homeless, people with disabilities, children at risk and Indigenous Australians.

He goes on to explain that

The report shows that there are many views on how human rights and responsibilities should be protected, promoted and realised.

Unsurprisingly, there are strong views firmly held on the merits or otherwise of a Human Rights Act.

However, as the report clearly shows there are many ways to protect and promote human rights including through enhanced education and improved parliamentary scrutiny.

The report shows that too many Australians are not informed about what 'human rights' are or how they are currently protected.

The need for increased human rights education was clearly a re-occurring issue in many of the roundtables, the written submissions and surveys conducted.

The Government agrees that human rights education can play an important role. It is important to ensure that people not only understand their rights but also, more broadly, the role of human rights and responsibilities in our community.

Dollops of wholesome 'Third Way' civics lessons and fridge magnets to accompany a non-entrenched and non-justiciable Charter of human rights?

It is disappointing that the report envisages such a weak Charter (rather than adopting the Canadian model) and proposes that the legislation should be restricted to the national government. As one constitutional law expert commented to me, "apparently it's OK to let the States and Territories remove rights".

Horror Stories

Having read Christian Pross' Paying For The Past: The Struggle Over Reparations For Surviving Victims of the Nazi Terror (Johns Hopkins University Press, 1998) on the way back from Melbourne on Wednesday I was in no mood for the conjunction of a New York Magazine item on violence against gay men in Iraq - the usual nastiness (beating, decapitation, castration, supergluing the victim's anus, carving bad words on the victim's chest or face) - and claims that Joseph Massad has got tenure ("a life-time teaching post") at Columbia U.

Pross is interesting for a view of resistance within the German legal, insurance and medical establishments to recognising psychological or other harm suffered by inmates of concentration and death camps ... a resistance evident in wilful insistence on the provision of proof that injuries were attributable to time spent behind the wire, distortion of evidence by claim assessors and arbitrary decisionmaking by people who in some cases had moved from executive positions in the killing machine to posts in local government saying yay or nay to representations from ailing 60, 70 and 80 year olds. As a passenger on the flight noted, sometimes bureaucratic rationality is a real bummer.

Massad has gained attention for polemics against Israel (characterised as an illegitimate colonialist Orientalist state) and for 'Re-Orienting Desire: The Gay International and the Arab World' in (2002) 14(2) Public Culture 361-385. That article - reflected in his Desiring Arabs (Chicago University Press, 2007) - claims that "the Gay International" (more sinister than the Homintern - oops, the Comintern - and of course so very very Orientalist) is engaged in a global conspiracy directed at the Muslim world by the secular/Christian West.

Along the way he'd offered treats such as comparison of Israel with Nazi Germany (apparently both are engaged in genocide) and claims such as "The only constant in Palestinian lives for the last century of Zionist atrocities has been resistance to the Zionist project of erasing them from the face of the earth". Uh huh

A spirited review by the Guardian's Brian Whitaker comments that

While it may be interesting to consider how far modern (western) constructs of sexual identity have been adopted (or not) by various cultures, in terms of sexual rights the question is largely irrelevant: it is the behaviour that is liable to be penalised, regardless of how people describe themselves. ... much Arab activism (of all kinds) is organised from abroad. Inevitably, in Massad's eyes, that turns the activists into "native informants", aiding and abetting the western "missionaries".

Massad appears similarly blinkered to the human cost of the prevailing attitudes towards homosexuality in Arab countries: the murders of gay men in Iraq, entrapment by the police in Egypt, the arrests of men who "behave like women" in Saudi Arabia, the beatings at the hands of families, the futile and potentially harmful psychiatric "cures", blackmail, the lack of state protection, and more. There is no real acknowledgment of a problem that Arabs should attend to.

Nicely put. A core attribute of universal rights (such as the right not to be sealed with superglue) is that they are universal, not magicked away if there is a palm tree or a camel or a yurt or an elephant in proximity.

People who regard human rights as an undesirable import might refer to the persuasive analysis in Bede Harris' acute submission [PDF] to Australia's National Human Rights Consultation - discussed elsewhere in this blog - and to two papers by Eric Heinze.

His 'Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech' [here] comments that

All European states prohibit some form of hate speech. US law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.

Heinze's 'Truth and Myth in Critical Race Theory and Latcrit: Human Rights and the Ethnocentrism of Anti-Ethnocentrism' in (2008) 20(2) National Black Law Journal 62-107 [here] argues that

Critical race theorists and LatCrits argue that, throughout US history, norms promising liberty and equality have been myths. They examine the formalisms of US rights discourse through the lens of a realist jurisprudence, arguing that guarantees of 'equal protection' or 'due process' have failed non-dominant groups throughout long histories of slavery, segregation, subordination, and ongoing exclusion. However, a number of them merely substitute a simplistic myth of US-is-good with an equally simplistic myth of US-is-bad. Scholars such as Mari Matsuda, Richard Delgado, Celina Romany, Berta Esperanza Hernández-Truyol, Elisabeth Iglesias condemn those who praise the black letter of US law while overlooking its brutal realities; yet they then take precisely that approach to non-US legal regimes, such as the standard norms of international human rights law, praising the black-letter norms while ignoring the oppressive politics and histories of many of the powerful countries and institutions behind them. Far from overcoming American ethnocentrism, they thereby recapitulate it. Within an ever more global discourse of human rights, critical theorists can only retain credibility by applying the same realist methods to international and non-US regimes that they demand for US law.

'

Mooting

Yesterday's entertainment was attending the grand final (at the High Court) of the national constitutional law mooting competition. (I'd had fun judging in one of the finals). UC made it to the grand - judged by Chief Justice Robert French, constitutional law expert Bede Harris and Dean R - but went down to the University of Queensland team. Nice questioning by Dr Harris

All in all it was a good effort from the ISAACS Law Society (with a bit of help from LexisNexis), which managed an event that brings together law students from across Australia.

Phantom POWs?

I've been working on a law journal article regarding what US commentators have characterised as 'stolen honour', ie people who have falsely claimed to have been awarded military decorations or more broadly be entitled to public esteem (and benefits such as service pensions) for exemplary activity as a member of the armed/police forces.

Those claims, similar to instances of 'survivor fraud' (psychologically disturbed or merely opportunistic people claiming to be survivors of the Titanic, the Lusitania, 9/11, the Victorian Bushfires, the Shoah or satanic rituals), are an inevitable feature of our society. Impostures by people who believed their own lies or who merely wanted others to believe them are discernable from at least the time of Imperial Rome.

An interesting aspect is the bizarre nature of some claims (eg a perpetrator claiming to have walked across wartime Europe while being fed by wolves) and what might seem to be egregious risk-taking on the part of some claimants (eg awarding yourself trivial honours is less likely to attract attention than decorating yourself with the Victoria Cross), an excess that arguably indicates psychological disturbance - or sheer howling stupidity - rather than a rational assessment of an easy way to cash in.

Australia's Charles Sturt University fired James Montgomery, who modestly claimed to have been awarded the Victoria Cross (somewhat rarer than a Nobel Prize) and to have served as a US Marine, a US Navy SEAL, an Australian SAS Captain, a SAS Major, a Commando and a RAN Reserve Captain. No, he wasn't employed as a lecturer in creative writing.

Another aspect is the delay in detection of some fraudsters and the failure of gatekeepers,including specialists used by some large corporations that face substantial reputational risk in appointing senior executives with bogus CVs. One example was CV embellishment by Jeff Papows of IBM, which provoked the UK Register to comment -

So he's not an orphan, his parents are alive and well. He wasn't a Marine Corps captain, he was a lieutenant. He didn't save a buddy by throwing a live grenade out of a trench. He didn't burst an eardrum when ejecting from a Phantom F4, which didn't crash, not killing his co-pilot. He's not a tae kwon do black belt, and he doesn't have a PhD from Pepperdine University.

I was thus interested to read in today's Melbourne Age that the Australian Federal Police are investigating an alleged fraud by 83 year old Arthur Rex Crane, federal president of the Prisoners of War Association of Australia. Crane has reportedly been on the highest level of service pension since 1988, received a substantial ex gratia payment and claimed to be one of Australia's youngest prisoners of war.

Crane reportedly alleged he was captured by the Japanese in 1942, became a prisoner of war at 15, was imprisoned in Singapore's Outram Road jail, had his hands nailed to a tree by his captors and had his head smashed by a soldier wielding a baseball bat. Alas, the Sydney Morning Herald reported that throughout the war the 83-year-old lived in Adelaide and had never served in the military. His supposedly dead brother is alive and well. When confronted by journalists, he reportedly responded "It is me living a lie, isn't it?"

A media release [PDF] from the federal Veterans Affairs Minister Alan Griffin describes the matter as disgusting -

Personally, I think for anyone to impersonate a prisoner of war is disgusting. It is a betrayal of all the values our veterans stand for. ... This matter should be pursued to the fullest extend of the law and I am confident that the AFP will do so. I eagerly await the outcome of that investigation."

Crane's alleged offence echoes deceptions such as those involving 'Major' Reg Newton, who rose to become junior vice-president of the 8th Division Association in Australia. Newton claimed a Military Cross and bar ("awarded MC for heavy action Laos"). He had supposedly been in service as a secret agent during the Cold War (setting up escape lines in East Germany in 1951), been wounded in Korea, almost killed in Mongolia and decorated by King George VI.

Unfortunately for him, after basking in the esteem of his fellows and being featured in newspaper articles, he was sprung in 2006. A NSW court heard that he was never a major, had never won a Military Cross and indeed never served overseas. The court was apparently unimpressed with reports that he explained discrepancies and the absence of documentation on the basis that his work was "top secret".

Public faces in eastern places

I'm reading Marc Nichanian's The Historiographic Perversion (Columbia Uni Press, 2009) on responses to the Armenian Genocide after scooting through Paul Bailey's Censoring Sexuality (Seagull Books 2007) and an article by Christos Zagkos, Argyris Kyridis, Ifigenia Vamvakidou and Nikos Fotopoulos on 'The Banknote as a Figure of Nationhood in the Balkan Countries' in 23(9) Applied Semiotics 5-27. The latter is similar to Dennis Altman's delicious Paper Ambassadors: The Politics of Stamps (Angus and Robertson 1991).

Bailey's book is a slim, elegant personal reflection on censorship - self-censorship, use of the death penalty in contemporary Iran, and otherwise - of homosexual activity and affection. It supplemented by a collection of extracts from literature and reports of repression, notably an account by a gay man in the kleptocracy known as Egypt and accounts of what it's like to be gay (or merely perceived as gay) in places contested by Fatah and Hamas.

Zagkos et al explain that

Money is the foundation of any national economy, but also the mark of national sovereignty, reflecting the state which issues it. Its symbolic role is one of its essential characteristics, and the name of the currency its salient feature. Policymakers recognize that currencies can act as important carriers of nationalist imagery, particularly if its supply is monopolized. Money would indeed seem a perfect locus on which a state can construct an ‘ordinary nationalism’ that is all the more powerful for being part of the seemingly unremarkable fabric of daily life. In this paper, using a semiotic methodology, we shall analyse the symbols of the state produced banknotes of Albania, Turkey, the Former Yugoslav Republic of Macedonia and Bulgaria, in an attempt to read the underlying meanings of the symbolisms selected by each state, in the geographical area of Balkans that is synonymous with nationalism, since the foundation of the modern nation-states on the region.

Altman comments that

For most people, stamps are objects that are bought after queuing at the post office, used, and discarded. Apart from stamp collectors few people really look at stamps, although almost everyone who is literate will make frequent use of them. Every recognised state -- and quite a few unrecognised ones -- produces stamps, increasingly far more than are necessary for purely postal purposes. In 1890, a few hundred stamps were issued worldwide; these were small, dignified and sombre in appearance. In 1990 almost 10,000 stamps will be issued, many of them large, garish and multicoloured. ...

"There is nothing in the world as invisible as monuments" wrote the German author Robert Musil, and in a sense stamps are monuments writ small. Almost no subject is too obscure to appear on stamps. Yet they are both miniature art works and pieces of government propaganda: they can be used to promote sovereignty, celebrate achievement, define national, racial, religious or linguistic identity, portray messages or exhort certain behaviour. Even the most seemingly bland design -- one depicting roses, say, or domestic animals -- has been deliberately issued by a particular government for a particular purpose.

It is true that it is difficult to read messages into certain designs, those just displaying a numerical value, for example, or those produced by a number of countries using astrological symbols. (Even though the latter would hardly be acceptable to certain orthodoxies, either Christian or Marxist.) But often what appears to be just a pretty picture has a deep significance in the local culture. Stamps of shells -- very common from Pacific Island countries -- draw on traditional associations; this design from Fiji, for example, shows shells widely used for currency. ...

It is the assertion of this book that even if you have never collected stamps in your life, to start really looking at them is ... to start seeing things anew. What appears on stamps is a message. It is the purpose of this book to decode these messages, and to show how that often ignored piece of coloured paper on the edge of an envelope is part of a picture of the world that governments seek quite consciously to create. In this sense, stamps make up part of what the Australian political scientist Donald Horne has termed "the public culture", namely that set of images and values which are propagated as the taken-for-granted picture of the world.

iMandy2.0

Mandy Rice-Davies, an actor in the 1963 Profumo Affair, famously responded to a barrister's statement that Lord Astor denied having an affair or having even met her with the comment "Well, he would, wouldn't he?". (After that, as she subsequently commented, her life was "one slow descent into respectability".) There's a hint of "they would say that, wouldn't they" in both Kraft's denial of cynicism - or a stuff up - in the launch of its new Vegemite Cream Cheese concoction and in the media beat up about the launch. The SMH reports that iSnack2.0 fury prompts naming rethink -

Consumer uproar over iSnack2.0 has forced Kraft to concede that its new Vegemite-cream cheese blend might have to be renamed. US-based Kraft is now considering how it could change the name of the product before half a million of the jars bearing the new name go on sale over the next few days. "There's a distinct possibility that we'll be critically evaluating the name", Kraft's head of corporate affairs Simon Talbot said today. "The name isn't resonating with success or favour."

How very very strange ... and sad that the matter's featured in the Herald as the paper slides downmarket as a purveyor of infotainment and corporate media releases.

The number of negative comments posted on blogs and on social networking sites is now running into the thousands, prompting Kraft to step back from fully endorsing the new name, which was chosen from 48,000 as part of a competition to get Australians to name the new spread. Kraft has about 500,000 jars of the iSnack2.0-labelled product in warehouses in Sydney and Melbourne. They will start arriving on supermarket shelves today, Mr Talbot said. That is about two months of supply, he said. ... But the new name has roused almost universal indignation.

The marketers may be dancing all the way to the bank - two items in the SMH, let alone all those "thousands" of negative comments (including this author's snark) are one way of getting exposure for a household staple. Or it could just be another demonstration of not letting your creatives and MBAs off the leash, in case they succumb to the fad (not dead, just smells that way) for whacking an e- or an i- in front of every moniker or spraying 2.0 on the label. A later SMH item reported

Kraft crumbles: iSnack2.0 scrapped Kraft has bowed to public pressure and ditched the name iSnack2.0 for its new Vegemite-cream cheese blend. "We have been overwhelmed by the passion for Vegemite and the new product. The new name has simply not resonated with Australians. Particularly the modern technical aspects associated with", said Kraft spokesman Simon Talbot. In a statement this afternoon, the company said it would once again throw open the challenge to Australians to come up with a new name. But the company denied it had all been a publicity stunt. "At no point in time has the new Vegemite name been about initiating a media publicity stunt," Mr Talbot, said. "We are proud custodians of Vegemite and have always been aware that it is the people's brand and a national icon." Thousands of the jars with the new name will be distributed to supermarkets ready to go on sale, ensuring that the soon to be scrapped name will quickly become a collectors' item.