Buffing

There's nothing like buffing your CV, albeit there might be some embarrassment when - as Zepinic, Wilce and Papows discovered - people eventually ask inconvenient questions.

Reuters draws on two Obstetrics & Gynecology articles (alas not readily available at UC) in reporting that studies of applications to training programs in obstetrics in the US indicate that up to 30% of applicants took credit for research publications that could not be found.

Unsurprisingly

"Our hope is that these are honest mistakes and not willful attempts to mislead," said Dr. Michael Frumovitz, a professor at the University of Texas MD Anderson Cancer Center in Houston, and lead author of one of the studies.

In a field where precision is important, "even if it's an honest mistake it's very troubling," he said.

Earlier studies have found that other specialties within medicine suffer from the same problem.

Anywhere from one to 30 percent of applications to training programs in radiology, emergency medicine, orthopedics and others include references to published research that can't be located by reviewers.

Frumovitz's team drew on all 258 applications to a MD Anderson gynecologic oncology fellowship program from 2004 to 2008, involving physicians who had completed their medical school and residency training. 44 of the 148 doctors who indicated that they had published research findings included a reference to a publication that the team could not find.

A similar University of Washington study headed by Anne-Marie Amies Oelschlager noted that 357 of 937 applicants to a residency program in obstetrics and gynecology stated that they had at least one research study published or about to appear in a peer-reviewed publication.

When Amies Oelschlager's group went to find those publications, 156 of the 1,000 publications listed turned up missing.

They looked online, in publication databases and even contacted the journal for verification.

Of the other publications that were confirmed, the researchers found inaccuracies there as well.

The biggest error was that 62 applicants had listed a publication as "peer-reviewed" when it wasn't.

Oelschlager is reported as commenting that

The best you can assume is that these applicants didn't look up what peer review meant or they don't understand it. None of that is flattering and you worry whether they really understand the tenets of authorship, research, what is peer review and what is not.

Applicants might be deliberately padding their resumes to try and get a spot, and it's concerning. The whole thing about being a physician is that you are expected to be honest.

I wonder about buffed CVs for law schools and private/public practice.

'Unverifiable and Erroneous Publications Reported by Obstetrics and Gynecology Residency Applicants' by Simmons, Kim, Zins, Chiang & Oelschlager in 119(3) Obstetrics & Gynecology (2012) 498–503 aimed to "estimate the rate of erroneous and unverifiable publications in applications for an obstetrics and gynecology residency and to determine whether there were associated characteristics that could assist in predicting which applicants are more likely to erroneously cite their publications".

The authors indicate that -

This was a review of the Electronic Residency Application Service applications submitted to the University of Washington obstetrics and gynecology residency for the 2008 and 2009 matches. Publications reported to be peer-reviewed articles and abstracts were searched by querying PubMed, Google, and journal archives (first tier), topic-specific databases (second tier), and by e-mailing journal editors (third tier). Errors were categorized as minor, major, and unverified.

Five-hundred forty-six (58%) of 937 applicants listed a total of 2,251 publication entries. Three-hundred fifty-three applicants (37.7%) listed 1,000 peer-reviewed journal articles and abstracts, of which 751 were reported as published and 249 as submitted or accepted. Seven-hundred seventy (77.0%) publications were found by a first-tier search, 51 (5.1%) were found by a second-tier search, 23 (2.3%) were found by a third-tier search, and 156 (15.6%) were unverified. Of the 353 applicants listing peer-reviewed articles or abstracts, 25.5% (90 of 353) committed major errors, 12.5% (44 of 353) committed minor errors, and 24.1% (85 of 353) had articles or abstracts that were unverified.

Most applicants reported their publications accurately or with minor errors; however, a concerning number of applicants had major errors in their citations or reported articles that could not be found, despite extensive searching. Reported major and unverified publication errors are common and should cause concern for our specialty, medical schools, and our entire medical profession.

TRC Interim Report

Canada's national Truth & Reconciliation Commission (TRC) has released an Interim Report [PDF] regarding Indigenous residential schools - characterised by some observers as analogous to the 'Stolen Generations' inquiry in Australia and more broadly to inquiries in Ireland that revealed government indifference regarding abuses in homes run by religious organisations. The document is of interest to human rights scholars, historians, archivists and people concerned with legal procedure (including issues of evidence, confidentiality and copyright).

The Interim Report states that -

Up until the 1990s, the Canadian government, in partnership with a number of Christian churches, operated a residential school system for Aboriginal children. These government-funded, usually church-run schools and residences were set up to assimilate Aboriginal people forcibly into the Canadian mainstream by eliminating parental and community involvement in the intellectual, cultural, and spiritual development of Aboriginal children.

More than 150,000 First Nations, Inuit, and Métis children were placed in what were known as Indian residential schools. As a matter of policy, the children commonly were forbidden to speak their own language or engage in their own cultural and spiritual practices. Generations of children were traumatized by the experience. The lack of parental and family involvement in the upbringing of their own children also denied those same children the ability to develop parenting skills. There are an estimated 80,000 former students still living today. Because residential schools operated for well more than a century, their impact has been transmitted from grandparents to parents to children. This legacy from one generation to the next has contributed to social problems, poor health, and low educational success rates in Aboriginal communities today.

The 1996 Canadian Royal Commission on Aboriginal Peoples and various other reports and inquiries have documented the emotional, physical, and sexual abuse that many children experienced during their school years. Beginning in the mid-1990s, thousands of former students took legal action against the churches that ran the schools and the federal government that funded them. These civil lawsuits sought compensation for the injuries that individuals had sustained, and for loss of language and culture. They were the basis of several large class-action suits that were resolved in 2007 with the implementation of the Indian Residential Schools Settlement Agreement, the largest class-action settlement in Canadian history. The Agreement, which is being implemented under court supervision, is intended to begin repairing the harm caused by the residential school system.

The Commission was established to

• reveal to Canadians the complex truth about the history and the ongoing legacy of the church-run residential schools, in a manner that fully documents the individual and collective harms perpetrated against Aboriginal peoples, and honours the resiliency and courage of former students, their families, and communities; and
• guide and inspire a process of truth and healing, leading toward reconciliation within Aboriginal families, and between Aboriginal peoples and non-Aboriginal communities, churches, governments, and Canadians generally. The process will work to renew relationships on a basis of inclusion, mutual understanding, and respect.

The Commission's Interim Report concludes that -

1) Residential schools constituted an assault on Aboriginal children.

2) Residential schools constituted an assault on Aboriginal families.

3) Residential schools constituted an assault on Aboriginal culture.

4) Residential schools constituted an assault on selfgoverning and self-sustaining Aboriginal nations.

5) The impacts of the residential school system were immediate, and have been ongoing since the earliest years of the schools.

6) Canadians have been denied a full and proper education as to the nature of Aboriginal societies, and the history of the relationship between Aboriginal and non-Aboriginal peoples.

In discussing procedural aspects the TRC comments that -

The federal government has been aware of its need to provide all relevant documents since the signing of the 2005 agreement-in-principle that preceded the final Settlement Agreement. Despite this, the federal government has

• provided the Commission with only a very limited portion of the relevant documents in its possession
• taken the position that it has no obligation to identify and provide relevant historical documents held by Library and Archives Canada to the Commission. Under this approach, departments would have to search and produce records only from active and recent files. This is inappropriate in dealing with matters dating back over a century.
• informed the Commission that, despite the Commission’s request, it has not agreed to provide the Commission with the Settlement Agreement & Dispute Resolution (SADRE) database, which contains all the residential school research files of Aboriginal Affairs and Northern Development Canada.
• yet to provide the Commission with appropriate levels of access to federal archives — an issue that compromises both document collection and report preparation.

In addition, the federal government has taken the position that it cannot disclose records in its possession if those records were provided to it by the churches in response to specific residential schools court cases. It maintains this position even for records created by the federal government but that contain information first obtained from church records.

The federal government asserts that since it obtained the church records and information through the litigation process, it is subject to an implied undertaking to use or disclose those records only in relation to the specific court decisions to which the records relate. The federal government asserts that the fact that the government and the churches settled such court cases through the Settlement Agreement, which includes an express obligation that Canada and the churches would disclose all relevant records in their possession, does not constitute a waiver of those implied undertakings. In the case of a conflict between the implied undertakings and the express obligation in the Settlement Agreement to produce all records in its possession to the Commission, the government maintains it must give preference to the implied undertakings. The Commission finds this position unacceptable.

In addition, while the Commission has received helpful cooperation from most of the churches and archivists it has dealt with, individual church archivists have sought to impose conditions before they will produce records to the Commission.

Such conditions include:

• instructions as to how the Commission should caption photographs in its reports
• limitations on the Commission’s use of photographs to a “one-time only” use
• distinctions between their “internal” and “external” and “restricted” and “unrestricted” records
• restrictions as to how the Commission can use records in different categories.

Some archivists insist that the Commission acknowledge that the churches own copyright in the records located in their archives. With respect to such claims, the churches make no copyright distinctions based on who created the records or when, and do not explain what copyright interests they are seeking to protect.

All these issues have caused and continue to cause considerable delay for the Commission in its attempt to meet its mandated obligation and enforce compliance of the parties’ obligations to produce relevant records. It is unlikely that the document-collection process will be completed without a significant shift in attitude on the part of Canada and those parties who have been reluctant to cooperate.

The Commission makes several recommendations -

1) the Government of Canada issue the necessary orders-in-council and funding authorities to ensure that the end date of the Commission and Commissioners’ appointments coincide, including the necessary wind-down period after the Commission’s last public event.

2) the Government of Canada work with the Commission to ensure the Commission has adequate funds to complete its mandate on time.

3) the Government of Canada ensure that Health Canada, in conjunction with appropriate provincial, territorial, and traditional health care partners, has the resources needed to provide for the safe completion of the Truth & Reconciliation Commission’s full mandate, and to provide for continuous, high-quality mental health and cultural support services for all those involved in Truth & Reconciliation and other Indian Residential Schools Settlement Agreement activities, through to completion of these activities.

4) each provincial and territorial government undertake a review of the curriculum materials currently in use in public schools to assess what, if anything, they teach about residential schools.

5) provincial and territorial departments of education work in concert with the Commission to develop age-appropriate educational materials about residential schools for use in public schools.

6) each provincial and territorial government work with the Commission to develop public-education campaigns to inform the general public about the history and impact of residential schools in their respective jurisdiction.

7) the Government of Canada and churches establish an ongoing cultural revival fund designed to fund projects that promote the traditional spiritual, cultural, and linguistic heritages of the Aboriginal peoples of Canada.

8) all levels of government develop culturally appropriate early childhood and parenting programs to assist young parents and families affected by the impact of residential schools and historic policies of cultural oppression in the development of parental understanding and skills.

9) the Government of Canada, and the federal Minister of Health, in consultation with northern leadership in Nunavut and the Northwest Territories, take urgent action to develop plans and allocate priority resources for a sustainable, northern, mental health and wellness healing centre, with specialization in childhood trauma and long-term grief, as critically needed by residential school survivors and their families and communities.

10) the Government of Canada, through Health Canada, immediately begin work with provincial and territorial government health and/or education agencies to establish means to formally recognize and accredit the knowledge, skills, and on-the-job training of Health Canada’s community cultural and traditional knowledge healing team members, as demonstrated through their intensive practical work in support of the Truth & Reconciliation Commission and other Settlement Agreement provisions.

11) the Government of Canada develop a program to establish health and wellness centres specializing in trauma and grief counselling and treatment appropriate to the cultures and experiences of multi-generational residential school survivors.

12) the parties to the Indian Residential Schools Settlement Agreement, with the involvement of other provincial or territorial governments as necessary, identify and implement the earliest possible means to address legitimate concerns of former students who feel unfairly left out of the Settlement Agreement, in order to diminish obstacles to healing within Aboriginal communities and reconciliation within Canadian society.

13) to ensure that survivors and their families receive as much healing benefit as the apology may bring them, the Government of Canada distribute individual copies of the “Statement of Apology to Former Students of Indian Residential Schools” to all known residential school survivors.

14) the Government of Canada distribute to every secondary school in Canada a framed copy of the “Statement of Apology to Former Students of Indian Residential Schools” for prominent public display and ongoing educational purposes.

15) federal, provincial, and territorial governments, and all parties to the Settlement Agreement, undertake to meet and explore the United Nations Declaration on the Rights of Indigenous Peoples, as a framework for working towards ongoing reconciliation between Aboriginal and non-Aboriginal Canadians.

16) the Government of Canada meet immediately with the Aboriginal Healing Foundation to develop a plan to restore funding for healing initiatives to the Foundation within the next fiscal year.

17) the Government of Canada and the churches produce all their relevant records to the Commission as quickly as possible.

18) Canada and the churches make a dramatic change in the way they address the funding and timeliness of document production and digitization.

19) all agencies and organizations that are not parties to the Settlement Agreement, but have holdings relevant to the history and legacy of residential schools (such as provincial and university archives, libraries, museums, galleries, and Aboriginal organizations), contact the Commission and assist the Commission in receiving copies of all such relevant documents.

20) governments, educational institutions, and churches consult, design, announce, and publicly unveil residential school commemorations before the completion of the Commission’s mandate.

US Workplace privacy

'Privatizing Workplace Privacy' (Marquette Law School Legal Studies Paper No. 11-27) by Paul Secunda comments that -

Perhaps “the” question in this age of workplace technological innovation concerns the amount of privacy employees should have in electronic locations in the workplace. An important related question is whether public sector and private sector employees, who have different legal status under the state action doctrine, should enjoy the same level of workplace privacy. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it audited an officer’s text messages from his city-issued pager.

In a cryptic decision, Justice Kennedy held for a unanimous court that assuming the officer had a reasonable expectation of privacy in the pager, the city's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated by the Supreme Court in O’Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in O’Connor, it was reasonable because it would be considered “reasonable and normal” in the private sector workplace. To varying degrees, both of these legal tests suggest that questions of workplace privacy in the public and private sectors should be treated the same.

Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. Maintaining that public sector workers are entitled to greater levels of privacy protections based on the text of the constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this article argues for a new, two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment’s warrant and probable cause requirements to those searches undertaken for investigatory purposes.

Secunda argues that -

even if public employee records are required to be disclosed in some circumstances to their employer or to the public, there is still substantial room to protect many type of personal documents and materials which may exist in that employee’s personal office space. To the extent that such materials are not subject to disclosure under the public records law, they should be protected from targeted, investigatory searches by government employers by the warrant and probable cause requirements of the Fourth Amendment for the reasons discussed in detail above.

A majority of the Supreme Court in O’Connor appear to sanction this approach. Justice Scalia in his concurrence, joined by the four members of the plurality, observed that, “[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer.” While one may not have a privacy interest in one’s workplace communications as to the public because of the operation of the public records law, one can still have a privacy interest against the government employer if previous employer actions suggested to the employee that they had a reasonable expectation of privacy in a physical or electronic location in the workplace. For instance, and as Justice Kennedy pointed out in the majority opinion in Quon, “many employers expect or at least tolerate personal use of [employer-owned communication devices] by employees because it often increases worker efficiency.” Under this scenario, employees may still have a reasonable expectation of privacy in their employer-owned communication devices vis-à-vis their government employers.

The important point here is that through contextualization of the public workplace search -- with a focus on both the reason for the search and the identity of the party seeking to undertake the search -- a more privacy-protective legal standard may be fashioned for investigatory workplace searches in the public sector undertaken to discover employee wrongdoing. Indeed, reestablishment of the warrant and probable cause requirements for investigatory searches will strengthen public employee workplace privacy rights and restore such rights to an appropriate higher level of constitutional protection under the Fourth Amendment than similar common law privacy protections in the private-sector workplace.

All employees, whether public or private, should retain some reasonable expectation of privacy in their physical and electronic locations at work. Such privacy rights promote productivity, positively impact employee morale, and support the recruiting and retention of highly competent employees. The proper level of privacy protection, this article maintains, should be based on whether the search involves a public sector or private sector workplace. Public sector workers are entitled to greater levels of privacy protections than their private sector counterparts based on the text of the constitution, the immense power of the government as employer, and the critical oversight role public employees play in a representative democracy.

To ensure this higher level of workplace privacy protection for public employees, and to reverse the equalization of public and private workplace privacy rights post-Quon, this article argues that public employer searches of employee physical and electronic locations in the workplace should be bifurcated based on the nature of the search. If the search is undertaken for routine, noninvestigatory purposes, the special needs exception to the warrant requirement should apply and such searches should be considered reasonable without a warrant if related to legitimate work reasons and reasonable in scope. On the other hand, investigatory workplace searches to uncover employee misconduct or wrongdoing should be treated like other targeted government searches where a sanction or penalty is possible. Such searches should require the employer to obtain a warrant based on probable cause in front of a neutral magistrate unless the employer can prove that special needs exist to conduct the investigatory search without a warrant.

EU Privacy

The European Commission has released its proposals for a major reform of the EU data protection regime. The proposals take the form of a 54 page Directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data and a complementary 118 page Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), aimed at strengthening online privacy rights and enhancing the digital economy.

The proposed changes, which have been handed to the European Parliament and EU member states for discussion, centre on updating the 1995 Data Protection Directive. The new regime would address criticism, highlighted elsewhere in this blog, that the EU Directives have failed to keep pace with developments such as the emergence of large-scale social network services, and that administration of the 1995 Directive by the 27 member states has been idiosyncratic. The proposals aspire to consistency across the EU at the level of principle and practice.

What would the new regime cover? The proposals encompass changes regarding extraterritorial reach, data protection agencies, consent, a right to be forgotten and portability.

In relation to extraterritorial reach EU rules would address developments in offshoring. They would apply to any processing of personal data related to EU citizens and people resident in the EU, even where the data controller is located in a state outside of the EU. Binding Corporate Rules (hitherto used to legitimise data transfers among members of a specific corporate group) would be explicitly addressed, with the Commission encouraging their use as a mechanism for transfer of personal data and as a simplification of regulatory approval.

Data controllers and data processors would be regulated by the data protection regulator in the EU state where those entities have their “main establishment,” encouraging a simplified 'one-stop-shop' approach. The powers of national data protection authorities would be strengthened, with the expectation that would assist more effective enforcement of the EU rules. The agencies would be empowered to punish commercial entities that violate specific EU data protection rules with penalties of up to €1 million or up to 2% of the entity's global annual turnover.

Public sector entities and private sector companies with over 250 employees would be required to have a data protection officer to ensure data protection compliance. Companies would be required to adopt measures to document and demonstrate compliance with the new rules.

An entity would be required to notify its national data protection regulator of a personal data breach without undue delay (where feasible, not later than 24 hours of initial awareness). Requirements regarding routine reporting to regulators of data protection activities would be simplified.

The proposals aim to assist 'data portability, with Individuals having easier access to data about themselves and being able to more easily transfer personal data from one service provider to another. That measure seeks to encourage competition.

Importantly, the proposals include the controversial 'right to be forgotten' (discussed for example here). Data controllers would be required to delete an individual’s personal data if that person explicitly requests deletion or when there is no legitimate reason to retain the data.

As noted in discussion regarding the notion of consent, explicit consent to process data would be required, with a requirement for parental consent when processing personal information from children who are under 13 years old. Consent would not be assumed.

Appsolutely disgraceful

The US Federal Trade Commissioner has released a 23 page report [PDF] on privacy in applications directed at children - Mobile Apps for Kids: Current Privacy Disclosures are Disappointing.

The report notes that -

When Apple’s iTunes App Store and Google’s Android Market first launched in 2008, smartphone users could choose from about 600 apps. Today, there are more than 500,000 apps in the Apple App store and 380,000 apps in the Android Market, which consumers can access from a variety of mobile devices, including smartphones and tablets. Consumers have downloaded these apps more than 28 billion times, and young children and teens are increasingly embracing smartphone technology for entertainment and educational purposes. As consumers increasingly rely on their mobile devices for multiple activities, the quantity and diversity of mobile apps continue to expand.

This rapidly growing market provides enormous opportunities and benefits for app users of all ages, but raises questions about users’ privacy, especially when the users are children and teens. Mobile apps can capture a broad range of user information from the device automatically – including the user’s precise geolocation, phone number, list of contacts, call logs, unique device identifiers, and other information stored on the mobile device – and can share this data with a large number of possible recipients. These capabilities can provide beneficial services to consumers – for example, access to maps and directions, and the ability to play interactive games with other users – but they also can be used by apps to collect detailed personal information in a manner parents cannot detect.

It goes on to explain that -

In order to better understand and evaluate the emerging app market and the products and services it offers to children, Federal Trade Commission staff designed and conducted a survey of the apps offered for children in the two largest U.S. app stores, the Android Market and the Apple App store. Staff focused in particular on the types of apps offered to children; the age range of the intended audience; the disclosures provided to users about the apps’ data collection and sharing practices; the availability of interactive features, such as connecting with social media; and the app store ratings and parental controls offered for these systems. This report highlights the lack of information available to parents prior to downloading mobile apps for their children, and calls on industry to provide greater transparency about their data practices.

The FTC notes that -

While staff encountered a diverse pool of apps for kids created by hundreds of different developers, staff found little, if any, information in the app marketplaces about the data collection and sharing practices of these apps. Staff found almost no relevant language regarding app data collection or sharing on the Apple app promotion pages, and minimal information (beyond the general “permission” statements required on the Android operating system) on just three of the Android promotion pages. In most instances, staff was unable to determine from the promotion pages whether the apps collected any data at all, let alone the type of data collected, the purpose of the collection, and who collected or obtained access to the data. ...

Most of the apps in the study appear to be intended for children’s use, and many may, in fact, be “directed to children” within the meaning of COPPA. This survey focused on the disclosures provided to users regarding their data practices; it did not test whether the selected apps actually collected, used, or disclosed personal information from children. Over the next six months, staff will conduct an additional review to determine whether there are COPPA violations and whether enforcement is appropriate. Staff also will evaluate whether the industry is moving forward to address the disclosure issues raised in this report.

The report offers several conclusions -

FTC staff believes that all members of the kids app ecosystem – the app stores, developers, and third parties providing services within the apps – should play an active role in providing key information to parents who download apps. The mobile app marketplace is growing at a tremendous speed, and many consumer protections, including privacy and privacy disclosures, have not kept pace with this development. Parents need easy access to basic information so they can make informed decisions about the apps they allow their children to use.
App developers should provide this information through simple and short disclosures or icons that are easy to find and understand on the small screen of a mobile device. Parents should be able to learn what information an app collects, how the information will be used, and with whom the information will be shared. App developers also should alert parents if the app connects with any social media, or allows targeted advertising to occur through the app. Third parties that collect user information through apps also should disclose their privacy practices, whether through a link on the app promotion page, the developers’ disclosures, or another easily accessible method.

The app stores also should do more to help parents and kids. The two major app stores provide the basic architecture for communicating information about the kids apps they offer, such as pricing and category information. However, the app stores should provide a more consistent way for developers to display information regarding their app’s data collection practices and interactive features. For example, app stores could provide a designated space for developers to disclose this information. The app stores also could provide standardized icons to signal features, such as a connection with social media services. Although the app store developer agreements require developers to disclose the information their apps collect, the app stores do not appear to enforce these requirements. This lack of enforcement provides little incentive to app developers to provide such disclosures and leaves parents without the information they need. As gatekeepers of the app marketplace, the app stores should do more. This recommendation applies not just to Apple and Google, but also to other companies that provide a marketplace for kids mobile apps.

Additional work is needed to identify the best means and place for conveying data practices in plain language and in easily accessible ways on the small screens of mobile devices. Staff encourages industry members, privacy groups, academics, and others to develop and test new ways to provide information to parents – for example, by standardizing language, creating icons, or using a layered approach.

Maturity

'Maturity' by Jonathan Todres in 48 Houston Law Review (2012) 1105-1163 comments that -

Across numerous areas of the law — including family law, criminal law, labor law, health law, and other fields — when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.

Markers of maturity in the law frequently occur at different points in time. An examination of key indicators of maturity under the law reveals that the law is inconsistent, not only across issues but also within the same issues. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places).

In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked: cultural conceptions of maturity. Thus, this Article seeks to incorporate cultural perspectives on maturity into the dialogue. More broadly, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.

Todres argues that -

There are many lessons to be drawn from the experiences of cultural approaches to maturity. Societies rely heavily on coming-of-age ceremonies and rituals to mark a young personís transition to maturity. This public component of coming of age serves important signaling functions to both the adolescent and the community. In many cultures, maturity is achieved significantly earlier than under law, suggesting that with proper guidance and structure, adolescents can and do exercise rights responsibly and take on adult-like responsibilities. On this latter point, cultural approaches conflict with what recent brain research suggestsóthat is, that full development occurs only later. A possible explanation for the disconnect is that maturity is a cultural concept and thus, in certain communities, youth are groomed to take on rights and responsibilities associated with maturity even though their brains might still be developing. This brings to the forefront one theme in particular from cultural conceptions of maturity that might offer a potential starting point for developing a better approach to maturity under the law. In cultural practices related to maturity, the community is tasked with significant responsibilities to ensure that when a child reaches the right age or the threshold of his or her coming-of-age ceremony, the family and community have prepared and equipped that child with all that is needed to evidence maturity, realize his or her rights, and contribute in a meaningful way to his or her community.

Much of that preparation comes naturally through parenting, schooling, and other aspects of cultural life. However, this different approach raises the issue whether the law could foster better-prepared young adults through a graduated, supportive approach to maturity. Such an approach would be consistent with research on adolescence and scholarsí understanding that maturity occurs on a continuum. As identified in prior sections of this Article, the law adopts a variant on this approach, for example, with driverís license requirements and employment. GDL requirements, however, emerge more out of an effort to limit the driving rights of young persons. Employment law in nonagricultural settings might offer a better model, as it allows children to enter the workforce for limited periods, while preserving their educational opportunities and long-term prospects.

Other models need to be explored. Some scholars might suggest that a parallel exists with recently adopted laws that impose criminal liability on parents for the actions of children. Such an approach does not address the experience of minors with the law, but only imposes additional criminal sanctions on other members of the family. Rather than seeking to use the law only as a stick with youth (e.g., criminal liability at young ages, or for parents), better models need to be developed that offer youth and their families a carrot, incentivizing more responsible behaviors by children and creating opportunities for youth to engage in meaningful activities that develop their capacities.

"[L]essons in accountability benefit young offenders ..." The concern is that the law governing childrenís rights and responsibilities today focuses primarily on teaching accountability through criminal sanctions and restricting rights, while offering few, if any, positive incentives for responsible behaviors. Instead, youth might respond better in certain circumstances if the legal framework also provided an opportunity for them to earn expanded rights by achieving certain benchmarks or acting in a responsible manner with respect to particular issues. If an adolescent demonstrates she can exercise economic power responsibly, why not gradually introduce limited rights so she can further develop the ability to exert independent economic power in a responsible manner? Some years ago, the National Basketball Association started mandating a life-skills course for rookies because they realized that top rookies were signing multi-million dollar contracts and yet had received little guidance on even the most basic aspects of financial management and other essential life skills. They are not the only ones. If adults want youth to achieve maturity, adults need to ensure that they do what is needed to foster that successfully, and legal frameworks are part of that equation.

States could develop a graduated scale for participation in the polity. One could envision creating positive incentives for early voting rights in local elections (including perhaps a graduated approach that would eventually grant responsible youth the right to vote in all elections). Following the cultural coming-of-age preparation approach, the general voting age could remain eighteen, but a young person could vote earlier if he or she had demonstrated readiness, or maturity, to do so, perhaps by completing particular coursework and meeting other relevant criteria. In fact, a member of parliament in New Zealand proffered such an approach in 2007. The proposed bill sought to allow youth sixteen years of age or older to vote while introducing a mandatory civics education into the school curriculum. As the member of parliament who proposed the bill explained, 'Lowering the voting age and teaching them civics can help young New Zealanders get on track to being better informed, more engaged citizens'. Citing adverse reaction to her idea (from adults), she abandoned the bill about a month later.

Drawing on the approach used in cultural coming-of-age practices, law could be developed to positively foster an adolescentís capacity to exercise independent political, civil, economic, social, and cultural rights. Such efforts would restore equilibrium in the balance between rights and duties of adolescents and other children and in the positive and negative incentives and messages adults give to them. Moreover, as adolescence is a period marked by instability, providing more positive structures might help youth in finding more meaning in their lives during this challenging transitional phase of life. Ultimately, improvements in this area would have benefits for the broader community. Effectively incentivizing positive youth behavior could reduce the incidence of youth crime, drunk-driving accidents, and other negative outcomes that we currently seek to control largely, if not exclusively, through criminal sanction.

Todres concludes that -

Maturity determinations are central to the lives of children. The lawís current approach to maturity is inconsistent both within and across issues affecting children, ranging from political and economic participation, to criminal justice, to family rights and bodily integrity. Moreover, legal conceptions of maturity fit awkwardly, and sometimes conflict, with cultural norms related to maturity. Today, the piecemeal approach to maturity has created a framework for young people whereby they are deemed immature persons with respect to most rights while simultaneously often being held to account for wrongdoing often as adults. That should be reexamined.

"[T]he long term interests of adolescents converge with the interests of society." These convergent interests of adolescents and society suggest the need for a more holistic approach to maturity under the law. In developing a more cohesive construction of maturity, lawmakers should also look to cultural conceptions of maturity and include them in the discourse on maturity. Doing so might help foster the development of law that better prepares youth for adulthood, by allowing them to find meaningful ways to exercise their rights, assume responsibilities, and contribute to their communities. It might also help create a more sensible legal framework on maturity, one of the defining milestones in the life of every individual.

Robocalls

The US Federal Communications Commission, counterpart of ACMA, has promulgated new rules under the national Telephone Consumer Protection Act of 1991 to substantially restrict robocalling, ie automated telephone calls with pre-recorded messages ... used by commercial marketers, politicians, advocacy groups and charities. Robocalling has been a feature of debate about strengthening of Australia's Do Not Call (DNC) regime

The FCC's 48 page Report and Order [PDF] requires that prior to initiating a 'robo call' the telemarketer must obtain the consumer's express written consent. That requirement supersedes previous federal robocall regulation, where an "existing business relationship" (equivalent to the very broad prior relationship identified in the Australian regime) with the consumer was sufficient to create an exemption from the national restriction on robocalling.

The calls must offer the consumer an 'opt-out' mechanism that both enables the consumer to quickly end the call (ie not have to wait till the end of the spiel) and facilitates entry on the telemarketer's 'do not call' database.

As with Australia, the rules feature substantial exceptions. Political groups, emergency service bodies, charities, educational entities and other groups initiating "informational calls" (eg notification of an emergency) are still able to legally initiate robocalls to a consumer's landline without express permission. The shift from a landline to mobile phones is reflected in restriction on robocalling to mobiles.

The new US regime is being phased in over the coming year.