Classification and its Continents

Reading a concise note from the Max Planck Institut für Wissenschaftsgeschichte on 'Patent Classification and Scientific Taxonomies: Law as a Space of History of Science?', Hanoch Dagan's 2006 paper 'Legal Realism and the Taxonomy of Private Law' and Emily Sherwin's 'Legal Taxonomy' in 15 Legal Theory (2009) 25-54, the latter a variant on her 2006 paper. HLA Hart can wait till tomorrow.

The Max Planck note concerns the International Patent Classification (IPC), created by the international Strasbourg Agreement of 1971 and administered by WIPO. The Classification

represents a hierarchically structured legal taxonomy in which technological and biological objects are classified into sections, classes, subclasses and groups. Although its primary activity is one of ordering scientific and technological objects, the patent classificatory scheme is mainly understood as a legal exercise.

The note comments that

the IPC is engaged in a certain mode of (re-)production of scientific objects as legal properties (as inventions), as well as constituting relations between these different properties by placing them into a hierarchical order of past inventions. In a way, the IPC can be understood as a mapping exercise, which creates novel (the question is: legal, scientific, or both?) relations between objects on the basis of a legal perception of scientific "nature". In other words, the IPC represents an unofficial site of scientific classification; however, it is one which is put to nonimmediate, nonscientific use.

The third interesting aspect about the IPC conjoins the preceding observations. IPC’s practice of cutting and intermediating between what is taken to be a novel (inventive) scientific object and objects already known to society as belonging to the legal category of "prior art" – in other words, the accumulated body of scientific knowledge generally known – exerts peculiar ontological effects. On the one hand, the IPC could be understood as a metaphor for the reality of different kinds of scientific objects. On the other hand, the metaphor could also be taken as a means: as ways by which a nonnegligible kind of scientific history and reality are generated.

Civilisation and its discontents, nu, as we stack concepts and creatures in a hierarchy of boxes.

Sherwin's article derives from

the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge.

The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making.

The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine.

The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or "legal principles" thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents.

A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes.

Given my biases I'm less interested in taxonomy generation for knowledge discovery (ie retrieval of what's been 'filed') and more interested in the construction of categories, although there's a dynamic involving identification of classes (eg the living/dead dichotomy implicit in the preceding post), identification of relationships between those classes, tagging of entities according to those classes and action on the basis of those tags, action that on occasion leads to reconstruction of the classes by the tagged or the taggers. Gadamerian hermeneutic circle, anyone?

Sherwin states

In recent years, a number of scholars in the United Kingdom and elsewhere have turned their attention legal taxonomy , debating how best to organize and classify the common law.  To some extent, taxonomy inevitably plays a role in legal analysis: to think intelligently about law, one must sort legal rules and decisions into categories and generalize about fields of law. For English taxonomers, however, classification of the common law is not simply an incidental task but an independent theoretical project, important in its own right.

The U.K. debate over legal taxonomy grew out of a wave of scholarship on the subjects of restitution and unjust enrichment.  A significant portion of this work focused not on the content of particular legal rules but on how the law of restitution should be organized and what place it occupies within the larger picture of private law. Is restitution a category of substantive law, on a par with tort or contract, or is it a set of remedies? Does unjust enrichment as a ground for relief cut across the fields of private law, or is it confined to cases in which tort and contract law do not support a claim? This line of inquiry led in turn to broader efforts to categorize the whole of private law.

Perhaps the best known legal taxonomer is Oxford’s late Regius Professor Peter Birks. Birks’s master project is a “map” of the common law based on the Institutes of Justinian. Birks’s classification begins at the highest level of generality with a division between public and private law. Birks then divides private law into the law of persons, the law of rights, and the law of actions; and further divides rights into property rights and obligations between parties. Next, he sorts obligations according to the different “causative events” that give rise to them and alternatively according to the different remedial outcomes associated with obligations, such as compensatory damages or restitution of gains.

For Birks, this framework yielded various taxonomic insights. For example, Birks argues that it is a mistake to speak of “tort, contract, and restitution” as the pillars of law. Tort and contract are “causative events” for rights, while restitution is an outcome common to various rights; therefore the classification “tort, contract, and restitution” is “bent.”  Accordingly, Birks insists that the correct series of causative events must be “tort, contract, unjust enrichment, and other events,” with “restitution, compensation, punishment, and other goals” cutting across them as the outcomes of legal claims.  Birks also takes the view that the categories of law must not overlap. For example, “unjust enrichment” cannot include enrichment attributable to “wrongs,” because unjust enrichment and wrongs are discrete categories of causative events.

Birks’s project sparked a variety of criticisms, not only by those who dis- agreed with the particulars of his scheme but also by those who rejected his overall approach to classification of law. Birks’s critics view his taxonomy as formalistic and pointless because it lacks normative content. Some of these critics argue that legal classification must be attuned to the social and economic background in which laws operate.  Others propose that legal classification should track the justifications for legal rules.

American scholars have shown little interest in comprehensive taxonomy of law in the manner of Birks.  Lawyers, judges, and legal scholars constantly engage in taxonomy, sorting the law into classes as they discuss and apply it. Treatises, textbooks, and Restatements often posit or assume fairly systematic taxonomies within fields of law. Large-scale doctrinal essays may also be consciously styled as contributions to the taxonomy of law; some well-known examples are Warren and Brandeis’s article identifying interference with privacy as a type of tort and Fuller and Purdue’s article classifying the interests that may be harmed by a breach of contract.  Nevertheless, the debate surrounding Birks’s taxonomic work has gone largely unnoticed in the United States, perhaps because legal taxonomy appears to have little practical consequence.

In this essay, I examine several different approaches to legal taxonomy. The principal contending methods of legal classification are formal classification of legal doctrine based on logical relations among legal rules; function-based classification based on the social roles of legal rules, and reason-based classification based on common rationales underlying legal rules and decisions. These different possible approaches to classification serve different purposes and range widely in their ambitions to guide and constrain judicial decision-making.

I begin with a brief taxonomy of legal taxonomy, in which I pose three questions about the enterprise of classifying law. First, what is the subject matter to be classified? Second, what are the criteria for classification? Third, what are the purposes of legal classification? I address these questions in the order just presented, although the classifier’s purpose often limits or deter- mines both the choice of subject matter and the criteria for classification. To illustrate the different approaches I identify, I return briefly in the final section to the problem of unjust enrichment, which has occupied such a central role in English legal taxonomy

Et in academia ego

Today's Financial Times features a review by Stephen Cave of four books on death, a welcome change from the usual pap about how to be happy (eat lentils, be nice to your mum, don't work in a big law firm, wear clean underwear, choose your genes carefully and watch lotsa Alain de Botton).

Cave, in discussing Annihilation: The Sense and Significance of Death (London: Acumen 2009) by Christopher Belshaw, says imagine what life would be like if death were really not bad for those who die. Belshaw argues that

There would be no proper justification for our grief and distress at the death of others, no reason to avoid runaway buses, intensive care units would have their funding cut, murder would be a lesser crime than assault and battery.

Cave notes potential implications -

In other words, if it is not bad for you to die, it is not bad for me to kill you. Mowing down people would be no more wrong than mowing the grass. There would be no point in saving lives, or even taking the least safety precautions. If death is not to be feared, we should take off our crash helmets, toss all the parachutes out of aircraft, and, if we fancied, toss ourselves out after them just to see how far we can get by flapping our arms and making bird noises.

Belshaw ... describes this position as "strongly counterintuitive". Society exists to preserve life; it is therefore grounded on the 'badness' of death. But, he acknowledges, "this is not to say that its badness can be easily understood". The problem, as Epicurus identified, is that the dead are those who have ceased to exist. And how can anything, even death, be bad for someone who does not exist?

Not implausibly, Belshaw counters that it is not the dead who are harmed by death but the living: the moment of dying is the moment when harm is done. And dying is something that happens to living people. Aside from any pain that might be involved, the "problem" of dying is that it deprives the person of the good life they could otherwise have had.

The Philosophy of Death (Cambridge: Cambridge Uni Press 2009) by Steven Luper argues that

anything that deprives me of a stretch of good life is thereby bad for me. Being dead may not be dreadful in itself, but dying is dreadful if it stops me from having a fine time with my family and friends. Just as it is bad for me if I miss the bus to a party that I am looking forward to, it is even worse if I am knocked down dead by the bus and cannot go to a party ever again.

Cave comments that

In arguing that death is awful after all, these philosophers believe they are defending common sense. But in unpacking the implications of their arguments, they come to some startling conclusions. ...

Belshaw challenges us with this grim conundrum: suppose you come across a burning car in which a 30-year-old man and a baby are both trapped; you have time to rescue just one of them before the flames engulf the wreck. Which do you choose? He believes the answer is clear: the man "has more, stronger and further-reaching desires for more life than does the baby". He, therefore, stands to lose a great deal of what he hopes for, whereas "the baby loses nothing at all".

Many will disagree with the cold logic of this view. The baby, after all, stands to lose more future life. But Luper, too, struggles to see how death is genuinely bad for babies. The surprising conclusion to which these philosophers come is that we can show death to be fearful, but only with any certainty to humans with well-formed hopes and wishes for the future.

My first response - thinking like a dissertation worker, presumably, rather than as a humane person or someone who's read some Rawls - is that much law depends on whether an individual is alive and, if dead, when/how the person got that way ... murder, interference with a corpse versus rape, organ harvesting, defamation, pre/post-mortem publicity rights (eg protection in perpetuity under the Tennessee 'Elvis' law), estates ...

And of course there are the undead: corporations rather than just Count Dracula (whom I'm supposed to be discussing in a conference paper that refuses to emerge from its crypt, oops, my hard drive, for restoration by my co-author) and embodiments of artificial intelligence. Taxonomy fodder!

Cozying up to Colonel Quackbiskit

I've recently questioned Gordon Brown's announcement that was "proud to say sorry" to Alan Turing and by extension to other victims of the UK 'heterosexual dictatorship'. Turing got the apology because he's a hero and - at least among the digerati - a household name. I'm currently looking for heroic wiccans or others on the wrong side of the law who also deserve an apology, one which Mr Brown or his successor will presumably also be "proud" to give after graduating from Chutzpah 101.

It's probably time to start buffing a proud apology for involvement in release of Semtex-distributer (and now national hero) Abdelbaset Ali al-Megrahi back to the people's paradise of Libya ... and even one for inaction regarding the geriatric kleptocrat who's the front man for the regime in Uganda.

Today's Melbourne Age features an attack by Geoffrey Robertson QC on cozying up to Colonel Gaddafi, the dictator lampooned by Patrick Cook a generation ago as Colonel Quackbiskit but since become oh so very respectable, quite salonfahig as they used to say in 1932.

Robertson says that

His victories continue: the Swiss Government has made a grovelling apology for daring to detain one of his sons for brutally assaulting servants. His finest coup, other than that which brought him to power, has been to celebrate the Lockerbie atrocity by welcoming home from a Scottish prison the man who committed it - undoubtedly at Gaddafi's instigation.

By what perverse process has the godfather of modern terrorism been allowed such a triumph? At one level, the low parochial level of a Scotland recently ''devolved'' so it can administer its own criminal laws, Gaddafi's triumph may be put down to human error and indeed to human stupidity.

Al-Megrahi was convicted of the murder of 270 innocents on PanAm 103. Eight years into his sentence he began a fresh appeal, and contracted prostate cancer. Some months later, the Scottish Minister of Justice, 'Kenny' MacAskill, an undistinguished lawyer, freed al-Megrahi in the name of "compassion", a virtue he claimed to be specially embedded in Scottish law. ...

Al-Megrahi, as an unrepentant and cold-blooded mass murderer, is unforgivable. The notion he could be pitied, allowed to end his days in Libya as a national hero, was ridiculous. The pardon bestowed by MacAskill was not, in law or in logic, an act of compassion. It showed kindness to nobody and rewarded the wrongdoer.

The Justice Secretary relied upon a promise from Libya that his reception there would be low-key. What sensible minister would believe the promise of an unpredictable terrorist regime? It must have been blindingly obvious that the release of al-Megrahi would coincide with Gaddafi's 40th anniversary celebrations, and hailed a triumph. It must have been equally obvious it would be an act of cruelty to all who have suffered from Libya's terrorist crimes

Robertson speculates that

After a week's silence from the British Government, it emerged Gaddafi and son were assured, during trade talks, that although it was a matter for the Scots, the British Prime Minister did not want al-Megrahi to die in prison. This wink seems to have secured the Libyan nod, and the trade deal went ahead.

Anyone who has studied Libyan governance knows that if al-Megrahi is guilty, then Gaddafi gave him the order. There is no way a decision to commit an atrocity of this magnitude would have been taken by his intelligence services (run by his brother-in-law) without his knowledge and approval.

For more than 30 of his 40 years in power, Gaddafi has run a terrorist state, initially sponsoring and training the most violent terrorist groups and supplying the IRA with much of the Semtex it used to bomb British citizens. He ordered the assassination of Libyan opponents of democracy (calling them ''stray dogs'') at home and abroad. Al-Megrahi's colleagues have been convicted, by a French court, in absentia of the bombing of a UTA passenger jet. And Gaddafi has encouraged mayhem throughout Africa.

The attack echoes an Open Democracy profile by Fred Halliday on 'Libya's regime at 40: a state of kleptocracy'.

Halliday notes that

Libya remains controlled by the whimsical leadership around Gaddafi. Arbitrary arrest, detention, torture, and disappearance still take place; relatives or close colleagues ... come and go, as do supposedly "modernising" ministers. The junior members of the family, some perhaps well-intentioned, others perhaps self-deluded, play intermittent public roles, and command media and commercial attention abroad; but since there is no constitutional system, and since all information is speculative, no one - not even these younger members themselves - can say what it means. ...

Libya has not introduced significant changes to its political system, and especially not with regard to human rights or governance. [It remains] one of the most dictatorial as well as opaque of Arab regimes. Its 6 million people enjoy no significant freedoms: the annual reports of Amnesty International and Human Rights Watch on Libya offer a glimpse of the real situation, one of continued and systematic abuse of human rights. Those who oppose the ideology of the Gaddafi revolution may, under Law 71, be arrested and even executed. There is not even the flicker of diversity found in such neighbouring dictatorships as Egypt or Sudan.

Halliday goes on that

The improvement in Libya's international profile in recent years reflects the abandonment of the regime's nuclear-weapons programme and its policy of hunting down Libyan dissidents living abroad (including their kidnap and murder). But this regime has shown scant regret, and those who ordered such actions as the shooting dead of the British policewoman Yvonne Fletcher in central London in March 1984, the blowing up of passenger airlines, and the transfer of sophisticated weaponry and material to the Irish Republican Army (IRA) remain in power. The official response to the Lockerbie trial and al-Megrahi release reflects an attitude of mind that rejects real contrition or admission of responsibility. It still attempts to bully governments it has been in disagreement with, such as Switzerland.

The prominent guests at the celebrations of 1 September 2009 in Tripoli included Zimbabwe's Robert Mugabe and the International Criminal Court (ICC)-indicted Sudanese president. Omar Hassan al-Bashir. Another honoured invitee was Mohammad Abdi Hasan Hayr, the Somali fisherman believed to be a leader of the pirates operating off Africa's longest coastline. The character of Libya's friends in Europe tells its own tale: among them are Italy's prime minister Silvio Berlusconi (a frequent visitor) and the country's former chief political fixer (and mafia collaborator) Giulio Andreotti, who gave the Libyans advance warning of the American air-assault of 1986.

He concludes

Libya is far from the most brutal regime in the world, or even the region: it has less blood on its hands than (for example) Sudan, Iraq, and Syria. But al-Jamahiriyah remains a grotesque entity. In its way it resembles a protection-racket run by a family group and its associates who wrested control of a state and its people by force and then ruled for forty years with no attempt to secure popular legitimation.

The outside world may be compelled by considerations of security, energy and investment to deal with this state. But there is no reason to indulge the fantasies that are constantly promoted about its political and social character, within the country and abroad. Al-Jamahiriyah is not a "state of the masses": it is a state of robbers, in formal terms a kleptocracy. The Libyan people have for far too long been denied the right to choose their own leaders and political system - and to benefit from their country's wealth via oil-and-gas deals of the kind the west is now so keen to promote. The sooner the form of rule they endure is consigned to the past, the better.

Monsters in the mist

The Conclusion to Margaret Macmillan's The Uses and Abuses of History (London: Profile 2009) highlights questions about community memory reports that

On the evening of September 11, 2001, the American writer Susan Jacoby overheard two men talking in a New York bar. "This is just like Pearl Harbor", one said. "What is Pearl Harbor?" the other asked. "That was when the Vietnamese in a harbor and it started the Vietnam War", the first man replied.

Macmillan doesn't provide a citation for the Jacoby account and there's no context, so we're unable to determine whether the speakers were Harvard Law grads, illegal immigrants who unaccountably skipped US History 101 while growing up in Fujian (the Boston Tea Party involved bombs being dropped into the Pearl River?) or rednecks from Skokie. I was reminded of the lack of a cultural reference when buying Jonathan Littell's much publicized - but probably, like Hawking's Brief History, less read - novel The Kindly Ones (London: Chatto & Windus 2009).

The salesperson, seeing Le Nouvel Observateur's "A new War & Peace" on the spine, asked "is that the book by the Russian guy ... the one with lots of characters". "Uh huh", said I, thinking that I should indeed have bought that copy of The Anatomy of Corporate Law: A Comparative & Functional Approach.

The Littell has been much praised. It is a winner of the Prix Goncourt and the Grand Prix du Roman de L'Academie Francaise. Publication "is supported by the French Ministry of Foreign Affairs as part of the Burgess programme run by the Cultural Department of the French Embassy in London". Le Monde says that it is a "staggering triumph". Figaro describes it as "a monument of contemporary literature". Lire says it's "a book which leaves you haggard and breathless. One of those rare novels destined to become a classic". And on and on ...

I finished it in one sitting, last night, because after the first two hundred pages I just wanted to get the exercise done with and never return ... breathless, indeed, but with distaste rather than admiration. For me it is a bad book.

Bad in the sense that it's poorly written, with cardboard characters and implausible plotting unredeemed by an interminable dream sequence and recurrent reports on the state of the protagonist's bowels or allusions to Greek literature. If you want Grand Guignol - mandatory description of death-throes ejaculations - read William S Burroughs. If you want frenzy read Celine. Straight literateurs wanting a frisson over back door action - can't have too much transgressive mist, it seems - could stick to Norman Mailer fantasies about Pharaonic Egypt, aka Fun With Ra In the Bat Cave.

Bad in the sense that writing - at length, and with dollops of matricide, sodomy and incest - about the Holocaust doesn't turn what in my view is a pedestrian and very laboured account into Art, at least into art that's worthy of enthronement by the Academie. It's a long but tacky little book, punctuated by appearances from detectives who resemble characters from Tin Tin rather than from Sophocles and action by people who are either automotons or at best are 'severely conflicted' (ie the exculpatory 'Nazism = mental disease' meme). If you want humour you could always turn to Günter Grass or, more bravely, to Tadeusz Borowski (This Way for the Gas, Ladies and Gentlemen). Endorsement by critics isn't surprising, given the reception of authors such as Genet and Kosiński and acclaim for schlock such as The Boy In The Striped Pyjamas, Life Is Beautiful or The Hand That Signed The Paper.

I've mentioned length because concision is one measure of artistry. The Kindly Ones lacks the anguished lucidity and austere concision of more modest works such as Viktor Klemperer's diaries, matter-of-factly reporting on mass murderers and their accomplices, and The Chronicle of the Lodz Ghetto, 1941-1944 edited by Lucjan Dobroszycki. In a world where people seem confused about whether it was tea or bombs, in 1941 or 1841, we might be better off consigning Littell's work to the remainder bin and looking instead at Klemperer or Horwitz. Adorno has been [mis]quoted as saying that after Auschwitz poetry wasn't possible. The example of Paul Celan demonstrates that's incorrect. We should, however, approach the Holocaust, and other horrors, with great circumspection rather than using them to animate cardboard cutouts in a commercial peepshow.

The Private Life of Us?

A 70pp paper by Sonja West on 'The Story of Us: Resolving the Face-Off between Autobiographical Speech and Information Privacy' claims that

Increasingly more 'ordinary' Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

West claims that "autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law", arguing that attempts to balance autobiographical speech and information privacy using property or contract law have failed. In response, she proposes a "new, workable framework" to resolve that conflict, by reexamining the US tort of public disclosure of private facts.

The paper argues that

the current over-emphasis on whether the information disclosed was “newsworthy” is misplaced and likely unconstitutional. The tort's protection of individual privacy, however, can be reconciled with the First Amendment by interpreting the 'offensiveness' element to include an examination of the purpose of the disclosure. A number of courts have implicitly adopted this view and, in doing so, are reflecting community norms that disclosures made for sufficient justifications - such as sharing newsworthy information or, I submit, engaging in autobiographical speech - are not highly offensive. Disclosures made for purely voyeuristic reasons, however, are highly offensive.

This 'justified disclosure' approach encompasses community norms and expectations in a way that is more predictable and fair than other proposed frameworks. It further promises to be applicable not just to the conflict between autobiographical speech and information privacy but to broader disputes involving privacy and speech.

Multilevel Governance and ID Theft

A 24 page paper by Nicole Van der Meulen & Bert-Jaap Koops on 'The Challenge of Identity Theft in Multi-Level Governance; Towards a Co-ordinated Action Plan for Protecting and Empowering Victims' offers a concise discussion of research challenges regarding 'identity theft' (eg the data about incidence and impacts is all over the place) and conceptualisation of harms before reaching the stunning conclusion that an effective response involves a range of agencies in multiple jurisdictions.

The authors comment that

For academics, philosophizing about the ideal policy is often a particularly nice and intellectually challenging exercise. Eventually, however, reality rears its head and even academics have to recognize the utopian nature of their action plan. Being realistic usually implies accepting sub-optimal or even mediocre solutions. We appreciate that devising sound policies takes considerable time. Moreover, we are acutely aware that the problem society faces is extremely difficult to address effectively. Internet-facilitated identity theft is a new means to commit a very profitable crime with low risk of being detected. It has been snatched up by professional and organized criminals, who have the entire world as their field of operation to look for the weakest links in financial services. As a result, the principle question that traditionally comes up with new crimes - 'how to catch a thief' - is perhaps the wrong question to ask in the Internet era. This observation logically raises the issue what question should then be asked. In light of the particular character of identity theft, we think this should be: 'how can we most effectively protect individuals from falling victim to identity theft, and how can we help those who have been victimized to recover their identity and their normal life?'

It is a nice example of experts validating their existence and - and promoting their expertise - by asserting that they, unlike their peers, are realists rather than utopians, people who are equipped to make hard decisions about sub-optimal outcomes and who can be trusted to ask the right questions.

It is also a nice example of the 'global organised crime in the age of the internet' meme, despite uncertainties about whether most 'identity theft' - in terms of incidence and dollar value - involves professional criminals, particularly professional criminals operating across borders. That characterisation of diverse offences affecting a range of individuals and institutions gets official attention and space in books or journals but militates against effective responses to many of the identity abuses affecting people in Europe, North America and Australia.

Southern Mexican Magical Gothick

A review in the Latin American Review of Books of The New Latin American Left: Utopia Reborn (Pluto Press, 2008) edited by Patrick Barrett, Daniel Chavez & César Rodríguez-Garavito quotes Boaventura de Sousa Santos on the "need for theoretical guidance in a situation of depolarised pluralities" -

This reciprocal blindness of practice in relation to theory and theory in relation to practice produces, on the one hand, an under-theorisation of practice and, on the other, an irrelevance of theory. That is to say that the blindness of theory renders practice invisible, while the blindness of practice makes theory irrelevant. This reciprocal lack of co-ordination gives rise to, on the side of practice, an extreme oscillation between revolutionary spontaneity and a self-censored and ultimately innocuous sense of the possible, and on the side of theory, an equally extreme alternation between a post-facto reconstructive zeal and an arrogant indifference to anything unaccounted for by theory.

I suspect that I'd get more sustenance from Michael Casey's Che's Afterlife: The Legacy of an Image (Vintage, 2009), praised by one reviewer as

an intellectual history of the Che brand, approaching his subject with an historian's sense of detail, a historiographer's sense of a cultural import, and a journalist’s mix of skepticism, awe and mirth. By turns entertaining, thoughtful and scathing, Casey's work is a satisfying excavation into politics, pop culture and that iconic photo of Che

It sounds much more accessible than Bad Marxism: Capitalism and Cultural Studies (Pluto Press ,2004) by John Hutnyk, a critique of Jacques Derrida, James Clifford, Gayatri Spivak, Georges Bataille, Homi Bhabha, Michael Hardt and Toni Negri in explaining "why the 'Marxism' of the academy is unrecognisable and largely unrecognised in anti-capitalist struggles". Oh dear, nothing like doctrinal purity and academic point scoring in a style reminiscent of de Sousa Santos.

In contrast there's plenty of fizz in Alan Macfarlane's The Origins of English Individualism: The Family, Property & Social Transition (Blackwell, 1978), to which I've returned after thirty years, and Ernest Gellner's Thought & Change (Weidenfeld & Nicolson, 1964)

More on Parlt Privilege

Bill Orr, in commenting on the recent post regarding Twittering in the Australian Parliament, has pointed to a spirited Opinion [PDF] by leading barrister Brett Walker SC and advice from Harry Evans, Clerk of the Senate.

The Opinion and Evans' advice were published as part of the 92nd Report of the Senate Committee of Privileges (June 2000), which concerned matters arising from the Committee's 67th Report. They are of interest for analysis of parliamentary privilege and as examples of critical comments by leading figures regarding a senior judge's explanation of his decision. (Another example is Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, here).

The Committee indicated that earlier in the year the

Honourable Justice Jones of the Supreme Court of Queensland brought down a judgment in a defamation action between Michael Rowley as plaintiff and David Armstrong as defendant. These proceedings were one of the subjects of the 67th Report of the Committee of Privileges tabled in the Senate on 3 September 1997 and adopted on 22 September 1997.

Mr Armstrong's solicitor queried whether the Senate would fund an appeal against that judgment or seek representation at the hearing of such an appeal. The Committee noted that although unable to assist in the terms sought by the solicitor

it was so concerned about the issues raised by the judgment that it decided to seek advice from the Clerk of the Senate and, with the approval of the President of the Senate, from Mr Bret Walker SC.

Evans notes that the judgment

was delivered on an application by Mr Armstrong to have the action against him by Mr Rowley struck out on the grounds of unreasonable delay and abuse of process. The latter ground was based on the finding by the committee that the action constituted a contempt of the Senate and on the argument that the communication between Mr Armstrong and Senator O'Chee which is the subject of the action was protected by parliamentary privilege. By the second ground, therefore, the court was asked to find whether there was abuse of process in the pursuit of the action. It was not necessary for Jones J to determine the question of parliamentary privilege in order to ascertain whether there was abuse of process. A finding that there was no abuse of process would have left the question of privilege to be determined in the subsequent course of the proceedings. Jones J, however, pronounced on the question of parliamentary privilege.

Evans goes on to comment that

Given that he decided to do so, the question for determination was whether the communication between Mr Armstrong and Senator O'Chee was related to proceedings in the Senate to the extent that the communication could be said to be for purposes of, or incidental to, those proceedings. This question would turn on the character of the communication and its relationship with proceedings in the Senate. The judgment, however, does not consider the character of the communication or its relationship with Senate proceedings. Jones J manages to avoid any such consideration in the course of the judgment. He simply comes to a general conclusion that "an informant in making a communication to a parliamentary representative is not regarded as participating in 'proceedings in Parliament' and therefore the provisions of the Parliamentary Privileges Act do not apply", and he applies that general conclusion to the particular communication in question.

Contrary to the judgment, this general conclusion is not one which "follows clearly enough" from the matters cited by Jones J, a point to which I shall return. In any event, no such general conclusion can be drawn. Whether the provisions of the Parliamentary Privileges Act apply depends on whether the communication is for purposes of, or incidental to, parliamentary proceedings. The character of the particular communication and its relationship with proceedings has to be examined. No one has ever claimed that any communication with a member of Parliament is protected by parliamentary privilege. Jones J has not only determined a question unnecessarily but has mistaken the question to be determined. ....

Analysis of the judgment therefore leaves us simply with the finding that an informant is never protected in communicating with a member of Parliament, and with a collection of quotations which do not support such a conclusion.

Walker was similarly unpersuaded, commenting that

For all these reasons, there are profound weaknesses in the reasoning of Jones J. In my opinion, for the same reasons, his Honour's conclusion on the ambit of Parliamentary proceedings for the purpose of considering the question of Parliamentary privilege under the Act is fatally flawed, and of no weight whatever as an authority.

It is,, sometimes, an appropriate response to a very weak judicial decision to ignore it, confident in the expectation that it will not affect the body of doctrine. I am tempted to this view in relation to Rowley v. Armstrong. However, in my opinion the egregious deficiencies in the decision should be addressed by an appellate court not least because the conclusion about sub-sec. 16(2) is so clearly wrong and may thus mislead in other proceedings ...

He continues that

The issue generally is one which, in my opinion, would attract the interest of the High Court, were an unsuccessful party to an appeal to seek special leave to appeal further to the High Court, unless the decision turned on the mundane question of an abuse of process, as opposed to the law of Parliamentary privilege.

Governor of the Ducks

The UK Dictionary of National Biography entry regarding French satirist Charles de Marguetel de Saint-Denis de Saint-Evremond (?1614-1703) - an acquaintance of Hobbes and Spinoza, "a brave soldier, a gourmet, and a wit, unconstrained by religious scruples, and independent-spirited to the point of imprudence" - notes that in exile in England after being sprung as the author of the Lettre sur la paix ("a brilliantly outspoken satirical attack on Cardinal Mazarin and the Treaty of the Pyrenees") he was appointed as governor of the ducks in St James's Park, with a pension of £300pa.

Conversion figures are deeply problematical but in terms of purchasing power £300 would appear to be equivalent to over £1.4m in contemporary currency, so duck-governing (even after handouts to the minions and facilitation expenses) may have been quite attractive.

Apart from this undemanding post he refused any official role: when James II offered him the position of secretary for the king's foreign correspondence he declined, using his age as an excuse. William III showed him marked favour, enjoying his company and (with a perhaps uncharacteristic touch of humour) renewing his governorship of the ducks and attendant pension.

The DNB comments that

Saint-Evremond's reputation derived principally from his short, informal critical essays, a form which he is often credited with having invented, and a model for the literary essay of the eighteenth century. The subjects are historical, moral, and literary, the tone that of a gentleman occupying his leisure hours, and writing for his friends. Much of their appeal comes from their personal tone: intelligent, judicious, and well read, Saint-Evremond is the very embodiment of taste, sound judgement, and the unprejudiced urbanity of the honnete homme. His intellectual position was essentially a broad-minded sceptical Epicureanism, with a sense of historical relativism and a ready curiosity for new ideas. Before his exile he had been strongly attracted to the Epicureanism of Gassendi; he admired Hobbes, and while in Holland sought out the acquaintance of Spinoza. His favourite authors included Montaigne, Cervantes, and Petronius, for whom, as both writer and man, he professed extraordinary admiration. He appreciated English comic drama despite his limited knowledge of the language, but always preferred French tragedy, especially that of Corneille.

There are worse things in life than admiring Montaigne and being governor of the ducks or wrangler of the royal goat.

Pur Sang and Taxing Robots

The review in 5500 Times Literary Supplement (14 August 2009) 5 by David Armitage of William Doyle's Aristocracy and Its Enemies in the Age of Revolution (Oxford: Oxford Uni Press 2009) notes ancien regime beliefs that those of blue blood were biologically different to the common herd, beliefs that meant nobility was as much a physiological (even proto-racial) status rather than a question of class.

Many French nobles, supported by their ideological allies among historians, had long argued that they were literally a race apart from other Frenchmen, decendants of the conquering Franks, not of defeated Gauls. To strip them of fiscal privileges was one thing; to extinguish heredity in the name of equality was, 'in noble eyes ... nothing less than an attempt to change biology'.

A consequence was that some observers recognised three biologically transmissible power relationships: monarchy, aristocracy, monarchy and slavery. Doyle notes that few historians have treated three shades of blood as manifestations of the same thing but the "most thoroughgoing egalitarians of the Age of Revolution", such as Paine, did: "nobles, kings and slaves [were] equal affronts to human dignity because their existence derived from the same irrational exclusionary principle: heredity". Offended aristocrats claimed that they might be deprived of their titles and wealth, and forced to use what the revolutionary legislature characterised as their "real family names" but would die as gentlemen, because gentility was in their blood.

The way we wear our hats
The way we sip our tea
The memory of all that
No, no you can't take that away from me!
The way we hold your wife
The way we dance till three
The way you change my life
No, no you can't take that away from me!

'Towards a Structural Solution to Unemployment' by Robert Struble Jr in (1993) 28(11) International Journal of Social Economics 15-25 comments

Chronic unemployment is a flaw in modern capitalism that calls for reform. Unlike expansionary demand‐management programmes, public works will be non‐inflationary if they put back into the economy in government spending no more than the dollar value taken from the economy in taxes. The spending should be labour intensive while all associated taxing should target sectors and products that are capital intensive. This economic approach is not expansionary/ inflationary but structural: the reforms would shift production in a labour‐using as opposed to a labour‐saving direction, so that it would take more hours of work to produce the same GNP. The pool of workers who are under‐employed and unemployed would supply the required extra hours. First, examines the problems associated with fiscal and monetary approaches to unemployment. Then details the proposed reforms, looks at technical aspects, diagrams and macro‐economic implications, and considers the probable effects on the US balance of trade. The final section considers the critics′ view that an automation tax would be a neo‐Luddite attack on technological progress.

Chamber music

One of my more brilliant friends (alas in one of those parts of the bureaucracy where everyone's expected to be nameless) sent the following today

Some time ago I discovered that Annabel Crabb, she of that esteemed publication, The Sydney Morning Herald, and periodic contributor to the ABC's Insiders programme, operates a twitter stream during Question Time in parliament. The twitter feed is called CrabbTwitsard, a colourfully comic compound! I often read it on my iPhone, because she manages to inject commentary with witty observation and caustic facetiousness.

Today, there was a major departure from what usually occurs. Normally Crabb re-tweets comedic interjections from people reading her tweets, but today something very different occurred. Crabb challenged Joe Hockey in her twitter feed to respond, which he did, from the floor of the House via his mobile phone or laptop! Soon afterward a coalition back-bencher, Stuart Robert sent a tweet to Crabb berating the Prime Minister for attacking the back-bench, but claiming victory, saying, "I think I struck a nerve with Ruddy..."!

Lindsay Tanner, a little later in proceedings suggested that Hockey was spending far too much time twittering!

What an amazing sequence of events. The intrusion of technology in a setting where, I imagine, it would be assumed to be unwelcome.

Presumably Mr Speaker is not aware of the trespass of such exchanges upon the orderly and rightful conduct of the Parliament. Presumably too there are no standing orders preventing use of such communication systems in the manner mentioned. Would any of this represent a contempt of Parliament, or contempt of the Chair? And what does this mean for the future? Can a parliamentarian be covered by parliamentary privilege if they are physically inside the chamber, but communicating from it?

One wonders where all this is heading ...

Uptake of new media by individual legislators and by parliaments is uneven, with a Twitter stream under the auspices of the UK Parliament proving to be somewhat sedate (apparently more so than an aggregation from Norwegian MPs) and questions being raised about the Australian Prime Minister's outsourcing of his Twittering (akin to debate about the phenomenon of CEO Blogging) and anxieties about impersonation (tweets by at least three fake Kevin Rudds and a fake Barry O'Farrell in addition to the inevitable faux Stephen Spielberg, Naomi Campbell, Tom Cruise & Co).

In May the 'Twittergate' scandal in the German Bundestag ("Germany Gripped By Twittergate") centred on MPs who "broke decades of tradition" by leaking the re-election of that nation's president, Hörst Köhler, 15 minutes before the result was officially announced. The Financial Times reported that

Julia Klöckner ... told her Twitter 'followers' that afternoon: "People, you can watch the football in peace. The vote was a success." Ulrich Kelber, of the SPD party, was even more specific, prematurely uploading the result of the vote-count to his micro-blog: "The count is confirmed: 613 votes. Köhler is elected."

Klöckner subsequently apologised for the "somewhat premature timing" of the message and stepped down from her committee role.

The Social Democratic Party was later reported by Der Spiegel to be investigating whether a mobile phone jammer could be installed in the Bundestag building ("We want to know if it would be technically feasible") and exploring whether legislatures in other countries have installed such technology. Codes of practice - underpinned by a spot of discipline on the part of the presiding officer - might be a more effective way of "ensuring confidentiality" or decorum. I'm reminded of the report that during the first session of the New Zealand legislature in 1854 an Hon. Member "marched in with his hat on, defied the chairman, flung a Gazette on the table and declared the session was over” and then marched around the chamber flourishing his umbrella and daring anyone to evict him".

Hat-wearing and umbrella-waving (UmbrellaGate?) is no longer tolerated but alas the Australian Parliament and then Prime Minister was prepared to tolerate Senator Heffernan's egregious abuse of privilege in smearing Kirby J of the High Court, for which see Lisa Hill's 'Parliamentary Privilege & Homosexual Vilification' at 82-105 in Hate speech and freedom of speech in Australia (Federation Press, 2007) edited by Katharine Stone & Adrienne Gelber and Parliamentary Privilege (Federation Press, 2003) by Enid Campbell.

Australian legislatures have coped with SMS. Notes to the 2007 Standing Orders of the NSW Legislative Assembly for example state that

The Speaker noted that there had been a number of recent instances of mobile phones ringing in the Chamber and reminded members that disruptive mobile phone use in the Chamber was disorderly. The Speaker stated that while members were allowed to bring mobile phones into the Chamber, the phones should always be set on silent mode. The Speaker also stated that mobile phones could be used to send messages and e-mails in the Chamber, but disruptive or inappropriate mobile phone use (such as taking photographs within the precincts of the Chamber) was prohibited.

The same section of the Orders prohibits misbehaviour with paper planes. Chapter 5 of the House of Representatives Practice guide (5th edition, 2005) for the national parliament notes that "a Member may keep his hands in his pockets while speaking" but "may not distribute apples to other Members in the Chamber". It advises that

Mobile phones must not be used for voice calls and any audible signal from phones or pagers must be turned off. Members who have allowed phones to ring have been directed by the Chair to apologise to the House. However, text messaging is permitted and notebook computers may be used for emails, if done discreetly and so as not to interrupt the proceedings of the House. The use of cameras, including « mobile phone cameras, on the floor of the House is not permitted.

A colleague has kindly commented that the physical location of the MP is not determinative in relation to parliamentary privilege: for Twittering from the national Parliament it depends on whether the communication is a parliamentary proceeding within the meaning of s 16 of the Parliamentary Privileges Act 1987) (Cth). Even communications outside the chamber will be covered, eg communications received in a committee hearing, wherever that may take place. However, private communications would not be covered, even if transmitted from the floor of the house.

Elsewhere I've been dismissive of microblog (aka tumblelog) services such as Twitter, which are supposedly

the punk rock of blogging. They strip away all that prog-rock space jazz and focus on the content: short thoughts, quotes, photos, music, video clips and links. Unlike the verbose ramblings of most weblogs, where anything posted tends to be accompanied by several paragraphs of quotes, opinion and additional links, a tumblelogger just posts one thing at a time. ... Tumblelogging embraces the ephemeral existence of web content. A post is important today and all but forgotten tomorrow.

Geographical Indications

IPKat reports on the latest round in the Budĕjovický Budvar dispute, in which the Czech owners of Budweiser beer have sought to prevent Rudolf Ammersin from importing the US Bud product from outside the EU into Austria. The Czech entity has asserted that authority for prevention of the imports is provided by a bilateral agreement between Austria and the former (non-EU) state of Czechoslovakia.

After ten years the dispute continues, with the Court of Justice of the European Communities in 2003 having referred to geographical indications (GI) and litigants then seeking clarification as to whether tagging a product with a GI

must fulfil a specific geographical indication function referring to a particular place or a particular region, or does it suffice that the designation is capable, in conjunction with the product bearing it, of informing consumers that the product bearing it comes from a particular place or a particular region in the country of origin

and whether

a consumer survey is to be carried out for ascertaining perceptions in the country of origin, and, if so, that a low, medium or high degree of recognition and association is required in order for protection to be available; [and whether the requirement that] the designation must actually have been used as a geographical indication by several undertakings, and not just one undertaking, in the country of origin and that use as a trade mark by a single undertaking precludes protection?

The Court has now ruled that

– in order to determine whether a designation can be considered to constitute a simple and indirect indication of geographical provenance, ... the national court must ascertain whether, according to factual circumstances and perceptions prevailing in the Czech Republic, that designation, even if it is not in itself a geographical name, is at least capable of informing the consumer that the product bearing that indication comes from a particular place or region of that Member State;

... it is for the national court to decide, in accordance with its own national law, whether a consumer survey should be commissioned for the purpose of clarifying the factual circumstances and perceptions prevailing in the Czech Republic in order to ascertain whether the designation 'Bud' at issue in the main proceedings can be classified as a simple and indirect indication of geographical provenance and has not become generic in that Member State. It is also in the light of that national law that the national court, if it finds it necessary to commission a consumer survey, must determine, for the purposes of making the necessary assessments, the percentage of consumers that would be sufficiently significant

IPKat comments that he is

intrigued at the possibility of a trial court in one [EU] Member State ordering the carrying out of a consumer survey in another in order to ascertain consumer perceptions relating to geographical identification and genericity. It appears to him that there is no single approved methodology or standard of proof for such surveys across the European Union. What if, for example, a court in State A orders a survey in State B which fulfils the lower standards of proof in State A than are demanded in State B?

For the moment I think I'll stick to rereading Anheuser-Busch, Inc v Budìjovický Budvar, Národní Podnik [2002] FCA 624, Anheuser-Busch v Budweiser Budvar [2001] 3 NZLR 666 and Comite Interprofessionnel du Vin de Champagne v Wineworths Group Limited [1991] 2 NZLR 432.

Children as legal constructions

An article by Annette Appell on 'The Pre-Political Child of Child-Centered Jurisprudence' in (2009)  46(3) Houston Law Review102 considers the socio-legal category of childhood.

Appell's intention is to identify critical conceptions of justice for children and their families. She comments that although

feminist jurisprudence and other critical legal theories have challenged the naturalness and inevitability of the social order and exposed the power dynamics undergirding this constructed naturalness, child-centered jurisprudence has remained essentially a positivist endeavor.

Her article, by

evoking methods of feminist jurisprudence and applying lessons of childhood studies that the construction of childhood is not a natural fact, but developed in specific ways, in specific contexts ... begins the project of uncovering the contours and work of the legal definition and regulation of childhood, the social category in which children sit.

Enough with CritLit-speak, already, although I'm grateful that there aren't the usual invocations of Kristeva, Jack D and Spivak.

Appell explains that

The Article first outlines the legal construction of childhood, which, like earlier constructions of women, portrays children as private, dependent, and developmental. Next, it compares feminist and child-centered jurisprudence, particularly as they have been organized around and addressed dependency, and argues that child-centered jurisprudence has not interrogated the naturalness, dependency, and privacy of childhood. The Article then illustrates philosophical, political, and material conditions that resulted in the present legal construction of childhood in the United States as a natural, private, and developmental site leading to adulthood and political citizenship. The Article concludes with a set of observations that might drive a jurisprudence of childhood toward a more critical and robust conception of justice for children as children and as the adults they will become.

Those observations include the statement that

children are defined in part by their deficiencies but also by their capacity to become members of the polity. This is a distinct aspect of childhood, a transient stage that is expected to prepare one for full capacity as an adult—amoral and political actor. So far, however, we tend to view this development and capacity in narrow and largely psychological and legal terms of physical and cognitive maturation and legal and political incapacity. The historical context of the development of contemporary American notions of childhood, along with its continued structural and ideological replication, continue to frame the child in individualized, developmental, and familial contexts, rather than in broader socioeconomic terms.

We might also examine what it would mean to recognize children as beings with agency, voice, and authority. What might children say? How might they vote? What would they say they need? Who else should be consulted? Are there methods short of full agency and political citizenship that would promote justice for children? What, if any, portions of the construction of childhood can be improved, consistent with liberalism, to comport with liberalism's abandonment of the right of birth as the measure of power? Are there other ways of conceiving justice that would be consistent with family privacy and the moral liberty that privacy entails and promotes?

This Article presented a first step toward a critical jurisprudence of childhood. It aims to challenge this author, other students of children and the law, and even those who marginalize childhood, to take a fresh look at the role of children in law and society; to take children out of the compartment of childhood and examine the connection between adulthood and childhood; and to ask a new set of questions regarding the role of childhood in the political order. The next stage of this project, "The Political Child", will begin to form a positive theory of justice that will address children's agency, but may be more engaged with intergenerational and transitional phenomena uniquely related to the organization of a society around adulthood and childhood

From the perspective of my dissertation I'd like to see a broader 'jurisprudence of the vulnerable' rather than merely a 'jurisprudence of the child' or of 'women'. That vulnerability would encompass, for example, the aged, children, the disabled, refugees and the unemployed. Why not include animals?

Child Complainants

The Australian Institute of Criminology has released a note on 'Child Complainants And the Court Process in Australia' [PDF] as part of its Trends & Issues in Crime & Criminal Justice series.

The note comments that

it has been recognised that child complainants in the criminal justice system can experience difficulties over and above those of other complainants and that children can experience the court process as extremely traumatising. This can be exacerbated if children are complainants in child sexual offence matters and if they have to give evidence against a family member. This paper [first] outlines the major factors that contribute to making court processes harrowing for child complainants. Second, it outlines some of the main initiatives that have been introduced to address these factors. Finally, it weighs up the evidence about initiatives designed to assist child complainants and concludes that such initiatives have had only limited practical impact for child complainants in the criminal justice system. The limited impact is attributed to the need to balance the rights of the accused with consideration for the complainant, a failure to translate legislative changes into practice, the impact of judicial discretion and/or a focus on protecting child complainants at the expense of increasing convictions.

The note highlights crimes against children as typically being crimes against the person, with children comprising "substantial proportions" of victims of sexual offences. The highest rate of recorded sexual assault in Australia during 2007 was thus for 10 to 14-year-old females (at 544 per 100,000 population). For males in the 10 to 14 year cohort the rate was 95 per 100,000 population, with a reported 78 per 100,000 boys aged under 10 years experiencing a sexual assault. Contact with the court system is especially traumatic for child complainants, who may experience high levels of stress and 're-traumatisation'.

Reforms to address that problem (and increase a child's capacity to provide reliable evidence) since the 1980s are founded on expectations that children need special assistance in court because of their age and lack of life experience; that, more broadly, sexual offences require special assistance for complainants in court proceedings regarding those matters; and that consideration for child complainants must be balanced against providing a fair trial for the accused.

The note identifies problems facing child complainants as giving evidence and being cross-examined (in particular where English is not a first language, a notable concern given that Indigenous children were more than six times as likely as non-Indigenous children to become the subjects of child protection substantiations); poor perceptions of child witnesses (jurors tend to view child witnesses as unreliable because, for example, complainants often delay reporting sexual abuse given fear of the perpetrator, self-blame and shame); and the low likelihood of trials resulting in conviction.

Responses have included -
+ modifying the physicality of the courtroom (eg use of screens to block the accused from the complainant's view)
+ use of closed-circuit television (CCTV)
+ use of pre-recorded evidence for child complainants
+ providing for support persons to be present when children give evidence, either in court or via CCTV
+ restrictions on committal hearings
+ restrictions on cross-examination by the accused
+ improved techniques for interviewing and child witness statements
+ new offence categories such as 'maintaining a sexual relationship with a child' (in cases where an adult is alleged to "have sexually offended against a child on at least three separate occasions but the individual occasions of offending or acts cannot be individually identified and particularised with precision")
+ specialist jurisdictions and services for child witnesses.

The note concludes that

Although a variety of initiatives have been introduced to address the problems faced by child complainants, evidence currently suggests that ... these have achieved only limited success. Certainly, it appears that such initiatives are under-utilised. Their increased acceptance and use may, in the future, result in more positive outcomes.

Naked Truth

Encountered by mistake during literature search today ... 'Under the Robes: A Judicial Right to Bare Arms (and Legs and ...)?', an exercise in legal wit by Erik Jensen published (2009) 2d 12 Green Bag  221-227.

Jensen explains that

This essay considers a time-dishonored question: What, if anything, do judges have on under their robes? After serious research and thought, the author concludes that judges are-or, in an economically rational world, should be-minimalists.

Jensen, in taking issue with Richard Posner and asking whether the judiciary should 'go commando', concludes that

Always subject to criticism, judges will often be scarred, but they should never be frayed.

Even if a judge today were inclined to push economic considerations to the side and take some notions of propriety into account (like "No nudes is good nudes"), it wouldn't matter in this context. Economic efficiency and propriety can coexist: as I have noted, a robe covers just about everything anyway. A judge can don a robe and not scare the horses while satisfying an economic preference for nudity sub roba. And silk, if that's what the robe is made of, feels so-o-o good. It might be better than nothing.

The bottom line in all of this? If you lift up many judges' robes, I predict you'll see lots of bottoms (before you're carted off to jail).

The Lord Chancellor in Iolanthe more succinctly explained that

The Law is the true embodiment
Of everything that's excellent.
It has no kind of fault or flaw,
And I, my Lords, embody the Law.

An account from a legal costumier is provided in Legal Habits: A Brief Sartorial History of Wig, Robe & Gown (PDF) by Thomas Woodcock, with dissertation fodder in A History of Legal Dress in Europe (Clarendon Press, 1963) by W N Hargreaves-Mawdsley and 'Of Wigs and Gowns: A Short History of Legal and Judicial Dress in Australia' by Rob McQueen in 16(1) Law in Context (1999) 1-31. There is a more sardonic view in Uniforms: Why We Are What We Wear (Houghton Mifflin, 2002) by Paul Fussell, supplemented by Men in Black (Reaktion, 1995) by John Harvey and Seeing Through Clothes (Viking, 1978) by Anne Hollander.

Full Employment Act for Domain Name Practitioners

Nicholas Weston offers a characteristically astute post on the 'Full Employment Act for Domain Name Practitioners', aka ICANN's move to open up the global domain space with new - and internationalised - generic top level domains (gTLDs). ICANN's promoting that move as "Openness Change Innovation", fortunately eliding 'Happiness' along with 'Confusion', 'Conflict' and 'Revenue'. "In a world with over 1.6 billion Internet users – and growing – diversity, choice and competition are key to the continued success and reach of the global network."

Definitions of success can depend on where you stand, and it is difficult to escape the conclusion that ICANN has come to view success in terms of its own legitimacy, something to be reinforced through acceptance of notions that diversity equals spawning new gTLDs (despite the failure of the latest generation of gTLDs, which haven't gained traction among registrants or end-users - encountered many dot museum, dot pro, dot biz, dot mobi, dot aero sites lately? - and in some instances haven't proved to be financially viable for registries/ars) and through responsiveness to demands from the domain name registrar industry.

Despite efforts at meaningful public participation (such as the global meeting I attended in Sydney in July), ICANN remains an example of institutional capture ... arguably a capture by the wrong interests. As Weston implies, the ongoing opening up of the DNS foreshadows happy days for DNS specialists but I wonder whether there'll be much joy for novice users of the net.

Distant Thunder

In terms of debate about the construction of national identity and the role of historians and archaeologists as 'keepers of trhe flame' - explored in works such as The Contested Nation: Ethnicity, Class, Religion & Gender in National Histories (Palgrave Macmillan, 2008) edited by Stefan Berger & Chris Lorenz, Cultural Identity and Archaeology: The Construction of European Communities (Routledge, 1996) edited by Paul Graves-Brown, Siân Jones & Clive Gamble and Nationalism, Politics and the Practice of Archaeology (Cambridge University Press ,1995) edited by Philip Kohl & Clare Fawcett - it is fascinating to read conflicting reviews and mass media coverage of Schlomo Sand's The Invention of the Jewish People (Verso, 2009), a successor of works such as Arthur Koestler's The Thirteenth Tribe: The Khazar Empire and Its Heritage (Random House, 1976).

Sand's site quotes historian Israel Bartal as characterising the work as a "learned, captivating study ... certainly worthy of a serious discussion". A close reading of Bartal's review is of value for an appreciation of scholarly disputes and of the promotion of historical bestsellers, often hyped with what might be considered to be a somewhat selective quotation.

Bartal's overall response is severe, with the reviewer confessing to being "utterly astounded by the statements of the author of this learned, fascinating study". Bartal states that

Several times, Sand declares what his ideological position is. Like him, I am not one of those who support the injustices committed by a number of Israeli government agencies against minority groups in this country in the name of arguments pretending to represent "historical values." However, critical readers of Sand's study must not overlook the intellectual superficiality and the twisting of the rules governing the work of professional historians that result when ideology and methodology are mixed.

Sand's desire for Israel to become a state "representing all its citizens" is certainly worthy of a serious discussion, but the manner in which he attempts to connect a political platform with the history of the Jewish people from its very beginnings to the present day is bizarre and incoherent.

He goes on to argue that

Sand defines national identity in the spirit of the ideas of the French Revolution. Not only does he reject the concept of an ethnic identity that is not dependent on the existence of a political entity confined within clearly defined borders, he even rejects an identity whose possessors' claim is founded on a cultural or political entity that is not subject to control or management by the agencies of the central regime. In his view, such identities are merely "invented identities" and he does not believe that pre-modern identities can survive in the modern era. In fact, Sand advocates the position that was heard in the French National Assembly in December 1789: "The Jews must not be allowed to constitute a special political entity or to have a special political status. Instead, each Jew must on an individual basis be a citizen of France." However, whereas the champions of the Emancipation in Paris did recognize the non-religious essence of the pre-modern Jewish nation, Sand does not.

'The Jewish-people deniers' by Anita Shapira in 28(1) The Journal of Jewish History (2009) 63-72 concludes that

The assertion that there is no Jewish people is shared by many groups: Jews who would like to appropriate a different national identity or challenge every national framework whatsoever; people looking for reasons of every sort and type to question the links between the different Jewish communities; those who object both to the bond between the Jewish people and the land of Israel and to that people’s right to a state of its own. To deny the existence of the Jewish people sometimes stems from a search for universalism, sometimes from considerations of a rival nationalism, sometimes from mere hatred of Jews, and sometimes from intolerance of an entity that does not fit into the neat definitions of nation and religion. Sand would like to promote a new Israeli agenda, striving for harmony between Jews and Arabs, to be based on the remodeling of Jewish identity. However positive the goals he is targeting may be in their own right, there is something warped and objectionable in the assumption that for Jews to integrate into the Middle East, they, and they alone of all the peoples in the region, must shed their national identity and historical memories and reconstruct themselves in a way that may (perhaps) find favor with Israeli-Palestinians. But reconciliation between peoples makes necessary a mutual recognition of truth, not an artificial analysis that presents a fabricated front, a quasi-mask that hides the real differences. What Sand is offering is this kind of artificial analysis.

Ambiguous bodies, binary ideals?

Reading Hermaphrodites and the Medical Invention of Sex {Harvard University Press, 1998) by Alice Domurat Dreger, 'The Medical Construction of Gender: Case Management of Intersexed Infants' by Suzanne Kessler in (1990) 16(1) Signs 3–26 and 'Impossible Hermaphrodites: Intersex in America, 1620-1960’ by Elizabeth Reis in (2005) 92(2) Journal of American History  411-441 while waiting for arrival of Reis' Bodies in Doubt: An American History of Intersex (Johns Hopkins University Press, 2009).

'Progress and Politics in the Intersex Rights Movement: Feminist Theory in Action' by Dreger & April Herndon in (2009) 15(2) GLQ: A Journal of Lesbian & Gay Studies 199-224 considers thinking since Kessler's "foundational" article, one that from the perspective of historical research was weak (citation of Foucault's Hercule Barbin and History of Sexuality is unpersuasive) but highlighted questions of cultural construction. Dreger & Herndon

use the term intersex to refer to variations in congenital sex anatomy that are considered atypical for females or males. The definition of intersex is thus context specific. What counts as an intersex phallus, for example, depends on local standards for penises and clitorises. Similarly ... a person with no obvious sex ambiguity but with 'sex chromosomes' other than simply XX (female-typical) or XY (male-typical) is today considered an intersex person by some intersex advocates, medical researchers, and clinicians, but not by all. Yet such a person could not have been considered intersex before the ability to diagnose 'sex chromosomes'. So the definition of intersex depends on the state of scientific knowledge as well as general cultural beliefs about sex.

For this reason, in practice we define a person as intersex if she or he was born with a body that someone decided isn't typical for males or females.

Reis' 'Perfect or Perverted? Hermaphroditism and homosexuality in nineteenth-century America' in (2008) 8(2) Common-Place  thus noted the perplexity of US anatomist Jonathan Neill in 1850 in characterising a deceased person (conveniently destitute and perhaps as conveniently Black):

Though the subject dressed in women's clothes, Dr. Neill was not entirely persuaded that she was female. She had large breasts and no hair on her face, two markers that typically would indicate femaleness. But other secondary sex characteristics suggested maleness. Neill wrote that if one looked only at the ratio of the broad shoulders to the narrow hips and also at the shape of the limbs, it would "have indicated the male sex". What were the definitive markers of sex, then? Did large breasts and a smooth face trump narrow hips and broad shoulders?

Dreger & Herndon comment that

Delineating intersex ultimately depends on delineating males and females, and when you get into the nitty-gritty of biology, this is not a simple task; nature is messy and often surprising ... That said, there are some forms of intersex that make a person's body obviously different from what is usual — for example, when a child is born otherwise male but without a penis, or when a child is born otherwise female but with a very small vagina and a large clitoris. So when we say that intersex is context specific, we do not mean to imply that these biological variations are not real but that how many variations (and thus people) are included in the category intersex depends on time and place. ... Making things rather confusing to the novice, the medical names for various intersex conditions may refer specifically to the genotype (genetic basis), or to the phenotype (body type), or to the etiology (causal pathway of the condition), or to some combination of these. So saying someone is “intersex” does not tell you anything specific about a person's genes, anatomy, physiology, developmental history, or psychology. Intersex functions as a blanket term for many different biological possibilities — and as we show, many different political possibilities too.

One conclusion might be that law accommodates or constrains those possibilities, whether through recognition or through legitimation of surgical or other intervention (eg dress codes) founded on an ideal binary system of male/female identity.

Another might be that it is appropriate to question formulations of intersex as "Disorders of Sex Development" (defined by the 2006 'Consensus Statement on Intersex Disorders' as "congenital conditions in which development of chromosomal, gonadal, or anatomic sex is atypical"). From a legal perspective 'disorder' is not a neutral term. It may imply deficiency or defect, an implication for example that is of concern for theorists who have criticised the tendency of much law to treat women as defective men. Atypicality might not be construed as a disorder, a foundation of a biopolitics in which those with a medical 'problem' are encouraged by law to seek a medical solution to correct that problem and even, as in employer responses to cognitive styles such as ADHD, considered to have forgone protection under discrimination or other law if those people choose not to medicate.

SVC regulation

'Down the Rabbit Hole: An Adventure in the Wonderland of Stored-Value Card Regulation', an article by Kathleen DiSanto in (2008) 12(1) Journal of Texas Consumer Law 22-36, considers US SVC law, in particular problems with state consumer protection statutes and regulations.

DiSanto aims to track

the development of the SVC industry to provide a historical context for its rise and an understanding of the present state of the industry. Present SVC legislation is evaluated, and the role of state legislatures, Congress, federal regulatory agencies, and the courts in the its creation is considered. In exploring present regulation, the article focuses on the problems with consumer protection statutes and regulations, and then turns to the challenges of creating legislation that adequately protects national security by limiting criminal and terrorist activity. Subsequently, the potentially negative influence of private lawmaking by payment networks on enacting effective legislation is addressed. Finally, the article explains why effective federal legislation is critical in establishing domestic and foreign policy.

She comments that

In addition to resolving the confusion caused by state consumer protection initiatives, the federal government also needs to impose tighter regulations on the SVC industry to protect national security. Due to the prevalence of SVCs in the marketplace, eliminating them is unlikely and impractical. The ability to exploit SVCs turns on the anonymity of the user and diverse practices of merchants and entities selling SVCs.

The hidden identity of the card user is more problematic, as national security issues are raised because a person can engage in transactions anonymously. Many possible solutions exist, and some are fairly simple to implement. At a minimum, the person using the prepaid bank card should be required to provide identification.

Another way to reduce the risks of SVCs is to stop the sale of nameless cards or log the identity of the purchaser.

One might question whether such logging will simply be a matter of garbage in, garbage out. DiSanto refers to national security concerns, arguing that

current federal laws are designed to require banks to exercise due diligence in documenting consumer identification and transactions, but may not be effective because of the difficulty of international enforcement and SVCs’ exemption from some of the key provisions of the BSA. The PATRIOT Act and the BSA have been somewhat effective in reducing domestic risks of fraud or money laundering facilitated by SVCs, but enforcement in foreign countries is significantly more challenging.

For example, if both parties holding cards linked to a payroll account live in the United States, banking officials would not likely encounter much difficulty implementing the procedures requires by the PATRIOT Act and BSA to identify the account owners. However, if one of the cardholders is residing in a foreign country, tracking the person’s identity becomes much more difficult.

Unfortunately, these transactions involving unidentifiable figures are most easily exploited by wrongdoers and pose the greatest threats to national security. Without appropriate regulation of the SVC industry, the potential uses of the cards further undermine national security, as funds can be transferred anonymously to parties in foreign countries. SVCs are often used by migrant workers or illegal aliens working in the United States to transfer their wages to their families living in their home country. Cardholders can request two cards, enabling another person in a remote location or in another country to simultaneously access the account. Use by aliens is a rather benign exploitation of the SVC industry, but use by terrorist organizations is a great concern.

Yoda the Rabbit on a frolic among the flowers

Risk

In 'You Have No Idea' Andrew Koppelman notes that

One of the classic justifications for democracy is that an accountable government will do a good job of looking after people's needs, because the voters will reward the incumbents if they do that. The present health care reform struggles cast some doubt on this theory. It turns out that government can very publicly make a lot of people a lot better off, and it will not be rewarded, and in fact may be punished.

Koppelman's commenting on the gap between US community perceptions of risk regarding medical expenses and the grim reality, reflected in wariness about the shape of health reforms. Citing the author of study who warned that "Unless you're a Warren Buffett or Bill Gates, you're one illness away from financial ruin in this country", Koppelman comments that

all those people who oppose health care reform because they like the coverage they’ve got really have no idea of the real dangers they face, because they have no idea what their insurance companies would really do to them if they got sick. ... The people who will most benefit from the consumer protections that Obama is advocating – those who will experience serious illness in the future – have no idea that they are benefiting, and so will not politically reward those who deliver the benefits.

That is an echo of the argument by Cass Sunstein & Timur Kuran in 'Availability Cascades and Risk Regulation' in 51(4) Stanford Law Review (1999) 683-768 that

Most risk judgments rest on little, if any, personal investigation; they depend largely, if not wholly, on trust placed in the judgments of selected others.

Those 'selected others' are likely to be (or use a public discourse shaped by) 'availability entrepreneurs', ie activists who manipulate the content of public discourse through provision of data and explanations of what that data means.

On a smaller scale we are seeing such shaping in Australian proposals to solve 'the health crisis' through federal funding of superclinics (presumably without the Geoffrey Edelsten grand piano and other bling) and establishment of a national preventative health authority. The latter appears set to disregard proposals for higher taxes on unhealthy foods, higher cigarette and alcohol taxes, phasing out television advertising of junk food to children, a ban on all remaining tobacco advertising and phasing out alcohol advertising during sporting events, given Nicola Roxon's comment in today's Sunday Age that

I am absolutely focused on how government action can leverage change within the community rather than pretending that a regulatory approach on its own will solve these quite complex social problems.

It would appear that the lever isn't going to be very large, despite a commitment to "making smoking history"

Panics, Policy and Potentates

I'm flying through Child Pornography & Sexual Grooming: Legal & Societal Responses (Cambridge: Cambridge Uni Press 2009) by Suzanne Ost. It is an exemplary work of legal scholarship that explores UK law, policymaking and arguments about moral panics in relation to online/offline criminal content and social interaction.

The book promises to be of substantial value in supervision of a student who is doing her LLB Honours dissertation on sexting, in particular the creation and dissemination of images by people under 18 using mobile phones.

I'm less impressed by A Public Life: The Memoirs of Zelman Cowen (Carlton: Miegunyah Press 2006). Despite advocacy from Susan Priest I just haven't warmed to the autobiography of the former Melbourne Law School Dean, Vice-Chancellor and Governor-General. It is very much a public life, with only a few flashes of fire or resentment: polished, marmoreal, an upmarket Rotary dinner speech that leaves me wondering whether there's anything under the suave exterior.

Tastes vary, and some may think that the book's tone - and the author's deportment - are admirable. I sought some indication of depths, of nights in which Jacob wrestled with the angel or even the humanity apparent in Mucking About: An Autobiography (Carlton: Melbourne Uni Press 1977) and The Chance of Politics (Melbourne: Text 1997) by Paul Hasluck. The bloodless nature of A Public Life appears inconsistent with the ferocity - or mere quirkiness - of faculty and university politics. Suavity may have justified Sir Zelman's appointment as GG but it would be interesting and instructive for him to unbutton and offer insights about how he operated or what drove him onwards. Life was surely more than a succession of emollient statements and effortlessly-managed committee meetings punctuated only by decisions on which appointment to accept (shall I bite the golden apple or the silver) and irritation over unruly student radicals.

Emperor's old clothes

At times it is hard not to wonder about the engagement of corporate law centres, corporate governance centres and business schools that at best have been silent about egregious commercial practice and at worst have acted as cheerleaders for people such as Bond, Skilling, Ebbers and Lay.

The Sydney Morning Herald, in reporting on questions by the current parliamentary Inquiry into Financial Products & Services in Australia regarding Commonwealth Bank involvement in the collapse of Storm Financial, refers to "a secret agreement", "months-long delays in effectively notifying customers of margin calls" and omission of signatures from financial documents.

Irrespective of indolence or incapacity on the part of financial regulators, whom we might trust were more engaged than APRA when it failed prevent the HIH collapse (or the SEC in dealing with Madoff), what was academia saying about such practices and that culture?

Author Stuart Washington comments that

the inquiry has heard incredible evidence about the differing standards of documentation required by different banks before putting people into hock.

For example, evidence was given that it is apparently common Commonwealth Bank practice to make loans to retirees without requiring their signature on any loan application form.

No wonder Storm's production line favoured the bank - it was so much easier than the fuddy-duddies at National Australia Bank who required people to actually go to a branch and sign their loan application.

The production line starts to explain the plethora of mixed-up, clearly wrong and possibly wilfully misleading data on home loan documents now confronting people in the fallout.

Meanwhile the New York Times, in 'New Exotic Investments Emerging on Wall Street' by Jenny Anderson, reports that those lovable bankers and even more lovable lawyers in Manhattan are at it again.

After the mortgage business imploded last year, Wall Street investment banks began searching for another big idea to make money. They think they may have found one.

The bankers plan to buy 'life settlements', life insurance policies that ill and elderly people sell for cash — $400,000 for a $1 million policy, say, depending on the life expectancy of the insured person. Then they plan to 'securitize' these policies, in Wall Street jargon, by packaging hundreds or thousands together into bonds. They will then resell those bonds to investors, like big pension funds, who will receive the payouts when people with the insurance die.

The earlier the policyholder dies, the bigger the return — though if people live longer than expected, investors could get poor returns or even lose money.

Those unhappy investors will presumably include pension funds and insurance companies ... and thus people like you and me. The securitisers will have got their fees and be smiling all the way to the Hamptons. The Times comments that

In the aftermath of the financial meltdown, exotic investments dreamed up by Wall Street got much of the blame. It was not just subprime mortgage securities but an array of products — credit-default swaps, structured investment vehicles, collateralized debt obligations — that proved far riskier than anticipated.

The debacle gave financial wizardry a bad name generally, but not on Wall Street. Even as Washington debates increased financial regulation, bankers are scurrying to concoct new products.

In addition to securitizing life settlements, for example, some banks are repackaging their money-losing securities into higher-rated ones, called re-remics (re-securitization of real estate mortgage investment conduits). Morgan Stanley says at least $30 billion in residential re-remics have been done this year.

Financial innovation can be good, of course, by lowering the cost of borrowing for everyone, giving consumers more investment choices and, more broadly, by helping the economy to grow. And the proponents of securitizing life settlements say it would benefit people who want to cash out their policies while they are alive.

But some are dismayed by Wall Street’s quick return to its old ways, chasing profits with complicated new products.

"It’s bittersweet", said James D. Cox, a professor of corporate and securities law at Duke University. "The sweet part is there are investors interested in exotic products created by underwriters who make large fees and rating agencies who then get paid to confer ratings. The bitter part is it's a return to the good old days." ... Defenders of life settlements argue that creating a market to allow the ill or elderly to sell their policies for cash is a public service. Insurance companies, they note, offer only a 'cash surrender value', typically at a small fraction of the death benefit, when a policyholder wants to cash out, even after paying large premiums for many years.

Enter life settlement companies. Depending on various factors, they will pay 20 to 200 percent more than the surrender value an insurer would pay.

But the industry has been plagued by fraud complaints. State insurance regulators, hamstrung by a patchwork of laws and regulations, have criticized life settlement brokers for coercing the ill and elderly to take out policies with the sole purpose of selling them back to the brokers, called 'stranger-owned life insurance'.

In 2006, while he was New York attorney general, Eliot Spitzer sued Coventry, one of the largest life settlement companies, accusing it of engaging in bid-rigging with rivals to keep down prices offered to people who wanted to sell their policies. The case is continuing.

As one commentator reported, "Predators in the life settlement market have the motive, means and, if left unchecked by legislators and regulators and by their own community, the opportunity to take advantage of seniors".

Perhaps we need to actively move beyond the "emerging new regulatory paradigm" discerned by Roman Tomasic in 'From White Collar to Corporate Crime and Beyond: The Limits of Law and Theory' (here) and consider a new academic paradigm that empowers effective regulation of global financial markets and innovations such as flash trading and deep pools.

Paul Krugman in today's Times claims that

the economics profession went astray because economists, as a group, mistook beauty, clad in impressive-looking mathematics, for truth. Until the Great Depression, most economists clung to a vision of capitalism as a perfect or nearly perfect system. That vision wasn't sustainable in the face of mass unemployment, but as memories of the Depression faded, economists fell back in love with the old, idealized vision of an economy in which rational individuals interact in perfect markets, this time gussied up with fancy equations. The renewed romance with the idealized market was, to be sure, partly a response to shifting political winds, partly a response to financial incentives. But while sabbaticals at the Hoover Institution and job opportunities on Wall Street are nothing to sneeze at, the central cause of the profession's failure was the desire for an all-encompassing, intellectually elegant approach that also gave economists a chance to show off their mathematical prowess.

Unfortunately, this romanticized and sanitized vision of the economy led most economists to ignore all the things that can go wrong. They turned a blind eye to the limitations of human rationality that often lead to bubbles and busts; to the problems of institutions that run amok; to the imperfections of markets — especially financial markets — that can cause the economy's operating system to undergo sudden, unpredictable crashes; and to the dangers created when regulators don't believe in regulation.