Critical Legal History

'After Critical Legal History: Scope, Scale, Structure' by Christopher L. Tomlins in (2012) 8 Annual Review of Law and Social Science outlines 

a course for U.S. legal historical writing distinct from the ascendant mode of the last thirty years, generally known as “critical legal history” or “critical historicism.” Critical legal history is premised on the conventional historical strategy of exploring the nature of an object by situating it in an appropriate context and examining the conjunction between object and context. In CLH’s case the object is law and the context is polity, economy, or society, or more usually a realm of action that is a mixture of all three. CLH is also premised on the further, theoretical, contention that whatever the realm of action in relation to which law is situated, the outcome is the same: indeterminacy marked by contingency, alternative possibilities, “paths not taken.” In this regard, CLH shares in the general turn in the qualitative social sciences and humanities toward “complexity.” The results of this contextualizing or relational approach have been empirically rich but are inevitably marked by an abandonment of authoritative causal explanation (metatheory) for thick description. This essay lays out an alternative to CLH’s parsing of relations between law and what is extrinsic to it, by exploring the explanatory potential of allegory, by which what are imagined as distinct become the same. Allegory is strikingly “visual” in conception – figurative, emblematic. Wycliffe called it “ghostly understanding.” I explore the potential of allegory along three optical dimensions – scope (appearance), scale (perspective), and structure (constellation) – that together produce what Walter Benjamin called “the dialectical image,” a non-relational theory of representation with striking historical applications.

Tomlins comments

Since the early 1980s, critical legal history (henceforth CLH) has been a highly influential mode of legal historical scholarship in the United States. Its rise has coincided with, and partially explains, growing interest in historical explanations of legal ideas and institutions among American legal academics at large (on which see Tomlins 2011a). CLH is radically historicist in orientation: historicist, in that it places great emphasis upon the embeddedness of legal concepts in social and historical contexts; radically historicist, in that it simultaneously emphasizes the plurality of those contexts, hence the contingency of all relations between concept and context (Gordon 1984, 100; 1997, 1029). CLH strongly resists those functionalist or materialist explanations of law that read legal concepts as responses to or determined by the contexts in which they are embedded. Over the years it has also resisted, though less strongly, explanations of law that attribute to legal concepts a “constitutive” capacity to organize the social and the historical. Not only are legal concepts far too plural in practice and application to have consistent, hence predicable, effects, they are indeterminate in essence because founded on contradictions inherent in human existence (Gordon 1984, 114-16). This notwithstanding, CLH has shown some propensity to accept the argument, now prevalent in socio-legal studies overall, that law and its contexts are “mutually constitutive”; but rather than granting this argument causal resonance it tends to use the argument to reference the immanence – the “blur” – of legal concepts in social life, hence the impossibility of achieving meaningful separation between the social and the legal such that causal statements might be made about their relationship. Their relationality is, rather, resolutely complex (see generally Tomlins 2007a, 56-65).

Like most orthodoxies, CLH originated as a mode of subverting and displacing a prior orthodoxy, which for want of a better word one can term “externalism,” or in CLH’s own terms “legal functionalism” (Gordon 1984, 58). The rise of the new critical orthodoxy did not by any means eliminate all vestiges of the predecessor: among professional historians interested in law, for example, functionalist explanations of the relationship between law and its context remain viable (Edwards 2012). Nevertheless it is no exaggeration to state that for thirty years CLH has supplied American legal historians with the clearest guide to what their field of study can achieve, and the clearest statement – both practical and philosophical – of how to go about achieving it.

In this essay I outline a distinct statement of theory for the practice of legal history. In what follows I first supply a short history of CLH and a critique of its central claims. I then situate this critique in a more general critique of current modes of critical theorizing and their product, and point to the availability of means to escape from what I contend is a blind alley. I choose the metaphor deliberately, because the course that I describe is one founded on the exploration of seeing. In place of relational concepts that rely on situating law in historical contexts for purchase on its meaning and effect I emphasize observation – the visualization of law as object of contemplation. For as Irus Braverman has put it, in order to be effective, law “must be … seen” (Braverman 2011, 174; and see Wilf 2011,; Welke 2011; Goodrich 2011; Tomlins and Comaroff 2011).

To that end I develop three points of conceptual purchase: scope, scale, and structure. By scope, I mean to reference law’s role in bringing about what James Scott calls the “legibility” – the visibility – of its subjects, and in defining the field of vision in which the subject appears (Scott 1998, 2-3, 183-4). By scale, I mean to refine legibility as such by emphasizing the effects of variation on what is seen: that is, variation among “scopic regimes” – modes of seeing (Jay 1988); variation in the standpoint (for example, the global, the national, the local), from which scopic regimes operate (Santos 1987); and the variations in perspective that scopic regimes employ (Riles 1995). By structure, finally, I mean a way of making scope and scale elements of the same theoretical conjuncture. Specifically, I invoke Walter Benjamin’s conception of constellation, which offers the means to place history at the very center of a theorization of law’s visuality by enabling us to formulate historical meaning imagistically (Tomlins 2011b, 245-6).

Constellation stands against historicism. It stands for the synchronicity not of objects in time but of objects with time, notably with the time of the observer, who (as Annelise Riles has emphasized) occupies a point of particularity (Tomlins 2010, 203; Riles 1995, 48). The point is made in Benjamin’s essay on Eduard Fuchs: “[A]ny consideration of history worthy of being called dialectical…[requires the researcher] to abandon the calm, contemplative attitude toward his object in order to become conscious of the critical constellation in which precisely this fragment of the past finds itself with precisely this present” (Benjamin 2002b, 262). As this suggests, Benjamin’s materialist dialectics were devoted not to theoretical mediation of relations among forces underlying the surface of things, but to the construction of perceptible representations – “thread[s] of expression” – that created images by conjoining moments (Benjamin 1999, 460). As this suggests, and as we shall see, Benjamin’s materialism was fundamentally metaphysical in imagination, standing apart from the intellectual traditions that have dominated modernism. Precisely that separation is what now recommends it.

Academic Patents

'Do University Patents Pay Off? Evidence from a Survey of University Inventors in Computer Science and Electrical Engineering' by Brian J. Love in (2014) 16 Yale Journal of Law & Technology comments 

Studies of the costs and benefits of university patent ownership have, to date, focused on life sciences technology. Increasingly, however, many of the most lucrative university-owned patents relate to computing and telecommunications, not genes or pharmaceuticals. In 2007, a University of California spin-off named Eolas settled a patent suit with Microsoft for $100 million. In 2010, Cornell University won a $184 million jury verdict against Hewlett-Packard in a case that later settled on confidential terms. And most recently, in 2014, Carnegie Mellon University received a $1.5 billion judgment — one of the largest patent damages awards in history — in an ongoing suit against Marvell Semiconductors.

As universities shift their focus in the patent arena, so too must those studying tech transfer. Commentators generally agree that the costs and benefits of the patent system vary greatly across industries and many place the high-tech and bio-tech industries at opposite ends of that spectrum. Accordingly, universities would be well advised to reassess the costs and benefits of their own tech transfer programs as they shift from bio-tech to high-tech.

This Article examines the pros and cons of university patenting in the high-tech field by reporting the findings of a survey of professors at major U.S. universities who teach and research in the areas of electrical engineering and computer science. Among other findings, survey responses suggest that: Patenting high-tech inventions made on university campuses may not be a profitable undertaking, even at those universities best-positioned to profit from tech transfer. Based on the patenting and licensing activities of survey respondents, I estimate that university patent programs earn a negative 3.5% rate of return on high-tech patents. The prospect of obtaining patent rights to the fruits of their research does not motivate university researchers in high-tech fields to conduct more or better research. Eighty-five percent of professors report that patent rights are not among the top four factors motivating their research activities. Moreover, fifty-seven percent of professors report that they do not know how, or if at all, their university shares licensing revenue with inventors. University patent programs may, instead, actually reduce the quantity and quality of university research in high-tech fields by harming professors’ ability to obtain research funding, to collaborate with faculty from other institutions, and to disseminate their work to their colleagues. University patent programs are, at best, a modest benefit to professors seeking to commercialize high-tech academic research. Entrepreneurial professors report that these programs hinder their ability to work as a consultant with companies that show interest in their research, and fewer than half of university spinoff founders report that the ability to patent their research affirmatively helped their commercialization efforts.

Legal Realism

'Legal Realism as Theory of Law' by Michael Steven Green in (2005) 46 William and Mary Law Review 1915-2000 comments that

Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all. This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense. 

 Green argues that

The legal realist movement flourished back in the 1920s and 30s, primarily at Yale and Columbia law schools and at Johns Hopkins’s short-lived Institute of Law. And yet it is often said—indeed so often said that it has become a cliché to call it a “cliché” — that we are all realists now. The cliché is wrong, however, for there is at least one identifiable (if not sizable) group that rejects realism — philosophers of law. To them, realism is dead, mercifully put to rest by H.L.A. Hart’s decisive critique of “rule-skepticism” in the seventh chapter of The Concept of Law. 

Hart rejected two forms of rule-skepticism advocated by the realists. It was, on the one hand, a theory of law—the view “that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them ….” Hart’s argument here was brief, for he thought that this form of rule-skepticism was an obvious failure. Decisions cannot be all there is to the law, for courts deciding cases are guided by the law — by the legal rules that can be found in constitutions, statutes, regulations and past judicial opinions. The philosophical community agreed. The realists’ theory of law was, in the philosophers’ words, “deeply implausible,” “open to easy refutation,” and “a jurisprudential joke.” 

Hart took rule-skepticism as a theory of adjudication a bit more seriously. According to this theory, statutes and the like may be law, but they are too indeterminate to be significant influences on, or predictors of, judges’ decisions. Because the law is indeterminate, judges actually decide cases on the basis of nonlegal considerations. Hart did not argue that this theory was incoherent, but he did think it was a “great exaggeration.” The law is indeterminate at the margins, he argued—it has what he called “open texture”— but it is not indeterminate in its core as the realists claimed. 

The seventh chapter of The Concept of Law has cast such a long shadow that only recently has the study of legal realism become halfway respectable in philosophical circles. A prominent example of the renewed interest in the realists is Brian Leiter’s defense of their theory of adjudication against Hart’s critique. But Leiter, like the rest of the philosophers, has nothing good to say about their theory of law; indeed, part of his strategy for rehabilitating the realists is insisting that they did not mean to offer rule-skepticism as a theory of law in the first place. 

I will find little to criticize in Leiter’s defense of the realists’ theory of adjudication. But Hart was clearly right about the realists’ desire to present rule-skepticism as a genuine theory of law. If the realists are to be rehabilitated, we must defend this theory. That is the goal of this Article. 

I will defend the realists’ theory of law, however, only in the sense of showing that it is plausible, not that it is beyond criticism. A number of weaknesses, inconsistencies, and oddities will remain. But the theory is not the absurdity that the philosophical community has made it out to be. 

Admittedly, it is dangerous to speak of a theory held by the realists as a group, even when the group is limited to those most commonly agreed to be realists — Karl Llewellyn, Jerome Frank, Walter Wheeler Cook, Felix Cohen, Hessel Yntema, Herman Oliphant, Max Radin, Leon Green, and Joseph Hutcheson. It is still more dangerous when the theory is in the philosophy of law, given that the realists — Cohen excepted — did not have significant training in philosophy. Nevertheless, realism remains a subject of more than historical interest precisely because unifying themes can be found in the realists’ writings. And some of the most important themes are philosophical. The fact that most of the realists lacked philosophical training does not mean they lacked philosophical opinions. All it means is that these opinions were expressed imperfectly in their works, making some philosophical reconstruc- tion necessary. 

As a part of this philosophical reconstruction, I will argue that the realists actually held a number of theories of law that differ in their degree of plausibility. Both the realists and their critics tend to treat these theories as if they were equivalent. Hart, for example, describes the realists’ theory of law as the view that “talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them.” But there are at least two theories of law in this description. The first is the idea that “talk of rules is a myth.” Surprisingly, the realists’ rejection of legal rules is their most defensible theory of law, and it will be the focus of this Article. Properly understood, however, it does not deny that statutes and the like can be law; nor does it deny that these laws can guide a judge’s decision making when the judge’s attitudes recommend conformity with the law. Instead, the theory rejects the ability of the law to provide reasons for conformity with what the law recommends that exist independently of the judge’s attitudes. The realists’ rejection of legal rules was an attack on the idea of political obligation and the duty to obey the law. A statute can be the law without being a legal rule in the relevant sense, for its status as law may not provide a rebellious judge with any reason to adjudicate as the statute instructs. 

But the realists were also committed to a less plausible theory of law—the famous prediction theory that they borrowed from Holmes. This theory is captured by the second part of Hart’s description, that “law consists simply of the decisions of courts and the prediction of them,” and it does indeed cast doubt on the idea that statutes and the like can be law. Properly understood, however, even this theory (or rather theories, for the prediction theory took two forms in the realists’ writings) was not quite as crazy as the philosophers make it out to be. What is more important, even though the prediction theories ultimately fail, they are at least understandable when seen in the light of the realists’ rejection of legal rules. The realists thought—wrongly but reasonably—that these theories followed from the law’s inability to provide reasons for obedience. 

I will begin in Part I by clarifying the various theories of law that I will attribute to the realists, in addition to criticizing Leiter’s argument that they did not mean to offer a novel theory of law at all. In Part II, I will set the stage for my defense of the realists’ first theory of law — their rejection of legal rules — by briefly outlining the problems that Hart and his followers have encountered arguing for the normativity of law. Hart and the realists began from a very similar premise—that the law is fundamentally a matter of social facts. But Hart believed that this does not preclude the law’s capacity to provide reasons for action. Hart’s position has been persuasively criticized, however—most notably by Ronald Dworkin. In Parts III and IV, I will describe the two arguments that led the realists to think that the law is non-normative, the second of which has strong similarities to Dworkin’s critique of Hart. I will end the Article, in Part V, with a discussion of why the realists were inclined toward prediction theories of law. Although I agree with the philosophers that the theories should be rejected, when seen in the light of the realists’ rejection of legal rules they are more plausible than has been assumed.

INSLM, Citizenship and Passports

In one of its more spectacularly short-sighted moves earlier this year the national Government introduced the Independent National Security Legislation Monitor Repeal Bill 2014 (Cth)  to abolish the Independent National Security Legislation Monitor, an agency that advised on the development of national security law and induced trust in the Australian regime.

The Government stated that

The current Independent National Security Legislation Monitor (the Monitor) will have, before the expiry of his term on 20 April 2014, conducted a comprehensive review of Australia's national security legislation. To date, the Monitor has provided three annual reports for the Government's consideration. A fourth and final report from the Monitor is expected in April 2014 before the expiry of his term. Together these four reports are expected to cover the extensive list of key issues in Australian national security laws that the Monitor indicated, in his first annual report, would be considered and reviewed during his term. The end of the Monitor's term brings to an end this thorough review. 

The experience from the establishment of the Monitor's Office in 2010 has provided a valuable opportunity to reflect on the optimal form that such oversight should take. With the benefit of this experience, the Government considers that placing the laws in a constant or continuous state of wholesale review has not proven to be the optimal form of oversight. The Government considers the best way forward is to work through the large number of recommendations made by the Monitor, and to continue engaging with the extensive range of existing independent oversight bodies, including the Inspector-General of Intelligence and Security, Parliamentary Committees, and the Parliament itself. … 

Abolition will provide savings of $1.36 million over four years

What will presumably be the final report [PDF] from the INSLM has now been released.

Brett Walker SC, the outgoing INSLM comments

Chapter II reports that Part IIIAAA of the Defence Act 1903 (Cth) is with one exception appropriate (in the sense discussed in Chapter II of the INSLM’s First Annual Report). The call out powers are also, based on the same considerations, necessary (again, in the sense discussed in Chapter II of the INSLM’s First Annual Report). Mercifully, there are no empirical data to enable the INSLM to report whether, in practice, these provisions for the call out powers are effective (again, in the sense discussed in Chapter II of the INSLM’s First Annual Report). However, the INSLM has not found any reason to doubt the suitability of these laws to achieve their intended purpose, in practical terms. That does not mean that continuing consultation should not be had, in particular with ADF officers experienced in the area, to detect in advance any curable defects in the efficient deployment of lawful military force against terrorism in Australia. 

The one exception noted above consists of non-compliance of Division 3B of Part IIIAAA of the Defence Act with ICCPR. The ADF should not be authorized to kill innocent passengers and crew in airliners. 

Chapter III seeks to reconcile with the CT Laws the related legislation comprising the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). There are defects in Commonwealth statutory powers and authorities desirable to counter terrorism, in relation to that overlap. The matters concerning which the INSLM makes recommendations in this area are relatively urgent, given the currency and gravity of the involvement of Australians in Syria. 

Chapter IV confronts what may be an intractable difficulty in the proper administration of criminal justice in countering terrorism: the typical need to investigate and prove events and circumstances that took place in foreign countries. Some of the most significant examples of these countries suffer from extraordinary breakdowns of law and order. 

Chapter V is also actuated by some urgency pointed up by current experiences in Syria. We need more rapid control of the way passports are used to facilitate travel for the purposes of terrorist activity. The topic engenders a broader and deeper concern with dual citizenship. Chapter VI is the INSLM’s response to matters raised by agencies, themselves in response to the INSLM’s request for suggestions as to practical improvements to the laws governing their counter-terrorist activities. It is intended to advance effectiveness while observing appropriateness. 

Statutory conclusions 

I report, pursuant to para 29(1)(a) of the INSLM Act, that I have carried out the duties required by paras 6(1)(a) and (b) of the INSLM Act. Subject to the matters that culminate the recommendations made in this Fourth Annual Report, I report that (within the meanings explained in Chapter II of the INSLM’s First Annual Report) the CT Laws are effective, appropriate and necessary. 

I also report that I have not seen anything to suggest that the CT Laws have been used during the period under review for matters unrelated to terrorism and national security, as required to be addressed under para 6(1)(d) of the INSLM Act. 

Epilogue 

Observations concerning governmental non-response to the INSLM’s Second Annual Report, as well as to the COAG Review of Counter-Terrorism Legislation, were made in the INSLM’s Third Annual Report delivered on 7th November 2013. They may be updated today by the statement that nothing has happened since then in public. 

It can be said that most of the recommendations in the INSLM’s Third Annual Report itself were designed to enhance the capacity of Australian authorities and agencies to detect, investigate and prosecute terrorist offences. The official silence since those recommendations were made prompts repetition of the comment first expressed in the INSLM’s Third Annual Report: “When there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some skepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws”. 

The INSLM Act itself is a statute related to the CT Laws. In the opinion of the outgoing INSLM, it should be improved in two respects. First and not very importantly, there should be an express power for the INSLM to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report. 

Second and very importantly, there should be no possibility of reappointment of the INSLM. The nature of the task should not only involve quasi-judicial tenure (during the term of appointment) so as to remove fear of the Executive, but there should as well be no hope of preferment from the Executive. As a corollary of this suggested repeal of subsec 12(2) of the INSLM Act and its replacement by a prohibition on reappointment, consideration should be given to the enlargement of the term of office probably to four years and possibly to five years. In turn, this may well reduce the pool of willing appointees considerably. 

Official contact by the Executive and Parliament during my tenure as INSLM was had once with a Senate Estimates Committee and once privately with the PJCIS. On neither occasion was the INSLM Act itself in question. 

There was no prior consultation with the INSLM before it was announced that repeal of the INSLM Act would be sought by the government as part of the reduction of red tape. (The Secretary of the Department of the Prime Minister and Cabinet visited the office as a matter of courtesy to notify me of that decision.) 

The Explanatory Memorandum for the Bill to repeal the INSLM Act, the Independent National Security Legislation Monitor Repeal Bill 2014 (Cth), forecast that I would have “conducted a comprehensive review of Australia’s national security legislation” by the expiry of my term of office. It states that the end of my term of office “brings to an end this thorough review”. The other organs of government with responsibility for the CT Laws have made no detectable response to any previous reports. The proposed repeal of the INSLM Act has been explained as “designed to reduce bureaucracy and streamline government” by removing “duplication of responsibilities and between different levels of Government”. The INSLM is not aware of any other officer, agency or “level” of government doing what Parliament required to be done by the INSLM Act enacted in 2010. 

I thank the agencies and their officers, and departmental officers, who have responded to and cooperated with the INSLM over the last three years. 

The Explanatory Memorandum refers to “existing independent oversight bodies” instancing IGIS, Parliamentary committees and Parliament itself. As to IGIS, there would be a very large question of deployable resources were the task undertaken by the INSLM required to be undertaken by IGIS. As to Parliamentary committees, engagement has been sparse. As to Parliament, the record is blank. 

Given the enacted purposes of the office of INSLM, I dissent from its description as red tape.

In discussing passports the report states that

The right to travel is not absolute as a matter of common law, statute law or international law. As was submitted to the INSLM:-

It is historically evident that the right to travel has never been conferred upon an individual as an absolute right … Blackstone having commented that while a subject has a general common law right to leave the realm, it is subject to the Crown’s prerogative right to restrain him with a writ of ne exeat regno (Latin for “let him not go out of the kingdom”). Blackstone further remarked that the exercise of this prerogative power upon an individual’s personal liberty is potentially necessary for the safeguard of the Commonwealth.

Australia’s international obligations under 1373 require Australia to take measures to “prevent the movement of terrorists and terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identify papers and travel documents”.

Section 7 of the Australian Passports Act 2005 (Cth) (“Passports Act”) provides Australian citizens with a statutory entitlement to be issued an Australian passport and an Australian passport may only be lawfully refused or cancelled in circumstances allowed for under the Passports Act. The Minister for Foreign Affairs may cancel an Australian passport, including where a competent authority has made a request for cancellation. A competent authority may make such a request for reasons which relate to Australian law enforcement matters, international law enforcement cooperation and the potential for harmful conduct.

The UN Human Rights Committee has described Article 12(2) of ICCPR as providing everyone the right to leave any country, including his or her own (both leaving temporarily and for permanent emigration). This right is said to include the right to obtain the necessary travel documents (eg passport) required to travel internationally. Article 12(3) of ICCPR sets out the permissible restrictions on this right. It is the INSLM’s view that the restrictions on the right to an Australian passport under the Passports Act are consistent with Australia’s obligations under Art 12(3) of ICCPR as they are enshrined in law, consistent with other ICCPR rights and are reasonably necessary for one or more of the enumerated purposes (protecting national security, public order, public health or morals, the rights and freedoms of others).  Article 12(4) provides that no-one shall be arbitrarily deprived of the right to enter his or her own country. An Australian who has his or her passport cancelled while overseas does not have their right to re-enter Australia arbitrarily deprived. The Minister for Foreign Affairs may issue a provisional travel document to a person who is overseas at the time their passport is cancelled to facilitate their re-entry into Australia.

The INSLM has received advice from security and law enforcement agencies about the value of passport cancellations in preventing Australians from travelling to foreign conflict zones to take part in hostilities or engage in terrorist activities. The details necessary to substantiate in full that value should not be disclosed.  They are nonetheless convincing, in the opinion of the INSLM. In response to the escalation of Australians travelling to Syria, and those planning and attempting to do so, there has been an increase in the number of passports cancelled by the Minister for Foreign Affairs on security and other grounds (as discussed below).

There should be procedures for cancelling an Australian passport to prevent travel where there is a sufficiently cogent ground to believe that the person intends to travel overseas to engage in terrorist or foreign incursions activities. This would involve some overlap with existing grounds for cancellation, but is desirable because the existing grounds do not sufficiently plainly encompass the specific concern with terrorist or foreign incursions activities.

The INSLM has discussed with agencies the practical difficulties faced in utilizing the legislation to cancel passports in contemporary circumstances, including clandestine and rapid decisions and arrangements for travel to areas of conflict such as Syria. Recommendations to enhance the legal capacity of agencies to affect the use of passports in order to prevent such nefarious travel are detailed below. However, as the INSLM has reported in relation to the efficacy of control orders, there is no guaranteed or complete efficacy of these measures. It is the operational efforts to surveille an individual and collect evidence that matter above all else. However, as a passport is required for legal entry into foreign countries and to leave Australia by commercial aeroplane or ship will require proof of eligibility to enter the destination country, virtually always departure from Australia will require possession of a valid passport. At least, its lack would pose very great obstacles to all but the most determined and resourceful wishful travellers.

Part 4 of the Passports Act contains a range of offences relating to Australian travel documents. This includes offences for the improper use or possession of an Australian travel document under sec 32 of the Passports Act.

Individuals can still use fraudulent means to travel abroad, as the recent case of an Australian man who did not hold an Australian passport departing Australia on his brother’s passport demonstrates. It is an offence for a person to provide their Australian travel document (that is, a travel document issued to them) to another person reckless as to whether the document is or will be used by the other person in connection with travel.

Individuals may also attempt to conceal their travel to certain countries as the case of Joseph Thomas shows. On 23rd October 2008, Joseph Thomas was convicted of one count of possessing a false passport contrary to para 9A(1)(e) of the Passports Act 1938 (Cth) and was sentenced to nine months’ imprisonment.

The lack of effective border controls in many States, such as Afghanistan, Iraq and Somalia as well as the use of foreign passports by dual citizens mean that it is difficult for security and law enforcement agencies to prove (or in some cases even know) that individuals (including those designated under sanctions regimes) have travelled to conflict zones. In some cases, individuals are able to enter and depart foreign States without leaving any record.

V.2 Passport cancellation as a counter-terrorism measure

A competent authority may request the Minister for Foreign Affairs cancel a passport where the competent authority suspects on reasonable grounds that if an Australian passport were issued to a person, the person would be likely to engage in conduct that:-

i. might prejudice the security of Australia or a foreign country; 

ii. might endanger the health or physical safety of persons (whether in Australia or a foreign country); 

iii. might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in ICCPR; 

iv. might constitute an indictable offence under the Australian Passports Act; or 

v. might constitute an indictable offence against an offence specified in Schedule 1 to the Australian Passports Determination 2005 (Cth) (“Passports Determination”);

and the person should be refused an Australian passport in order to prevent the person from engaging in the conduct.

A decision to cancel a passport on any of the above grounds is a reviewable decision, and can be reviewed by the Administrative Appeals Tribunal (“AAT”). The Minister is required to give to the person whose interests are affected by the decision a notification of the making of the decision and their right to have the decision reviewed.

It is not hard to imagine that Australians seeking to travel to Syria to engage in hostilities could in some cases be suspected on reasonable grounds of being likely to engage in one or more of these behaviours, and that the person should be refused an Australian passport in order to prevent the person from engaging in the conduct.

By comparison, a British passport is issued, withdrawn or refused to be issued in accordance with powers under the Royal Prerogative and there is no entitlement to a passport and no statutory right to have access to a passport. There are criteria for the refusal or withdrawal of such a passport on public interest grounds. The public interest criteria were updated in a Written Ministerial Statement on 25th April 2013. These criteria provide that a passport may be refused to or withdrawn from a person whose past, present or proposed activities, actual or suspected, are believed by the UK Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. The UK Home Secretary has described the discretionary power to refuse or cancel a passport as follows:- 

For example, passports may be refused to or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity.

This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world.

The AFP, as a competent authority, may request the Minister for Foreign Affairs to cancel a passport where the competent authority believes on reasonable grounds that:- A person is the subject of an arrest warrant issued in Australia in respect of an indictable offence or has been prevented from travelling internationally due to a law of the Commonwealth (including an order made under such a law), or by order of a court, or as a result of a condition of bail, surety, recognisance, parole conditions etc. Similar provisions apply in relation to the cancellation of passports in relation to serious foreign offences.

As discussed above, a passport cancellation may be requested where the competent authority suspects on reasonable grounds that if an Australian passport were issued to a person, the person would be likely to engage in conduct that might constitute an indictable offence under the Passports Act; or might constitute an indictable offence specified in Schedule 1 to the Passports Determination, and the person should be refused an Australian passport in order to prevent the person from engaging in the conduct. Schedule 1 to the Passports Determination includes a range of serious offences including terrorism, but does not include terrorism financing offences under Division 103 of the Criminal Code, offences against Part 3 of the UN Charter Act in so far as it relates to terrorism or Part 4 of the UN Charter Act. Nor does it include offences against the Foreign Incursions Act.

The INSLM reiterates that there is no reason in principle or policy to distinguish UN Charter Act terrorism financing offences which implement Australia’s international counter-terrorism obligations under 1373 and relate to potentially very serious terrorism financing activity, from terrorism offences under the Criminal Code. Nor is there a reason to distinguish terrorism financing offences from other terrorism offences under the Criminal Code.

The Foreign Incursions Act criminalizes politically motivated violence, including conduct that would fit within the meaning of “terrorist act” under the Criminal Code. The definition of “politically motivated violence” under sec 4 of the ASIO Act includes “acts that are offences punishable under the [Foreign Incursions Act]”. The Foreign Incursions Act also criminalizes engaging in hostile activity with an organization which is a proscribed terrorist organization under the Criminal Code. There is no reason in principle or policy to distinguish between the offences under the Foreign Incursions Act, which cover potentially very serious terrorist activity, from terrorism offences under the Criminal Code. The INSLM is strongly of the view that offences against the Foreign Incursions Act, Part 3 of the UN Charter Act insofar as it relates to terrorism, and Part 4 of the UN Charter Act should be included in the offences in Schedule 1 to the Passports Determination.

Recommendation V/1: Part 1 of Schedule 1 to the Australian Passports Determination 2005 should be amended to include offences against Division 103 of the Criminal Code (financing terrorism).

Recommendation V/2: Part 2 of Schedule 1 to the Australian Passports Determination 2005 should be amended to include offences against the Foreign Incursions Act, Part 3 of the UN Charter Act in so far as it relates to terrorism and Part 4 of the UN Charter Act.

Under the Passports Act, ASIO as a competent authority may request on security grounds that an Australian passport be cancelled or an application for an Australian passport be declined. ASIO can provide security assessment advice (in the form of a security assessment) to the Department of Foreign Affairs and Trade requesting the Minister for Foreign Affairs cancel or refuse an Australian passport for security reasons (not limited to counter-terrorism reasons). The Minister’s decision comes within the definition of “prescribed administrative action” under the ASIO Act.

ASIO’s security assessment informs the decision of the Minister for Foreign Affairs whether to act on ASIO’s recommendation and cancel the Australian passport or refuse an application. Part IV of the ASIO Act outlines the actions to be taken by ASIO if it issues an adverse security assessment to Australian citizens and permanent residents and the appeal mechanisms available, including the right to an unclassified statement of reasons and appeal to the AAT. As discussed above, a decision to cancel a passport on security grounds is a decision that can be reviewed by the AAT. The Minister is required to give to the person whose interests are affected by the decision a notification of the making of the decision and their right to have the decision reviewed.

To inform the Minister’s decision, ASIO may provide a “qualified security assessment” which generally means that ASIO “has identified information relevant to security, but is not making a recommendation [in relation to cancelling/refusing a passport]” or an “adverse security assessment” in which ASIO “recommends that a ‘prescribed administrative action’ [cancelling/refusing a passport] be taken”.

Under sec 54 of the ASIO Act, merits review of an adverse or qualified security assessment is available through the Security Appeals Division of the AAT. The AAT conducts proceedings in private, may inform itself on any matter in such manner as it considers appropriate and is not bound by the rules of evidence. Judicial review of the process of ASIO making a security assessment is available under subsec 39B(1) of the Judiciary Act 1903 (Cth) and sec 75(v) of the Constitution.

The Minister for Foreign Affairs has a discretionary power to cancel a passport or refuse an application, and must only do so if he or she is satisfied of the relevant prescribed matters. The Minister receives advice from ASIO but is not exercising the power at the direction or behest of ASIO. The Federal Court in Habib v Minister for Foreign Affairs rejected an argument on behalf of the applicant that the Minister did not independently exercise their discretion “but rather impermissibly made a decision at the behest of the Director-General of Security at ASIO” and the “Minister was engaged in a process of “rubber-stamping””.

The court concluded that “the Minister did in fact give independent consideration to the exercise of the discretion conferred by s 14(2) and did not make that decision at the behest of the Director-General of Security”. The court was satisfied that “the sequence of events and the notations made by the Minister expose the fact that the Minister did not satisfy himself simply by reference to the request made by the Director-General. Those notations expose the fact that the Minister was seeking, and apparently receiving further advice, as to the decision to be made”. In particular, the Minister had considered advice from the Australian Government Solicitor, discussed the matter with the Secretary of DFAT and sought further information from ASIO before making a decision.

Where ASIO provides an adverse or qualified security assessment in relation to the cancellation or refusal of an Australian passport, the Department of Foreign Affairs and Trade is generally required to notify the person who is the subject of the assessment within 14 days. However, if the Attorney-General issues a certificate under subsec 38(2) of the ASIO Act that he or she is satisfied that:-

(a) the withholding of notice to a person of the making of a security assessment in respect of the person is essential to the security of the nation; or 

(b) the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person, or of a particular part of that statement, would be prejudicial to the interests of security;

then subsec 38(1) does not require a notice to be given in relation to a security assessment to which a certificate under paras 38(2)(a) or 38(2)(b) applies.

ASIO has described the important rôle of withholding passports as a means of protecting national and international security as follows:- Withholding passports is an important means of preventing Australians from travelling overseas to engage in activities prejudicial to national security – for example, to train, support or participate in terrorism. It may also be used to help prevent an Australian already overseas from participating – or further participating – in activities that are prejudicial to the security of Australia or another country.

The INSLM strongly agrees with this conclusion.

Since July 2013, over 30 passports have been cancelled on national security grounds, compared to 18 passport cancellations for the entire 2012-13 financial year and 7 passports in 2011-12. …

The Attorney-General has described the passport cancellations as a “lagging indicator” of the scale of the threat posed by Syria-bound individuals, stating:-

“This is a problem that took off very fast…in the middle of last year. The numbers went from hardly any to more than 100 in a matter of months. The rate of acceleration has eased but it’s still an upward trend line”.

The INSLM shares this concern about the upward trend of Australians seeking to travel to Syria to take part in armed hostilities - whether against, or for, the Assad regime. The INSLM has reviewed the Passports Act (and the provisions of the ASIO Act that relate to that Act) for its efficacy as a counter-terrorism tool in preventing those suspected of involvement in terrorism and foreign incursions activities from travelling abroad.

ASIO has advised the INSLM that prior to the Syrian conflict the primary overseas conflict zone attracting Australian travellers was the Afghanistan/Pakistan theatre. ASIO investigated 30 Australians who travelled to Afghanistan or Pakistan between 1990 and 2010 to train at extremist camps and/or fight with extremists. Of these, 19 were engaged in activities of security concern after their return to Australia. Of the 19, eight were convicted in Australia of terrorism-related offences and five are still serving prison sentences, while others were charged with terrorism offences overseas.

While the Syrian conflict is not directly comparable to conflicts in Afghanistan and Pakistan in the 1990s and 2000s, the potential for individuals who travel to foreign conflict zones, including Syria, to become engaged in activities of security concern after their return to Australia, including committing terrorism offences within Australia, is worryingly real. In the INSLM’s opinion, it justifies urgent attention to the possibility of improving the CT Laws to enhance their prevention and protective efficacy.

V.3 Protection of sensitive information regarding passport cancellations

The INSLM supports all of the existing grounds for passport cancellation and has discussed with agencies how passport cancellation operates in practice, and whether improvements could be made to better enable law enforcement and security agencies to utilise passport cancellation as a means of preventing terrorism and foreign incursions offences, and countering threats to Australia’s security and to international security.

As a result of these discussions, the INSLM considers that if the Attorney-General is satisfied, and issues a certificate that he or she is satisfied, that:-

a. the disclosure to the person of the statement of grounds in support of the passport cancellation request in respect of the person, or of a particular part of that statement, would be prejudicial to an ongoing law enforcement investigation into an offence listed in Schedule 1 to the Passports Determination; or 

b. the disclosure to the person of the statement of grounds in support of the passport cancellation request in respect of the person, or of a particular part of that statement, would be prejudicial to security; or 

c. notifying a person of the cancellation of their passport would be prejudicial to an ongoing law enforcement investigation into an offence listed in Schedule 1 to the Passports Determination; or 

d. notifying a person of the cancellation of their passport would be prejudicial to security;

then the Minister for Foreign Affairs should not be required to disclose to the person the statement of grounds in support of the passport cancellation request in respect of the person, or of a particular part of that statement, or to give notice of a passport cancellation, where a certificate applies.

Provisions regulating the disclosure of security and law enforcement information are well accepted. Requirements for the protection of law enforcement and security information in the context of passport cancellations exist under the ASIO Act, AAT Act and Passports Act (as well as under the NSI Act and at common law by way of PII). It is intended that the INSLM’s recommendation would strengthen these existing frameworks. The INSLM’s recommendations have the same policy rationale as delayed notification search warrants – that is, disclosure to the person affected by the search would be prejudicial to an ongoing security or law enforcement investigation. Clearly, disclosure to the person of the grounds for their passport cancellation, or the fact of cancellation itself, may in many if not all cases have this potential. Equivalent provisions should apply as well, for the sake of appropriate efficacy, to the possibility of the seizure of foreign passports under the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth).

Recommendation V/3: The ASIO Act, Passports Act and the Foreign Passports (Law Enforcement and Security) Act 2005 should be amended to enable the Attorney-General to issue a certificate that he or she is satisfied that notification of the grounds in support of a request for a passport cancellation (or part of the statement), or notification of the fact of cancellation, would be prejudicial to an ongoing law enforcement investigation into an offence listed in Schedule 1 to the Passports Determination or would be prejudicial to security. The Minister for Foreign Affairs should not be required to disclose to the person the statement of grounds in support of the passport cancellation request in respect of the person, or of a particular part of that statement, or to give notice of a passport cancellation, where a certificate applies.

V.4 New temporary suspension power

The INSLM accepts that there is a real and high potential threat to Australia’s national security, and a threat of terrorism (not only to Australia), posed by Australians travelling to become involved in activities of security concern in overseas conflicts. As such, the INSLM favours ASIO being provided with the ability to request that the Minister for Foreign Affairs temporarily cancel a passport on security grounds where ASIO is considering issuing an adverse security assessment in relation to that individual. This is intended to strengthen ASIO’s ability to prevent Australians from travelling in circumstances where the person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. The prevention of Australians engaging in such activity is obviously of high worth from a counter-terrorism perspective.

It is clear to the INSLM from investigation of ASIO’s work in this regard that the challenge of providing professionally acceptable security assessments in a timely way is a major one. It would be a terrible compromise to accept low quality assessments under the pressure of the urgency to prevent imminent travel by a suspected person. The INSLM has not observed any lapse of standards in that direction. (The IGIS would no doubt regard any such backsliding in a most adverse light.)

It is also clear to the INSLM, in consideration of current operations, that international travel can be arranged very quickly. The law authorizing and regulating the making of security assessments should be adapted to give Australians the intended protection of the current system by means of which adverse security assessments lead to the cancellation of passports – and thus that law should permit in appropriate cases a calibrated slowdown of travel that may be for malevolent purposes.

ASIO advised the INSLM that:-

The Minister for Foreign Affairs has the ability to refuse or cancel an individual’s Australian passport, including at the request of ASIO on national security grounds. This form of administrative action provides the government, through the Minister for Foreign Affairs, with a powerful tool to seek to prevent individuals from travelling overseas to engage in activities prejudicial to the security of Australia or another nation, such as travelling overseas to engage in terrorism.

The introduction of a capability to temporarily prevent the use of an individual’s Australian passport for a defined and limited period would enhance the ability of government to respond effectively to emerging security threats. It would strengthen ASIO’s operational agility, by enabling the taking of temporary action to prevent the use of an individual’s passport proportionate to the security threat posed. This would include circumstances where ASIO becomes aware at short notice of security dimensions to an individual’s imminent travel or receives no intelligence warning that an individual of security concern intends to travel overseas.

The ability to temporarily prevent the use of an individual’s passport would enable ASIO to appropriately respond to such circumstances with agility and proportionality to the threat posed.

AGD advised the INSLM:-

The Department’s view is that an interim hold/suspension mechanism for Australian passports can be formulated to ensure the mechanism is consistent with Australia’s international obligations provided they are enshrined in law, consistent with other rights under the ICCPR and necessary for the purpose of protecting national security.

The INSLM shares this view.

The AFP advised the INSLM that:-

[A temporary passport cancellation power] would have a high preventative value, not only in relation to the individual concerned, but also to the community in general. Interdicting against individuals can prevent them from travelling to foreign conflicts and potentially being injured, killed or returning with increased skills and motivation. If killed in conflict, their death could be used for propaganda purposes and/or be an element for further radicalisation of others.

The INSLM shares these hopes and this apprehension.

In order to be an effective counter-terrorism measure, such an interim passport cancellation request would not require the issuing of a security assessment by ASIO. The request could be made with the approval of the Director-General of ASIO and would not require external approval. Nor would it be subject to merits or judicial review (except, of course, under sec 75(v) of the Constitution). The Inspector General of Intelligence and Security would, and should, have oversight of ASIO’s actions in respect of the proposed interim passport cancellation scheme.

That said, the trade-off would need to be a strict timeframe on the interim cancellation. It may be that an initial period of 48 hours, followed by extensions of up to 48 hours at a time for a maximum period of seven days may be appropriate. The INSLM is mindful that these timeframes are somewhat arbitrary. Timeframes should be the subject of further discussion with relevant agencies and civil society interlocutors.

Extensions should be approved by the Director-General of ASIO based on advice from ASIO officers about the individual’s adverse security assessment process. If the Director-General is satisfied that the adverse security assessment process is being undertaken appropriately but further time is needed to determine whether to issue an adverse security assessment, then a further period of up to 48 hours could be approved. If an adverse security assessment in relation to the person is not issued before the interim passport cancellation expires, then ASIO should have to pay to the person the lost travel costs of the person (eg airline ticket and cancellation accommodation). Where an adverse security assessment is issued during the interim passport cancellation period then ASIO would not have to pay the lost travel costs. Safeguards should be included in the interim passport cancellation scheme to ensure ASIO could not make multiple interim passport cancellation requests in respect of the same person except where valid reasons (such as genuinely new information) exist for making subsequent requests for an interim passport cancellation.

Recommendation V/4: The ASIO Act and Passports Act should be amended to enable ASIO, by its Director-General to make a request for an interim passport suspension where ASIO is considering issuing an adverse security assessment.

Some Australians will have more than one passport, because of dual (or multiple) citizenships. The Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) permits the Minister for Foreign Affairs to force the physical surrender of such foreign passports by an Australian.162 The grounds for that equivalent of the cancellation of an Australian passport are for present purposes the same as may lead to such cancellation.

In the opinion of the INSLM, the purpose of preventing travel which is sufficiently connected with the prospect of engaging in terrorist acts or illegal foreign incursions conduct is every bit as important to the security of Australia and Australians in the case of an Australian with a foreign passport or passports as it is in the case of an Australian with only an Australian passport. It follows that the desirable efficacy of the proposed interim power of suspension of an Australian passport should be assisted by a corresponding power of interim interference with the use of a foreign passport in similar circumstances. 

Recommendation V/5: The Foreign Passports (Law Enforcement and Security) Act 2005163 should be amended so as to include a power to suspend the capacity to use a foreign passport for the purposes of departing Australia in circumstances similar to those that would permit the interim suspension of an Australian passport.

V.5 The decision in BLBS and Director-General of Security [2013] AATA 820

In the case of BLBS and Director-General of Security, the applicant sought review of ASIO’s adverse security assessment and of the decisions made by the Minister for Foreign Affairs to cancel the applicant’s Australian passport and order surrender of his foreign travel documents.

The INSLM has considered whether the application of the Edwards direction by the AAT in its review process was appropriate. The INSLM does not consider that an Edwards direction, which is concerned with establishing proper limits around the determination of criminal guilt by virtue of a person’s lies, should be transferred to an administrative setting as was done in BLBS. The AAT is not a court, and the AAT Act expressly provides that it is not bound by the rules of evidence. Edwards was identified by the AAT in BLBS as 

“not only a rule of evidence but… [r]ather] sound principles… of logic that courts have recognised should apply to all deliberative fact finding. So understood they govern the circumstances in which Australian jurisprudence will permit lies to be regarded as relevant to proof of a denied circumstance”.

AGD (with whom ASIO agreed) submitted to the INSLM that:-

The purported application of the Edwards direction as a principle, drawn as it is from the rules of evidence applicable to criminal trials, requires careful consideration when being applied in an administrative setting. While a tribunal is not a court, the absence of the technical requirements to follow the rules of evidence must not displace due process, natural justice or procedural fairness. However, AGD agrees that relevant principles can be drawn from case law which involve the application of logic to fact finding and go to the assessment of the probative value of the material on which the AAT seeks to rely.

ASIO’s security assessment function does not lend itself to easy application of the Edwards direction. ASIO specifically focuses on “investigating high consequence threats to national security, regardless of whether or not a crime has been committed”.  A security assessment is the result of an ASIO intelligence investigation and is an intelligence assessment – not an assessment of criminal guilt. In conducting an intelligence investigation to determine the nature and extent of any threat to Australia’s security, ASIO makes intelligence assessments not determinations of guilt based on formal rules of evidence. Intelligence gathering and collection is not amendable to regulation by formal rules of evidence and it is not appropriate that an Edwards direction be applied to ASIO security assessments. Paragraph 14(1)(a) of the Passports Act requires that a competent authority “suspects on reasonable grounds” that if an Australian passport were issued to a person, the person “would be likely” to engage in the prescribed conduct set out in subparas 14(1)(a)(i)-(v) of the Passports Act. The AAT held in BLBS that the words “suspects on reasonable grounds” convey the meaning given to them by the High Court of Australia in George v Rockett (1990) 170 CLR 104170 and accordingly:-

80. ASIO is not required to prove, or be satisfied on the balance of probabilities, that the person would be likely to engage in that conduct: it need only suspect on reasonable grounds that the person would be likely to do so. The relatively modest degree of actual apprehension required for ASIO have such a suspicion is explained in George v Rockett;

…. To satisfy s 14(1)(a) a competent authority must suspect on reasonable grounds that if a passport were issued to BLBS he would be likely to engage in some form of conduct. The kind of conduct that will satisfy the statutory test is that specified in (i)-(v). Those adjectival clauses do not qualify the degree of satisfaction required for ASIO to assess that BLBS would be likely to engage in some particular conduct—they merely describe the categories of potential conduct permissibly relevant to a request that ASIO can make to the Minister for Foreign Affairs under the Passports Act. A request can be made only if the suspected conduct falls within one of the categories defined in s 14(1) (a)(i)-(v).

It is not clear from the AAT’s decision what the meaning of “would be likely” is. It is not clear whether it would enable ASIO to issue a security assessment if it suspects on reasonable grounds that there is a real risk (however small) of a person engaging in activities of security concern if the person’s passport is not cancelled.

In BLBS, ASIO submitted that the meaning of the term “would be likely” must be discerned in the light of the explanatory memorandum which referred to “real and not remote possibility”, submitting that so understood, it required a low or very low threshold of satisfaction. ASIO submitted that the test provided for in s 14(1) would be met “if there was some basis for an actual apprehension that, if the applicant’s Australian passport was not cancelled and his foreign travel document was not surrendered, there was more than an insubstantial or negligible risk (in the order of 10% or less) that he might engage in politically motivated violence either in Australia or overseas”.  The applicant on the other hand submitted that ““likely” must mean something more than a “real and not remote possibility”. A “substantial likelihood” was argued to be a preferable approximation to the phrase “would be likely to” than the expression a “real and not remote possibility”. A passport could not be refused, it was submitted unless ASIO could demonstrate that there were reasonable grounds to believe that there was a substantial likelihood that the suspected conduct would be undertaken by BLBS”.

These are important issues, that would be critical in many cases. The INSLM does not regard them as in any way authoritatively settled by the decision and reason in BLBS.

The INSLM considers there is value in clarifying the meaning of “would be likely” in para 14(1)(a) to ensure the officers of ASIO and other competent authorities apply the correct legislative test. The appropriate meaning should be determined by reference to the aim of sec 14 itself, to cancel passports for reasons relating to potential for harmful conduct.

Recommendation V/6: The meaning of “would be likely” in para 14(1)(a) of the Passports Act should be clarified to ensure the officers of ASIO and other competent authorities apply the correct legislative test. The appropriate meaning should be determined by reference to the aim of sec 14 itself, to cancel passports for reasons relating to potential for harmful conduct. An amendment should expressly adopt the “real and not remote possibility” contained in the original Explanatory Memorandum.

V.6 Dual citizenship and fighting in foreign conflicts

The discussion of passport cancellation above evokes the broader issue of citizenship and involvement in terrorism or foreign incursions offences.

The INSLM was advised that “it is more difficult to prevent or investigate the travel of a person who holds dual or multiple citizenships as they have access to multiple travel documents that may not be able to be tracked by Australian authorities”.  The AFP has also advised the INSLM that “while authorities from bordering countries to Syria are assisting the AFP in regards to Australians travelling there, it is difficult to keep tabs on every person who travels to Syria as some have dual passports and others enter the country away from designated border crossings”.

It is possible to hold citizenship of two or more countries if the laws of those countries allow this – there is nothing in the Australian Citizenship Act 2007 (Cth) (“Citizenship Act”) prohibiting this. Since 2002, Australia has allowed its citizens to hold dual, or multiple, citizenship. Prior to 4 April 2002, under sec 17 of the Australian Citizenship Act 1948 (Cth), an Australian citizen 18 years or over who did an act or thing whose sole or dominant purpose was to acquire a foreign citizenship lost their Australian citizenship. Section 17 was repealed by the Australian Citizenship Legislation Amendment Act 2002 (Cth).

In hindsight, the INSLM does not regard that repeal as very wise. The arguments in favour of retaining sec 17 included that a person holding more than one citizenship has pledged allegiance to more than one country and so has questionable loyalty to Australia, and possession of more than one citizenship may lead to difficulties where Australian citizens are also citizens of a country with which Australia is at war. The INSLM considers these to be sound arguments. They resonate in relation to the INSLM’s inquiry into Australia’s Foreign Incursions Act, as reported in Chapter III.

After all, a person must make a public pledge of commitment to become an Australian citizen. The pledge of commitment as an Australian citizen must be made in the following terms “I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey”.

The preamble to the Citizenship Act describes Australian citizenship as “a common bond, involving reciprocal rights and responsibilities”. As Gleeson CJ explained in Roach v Electoral Commissioner:-

The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities as the corollary of political rights and freedoms, and upon society’s legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage.

Australian citizens are legally obliged to defend Australia if required during a war through compulsory conscription. During a time of war any person between the ages of 18 and 60 years who has resided in Australia for six months or more (a resident alien being exempt from this requirement), may, upon proclamation of the Governor-General, be obliged to serve with the ADF for the duration of the war.  The INSLM is concerned with the implications dual, or multiple, citizenship has for Australia’s counter-terrorism effort. The INSLM is concerned that the concept of dual citizenship raises issues of divided loyalties and does not see why, as a matter of policy, an Australian citizen should also be able to be a citizen of another country. With great respect, the INSLM agrees with the views of a former Chief of the Army, now Prof Peter Leahy AC, Director of the National Security Institute at the University of Canberra:-

As a retired soldier I have a view that citizenship brings rights and responsibilities. One of these is that, in the extreme, a citizen may be called upon to fight to defend his nation. I do not see that this responsibility is divisible. Thus dual citizenship, while it may be convenient for the individual, should not be allowed. I offer the potential that an Australian military or police force if it were to be deployed on a mission to Syria may find itself directly opposed by an Australian citizen with dual Australian-Syrian passports on the field of battle. This is an intolerable situation, which requires strong preventive and retrospective action.

As discussed at length in Chapter III, the INSLM does not see why Australian law should not regulate the service of an Australian citizen with any armed force not at war with Australia. And sec 35 of the Citizenship Act provides that an Australian dual national ceases to be an Australian citizen if the person serves in the armed forces of a country at war with Australia (which apparently has been understood, perhaps incorrectly, to require a declaration of a formal state of war). That is, their citizenship is revoked and they can be removed from Australia. This provision does not apply to Australian citizens who do not hold any other citizenship or nationality, in light of Australia’s international obligations under the Statelessness Convention.

As well as the position contemplated by the retired General Leahy, noted above, Australia may be called upon by the UN Security Council, in the exercise of its use of force powers under Chapter VII of the UN Charter, to use force in a particular situation. As Australia would not necessarily be at war with the country or countries it is obliged to take action against under UN Security Council mandate, the ADF may be involved in conflict against an individual who is not serving in the armed force of a country declared as being at war with Australia. DFAT advises dual nationals that their dual nationality “may have implications for you if you travel to the country of your other nationality. For example: you might be liable for military service”.  DFAT advises dual nationals that:-

Dual nationals may be liable for military service in the country of their other nationality. Countries where this is more likely include Egypt, Greece, Iran, Lebanon, Syria and most countries in central and eastern Europe.

If you plan to visit a country where you may be considered a national, you should check your military service obligations before leaving Australia with that country’s embassy or consulate in Australia. Seek this advice in writing before leaving Australia and take a copy with you. Some countries allow nationals who have been living abroad to enter and stay for a limited time before incurring obligations for military service. In others, there is no such period and the obligation is imposed immediately upon arrival. In these countries, dual nationals may be ‘called up’ and, if they don’t report for duty, may be regarded as defaulters whether they were aware of the call-up or not. They could then either be imprisoned, or inducted into the military forces when they next arrive in the country or attempt to leave the country. Even dual nationals who have passed the age for military service may be considered defaulters for failing to report at the required time.

As can be seen from the DFAT advice, countries where compulsory military service of Australian dual nationals is more likely include Egypt, Iran, Lebanon and Syria – all of which are relevant from a counter-terrorism perspective.

Dual citizenship is not a human right. Its permission in Australia since 2002 does not render it anything like traditional. Migrants from non-British origins became citizens for generations before it became available. Its invidious legal qualities in relation to Australia’s CT Laws and the associated Foreign Incursions Act have been discussed above. Obviously, the withdrawal of this boon (from the perspective of individuals presently enjoying it) will be as difficult as any governmental reduction of what people have come to regard as an entitlement. However, in its nature dual citizenship is deeply problematic, unlike a pension. 

Recommendation V/7: The 2002 legislated policy in favour of dual citizenship should be reconsidered. 

V.7 Other bases for non-approval of citizenship applications and revocation 

The Citizenship Act also prohibits approval of a citizenship applicant who is assessed by ASIO as a risk to the security of Australia, or who has been convicted of certain serious criminal offences. Generally speaking , the Immigration Minister must not approve a person becoming an Australian citizen if an ASIO adverse or qualified security assessment is in force in respect of that person, assessing that the person is directly or indirectly a risk to security (within the meaning of sec 4 of the ASIO Act).  However, if the person is not a national or citizen of another country and at the time of the person’s birth, the person had a parent who was an Australian citizen then this provision doesn’t apply and instead, the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

The definition of “national security offence” under sec 3 of the Citizenship Act includes offences against Part 5.3 of the Criminal Code (Terrorism) but does not include certain other offences which should, in the opinion of the INSLM, properly be within the definition of “national security offence” which applies for the purposes of the Citizenship Act. The definition of “national security offence” under sec 3 of the Citizenship Act should include an offence against the Foreign Incursions Act, Part 3 of the UN Charter Act in so far as it relates to terrorism and Part 4 of the UN Charter Act.

Recommendation V/8: The definition of “national security offence” under sec 3 of the Citizenship Act should be amended to include offences against Foreign Incursions Act, Part 3 of the UN Charter Act in so far as it relates to terrorism and Part 4 of the UN Charter Act. Citizenship may also be revoked where a person has been convicted of certain serious criminal offences before becoming a citizen and it would be “contrary to the public interest for the person to remain an Australian citizen”.  It is worth noting also that the right of Australian citizens to reside in Australia is not absolute. In Vasiljkovic v R  the High Court rejected an argument that Australian citizens are immune from removal by extradition from Australia. Gleeson C J stated:- There is nothing in the Act or Regulations that seeks to attach any legal significance to the fact that the plaintiff was at the relevant time a citizen of Australia as well as of Serbia and Montenegro. This represents a legislative choice in keeping with past Australian practice, and with the practice of many, but not all, other nations.

V.8 A new basis for citizenship revocation?

The INSLM has considered whether the revocation powers of the Immigration Minister should be strengthened to facilitate the use of revocation of citizenship where it is in Australia’s national security or counter-terrorism interests.

The INSLM has considered the position in the United States, where a person who is a national of the United States whether by birth or naturalization will lose their US nationality if they perform certain specified acts voluntarily and with the intention to relinquish their US nationality. These acts include entering or serving in the armed forces of a foreign state engaged in hostilities against the United States or serving as a commissioned or noncommissioned officer in the armed forces of a foreign state.

The INSLM has also considered the position in the UK, where the Secretary of State may by order deprive a dual national of their citizenship status “if the Secretary of State is satisfied that deprivation is conducive to the public good”.  The order can be made with immediate effect and can be made when the individual is outside of the UK, although it can be judicially appealed. The Immigration Bill 2013-14 (UK), currently before the UK Parliament would, if enacted, introduce a new basis for deprivation of citizenship for “conduct seriously prejudicial to vital interests of the UK”. The proposed provision would enable the Secretary of State to deprive a person of their citizenship if their citizenship was acquired by naturalization and not birth, “if the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory”.

The Explanatory Notes to the Immigration Bill 2013-14 (UK) explain the proposed amendment as:-

The purpose of this provision is to qualify the existing provisions on deprivation so that in the most serious cases - such as those involving national security, terrorism, espionage or taking up arms against British or allied forces – individuals can still be deprived of their citizenship, where this has been acquired by means of naturalisation, without regard to whether or not it will render them stateless. This provision is intended to be consistent with the 1961 UN Convention on the Reduction of Statelessness, which allowed states to declare on ratifying the Convention that they retain the right to deprive a person and render them stateless in specific circumstances. The UK ratified the Convention on 29th March 1966 and explicitly retained the right to deprive where the person had either “ i) has, in regard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty”.

The Convention on the Reduction of Statelessness (New York, 30 August 1961) entered into force for Australia on 13th December 1975 [1975] ATS 46. The Statelessness Convention contains an express prohibition against depriving a person of his or her nationality if such deprivation would render him or her stateless. However, the person may be deprived of nationality if it is permissible under the Convention eg because of residence requirements (Art 7 (4) and (5)) or where the nationality has been obtained by misrepresentation or fraud (Art 8(2)(b)). Article 8(3) also provides that notwithstanding the general prohibition against statelessness:-

Contracting States may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) that, inconsistently with his duty of loyalty to the Contracting State, the person (i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State: (b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State.

The UK and other countries retained the right to deprive a person and render them stateless in specific circumstances in accordance with Art 8(3) of the Statelessness Convention. For example, Austria declared in accordance with Art 8(3)(a)(i) and (ii) that it retains “the right to deprive a person of his nationality, if such person enters, on his own free will, the military service of a foreign State” or “if such person being in the service of a foreign State, conducts himself in a manner seriously prejudicial to the interests or to the prestige of [Austria]”. New Zealand declared in accordance with Art 8(3) that it retains

the right to deprive a person of his New Zealand citizenship on the following grounds, being grounds existing in New Zealand law at the present time: the person has, while a New Zealand citizen and while of or over the age of 18 years and of full capacity, (a) Acquired the nationality or citizenship of another country by any voluntary and formal act, and acted in a manner that is contrary to the interests of New Zealand; or (b) Voluntarily exercised any of the privileges or performed any of the duties of another nationality or citizenship possessed by him in a manner that is contrary to the interests of New Zealand”. 

Australia on the other hand, did not make any reservations or declarations in regards to the Statelessness Convention. DFAT, AGD and DIBP jointly advised the INSLM that:-

[T]o comply with constitutional requirements and to be consistent with Australia’s international obligations regarding the prevention of statelessness, the deprivation of citizenship for terrorism or security-related activity would need to be limited to those who have more than one citizenship.

Taking into account Australia’s international obligations, and the national security and counter-terrorism risks posed by Australians engaging in acts prejudicial to Australia’s security, the INSLM supports the introduction of a power for the Minister for Immigration to revoke the citizenship of Australians, where to do so would not render them stateless, where the Minister is satisfied that the person has engaged in acts prejudicial to Australia’s security and it is not in Australia’s interests for the person to remain in Australia.

Recommendation V/9: Consideration should be given to the introduction of a power for the Minister for Immigration to revoke the citizenship of Australians, where to do so would not render them stateless, where the Minister is satisfied that the person has engaged in acts prejudicial to Australia’s security and it is not in Australia’s interests for the person to remain in Australia.

Knockoffs

'How Can Brands Flourish in the Knockoff Kingdom? What China Tells Us About the Bad – And Good – Effects of Luxury Goods Counterfeiting' by Kal Raustiala and Christopher Jon Sprigman in Beebe, Sun and Sunder (eds) The Luxury Economy and Intellectual Property: Critical Reflections (Forthcoming) comments 

By many measures China is now the world’s largest market for luxury goods. At the same time, however, the Middle Kingdom remains the Knockoff Kingdom. The Chinese are great producers and consumers of counterfeit and copied goods, and efforts to curtail counterfeiting are a central focus of many Western firms and Western governments.

How did China become the world’s leader in luxury goods sales — a category that relies heavily on IP rights for its market value — while at the same time achieving unchallenged global dominance in “IP theft”? How can authentic luxury products, with their often-stratospheric prices, have such astonishing market success in China when knockoff versions are so easily produced and so widely available?

In this chapter we explore this paradox. We begin by describing China’s approach to IP and its thriving luxury goods market. We then examine China’s equally robust knockoff economy, and explore how copying and counterfeiting occur in China. Finally, we speculate about how the success in China of both legitimate branded luxury goods and counterfeits can be reconciled. In particular, we analyze the critical role played by brands and the complex chemistry that exists between genuine trademarked luxury goods and the fakes that imitate them. We argue that much of the harm assumed to flow from counterfeits is difficult to demonstrate empirically in the luxury goods sector, and there are good theoretical reasons to doubt its magnitude. Indeed, the conventional wisdom about the harm caused by counterfeits is more a matter of logical inference than empirical evidence. And there is some evidence, including evidence from China itself, that counterfeits can strengthen brands as well as undercut them. One inference to draw from all this is that copies and originals can coexist in China because they are not as intrinsically antagonistic as conventional wisdom suggests.

To be clear, we do not argue that counterfeits are harmless — only that the standard case against them is surprisingly weak. As a result, the case for public enforcement of trademark law to stem the tide of luxury goods counterfeits is also weak, and especially so in China. It is no surprise that the Chinese government’s anti-counterfeiting enforcement efforts have been relatively ineffective, and that piracy consequently thrives even as luxury goods sell in great numbers to China’s burgeoning wealthy classes. Regardless of whether (or how much) Chinese counterfeits harm luxury goods makers, from a Chinese perspective counterfeits have many virtues. China is a country where both the economy and income inequality are expanding rapidly, and where the growing gap between rich and poor contributes to social unrest that troubles the country’s leadership. In this context, a tolerance for counterfeits can serve important social and political goals, goals that may outweigh whatever harms may stem from counterfeits — especially considering that most of that harm, at present and for the foreseeable future, falls on foreign manufacturers.

Positivism in the sky

'The Positive Foundations of Formalism: False Necessity and American Legal Realism' by Lawrence Solum in (2014) 127(8) Harvard Law Review 2464 explores

the relationship between claims that judging is inherently political or ideological and contemporary studies of judicial behavior. These themes are developed in the context of a review of The Behavior of Federal Judges by Lee Epstein, William M. Landes, and Richard Posner.

In this review, I begin in Part I with the book’s core, situating Behavior of Federal Judges’ empirical findings in the context of the evolution of the attitudinal model and the emergence of empirical studies of judicial behavior that emphasize the role of law as an important causal factor.

Part II is about microfoundations. Behavior of Federal Judges offers a rational choice account theory of the causal mechanisms that determine judicial behavior in the form of a labor economics model—judges are viewed as agents of a diffuse principal whose preferences range over their income and the satisfactions obtained from the various ways in which they spend their time.

In Part III, the review then takes a step back from the details of Behavior of Federal Judges’ empirical and theoretical account and engages the fundamental issues at stake—the questions raised by the debate between formalists and realists. Behavior presents itself as a purely positive account: “Ours is strictly a positive analysis. We do not ask how judges should decide cases but how they do decide them—more broadly, how they do their judicial work (which is not limited to casting votes in cases).” (pp. 5-6)

Implicitly, Behavior assumes that the empirical findings and rational choice models show that judging is an inherently realist enterprise—not only does ideology partially determine judicial behavior, it does so necessarily. But this assumption is undermined by Behavior’s empirical findings. In fact, Epstein, Landes, and Posner provide strong evidence that that these claims (that judging must be political) involve false necessity. Putting this same point positively, Behavior provides evidence that legal formalism is possible—inside the feasible choice set and not mere “pie in the sky.”

Solum comments

The great debate over formalism and realism has a tortuous history. It was the jurisprudential debate of twentieth-century American legal theory, and it continues, rehashing old moves, relabeling old positions, and — this is the hopeful bit — exhibiting new, surprising, and productive developments. One of those productive developments has been the turn to rigorous methods in positive legal theory. Contemporary legal theory is increasingly influenced by methods and ideas imported from the social sciences — a development that is part of a larger trend in the legal academy: interdisciplinarity. Some of this story is old hat by now. Law and economics1 and the law and society movement entered the legal academy long ago. Other parts of the story are new. Today, interdisciplinary approaches to legal theory include the transplantation of empirical methods for the study of judicial behavior from political science, the application of the game-theoretic models developed under the rubric of positive political theory (PPT) to the strategic interactions among judges and between judges and the political actors who select them and react to their decisions, and the nascent emergence of experimental jurisprudence (or “X-Jur”), which applies experimental techniques developed in psychology and cognitive science to the problems of legal theory.

One of the most promising trends has been the gradual erosion of the wall of acoustic separation that insulated lawyers, judges, and legal scholars from the rich body of empirical work on judicial behavior developed by political scientists, represented by the so-called “attitudinal model,” pioneered by Professor C. Herman Pritchett7 and famously associated with the work of Professors Harold Spaeth and Jeffrey Segal, among many others. The core idea of the attitudinal model is that ideology (and not the law) is the most important determinant of judicial behavior. The rise of the attitudinal model in political science was anticipated and influenced by the American legal realists, a loosely defined group of judges, lawyers, and scholars, who marked the difference between the “law in action” and the “law in books” and formulated early versions of what is now called “the indeterminacy thesis” associated with the critical legal studies (CLS) movement. Like the attitudinalists in political science, critical scholars who embraced the indeterminacy thesis contended that politics, not law, is the primary determinant of judicial behavior.

But attitudinalism and PPT in political science and CLS in law were not the only heirs of realist skepticism about the determinacy of law. Judge Richard Posner’s influential 1993 article, 'What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)', proposed a model of judicial behavior that viewed judges as rational maximizers, whose decisions are explained by a utility function that included leisure time and pecuniary income. Posner’s model eliminated ideology as a direct consideration in judicial decisionmaking: “My approach downplays the ‘power trip’ aspect of judging, the focus of most of the few previous efforts to model the judicial utility function. In fact, I assume that trying to change the world plays no role in that function.” And law itself played no role in Posner’s model. His skepticism about the role of law in legal decisionmaking is further illuminated by his essay for the one hundredth anniversary issue of the Harvard Law Review, in which he argued that legal theory had failed to develop tools for the interpretation of legal texts, with the consequence that statutory interpretation (and by implication, the interpretation of constitutions, rules, regulations, and even judicial opinions) is indeterminate. Posner later wove the various strands of his thought into the tapestry he calls “pragmatism,” articulated most fully in his magnum opus, How Judges Think.

Posner assumed that policy preferences play “no role” in the determination of judicial behavior, but his economic approach to judicial behavior was nonetheless in the rational choice tradition: rational choice theories explain judicial behavior on the basis of the preferences of individual judges. In political science, the rational choice paradigm was combined with game theory in what is called “positive political theory.” Unlike the attitudinal model (which predicts the behavior of an individual judge based only on that judge’s preferences), PPT models of judicial behavior take strategic interactions between judges into account. For example, the behavior of a Supreme Court Justice is not just a function of the policy preferences (or ideology) of the individual Justice in isolation. The Justices must take the preferences of their colleagues into account; only by modifying their positions can they get five votes and thereby shape the content of the law.

PPT approaches to judicial behavior frequently employ “pivotal politics” models, originally developed in the context of modeling legislative behavior. According to these models, in the House of Representatives, the member whose ideological views are at the median (with equal numbers of colleagues to the left and the right) is the “pivot,” the member whose vote will determine whether bills brought to the floor will pass or fail. On a collegial court like the Supreme Court, we call the vote of the pivotal Justice the “swing vote” — in cases where the swing vote will determine the outcome, the opinion writer must write an opinion that will attract the vote of the pivotal Justice to form a majority. Pivotal politics models identify these key players, the “pivots” whose preferences define which outcomes are possible (assuming, of course, that the models are confirmed). While Posner’s model assumed that policy preferences play almost no role in shaping judicial behavior, PPT models assume the opposite — that policy preferences are the driving engine of judicial behavior.

On the surface, it might seem that progressives from the 1930s, radical legal scholars from the 1980s, a conservative federal judge, and (supposedly) value-neutral social scientists have little in common. But there is a common thread. As Judge Harry Edwards and Professor Michael Livermore put it: “The theories underlying the attitudinal model, legal realism, critical legal studies, and pragmatic adjudication share the view that the law generally does not constrain judges in their decisionmaking because it does not provide clear answers.” This shared view or common assumption can be expressed as the “indeterminacy thesis,” the key realist move in the grand debate with formalism.

Enter The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (or Behavior of Federal Judges for short or Behavior for really short), a magisterial and important book, coauthored by Lee Epstein, who was trained as a political scientist and who is currently appointed in law and political science at the University of Southern California; William Landes, trained as an economist and currently on the faculty at the University of Chicago Law School; and Richard Posner, trained as a lawyer and currently a judge on the United States Court of Appeals for the Seventh Circuit. Although the subtitle of Epstein, Landes, and Posner’s book is A Theoretical and Empirical Study of Rational Choice, the emphasis is decidedly on the empirical — with theory getting the short shrift. Chapters two through eight, which consume 320 of the 422 pages or about 75% of the total, summarize the literature on judicial behavior and present important new empirical findings. Theory (with a corresponding economic model) appears in chapter one, entitled “A Realistic Theory of Judicial Behavior,” which presents an updated version of Posner’s 1993 model of judicial behavior, now recast as a labor economics model (pp. 25, 48) and self-described as a summary of Posner’s How Judges Think (p. 25).