NSW GIPA Report

The NSW Information Commissioner last month tabled the first Report [PDF] on the operation of the Government Information (Public Access) Act 2009 (NSW), aka GIPA. The report covers the period 2010-2013.

The Commissioner is required under section 37 of the Government Information (Information Commissioner) Act 2009 (NSW) - aka the GIIC Act  - to provide to the NSW Parliament an annual report on the operation of the GIPA.

The first  report is described as providing-

a retrospective baseline report on the early years of the Act across the five decision making sectors the GIPA Act applies to:

• NSW government agencies, 

• state owned corporations, 

• NSW councils, 

• universities and 

• Ministers and their staff.

From this baseline report we can advance our collective responsibility for information access and its contribution to our democratic society by: improving the operations of the Act; enhancing the Act’s objectives; and creating a basis for evaluation for future reports, policy and initiatives. 

The Commissioner indicates that -

The three-year report confirms the Act is achieving its goal of improving the general approach of decision makers in providing timely and proactive access to information, giving the citizens of NSW confidence in Government decision making.

The report indicates that the strategic intent of the Act is largely being met with

• most agencies complying with the Act’s requirements. 

• consistent and credible levels of information release 

• high levels of timeliness 

• increasing number of valid applications 

• the application of public interest considerations 

• greater release of information through agency reviews.

The report offers a  snapshot of data regarding 50,318 applications lodged across the five sectors -

• 82% of applications were lodged with state government agencies, state owned corporations or Ministers 
• 17% of  applications were lodged with NSW councils (local government)
•  61% of the applications  are attributed to three agencies: NSW Police (36%), RMS (15%) and WorkCover (10%) 
•  87% of decisions made by agencies were processed within the statutory time frame 
• a positive trend with 2,245 invalid applications received in 2010-2011 reduced to 1,699 in 2012-2013.

Remediating Academic Integrity

'Assessing the Need for a Research Ethics Remediation Program' by James M DuBois, Emily E Anderson and John Chibnall in (2013) 6(3) Clinical & Translational Science 2009 comments

With supplement funding to the Washington University CTSA, the Restoring Professionalism and Integrity in Research (RePAIR) program was developed at Saint Louis University to meet the remediation needs of institutions nationwide regarding investigators who violate research regulations. With the aim of determining the frequency and kinds of wrongdoing at leading research institutions in the United States, as well as institutional responses and levels of interest in a formal remediation program, an online questionnaire was distributed by email to a research integrity officer (RIO) and institutional review board (IRB) chair at all medical schools and comprehensive doctoral institutions in the United States (N = 194). One hundred sixty-one individuals responded (44%) representing 66% of institutions. For those institutions that had both RIOs and IRB chairs responding, 96% had investigated at least one case over the past 2 years; the modal individual response was 3–5 cases, with a range from 0 to more than 16 cases. The most common forms of wrongdoing were violations of procedure, informed consent, research integrity (fabrication, falsification, plagiarism), privacy, and conflict of interest policies. Most RIOs and IRB chairs expressed interest in the RePAIR program, despite concerns about costs and faculty resistance.

The authors note that

A recently developed taxonomy of wrongdoing in research identifies 14 primary kinds of violations of professional standards for researchers, including research misconduct (which is federally defined as falsification, fabrication, or plagiarism—FFP), informed consent failures, privacy/confidentiality violations, improper care of animals, conflict of interest violations, and others.

Some forms of wrongdoing appear to be quite common. While determining the frequencies of FFP is controversial, it is probably the most studied domain of wrongdoing. A recently published meta-analysis of survey data on this topic estimates that almost 2% of scientists have admitted fabricating, falsifying, or modifying data at least once and, when asked about colleagues’ behavior, over 14% of scientists surveyed reported knowing of data falsification. Applying a conservative rate of 1.5% to the 155,000 researchers supported by the US National Institutes of Health, Titus, Wells, and Rhoades estimated 2,325 cases of FFP per year occur that deserve investigation. FFP is just one of 14 categories of wrongdoing in research. When asked about a much broader set of research ethics violations and questionable practices, 33% of researchers self-reported questionable behavior5 and 84% reported observing questionable behavior among colleagues.

Wrongdoing in research causes significant problems for multiple stakeholders. Research misconduct or FFP impedes research progress, undermines public trust in research, and wastes public dollars by introducing false information into the scientific literature, distorting meta-analyses, and straining the scientific publication system as it forces editors to take special effort to detect misconduct. The infamous Tuskegee syphilis study chillingly demonstrates how improper exposure to risk and consent violations can harm participants and negatively impact trust in clinical research.

Although few data on recidivism (or repeated wrongdoing after getting caught) are available in the domain of research, in other professions once violations of professionalism occur, the risk of recidivism is high. For example, while less than 1% of physicians with no sanctions from 1994 to 1998 received a sanction during 1999–2002, more than 20% of physicians receiving moderate/severe sanctions in the first period recidivated in the subsequent time period. Our ongoing study of high-profile cases of wrongdoing in research indicates that many investigators have offended in more than one environment; oftentimes, earlier offenses are only made public once an investigator is caught at another institutions and these offenses are publicly reported.The confidentiality (or secrecy) of institutional responses to wrongdoing often appears to enable further wrongdoing.

Why would an institution choose to refer an investigator for intensive professional remediation education rather than terminate employment? First, termination has downsides, including: The loss of an investigator in whom the institution, and often funding agencies, have heavily invested; the loss of research funding and oftentimes research staff working in the lab of the terminated investigator; and potential for legal actions. Second, remediation may present a reasonable way of achieving a variety of goals: preventing recidivism; restoring trust; and managing risk by having a reasonable response plan in place.

For physicians who experience lapses in professionalism in medical care, excellent remediation education programs exist. In these programs, participants meet in small groups for several days and engage in exercises that address some of the root causes of unprofessional behavior. Outcomes appear promising: Physicians demonstrate marked improvement in skills and peer evaluations on multiple behavioral measures. Until recently, no such program existed for researchers.

Moreover, a small but growing body of evidence gathered across the past two decades indicates that most current instruction programs in the responsible conduct of research (RCR) are not effective in improving ethical decision making or behavior; in fact, for reasons that are currently poorly understood, RCR training may be associated with worse professional behavior.

We recently received funding from the National Institutes of Health to develop a research ethics remediation program, “Restoring Professionalism and Integrity in Research” (RePAIR). Information on the RePAIR program can be found at http://www.repairprogram.org. The RePAIR program is not an ethics course, but rather an intensive professional development program that is based on best available evidence regarding the nature of wrongdoing in research and the factors that predict poor ethical decision making. While a full description of the curriculum and the evidence-base supporting the curriculum is beyond the scope of this needs assessment paper, data indicate that problems in the conduct of research arise in part due to self-serving biases, faulty mental models for research, stress, and the failure to forecast long-term consequences of actions, including especially consequences to others. The development team includes industrial-organizational, clinical, experimental, and developmental psychologists, as well as lawyers, researchers, research administrators, and research ethics educators. The program consists of assessment, online training when knowledge deficits are identified, and a 3-day onsite education program aimed at reducing levels of self-serving bias in research, fostering ethical decision-making skills, teaching stress management and work management skills, and developing individualized professional development plans that will be tracked across the following year.

As a first step in the development of the RePAIR program, we conducted a survey of all comprehensive doctoral institutions and allopathic medical schools in the US to assess their needs for a research ethics remediation program. This paper presents details on that survey and explores the implications of our findings.

Control Orders

The Child Sex Offenders Registration (Control Orders and Other Measures) Amendment Act 2014 (SA) amends the Child Sex Offenders Registration Act 2006 (SA) to insert new provisions in the offender registration statute such that on application by the South Australian Police, the Magistrates Court may make a Control Order against any adult registrable offender if the court is satisfied, on the balance of probabilities, that the registrable offender poses a risk to the safety and well-being of one or more children, or children generally, and that the making of the order will reduce that risk.

The associated Criminal Law (Sentencing) (Character Evidence) Amendment Act 2014 (SA) amends the Criminal Law (Sentencing) Act 1988 to provide that a sentencing court is not to have regard to the good character or lack of previous convictions of the offender if the offence is a class 1 or class 2 offence - within the meaning of the Child Sex Offenders Registration Act 2006 (SA) and the court is satisfied that the alleged good character or lack of previous convictions assisted the defendant to commit the offence.

Streetphotos

'Street Shootings: Covert Photography and Public Privacy' by Nancy Danforth Zeronda in (2010) 64(4) Vanderbilt Law Review 1131 [PDF] comments that

Street photographers, like snipers, pride themselves on stealth. Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark, they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: “The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box.” While methods of “trapping prey” vary from shooter to shooter, the mission remains the same—staying as covert as possible and catching an unknowing subject in a candid pose. In the formative years of street photography, Cartier-Bresson concealed himself by wrapping a large handkerchief around his camera and pretending to blow his nose while discretely taking a picture. He also covered his camera in black tape to conceal any shiny parts that might give him away to his subjects.

Today’s street photographers are armed with a new generation of weapons that hardly need concealment. The rise of miniaturized and digital technologies has taken street shooting to a whole new level. In a world where companies compete to make the smallest, most inexpensive cameras, surreptitious photography runs rampant. For example, cell-phone cameras and “dime-sized spy cameras” make it possible for photographers to shoot their subjects from virtually any angle without detection. However, as technology advances, so does the potential scope and harm from photographic invasions of a subject’s privacy.

One of the most disturbing products of these developments is the birth of “upskirt photography.” As its name suggests, upskirt photography involves taking pictures of women up their skirts. There are currently over one hundred websites featuring upskirt images, indicating just how in-demand the product is. This form of unauthorized photography can have devastating effects on subjects. An upskirt photograph draws attention to a private aspect of a person’s life that would not have been seen by the naked eye and that the subject likely would not have consented to put on public display. In this regard, upskirt photographs infringe on basic precepts of human dignity. They also often cause outrage, mental suffering, shame, or humiliation for their subjects.

Despite these severe injuries, an individual photographed in public has nearly no recourse under current civil law. Street photography thrives because an individual has no right to privacy in public places. Instead, the law protects the photographer, not the victim.

Civil law must keep pace with technology and break away from its current conception of privacy in public places. Upskirt photography will persist until the law provides a remedy that serves as a sufficient deterrent against the behavior. Deterrence, though, cannot be achieved when courts cling to conventional thinking that invasions of privacy cannot occur in the public sphere. New and problematic forms of street photography necessitate a reexamination of photographic invasions of privacy.

Part II of this Note provides a brief history of the right to privacy, highlights specific characteristics unique to photography that intensify its threat to privacy, and introduces the conventional rationales for denying individuals a right to privacy in public. Part III surveys photographic invasion-of-privacy cases and examines the classic rationales for upholding photographers’ rights to shoot subjects covertly in public. Drawing upon the concepts discussed in Part III, Part IV then proposes that the tort of battery should be expanded to encompass photographic street shootings. The tort of battery protects an individual’s dignity from intentional invasions. Accordingly, the interests at stake in street shootings fit squarely within the interests battery seeks to preserve. Part IV further argues that the “contact” requirement of battery can be satisfied either by actual contact between the photographer and the victim (or the victim’s clothing) or by a nontraditional theory of contact via light particles. Characterizing street shootings as a form of battery eliminates many of the impediments faced by plaintiffs in photographic invasion of privacy claims.

Drones and targeted killing

The 81 page Stimson Center report [PDF] from its Task Force on US Drone Policy

represents a preliminary effort to offer analysis and recommendations that could help shape and guide US UAV policy going forward. It looks at the military and national security benefits of UAV technologies, analyzes our current approaches to UAV development and export, and seeks to contextualize the strategic questions relating to the use of lethal UAVs outside traditional battlefields. Ultimately, it offers eight detailed recommendations for overhauling UAV strategy; improving oversight, accountability and transparency; developing forward-looking international norms relating to the use of lethal force in nontraditional settings; and devising sound UAV export control and research and development policies.

The report states

With their long loiter time, sophisticated sensors and extensive operational reach, unmanned aerial vehicles (UAVs) are an attractive option for a wide range of military and intelligence tasks, including intelligence and reconnaissance, disaster relief and humanitarian assistance, transportation, the provision of close air support to soldiers in combat, and strikes against targets in relatively distant or inaccessible locations. While the overseas use of UAVs for intelligence, reconnaissance, transport and close air support has been largely uncontroversial, the growing use of lethal UAVs for targeted counterterrorism strikes away from so-called “hot battlefields” has generated substantial attention and criticism. US government officials argue that such strikes are both lawful and effective: as President Obama said in his May 2013 speech at the National Defense University,

“Dozens of highly skilled al-Qaida commanders, trainers, bomb makers and operatives have been taken off the battlefield. Plots have been disrupted. … Simply put, these strikes have saved lives. Moreover, America’s actions are legal. … [T]his is a just war — a war waged proportionally, in last resort, and in self-defense."

Nevertheless, many commentators question the strategic value of US UAV strikes for counterterrorism purposes, arguing that the availability of lethal UAVs has fueled a “whack-a-mole” approach to counterterrorism, drawn attention from non-kinetic means of combating terrorist organizations, increased anti-American sentiment, eroded norms of sovereignty in ways ultimately likely to be detrimental to US interests, and created a slippery slope toward continual or widening conflict and instability. Others charge that UAV strikes cause excessive civilian casualties, or worry about the ethical and psychological impact of what they view as “remote-control killing.” Finally, many critics charge that the availability of lethal UAV technologies has tempted the United States to engage in a largely covert campaign of targeted killing, creating, in effect, a “secret war” governed by secret law. In particular, controversy has swirled around what critics view as the relative lack of transparency and accountability in US targeted killings, and the potential implications this has for domestic and international rule of law, especially if other states — including many not known for their human rights records — mimic US precedents. 

 The  Task Force

believes that UAVs should be neither glorified nor demonized. It is important to take a realistic view of UAVs, recognizing both their continuities with more traditional military technologies and the new tactics and policies they enable. Most US military UAVs are not weaponized, and only a tiny fraction of US government UAV missions involve targeted UAV strikes outside of traditional, territorially defined battlefields such as those in Afghanistan, Iraq and Libya. Further, UAVs are not a US “super-weapon:” while their use has led to significant tactical successes, they are not strategic weapons, and they currently have substantial vulnerabilities as well as strengths. The United States does not have a monopoly on UAV technologies or an ability to predict all potential countermeasures; indeed, there is reason to fear the rapid and uncontrolled proliferation of UAV technologies developed in other states, along with the rapid evolution of technologies designed to counter UAVs. While we do not believe that UAV strikes cause disproportionate civilian casualties or turn killing into a “video-game,” we are concerned that the availability of lethal UAV technologies has enabled US policies that likely would not have been adopted in the absence of UAVs. In particular, UAVs have enabled the United States to engage in the cross-border use of lethal force against targeted individuals in an unprecedented and expanding way, raising significant strategic, legal and ethical questions. Strategic Questions We are concerned that the Obama administration’s heavy reliance on targeted killings as a pillar of US counterterrorism strategy rests on questionable assumptions, and risks increasing instability and escalating conflicts. While tactical strikes may have helped keep the homeland free of major terrorist attacks, existing evidence indicates that both Sunni and Shia Islamic extremist groups have grown in scope, lethality and influence in the broader area of operations in the Middle East, Africa and South Asia. Furthermore, US targeted strikes also create new strategic risks. These include possible erosion of sovereignty norms, blowback and risks of a slippery slope into continual conflict.

Erosion of sovereignty norms:

The US government takes the view that it has a legal right to use force in the territories of foreign sovereign states when those states are “unwilling or unable” to take what the United States considers appropriate action to eliminate what it sees as imminent threats. But inevitably, assessments of what constitutes an imminent threat to the United States and what would constitute appropriate action are somewhat subjective in nature; the United States may view the use of force as justified even when US allies and partners do not. The US use of force in sovereign nations whose consent is questionable or nonexistent may encourage other states to follow suit with their own military platforms or commercial entities.

Blowback:

Civilian casualties, even if relatively few, can anger whole communities, increase anti-US sentiment and become a potent recruiting tool for terrorist organizations. Even strikes that kill only terrorist operatives can cause great resentment,  particularly in contexts in which terrorist recruiting efforts rely on tribal loyalties or on an economically desperate population. UAV strikes by the United States have also generated a backlash in states not directly affected by the strikes, in part due to the perception that such strikes cause excessive civilian deaths, and in part due to concerns about sovereignty, transparency, accountability and other human rights and rule of law issues.

Slippery Slope:

The increasing use of lethal UAVs may create a slippery slope leading to continual or wider wars. The seemingly low-risk and low-cost missions enabled by UAV technologies may encourage the United States to fly such missions more often, pursuing targets with UAVs that would be deemed not worth pursuing if manned aircraft or special operation forces had to be put at risk. For similar reasons, however, adversarial states may be quicker to use force against American UAVs than against US manned aircraft or military personnel. UAVs also create an escalation risk insofar as they may lower the bar to enter a conflict, without increasing the likelihood of a satisfactory outcome.

The US use of lethal UAVs for targeted strikes outside of hot battlefields is likely to be imitated by other states. Such potential future increase in the use of lethal UAV strikes by foreign states may cause or increase instability, and further increase the risk of widening conflicts in regions around the globe.

Lack of Strategic Analysis:

In recent years, US targeted strikes involving UAVs have gone from a relative rarity to a relatively common practice in Pakistan and Yemen. As the number of strikes increases, so, too, does the strategic risk. To the best of our knowledge, however, the US executive branch has yet to engage in a serious cost-benefit analysis of targeted UAV strikes as a routine counterterrorism tool.

There are numerous non-kinetic means of combatting terrorism; some of these — e.g., efforts to disrupt terrorist communications and finances — can easily be combined with targeted strikes, while others — e.g., efforts to build friendly relationships with local communities and inspire cooperation — may be less easily combined. A serious counterterrorism strategy needs to consider carefully, and constantly reassess, the balance between kinetic action and other counterterrorism tools, and the potential unintended consequences of increased reliance on lethal UAVs.

Legal and Ethical Issues Transparency:

The administration has disclosed details relating to only a handful of targeted strikes against American citizens: for the most part, the identities of those targeted and the basis for their targeting have not been disclosed. Details relating to incidents that may have involved civilian casualties also have not been disclosed. In formal court filings, the administration continues to state that it will neither confirm nor deny particular strikes, or even the existence of such strikes as a general matter. We recognize that US officials frequently have compelling reasons to refrain from providing some of this information to the public, and we believe that US government decision-makers make targeting decisions in good faith and with genuine care. Nonetheless, we are concerned by the continuing lack of transparency relating to US targeted killings.

Law versus the Rule of Law:

From a US government perspective, the United States is in an armed conflict with al-Qaida and its “associated forces.” As an international law matter, the existence of an armed conflict triggers the applicability of the law of armed conflict, which permits the United States to target al-Qaida operatives as enemy combatants. By extension, members of organizations that fight alongside al-Qaida are also targetable as co-belligerents — and unlike ordinary domestic law or international human rights law, the law of armed conflict does not require the United States to provide “due process” to enemy combatants before targeting them. International law also recognizes that states have the right to use armed force outside their own borders when doing so is necessary to prevent an imminent attack, and US officials have therefore argued that targeted strikes against terror suspects are permitted both under the law of armed conflict and under the international law of self-defense.

These are plausible interpretations of the law, and we disagree with those critics who have declared that US targeted killings are “illegal.” But changing technologies and events have made it increasingly difficult to apply the law of armed conflict and the international law relating to the use of force in a consistent and principled manner, leading to increasing divergence between “the law” and core rule of law principles that traditionally have animated US policy.

The rise of transnational non-state terrorist organizations confounds preexisting legal categories. In a conflict so sporadic and protean, the process of determining where and when the law of armed conflict applies, who should be considered a combatant and what count as “hostilities” is inevitably fraught with difficulty. While our military and intelligence communities have grown increasingly adept both at identifying and confirming the identities of al-Qaida affiliates and at precise and careful targeting, the criteria used to determine who might be considered targetable remain unknown to the public. Similarly, it is difficult to understand how the US government determines the “imminence” of unknown types of future attacks being planned by unknown individuals.

These enormous uncertainties are multiplied further when the United States relies on intelligence and other targeting information provided by a host nation government: how can we be sure we are not being drawn into a civil war or being used to target the domestic political enemies of the host state leadership?

The legal norms governing armed conflicts and the use of force look clear on paper, but the changing nature of modern conflicts and security threats has rendered them almost incoherent in practice. Basic categories such as “battlefield,” “combatant” and “hostilities” no longer have clear or stable meaning. When this happens, the rule of law is threatened. The United States was founded upon rule of law principles, and historically has sought to ensure that its own actions, international law and the actions of foreign states are consistent with these principles. Today, however, despite the undoubted good faith of US decision-makers, it would be difficult to conclude that US targeted strikes are consistent with core rule of law norms. 

International Precedents:

From the perspective of many around the world, the United States currently appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on Earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals — with no public disclosure of which organizations are considered “associated forces” (or how combatant status is determined or how the United States defines “participation in hostilities”), no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone outside that process to identify or remedy mistakes or abuses. US practices set a dangerous precedent that may be seized upon by other states — not all of which are likely to behave as scrupulously as US officials.

Democratic Accountability:

Increased US reliance on lethal UAVs in cross-border targeted strikes also poses challenges to democracy and the American system of checks and balances. While we understand the administration’s reasons for considering additional transparency difficult, the effect of the lack of transparency is that the United States has been fighting what amounts to a covert, multi-year killing program. Without additional information, the citizenry cannot evaluate US targeted strikes.

Unmanned aerial vehicle strikes also raise questions about the continued efficacy of traditional congressional oversight mechanisms. The Obama administration continues to rely on the 2001 Authorization for Use of Military Force (AUMF) as the primary domestic legal basis for US targeted strikes outside of “hot” battlefields, but the administration’s interpretation of the AUMF is extraordinarily broad — and even many former executive branch officials question whether Congress intended to authorize such an unbounded conflict when the AUMF was passed in 2001.

The covert or unacknowledged nature of most UAV targeted strikes also makes it difficult for Congress to perform its vital oversight functions. CIA UAV strikes constitute “covert action” under US law, which means that the CIA need not give prior notice of particular covert operations to any members of Congress except the so-called “Gang of Eight.” After a covert action, the executive branch is required to notify the full intelligence committees, but not the full Congress.

By law, the US military is prohibited from engaging in covert action. It is important to emphasize, however, that the military is not prohibited from engaging in secret, unacknowledged activities that are intended to remain unacknowledged, as long as these activities constitute “traditional military activities” under US law.

From the perspective of laypersons, both the CIA and the military can thus engage in covert strikes in the colloquial sense of the term. But while covert action undertaken by the CIA requires a presidential finding and notification — even if after the fact — of the congressional intelligence committees, secret, unacknowledged strikes carried out by the US military need not be reported to the intelligence committees, as the military reports instead to the House and Senate Armed Services committees.

At best, this fragmented oversight system creates confusion and a danger that critical issues may slip through the cracks. This fragmented oversight system is particularly  problematic given that in practice, the military and CIA generally work together quite closely when planning and executing targeted UAV strikes: few strikes are “all military” or “all CIA.” The differing CIA and military reporting requirements create a risk of executive branch “forum shopping,” tempting the executive branch to place a given targeted strike under the direction and control of whichever entity is deemed to have the most accommodating committee members. Even when the appropriate congressional committees are fully briefed, the classified nature of targeted strikes, whether CIA or military, makes oversight a challenge.

Future Technological Developments

UAV technologies will continue to evolve rapidly. Looking into the near future, it seems likely that an increasing number of weapons will be adapted for use on UAV platforms such that any weapon developed for a manned aircraft will soon be launchable from an unmanned aircraft. UAVs will become more interoperable, and system software likely will evolve to integrate multiple UAVs across an entire “combat cloud.” Autonomous UAV capabilities will also likely be developed.

These likely future technological developments have the potential to be used both for good and for ill, and the time to discuss their potential implications is now. Among other things, we will need to reevaluate existing UAV-related Federal Aviation Administration rules and export control rules; at the moment, US export control rules for UAVs do not appear well-suited to advancing US national security objectives.

It offers the following recommendations -

1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.

2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.

3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.

4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly.

5. Foster the development of appropriate international norms for the use of lethal force outside traditional battlefields. These norms should rest upon a joint commitment to ensuring that states have the ability to respond effectively to nontraditional threats from nontraditional actors and a commitment to ensuring that the use of lethal force remains consistent with core rule of law principles and respect for fundamental human rights. Rules and practices relating to the state use of lethal force should be transparent and clear; lethal force should not be used without adequate safeguards to prevent arbitrariness and protect against error and abuse; and impartial accountability mechanisms must be available to investigate credible allegations of error and abuse, and, if appropriate, provide remedies.

6. Assess UAV-related technological developments and likely future trends, and develop an interagency research and development strategy geared toward advancing US national security interests in a manner consistent with our values. This review should also flag any legal, ethical and strategic implications of emerging UAV-related technologies, including the possible future development of autonomous weapons systems, and lead to the development of a holistic interagency research, development and use strategy for UAVs.

7. Review and reform UAV-related export control rules and FAA rules, with a view to minimizing unnecessary regulatory burdens on the development of the US UAV industry, while still safeguarding our national security interests and ensuring responsible UAV development and use.

8. The FAA should accelerate its efforts to meet the requirements of the 2012 FAA Reauthorization Bill to ensure the safe integration of civil unmanned aircraft systems into the national airspace system by Sept. 30, 2015, as required by law, but also consider whether certain commercial UAVs can be operated safely in the national airspace prior to that date, and make exemptions as permitted as a stopgap measure toward the development of a comprehensive regulatory framework for both government and privately operated UAVs.

PC on Trade Assistance and secrecy

Key points from the Productivity Commission's Trade & Assistance Review 2012-2013 report [PDF] -

• Government assistance to industry is provided through an array of measures including tariffs, budgetary outlays, tax concessions, and restrictions on competition. – This benefits the industry receiving it, but comes at a cost to other industries, taxpayers or consumers. A critical issue is whether the benefits accruing to industry outweigh the costs. 
• Estimated tariff assistance to industry was $7.8 billion in 2012-13 in gross terms, accruing overwhelmingly to manufacturing. Budget and tax related support was worth a further $7.8 billion, thus total gross assistance was $15.6 billion. 
• After deducting the cost penalty of tariffs on imported inputs ($7.1 billion, two thirds incurred by services industries) net assistance to industry was $8.5 billion. 
• Budgetary assistance in 2012-13 was about $2.2 billion less than in 2011-12. The largest reductions were from the winding down of transitional assistance afforded by the Energy Security Fund ($1 billion), the Coal Sector Jobs Package ($219 million) and the Steel Transformation Plan ($164 million). 
• Since November 2013, the current Government has announced, amongst other things, that it would: reduce funding to motor vehicle manufacturing between 2015–2017 by $500 million, not provide a debt guarantee or line of credit to Qantas, nor provide assistance requested by processing company SPC Ardmona, but would proceed with support to Cadbury for a tourist facility. 
• Australia recently agreed to bilateral trade agreements with Korea and Japan. Trade agreements can distort comparative advantage between nations and consequently reduce efficient resource allocation. – The rules of origin in Australia’s nine bilateral agreements differ widely, are likely to impede competition and add to the compliance costs of firms engaging in trade. 
• Government outlays on defence capability represent one of the largest discretionary items in the Commonwealth’s budget. – Defence industry assistance includes cost premiums for local purchasing preferences and budgetary support for skilling, research and exporting (with expenditures up to $500 million directly and indirectly benefiting industry). – Significant cost premiums can also be incurred by choosing to modify off-the-shelf equipment or pursuing bespoke designs. 
• To be justified, cost premiums and defence industry assistance need to be commensurate with any additional security and operational benefits. Publishing these additional costs and benefits would assist understanding of apparently huge cost differentials. 
• The efficiency and effectiveness of direct defence industry assistance programs could benefit from independent scrutiny. 
• Three short reviews also comment on topical areas of public interest: R&D; Foreign Investment Rules; and Special Economic Zones.

Consistent with past wariness about the problematical TransPacific Partnership Agreement the Commission comments -

The concept of a TPP agreement developed from an existing trade agreement between Brunei, Chile, New Zealand and Singapore (known as the Trans-Pacific Economic Partnership Agreement) signed in 2005. The original goal was to create a model regional agreement that could be expanded to include additional members from the APEC group of countries. In addition to the four foundation members, eight other countries have since joined the negotiations. In chronological order of their engagement, these countries are the United States, Australia, Peru, Vietnam, Malaysia, Mexico, Canada and Japan. South Korea and Taiwan have also expressed interest in joining. The latest ministerial meeting was held in Singapore on 19 and 20 May 2014. The timeline for completion of negotiations remains unclear.

A defining feature of the original TPP agreement was that it provided, over time, for the provision of preferential tariff rates between members on all goods, including agriculture. The agreement would also be comprehensive in that it would cover trade in goods and services, rules of origin, trade remedies, sanitary and phytosanitary measures, technical barriers to trade, intellectual property, government procurement, competition policy, temporary entry of business persons and dispute settlement procedures.

In addition to these topics, the TPP negotiations have broadened to encompass financial services, investment, electronic commerce, telecommunications, regulatory coherence and competitiveness issues. TPP negotiation groups have also been established to consider labour and environmental issues. A stated aim of the TPP is that the agreement would facilitate a consolidation of the differences (particularly rules of origin) in existing bilateral agreements used by current and prospective TPP members.

The confidential nature of the TPP negotiating text has been contentious particularly in respect of intellectual property and investor-state dispute settlement provisions. It has been argued that it is not common practice (including in Australia) to release negotiating texts of agreements before they are finalised on the grounds that public disclosure could undermine negotiations and, given their evolving nature, do little to better inform public debate (Robb 2014). Once an agreement involving Australia has been signed by the negotiating parties, the text is subjected to scrutiny, but not amendment, in the Australian Parliament before ratification. However, by that stage, the government of the day has staked its credibility on the agreement being ratified. The Commission is unaware of any trade agreement that has been rejected in response to parliamentary scrutiny. An independent, arms-length process that precedes commitment by the government would be preferable.

In "Assessing the potential impacts of proposed agreements" the report goes on to state -

 Trade preferences granted through bilateral and regional trade agreements, if fully utilised, can increase trade and investment flows between partner countries. Reporting of the outcomes of agreement negotiations invariably focuses on the positive impacts of these bilateral flows between signatories to the agreement. What is less commonly reported are the potential negative impacts of trade and investment that is diverted from more efficient sources of supply and the availability of even greater gains through unilateral action by the Australian Government to eliminate tariffs and other impediments to trade. The costs associated with a protracted negotiation process and compliance burden associated with preferential agreements, including complex and confusing rules of origin, are similarly under-reported.

In its 2010 report into bilateral and regional trade agreements, the Commission concluded that any increases in national income accruing from preferential agreements are likely to be modest. The Commission also concluded that current processes for assessing bilateral and regional agreements lacked transparency and tended to oversell the likely benefits. To help ensure that bilateral and regional trade agreements entered into are in Australia’s best interests, it recommended that a full and independent, arms-length assessment of a proposed agreement should be made after negotiations have concluded — covering all of the actual negotiated provisions. It recommended (amongst other things):

The Australian Government should improve the scrutiny of the potential impacts of prospective trade agreements, and opportunities to reduce barriers to trade and investment more generally. … It should commission and publish an independent and transparent assessment of the final text of the agreement, at the conclusion of negotiations, but before an agreement is signed (PC 2010, p. 312).

The expanding involvement of Australia in preferential trading arrangements adds to the imperative of this recommendation to ensure Australia maximizes the benefits from international trade and investment opportunities.

Blood Rights

'Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation' by Kristin A. Collins in (2014) 123 Yale Law Journal 2134 comments

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of restrictions on father-child citizenship transmission was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. At formative moments in the development the laws governing jus sanguinis citizenship – what is now called derivative citizenship – gender- and marriage-based domestic relations laws were enlisted by administrators, judges, and legislators to deny the citizenship claims of nonwhite children, especially those who were excludable under the race-based immigration and naturalization laws.

For those who study citizenship and immigration law, Illegitimate Borders illustrates the concrete and enduring ways that ideas concerning family, gender, and race have shaped the rules that govern formal membership in the American polity. For legal historians and scholars interested in the development of the administrative state and nation building, this article provides a window onto the central role administrators played in crafting American nationality law. For family law scholars, Illegitimate Borders highlights the ways that laws regulating illegitimacy – long used to create and maintain racial hierarchies within the American polity – were regularly used to shape the racial composition of the polity as well. Finally, for constitutional law scholars, the history charted here undermines the view that gender-asymmetrical jus sanguinis citizenship laws reflect natural and inevitable means of regulating parent-child derivative citizenship – an understanding that has been embraced by a majority of the Supreme Court. Instead, the historical sources reveal that gender-asymmetrical citizenship laws are the product of choices made by officials and shaped by contemporary norms concerning gender, parental roles, and – as illustrated in great detail – the official imperative to enforce race-based nationality laws. To speak of gender-based distinctions drawn in modern citizenship law as inevitable obscures their origins and elides the ways that such laws continue to play an illiberal role in the practice and politics of citizenship.

'Citizens As Customers' by Wolfgang Streeck in (2012) 75 New Left Review comments

Four decades ago, in a landmark Public Interest article titled ‘Public Goods and Private Status’, Joseph Monsen and Anthony Downs took up the question of why American society was, in the phrase coined by John Kenneth Galbraith, ‘privately rich but publicly poor’. The authors were not convinced by what they took to be the received explanation at the time: the ‘clever and nefarious advertising techniques’ used by large corporations to manipulate consumers, so that they would ‘buy private goods and services they do not relatively need or want’. Instead, Monsen and Downs suggested ‘a more fundamental factor’ was at work, accounting for the differential allocation of goods between the public and private sectors: a ‘desire’ on the part of consumers ‘for emulation and differentiation’, driving them ‘to create visible distinctions between large groups and classes, and, within such groups, more subtle distinctions of individuality’. Drawing on Veblen’s notion of conspicuous consumption in The Theory of the Leisure Class, as well as 1960s explanations of status-seeking consumer behaviour in American society, Monsen and Downs described this desire as ‘an intrinsic part of man’s character, evident to at least some degrees in all societies, past and present’—‘so fundamental that it can be considered a “law” of human nature.’

Why should this ‘law of consumer differentiation’, conceived as something close to an anthropological constant, affect the relative allocation of resources between the private and the public spheres of a modern political economy? The central point of Monsen and Downs’s argument is that what they call ‘government goods’—those produced or distributed by public authorities—are ‘designed with an eye to uniformity’. The standardization of army rifles is the most evident case in point:

Such goods are easier to produce and administer by the bureaucracy, and they accord with the ideal of equality which underlies the distribution of government goods. But by that very nature, such goods cannot be used easily for status differentiation which is a major function of most goods in advanced industrial societies.

In what follows, I shall make use of Monsen and Downs’s productive distinction between these two modes of provision, with inherent capacities favouring different kinds of goods: one mode is public and collective, administered by state authorities; the other is private and individual, mediated by commercial markets. But rather than comparing the two modes synchronically, or examining them within the eternal property space of economic anthropology, I will take a longitudinal view on the development of their mutual relationship. Moreover, instead of anchoring product diversification in a timeless human disposition towards status-seeking, I will relate it to a particular mode of utility maximization favoured in the transition from a need-supplying to a want-supplying economy, from sellers’ to buyers’ markets, and from poor to saturated to affluent societies, which was getting underway around the time (1971) that Monsen and Downs’s article appeared. In this sense, I will suggest a return to the ‘institutionalist’ explanation for the starvation of the public sphere, which Monsen and Downs rejected in favour of their human-nature theory.

Sorry and another OPCA incident

A perspective from the New York Times on the Facebook research ethics problem

this is hardly the first time Facebook has apologized for its behavior. Over its 10-year history, the company has repeatedly pushed its users to share more information, then publicly conceded it overstepped if an upset public pushed back.

Take, for example, when Facebook first introduced the news feed to the public in 2006. It was the first time a running stream of the actions you took on was were visible to your friends. Users were alarmed, and Mark Zuckerberg, Facebook’s chief executive, took to his profile page to personally apologize.

“We really messed this one up,” he wrote. The company introduced a new set of privacy controls to go with Mr. Zuckerberg’s apology.

Little more than a year later, Facebook was at it again. The company introduced a new product, Beacon, that, when connected to partner web sites like eBay or Fandango, would publish actions taken on those third-party sites back to Facebook for friends to see. Some Facebook users said this violated their privacy, and were irate enough to eventually file a class-action lawsuit.

Again, Mr. Zuckerberg was sorry.

“We simply did a bad job with this release, and I apologize for it,” he wrote on his personal Facebook page. Facebook introduced a way to opt out of Beacon soon after, and eventually dropped the service entirely.

Then in 2009, Facebook changed its privacy settings for users, in what the company characterized as an effort to simplify a set of complicated controls. Some digital rights advocacy groups, however, claimed that the simpler controls tacitly pushed users to share even more information about themselves than before. Users were forced to share their information, for instance, with apps connected to their Facebook accounts.

Six months and many complaints later, Mr. Zuckerberg said he was sorry (sort of) — this time on the editorial page of The Washington Post.

“Sometimes we move too fast,” Mr. Zuckerberg wrote. “We just missed the mark.” Facebook introduced another set of privacy changes to remedy the older, unpopular set.

One of the company’s biggest concessions came in 2011, in the form of a settlement with the Federal Trade Commission, after the agency said Facebook had deceived consumers on its privacy practices.

“I’m the first to admit that we’ve made a bunch of mistakes,” Mr. Zuckerberg wrote, while also noting a batch of privacy “improvements” Facebook had introduced over a period of two years. “We can also always do better.”

In ACM Group Ltd v Jenner [2014] QMC 7 - involving an A4V ('Acceptance for Value') pseudo legal claim - the Magistrates Court of Queensland comments 

The case highlights the tension between the fundamental principle that all parties have unobstructed access to civil justice regardless of whether or not they are legally represented (Tomasevic v Travaglini (2007) VSC 337 at [84]), on the one hand, and the need to protect members of the public from unscrupulous and unqualified people offering unsatisfactory legal services, on the other. 

The judgment states 

 [17] The defendant purports to invoke unknown principles and spurious “higher laws” to override or avoid normal commercial obligations. Through Ms Wales, Ms Jenner apparently claims the truly remarkable ability to transform a letter of demand into a cheque or other bill of exchange which is then payable by a non-entity from non-existent funds. 

[18] On her case the non return of the A4V notice within 72 hours of receipt “provided evidence of the acceptance by the plaintiff of the money order and satisfaction of the liability” (par 9(c)- (d)). 

[19] A “certified agreement” (see page 39 of APB 1) is also relied upon to prove a binding agreement “...by all parties that the plaintiff’s claim of a liability against the defendant was discharged” (par 9(j)(l)). 

[20] There is no evidence of any financial entity known as “Treasury AUSTRALIA” and no reason to believe that Ms Jenner has contractual or other recognised legal right or authority to compel enforcement of the “A4V notice” on presentation. 

[21] The A4V notice and the “certified agreement” are unilateral “quasi-agreements” unsupported by valuable consideration. Neither is binding on the involuntary party. The documents do not create formal legal relations or contractual consequences with or for anyone. 

[22] In fact despite its misuse of Latin maxims and bizarre make believe legal babble the A4V notice is not worth the paper it’s written. 

[23] The plaintiff claims that Ms Wales is an emerging breed of vicarious vexatious litigants known in Canada as organised pseudo legal commercial argument litigants (OPCA Litigants) characterised and distinguished by the use of muddled legal concepts and terms calculated to frustrate the legitimate legal rights of others and disrupt court proceedings (See Meads v Meads [2012] ABQB 571 per Rooke ACJ at [1]). 

[24] OPCA litigants, according to Rooke ACJ, belongs to a group unified by specific but irrelevant formalities and language they appear to believe to be (or portray as) legally significant and “...will only honour (agreements and legal obligations) if they feel like it. And typically they don’t” (Meads at [4]). 

[25] According to A4V mythology OPCA adherents are associated with the secret government bank account with millions of dollars in it which can be unlocked and accessed by special stamps and notations that convert the original document into a bill of exchange drawn on the secret government account in favour of a nominated payee. 

[26] The A4V document here closely resembles those used by OPCA Litigants in Canada in “money for nothing schemes” discussed in Meads at [199] – [244]. 

[27] As Counsel for the plaintiff points out the defence and counter claim here also bear a striking similarity to the OPCA modus operandi generally and, in particular, to the uses of unilateral agreements (eg A4V notice) and the fiction of quadruple counter claims (see Meads 473, 531, 483). 

[28] A similar situation arose in Boughan v HSBC Bank Australia Ltd [2009] FCA 1007 where a litigant asserted an implied agreement that the account was “settled and closed” [23-29] because a bank officer did not sign and return a document within a specified time. 

The correct reference in [28] is Vaughan v HSBC Bank Australia Ltd [2009] FCA 1007.

[29] Graham J [in Vaughan] held:

It is apparent that the applicant’s case against the bank well and truly earns the description of being unmeritorious and unsustainable. The applicant has no recall or prospect of successfully prosecuting any part of his proceeding against the bank. In relation to his claim for summary judgment against the bank it is totally without foundation, it proceeds on the premise that, because the bank did not reply to his rather odd communication to it, by its silence the bank agreed to make a gift to the applicant of $666,000. 

[30] The A4V concept was also reviewed and rejected in Underworld Services Ltd v Money Inc [2012] ABQC 327.

Pragmatism and Posner

'Radical Pragmatism' Michael Sullivan and Daniel J. Solove in Alan Malachowski (ed) The Cambridge Companion to Pragmatism (Cambridge University Press, 2013) comments

“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Even Richard Rorty, the philosopher frequently credited with reviving pragmatism concurs. Richard Posner could not agree more. For well over a decade, Posner has been the leading proponent of legal pragmatism. He proclaims that “pragmatism is the best description of the American judicial ethos and also the best guide to the improvement of judicial performance—and thus the best normative as well as positive theory of the judicial role.” For Posner, pragmatic adjudication boils down to “reasonableness”; it is “[n]ebulous and banal, modest and perhaps even timorous — or maybe oscillating unpredictably between timorous and bold.” 

Following the classical pragmatists, many contemporary pragmatists reject philosophy as a method for securing unshakeable foundations for knowledge. Yet these pragmatists part ways with classical pragmatism by rejecting the possibility of developing a thicker theory of the good and viewing pragmatism as a thin non-theoretical method of approaching issues. On this account, pragmatism is a relatively commonplace set of ideas and should hardly be shocking to the contemporary mind. According to Posner, “pragmatism is more a tradition, attitude, and outlook than a body of doctrine”; it is more of a “mood” than a substantive philosophy. Posner insists that pragmatism has “no inherent political valence.” Likewise, Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.” Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too grounded in practice and too lacking in substantive value commitments to be otherwise. 

In this chapter, we contest this account of pragmatism held by many neo- pragmatists and articulated most directly by Posner. We offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.

The authors go on to comment that

As developed by classical pragmatists like Dewey, pragmatism is not neutral. Of course, this account of pragmatism does not imply a specific theory of political philosophy. But it does have valences. In order to ask what political future does pragmatism recommend?, we must also ask in what political culture can pragmatic forms of inquiry about the political future best be carried out? The answer to this latter question leads us in the direction of what we call a “general democratic culture.” First, pragmatism subjects existing institutions and the status quo to ongoing critique, since it recommends that we critically examine our ends. When one commits oneself to a thoroughgoing use of pragmatic method, certain conclusions are ruled out in advance, such as a politics informed by supernatural or transcendental ideals, or a politics that arbitrarily excludes particular viewpoints. Supernaturalism and absolutism conflict with the general approach of the pragmatic method, which is to subject our ideals, ends, and conclusions to the test of experience. Indeed, it is this commitment that in part motivates Posner’s rejection of philosophical theory, for much philosophical theory has traditionally harbored ideological commitments that were then foisted upon the unaware from the altar of theory. But the fear of ideology can lead to cures that are worse than the disease. Although Posner claims to adhere to a neutral pragmatic method without political valences, the results of his application of this method are deeply ensconced in ideology. Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo. The result is that while Posnerian pragmatism rejects supernaturalism and absolutism, it starts with an unquestioning acceptance of current institutions. Ironically, it winds up in a similar posture to supernaturalism and absolutism, for in each of these instances certain issues are insulated from critical scrutiny. 

Second, under Deweyan pragmatism, democracy depends upon deliberation. Democratic deliberation is the way we establish shared meanings and determine the ends of a community. It is important to distinguish between individual and community ends. Individuals can readily choose their own ends, but for communities, the task is more difficult. This is because a community’s ends depend on the identity of the community, which must be ascertained by examining the history of that community and soliciting input from across the community as a whole. Examining community identity leads us to ask: Who are we becoming? How are we growing? Do we want to continue in this fashion? Who do we want to become? There is no movement into the future that does not presuppose a judgment about the past and present. Pragmatists therefore need to encourage public deliberation about our identity since there is no way to determine what is better or worse without reference to that identity. 

Since community rather than individual ends are at issue, dialogue becomes essential. Community ends are determined collectively, and doing so requires communication. This dialogue does not need to be an academically sophisticated discourse; rather, pragmatism merely requires that people participate in a discussion of the meaning of ends understood in the context of present circumstances. These are philosophical discussions not because they take place in universities, but because they ask about the good life under present social conditions. A pragmatic approach to democracy is one that understands itself as part of existing political conversations about the nature and ends of the community. 

Third, since experience is social and meanings are constituted through communication, efforts to describe experience and formulate an account of social problems must seek contributions from a wide range of participants in social experience. Under Dewey’s theory, participation is a highly valued end. For Posner, in contrast, participation has no value unless it can achieve results that benefit one’s self-interest. Beyond being valuable in and of itself, participation is valuable instrumentally as well. According to Dewey, self-government “is educative,” for it “forces recognition that there are common interests.” Thus, the purpose of democracy is not to take the people as they are. The value of democratic participation is to educate people, to enable them to realize common interests and see themselves as part of a community. Dewey’s experimental method does not simply consist of presenting hypotheses; rather, it requires testing proposals to resolve present problems by seeing how they work in experience. Interpreting the social meaning of a particular set of experiments requires recourse to the larger community. We increase our chances of finding effective solutions to social problems by looking to a broad range of contributors. Therefore, in contrast to Posnerian pragmatism, the account of pragmatism we offer openly acknowledges that it is not completely neutral. Although pragmatism does not point to precise resolutions for our debates, it does send us in a particular direction based on the types of questions it recommends we investigate. It puts on the table for debate a wide range of issues, especially the identity of a community and its ends. It requires dialogue, for the task of determining a community’s ends cannot be achieved without communication. And it relies on the participation of the community, not merely upon a group of elites who impose their own ends upon the community.

Since democracy depends upon the widespread participation of a community in a dialogue over its ends, the pragmatist pays special attention to questions concerning the conditions for effective community discussion. Posner rejects such questions as hopeless and doomed because it is not realistic to achieve complete community engagement. But these are precisely the ways in which a community pragmatically resolves the more specific political arrangements it shall adopt. Because this account of pragmatism suggests that we engage in a critical examination of the dominant ends of society, and that we must do so through dialogue and through broad community participation, it points us more toward Concept 1 democracy than Concept 2. This does not foreclose us from embracing some features of Concept 2, but it certainly rejects the insular nature of Concept 2, which leaves too few avenues for dialogue and community engagement. 

Pragmatic democratic inquiry would lead us to ask: What are the pressing problems of the day? What are the relevant community ends? What means can we use to achieve these ends? The inquiry would also go deeper to ask: To what extent are the community ends contested? What is the pedigree of the prevailing community ends? How did these ends become the prevailing ones? For what purposes were these ends originally adopted? Do the reasons these ends were adopted still have currency today? To the extent that there are competing accounts of a community’s ends, can common ground be discovered? 

The pragmatist would also recognize that answering these questions pragmatically at the community level requires certain features of a democratic culture—ones that may need significant improvement. The quality of our pragmatic inquiry into the above questions depends upon the quality of our democratic culture. To improve our democratic culture, the pragmatist would explore ways to improve public deliberation and civic participation. For example, the pragmatist would look to improving education, which enables individuals to assess experience critically and share their assessments with others. The pragmatist might also examine how to promote new means of communication to enable democratic discussions to take place. 

One might object that such projects are not pragmatic because they are often engineered by elites. Deweyan democracy, however, need not be antagonistic to elites so long as elites see their role as guiding and advising the public rather than running the show with minimal public involvement. 

Posner would also respond that these projects are too utopian because too many people do not want to participate and are not educated enough to do anything but vote. But the pragmatist does not simply accept human nature as given. Democracy, for Dewey, is about the “maturing and fruition of the potentialities of human nature.” Institutions must be changed; further experimentation is needed in order to help enable society to become more democratic. In this way, Dewey was idealistic about democracy. He believed that a commitment to democracy makes “claims upon our future conduct” and therefore it “is an ideal.” Dewey would not view the charge that Concept 1 is idealistic as troubling at all; he would say that this is precisely the point of democracy. 

The normative goal of democracy for Dewey was the realization of people’s full capacities.  For Dewey, then, unlike Posner, one cannot simply take human beings and social institutions as one finds them. In the end, Dewey was committed to using the power of intelligence to bring about a better society capable of facilitating the growth of individuals. He was convinced that the form and commitment to inquiry that had so decisively enabled us to increase our control over nature in the realm of science and technology might also be used to improve the political governance of society. But he knew that assessment of this claim would have to await the results of trying to put it into practice. From Dewey’s point of view, it was far too early to pronounce pragmatic attempts at reconstruction as failures or successes, because by and large they simply had not been tried. This remains true today. Even as Posner recommends our acquiescence to the status quo, his claims that aspirations for a more deliberative society are too utopian seem driven more by his affirmation of the present than by any demonstration that improvement is not possible.

Debt Collection

The Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) have launched an updated version of their Debt collection guideline: for collectors and creditors publication, revised following "extensive consultation with key industry and consumer representatives to provide enhanced guidance to anyone involved in debt collection". 

The ACCC and ASIC have had joint responsibility since 2002 for administering consumer protection legislation in relation to "the debt collection industry", i.e. under the Australian Securities & Investments Commission Act 2001 (Cth) mirroring provisions of the Australian Consumer Law (ACL).

In 2012 the Federal Court of Australia, in Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164, found one of Australia’s largest debt collection companies had harassed and coerced debtors and engaged in 'widespread' and 'systemic' misleading and deceptive conduct when recovering money. During the following year the ACCC prosecuted a company for setting up a fake complaints-handling organisation to give debtors the false impression that disputes about liability were being assessed by an independent arbitrator. The Federal Court ordered Excite Mobile to pay a penalty of $455,000, with the company’s directors ordered to pay penalties totaling $100,000.

 The guideline has been updated to reflect the introduction of the ACL in 2011, the National Consumer Credit Protection Act 2009 (Cth) and new privacy laws and principles. It "incorporates recent court outcomes and practical examples to assist creditors, collectors and debtors in areas that have caused concern".

The ACCC indicates that the Guideline offers practical guidance about:

• when it is appropriate to contact a debtor, including what constitutes contact and reasonable contact hours, methods or frequency of contact 
• how the need for collection activity will be greatly reduced when debtors act promptly and responsibly, and collectors are flexible, fair and realistic 
• new communication technologies developed since the initial publication, including the use of social media platforms and auto dialers, and the potential pitfalls to avoid in using such technologies. 

The ACCC and ASIC encourage businesses to incorporate the recommendations of this guideline into their arrangements with agents and assignees.

Privacy and the 4th

'Too Much Information: How Not to Think About Privacy and the Fourth Amendment' by David Alan Sklansky in California Law Review (forthcoming) comments

 Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

Libertarianism

'Libertarian Administrative Law' by Cass R. Sunstein and Adrian Vermeule comments 

In recent years, several judges on the nation’s most important regulatory court - the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.

Sunstein and Vermeule state

In the years before Vermont Yankee [1978] was decided, the District of Columbia Circuit - acting through a determined subset of its judges - made a concerted effort to push administrative law in a direction that the Supreme Court was ultimately unwilling to go. These judges believed that administrative law should show special solicitude for environmental interests, consumer interests, and other interests that the judges thought to be under-represented in the political process, because the costs and dynamics of political organization yielded relatively greater authority to industry and producers. Perhaps influenced by prominent work in social science, which seemed to support the claim of under-representation, the judges devised a distinctly progressive approach to administrative law, featuring, among other things, hybrid procedural requirements. These innovations required agencies to offer more procedures than the Administrative Procedure Act (APA) mandated, at least when special solicitude for environmental or other interests was necessary (in the judges’ view).

To obtain a flavor of the period, consider these remarkable words: “Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material ‘progress.’ But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role.” The court affirmed that role in another case announcing that “[w]e stand on the threshold of a new era in the history of the long and fruitful collaboration of administrative agencies and reviewing courts,” in which judges would be “increasingly asked to review administrative action that touches on fundamental personal interests in life, health, and liberty.” The court proclaimed that such “interests have always had a special claim to judicial protection, in comparison with the economic interests at stake in a ratemaking or licensing proceeding.”

It was not coincidental that such words appeared in an opinion vindicating the claims of a prominent environmental organization, which sought to ensure implementation of regulatory requirements. In a sense, the court’s approach could be seen as an effort to apply its own version of the famous footnote 4 of the Carolene Products case, suggesting that the judicial role should be heightened when politically vulnerable groups were at risk. The approach was a clear administrative law analogue to constitutional developments, associated above all with the Warren Court, that had an unmistakably progressive “tilt.” We might even see the court of appeals in the relevant period as a kind of junior-varsity Warren Court, enlisting principles of administrative law to protect preferred rights (“fundamental personal interests”) and to correct for democratic failures (“Therein lies the judicial role”).

The implicit political science behind the court’s agenda, emphasizing the alleged organizational problems of dispersed interests, was not implausible, and it had some conceptual and empirical foundations. But it was far from self-evidently correct, and even if correct, it did not obviously justify stringent judicial oversight. The more immediate problem with the lower court’s agenda, however, was that it was inconsistent with the governing law. “Fundamental personal interests in life, health, and liberty” may or may not deserve some kind of priority over “economic interests,” but it is a separate question whether judges may legitimately enforce any such priority. The APA did not permit judges to offer greater procedural protection to their preferred types of interests, barring a constitutional due process problem. The Supreme Court found it necessary to reassert control over administrative law, rebuking the lower court for its presumption -  most dramatically in Vermont Yankee itself, which held that hybrid procedural requirements were lawless impositions with no basis in the APA or other recognized legal sources. That holding was accompanied by a highly unusual passage, suggesting that the Court was aware that a more general principle was at stake:

Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to re-examination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime courts should perform their appointed function.

Since then, it has been observed that some lower-court doctrines have seemed to conflict with Vermont Yankee, and perhaps with the more general principle as well, and scholars have periodically called for a “Vermont Yankee II,” or III or IV, to correct lower-court holdings that seem to defy the Court with respect to discrete issues of administrative law, above all by imposing procedural requirements that lack standard legal justifications.

Yet the Court has not roused itself to police the D.C. Circuit in any systematic way, apart from ad hoc and relatively small-bore interventions, not generally involving large-scale administrative law doctrines. From the Court’s point of view, this is a plausible allocation of resources, corresponding to a similar lack of intervention during the pre-Vermont Yankee period (notwithstanding the DC Circuit’s frequently irreverent approach to the APA and the Supreme Court’s precedents). And for most of the post-Vermont Yankee period, there has been no systematic lack of fidelity by the D.C. Circuit that would warrant a rebuke.

In the past several years, however, administrative law has entered a world that is, in important respects, the mirror image of the world before Vermont Yankee. The prioritizing of “fundamental personal interests” over “economic interests,” at least as the court understood those terms in the 1960s and 1970s, has been turned upside down, and in part by an identifiable understanding of the dynamics of the political process. Today, a determined subset of judges on the D.C. Circuit explicitly hold a distinctive view - articulated both in extrajudicial writings and in judicial opinions - that has found its way into administrative law decisions, sometimes with questionable support in the existing legal materials and sometimes with no support whatsoever. According to that view, political distortions yield policies that depart unjustifiably, and harmfully, from the baselines set by market ordering. These policies violate liberty, properly understood, and also threaten to reduce social welfare. As a corrective, the judges have articulated an approach that we call libertarian administrative law. This approach seeks to use administrative law to push and sometimes shove policy in libertarian directions, above all through judge-made doctrines that lack solid support in the standard legal sources.

In light of the writings of some of the relevant judges, libertarian administrative law may be understood as a second-best enterprise - an attempt to compensate for perceived departures, during the New Deal, from the baseline of the original constitutional order. We can understand libertarian administrative law to be inspired by a particular, highly controversial account of the Constitution – one that does not fit well with the Supreme Court’s current understanding of the founding document. A central assumption in the argument is that the original constitutional order, as these judges envision it, was far more protective of liberty and of market baselines, and thus less hospitable to politically-distorted governmental decisionmaking, than is the current state of constitutional law. Libertarian administrative law, then, emerges from a long-term programme to restore the “Lost Constitution” - or at least to approximate that goal as closely as possible.

Our principal aims here are descriptive and doctrinal. We seek first to establish the existence of this libertarian administrative law, to sketch its contours, and to elicit the justifications that its proponents offer. This descriptive enterprise, we hope, will be valuable without regard to normative controversies. Those who are inclined to favor libertarian administrative law, and to hope that it will flourish, will doubtless approve of some, many, or all of the doctrinal developments that we catalogue.

Our evaluative comments are offered not from the external standpoint of (say) economics, political science, philosophy, or public choice theory, but from the internal standpoint of administrative law itself. The main problem with libertarian administrative law is that it lacks sufficient respect for the legal sources, emphatically including controlling precedents of the Supreme Court - in some cases quite recent, clear, and bipartisan precedents. Across a number of doctrinal contexts, panels of the D.C. Circuit have acted aggressively to reshape administrative law in ways that are not easy to square with the APA and governing precedents of the Supreme Court. In some cases, the D.C. Circuit can claim some (but not strong) support in those precedents; in other cases, it is operating very much on its own. At the same time, many of the resulting rulings are difficult for the Court to police -- as was progressive administrative law in the years before Vermont Yankee. In its ambitious forms, libertarian administrative law, like its progressive doppelganger, is best seen as a proposal for large-scale legal change, rather than a valid interpretation of current legal sources.

For reasons that we will elaborate, we believe that any significant movement in either progressive or libertarian directions would be in grave tension with the foundations of the APA and of administrative law, properly understood -- and hence that the Supreme Court would be properly criticized if it were to embrace any such movement. American administrative law is organized not by any kind of politicized master principle, but by commitments to fidelity to statute, to procedural regularity, and to nonarbitrary decisionmaking. These commitments will sometimes result in rulings that libertarians will approve, and sometimes in rulings that libertarians will deplore. Any sustained effort to engraft libertarian thinking, or some kind of progressive alternative, onto the legal materials will be unfaithful to those materials. But our principal goal here is narrower. While we will elaborate and defend a general claim about political ideology and administrative law, our major aim is to demonstrate that in some important rulings, the D.C. Circuit has been moving in libertarian directions without sufficient warrant in existing sources of law, including the decisions of the Supreme Court itself. While most of the decisions that we discuss cannot quite be described as lawless, some can, and as a whole they go beyond the boundaries of appropriate interpretation of the law as it now stands. They do so with an identifiable ideological valence.

Part I provides a brief discussion of the context, with reference to the separate opinions of the relevant D.C. Circuit judges and their extrajudicial writings on constitutional questions. Part II, the heart of the paper, describes and illustrates libertarian administrative law in six doctrinal contexts: nondelegation, commercial speech, rulemaking procedure, arbitrariness review, standing, and reviewability. Part III offers a more general evaluation of the programme of libertarian administrative law and, above all, its fit with the existing structure of American administrative law. The fit, we argue, is not good, no matter how charitably we treat the decisions. Overall, and in its ambitious forms, libertarian administrative law is best understood as part of a movement - the “Constitution in Exile” or “Lost Constitution” movement - aimed at changing the framework of American public law more broadly. We suggest that on a suitable occasion, the Court should excise libertarian administrative law root and branch, by issuing a modern version of Vermont Yankee, requiring the D.C. Circuit to hew more closely to the APA and its own precedents, and also reminding lower courts that administrative law lacks any kind of ideological valence. As we will see, the Court has recently granted certiorari in two cases – one involving the so-called “nondelegation doctrine,” and one involving interpretive rules – that jointly or severally provide a suitable occasion for repudiating libertarian administrative law.

Valuing the NZ Census

The New Zealand government has published Valuing the Census: A report prepared for Statistics New Zealand which quantifies the benefits to New Zealand from the use of census and population information. It is of interest to statisticians, economists and privacy specialists.

The report states

Statistics New Zealand has commissioned this report to estimate "what dollar value can we place on the benefits to New Zealand gained through the use of census and population statistics information?" This work fits within a much wider programme of engagement with census users to inform relative priorities, and will also provide much of the benchmark material from which an evaluation of the net benefits from changes to census frequency and/or collections methods can be made.

The Executive Summary indicates that

This report provides estimates of the dollar value to New Zealand gained through the use of census and associated population statistics information. The conclusion is clear: despite significant difficulties in developing a rigorous quantification, it is reasonable to conclude that the census delivers benefits well in excess of its direct costs.

The valuation task is complex, reflecting the fact that currently internationally there are no directly applicable models or approaches, and that there are costly hurdles in place to obtain precise estimates of user values for the information. As a consequence, this report utilises a range of approaches to valuation.

What does the census provide? The census provides information on people in New Zealand: it has surveyed the entire population every five years since 1881. As such it provides both a comprehensive picture and a linked time series dataset that has no direct comparators. In valuation terms this poses challenges, as the census' existence (undergirded by the statutory requirement for returns by all New Zealanders) and its generally free dissemination of results means that no market prices exist for direct outputs and that there has not been investment in any tool which closely mirrors the census. Indeed, a frequent response from users during this review is that if the census did not exist, key users would have worked together to create as near a replacement as possible. Uses of the census are diverse, with many applications that are indirect and/or embedded in other products and tools. For information at the level of overall population count with demographic characteristics, census data underpin long-term forecasting such as New Zealand's long-term fiscal position and the requirements for growth related infrastructure and housing. At the more detailed level utilising the Census' more detailed linkage to detailed demographic characteristics for defined geographic meshblocks allows firms and government agencies to identify target groups or, especially when coupled with the historical data, to better understand patterns and relationships such as achievement and earnings for Maori young people. Less direct linkages arise from the census' use in determining the frame for many other non-demographic surveys.

Reliable population based data and projections provide higher level benefits through the reduction in uncertainty for longer-term decisions and investments, and also provide an analytic basis for development of policy choices in some areas which otherwise involve difficult political choices. In an era of growing dynamism in family structures, the census provides one of the main tools to identify those patterns, in turn informing policy, service delivery, and investment choices.

Benefit quantification. As a consequence of the wide range of data uses and the complexity of valuing non-market transactions, this report gathers insights into possible valuations using a wide range of approaches. The core issue explored is in effect a valuation of the extra precision that census data provide over the multitude of other more partial measures. While only a few main areas of use are examined (as more detailed costing would be costly), the report also provides some guidance on the relative values in areas of use.

The main benefit areas quantified are:

• the benefits from more accurate health funding allocations as funding is delivered more accurately to more needy areas; 

• reductions in the costs associated with underutilised fixed capital investments, in both the public and private sectors, because of better information on their timing and location (infrastructure funded by central and local government, aged care, retail); 

• benefits from improved precision and insight in policy making in a range of government agencies, especially for Maori and vulnerable groups; 

• improvements in the value added by a range of firms which use census data in a wide variety of analyses provided to government and private sector firms; and 

• gains from improved survey accuracy and reductions in sample size for private sector market research companies, and StatisticsNZ in respect of a range of other non-census products.

Overall benefit to New Zealand. Benefits are typically estimated at an annual level and then summed over a 25 period to provide a net present value. Given the difficulties in assessing values for many benefits, this report provides a set of reasonable ranges in which a value is likely to lie for some key benefit areas. A cost for carrying out the census, including compliance costs, has been deducted from these benefits to provide an overall net present value. Given then that the values included in the table represent only some eleven major areas of benefit out of the much larger range of unquantified benefits discussed, it seems reasonable to conclude that a lower bound for the Census' value to New Zealand is in a range as set out below ...

Using the most generally applicable discount rate of 8%, this suggests a net present value of close to $1 billion for the benefits to New Zealand gained through the use of census and population statistics information over the next 25 years. In other words, every dollar invested in the census generates a net benefit of five dollars in the economy. This value estimate though is not at the level of rigour applicable to assets recorded on an organisation's balance sheet. It does not include many of the uses discussed but not quantified.

There are many other direct and indirect uses of the census for which quantification has not been attempted but which are clearly highly valuable. The census is used for instance to determine the electoral boundaries for Maori seats, it forms the basis for the NZ deprivation index (widely used in a range of research and policy work aimed at helping New Zealand's most vulnerable people) and underlies work on the Long-Term Fiscal model which informs tax and expenditure policy choices affecting the next 10-50 years.

Indirect uses are also widespread. Economic models rely on robust demographic analysis. Another less obvious application is the use of census data as part of modelling work underlying the calculation of sustainable pathways for Regional Councils and the ecological modelling used to estimate potential future environmental loads and impacts. The difficulty and/or cost of identifying values on these mean it is not cost-effective to develop further, but a consequence is that the overall value of the census to New Zealand will be significantly above the quantified benefits outlined in this report.

Looking forward: use of this valuation. This report clearly indicates that the census provides value to New Zealand well in excess of its cost, but it does not address the issue of whether the current collection and analysis system provides the best value-for-money. It could be that net expected value might be greater if either some additional accuracy or new outputs could be produced (even involving an increased cost), or a combination of changes to the collection and processing systems along with changes to the types and quality of outputs produced was adopted.

This would require a much more detailed set of analyses, for which the information in this report provides a starting platform. This report provides guidance on some areas of high value, some indications of relative value, and identification of many key users which enables more targeted exploration for further stages of census development. For instance, consideration of a move in the timing of censuses to 10 yearly could be investigated on the basis of the difference in value (accuracy and timeliness) to users in key areas, weighed against the expected reduction in costs. This step will require clearer details of the potential changes in methodology and their consequences in terms of accuracy and cost than are currently available.