Cheating

The controversial NSW Independent Commission Against Commission has released a 36 page paper on Learning the hard way: managing corruption risks associated with international students at universities in NSW.

ICAC states that the paper seeks

to examine the broader factors at play that are contributing to the challenges currently being faced by universities in NSW. 

These factors include:

• the competitive nature of the international student industry 
• the capabilities of the universities to engage in such a business 
• market strategies adopted by universities 
• management of intermediaries 
• internal intertwining of business development and compliance functions. 

ICAC also seeks "to share the changes that various universities have adopted that go some way to ameliorating the situation",  including strategies for

• reducing credential fraud 
• raising English-language literacy scores 
• managing the tension between the compliance and business development functions within universities. 

The paper states

Chapter 1 sets out the highly competitive nature of the international tertiary education industry and how that environment has driven universities in NSW to accept students with lower academic capabilities in order to meet revenue needs. Some students consequently struggle to pass because of the gap that has developed between student capabilities and university academic demands. This has become conducive to corruption, and can lead to cheating, inducements to academics, academic exploitation of struggling students, and internal pressures to turn a blind eye to academic misconduct or to allow students to pass who would otherwise fail. 

Chapter 2 examines the challenges for universities in NSW in developing effective market strategies. The internal operational arrangements of those universities – as loosely coupled organisations – have translated into a somewhat ad hoc approach to market choice. Individual academics have tied universities in NSW to markets based on personal contacts and interests. Even after international student offices were established, market strategies continued to focus on revenue with cost and risk peripheral considerations. The result was often that the universities were operating in a large number of often corrupt markets, seeking revenue without consideration of the cost of managing students with low capabilities. The risks associated with document fraud and false English-language proficiency test results are often seen as something that can be resolved during admission screening. 

The Commission found that some universities had benefitted from including explicit cost and risk considerations in market decisions by: 

• restricting the ability of academics to enter into agreements on behalf of the university 

• understanding the full-cost profile of international students, particularly the ongoing and significant cost of managing the gap between student capability and academic demands 

• assessing risk in markets and using this assessment to develop organisational responses tailored to the specific market risks 

• leveraging university strengths, where possible, to develop niche international operations capable of attracting higher-capability students.

Chapter 3 addresses the challenges of operating in numerous markets through large numbers of intermediaries. Rather than concentrating on dominance in a small number of markets, universities in NSW frequently spread themselves across many markets. The distribution costs and development of capabilities in so many different markets mean intermediaries are the only feasible option. In some cases, local intermediaries have significant market power, with the option to divert students to other universities if there are onerous demands placed on them by any one university. 

Universities in NSW are, therefore, limited in their ability to enforce contracts, demand audit access or demand tighter checking of students. At the other extreme, some universities have hundreds of small education agents spread across many markets, making the logistics of oversight difficult. 

The risk of students with false credentials being put forward by the agents is high, with all universities in NSW experiencing misconduct by some of their agents. Some universities in NSW have taken steps to improve the situation by: „ 

• altering incentive structures applied to agents to better encourage the provision of quality students „ 

• reducing the number of overseas agents „ 

• increasing due diligence on and monitoring of agents, particularly focusing on the use of fine-grained data analysis of student issues „ 

• forming closer relationships with trusted agents „ 

• developing partnerships with overseas institutions as an alternative to agents. 

Chapter 4 deals with the internal tension between a university’s academic standards compliance function and its business development function. 

Good business practices dictate that, where business development activities are likely to cause direct violation of the rules and goals of an organisation, the compliance function is separated from the business development function. Further, where the business development function is heavily incentivised, the compliance function is commensurately strengthened. 

This has generally not been the case in universities in NSW. Compliance and business development have been intertwined with targets and incentives tied to the development role without matching improvements in the compliance role. The effect is to encourage the admission of less academically capable students, to turn a blind eye to their academic misconduct, and to find ways to pass these students. 

While few universities in NSW have addressed the broader issue of separation of compliance and business development, some actions that have been taken include: 

• integrating the international student office’s information technology (IT) systems with the university’s systems to ensure that the international student office can be held accountable for the quality of students entering the university 

• matching the strength of the university’s academic standards compliance system with business development risks (for example, appointing an independent representative from another university to sit on academic standard committees or auditing of course standards by well-regarded Australian and overseas academics) 

• separating the compliance function from the business development function, as feasible (for example, moving admission out of international student offices that are responsible for marketing and recruitment, and limiting the impact of international student numbers on faculty budgets).

ICAC notes that

Universities in NSW find themselves facing what is referred to as a “wicked problem”. 

There is no way around the fact that some of the international students the universities can attract will struggle to meet university standards; or that the universities are reliant on their revenue but limited in how far they can lower standards. There is no simple solution that will effectively eliminate the gap between the capabilities of the students and the academic demands of the universities, and no easy way to eliminate the corruption pressures created by the gap. 

According to information provided to the Commission, universities in NSW are fully aware that the international student industry is fraught. For almost 30 years, they have experienced problems such as fake qualifications, questionable agent behaviour, visa-driven enrolments, nepotism in offshore campuses, loss of intellectual property to partners, unwitting involvement in offshore bribery, cheating and plagiarism, academics exploiting students and students offering inducements to staff. These problems have been costly and, when made public, embarrassing. 

While the central tension between student capability and academic demands cannot be completely resolved, there are actions that can be taken to reduce the gap and the pressures created by it. For example, since universities in Australia began recruiting full-fee paying international students, some have been:

• learning from the risks created and have dealt with them by reducing the number of agents to more manageable levels

• shifting to partnerships where there are mutual interests 

• increasing due diligence of intermediaries 

• changingagent incentives to align motivations with university interests 

• changing internal business incentive arrangements to separate compliance and revenue generation 

•  centralising the recruitment activities of the universities to improve the way this function is overseen.

Elections

The Australian Parliament's Joint Standing Committee on Electoral Matters has released The 2013 Federal Election: Report on the conduct of the 2013 election and matters related thereto [PDF].

The Committee's recommendations are

Management of ballot papers

R1 (paragraph 2.95) The Committee recommends that for future elections, the Australian Electoral Commission publish information on its website about ballot paper counting and handling issues on a regular and transparent basis during the count process.

R2 (paragraph 2.118) The Committee recommends that the Australian Electoral Commission report to the Joint Standing Committee on Electoral Matters every six months on the implementation of recommendations made by the Keelty Report and by the Australian National Audit Office reports in response to the events of the 2013 federal election.

3 Workforce management, accountability and corporate structure

R3 (paragraph 3.54) The Committee recommends that the Australian Government consider and assess the formal separation of the roles of state manager and Australian Electoral Officer involving: the appointment of Australian Electoral Officers independent of the Australian Electoral Commission; and the assigning of any non-election duties of Australian Electoral Officers to the Electoral Commissioner or other appropriate officer.

R4 (paragraph 3.64) The Committee recommends that the Australian Electoral Commission formalise all state manager positions to report on all election and roll management programme deliverables directly to the First Assistant xix Commissioners responsible for election and roll management programme business in order to ensure consistency and accountability. The Committee also recommends that all existing state managers be assessed for continued suitability in their positions, with new contracts to be drawn up with clear performance expectations and disciplinary and termination triggers stipulated as terms of employment.

R5 (paragraph 3.140) The Committee recommends that the Australian Electoral Commission develop a set of formal qualifications/certification for polling officials.

R6 (paragraph 3.142) The Committee recommends that the Australian Electoral Commission prioritise development of appropriate changes to existing systems, or new systems, to allow for the compulsory recording and capture of data related to Division-level face-to-face training for polling officials.

R7 (paragraph 3.144) The Committee recommends that the Australian Electoral Commission ensure that Officers-in-Charge of polling places be given a list of training completion for all staff reporting to them.

R8 (paragraph 3.160) The Committee recommends that the Australian Electoral Commission develop a full set of relevant key performance indicators for all senior service delivery staff, to be measured and reported to the Parliament as part of federal election inquiry reporting.

R9 (paragraph 3.194) The Committee recommends that the Australian Electoral Commission commence a corporate culture, leadership and performance measurement reform programme. This programme should be formulated in consultation with the Australian Public Service Commission and a suitably qualified organisational culture and management consultant, gained through an open market tender. This programme should then be overseen by a committee comprising: the Electoral Commissioner;  the Auditor-General;  the Australian Public Service Commissioner; and  an appropriately qualified private industry or academic subject matter expert on organisational culture and performance management.

4 Election preparation and the pre-poll period

R10 (paragraph 4.28) The Committee recommends that the Commonwealth Electoral Act 1918 be amended to require a confirmation to be sought and received from a person prior to their enrolment being added or updated on the electoral roll due to any Federal Direct Enrolment or Update activity.

R11 (paragraph 4.72) The Committee recommends that at the next meeting of the Electoral Council of Australia and New Zealand, the Electoral Commissioner continue to engage with the state electoral commissions regarding normalisation and harmonisation of electoral roll use and purpose.

R12 (paragraph 4.120) The Committee recommends that section 200BA of the Commonwealth Electoral Act 1918 and section 73AA of the Referendum (Machinery Provisions) Act 1984 be amended to provide that notification of pre-poll locations, or potential locations, be made directly to candidates if publication is to be later than two days before the first pre-poll voting day.

R13 (paragraph 4.145) The Committee recommends that the Australian Government examine the future viability of the broadcast media blackout.

Election day and the count

R14 (paragraph 5.12) The Committee recommends that section 206 of the Commonwealth Electoral Act 1918 and section 20 of the Referendum (Machinery Provisions) Act 1984 be amended so as to allow the Australian Electoral Commission to provide a suitable pen for use by electors.

R15 (paragraph 5.26) The Committee recommends that the Australian Electoral Commission clearly set out on its website the requirements for satisfying subsection 194(1A) of the Commonwealth Electoral Act 1918 and subsection 65(1A) of the Referendum (Machinery Provisions) Act 1984 by overseas electors who are unable to satisfy the ‘authorised witness’ requirements of those sections.

R16 (paragraph 5.46) The Committee recommends that, in areas with a significant Indigenous population, the Australian Electoral Commission consult with local Indigenous groups to ensure the suitability of polling places and set targets for the employment of Indigenous polling officials.

R17 (paragraph 5.84) The Committee recommends that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to introduce the requirement that:

• voters must present a form of acceptable identification to be issued with an ordinary pre-poll or election day vote. Acceptable identification should be defined as those acceptable at the 2015 Queensland state election (or the closest federal equivalent); 

• where voters cannot provide acceptable identification they must be issued with a declaration vote; and 

• these declaration votes will be checked at preliminary scrutiny to ensure that the claimed enrolled address matches the electoral roll. If not, then the vote should be rejected.

The Committee also recommends that the Australian Electoral Commission be appropriately resourced to enable this change to be made prior to the next federal election and for a suitable education campaign to be undertaken to inform voters of the new requirements.

R18 (paragraph 5.124) The Committee recommends that the conduct of recount provisions at section 279B and elsewhere within Part XVIII of the Commonwealth Electoral Act 1918 be reviewed, amended and separated in order to provide clearly separated recount provisions and processes for both House of Representatives and Senate recounts. Additionally, any other relevant references to recounts within the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 should be amended to ensure consistency.

R19 (paragraph 5.136) The Committee recommends that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to ensure that:

• the rules governing the role of scrutineers during both the scrutiny and the re-count of ballot papers during an election or referendum are harmonised; 

• all scrutineers for a candidate, party or other appointee may only object to a ballot paper once during the original scrutiny, once during fresh scrutiny, and once during a re-count; 

• the role of scrutineers in the investigation of prematurely opened ballot-boxes is clearly codified in section 238B; and 

• political party officials or candidates are able to appoint scrutineers on behalf of all their party candidates in order to allow for the oversight of both House of Representatives and Senate counts or recounts with the one appointment.

R20 (paragraph 5.164) The Committee recommends that the Australian Electoral Commission investigate the early procurement of appropriate premises in each state and territory for central ballot paper scrutiny and election activity with a high level of security and appropriate facilities and infrastructure.

6 Electoral cycle issues

R21 (paragraph 6.66) The Committee recommends that section 290 of the Commonwealth Electoral Act 1918 be amended to allow for the deadline for the nomination of candidate agents to be one week after the close of candidate nominations.

R22 (paragraph 6.86) The Committee recommends that the Australian Electoral Commission hold regular by-invitation forums, at appropriate points in each electoral cycle, with the federal directors and registered officers of political parties in order to achieve improved engagement on relevant legislative, policy and procedural matters.

R23 (paragraph 6.116) The Committee recommends that the Australian Electoral Commission consider undertaking, in consultation with the Joint Standing Committee on Electoral Matters, a wholesale review of the internal consistency and operational adequacy of the Commonwealth Electoral Act 1918 in order to ensure that this Act is a cohesive, effective and contemporary piece of legislation that facilitates best practice election delivery. Such a review would also need to proceed in tandem with progressing the consolidation and harmonisation of the Referendum (Machinery Provisions) Act 1984 with the Commonwealth Electoral Act 1918 so as to create one consolidated Act responsible for federal elections and referenda.

R24 (paragraph 6.118) The Committee recommends that adequate resourcing be allocated and prioritised to fund and support the implementation of the recommendations contained in this report. 

Stigma and occupational clustering

'Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations' by Andras Tilcsik, Michel Anteby and Carly R. Knight in (2015) XX Administrative Science Quarterly 1–36 comments

 Numerous scholars have noted the disproportionately high number of gay and lesbian workers in certain occupations, but systematic explanations for this type of occupational segregation remain elusive. Drawing on the literatures on concealable stigma and stigma management, we develop a theoretical framework predicting that gay men and lesbians will concentrate in occupations that provide a high degree of task independence or require a high level of social perceptiveness, or both. Using several distinct measures of sexual orientation, and controlling for potential confounds, such as education, urban location, and regional and demographic differences, we find support for these predictions across two nationally representative surveys in the United States for the period 2008–2010. Gay men are more likely to be in female-majority occupations than are heterosexual men, and lesbians are more represented in male-majority occupations than are heterosexual women, but even after accounting for this tendency, common to both gay men and lesbians is a propensity to concentrate in occupations that provide task independence or require social perceptiveness, or both. This study offers a theory of occupational segregation on the basis of minority sexual orientation and holds implications for the literatures on stigma, occupations, and labor markets.

 The authors note

Occupational segregation—the systematic distribution of people across occupations based on demographic characteristics—is a pervasive and consequential phenomenon in contemporary organizations. The concentration of members of a demographic group, such as women or racial minorities, in certain occupations profoundly shapes individuals’ social and economic prospects (England, Chassie, and McCormack, 1982; Reskin, 1993; Mandel, 2013).

Likewise, occupational segregation has important consequences for organizations, such as narrowing the talent pools from which employers might hire and shaping the demographic profile of different positions and professional groups within organizations (Dobbin et al., 1993; Kalev, Dobbin, and Kelly, 2006; Barbulescu and Bidwell, 2013; Bidwell et al., 2013).

The occupational segregation of gay and lesbian workers — "one of the largest, but least studied, minority groups in the workforce" (Ragins, 2004: 35) — presents an unresolved puzzle for researchers. Since the late nineteenth century, numerous scholars have noted the unusually high concentration of gay or lesbian workers in certain occupations (e.g., Ellis, 1897; Baumle, Compton, and Poston, 2009), but systematic explanations for this phenomenon remain elusive. This question is particularly puzzling because, at first glance, these occupations seem to have little in common, ranging from some blue-collar trades (e.g., various repairers and mechanics) to certain service jobs (e.g., flight attendants and massage therapists) and white-collar occupations (such as psychologists and postsecondary teachers).

To date, the most consistent account of this phenomenon has been that lesbian and gay workers are often found in occupations that are traditionally associated with the opposite sex (Baumle, Compton, and Poston, 2009). Although predictions based on this observation account for some of the important patterns in gay and lesbian occupational segregation, they leave a great deal of variance unexplained. Recent U.S. data suggest that nearly half of gay men are actually in occupations in which men are the majority of workers, and twothirds of lesbians work in female-majority occupations. The tendency of lesbians and gay men to cross occupational gender lines also cannot account for professional fields in which both lesbian and gay workers are overrepresented, such as psychology, counseling, law, and social work (Baumle, Compton, and Poston, 2009). While numerous other explanations have also been proposed for gay and lesbian occupational patterns, many of these apply to just a small set of occupations and are relevant to either gay men or to lesbians (e.g., Be´ rube´ , 1990, 2011; Chauncey, 1994), rather than capturing the drivers of segregation common to both populations.

To provide a more comprehensive explanation for lesbian and gay occupational segregation, we conceptualize minority sexual orientation as a potential source of concealable stigma (Smart and Wegner, 1999; Ragins, 2008), that is, a socially stigmatized characteristic that is not readily apparent to observers. We draw on Goffman’s (1963) classic insight that a principal challenge for individuals with concealable stigma is to manage information about their stigmatized status in social interactions. This need for stigma management — both at work and beyond — is likely to have important consequences for occupational segregation. In particular, it might lead to an overrepresentation of gay and lesbian workers in occupations that provide a high level of task independence (i.e., freedom to perform one’s tasks without substantially depending on others) or require a high level of social perceptiveness (i.e., accurate anticipation and reading of others’ reactions), or both.

Task independence would allow these workers to manage information about their stigmatized status more effectively in the workplace, while also mitigating the risks associated with disclosure. Social perceptiveness is likely to emerge as an important social adaptation or coping skill for many gay and lesbian people at a relatively young age. Addressing the dilemma of disclosure versus concealment across social situations requires sensitivity in order to read and anticipate others’ reactions (Radkowsky and Siegel, 1997; Pachankis, 2007), which in turn are valued behaviors in occupations that require social perceptiveness.

We test our predictions with two distinct population samples and multiple measures of sexual orientation. Our first data source is the 2008–2010 American Community Survey (ACS), which provides a nationally representative sample of nearly five million people in the United States and allows us to systematically identify individuals living with a same-sex partner. While the size and quality of this sample offer unique advantages, one limitation is that these data capture only those lesbian and gay workers who are members of a cohabiting same-sex couple. Thus we also test our hypotheses on a second sample, the fourth wave of the U.S. National Longitudinal Study of Adolescent Health, collected in 2008–2009. Although this sample is restricted to respondents between the ages of 26 and 31, it effectively complements the ACS data by providing indicators of sexual orientation independent of partnered status. We combined both samples with data from the Occupational Information Network (O*NET), the primary source of survey-based information about the characteristics of occupations in the U.S. economy (Liu and Grusky, 2013). These data allow us to test the hypothesis that common to both gay men and lesbians is a propensity to concentrate in occupations that provide task independence or require social perceptiveness, or both.

They comment further

Building on Goffman’s (1963) classic insights into concealable stigma, we identified two patterns that underlie the occupational landscape for gay and lesbian workers. Fundamental to both of our hypotheses is the idea that occupational segregation is shaped by gay and lesbian workers’ adaptation to potential discrimination and the dilemmas of disclosure that they face both in the workplace and beyond. Our results suggest that this framework can parsimoniously explain a large set of seemingly random patterns across the occupational spectrum. While gay men are more likely to be in female-dominated occupations than are heterosexual men, and lesbians are more highly represented in maledominated occupations than are heterosexual women, common to both gay men and lesbians is a tendency to concentrate in occupations that provide task independence or require social perceptiveness, or both.

A focus on social perceptiveness and task independence can also explain many previous observations about lesbian and gay jobs. As noted earlier, for example, one finding that a sex-typing perspective could not account for is that both gay and lesbian workers are often concentrated in professions that focus on creativity, psychology, counseling, law, and social work (Baumle, Compton, and Poston, 2009). Clearly, working in these fields requires a non-trivial degree of social perceptiveness, perhaps most obviously in the case of psychology, counseling, and social work, but also in creative or artistic fields, in which perception of social conditions and audiences plays an important role. Some of these fields (e.g., creative jobs and psychology) also tend to provide a relatively high level of task independence.

Similarly, many artistic, service-oriented, and care-focused occupations commonly associated with gay men require an above-average level of social perceptiveness. Awareness and anticipation of others’ reactions and mental states — whether they are patients in a healthcare setting, passengers on a plane, audience members in a theatre, or students in a classroom — are relatively important components of many such jobs. Likewise, the (only partially accurate) observation that lesbians might be drawn to highly ‘‘masculine’’ bluecollar work can be explained in a more nuanced and empirically accurate way if one notes that lesbian workers are especially likely to be found in those maledominated, blue-collar jobs that provide an above-average degree of task independence. It is quite striking, for example, that four of the five male-majority occupations with the highest proportion of lesbian workers are various repairers and installers with an above-average degree of task independence (table 2). Thus rather than simply reflecting an innate sensibility of gay men for artistic or caring jobs, or a natural attraction of lesbians to ‘‘masculine’’ jobs, these occupational patterns might be more effectively understood in terms of social perceptiveness and task independence, factors that reflect social adaptation to concealable stigma in the workplace and beyond.

The notion that social perceptiveness due to the need for stigma management plays a key role in occupational segregation suggests implications for both the past and the future of gay and lesbian work. For example, the labor historian Berube’s (2011: 265) research into the gay labor movement led him to ask, ‘‘How do people find queer work and how do they make these jobs their own?’’ By ‘‘queer work,’’ Berube´ meant work that is often performed by, or has the reputation of being performed by, homosexual men and women. His question stemmed from, for example, the observed concentration of gay men in a handful of military jobs during World War II and in steward jobs on ocean liners after the war. By identifying some possible dimensions of ‘‘queer work,’’ our study’s findings start to answer Berube’s question.

Our study suggests, for example, that the ‘‘special talents’’ that some observers attributed to gay soldiers during World War II might not be fully imaginary (Be´ rube´ , 1990: 57). Being a hospital corpsman, a navy yeoman, or a chaplain’s assistant—jobs in which gay men were believed to congregate in the military—may have required a higher degree of social perceptiveness than many other military occupations. Attending to wounded soldiers’ medical and emotional needs, to navy officers’ clerical needs, or to soldiers’ religious comfort are tasks in which the understanding of others’ needs, reactions, emotions, and cognitive states is likely to play a non-trivial role. Similarly, social perceptiveness is likely to have been integral to the work of ship stewards, a servicefocused role involving frequent interactions with passengers. It is important to emphasize, however, that what earlier observers saw as a perhaps innate ‘‘special talent’’ we conceptualize as the result of social adaptation to concealable stigma.

One implication of this view is that, in the long run, the possible de-stigmatization of minority sexual orientation may weaken the relationships that we have documented. In particular, in societies that become more tolerant of same-sex relationships, the need for stigma management in everyday social interactions (Goffman, 1963) might fade over time. Intriguingly, as broader tolerance alleviates the intense and ongoing need for managing stigma-related information in everyday life, it might also lead to a relative ‘‘deskilling’’ of gay and lesbian workers with respect to social perceptiveness. Put otherwise, these workers might lose their distinctiveness (Anteby and Anderson, 2014). At the same time, the patterns that we observed are likely to remain in place for a significant period of time. Even if de-stigmatization took place rapidly, broad occupational patterns are slow to change because they continue to reflect earlier educational and career choices and because network-based mechanisms (such as homophily in job referrals) might also help maintain segregation patterns that had initially emerged as a response to stigmatization (see Marquis and Tilcsik, 2013).

Copcams

From a David Brooks op ed in the NY Times regarding 'cop cams' -

Cop-cams chip away at that. The cameras will undermine communal bonds. Putting a camera on someone is a sign that you don’t trust him, or he doesn’t trust you. When a police officer is wearing a camera, the contact between an officer and a civilian is less likely to be like intimate friendship and more likely to be oppositional and transactional. Putting a camera on an officer means she is less likely to cut you some slack, less likely to not write that ticket, or to bend the regulations a little as a sign of mutual care. 

Putting a camera on the police officer means that authority resides less in the wisdom and integrity of the officer and more in the videotape. During a trial, if a crime isn’t captured on the tape, it will be presumed to never have happened. 

Cop-cams will insult families. It’s worth pointing out that less than 20 percent of police calls involve felonies, and less than 1 percent of police-citizen contacts involve police use of force. Most of the time cops are mediating disputes, helping those in distress, dealing with the mentally ill or going into some home where someone is having a meltdown. When a police officer comes into your home wearing a camera, he’s trampling on the privacy that makes a home a home. He’s recording people on what could be the worst day of their lives, and inhibiting their ability to lean on the officer for care and support. 

Cop-cams insult individual dignity because the embarrassing things recorded by them will inevitably get swapped around. The videos of the naked crime victim, the berserk drunk, the screaming maniac will inevitably get posted online — as they are already. With each leak, culture gets a little coarser. The rules designed to keep the videos out of public view will inevitably be eroded and bent.

Privacy Economics

'The Economics of Privacy' by Alessandro Acquisti, Curtis R. Taylor and Liad Wagman "summarizes and draws connections among diverse streams of empirical and theoretical research on the economics of privacy".

The authors comment

Our focus is on the economic value and consequences of privacy and of personal information, and on consumers’ understanding of and decisions about the costs and benefits associated with data protection and data sharing. We highlight how the economic analysis of privacy evolved through the decades, as, together with progress in information technology, more nuanced issues associated with the protection and sharing of personal information arose. We use three themes to connect insights from the literature. First, there are theoretical and empirical situations where the protection of privacy can both enhance and detract from economic surplus and allocative efficiency. Second, consumers’ ability to make informed decisions about their privacy is severely hindered, because most of the time they are in a position of imperfect information regarding when their data is collected, with what purposes, and with what consequences. Third, specific heuristics can profoundly influence privacy decision-making. We conclude by highlighting some of the ongoing issues in the privacy debate.

Bureaucratic Convenience and Asylum Seeking

The Guardian notes that the Department of Immigration & Border Protection can unilaterally disclose to foreign governments the personal information of people who are refused asylum. That disclosure is for the purposes of  obtaining travel documents for asylum seekers who are involuntarily deported.

Disclosure isn't surprising but the Guardian item is of interest in opening up the procedures of the notoriously opaque Department. The disclosure is based on access under court proceedings to the Department’s manual regarding 'Returns and removals'.

The Guardian states  -

Australia has adopted a controversial practice of approaching foreign governments for travel documents for refused asylum seekers. The practice has raised concerns because the very fact an asylum seeker has applied for protection can give rise to a fresh asylum claim (known as a “sur place claim”) if the foreign government persecutes them for having sought asylum.

This is acknowledged in the removal manual, which states that “under no circumstances should they disclose any information indicating any previous PV [protection visa] applications (or any details of protection claims)”.

The Privacy Act prohibits the disclosure of personal information, but the manual says the department can get around this because the Migration Act “impliedly authorises” the department to pass on details to foreign governments to allow a person to be deported.

“Therefore, the disclosure of personal information for the purposes of obtaining a travel document would be permissible,” it says.

It also suggests the disclosure is legal if the asylum seeker has signed a form 1442i, which says that the department can contact foreign embassies and high commissions.

The policy generally adopts a view that removals can only occur once a claim for protection in Australia has been refused, but it contains several caveats.

The document reveals that:

• Removal officers can plan the removal of a person who is living in the community on a certain type of bridging visa. 

• A direction from the Family Court that an asylum seeker should have access to a child in Australia does not override the department’s obligation to remove the asylum seeker. 

• A request for ministerial intervention – which can allow an asylum seeker to relodge a protection claim with the minister’s permission – will be no barrier to involuntary deportation as long as it has the assent of the assistant secretary of the onshore protection division. 

• When asylum seekers make complaints to the Australian Human Rights Commission, Privacy Commissioner or Ombudsman the process of removal will be halted only on a “case by case” basis. 

• The Department reserves the right to override the rules preventing deportation if the person presents a risk of extreme harm to themselves or others, or where they have a history of “serial and vexatious litigation”. 

• The Department can refuse to allow a person being involuntarily deported to speak to a legal representative if it would “unduly delay or jeopardise” the removal.

Structuralist Legal Histories

'Structuralist Legal Histories' by Justin Desautels-Stein in (2015) 78(1) Law and Contemporary Problems comments

In this article’s contribution to the symposium Theorizing Contemporary Legal Thought, I inquire into some of the topic’s methodological difficulties. In particular, I suggest that, as the writing of contemporary legal thought is the writing of a kind of history, we ought to pay attention both to the special historiographical challenges we are likely to experience as well as those avenues that may better ease our passage into a telling of the “legal contemporary.” Ultimately, my argument is that, although it has been in the periphery for a generation, structuralist legal history may be an edifying way of usefully constructing a history of contemporary legal thought. 

But first things first. Perhaps you haven’t heard of contemporary legal thought. This could be because you already know it, only by another name, maybe the “new private law” or “new legal realism.” Or maybe contemporary legal thought is a mystery due to a temptation to look for analogies in other disciplines, like art history. If so, the idea of “contemporary art” may seem of little use, however, since we typically suspect legal history and art history to be very different things. Trying a different approach, you might wonder if contemporary legal thought is a meaningful category at all. Might it not be the same thing as the “modern” legal thought of the first half of the twentieth century? If not, and “modern” and “contemporary” have different meanings in legal history, what could they be? Falling further, you might even wonder whether “modern” has any stable meaning, much less a “postmodern” contemporary.

Interestingly, in whichever register we ask it, the question of contemporary legal thought has rarely been answered. One possible explanation for this lack is the balkanized state of legal studies in the United States, a condition in which judges, lawyers, and legal academics might operate in an intricately fragmented grid of expertise. From this point of view, when we imagine “law” what we envision is something like the law school faculty webpage, divided up into its disparate areas of experts. There are the business law experts, the civil rights experts, the constitutional law experts, the international law experts, and so on. In “normal” times, these departments of expertise are not understood as having much to do with one another. Moreover, the debates that go on within these areas among the experts themselves splinter the territory even further. The history of the legal disciplines, according to this balkanized view, is a history of shards. As Christopher Tomlins has suggested, “This is the scholarly world we live in now, a world of beauteous fragments that lacks a kaleidoscope, a world of noncausal relationality.”

Although there are sure to be any number of causes for our scholarly hermitry, I suspect that this “beauteous fragmentation” is partially a residue of the postmodernism that arrived at American law schools in the 1980s, and that it is this residue that now works as a block on our theorizing about contemporary legal thought. That is, one possible reason for our general lack of conversation about the “legal contemporary” is that we have arrived at a place in which it has become increasingly difficult to have such conversations. Poststructuralist views of law have yielded an orientation toward legal history whereby the idea of unities and cross-cutting “totalizations” have become increasingly suspect, and “grand narratives” about evolving periods of legal thought have gone out of fashion. But as the broad sweeps have been (appropriately) rendered problematic, legal historians have thrown the baby out with the bathwater, pushing the discipline to be ever more historicist, more contextual, more contingent, albeit more professionally accepted. To be sure, there was much wrong about the breadth of prestructuralist historiography, and it remains a curiosity how it managed for as long as it did.

The importance of theorists of the local and contingent operations of power and ideology as otherwise as different as Geertz and Foucault; the prominence of such theoretical terms (constantly redefined and contested) as hegemony, discourse, and identity, the multiple shifts from the global to the local, from the macro to the micro, and from structure to conjuncture and event in the distinctive intellectual practices of the era . . . are all both symptomatic and constitutive of these developments [in post-structuralist theory]. 

So, in many respects, the late-twentieth-century wave of critical historicism was a good thing. But with the vision of the microgrid of faculty expertise that followed the critique also came a blindness to our potential to usefully generate patterns of argument in so much of our legal language. Paralyzed by the new habit of seeking to establish discontinuities and ruptures, many legal historians turned away from these deeper digs for fear of committing the genuine errors of evolutionary functionalist historiography. I think, however, that as these patterns and structures have slipped into our disciplinary blind spots, we become less likely to get a glimpse of contemporary legal thought. Perhaps like you, I’m interested in seeing into these blind spots, but as we seek to do so we needn’t follow the old roads back to an outdated evolutionary functionalism, with its progress narratives and crass totalizations. The way is open back to a structuralist legal history—a way that generates intelligibility not through the postmodern elaboration of a never-ending series of social contexts, but through the construction of image and style, constrained by and operating through a conceptual structure. This structure is neither apodictically accountable, nor always slipping down the rabbit hole of context-dependent perception. Structuralist legal history, something quite other than late-twentieth-century “critical legal history,” presents a yet-unexplored way to get to contemporary legal thought.

Gone but not forgotten?

'The Right to Be Forgotten: Issuing a Voluntary Recall' (Indiana University Robert H. McKinney School of Law Research Paper No. 2015-13) by R. George Wright comments

 Recently, in Europe and elsewhere, some form of a “Right to Be Forgotten” in various internet and search engine contexts has been recognized. This Article contends, however, that for various largely practical reasons, no such broad-sweeping right should be adopted in the United States. More narrowly particularized defamation, privacy, confidentiality, and emotional distress claims, along with criminal record expungement statutes, jointly provide a better alternative path, especially when modified to address significant socio-economic class effects. Crucially, the superiority of narrower, particularized, contextual, and pluralistic approaches to the concerns underlying a “Right to Be Forgotten” flows from important systematic biases and asymmetries between persons seeking a de-linking or deletion of personal information on the one hand, and information aggregators such as Google on the other. ...

Given the evolving nature of the right to be forgotten, the focus below will not be on specific legal formulas, mechanisms, tests, or procedures. Instead, the focus will be on more basic underlying values, concerns, tendencies, experiences, patterns, risks, and costs. Controversial definitions of ideas such as privacy, autonomy, anonymity, and the public interest will be avoided as much as possible. The focus will instead be more practical. The argument below will rely not on dogmatic assertions about rights, but on a pragmatic sense of the inevitable basic problems in implementing such a right.

In the end, for pragmatic reasons, no broad European-style legal right to be forgotten should be adopted. Narrowly contextual particularized statutory and common law privacy, non- defamation, confidentiality, and emotional distress damages rights, along with criminal expungement statutes, jointly provide a better alternative path. Narrowly focused holdings and statutes can readily be modified to address significant socio-economic class effects.

Any broad-sweeping legal right to be forgotten, beyond such narrow, particularized, context-sensitive accommodations, is ultimately likely, for practical reasons discussed throughout below, to be ill-advised. The superiority of a narrow, particularized, contextual, and pluralistic approach to a right to be forgotten flows from practically significant systematic biases and asymmetries between individuals seeking de-linking or deletion of personal information on the one hand and information aggregators such as Google on the other.

Wright goes on to conclude -

a broad right to be forgotten thus involves distinctive practical problems associated with a substantial element of government paternalism. Such an argument could easily be further developed. The main focus of this Article, however, has instead been on the range of relevant and mutually reinforcing biases and asymmetries, and on related practical considerations more generally. Each of the reinforcing practical concerns raised above adds further pragmatic complications particularly to the operation of any broad-sweeping, generalized right to be forgotten. 

At an extreme, though, even pragmatic concerns for the risks, costs, and sheer workability of any broad legal mechanism unavoidably begin to merge with fundamental relevant moral and political principles. Dystopias, in the extreme case, may manifest the above problems of systematic and mutually reinforcing biases, unnecessarily severe asymmetries of information and motivation, and the resulting policy distortions and inefficiencies. Any such political or moral concern may seem irrelevant if we simplistically think of a right to be forgotten as the merely straightforward universal empowerment of individuals, and perhaps of small groups. But for every individual who is empowered by a legally enforced cleaning of the personal internet slate, many other individuals, disproportionately those who cannot easily afford the most productive internet searches, may lose realistic access to usable information without their knowledge or consent. One might argue in response that the lost information was authoritatively deemed to be outdated or irrelevant, at least for such purposes as the relevant decision maker was able to envision. We will not reiterate here the systematic biases and asymmetries that predictably tend to distort such determinations. Rather, the point here is that determining which items of information should be widely accessible is made not by an empowered individual, but, ultimately, by a government or a court that sets the criteria for search engine corporations and other private actors to follow. How comfortable we should be with a for-profit entity like Google making discretionary public policy decisions is certainly worth asking. But if the corporate decision rules are ultimately set in general terms by governments, it is unclear that individual persons are thereby distinctly empowered. 

In the end, it is certainly understandable that contemporary Europeans in particular, given the history of the twentieth century, would be especially anxious about personal privacy. But it is far from clear why the best response to nightmarish historic centralized governmental abuse of privacy is to entrust decisions as to the relevance and significance of information, in unforeseen contexts, to a few multinationals, and ultimately to centralized governments, rather than diffusely to the various more or less reasonable people who may be affected, positively or negatively, by how sensibly they respond to and discount the information in question. The exercise of discretionary authority to grant or withhold access to information, whether by one or more international profit-seeking entities or by centralized governments, where it is not systematically skewed as described above, may well tend to track the perceived interests of that decision maker. Those interests may not correspond to the interests of affected individuals or the broader public. ... 

The idea of a broad-sweeping right to be forgotten, in whatever form it is proposed, inevitably raises fundamental questions. It is tempting to try to make sound, broad legal policy by somehow pitting the value of informational privacy, however defined, against an equally vague and general right of access to information itself. A debate at that level of competing abstract rights, however, distorts the issues without encouraging genuine progress in understanding.  

The approach taken in this Article has, instead, focused on the systematic and mutually reinforcing patterns of biases and asymmetries likely, in practice, to distort in predictable ways the practical operation of any version of a generalized right to be forgotten. Some of the crucial biases and asymmetries reflect familiar psychologies, cognitive limits, incentives, and patterns of interests of persons and institutions, as recognized in common experience and supported by the available social science evidence. On this basis, this Article has instead recommended a range of better understood, fine-tuned, particularized, more contextualized common law and statutory privacy-oriented remedies, as continually amended in the interests of socio-economic fairness and equality. Given this more attractive alternative path, a broadly generalized right to be forgotten should be subject to a recall.

TPPA and patents

'What is Patentable under the Trans-Pacific Partnership? An Analysis of the Free Trade Agreement's Patentability Provisions from a public health perspective' by Burcu Kilic, Hannah Brennan and Peter Maybarduk in (2015) 40 Yale Journal of International Law comments

On October 16, 2014, WikiLeaks released a complete draft of the Intellectual Property Chapter of the proposed Trans-Pacific Partnership Agreement (TPP). The TPP is a controversial free trade agreement being negotiated behind closed doors by officials from Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam. The commonly understood objective of the agreement, under negotiation since 2006, is to lift trade tariffs and quotas between the negotiating parties. In reality, this agreement would set new rules for many non-trade issues, ranging from food safety to internet freedom, and rewrite important non-trade policy for all counties involved. In fact, only five of the TPP’s twenty-nine chapters cover traditional trade matters, such as tariffs or quotas.

One such non-trade chapter is the agreement’s text on intellectual property (IP) protection—a section that actually restricts rather than frees competition.

The United States’ most recent proposals for the TPP’s intellectual property chapter would require the majority of the negotiating parties to significantly alter the scope of their intellectual property laws — changes that would raise drug and crop costs, therein restricting access to affordable medicines and foodstuffs. For those nations that have already aligned their domestic laws with the TPP’s intellectual property provisions, this agreement would further ossify detrimental standards. This feature examines only one small—but important—piece of the TPP’s intellectual property chapter: the text’s provisions on patentability requirements. We argue that the patentability requirements set forth in the TPP could seriously harm public health and local farming practices in the negotiating countries. Patentability requirements are the conditions that an invention must meet to qualify for patent protection. These requirements can be separated into two different categories: subject matter requirements and substantive patentability requirements. In a given country, certain types of inventions cannot be protected by patent a priori because they relate to a subject matter that the country has excluded from patentability. For example, in some countries, plants are per se excluded from patentability. Accordingly, a patent application on a breed of cactus would be rejected because such an invention (a plant) is excluded from patentability. If a patent applicant succeeds in showing that her invention meets the threshold subject matter eligibility requirements, she must then show that her application also satisfies certain substantive patentability requirements. For example, under the World Trade Organization’s (WTO) Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS), an invention must meet the substantive requirements of newness, inventive step, and industrial application.

The negotiating parties to the TPP have vigorously debated the scope of patentability requirements. The most recent draft indicates that the United States has retreated from its position that patents should be available for medical procedures, but might succeed in obtaining patent protection for plant-related inventions. The proposal to provide flexibility to exclude medical procedures from patentability will help ensure that the populations of the negotiating parties have access to all useful diagnostic, therapeutic, and surgical methods. However, if implemented, the new plant patent provisions could seriously disrupt traditional farming practices in the Pacific Rim and threaten food security in poorer farming communities. The text also shows that the parties are still debating how they should define utility—a substantive requirement that all inventions must be useful.  Furthermore, a provision relating to the practice of drug-evergreening (when drug manufacturers obtain a second term of patent protection on a new form, use, or method of using a known substance) still remains in the agreement. Accordingly, despite some improvements, we contend that the text of the TPP’s intellectual property chapter remains a bad bargain for participating countries from a public health perspective. As government officials indicate that the agreement is nearing completion, careful consideration of the TPP’s patentability provisions becomes imperative.

Schmittian Borders

 'The Embrace of Border Security: Maritime Jurisdiction, National Sovereignty, and the Geopolitics of Operation Sovereign Borders' by Peter Chambers in (2015) Geo Politics 1-34 argues

Border security has become one of the key means by which the sovereignty and security of powerful nation-states is projected. This paper offers a set of observations of the Australian Commonwealth’s descriptions and instructions for its embrace of border security. Border security is legible here as a geopolitics that transforms the rights and responsibilities of maritime jurisdictions into a space of security that projects national sovereignty through the interdiction of boat arrivals. Its intensification as Operation Sovereign Borders is read as a further variation within national sovereignty, one that elevates the decisionist prerogative into total deterrence. Operation Sovereign Borders pushes the limits of sovereignty’s existence in the state toward a total domination of space, perception and human life in Australia’s maritime jurisdictions, in the name of the nation. This necessitates the development, defence and reinforcement of a regionally engaged materiality that is embodied, extended, enacted, and distributed. The intended effect of this coordinated effort is to secure the nation’s sovereignty as a unity, but the broader effect has been to devalue offshore life to secure onshore interests, in a way that now necessitates indefinite offshore detention.

Pharma Data

IMS is reported by News Corp to be "collecting patients prescription data".

News states that

Some chemists are selling their patients prescription information to a global health information company which sells it on to pharmaceutical companies trying to boost their sales.

Doctor and consumer groups have expressed outrage about the practice they fear may impinge on patient privacy. After News Corp drew the Department of Health’s attention to the profit making venture it asked the Privacy Commissioner to investigate.

The Australian Privacy Commissioner Timothy Pilgrim warned chemists against a similar prescription data for profit arrangement in 2013 that involved linking doctors names to the data. “I am concerned about whether pharmacies will be complying with their obligations under the Privacy Act should collection activities commence,” he told the Pharmacy Guild of Australia.

While the name the doctor scheme did not go ahead the Australian general manager of health information giant IMS, Andrew Sutton has confirmed his company is collecting patients prescription data. “We do have arrangements with pharmacists to get prescription information,” Mr Sutton told News Corp. “The purpose is to help us understand how patients and doctors are using medicine in the real world to help our clients, primarily pharmaceutical companies, to get market aligned outcomes,” he said.

Mr Sutton says the information is “all fully encrypted and the anonymous information is not linked to physicians or patients,” he told News Corp. Mr Sutton said he could not reveal how much chemists were making for selling the information to his company. “It’s in the hundreds of dollars at a pharmacy level,” he said.

A spokeswoman for the Privacy Commissioner said he had not been informed about the latest arrangement with IMS. “We requested IMS Health to advise the Office of the Australian Information Commisisoner if it recommenced this program. We have not received any information from IMS Health about the recommencement of this program,” the spokesman said.

The article states that the Australian Medical Association

fears the information may have geographic links to chemists which would allow pharmaceutical companies to target doctors in the same area who were prescribing a rival companies medicine. ...

Consumers Health Forum chief Adam Stanevicius expressed grave concerns about the sale of patient prescription data. “Without some kind of oversight by the Privacy Commissioner we are very concerned about this information changing hands and whether patient identities are protected,” he said. “We have seen nothing to give us any level of confidence to date,” he said.

Mr Stanevicius questioned whether the information was even the chemists to sell given that the government was paying not only for the prescriptions but subsidising the chemists who dispense the scripts, the doctors who write the scripts and the IT system that ensures chemists get paid.

An AMA spokesperson is reported as commenting

it was “an amazing invasion of privacy purely for commercial reasons”

“It’s not for research or in the interests of patients and one has to question the ethics of the pharmacies providing this information”.

When doctors released any patient health information for a medical trials or to an insurer they had to get the patients consent and chemists should also have to tell patients they are selling their prescription information,

Corporations

'The mortality of companies' by Madeleine Daepp, Marcus Hamilton, Geoffrey West and Luís Bettencourt in (2015) 12(106) Interface comments

The firm is a fundamental economic unit of contemporary human societies. Studies on the general quantitative and statistical character of firms have produced mixed results regarding their lifespans and mortality. We examine a comprehensive database of more than 25 000 publicly traded North American companies, from 1950 to 2009, to derive the statistics of firm lifespans. Based on detailed survival analysis, we show that the mortality of publicly traded companies manifests an approximately constant hazard rate over long periods of observation. This regularity indicates that mortality rates are independent of a company's age. We show that the typical half-life of a publicly traded company is about a decade, regardless of business sector. Our results shed new light on the dynamics of births and deaths of publicly traded companies and identify some of the necessary ingredients of a general theory of firms.

The authors state

Publicly traded companies are among the most important economic units of contemporary human societies. As of 2011, the total market capitalization of firms in the New York Stock Exchange was 14.24 trillion dollars, comparable to the entire gross domestic product of the USA. While researchers have devoted considerable attention to the distribution of firm size, the distribution of firm lifespan has been the subject of far fewer studies. Thus, despite the availability of much quantitative information, our understanding of the way public companies live and die remains limited.

At present, there are several arguments addressing the statistics of company lifespans that have led researchers to a range of different conclusions. Some of these considerations hinge on the interpretation of the meaning of the death event for a company. In the framework of this paper, definitions of ‘birth’ and ‘death’ are based on the sales reports available in the Compustat database; details can be found in §4. While liquidation is often responsible for firm deaths, a much more common cause of death relates to the disappearance of companies through mergers and acquisitions. Thus, in our definition, firms may ‘die’ through a variety of processes: they may split, merge or liquidate as economic and technological conditions change. This raises the question of what characteristics of firms may initiate such events. In particular, it has often been suggested that the mortality rates of firms are age-dependent, a proposition that offers significant insight into the forces that determine firm survival. We address this question using a comprehensive database of over 25 000 publicly traded North American companies covering a large spectrum of business sectors over the period 1950–2009. The present analysis provides one of the largest studies of this kind, both in terms of numbers of firms and timespan.

There is a great diversity of perspectives on a theory of the firm, focusing on different aspects of their costs, organization and evolution. In modern economic theory, the existence and boundaries of firms are understood in counterpoint to the dynamics of self-organization in markets. Economists such as Coase and Williamson proposed that firms exist in order to minimize (positive) market transaction costs involved in the production of goods and services. In situations when, for example, there is particular specificity of goods and services exchanged between two economic agents, such transactions may be best organized internally to an organization rather than negotiated in the open market. As such, firms may split, merge or liquidate in response to economic agents evolving new and better ways of dealing with the various costs and revenues of production and exchange. Therefore, at least on the average, the merger of existing companies should be approximately neutral in terms of the balance between costs and benefits. However, this relatively simple picture becomes more complex in the light of behavioural studies of the impact of decision-making and management practices on the growth and viability of actual firms.

A perspective more directly tied to the demography of companies is organizational ecology. In the framework of organizational ecology, organizations that vary in their structure and relationships are modelled as competing for finite resources within a complex ecology of economic interactions. In this approach, which emerged from economic sociology, companies are seen as units of selection in markets and their longevity is the result of their successes of learning and adaptation in these environments. Similar to this approach, we employ mathematical models from theoretical ecology to examine the lifespans and mortality of companies.

Among the most widely replicated results relating to the mortality of firms is Stinchcombe's liability of newness. This is the expectation that young establishments experience higher mortality rates. This scenario is supported by observation of US manufacturing plants, Argentinian and Irish newspaper companies and other types of businesses. Theoretical grounding draws from the adaptive requirements of market entry; it takes time for young companies to gain the competencies and build relationships that will ensure their ability to survive [29,30]. Moreover, new companies are likely to be smaller and less experienced and thus more susceptible to market shocks. Knott and Posen stress the evolutionary character of these arguments by suggesting that liability of newness is evidence for market-based selection.

However, more recent evidence begins to diverge from this hypothesis. In a study of West German business enterprises, Bruderl and Schussler find that companies are, in fact, protected from mortality in the immediate period after founding. This liability of adolescence likely results from the buffer a firm acquires via its capital endowment at birth, which is also a characteristic of firms that have recently entered financial markets. As their initial capital stock is expended, less profitable companies become more vulnerable to environmental changes in market conditions.

A third perspective suggests that mortality rates increase as companies age. This idea is based upon two related concepts: the first is liability of senescence, the idea that as companies age, they accumulate rules and stagnating relationships with consumers and input markets that render them less agile and that re-configuration is increasingly expensive. Arguing instead for a liability of obsolescence, Sorenson and Stuartsuggest that environmental requirements change over time and that, although firms may improve in competence and efficiency with age by becoming more specialized, these specific adaptations also increase the companies’ risk to new kinds of external shocks that will inevitably beset them.

Finally, Coad has argued that these assorted liabilities constitute small deviations, at the tails, from an aggregate lifespan distribution that is generally well approximated by an exponential distribution. This proposition has been confirmed in Italian, Spanish and French firms. As noted by Amaral et al. and Coad, the statistical patterns of firm entry and exit will affect the distribution of firm sizes in any given year and set its form and temporal stability. Thus, a better understanding of the mortality risk of firms is necessary to generate new insights on the empirically observed scaling regularities in firm size frequency distributions.

In this paper, we test these alternative hypotheses of firm lifespan and mortality risk by analysing a large database of North American publicly traded companies between 1950 and 2009. We confirm the hypothesis of an approximately constant mortality rate, finding that the exponential distribution of firm lifespans holds across business sectors and causes of mortality. We apply survival analysis to estimate in a variety of ways that the firms in our dataset have a half-life of approximately 10 years, regardless of age.

Difference and vulnerability

'Equality and Difference - The Restrained State' by Martha Albertson Fineman argues 

for the development of an approach to social justice issues that puts equality aside and brings differences into consideration. The emphasis here is placed not on an abstract and inevitably contested legal principle, such as liberty or dignity, or on an inherently comparative or relative measure, such as equality, but on the ways in which the universal subject who is to be governed by those principles has been constructed in both political and legal discourses. This approach begins with the recognition of universality or sameness among individuals (the fundamental equality position) but also considers the inevitable differences among them. The universality is found in the vulnerability that marks our existence as embodied and finite beings. The differences arise because there are different stages and manifestations of embodiment, as well as from the fact that we are differently embedded in social relationships and within societal institutions. This “vulnerability paradigm.” makes forms of societally-produced differences a predominant focus because they provide the foundation for the assertion that we need a responsive state. Instead, what equality of treatment has provided is the passive toleration of inequality and complicity in the conferral of often unwarranted privilege on the few.

US Legal Realism

'Legal Realism and Natural Law' by Dan Priel and Charles L. Barzun in Maksymilian Del Mar and Michael Lobban (eds) Law, Theory and History: New Essays on a Neglected Topic (2015) comments 

The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on the jurisprudential scene, legal realism was savagely attacked by proponents of natural law theory. To this day legal realism is depicted as a modernist, critical, at times almost nihilist approach to law, the polar opposite of the ancient natural law theory that traces its roots to Greek and Roman philosophy, and insists on unchanging objective values. And yet, two of the most famous legal realists, Karl Llewellyn and Jerome Frank, expressed in some of their writings more than a passing endorsement of natural law theory. The purpose of this essay is to try and explain this seemingly odd aspect of their work and in this way help in reassessing their work. We do so by explaining how they understood natural law and how they incorporated it in their work. Though they did not understand the term in precisely the same way, for both of them natural law was connected to the values of the community, which both of them thought were central to understanding law, for explaining how it could remain relatively certain, and ultimately, how it derived its authority.

Priel and Barzun argue

And yet, when one looks at the works of the people who called themselves ‘legal realists’, matters look less clear cut. Hessel Yntema stated that ‘the classification of American legal realism in the category of positivism along with Austin, Kelsen, etc., is so superficial as to border on the perverse’. This does not yet show that the realists saw themselves as natural lawyers—after all, they might have seen themselves as a new kind of approach to law—but it already somewhat destabilizes the association between realism and positivism. Even more surprisingly, when one turns to the works of the two most famous legal realists one finds in them clear affirmations of a positive connection between legal realism and natural law. As early as 1938 Karl Llewellyn wrote that ‘it is difficult for me to conceive of the ultimate legal ideals of any of the writers who have been called realists in terms which do not resemble amazingly the type and even the content of the principles of a philosopher’s Natural Law’. Even more surprisingly, Jerome Frank, usually considered among the most extreme realists, the one realists whose views are sometimes thought to border on nihilism, stated: ‘I do not understand how any decent man today can refuse to adopt, as a basis of modern civilization, the fundamental principles of Natural Law.’ As these words do not fit the image Frank as the ‘bad boy’ of legal realism, they are not often discussed. When they are, they are explained away as reflecting the views of the ‘later’, mellower Frank (by then a federal appellate judge), troubled by the horrors of World War II.

We will address this claim in more detail below, but already here we will note some difficulties with it. In the same year Frank wrote the words just quoted, he published Courts on Trial, which is hardly a complacent look at the legal system. On the other hand, already in 1932 Frank forcefully denied that the realists are ‘“positivists” who are exclusively devoted to whatever is now happening in the legal world’. The realists, he said, were all ‘eager…to improve the judicial system, to make it more efficient, more responsive to social needs, more “just”, if you like that word’.

One aim of this essay is therefore to make sense of these seemingly odd statements. We will argue below that rather than suggesting a radical change in the views of Llewellyn and Frank, they reflect ideas that can be found in even in their earliest, and seemingly most critical, works. Before we proceed, however, we must add an important caveat. While Llewellyn and Frank were in their day, and remain to this day, among the best-known legal realists, we do not claim that they are necessarily representative of all legal realists, let alone of some abstract construct called ‘legal realism’. Both Llewellyn and Frank often warned against the ‘Schools’ approach to jurisprudence for its tendency to lump together different thinkers who are in fact quite different.

Indeed, what we say below is not meant to deny that some self-described legal realists expressed scepticism about natural law ideas. And as our argument unfolds, it will become apparent that even Llewellyn and Frank understood the term somewhat differently. One incidental aim of this essay is thus to serve as reminder that all attempts to identify what legal realism is should be treated carefully. Such efforts are often illuminating, but they must be understood as constructs of the views of numerous individuals who on many things held quite different views. In this essay we therefore limit our focus to an analysis of the views of two legal realists.

One stumbling block to any meaningful discussion of the question any possible relationship between legal realism and natural law requires some clarification of the possible senses in which Llewellyn and Frank thought of themselves as natural lawyers and (if this is any different) opponents of positivism. In so doing, we must begin by setting aside several possible interpretations of these terms as inadequate. To begin, neither Frank nor Llewellyn believed that consistency with true morality was a condition of legal validity (or, more colloquially, that an unjust law was not valid law). From the vantage point of contemporary jurisprudence, this may seem odd, as the divide between legal positivism and anti-positivism is often defined in terms of legal validity. But from a historical perspective, the absence of a discussion on the matter of legal validity is unremarkable. If one looks at the long history of natural law thinking, one finds the conditions of legal validity rarely discussed. In fact, in English one is hard-pressed to find any discussions that pit legal positivism against natural law before 1930s. Even today, some natural lawyers deny that ‘natural law theory’ is committed to the view that an unjust law is not law. Since many prominent natural lawyers profess a decided lack of interest in the question of legal validity and are willing to countenance the possibility of unjust laws, the absence of a discussion of this question in Llewellyn and Frank’s works does not undermine our suggestion that they endorsed versions of natural law.

After setting aside such questions, is there any remaining interesting connection between legal realism and natural law? Even if so, is the connection of more than antiquarian interest today? Our answer is, Yes and yes. First, by appealing to natural law Frank and Llewellyn both signalled their commitment to the reality of value and the possibility of reasoning about it. Even if they could not come to accept everything carried under the banner of natural law, they maintained a faith in some notion (however vaguely specified) of moral reality. Second, Llewellyn and Frank believed that one could not clearly distinguish between legal and other sorts of norms, whether moral, social, or political. And third, Llewellyn and Frank saw their views about law and jurisprudence as closely related to inquiries about politics, and especially American politics. More specifically, their account of law was an account of American law, which they presented as intimately tied to American democracy, both of which they explicitly connected to natural law.

Not every legal positivist will disagree with all three points; the third one in particular is these days accepted by many legal positivists. But taken together, these three points represent a position clearly at odds with the views of many twentieth century and contemporary legal positivists, including the most prominent Anglophone legal positivist, H.L.A. Hart. Indeed, on all three counts Llewellyn and Frank can count as allies Hart’s primary anti-positivist antagonists, Lon Fuller and Ronald Dworkin, both of whom, at least on occasion, associated themselves with natural law.

'Legal Realism and Legal Doctrine' by Brian Leiter in (2015) University of Pennsylvania Law Review (forthcoming) states

 In this contribution to the symposium on "The New Doctrinalism," I argue that American Legal Realists did not reject doctrine, because the Realists did not reject the idea that judges decide cases in accordance with normative standards of some kind: "doctrine" after all is just a normative standard about what should be done, but one formulated and made explicit by a statute or a court or a treatise. A judge who decides cases based on the norm "this breach of contract is efficient" still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.

Less expensive than the Duke of York

Less expensive than the Duke of York but twice as useful?

Today's New York Times item on the UK Freedom of Information regime, drawing on the 2011 Constitution Unit note, comments

The requests come in to local councils with appalling regularity: “How many residents in Sutton own an ostrich?” “What procedures are in place for a zombie invasion of Cumbria?” “How many people have been banned from Birmingham Library because they smell?”

In Wigan, the council was asked what plans were in place to protect the town from a dragon attack, while Worthing Borough Council had to outline its preparations for an asteroid crash.

Government secrecy has long been a hallmark of Britain, where neither laws nor traditions made it easy to obtain the documents and records that are the underpinnings of any bureaucracy. But a decade ago, the doors were swung wide open to allow the sunshine of public scrutiny into agencies, bureaus and councils, and the result has been both gratifying and slightly alarming.

While Britain’s Freedom of Information law has established itself as a potent tool to scrutinize the work of public authorities and hold those in power accountable, it has also had some expensive consequences — and, in some cases, revealed the absurdity of public whim. The hundreds of thousands of requests that have been received at various levels of government in the last decade have not only been time-consuming for agencies and councils, they have also proved extremely costly.

Such, though, is the side effect of transparency, say the proponents of open government, who also argue that the benefits outweigh the burdens.

“What people often forget is just how much F.O.I. saves money, because it exposes wasteful and extravagant spending,” said Paul Gibbons, a freedom of information campaigner and blogger. “Just one example: a local council in Scotland was spending thousands every year sending a delegation to Japan for a flower festival. Once F.O.I. came into force, they quickly realized they couldn’t justify doing that.”

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In the decade since its adoption, the Freedom of Information act has been exposing incompetence, inefficiency and even corruption across more than 100,000 public bodies. Financial reports, expenses records, meeting minutes and private email correspondence have all been dragged into the public domain.

According to the Ministry of Justice, more than 400,000 requests have been made under the act since its implementation, and central government bodies are now receiving almost 1,000 requests a week.

A slew of political scandals have come to light under the act. It was Ms. Brooke’s F.O.I. request that ultimately led to the parliamentary expenses scandal in 2009, resulting in the imprisonment of five Labour members of Parliament and two Conservative peers.

More recently, Jeremy Hunt, the current health secretary who formerly was culture secretary, was embroiled in controversy after F.O.I. requests revealed his close relationship with Rupert Murdoch’s media empire during News Corp’s approximately $12 billion bid for the broadcaster BSkyB. And Eric Pickles, the minister for communities and local government, landed in hot water for spending about $110,000 on tea and biscuits in a single year.

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The expense of freedom of information is impossible to calculate precisely. A 2010 survey of the local authorities by University College London, estimated that responding to F.O.I. requests cost councils about $46 million annually. On the national level, rough estimates can be made using research from Frontier Economics, which calculated an individual F.O.I. request takes an average of 7.5 hours and costs about $430 to process. Between October 2013 and September 2014, central government departments received 48,727 requests, which would put the approximate annual cost of freedom of information at over $20 million.

Still, as advocates point out, that represents about 0.0019 percent of the budget — and $20 million is less than what the British taxpayer has paid for the travel expenses of Prince Andrew, the Duke of York. Also, often it pays for itself, they say, in exposing corruption or unreasonable public spending.

It's also, dare one say it, a reminder of the accountability that we should expect in a liberal democratic state.