Feminist Judgments

'Teaching with Feminist Judgments: A Global Conversation' by Bridget J. Crawford, Kathryn Stanchi, Linda L. Berger, Gabrielle J. Appleby, Susan Frelich Appleton, Ross Astoria, Sharon Cowan, Rosalind Dixon, Troy Lavers, Andrea L. McArdle, Elisabeth McDonald, Teri A. McMurtry-Chubb, Vanessa Munro and Pam Wilkins in Law and Inequality: A Journal of Theory and Practice (Forthcoming) comments

This conversational-style essay is an exchange among fourteen professors — representing thirteen universities across five countries — with experience teaching with feminist judgments. Feminist judgments are “shadow” court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. 

This essay begins to explore the vast pedagogical potential of feminist judgments. The contributors to this conversation describe how they use feminist judgments in the classroom; how students have responded to the judgments; how the professors achieve specific learning objectives through teaching with feminist judgments; and how working with feminist judgments — whether studying them, writing them, or both — can help students excavate the multiple social, political, economic and even personal factors that influence the development of legal rules, structures, and institutions. The primary takeaway of the essay is that feminist judgments are a uniquely enriching pedagogical tool that can broaden the learning experience. Feminist judgments invite future lawyers, and indeed any reader, to re-imagine what the law is, what the law can be, and how to make the law more responsive to the needs of all people.

'Prefiguring Feminist Judgment in International Law' by Hilary Charlesworth in Lavers and L Hodson (eds), Feminist Judgments in International Law (Hart, 2019) comments

 Prefigurative politics is a form of activism harnessing theories of social change. In essence, it means a group’s adoption of structures and styles of reasoning that the group is promoting, a modelling of the desired political and social outcomes; the aphorism ‘be the change you want to see’ sums up the practice of prefiguration. The term ‘prefigurative tradition’ first emerged in the 1970s in the context of Marxist methods, describing them as a movement embodying ‘within the ongoing political practice … those forms of social relations, decision-making, culture, and human experience that are the ultimate goal.’ The idea was that Marxist prefigurative politics would undermine ‘the division of labor between everyday life and political activity.’ The women’s camp at Greenham Common, established in 1981 to protest against the presence of Cruise missiles at a US Air Force base in the United Kingdom, was a prefigurative venture in challenging traditional family structures. Another example is the Occupy! movement in 2011, which set out to establish public spaces in the heart of large urban areas where free food, medical care and education were available.

Plagiarism

'The Case for Plagiarism' by Andrew Carter in (2019) 9 UC Irvine Law Review 531 comments

American courts persistently enforce a thick professional norm against plagiarism in filed legal briefs. But while courts variously label the practice as “reprehensible” and “wholly intolerable,” they never bother to explain why, exactly, plagiarism is worthy of such heavy rebuke. Instead, the courts proceed as though plagiarism is a malum se offense, a practice of such obvious moral turpitude that its prohibition requires no further explanation. The courts are flatly wrong about plagiarism. Plagiarism breaches no universal moral code. And once you take morality off the table, it is near-impossible to locate the interests served by the courts’ rule against plagiarism. Indeed, when the efficiencies obtained by plagiarism are placed on the scales, the case turns decidedly in favor of plagiarism as a legitimate means of brief drafting.

Pragmatism

'The Nihilist' by Raff Donelson in Seth Vannatta (ed) The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr (Lexington Press, 2019) 31-48 comments

 Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Donelson argues

This chapter demonstrates that Holmes was no Nietzschean nihilist. Such an accusation is triply mistaken. Holmes was no nihilist, nor was he a Nietzschean, and there is no such thing as a “Nietzschean nihilist” because Nietzsche was no nihilist either. xxx This chapter begins with offering a definition of “nihilism” that will serve as a touchstone for the proceeding discussion. Only with the definition of “nihilism” fixed can we have a productive conversation about whom should have the label. After this preliminary work, I turn to the three main tasks of the chapter: showing that Holmes was no nihilist, that he was no Nietzschean, and that Nietzsche and Holmes are both anti-nihilists. On the first task, I not only offer textual support for a non-nihilist reading of Holmes, but I also try to explain why some commentators have erroneously called Holmes a nihilist. On the second task, I argue that the differences between Holmes and Nietzsche are too great – and the similarities too few and commonly found – for it to make sense to call Holmes a Nietzschean. The final task of the paper aims to show that both Nietzsche and Holmes are anti-nihilists. As I show, those commentators who label Nietzsche a nihilist are making a similar kind of error as those who call Holmes a nihilist. Both kinds of critics miss the fact that both Holmes and Nietzsche are in different ways responding to nihilism. Thus, the final section of this chapter serves to underscore the message of the first two: Holmes is not a Nietzschean precisely because he is a different kind of anti- nihilist

DTC Genomics

'Digital health – a new medical cosmology? The case of 23andMe online genetic testing platform' by Paula Saukko in (2018) 40(8) Sociology of Health and Illness 1312-1326 comments

This article argues that commercial digital health platforms and devices commodify participatory features of the digital creating a new medical cosmology. Drawing on sociology on medical cosmologies, research on digital media and marketing and an analysis of the 23andMe online genetic testing platform, I identify three features of this cosmology. First, digital health seeks to foment ‘flow’ or enjoyable, continuous immersion in health. Second, digital health configures its consumers as ‘co-creators’ of health data and knowledge together with companies and other consumers. Third, digital health frames medical knowledge as tentative, up for revision and scepticism by expert and lay science. The way in which digital health configures consumers as immersed, creative and sceptical gives it an open-ended and participatory air. However, the conceptual discussion and the analysis of the 23andMe platform highlight that these features represent commercial capture of the lifeworld, even if they appear radical against classical medical cosmologies.

Neurolaw

'A legal analysis of Australian criminal cases involving defendants with autism spectrum disorder charged with online sexual offending' by Clare S. Allelya, Sally Kennedy and Ian Warren in (2019) 66 International Journal of Law and Psychiatry 101456

 examines how the symptomology of the small number of individuals with autism spectrum disorder (ASD) charged with online sexual offenses in Australia is established during legal arguments and conceived by the judiciary to impact legal liability and offending behavior. This study aims to provide empirical support for the proposition that judicial discourses regarding the connection between ASD and online sexual offending, including conduct related to child exploitation material (CEM), have little bearing on overall questions of criminal liability or the use of alternative penal dispositions. It does so by exploring a sample of nine recent Australian criminal cases, involving ten rulings, that examine how evidence of ASD is raised in legal arguments in ways that suggest a diagnosed condition may have contributed significantly to the alleged wrongdoing. We conclude by suggesting current Australian judicial practice requires more sensitivity to the impact of clinical factors associated with ASD in shaping alternative supervisory and non-custodial dispositions for individuals convicted of online sexual offenses.

The authors argue

 Autism spectrum disorders (ASDs) are neurodevelopmental conditions characterized by restricted repetitive behaviors and impairments in reciprocal social interactions and communication (Wing, 1997). The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM- 5) (American Psychiatric Association [APA], 2013) identifies two core areas of impairment in ASD, which are found to vary across individuals, symptoms and levels of severity. These two core domains are persistent impairments in social communication and interaction, and restricted, repetitive patterns of behavior, interests, or activities (APA, 2013). It is imperative these features inherent in ASD are recognized, diagnosed and understood, specifically in terms of how they can contribute to certain types of criminal offending, and sex offenses in particular (Ray, Marks, & Bray-Garretson, 2004). For example, repetitive or obsessive behaviors may contribute to offenses related to child exploitation material (CEM) by individuals with ASD (Mogavero, 2016). However, there is currently a lack of clear empirical research exploring this association. 

What is clear is many individuals with ASD are found to have substantial collections of pornographic material, often involving children, or thousands of unopened computer files that are likely to have been gathered as part of the ritualistic nature of ASD. This can raise the prospect of criminal prosecution and potentially lengthy periods of incarceration or community supervision. However, individuals with ASD can be unaware of some of the broader issues regarding CEM, including where and how the files were obtained, who might be able to access them and the consequences for the minors depicted in the images. Crucially, they may not even consider something that is illegal to be so freely accessible on the internet given their literal view of the world (Mesibov & Sreckovic, 2017). 

The case of Mr. C, reported by Brendel, Bodkin, Hauptman, and Ornstein (2002), aptly illustrates how ASD can be linked to an excessive obsession with pornography. Mr. C spent hours with his collection of thousands of pornographic videos and regularly accessed pornographic websites. He also had a huge collection of paper dolls that were created by using images from both mainstream and pornographic magazines that he engaged with for at least 5 hours per day. Mr. C reported that inadvertently view CEM because of their inability to correctly guess the age of the person(s) in the images, which can be exacerbated by the fact that sometimes the physical distinctions between an adult and a child can be blurry. These issues need to be considered given the illegality and severity of CEM offenses are determined by the apparent age of the victims in the images possessed by the offender (Mahoney, 2009). 

While it is clear behavioral traits associated with ASD have an impact on reducing legal culpability and sentences for various types of offenses (Allely and Creaby-Attwood, 2016; Creaby-Attwood and Allely, 2017; Freckelton, 2011), there is limited research examining broader trends for specific types of sexual offending in English-speaking jurisdictions. Dubin and Horowitz (2017) highlight this lack of research is closely related to the general lack of awareness amongst law enforcement agencies, criminal defense lawyers, prosecutors or judges that clients or suspects might have an intellectual disability, such as ASD, that can significantly affect their interactions with justice professionals. Such conceptions of procedural fairness, as well as knowledge of the importance of appropriate diversionary strategies, is generally absent in formal legal records. While some behavioral factors related to ASD are recognized as potential mitigating explanations for certain forms of transnational online financial crime or computer hacking (Kibbie, 2012; Mann, Warren, and Kennedy, 2018), they also have more immediate implications given the recognition that innate vulnerabilities associated with any high-functioning males with ASD (Cooper and Allely, 2017) may increase the likelihood of being accused of sexual offenses, including the possession of CEM (Dubin and Horowitz, 2017; Freckelton, 2011). 

This range of intersecting factors requires detailed consideration, especially when men diagnosed with ASD are detected and prosecuted for accessing CEM. This is particularly salient in light of the potential moral reprobation associated with any actual or virtual sexual activity with children, which can readily dilute reasoned concern over the alleged offender’s neurological vulnerabilities. Our objective is to contribute to the growing body of critical knowledge about these important facets of neurolaw (McCay and Ryan, 2018), to determine how the various neurological and behavioural aspects of ASD emerge in formal legal arguments and judicial discourses that inform how criminal liability and sentences are determined for CEM offences. these activities helped to reduce his anxiety and make up for an “unrewarding life”, which included a “sexual lack” in his relationship (Brendel et al., 2002, p. 167).

'The Frailties of Human Memory the Accused's Right to Accurate Procedures' (University of Melbourne Legal Studies Research Paper No. 825, 2019) by Andrew J. Roberts comments

It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.

UK IoT Policy

'The United Kingdom's Emerging Internet of Things (IoT) Policy Landscape' by Leonie Tanczer, Irina Brass, Miles Elsden, Madeline Carr and Jason J Blackstock in Ellis and Mohan (eds.) Rewired: Cybersecurity Governance (Wiley, 2019) 37–56 comments

The chapter examines the institutional landscape that underpins the Internet of Things (IoT) in the UK, and reviews the government strategies and policies within which the IoT is developing. The rapid evolution of technology means that this review represents a synoptic snapshot: it identifies core challenges connected to the evolving interdependent ecosystem, and provides a recommendation for more adaptive policymaking in this space. The chapter extracts some general principles and lessons that can be applied more widely to the development of emerging technologies, including the use of forward‐thinking and monitoring policy tools in order to respond to new conditions and potential market failures. It does so through assessment of the IoT's inherent risks and uncertainties, the fragmentation of the UK’s institutional and policy landscape, and the IoT's respective governance challenges. The chapter concludes with future directions for researchers, practitioners, and policymakers, as well as an appeal to apply adaptive policymaking to the management of rapidly evolving IoT technologies.

Health Policy

'Doctors Rule: An Analysis of Health Ministers’ Diaries in Australia' by Katherine Cullerton, Tom White and Amanda Lee in (2019) 16(13) International Journal of Environmental Research and Public Health 2440 comments

Communication Limited progress in nutrition policy action is often blamed on the close relationships the food industry has with health policy decision-makers. This analysis sought to examine this belief through the analysis of health ministers’ diaries. Entries were downloaded from health ministers’ diaries from two states in Australia from January 2013 to June 2018. Entries were coded according to which interest group met with the minister or whether general parliamentary business was undertaken. Coding was also undertaken for any meeting topics related to nutrition policy. Analysis of health ministers’ diaries found that the food industry has limited documented interaction with the two state health ministers in Australia. Instead, medical associations, private hospitals and health services, and sporting associations (rugby league associations) had the most interactions with health ministers. Poor representation was seen on nutrition issues, and there was an apparent lack of nutrition advocates interacting with the health ministers. There are opportunities for nutrition advocates to increase their level of interaction with state health ministers. This could include building alliances with medical associations, as they are in a powerful position, to advocate directly to health ministers. Health ministers’ diaries can provide valuable insights into who is meeting officially with ministers. However, there are also limitations with the dataset.

The authors argue

 There are many ways interest groups can attempt to influence public policy. Strategies can include engaging with the media, shaping the evidence base, making donations to political parties and grassroots campaigns [1,2]. While these strategies are important, direct access to policymakers seems to play a significant role in influencing public policy, particularly for policy that is contested [3,4]. Gaining direct access to policymakers allows interest groups to develop relationships with them, deliver their arguments more effectively and identify potential policy leverage points [2]. 

A particularly contested health policy area in many countries is public health nutrition policy [5,6]. This has certainly been the case in Australia, where, over the past decade, there has been a distinct lack of political support for evidence-based nutrition policy actions, such as fiscal and regulatory interventions [4,7]. Instead, the government has supported education-based campaigns and voluntary initiatives involving the food industry [8]. It has been proposed that this inaction in nutrition policy is due to the opposing power of food industry interest groups [1,7,9]. The power and influence of the food industry was recently demonstrated in a network analysis of national nutrition policy stakeholders in Australia [4]. This analysis highlighted that the food industry had the greatest number of direct access points to nutrition policymakers than any other interest group. However, limited investigation of interest groups and their interactions with policymakers has occurred at the state jurisdictional level in Australia. 

Examining the interactions of interest groups at a state level is important, as Australia is a federation of six states and two self-governing territories, each of which have their own constitutions and laws. However, certain areas of law-making require both the state and national levels of government to work together to achieve policy outcomes [7]. This can give states a high degree of power when considering nutrition policy. 

In January 2013, the state of Queensland (QLD) was the first jurisdiction in Australia to require government ministers to release their diaries on a monthly basis [10] and the state of New South Wales (NSW) followed in July 2014, although with quarterly releases [11]. While this was an important step toward transparency, in both jurisdictions, there is no requirement to disclose information relating to personal, electorate or party-political matters, social or public functions or events, or matters for which there is an over-riding public interest against disclosure [10,11]. 

The diaries are available for two jurisdictions which represent just over half of the Australian population (NSW: 7,955,900; QLD: 4,999,700) [12]. Further information on these states and the political parties in Australia is included in Box 1. Analysing the health ministers’ diaries from these two states provided unique insight into which interest groups were interacting with health ministers generally, and in particular, with respect to nutrition policy.

 They comment

The data in this study were obtained from unique datasets that had not been previously systematically analysed. It is likely, however, that the diaries we have analysed do not capture all the interactions that ministers undertake and we have no way of knowing how closely the diaries represent a minister’s actual day. The level of detail provided in QLD provides a more complete representation than in NSW, where diaries often have days with no entries at all (n = 609 days, 64% of NSW health ministers’ days). However, valuable insights are still likely to be gained from the 5025 interactions that were recorded. 

The Food Industry Is Poorly Represented 

This analysis was originally undertaken to identify whether specific interest groups were engaging regularly with state health ministers, particularly around nutrition policy issues. Despite previous evidence in Australia [4] and internationally [15,16] highlighting direct and frequent engagement of the food industry with health ministers, this was not found to be the case in the two Australian state jurisdictions in this study. There may be several reasons for this, including the limited reporting requirements for ministerial diaries (particularly for NSW), which do not capture after-hours activities, informal meetings on the phone or in person, or who ministerial advisors are meeting with. Furthermore, these groups may be meeting with more senior ministers, for example, the state premier or treasurer, or with other ministries related to food—such as agriculture or trade—or with government bureaucrats. Finally, responsibility for many aspects of nutrition policy sits with the Australian government, so relationship building may be directed there. However, any significant decisions that need to be made around regulation or legislation in Australia require agreement between the Australian government together with all the states and territories, so it is surprising that more interactions were not noted. Alternatively, this lack of representation may also indicate that the ministers’ diaries are not a reliable source for documenting interactions with the food industry. 

Advocacy Organisations Are Leading Engagement 

The results demonstrate high rates of interaction between ministers and advocacy organisations in comparison to business interests. This differs from the previous research conducted on this issue. Studies from the United States of America demonstrated that the majority of advocacy organisations do not engage in ‘lobbying’ [17]. While this study does not examine the overall proportion of advocacy organisations participating in interactions with Ministers, the higher proportion of meetings by these organisations in comparison to the business sector may signify a change in practice over time. It may also represent a willingness from ministers to engage more widely with advocacy organisations. 

Medical associations, particularly the Australian Medical Association, had the greatest number of interactions with ministers. This indicates not only a high level of activism by medical associations, but also a high level of prioritisation of the medical profession by the ministers. This prioritisation corresponds with the traditional view that medicine sits at the top of the occupational hierarchy in health and is considered the cultural authority on health and illness [18]. The observed dominance and influence of the medical profession is not unique to Australia, with several international studies reporting a similar phenomenon [19,20,21,22]. 

Very few interest groups met with the health ministers specifically regarding nutrition issues. This lack of engagement by nutrition professionals and not-for-profit groups advocating for nutrition issues corresponds with previous research documenting the lack of direct contact with decision-makers in nutrition policy in Australia [4]. This lack of engagement could represent a lack of understanding of the policymaking process and the key role ministers play, and/or a lack of capacity from nutrition advocates in terms of time, or advocates could be prioritising targeting national ministers instead of state-based ministers [23]. However, it is important to note that interest groups may be meeting with the ministerial advisers regarding these issues, and there is no requirement to document such interactions. 

Market Solutions to Healthcare? 

For business groups, private health care services and private hospitals topped the interactions of the NSW Health Minister and the QLD Health Minister when the LNP were in power. This may signify the growing trend towards finding market solutions to healthcare, a movement that is occurring world-wide [24]. The high level of interactions with private hospital companies coincides with a growth in private hospital beds and, accordingly, government funding for private hospitals in Australia [25]. A very different approach was taken by the QLD ALP health ministers, where rugby league associations had the greatest interaction. These meetings corresponded with additional QLD government funding for the rugby league, including: AUD$1,000,000 to the National Rugby League State of Mind program (designed to reduce stigma around mental illness through rugby league clubs) in 2016, AUD$637,500 over two years for the improvement of rugby league facilities around QLD in 2017, and AUD$165,000 for a children’s rugby league program run by ex-players, also in 2017 [26,27]. Alternatively, these interactions may signify an awareness that the core constituents of the Labour party in QLD are working class and traditionally follow the game of rugby league, so it may be an important political strategy for the Minister to align with this popular code of football. 

One final observation relates to the diary entries of the NSW Assistant Health Minister. This position had a very different range of interactions compared to the health ministers in QLD and NSW, most notably high levels of engagement with mental health organisations, homelessness charities and drug and alcohol charities. This increased engagement coincided with the Assistant Minister being named Minister for Mental Health and then also Minister for Women and Medical Research. This suggests that providing specificity in the ministerial title may result in higher levels of engagement with relevant interest groups than if the title is broadly ‘health’.

Abjection

'Regulating belonging: surveillance, inequality, and the cultural production of abjection' by Torin Monahan in (2017) 10(2) Journal of Cultural Economy 191-206 comments

 Conditions of abjection are increasingly viewed as problems to be managed with surveillance. Across disparate domains, bodies that challenge normalized constructions of responsible neoliberal citizenship are categorized, monitored, policed, and excluded in dehumanizing and often violent ways. This paper explores the role of surveillance in such processes. The registers covered include everyday abjection (welfare systems, battered women’s shelters, and homelessness), criminalized poverty (police targeting of the poor and emerging ‘poverty capitalism’ arrangements), and the radically adrift (the identification, tracking, and containment of refugees). In each of these cases, surveillance is yoked to structural inequalities and systems of oppression, but it also possesses a cultural dimension that thrusts marginalized and dehumanized subjectivities upon the abject Other. Therefore, I argue that in order to critique the gendered, racialized, and classed dimensions of contemporary surveillance, it is necessary to take seriously the mythologies that give meaning to surveillance practices and the subjectivities that are engendered by them.

Monahan argues

Although there has been renewed critical attention to surveillance in the realms of national security and corporate data gathering, especially in online contexts, the gendered and racialized dimensions of contemporary surveillance remain largely underexplored. This appears to be the case especially with regards to the treatment of poor and marginalized populations, where conditions of abjection are increasingly viewed as problems to be managed with surveillance. For instance, the poor on welfare submit to scrutiny of their purchases, as they are enmeshed in systems designed to detect transgressions and exclude or punish those who are found unworthy. People on probation, especially in the United States, yield to invasive electronic monitoring for minor infractions and are charged fees for this ‘service’, which is often outsourced to private companies that profit handsomely from this form of poverty capitalism. When seeking jobs, the unemployed encounter a battery of surveys, background checks, and drug tests, also frequently at their own expense, in order to qualify for the possibility of obtaining a job. Homeless people are treated as populations to be managed and tracked through electronic systems deployed at shelters, as their privacy is continuously eroded, their makeshift dwellings dismantled, and their fragile sense of stability undermined. Refugees fleeing the radical insecurity of civil war are scrutinized as potential health or terrorist threats and forced to provide biometric data for United Nations tracking systems, paradoxically categorizing refugees both as discrete individuals to be sorted and followed and as an undifferentiated mass to be contained in camps. 

Viewing these dynamics through the lens of surveillance can draw attention to the ways in which unequal control mechanisms define the operations of contemporary institutions and profoundly shape people’s experiences and life chances. As David Lyon explains, surveillance can be understood broadly as ‘the focused, systematic and routine attention to personal details for purposes of influence, management, protection or direction’ (Lyon 2007, p. 14). Thus, more than simply watching, surveillance practices exert influence and reproduce power relations through technological and non-technological means alike. Through the imposition of categories, processes, and differential forms of exposure, surveillance becomes a project of social ordering and world-making, even if its efficacy at achieving its primary intended goals (e.g. crime control) is limited or inconsistent (Coleman 2012). As deployed here, surveillance manifests as a multiplicity of techniques that conjure, coalesce around, and mediate the experiences of abject subjects. 

Abjection signifies not only extreme need or destitution, but also a kind of social exclusion wherein the existence of the individual is called into question. Abjection implies a fundamental lack of fit with existing social and spatial orders (Sibley 1995), rendering the abject subject unknowable and largely invisible, at least as a collective ethical responsibility (Kristeva 1982; Murphy 2006). Further, modern states are constituted in part through the paradox of the socially abject, or the ‘inclusive excluding’ of various outcasts within states, justifying the enforcement of border controls and legitimizing dominant mechanisms for the provision of order (Tyler 2013). As the examples above indicate, surveillance plays an important role in policing bodies and maintaining boundaries between inside and outside, self and other. Moments of unwanted visibility or presence – of the poor, the homeless, the refugee – seem to compel mechanisms of intensified control. Such control mechanisms delineate parameters of temporary existence for the compliant, while excluding those marked as dangerous or socially illegible. Therefore, through categorization and sorting, surveillance enacts forms of structural and symbolic violence against marginalized Others. 

Surveillance in this sense is about the maintenance of social order and the production of subjects. As Lisa Nakamura writes, compulsory forms of surveillance increasingly ‘serve two functions: to regulate, define, and control populations; and to create new gendered, racialized, and abled or disabled bodies through digital means’ (Nakamura 2015, p. 221). In the first instance, surveillance is a mode of ‘social sorting’, of categorizing populations according to perceived risk or value and treating those respective groups differently (Gandy 1993; Lyon 2003; Bigo 2006). Such surveillance is fundamental to how modern organizations operate: identifying, monitoring, analyzing, and sorting in frequently automated ways that are ambiguous to those affected by them (Giddens 1990; Thrift and French 2002; Graham and Wood 2003; Gilliom and Monahan 2013). In the second instance, surveillance fuses with existing cultural prejudices to coproduce unequal subjectivities and render them natural. Simone Browne describes this as a process of ‘digital epidermalization’, where surveillance systems ‘do the work of alienating the subject by producing a truth about the racial body and one’s identity (or identities) despite the subject’s claims’ (Browne 2015, p. 110). When interpellated by such exercises of power, individuals are prone to adapt their sense of self to the discriminatory classifications and treatments that characterize their lives. 

This paper explores the merging of these structural and cultural dimensions of surveillance for the regulation of abject bodies. The field of surveillance studies has been adept at theorizing structural forms of inequality that are reproduced through surveillance (e.g. Koskela 2000; Rule 2007; Gandy 2009; Staples 2014). Classification and social sorting are the primary ways that this occurs, as unequal power relations and political contingencies are masked by processes of technological abstraction and mediation (Haggerty and Ericson 2000; Currah and Moore 2009; Guzik 2009; Morozov 2013). A cultural turn, however, productively shifts the focus to the mythologies that give meaning to surveillance practices and the subjectivities that are engendered by them (e.g. Monahan 2010, 2011; Ball 2009; Andrejevic 2013; Browne 2015; Dubrofsky and Magnet 2015; Hall 2015). Such an emphasis is vital in trying to account for the ways that surveillance contributes to gendered, racialized, and classed violence. For instance, cultural narratives (e.g. about dangerousness or unworthiness) are often key drivers for the adoption of surveillance systems that in turn reify those discriminatory categories and subject positions (Coleman 2012; McCahill 2002). In combination, structural and cultural dimensions of surveillance synergize in destructive ways: on one hand, affording a seemingly apolitical objectification of the disadvantaged, and, on the other hand, providing a cultural script for the dehumanization and demonization of the Other. 

In the sections that follow, I analyze three different but overlapping registers of surveillance: everyday abjection of being on welfare, in battered women’s shelters, or homeless, subjected to the possibility of constant scrutiny and judgment; criminalized poverty, which pulls the poor into extractive and violent relationships, mediated by surveillance, while public and private institutions profit; and the radically adrift, where refugees seeking survival and stability are channeled into regimes of state surveillance and control. The concept I build upon for this analysis is that of marginalizing surveillance (Monahan 2010). Marginalizing surveillance means the production of conditions and subjectivities of marginality through the application of surveillance systems.1 For each register analyzed, cultural narratives – from politicians, the mainstream media, or threatened citizens – powerfully inflect the forms of marginalizing surveillance deployed and the treatment of those under the gaze. While structural and cultural dimensions of surveillance weave together to govern the abject and make them legible, they simultaneously reproduce forms of violence and exclusion.

US Copyright History

'An Empirical Study of 225 Years of Copyright Registrations' by Zvi S. Rosen and Richard Schwinn in (2019) Tulane Law Review (Forthcoming) comments

This project provides the first comprehensive empirical study of copyright registrations and renewals over the entire scope of American History since the Constitution. Relying on our a newly developed dataset of copyright registration filings, including data for the years before 1870 that has never been seen before, as well as renewal filings from 1909–2005, we provide a history of copyright registration in America and make a number of new findings about the trajectory of copyright registrations over a 225 year period. In addition to these new findings, we engage longstanding questions about the effectiveness of copyright law and the effects of statutory, economic, and technological changes on the maintenance of federal copyrights. The project builds on existing research into the effectiveness of copyright law, including studies by William Landes and Richard Posner as well as more recent work by Raymond Ku. It also complements ongoing work by Robert Brauneis and Dotan Oliar on copyright registrations since 1978 and provides an increasingly holistic picture of the development of U.S. copyright in the modern age.

Marine Genomics

'Towards a Practical Approach to Regulating Marine Genetic Resources' by Joanna Mossop in (2019) 8(3) ESIL Reflections comments

 Negotiations are currently underway for a new international legally binding instrument (ILBI) under the United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ). The General Assembly has authorised negotiations on four elements of a “package”. One part of the package is the legal framework for the exploitation of marine genetic resources (MGRs) in areas beyond national jurisdiction. The precise definition of MGRs is currently subject to negotiation, but the Convention on Biological Diversity defines genetic material as any material of plant, animal, microbial or other origin containing functional units of heredity. Genetic resources are genetic material of actual or potential value. It should be noted that the MGRs regime is unlikely to apply to fish caught as a commodity for food or other uses such as fish meal.

Corporate Personhood

'So What If Corporations Aren't People?' by Ilya Shapiro and Caitlyn W. McCarthy in (2011) John Marshall Law Review comments

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court's decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not "real" people. While it's true that corporations aren't human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren't people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.