Embellished

Two years ago I noted embarrassment in New Zealand involving 'creativity' - more caustically characterised as fraud - in the CVs of senior public sector executives Wilce, Thompson and Davy.

In the US another Thompson is in trouble for CV embellishment in the age of credentialism; this time it's the new Yahoo CEO Scott Thompson. He's being damned for what Yahoo initially described as an “inadvertent error” but subsequently appears to be treating as a serious ethical or reputation problem.

The Financial Times tartly commented that Thompson "hasn’t got a computer science degree after all, whatever his official biography may say".

The debunking was undertaken by Yahoo investor Third Point, which apparently is interested in changing the Yahoo board. It challenged the statement, in Yahoo's filings with the SEC, that "Mr. Thompson holds a Bachelor’s degree in accounting and computer science from Stonehill College".

Third Point argued that Thompson not have a computer science qualification. Stonehill offered a single introductory computer science course during his time at the college and “Stonehill College informed us that it did not begin awarding computer science degrees until 1983 – four years after Mr Thompson graduated”.

Yahoo responded that “This in no way alters that fact that Mr. Thompson is a highly qualified executive with a successful track record leading large consumer technology companies.” Third Point hit back, stating that -

If Mr. Thompson embellished his academic credentials we think that it 1) undermines his credibility as a technology expert and 2) reflects poorly on the character of the CEO who has been tasked with leading Yahoo! at this critical juncture”.

The Washington Post sniffed that -

Thompson’s résumé has even earned itself a satiric Twitter account, "SThompsnsResume", which bears the description “I’m mostly true” and includes posts such as “FACT: Scott Thompson played Steve Urkell on Family Matters.”

Meanwhile the UK Metropolitan Police reports that William 'Billy' Mumford - "one of the UK's most prolific and accomplished art fraudsters, responsible for creating forged artwork potentially worth hundreds of thousands of pounds" - has been sentenced at Southwark Crown Court to two years imprisonment. The forger imitated a range of artists including Sayed Haider Raza, Kyffin Williams, John Tunnard, Francis Newton Souza, Jilali Gharbaoui, Sadanand Bakre and Maqbool Fida Husain.

Operation Sketch - a proactive operation led by the Metropolitan Police Service's Art and Antiques Unit, supported by ArtBeat Special Constables - identified the scam in April 2009 after they were contacted by a major London auction house which had identified an unusually high number of paintings offered for sale by artist Maqbool Fida Husain. ...

Hundreds of paintings and false instruments were found in the back bedroom and garage of Mumford's home address, including gallery stamps, ink pads and Victorian paper used to create a false provenance and dupe art experts and investors alike.

William Mumford admitted creating up to 1000 forgeries and conspiracy to deceive potential buyers and launder the proceeds of the crimes. His co-conspirators placed the works for sale on Ebay and at auction houses throughout the UK, receiving a 20% cut for their efforts. Many of the paintings ended up abroad, some being sold on as genuine several times.

One of Mumford's accomplices

set up an office at home in what was a military style operation that included a white board detailing when and where each painting had been taken and how much it should make. He would spend his days driving round the provincial auction houses in the UK (mainly Hampshire and Sussex) with several paintings, providing elaborate false provenance stories involving late grandparents, wills and a mother downsizing and not being able to accommodate her favourite paintings anymore.

Shepherd and Karen Petrskovsky admitted in interview to furthering the offences by creating complex additional histories for the artworks, thereby increasing their saleability and value.

DC Michelle Roycroft, formerly of the Arts and Antiques Unit, said: "This complicated case highlights the pitfalls of buying works of art from online auction sites.

"These paintings, listed as 'unknown', came with elaborate false provenance that drew buyers into bidding for the items. This, together with William Mumford's execution of the paintings and the attention to detail - using forged gallery stamps and genuine Victorian paper to make labels - fooled hundreds of people both in the UK and worldwide with victims in France, USA and Canada.

Mumford pleaded guilty to conspiracy to defraud, with a sentence of two years imprisonment. His wife pleaded guilty to money laundering, with a sentence of 12 months imprisonment. Associate Martin Petrskovsky went down for 21 months over conspiracy to defraud. Karen Petrskovsky was sentenced to 12 months imprisonment for conspiracy to defraud, along with Anthony Resse (the man with the white board) and Paul Shepherd, who was convicted of fraud by false representation.

Freedoms

From Kicking The Cornerstone of Democracy (The State of Press Freedom In Australia), a rather overheated and self-involved 61 page report [PDF] from the Media, Entertainment & Arts Alliance (aka the journalists union) and IFJ

A legislated right to privacy needs to be balanced with a right to free expression, or celebrity gold diggers will come out to play (Mark Pearson)

The right to privacy is a relatively modern legal concept. Until the late 19th century, gentlemen used the strictly codified practice of the duel to settle their disputes over embarrassing exposés of their private lives.

The first celebrity to convert his personal affront into a legal suit was the author of The Three Musketeers, Alexandre Dumas père, who in 1867 sued a photographer who had attempted to register copyright of some steamy images of Dumas with the Paris Hilton of the day – 32-year-old actress, Adah Isaacs Menken.

The court held his property rights hadn’t been infringed but that Dumas did have a right to privacy and that the photographer had infringed it.

Across the Atlantic in 1890, the top US jurist Samuel D. Warren teamed with future Supreme Court Justice Louis Brandeis to write the seminal Harvard Law Review article “The right to privacy” after a newspaper printed the guest list of a party held at the Warren family mansion in Boston.

Warren and Brandeis wrote: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”

Celebrities, lawyers, paparazzi and the gossip media were there at the birth of the right to privacy – and the same players occupy that terrain today. While both privacy and free expression are recognised in many national constitutions and in international human rights treaties, Australia is rare among Western democracies in that it has no constitutional or Bill of Rights protection for either. That distinguishes us from the United States, United Kingdom, Canada and New Zealand which all have constitutional or rights charter requirements that proposed laws must be considered for their potential impact on free expression. It is one of the main reasons for the complex array of legislation, court decisions and industry codes of practice limiting Australian journalists’ intrusion into the affairs of their fellow citizens.

Laws covering defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright all have a privacy dimension. The Privacy Act controls the collection and storage of private information by corporations and government.

There are very few situations where media intrusion into privacy isn’t covered by either one of these laws or the journalists’ code of ethics. Proposals to replace the self-regulated ethics systems with a statutory news media regulator would add yet another layer to the regulation of privacy intrusions.

The crux of the proposed “statutory cause of action for a serious invasion of privacy” is whether a citizen should have the right to sue over a privacy breach and receive an award of damages or an injunction to stop publication.

Over the ditch, Kiwi journalists now have to navigate a judge-made right to privacy that, interestingly, developed from a celebrity suit in which the plaintiffs lost the case.

Mike and Marie Hosking were New Zealand media personalities who had adopted twins and later separated. They asked for their privacy, but a magazine photographer snapped the mother walking the twins in their stroller in a public place. They sued, claiming breach of privacy. The NZ Court of Appeal invented a new action for breach of privacy, but held that it did not apply in this particular case.

The Kiwi privacy invasion test requires “the existence of facts in respect of which there is a reasonable expectation of privacy” and that “publicity given to those private facts that would be considered highly offensive to an objective reasonable person”. But this is set against the backdrop of the New Zealand Bill of Rights Act which protects free expression.

Australia’s High Court famously left the door open for a possible privacy tort in the ABC v. Lenah Game Meats case in 2001, after animal liberationists had secretly filmed the slaughter of possums in an abattoir in Tasmania and the ABC wanted to broadcast the footage – the fruits of the trespass.

It is hard to quarantine this latest push by the federal government from the News of the World scandal in the UK and the Greens-championed Finkelstein inquiry into media regulation.

The government had effectively sat on the Australian Law Reform Commission’s proposal for the statutory cause of action for three years before it released its Issues Paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy last September, in the wake of the phone hacking revelations from London.

Few journalists or their media organisations object to the notion of their fellow citizens’ embarrassing private information being kept secret. However, it is in the midst of a breaking story like that involving collar bomb extortion victim Madeleine Pulver, a celebrity scoop like the Sonny Bill Williams toilet tryst images or the case of the fake Pauline Hanson photos that genuine “public interest” gives way to audience gratification and the resulting boost to circulation, ratings or page views.

Free expression is already greatly diminished by this mire of privacy-related laws and regulations without adding a new statutory cause of action for privacy.

But if this latest proposal is advanced further, journalists should insist on:

• a free expression and public interest defence reinforced in the strongest possible terms
• removal of the existing laws it would duplicate
• a strong “offer of amends” defence like that now operating in defamation law and alternative dispute resolution provisions to deter celebrity gold diggers.

Short of a Bill of Rights enshrining the freedom of the press and free expression, these demands amount to the minimum the news media deserve in a Western democracy.

One reason for a tort, of course, is that protestation of efficacious self-regulation and practitioner codes of ethics have on occasion proved to be quite empty.

With freedom comes responsibility. It's a freedom that has been abused by leading media organisations such as News, an abuse that has been inadequately condemned by the MEAA. That organisation has historically been ineffectual in dealing with instances where "genuine 'public interest' gives way to audience gratification".

All ok, says President Pangloss?

From a 'provocation' in the latest issue of The Summons, the UC Students Law Society journal -

UC Law students are trained to question rhetoric, puncture pomposity, look beneath the glittering façade that cloaks self-interest and even cruelty.

The search for what one legal realist characterised as the ‘skull beneath the skin’ may be invigorating rather than enervating, inspiring rather than productive of the depression and disengagement that’s of increasing concern to law academics and bodies such as the Tristan Jepson Memorial Foundation. If you want to change the world you need to know what the world is like, rather than being soothed by lullabies from Collins Street or promises from the big white building with the flagpole on the other side of the lake.

What do those students think of the latest speech by Bathurst CJ of the NSW Supreme Court and the indignant response by Law Council of Australia president Catherine Gale, the apologist for Law Inc and provider of reassurance that we don’t really need to worry about law as an industry or a profession?

Are law students indeed aware of that exchange and of underlying issues in the shape of legal practice or education, issues that are reflected in developments such as offshoring to law factories in India and a relentless ‘partnering’ of major law groups with overseas competitors?

Gale is reported as fearing that Bathurst CJ has left the public with a distorted perception of the major firms' work practices and culture: he is apparently wrong to suggest young lawyers are being exploited and indoctrinated into cultures in which professional duties could be "superseded for personal gain". Moreover, “to suggest that … our young lawyers are exposed to exploitation in the pursuit of profit, thereby directly conflicting with their professional duties, is simply incorrect".

Ms Gale reportedly does not believe that large law firms value their lawyers according to billable hours, although conceding that "a large law firm is no different in many respects from any other large business that employs a large number of people”. I, on the other hand, do not believe in the tooth fairy, santa claus or the omniscience of the MBAs who gave us the Global Financial Crisis.

Gale was responding to ‘Commercialisation Of Legal Practice: Conflict Ab Initio, Conflict De Futuro’ [PDF], a speech by the Chief Justice to the Commonwealth Law Association Regional Conference on 21 April.

Bathurst CJ noted that

conflicts between mercantilism and professional obligations have been present since the time of the first legal practitioners and will continue to be grappled with in the future. Second, this conflict between profit and professional ethics is at the core of concerns over the commercialisation of legal practice. Third, commercialisation is not inherently bad or evil; it is a different set of means and ends, which both complement and conflict with the means and ends of professional legal practice.

 Commercialisation – in particular the growth of mega-practices - is “not some inherent evil, whittling away at the noble heart of legal practice”. However, at the heart of concerns about commercialisation is 

the question of whether profit motivations compromise the core values and obligations of professional conduct. For example, the rise of litigation funders and mega-firms, the public listing of incorporated legal practices, the increased prevalence of private arbitration, international outsourcing, and the growing role of in-house counsel, all raise questions about how duties to clients and the courts may conflict with business practice, profit incentives and corporate expectations. In a phrase: Profit versus professional ethics. 

In his cogent speech the Chief Justice comments that there is an ongoing need to “engage in fearless, open discussion about how age-old professional ethics should be upheld and reinforced in the modern world”. Open discussion and debate “is, in itself, an expression of ethical practice”.

A more positive contribution by the Law Council, and by parts of legal academia that equate professionalism with silence, would seem to be a useful part of that debate.

Sexting

The Victorian Parliament's Law Reform Committee has called for submissions for its Inquiry into Sexting.

The Inquiry terms of reference define sexting as “the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people”.

The Committee is to examine -

the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people, (known as 'sexting') .... and report no later than 30 June 2012, including:

• the incidence, prevalence and nature of sexting in Victoria;  

• the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting; 

• the appropriateness and adequacy of existing laws, especially criminal offences and the application of the sex offenders register, that may apply to the practice of sexting, particularly with regard to the creation, possession and transmission of sexually suggestive or explicit messages and images in circumstances where a person:

• creates, or consents to the creation of, the message or image for his or her own private use and/or the use of one or more other specific persons; or
• creates, or consents to the creation of, the message or image and without their knowledge and/or their consent the message or image is disseminated more broadly than the person intended.

 The Inquiry, rolled over from last year, coincides with tabling last month of a report by the Victorian Law Reform Commission that called for the removal of the state's sex offender register (and by extension from nationally accessible criminal databases) of young people listed for sexting offences.

The Law Reform Commission recommended establishment of a specialist panel to review the circumstances of over 4000 Victorians registered as sex offenders under the Sex Offenders Registration Act 2004 (Vic) and "remove people from the register who do not present a risk", thereby ensuring that the state registration scheme applies only to those offenders who posed a genuine risk of sexually abusing children. Acting Law Reform Commission chairman David Jones commented that although it was unusual for the consequences of criminal proceedings to be revisited, in the interests of fairness the government needed to do so in these cases. That comment was endorsed by Police Chief Commissioner Ken Lay, who referred to police struggling to manage the register, and reflected submissions by a range of bodies noted in chapter 5 of the report.

Last year the Commission commented that -

The sex offenders register, maintained by Victoria Police, contains the details of individuals convicted of nominated sexual offences. The registration scheme aims to ensure police remain informed of the whereabouts and personal details of sex offenders. The scheme also aims to prevent registered sex offenders working with children.

There are Victorian and Commonwealth legislative prohibitions on sexting where minors are involved – where the image depicts a person engaging in sexual activity who is under the age of 18 or who appears to be under the age of 18. Sentencing for these offences can result in inclusion on the sex offenders register.

Sexting where images are forwarded via mobile phone, particularly without the consent of a party to the image, poses serious privacy issues. Concern has focused on some of the longer-term consequences for people who engage in sexting – with the risk that permanent digital images could be distributed through social media and on the internet.

Commentators have pointed to a lack of understanding of the law among young people, and the potential consequences if they are convicted of serious sexual offences in relation to sexting and placed on the sex offenders register.

The pervasive use of mobile phones, many including high definition photo and video cameras, means technology and practices among some segments of the population may have outpaced legislative regimes.

Sexting involving minors raises particularly difficult legal and policy questions. The conduct can range from the unwise but relatively harmless, where it may be between consenting teenagers, to the more insidious and predatory, including where images can fall into the hands of repeat child sex offenders. The evident difficulties distinguishing in law between these types of conduct, with the broad range of behaviours in between, will arguably continue to be a challenge for policymakers both here and in other jurisdictions.

Health Libertarianism

Given Australian debate about state-subsidised homeopathic and other 'complementary' medicine such as Reiki the article 'The Origins of American Health Libertarianism' by Lewis Grossman in Yale Journal of Health Policy, Law, and Ethics (forthcoming) is of interest.

Grossman examines -

the persistent American demand for freedom of therapeutic choice as a popular constitutional movement with its origins in the nation’s earliest years. It also shows how multiple concepts of freedom, in addition to bodily freedom, have contributed to the concept of a constitutional right to medical liberty.

There is a deep current of belief in the United States that people have a right to choose their preferred treatments without government interference. Cries of “Death Panels” are routinely directed against health care reform proposals that might limit patients’ access to medical products and procedures. FDA is furiously attacked, on freedom of choice grounds, for withdrawing approval of drugs. Polls show overwhelming support for the legalization of medical marijuana.

This attitude of therapeutic libertarianism is not new. Drawing mainly on primary historical sources, this Article examines early American arguments in favor of freedom of therapeutic choice. First, it considers the views and statements of Benjamin Rush, an influential founding father who was also the most prominent American physician of his era. The Article then analyzes the antebellum battle against state medical licensing laws waged by botanical practitioners and their supporters. This triumphant struggle, though occurring almost entirely outside of court, was waged in explicitly constitutional terms. It thus offers one of the most striking examples of a successful popular constitutional movement in American history. The Article also demonstrates that at its origins, American commitment to freedom of therapeutic choice was based on notions of economic freedom, freedom of religion, and freedom of inquiry, as well as bodily freedom.

He comments that

The inexorable rise of frequently effective scientific medicine and “wonder drugs” in the early twentieth century posed a serious challenge to alternative medicine. Nevertheless, a notable feature of the story of Ameri-can alternative medicine during the past century has been its remarkable ability to thwart attempts by the government (frequently backed by organized medicine and the pharmaceutical industry) to restrict access to alternative practitioners and products. Interest in and use of alternative remedies have soared since the 1970s, along with broad cultural skepticism about science and technology. Modern campaigns for medical freedom outside orthodox medicine, though often led by financially-interested alternative medicine practitioners and manufacturers, are regularly bolstered by massive outpourings of popular support. Moreover, the rhetoric supporting these campaigns bears many similarities to the antebellum struggle against medical licensing, including “thin constitutional” claims of individual rights, populist rages against unholy alliances between government and the medical establishment, and multidimensional freedom arguments invoking not only bodily liberty, but also economic freedom and freedom of conscience and religion. ...

It remains to be seen, however, whether promoters of freedom of therapeutic choice within orthodox medicine can construct a persuasive multi-pronged argument similar to the Thomsonians’ rhetoric of the nine-teenth century. Many people arguing for freer access to unapproved pharmaceutical products do not embrace economic libertarianism and broader hostility to government. To the contrary, they value FDA’s role as a gate-keeper ensuring drug safety and effectiveness, and they energetically campaign for more government funding of medical research. In the 1980s, for example, the leaders of a demonstration at FDA headquarters by AIDS activists demanding earlier and greater access to experimental drugs warned: “Aids [sic] advocates must be careful to keep their agenda  ... from being confused with the Bush/Wall Street Journal/Heritage Foundation Agenda of sweeping drug industry deregulation.”

Furthermore, freedom of religion arguments are largely absent from the rhetoric of activists urging freedom of patient choice within orthodox medicine, perhaps because modern scientific medicine, with its materialist and empirical underpinnings, has a tenuous connections to spiritual matters. Finally, and importantly, contemporary arguments for liberty within orthodox medicine rarely invoke the freedom of inquiry strand of medical freedom. Since the middle of the twentieth century, the gold standard for establishing medical effectiveness has been the meticulously structured, highly restricted, placebo-controlled clinical study. In this regime, the unregulated use of unproven remedies tends to undermine, rather than advance, the pur-suit of truth.

It is thus possible that freedom of therapeutic choice within orthodox medicine will not assume the features of a broad popular constitutionalist movement. But this result is not foreordained. Perhaps bodily freedom arguments alone can drive such a movement. Or maybe conditions will change so as to enhance the modern relevance of one or more of the other traditional strands of medical freedom. In any event, the stubborn American insistence on freedom of therapeutic choice is something policymakers inevitably will have to wrestle with as they struggle to devise solutions to the health care crisis of the twenty-first century.

Reproductive Autonomy

'Reframing Roe: Property Over Privacy by Rebecca Rausch in 17(1) Berkeley Journal of Gender, Law & Justice (2012) argues that -

Roe v. Wade has received much criticism from both sides of the political spectrum. Though the perspectives of the two camps differ significantly, players from each share at least one common critique of the landmark decision. Specifically, both sides are skeptical about the lack of an express Constitutional right to privacy, on which the Supreme Court in Roe based its decision to find a “fundamental” right to abortion. This lack of Constitutional context and legal history renders Roe vulnerable. In addition, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or access support from the government; it is relegated to the land of negative rights, which might provide the right woman with reproductive choice free from government intrusion, but for the wrong woman - one with limited resources - the so-called “choice” becomes nonexistent.

This article investigates whether the absence of positive rights and the foundational flaw of the right to privacy might be adequately addressed by reframing Roe in the language of property - specifically, a woman’s property right in her uterus. Assuming arguendo the anti-choice tenet that the fetus is a person from the moment of conception, separate from the woman carrying it, the article sets forth an argument that the fetus is an unwanted trespasser in the woman’s uterus whom the woman has a right to eject. Further, the article posits that this property-based notion of abortion might give rise to government funding for abortions based on a Constitutional obligation to maintain a system designed to protect women’s uterine property, similar to states’ obligations to maintain a police force in order to protect other forms of private property, including the removal of trespassers. In short, this article provides a new basis for abortion rights that takes advantage of the long-standing traditional notions of property law and the right to exclude, as well as the public support that attaches to that right, manifested through anti-trespass systems. After establishing the property-based argument, the article explores what might be gained, and what might be lost, by adopting such a premise for abortion rights and access. Among these considerations is whether the anti-trespass scheme might push the abortion discourse beyond the typical polarizing rhetoric surrounding both the pro-choice and anti-choice camps, thus generating space for forward movement and meaningful work.

Innovation

'Innovation and Antitrust Policy' (Minnesota Legal Studies Research Paper No. 12-14) by Thomas Cotter argues that -

antitrust can play a limited but non-negligible role in fostering innovation in three principal ways. First, and as a general matter, antitrust promotes innovation when it performs its traditional role of penalizing practices such as horizontal price fixing and other anticompetitive practices that offer no plausible procompetitive justification, even when such practices happen to involve intellectual property rights (IPRs). As a general matter, in other words, antitrust should avoid IP exceptionalism. Second, however, in some limited contexts, antitrust should deviate from this general standard by showing greater leniency toward joint conduct, for example on the part of standard setting organization members, that is intended to make new technology more widely available. Third, in yet more limited contexts, antitrust should deviate from the general standard in the opposite direction, by playing a more aggressive role in circumstances in which the conduct at issue poses even an objectively small risk to future innovation, if that risk (should it come to pass) threatens substantial social harm, and decisionmakers can be confident that the potential procompetitive benefits of tolerating the conduct at issue are only modest. For the most part, however, to the extent patent and other IP laws are perceived as conferring excessive protection or otherwise as undermining, rather than advancing, their stated purpose of promoting the progress of science and the useful arts, reform must come from the IP side, not the antitrust side. Antitrust’s role in promoting innovation is important but nevertheless constrained by the limited reach of the statute and by courts’ competence to second-guess legislative judgments about the appropriate scope of IPRs.