Noncompetes

'Driving Performance: A Growth Theory of Noncompete Law' by Orly Lobel and On Amir in (2013) 16(3) Stanford Technology Law Review comments

Traditional law and economic analysis views post-employment restrictions, ranging from non-compete agreements to intellectual property controls over an ex-employee’s knowledge and skill, as necessary for economic investment and market growth. The orthodox economic analysis theorizes that without such contractual and regulatory protections, businesses would under-invest in research, development, and human capital. This Article challenges the orthodox analysis by introducing both behavioral dimensions and endogenous growth effects of job mobility over time. The article empirically tests the behavioral dimension with original experimental research demonstrating that contractual backgrounds in market relations impact motivation and performance. The behavioral study, simulating a job market, finds that participants constrained by post-employment restrictions significantly under-performed in the assigned experimental tasks. The Article integrates these experimental findings with new empirical evidence about positive spillovers, network effects, and economic growth in jurisdictions with lesser legal constraints on job mobility and information flows. The behavioral and dynamic growth effects elaborated in the article help explain regional advantage in patenting rates, entrepreneurship, and market growth of jurisdictions that employ weaker human capital controls. Combining the behavioral and network perspectives, the article develops a new lens through which to analyze the costs and benefits of human capital restrictions.

Rogues, Vagabonds and Conycatchers

From Singapore's Miscellaneous Offences (Public Order and Nuisance) Act -

27. Rogues and vagabonds

(1) Every person —

(a) committing any of the offences mentioned in section 26, after having been previously convicted as an idle and disorderly person;

(b) pretending or professing to tell fortunes in any manner which causes or is likely to cause a public nuisance, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose upon any person; [ie a survival of the Elizabethan prohibition on fortune telling and practice of "subtle craft" noted here.]

(c) wilfully exposing to view, in any street, road, highway or public place, any obscene print, picture or other indecent exhibition;

(d) wilfully, openly, lewdly and obscenely exposing his person in any street, road or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female;

(e) going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence;

(f) having in his possession without lawful excuse any instrument or material with intent to commit any offence;

(g) being found in or upon any dwelling-house, or premises for the custody of property, or in any enclosed yard, garden or area, for any unlawful purpose; or

(h) arrested as an idle and disorderly person who violently resists arrest and being subsequently convicted of the offence for which he was arrested, shall be deemed to be a rogue and vagabond within the meaning of this Part and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 3 months or to both. [10/89; 12/96]

(2) Every suspected person or reputed thief, frequenting or loitering in or about any river, canal or navigable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway or place adjacent thereto, or in any highway or any place adjacent to a street or highway, with intent to commit a seizable and non-bailable offence, shall be deemed to be a rogue and vagabond within the meaning of this Part and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 3 months or to both.

(3) In proving the intent referred to in subsection (2), it shall not be necessary to show that the person suspected was guilty of any particular act or acts tending to show his purpose or intent, and he may be convicted if, from the circumstances of the case, and from his known character as proved to the court, it appears that his intent was to commit a seizable and non-bailable offence. 

Section 17 of the Act ('Penalty for depositing corpse or dying person') provides that

Any person who deposits or causes to be deposited any corpse or any dying person in any public place or in any private place without the consent of the owner shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months or to both.

Grounded

In Australian Competition and Consumer Commission v Flight Centre Limited (No 3) [2014] FCA 292 the Federal Court has made declarations and ordered that Flight Centre pay aggregate $11 million penalties  for repeatedly attempting to enter into anti-competitive arrangements with three international airlines.

The Australian Competition & Consumer Commission indicates that Flight Centre sought to eliminate differences in the international air fares offered to customers.

Last year in Australian Competition and Consumer Commission v Flight Centre Limited (No 2) [2013] FCA 1313  the Court found that Flight Centre

• competed with international airlines for the retail or distribution margin on the sale of international air fares and 
• had sought on six occasions between 2005 and 2009 to prevent certain airlines from undercutting it on these air fares
• had attempted to induce an anti-competitive arrangement to eliminate differences in air fares so as to maintain Flight Centre’s margins on each of those six occasions. 

It  found that Flight Centre’s conduct, extending over a  four year periods, formed part of

a concerted pattern of reactive corporate conduct by Flight Centre, reactive to a threat it perceived to be presented by the direct retail offering by airlines of air travel at fares it could not offer to retail customers, as opposed to a series of unrelated, isolated, idiosyncratic aberrations [with] the aggravating, adverse consequence of denying a would-be passenger a lower fare for air travel which the airline supplies. 

Logan J stated that he considered the emails sent in 2009 by Flight Centre Chief Executive and Managing Director Graham Turner evidenced “the most blatant of all the charged attempts to induce.”

ACCC Chair Rod Sims commented that

The ACCC took this action because it was concerned about the potential effect of Flight Centre’s conduct on competition and its ultimate impact upon the prices available to consumers.

The Court’s finding that Flight Centre’s conduct attempted to eliminate differences in the international air fares offered to consumers demonstrates the ACCC’s concern was well-founded. 

In the current judgment Logan J stated that

there is no doubt in the present case that commercial profit was the “driver” in Flight Centre’s contravening conduct. Further, it is the nature of such conduct that it is not engaged in in public. Its detection is almost invariably difficult and its investigation and related litigation involves the allocation of considerable public resources.

Archives

'Authority in the Archives' by Paul Halliday in (2014) 1(1) Critical Analysis of Law: An International and Interdisciplinary Law Review offers

a critique of the sensory deprivation under which legal studies normally operate by exploring how material forms shape law’s substance. Archives and the objects in them used for storing precedents have a history that we must understand if we are to ascribe meaning and authority to the texts they contain. Thus the images here do not simply illustrate propositions; they raise and answer questions about how physical forms constrain what is knowable as law. We can see this by studying practices in the eighteenth-century English court of King’s Bench, and especially the manuscript precedent books made by that court’s clerks. Examining one case — of the liberal campaigner, John Wilkes — we can watch clerks shaping authority as they used indexing tools of their own making to find the crucial precedents. Those same clerks then turned the case into a precedent by storing the results in the archive over which they were masters.

Halliday comments

Precedents matter. A nineteenth-century clerk in the Crown Office of the Court of King’s Bench appreciated this as he jotted Shakespeare’s lines into the front of his manuscript precedent book. That book provided clerks in his office with a great collection of examples. But it was only one of many such custom-made books serving as guides to the contents of other books, and to thousands of rolls and files he and his companions held in their care. Those records remind us that precedents exist as things. We have to store them; if we want to use them, we must find them again.

What follows is an exploration of the stuff of law: the physical objects and procedures for storing, using, and finding precedents to generate legal authority. In the eighteenth century, that authority pronounced itself in the voices of people called justices. But their voices could not have spoken authoritatively without the work of court clerks in an archive those clerks created and controlled. It was they who found the authorities; it was they who, once new authorities were made, put them back into the archive where they might be found again.

As Frederick Schauer has put it, “law is, at bottom, an authoritative practice,” one resting on citations. When Shakespeare had Henry VIII ask for a precedent, and when a court clerk two centuries later noted that line in one of his precedent books, they were both saying, “give me a citation.” They demanded textual and thus physical evidence of the previous thinking of some thought or practicing of some practice to justify acting again according to the same thought or practice. Because citation is “intimately connected with the authoritative core of the idea of law,” and because citations must remain to us in some physical form, law is not at bottom an authoritative practice; it is an archival one. And archival practice, like other legal practices and ideas, has a history. If we do not understand that history, we cannot hope to understand law and the authority claimed whenever anyone attempts to pronounce what is law.

Realizing this matters as much as the precedents themselves. How law as an archival practice was and is conducted shapes what law is and will be. Understanding the people who conducted this practice forces us to think again about where and how authority is made. It is easy enough for a modern justice to write the words, “Lord Mansfield wrote …” as he attempts to make his own authority out of Mansfield’s. But it is not entirely clear how his lordship came to write the ascribed words 250 years ago and thus what it might mean that he did so (or did not). Upon closer examination, we will find that authority, because it arises from an archive and citations to the archive, is made by a community of actors rather than by the exalted individual on whom both our legal histories and our legal arguments dwell.

Given this, how we write the history of legal ideas and the ways we employ them in legal problem-solving today must be reconceived from the archive up. The main approach to the history of legal ideas is fundamentally biographical: we line up ideas by lining up a series of utterances made by identifiable individuals—usually justices, sometimes the authors of treatises we accord canonical status. Rather than work in this monodimensional mode, I want us to do prosopography: to work from a collective biography and a set of practices of a community whose members created and mastered the archive out of which authority was, is, and must continue to be made. Borrowing an insight from Steven Shapin, we must appreciate “the epistemic role of support personnel” whose work has been “rendered invisible” in legal analysis and legal history “by positing a solitary knower as the sufficient maker” of authority. Peering behind that solitary figure, we discover that legal authority, like scientific knowledge, “is produced by and in a network of actors.” In the eighteenth century, justices rarely gave much sign of their place in that network, so wider contributions to authority have been overlooked. If we look hard, we can see the network in action: we can begin to consider the many ways that the role of clerks in the archive should force us to reexamine our own citation practices, whether we write law’s history or attempt to write its future.

To do this, I want to examine eighteenth-century practices in the archive of one English court, the court of King’s Bench. We will look to this period because two key developments intertwined then to transform the meaning and purposes of precedent and its role in generating authority. The first concerns judicial understandings of precedent. Over the course of the seventeenth century, English courts had come to place a greater reliance on the evidence of earlier cases — on examples — to determine cases coming before them. But only in the later eighteenth century did this practice begin to gel into habits and doctrines by which judges felt themselves directed or bound by such earlier cases. Second, this conceptual development was causally related to another development on a front we typically overlook: clerical practice, archival practice. It was the clerks who literally made the precedents by turning them into things: into words inked onto pages and rolls. It was they who made precedents by making it possible to find those same things again as needed. And it was they who made records into an archive.

Our traditional focus in the history and philosophy of law and its practices is on words. Reasonable enough: the law is made of words. But our obsessive attention to words causes us to miss something of vital importance: the law is also made of things. We must examine things closely to see this, and to see how the material forms by which law persists in a world of embodied beings controls what is known and knowable — what has been and will be authority.

We will thus proceed from ideas to the objects by which we hold and transmit ideas. We will move from generality to specificity, from law to history, from claims about the nature of precedent and authority and archives as theorized phenomena to temporally situated practices. We will go into the archive to see what is there. The images we will examine below do not illustrate propositions; they generate them. Looking at them should remind us of the sensory deprivation within which most accounts of law’s work operates. In the end, we will resolve upon a single case. By circling inward to look with ever-greater granularity at the stuff of law, we will reach a position from which we might think anew about authority and where it comes from. For though a justice may speak, he does not act alone.

Veils

'The Legal Recognition of Personality: Full Face Veils and Permissible Choices' by Jill Marshall in (2014) 10 International Journal of Law in Context 64-80 argues 

A woman’s freedom to develop her personality or identity as she sees fit is supposed to be legally protected in twenty first century Europe. The European Convention on Human Rights (ECHR) provides a right to respect for one’s private life in Article 8 which has been judicially interpreted to provide a right to identity or personality development. Additionally, Article 14 provides for non-discrimination and Article 9 and 10 for freedom of expression, including that which is religious. Arguments are examined of some different interpretations of the overall purpose of human rights law -- to respect human dignity and human freedom. These are examined by reference to the recent criminalization of wearing face coverings in public places in certain European countries where the intention is to prevent the wearing of the Islamic full face veil. It is argued that each woman’s identity is legally recognized when the concepts of human dignity and human freedom are interpreted as empowering and self-determining rather than constraining and paternalistic. Legally banning full face veils, in liberal democracies in situations where an adult woman says she has freely chosen to wear such a garment, misrecognizes her and disrespects her identity or personality: as a human being, as a member of a religious or cultural group and as an individual person capable of subjectively interpreting her own identity or personality as she sees fit.

Disclosure

'Shadows Amid Sunshine: Regulating Financial Conflicts of Interest in Medical Research' by Richard S. Saver in (2014) 145 CHEST 379 comments -

The controversial Physician Payments Sunshine Act (Sunshine Act) makes public a wide range of financial relationships between industry, physicians, and teaching hospitals. A response in part to increasing concern about financial conflicts arising in clinical trials, the Sunshine Act applies quite broadly in the research setting. This article considers the implications of the Sunshine Act for medical research. It also identifies important unresolved issues and implementation challenges that still lie ahead with the rollout of the legislation underway. Among reasons to question the law's effectiveness, some public reporting can likely be avoided through restructuring of financial relationships with greater participation by allied health professionals and distributors in place of physicians and manufacturers. Of even greater concern, the Sunshine Act primarily depends upon disclosure as a regulatory strategy, making its long-term impact open to question. Disclosure in the research context may have limited utility given uncertainty about who the intended recipients are and their ability to use the information effectively. Apart from the insufficiency of transparency, this article further explores how proportionality, fairness, and accountability considerations make optimal regulation of financial conflicts in medical research quite challenging.

In a dead man's shoes

'Lawyer allegedly used dead man's MCC member card' by Louise Hall in today's SMH reports that

A Sydney lawyer allegedly caught using the identity of a dead client to access the prized Members Reserve at the Melbourne Cricket Ground during AFL grand finals could be struck off the roll of solicitors.

Denis Manning Anderson was escorted from the stadium after security officers intercepted him using the membership card of Michael Alfred Starkey - who died almost 15 years earlier - at last year's match. 

It would appear that the 78 year old Anderson, described as a criminal law specialist, may have been using the deceased member's identity - with a yearly subscription fee of up to $625 - for much of the 15 year period.

The SMH comments that "Membership of the Melbourne Cricket Club is notoriously difficult to earn. There are about 233,000 people on the waiting list". Membership is  nontransferable.

 MCC spokesman Shane Brown said the club received a tip-off that a man was "using a membership card of a deceased person".

"After an investigation, the club intercepted the individual attempting to access the MCC Members Reserve at the 2013 AFL grand final", he said.

"The membership was subsequently cancelled and the individual was escorted from the stadium". ...

MCC full members are entitled to use the MCG Members Reserve without charge for all domestic and international cricket matches including the Boxing Day test and all AFL fixtures, including the grand final. Entrance to the members dining room, entertaining guests and reciprocal rights at clubs around the world are some of the perks.

The NYT meanwhile reports on 'end of life services', which allow you to plan "life’s last big event in the same way you might plan a wedding or another major occasion".

Everplan for example "walks users through what an end-of-life and estate plan should include, provides a place to store everything and goes as far as offering reviews on funeral homes and nearby restaurants. It will also handle the invitation" but apparently not "sending emails from the grave".

The Times comments

The next obvious question: How secure are these sites, particularly when storing so much personal information — even passwords — in one place? Most of these services advertise bank-level security and include other talk about encryption, which doesn’t mean much to most people.

In fact, Bruce Schneier, a well-known computer security expert, said a lot of hacking had nothing to do with encryption. You ultimately have to trust the company, he said, because somebody, somewhere, probably has access to the decryption keys.

Mr. Schneier said he would like to see some type of legal fiduciary responsibility. If the company makes a mistake, he asked, who is at fault? That’s a good question to keep in mind if you’re considering using these services.

An Everplan account

serves as a repository for just about everything: financial accounts and legal documents; where to find your Social Security card and life insurance policy; how to close the cable television account, to name but a few. There’s also room to share life lessons or an explanation of why your will was written a certain way. If you already have a contract with a funeral home or crematorium, you can upload that, too. How and when do your loved ones get access? You assign specific “deputies” for your plan, so they can find everything neatly in one place. Much of the site is free, but if you want to upload documents and have more than one deputy, the service costs $35 annually.

As you fill out your checklist, you’ll also notice a couple of “preferred providers,” including Integrity Life Solutions, an insurance and annuity firm, and Rapidocs, which helps you create legal documents, including wills, online. ... Right now, the co-creators said they weren’t getting paid for referring you to these companies, but it’s possible they might in the future.

The co-founders promise that, even if the company is sold in the future, they are working on a system that would allow people to gain access to their plans for at least the next 50 years.

Competitor Principled Heart requires three people  to validate the account owner’s death, with the site (US$45 per year for up to one gigabyte of storage) then providing access to the information.

AfterSteps

begins by asking you to name three verifiers ... the people who will be notified in the event of your death and will get access to all the information stored on the site (either now or a time you specify later). After you enter basic personal details, it asks who should be contacted by the verifiers after you die. ... Like the other sites, it provides a spot for other legal forms. You can also store passwords and instructions for digital accounts, upload photos and share wishes for your funeral arrangements, among other things. The site requires a credit card at sign-up — it costs $60 a year or $299 for life — but there is a free 14-day trial period.