Taxonomies

'Mapping the Common Law: Some Lessons from History' by Michael Lobban in (2014) 1 New Zealand Law Review 21-67

 explores the ways in which jurists from the 17th to the 19th centuries attempted to map the law. There were multiple ways of mapping the law and its concepts. No single taxonomy was comprehensive. The most general maps were found in treatises, organised largely around the rights of person and property. However, these treatises did not explain the law of obligations and its workings. A better conceptual mapping of the law of obligations could be found in the common law system of pleading, but even this “map” was incomplete, for it failed to embrace all the concepts which lawyers articulated in courtroom argumentation. Legal taxonomies thus did not determine the development of law: rather, lawyers and jurists used concepts and classifications in a flexible and fluid way. 

'Taxonomy in Private Law — Furor in Text and Subtext' by Peter Watts at 107-144 in the same journals

starts with an overview of the debates that took place in the latter period of Peter Birks’s career over classification in private law. It does so by setting out the Birksian taxonomy, collecting various extracts from Birks’s voluminous output, and then contrasting those extracts with the views of a selection of his most prominent critics. The article next turns to a defence of Birks’s project and its aims of promoting rationality, the confinement of discretion, and modesty of function in the common law. The greater part of the article is devoted to showing how, in tort law particularly, New Zealand common law has lost its modesty and is intruding on personal freedoms. Instead of requiring an undertaking before a party becomes liable for nothing more than causing damage to another’s wealth, liability is being imposed from without by fudging the boundaries between contract and tort, and by using as tools nothing much sharper than “justice and fairness”. The final section of the article turns to criticise, on similar grounds, the concept of unjust enrichment as promoted by Birks himself.

Open Access

In The Queen v Miroslav Jovanovic [2014] ACTSC 98 Refshauge J has provided a nuanced and elegant judgment regarding public access, through the media, to exhibits in a criminal trial.

In February 2014 an ACT jury found Miroslav Jovanovic guilty against of intentionally inflicting grievous bodily harm on Peter Manna at the Belconnen Bus Interchange. The trial featured two extracts of video from CCTV cameras at the Interchange.  Journalists from the Australian Broadcasting Corporation and The Canberra Times sought access to the exhibits to supplementing news stories about the conviction.

Media coverage in the previous year had included the report that

A man accused of a random, near-fatal stabbing at the Belconnen bus interchange earlier this month ignored his girlfriend's pleas of "don't stab him" before launching into the frenzied attack, according to police. 

Miroslav Jovanovic appeared in court on his 55th birthday on Friday over allegations he repeatedly stabbed a man waiting for a bus at the interchange on Lathlain Street on Sunday April 7. 

The alleged stabbing left the 38-year-old victim with six or seven open wounds, a punctured lung, and severed arteries between his ribs, according to court documents. He lost four litres of blood, and police say he would have died without emergency treatment. 

The attack appears to have no clear motive, and CCTV footage does not show the victim attempting to defend himself or fight back at any time, according to police. Police say the victim was standing at a platform about 4.50pm, when Jovanovic ran up behind him and punched him in the back of the head.

The attack apparently became more unpleasant after that punch … grand guignol, Canberra-style, in time for the public sector rush hour.

The requests by the journalists were opposed by Jovanovic's representative at the end of the trial. Refshauge J refused to permit access prior to sentencing. He received a formal request and the ABC provided a written submission.

The Court has now published reasons for granting access.

Refshauge J states that

An important issue for courts is that they are open to the public. The courts do their business in the open. The open justice principle is applied in many cases and in many different situations; the leading authority on the scope of the principle is Scott v Scott [1913] AC 417. It has been invoked to limit or preclude attempts to prevent members of the public from attending the proceedings of courts as in Dickason v Dickason (1913) 17 CLR 50. See also Russell v Russell (1976) 134 CLR 495 at 505.

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). ...

As Gibbs CJ said in Russell v Russell at 520

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). ...

It has to be said that ancillary to this is the role of the media. Indeed, as Spigelman CJ, with whom Handley JA and Campbell AJA agreed, said in John Fairfax Publications Pty Ltd v District Court (NSW) (Unreported, NSWCA, Spigelman CJ, Handley JA, M W Campbell A-JA, 15 September 2004) at [20]

The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.

Naturally not everyone can attend court proceedings and a fair and accurate report of court proceedings is an important part of the way in which the principle of open justice can be implemented. 

Indeed, the Full Court of the Federal Court of Australia suggested in R v Davis (1995) 57 FCR 512 at 514 that, as few members of the public have the time, or even the inclination, to attend courts in person, the open court principle, in a practical sense, demands that the media be free to report the proceedings of the court. 

Lord Widgery CJ said in R v Denbigh Justices; Ex parte Williams [1974] QB 759 at 765

Today, as everybody knows, the great body of the British public get their news of how justice is administered through the press or other mass media, and the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court. I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded.

This importance is recognised in the fact that, despite risks of unfair inferences being drawn that a defendant is guilty, or of influencing potential jurors, a fair and accurate report of committal proceedings is permitted. See Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 25.

The open justice principle has limitations, however, and one of those limitations relates to court files and, therefore, exhibits. 

Open justice and access to exhibits 

Lord Coke was cited in Brown v Cumming (1829) 10 B&C 70; 109 ER 377 as authority for the view that the open justice principle allowed every person to have access to the records of courts. The Court there did not have to decide the issue, though a number of cases were cited to it which were at variance with that view. 

The view of Lord Coke has not prevailed. In R v Waterfield [1975] 1 WLR 711 the UK Court of Appeal held that members of the public have no right to look at exhibits. Thus, Lawton LJ said in the judgment of the Court (at 714)

When evidence is given orally, all in court hear what is said. When written evidence is produced it may or may not be read out. In most cases part of what is written is read out, but not the whole. When a piece of real evidence is produced a witness has to say from where it came. This having been done, the jury looks at the exhibit. Usually the judge does too and counsel in the case may do so. The exhibit, however, is not shown to other persons who may be in court. They may be able to see what the article is: it may be a pistol or a knife. Sometimes they cannot; and if what is produced is a folder containing photographs (a common form of exhibit) they will not know what the photographs show unless either the judge, counsel or a witness describes them ... The members of the public in court have no right to claim to be allowed to look at the exhibits. A film put in evidence has to be looked at by a jury and a screen and a projector are necessary to enable them to do so. Members of the public in court have no more right to see a film than they have to see any other exhibit; and the circumstances may be such that it would be impracticable, even impossible, to show the film in the courtroom itself.

Later, in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 995, Potter LJ, with whom Butler-Sloss LJ and Sir Patrick Russell agreed, held that, other than as read out in court, there was no way that the contents of documents tendered in court were available to members of the public and that the court had no right to provide such documents to the public without the consent of the parties. 

In the United Kingdom, the increasing use of documents which were pre-read by judges or not read out so as to enhance expedition and efficiency has caused the courts to rethink this access issue. Thus, in SmithKline Beecham Biologicals Special Advocate v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-2, Lord Bingham CJ said

Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided. …

Nevertheless, the tension between efficient justice and open justice is bound to give rise to problems which go wider than Order 24, rule 14A. Some of those problems were explored in the judgement of Potter LJ in Gio Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd Intervening) [1999] 1 WLR 984. As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.

In Australia, the approach that the public has no right to see exhibits and like documents seems to have been accepted. Thus, in Herald and Weekly Times Ltd v The Magistrates Court of Victoria (2000) 2 VR 346 the Court of Appeal had to consider access to witness statements and the charge sheet handed up to the court as a “hand up brief” in committal proceedings in the light of s 125(1) of the Magistrates Court Act 1989 (Vic) which provides that all proceedings in the Magistrates Court are to be conducted in open court unless the Act provides otherwise. Charles JA, with whom Tadgell and Chernov JJA agreed, held at 361; [40]

There remains the question whether the Magistrates’ Court, by denying access to the documents sought by the appellants, was acting in breach of s 125(1) of the Act. The learned judge gave comprehensive and compelling reasons for his conclusions that s 125(1) does not extend to obliging the court to provide, upon request, reasonable access to copies of the charges sheet and witness statements. His Honour considered that a proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable and did not think that an open court becomes ‘closed’ if a request by a member of the public or the press for such access were refused in a committal proceeding. For my own part, I agree with each of his Honour’s conclusions in this regard, and with the reasons given. In my view s 125(1) gives the appellants no right to such access in a committal.

That exhibits are not normally available for inspection was subsequently confirmed by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571 at 587; [36] and more recently by Preston CJ in Caroona Coal Action Group Ltd v Coal Mines Australia Ltd (No 4) [2010] NSWLEC 91 at [44]. 

That approach, however, has come under pressure and scrutiny. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) FCA 609 at [4], Finkelstein J pointed out that [i]f it be that the common law does not permit access to written evidence or exhibits (that is to say to the material upon which the judge has relied to decide a case) then the rule of open justice will not effectively secure its objectives. 

His Honour pointed out that such a rule, if such it be, developed when a very different court manner was extant and that things were now very different. His Honour continued at [7]

The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.

There are a number of cases that have since taken that general approach. See, for example, R v Elomar (No 3) [2008] NSWSC 1443, R v Benbrika (No 26) [2008] VSC 452.

Refshauge J went on to consider any human rights issues, commenting

While the interpretative provision in s 30 of the Human Rights Act 2004 (ACT) only applies to statute law, it seems to me that I can have regard to the human rights in that Act as a measure of the approach to be taken to relevant issues. 

Thus, s 16(1) does include a right to receive information. This right, which is equivalent to that included in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been described by Sedley LJ in London Regional Transport v Mayor of London [2001] EWCA (Civ) 1491 at [55] as an important right which is the “lifeblood of democracy”. This has arguably been seen by the European Court of Human Rights as giving the press an enhanced right as “social watchdogs” or “public watch dogs” as the press was described in Tarsasag A Szabadsagjogokert v Hungary (Application No 37374/05, ECHR, Judgment 14 July 2009). 

 In the United Kingdom, it has been held that the press enjoy the rights under Article 10. See In re Guardian News and Media Ltd [2010] 2 WLR 325 at 337; [34] per Lord Rodger of Earlsferry. As was there said, however, this is a right which can be restricted, so that the courts, apparently legitimately, interfere with it when, for example, they make an anonymity order. 

 Nevertheless, in In re Guardian News and Media Ltd at 337; [34], Lord Rodger held that Article 10 did not require information not otherwise available to be provided to the press, hence the court declined to set aside the anonymity orders made by the Court of Appeal. 

In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] 1 Cr App R 447, the Court of Appeal declined to overrule an order of the lower court refusing the press access to certain documents relied on by parties in certain extradition proceedings in the Magistrates Court, even though the documents had been referred to in open court. 

 The Court held that, despite the enhanced role of the press, greater than members of the public, it did not have a right to access the relevant documents which would require an extension of Article 10 rights. 

 It seems to me that the current application is not, on the present state of human rights law, assisted by the jurisprudence on s 16 of the Human Rights Act. 

 Statutory provisions, however, have now intervened and a number of courts have made rules which permit inspection, sometimes by leave of the court. Some courts have proceeded by practice direction. 

In this Court, files of the court are open for inspection. For criminal proceedings, r 4053 of the Court Procedures Rules 2006 (ACT) permits anyone to inspect files and see documents filed in the Registry, with some specified exceptions where leave is required. That the default position is that persons may inspect the files is consistent with the open court principle. 

An exhibit, however, does not seem to me to be a document ordinarily filed in the Registry; it is usually handed up in court. Even when exhibited to an affidavit, it is not usually filed with it, but handed up in court when the affidavit is read. See Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 at 340-3; [10]-[23]. The common law then applies, it seems to me, to exhibits. ...

 In any event, it seems to me that I should approach the application on the basis that the public has a prima facie right to have access to exhibits that are tendered in open court, unless there has been some express direction of the court that they not be inspected. This is the approach adopted elsewhere in other courts. See, for example, R v Xu (No 1) (2005) 152 A Crim R 17 at 21; [23]. 

I have also been assisted in this task by certain Western Australian authority. In Nicholson v Morgan [2012] WASC 65 at [32], Corboy J analysed the relevant authorities and concluded as follows:

(a) an application for leave to access relevant documents is to be determined according to the interests of justice, which includes that justice be administered in the open so that ordinarily access will be granted to non-parties to material read in court or tendered in evidence; 

(b) the principle of open justice applies where access is sought to material that was not tendered in evidence or read or shown in court but which was placed before the judge for the purpose of the proceedings; 

(c) the interests of justice involve different considerations where access is sought to documents that have not been referred to, or used for the purpose of, proceedings in open court, so that the principles of open justice are not generally engaged when documents are filed in the registry but rather when they are used in or for the court; 

(d) it is not necessary to decide whether there is a presumption against granting access to documents which may only be inspected with leave, especially documents such as unread affidavits which may never be used or read and should ordinarily not be made public until then for the reasons set out in Dobson v Hastings [1992] Ch 394 at 401-2; and 

(e) caution must be exercised in granting access to documents on the court file which have not been used in open court. 

The occasions where access is not granted should, it has been suggested in cases such as R v LMW [1999] NSWSC 1111 and David Syme & Co Ltd v General Motors-Holden Ltd [1984] NSWLR 294 at 310 per Samuels JA, be wholly exceptional. I respectfully agree.   

The present application is, of course, not merely for access to the exhibits, but leave to copy them so that the video or excerpts, including single images, can be published. 

There is, it seems to me, a qualitative difference between a report in words and the publication of pictures or video, particularly where the images may be graphic. There are obvious images which should ordinarily be subject to exclusion, such as gruesome or sexual images or images of children. Care needs also to be taken to respect privacy, which may raise issues about images which include people who are no more than witnesses or are unconnected with the proceedings completely. 

For example, there are, in the video seen here, a number of people who are merely potential bus passengers waiting for their expected bus but who, because of the fact the incident happened to occur in front of them, were captured by the video. Of course, not many were or, perhaps, could be identified, not in some cases even by themselves as the CCTV video did not show a particularly clear picture and, in any event, it is not clear to me that a mere bystander could or would be shown in a detrimental light. 

Further, it does not seem to me that I should be too speculative. I could construct a scenario where it is possible that someone may be identified as being at the Interchange even though it turns out that they had told another person (perhaps a partner) that they were somewhere else at the time and that this could be harmful to them if the images are displayed. It seems to me that, in general terms, this goes too far. 

The question, then, is whether, in the circumstances of this particular trial and the particular exhibit sought, it is proper to characterise the circumstances as wholly exceptional so as to require me to decline to permit access. 

While access to inspect an exhibit in the absence of a suppression or non-publication order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is, therefore, to be generally permitted unless there are exceptional circumstances, the media will not be given permission to copy or uplift an exhibit as a matter of course and, it seems to me, this still remains a matter over which the court must exercise control. Nevertheless, in appropriate, perhaps many, cases, probably with an emphasis on open justice, such leave would be granted. 

I note that R v RIK [2004] NSWSC 75, Kirby J released video footage that was poignant and graphic where a person, harassed by a juvenile at a railway station, stood up and walked away and jumped on the railway tracks to make his way to the opposite platform but a train coming in the opposite direction collided with him before he reached safety. 

His Honour held that there were issues of public safety and deterrence. It was more powerful than any description of the same events. 

On the other hand, in R v Benbrika (No 26), Bongiorno J refused to release video footage which would identify an agent of the Australian Security Intelligence Organisation which would be contrary to s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth). 

There is, also, an obvious difference between the release of such exhibits during a trial, when a jury is still empanelled, and after the trial. Some of the issues are discussed in R v Sam (No 5) [2009] NSWSC 543 at [19]-[22], [26], [28]-[29]. 

It is particularly relevant that the video material was played in open court where any member of the public could have seen it had they been in court. Spigelman CJ, with whom Mason P and Beazley JA agreed, considered in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 521; [32] that use of material in open court would often be determinative of the question whether the media should be given access to the material used, though that case concerned documents used in the court to which access was sought, rather than images which were to be copied from the exhibit. 

So far as the leave to have such access as will permit publication of the CCTV footage is concerned, I have been assisted by, again, the general approach of the courts that access should generally be granted. See, for example, Brown v Health Services Union (No 4) [2012] FCA 1376 at [44]-[46].

 He notes at [53]

I am also prepared to accept, as have other judges, that I should proceed on the assumption that the media will produce a fair and accurate report using the material. See, for example, R v Elomar (No 3) at [44], R v LMW at [18]. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643 at 652; [39]-[40], Austin J considered that it was inappropriate to assume that the media “cannot be trusted to report, or even understand, the refined distinctions upon which it is said that the law is required to operate”. This approach was adopted by Barrett J in Jagelman v Sheahan (in liq of Mooge Ltd (in liq) (2002) 41 ACSR 487 at 489; [12]. 

Unfortunately, not all media representatives can be assumed to act in an appropriate manner as Johnstone DCJ discovered in A M v Department of Community Services (DOCS); ex parte Nationwide News Pty Ltd (2008) 6 DCLR(NSW) 329 at [6]-[9]. .... 

In Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 at [27] McLure J set out a series of factors which are relevant to the exercise of a discretion such as this. They were: 

(a) whether and if so to what extent the document has been referred to in open court; 

(b) the stage reached in the proceedings; 

(c) the contents of the document (to assess the nature and seriousness of any allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party); 

(d) the nature of the proceedings;  

(e) whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process; 

(f) the purpose for which access is required. 

This approach was followed and expanded by Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 285. 

In following that approach, I note that the video footage was played in open court. The proceedings have now reached the stage of sentencing. The footage, subject to one matter of privacy, will not have a potential to damage private or commercial interests. The proceedings are, of course, criminal proceedings in which the public have a significant interest, especially where the crime was committed in a public place. In my view, the footage was very relevant to an understanding of the case.

 Refshauge J also considered privacy aspects, commenting

The parties raised as an issue the privacy of Mr Jovanovic’s then partner. They are no longer in a relationship and, indeed, she has now entered another relationship. For this reason, it is sought that no image of her be broadcast. In my view, that is a reasonable restriction.

After a cogent discussion of matters relating to Jovanovic’s associate, awaiting trial, Refshauge concludes that he permitted

an authorised person from the Australian Broadcasting Commission and The Canberra Times such access to the CCTV material exhibited in the trial as to allow them to be able to copy them and broadcast or publish them or images from them, save that no broadcast or publication is permitted of Mr Jovanovic’s partner and I made orders accordingly.

3D Printing and US law

'Patents, Meet Napster: 3D Printing and the Digitization of Things' by Deven R. Desai and Gerard N. Magliocca in Georgetown Law Journal comments that

Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.

3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain — sharing the plans on how to make something in exchange for exclusivity — may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now. …

3D printing is the next step in general-purpose computing. Michelangelo said that he made statues by removing the parts of the stone that hid the sculpture, but 3D printing promises to transform manufacturing by applying the opposite idea.136 Activities that were once the province of only a few are now in the hands of many. The patent system has been able to require disclosure of how a process works, because the cost to infringe was high. Now, cost structures that once required an inventor to find a deep-pocketed outside backer are gone. The design, manufacture, and distribution of goods is easier, faster, and less expensive than ever before.

The give and take between the copyright industries and Silicon Valley indicates that the DMCA, even with its arguable flaws, hit the sort of regulation proper for emerging technologies. For example, Google’s YouTube could have tried to rely on the DMCA and deny any responsibility for content on the site. Yet copyright lawsuits and questions about whether the DMCA was still fair forced a type of self- regulation. YouTube developed Content ID. In that system, copyright holders share digital fingerprints of their work with YouTube. When a user creates a file, it is compared against the fingerprint database. If it appears to be a match, the copyright holder is notified and then chooses how to proceed by either issuing a takedown notice under the DMCA, doing nothing, or choosing to place advertisements and/or links to buy the song on the page where the video is watched.

These tasks can be done at home, in a start-up, or a large business. Patent law and industries that rely on patents will have to adapt to this new environment or face potential obsolescence.

Given the disruptive potential of 3D printing and the large swaths of the economy affected by that technology, it will take just one or two industry groups to force a repeat of the mistakes of the copyright wars instead of applying the best lessons from them. Some may wish to follow the copyright industry’s strategy of seeking new laws to prosecute anyone who uses this new technology to infringe a patent. Some may demand technological solutions similar to digital- rights-management tactics deployed by the copyright industry. Some may want to attack intermediaries who provide the files for potential infringement. The DRM solution has not worked. Attacking blatant piracy sites is still an option, but demanding that intermediaries such as eBay or YouTube be shut down has been rejected as a solution. Thus the book, music, and film industries world have started to abandon such strategies, embraced digital distribution, and still make healthy profits.

3D printing should be lightly regulated because it enables precisely the kind of creation and progress of the useful arts and sciences that intellectual property is supposed to foster. The locus of that good work is shifting but that does not diminish that progress is occurring often faster and at less cost. The dawn of the Web increased and revealed the scale at which individuals and businesses engaged with, shared, and used copyrighted or trademarked intellectual property. At scale, the old models of enforcement and what constituted infringement had to be rethought. To have even the chance for the PC and Web industries to experiment,grow, and thrive, the specter of copyright lawsuits or trademark lawsuits had to be mitigated. Trying to stop or dictate the way a 3D printer is used unduly limits the potential of these general-purpose machines and mimics the failed DRM ideas of the copyright industry. The largest threat comes from uncertainty in the law. Revising patent law to have a high minimum amount-in- controversy as a jurisdictional threshold would create a de facto fair use standard for home and experimental 3D printing activities. In addition, a patent DMCA would strike a balance between rights holders and intermediaries. As has happened in the copyright world, such a law has fostered new marketplaces and revenue models that allow for greater sharing, remixing, and selling of intellectual property. Without these changes, 3D printing could be mired in fights over protecting old business models. And mistaken regulation could fall into path-dependent solutions where creators are told to use a 3D printer only for certain purposes. These changes, however, balance interests and create the space 3D printing needs to become the foundation for the next wave of general-purpose computing and creation.

PRISM and presumed Non-citizenship

'Section 702 and the Collection of International Telephone and Internet Content' by Laura Donohue begins

by considering the origins of the current programs and the relevant authorities — particularly the shift of the content portions of the President’s Surveillance Program, instituted just after 9/11, to the Foreign Intelligence Surveillance Act (FISA). It considers the brief operation of the Protect America Act, before its replacement in 2008 by the FISA Amendments Act.

 The article then turns to statutory questions related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped the statutory restrictions with regard to targeting in three critical ways: by adopting procedures that allow analysts to acquire information not just to or from, but also "about" targets; by creating an assumption of non-U.S. person status; and by failing to construct procedures adequate to ascertain whether the target is located within domestic bounds.

Donohue comments that

h&n On June 6, 2013, the Washington Post and The Guardian captured public attention with headlines claiming that the U.S. National Security Agency (NSA) was collecting large amounts of U.S. citizens’ information.1 The Post reported that the NSA and Federal Bureau of Investigation (FBI) were “tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e- mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.” 

In conjunction with the articles, the press published a series of PowerPoint slides it claimed came from the NSA, describing a program called “PRISM” (also known by its SIGAD, US-984XN). The title slide referred to it as the most used NSA SIGAD. The documents explained that PRISM draws from Microsoft, Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple—some of the largest email, social network, and communications providers—making the type of information that could be obtained substantial: email, video and voice chat, videos, photos, stored data, VoIP, file transfers, video conferencing, notifications of target activity (e.g., logins), social networking details, and special requests. The slides noted that the program started in September 2007, with just one partner (Microsoft), gradually expanding through to the most recent company (Apple, added October 2012), and that the total cost of the program was $20 million per year. As of 2011, most of the more than 250 million Internet communications obtained each year by the NSA under §702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act derived from PRISM. 

A follow-up article two days later printed another slide depicting PRISM and “upstream” collection of communications on fiber cables and infrastructure—i.e., “[c]ollection directly from the servers of. . . U.S. Service Providers.” In contrast to PRISM, upstream collection allows the NSA to acquire Internet communications “as they transit the ‘internet backbone’ facilities.” The NSA could therefore potentially ollect all traffic crossing particular Internet cables—not just information specifically targeted at particular Internet Protocol (IP) addresses or telephone number. This form of interception provides the intelligence community access to information that may be moving outside of the corporate partners employed in PRISM. The slide urged analysts to use both methods to obtain information. The potential yield was substantial: in the first six months of 2011, the NSA acquired more than 13.25 million Internet transactions through its upstream collection. 

Approximately two months after news of PRISM and upstream collection reached the public, the U.S. Director of National Intelligence, James Clapper, confirmed the existence of both collection programs, noting that PRISM had been in operation since Congress had passed the 2008 FISA Amendments Act. Clapper declassified eight documents providing more details: two memorandum opinions issued by the Foreign Intelligence Surveillance Court, communication between the Administration and Congress on the existence and operation of the programs, and the §702 minimization procedures. At the end of August 2013 Clapper announced that the intelligence community would release the total number of §702 orders issued, and targets thereby affected, on an annual basis. 

Although much of the information about PRISM remains classified, from what has been made public, via the press as well as declassification, suggests that the program pushes the statutory language to its limit, even as it raises critical Fourth and First Amendment concerns. Very little scholarship, however, has yet to emerge since June 2013 on the history of the legislative provisions and the questions that accompany the manner in which the intelligence community is interpreting and applying the statute—much less the profound Constitutional questions raised by the same. 

This Article fills the gap. It begins by considering the origins of the current programs and the relevant authorities—particularly the shift of the content portions of the President’s Surveillance Program, instituted just after 9/11, to the Foreign Intelligence Surveillance Act (FISA). It considers the brief operation of the Protect America Act, before its replacement in 2008 by the FISA Amendments Act. 

The Article them turns to statutory questions related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped the statutory restrictions with regard to targeting in three critical ways: by adopting procedures that allow analysts to acquire information not just to or from, but also “about” targets; by creating an assumption of non-U.S. person status; and by failing to construct procedures adequate to ascertain whether the target is located within domestic bounds. These interpretations undermine Congress’ express inclusion of §§703 and 704 and open the door to the collection of U.S. persons’ communications within domestic bounds. Looking beyond the statutory language, to the extent that the FAA is vague or ambiguous, different methods of interpretation raise concern. Noscitur a sociis, in this regard, offers little insight, but the doctrine of ejusdem generis suggests that the NSA’s adherence to the to/from or about method goes beyond the authorities provided by Congress. Even if one rejects originalist interpretations as intellectually antediluvian, and assumes a more dynamic model, the recent passage of the statute places the NSA’s interpretation on shaky ground. 

FISC itself has confronted the problem of statutory language with regard to the FAA’s prohibition of knowingly collecting entirely domestic communications. Although the NSA freely admits to the Court that it does knowingly collect wholly domestic conversations, FISC has responded that because, in any one intercept, the NSA has not developed the technology to know the origins and destination of each packet intercepted, its actions are consistent with the FAA. This interpretation violates the plain language of the statute and calls into question how meaningful FISC’s role is with regard to FAA targeting procedures. 

In the area of post-targeting analysis, the Article draws attention to four areas, asking, first, whether the aim of the analysis conducted by the NSA elucidates (and generates further concern in relation to) the scope of information included at the collection phase. Second, it notes the failure of the NSA’s prior minimization procedures to account for multi-communication transactions and raises question about the extent to which the statute adequately addresses situations in which the NSA collects information either in violation of FISC’s direction or in a manner later found by FISC to be inconsistent with the statutory requirements. Third, the Article addresses the use of U.S. person information to query data, noting Congress’s explicit prohibition of reverse targeting to prevent incursions into the use of §702 and asking whether then allowing such queries bypasses the statutory restrictions. Fourth, it looks at how what can be termed “recombinant” information changes the quality of information obtained under §702. 

In regard to the retention and dissemination of data, the Article raises further concerns. Increasing consumer and industrial reliance on cryptography gives rise to questions about the NSA’s automatic retention of encrypted data. This policy may quickly become the exception that swallows the protections otherwise granted to U.S. persons’ information. In addition, as a matter of statutory language (and not NSA implementation), the retention of all information under §702 implicating “foreign intelligence”—in light of the breadth of the statutory definition of the same— underscores the danger of looking to retention policies to delimit the type of information kept by the intelligence community. Finally, the use of the information obtained under §702 for criminal prosecution, while consistent with provisions applied to information obtained under traditional FISA, is not, at any point, subject to equivalent procedural protections. This discussion leads naturally to Fourth Amendment considerations. 

In the criminal realm, outside of narrowly circumscribed exceptions (discussed, infra), a search is presumptively unreasonable under the Fourth Amendment unless the government first obtains a warrant from a neutral, disinterested magistrate, based on a finding of probable cause of involvement in criminal activity. This applies to all criminal searches within the United States. It does not apply to non-U.S. persons without a significant attachment to the country and who are outside domestic bounds. Between these book-ends, Fourth Amendment doctrine presents in unique form, based on, e.g., whether the search centers on intelligence gathering or criminal prosecution, whether the target is a U.S. person or a non-U.S. person, where the search takes place, and the extent to which U.S. persons’ privacy is implicated. After briefly laying out the broader territory, the Article’s Fourth Amendment analysis focuses on the government’s contention that §702 collection takes place subject to a foreign intelligence exception to the warrant requirement. Noting that in nearly four decades that have elapsed since the Court raised the possibility of such an exception — and since Congress responded to this decision by enacting FISA — not a single case has found a domestic foreign intelligence exception. It points out that, as a matter of the international intercept of U.S. persons’ communications, practice and precedent prior to the FAA turned on a foreign intelligence exception to the warrant requirement that derived from the President’s foreign affairs powers. Criminal investigations overseas similarly did not require warrants. Nevertheless, the Courts required the search of U.S. persons overseas to be consistent with the Fourth Amendment requirement of reasonableness. Through §§703 and 704 of the FAA, Congress has since introduced stronger safeguards for U.S. persons targeted for foreign intelligence purposes. By defaulting to §702, however, and “incidentally” collecting U.S. persons’ international communications, the NSA is bypassing Congressional requirements. Acknowledging that the President and Congress share foreign affairs powers, the executive’s persistent use of §702 may be regarded in Justice Jackson’s third category under Youngstown Sheet & Tube Co. v. Sawyer. 

Even if one takes the position that the Warrant Clause is inapposite to collection of U.S. persons’ information under §702, the FAA and NSA practice must still comport with the reasonableness requirements of the Fourth Amendment. To the extent that the target is a non-U.S. person based outside of domestic bounds, and the communications are to or from the target, the programs appear to be consistent with the constitutional mandate. But to the extent that the NSA interprets the statute to include information about such targets, in the process collecting the communications of wholly domestic communications, as well as conversations between U.S. persons, the practice fails to meet the totality of the circumstances test articulated by the Court with regard to reasonableness. 

Although almost all of the public discussion of §702 has centered on the NSA’s use of its authorities under the statute (indeed, some of it questioning whether the NSA or the FBI has the authority to act), almost no attention has been drawn to the role of the Central Intelligence Agency. The Article concludes by highlighting how little is currently known about the CIA’s targeting, minimization, and retention and dissemination procedures—an omission which, in light of the significant statutory and constitutional questions accompanying the NSA’s use of the same, and restrictions on CIA collection of information about U.S. persons within the United States, raises further concern.

Testing

'A workplace drug testing act for Australia' by Grant Allen, Jason; Jeremy Prichard and Lynden Griggs in (2013) 32(2) University of Queensland Law Journal argues that

 Testing employees on a mandatory basis for alcohol and illicit drugs in the workplace in Australia is not uncommon. However, in those industries where it does occur, such as mining, transportation, and correctional services, and with the understanding that the employer does have the right to insist that the employees be tested, what are the corresponding obligations vis-a-vis the employees' privacy and safety. What our analysis will show is that while privacy remains the prevalent employee concern, workplace drug testing can be justified for reasons of employer productivity, safety within the workplace, and the integrity expected of employees within industries where the community would be adversely sensitive to any notion that the employees were not observing the legal and moral code expected of law-abiding citizens (exemplars would be the police and those serving in correctional facilities). But justification alone is not enough. Workplace drug testing needs to be supported by appropriately argued and supported parameters as to when it can occur, how it can occur, what can be tested, and what can be done with the results. It is only by specifying these boundaries that we as a community will support and accept the intrusive nature of workplace drug testing. Law must have a role in setting those limits. To date the decisions on this practice have failed to do this.

PBR

The Australian Competition and Consumer Commission has issued a draft determination that would allow collectively negotiation with grain buyers by royalty managers on behalf of plant breeders under the Plant Breeders’ Rights Act 1994 (Cth).

The proposed authorisation allows Seedvise, as an agent for royalty managers, to enter into collective negotiations with individual grain buyers. It provides immunity from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010 (Cth).

The ACCC notes that breeders typically distribute their variety to grain farmers on the condition the farmer pays the breeder a royalty on each tonne of the variety harvested by that farmer harvests, i.e. an end point royalty (EPR). The breeders appoint royalty managers to monitor and collect the EPRs.

 Grain buying companies can collect EPRs but are under no obligation to do so and will only participate if royalty managers can provide them with sufficient incentive.

ACCC Commissioner Dr Jill Walker comments that

Collective negotiation by Seedvise will allow grain buyers to deal with multiple royalty managers on the same terms, greatly reducing the grain buyers’ administrative cost of participating in EPR collection. 

The authorisation will improve the efficiency and effectiveness of the EPR system by reducing costs for royalty managers and farmers, increasing EPR collection rates, and allowing plant breeders to focus more resources on breeding new and more productive varieties. 

The ACCC is proposing to grant authorisation for five years.

Allegiance

'Treason, Expatriation and 'So-Called' Americans: Recovering the Role of Allegiance in Citizenship' by Ashwini Vasanthakumar  in (2014) 12 Georgetown Journal of Law & Public Policy comments

Allegiance is an essential element of citizenship, featuring in its statutory definition and invoked in its rituals. Most scholars have dismissed allegiance as a vestige from a feudal past. Certainly, the last several decades have witnessed a revolution in citizenship: access to citizenship has been liberalized, and citizenship is now widely recognized as a ‘right to have rights’ that states are loath to infringe upon. Allegiance would seem to have no place in this context. In this Article, I seek to recover the role of allegiance in citizenship and demonstrate its continued legal and normative relevance. I develop two illustrative conceptions of allegiance by analogy to political obligation and civic virtue. I then undertake a close reading of select Supreme Court decisions in treason and statutory expatriation — contexts in which the betrayal or transfer of allegiance is of moment. I draw upon these decisions to further illuminate the concept of allegiance as well as to identify its normative implications for citizenship. Through inchoate allusions to allegiance, states recently have deprived individuals of their citizenship and undermined the protections that status once afforded. Clarity about allegiance is necessary to avoid abuse; this Article begins a preliminary investigation.

Vasanthakumar  argues

American citizens have recently been described as citizen sovereigns, secure in a status that guarantees them the ‘right to have rights.’ This security is the culmination of a general trend in the twentieth century of embracing liberalism in citizenship, both in terms of access to the status of citizenship as well as in what that status entails. In general, citizenship can no longer be denied to individuals on the basis of their national origin, religious beliefs, or political ideologies. Importantly, the state cannot act unilaterally to revoke the status of citizenship, or to reduce the rights and privileges it affords. This evolution in citizenship and nationality laws — observed across liberal democracies — has been heralded as a triumph for individual rights; where nationality once was the exclusive domain of a sovereign state, it is recognized increasingly as a human right, infringements of which are regulated by international law. As with other areas of international law, sovereignty has shifted from the state to the individual, even in those matters, such as determinations over nationality, that once were exclusively under the purview of the state.

For all this apparent indestructibility, however, citizenship is under threat, and citizens no longer can be assured of either their status as citizens nor of its attendant rights and privileges. The imperatives of national sovereignty, and national security in particular, have recently asserted themselves in liberal democracies. At its extreme, this is suggested by targeted killings of American citizens abroad. But these imperatives of state sovereignty also inform more routine administrative determinations. For example, the Home Secretary in the United Kingdom is empowered to deprive British nationals of their citizenship, including native-born citizens. Defending these powers, governments have rejected the conception of citizenship as a right. They have instead insisted that “citizenship is a privilege not a right” and introduced distinctions between citizens — between the ‘upstanding’ and the undesirable, the true Americans and their ‘so-called’ counterparts. These distinctions are invoked to justify taking actions against some citizens but not others, including actions that deprive them of their citizenship or of the basic protections this citizenship typically affords. The justification for these actions may take the form of a legal claim — for example, that lethal force against American citizens abroad is sometimes lawful — or may be an exercise of rhetoric, aiming to persuade others that these actions are not morally objectionable. In both law and politics, allegiance is invoked to justify drawing distinctions between the undesirable and the upstanding, and to authorize taking actions against some whilst extending protections to others.

In this Article, I explore the concept of allegiance: Who owes allegiance? What does owing allegiance entail? How does allegiance to the polity co-exist with the affection, loyalty, and attachment other communities inspire? And does allegiance provide a morally attractive basis for drawing distinctions between citizens—for looking beyond formal status to identify ‘true’ citizens? This Article begins a preliminary investigation into the concept of allegiance. Through a close reading of select Supreme Court decisions on treason and statutory expatriation, I seek to illuminate key features of the concept of allegiance, to illustrate its continued legal relevance, and to identify the different conceptions of allegiance and citizenship the Supreme Court implicitly relies upon. On its face, allegiance might seem to bear little relevance to contemporary citizenship. I focus on allegiance for two reasons: first, it has long been essential to definitions of citizenship but has been largely ignored, and second, in spite of the relative inattention from theorists, allegiance may be a promising concept from which to develop a thicker conception of citizenship. Let me elaborate briefly on these two points.

Allegiance is an essential element of citizenship. American nationality, for example, is tautologically defined with reference to allegiance: an American national is statutorily defined as any “person owing permanent allegiance to the United States.” Indeed, allegiance retains ritual importance — in pledges and oaths, for example — and continues to be subject to legal and political contestation, suggesting that references to allegiance are not purely ceremonial. Defining citizenship in terms of allegiance is not merely a vestige of a feudal past.

For all this, the concept of allegiance has not been subject to sustained scrutiny, even though vagueness as to its meaning creates opportunities for abuse. In his magisterial survey of the crime of treason in America, for example, William J. Hurst notes that in the Constitutional Convention’s deliberations on the treason clause “the idea of ‘allegiance’ itself receives no exposition.” Elsewhere, allegiance is merely likened, with little elaboration, to such diverse political concepts as identification, solidarity, loyalty and obligation. This lack of exposition is troubling for two reasons. For one, it means that American citizenship is defined with reference to a concept that remains opaque. It is unclear, for example, what owing allegiance consists in, whether allegiance is a necessary, sufficient, or merely desirable feature in citizens, and whether citizens can owe allegiance to more than one polity. Answers to these questions would sharpen our understanding of allegiance, and hence, of citizenship. They would potentially inform policies regarding naturalization, denationalization, multiple nationality, and amnesty for unauthorized residents. Without fuller exposition, however, allegiance may be invoked in policy debates in arbitrary or inconsistent ways. The lacuna in our understanding of allegiance invites, at a minimum, incoherence; more troubling, it also allows for otherwise indefensible assumptions and stereotypes to be smuggled in. If the element of allegiance in citizenship suggests a conception of citizenship beyond formal status, but that element is left undefined, then countless individuals may find themselves cast as ‘so-called’ citizens because their religious adherence, political ideologies, or national identity call into question their allegiance. Vagueness about the meaning and role of allegiance in citizenship lends itself to abuse.

Avoiding abuse, however, is not the only impetus for an inquiry into allegiance. Allegiance also warrants closer inspection because it may provide a promising basis for an alternative to liberal citizenship. A number of academics and policy makers have urged for a thicker conception of citizenship, criticizing liberal citizenship as morally impoverished and political unfeasible. They have explored several bases for a more robust conception of citizenship, including nationalism, communitarianism, and constitutional patriotism. Nationalists ground a thicker conception of citizenship on shared national identity; communitarians, on shared values, traditions and practices; and constitutional patriots, on a shared commitment to the universal values embodied by a constitutional order.

There are many variations and nuances to these accounts, which I will not explore in this Article. Let me here note only that each of these accounts has exclusionary potentialities that the concept of allegiance may more easily avoid. Allegiance mimics liberal accounts of political obligation by requiring a voluntary undertaking on the part of the citizen and situating the citizen in relationships of reciprocity with the state and with fellow citizens. Unlike most liberal accounts, however, it also seems to call for the citizen to hold a particular attitude towards the state, and is therefore more demanding than liberal citizenship. This attitude is available to putative citizens who do not share a national identity, do not participate in dominant traditions and practices, and who do not endorse the political values embodied in a polity’s constitutional order. As such, I suggest, allegiance potentially provides the basis for a more robust conception of citizenship but one that is more inclusive than prominent alternatives. Allegiance thus holds out the promise of a relationship between citizens and their state that is consensual but not contractual, that is held together by shared commitments if not a shared culture, and that is both principled and particular. This promise warrants further inquiry.

Clarifying the meaning and role of allegiance in contemporary citizenship challenges the dominant liberal conception of citizenship. Instead of being the ‘right to have rights,’ citizenship might call for certain attitudes and actions. This thicker conception of citizenship may have a number of implications for practices surrounding citizenship. For example, it potentially restricts access to citizenship by heightening the criteria for both naturalization and for regularizing the status of unauthorized residents. It might also hinder citizens’ ability to retain formal ties to other polities, to maintain multiple nationalities, and to work in foreign governments. And finally, it might make the removal of citizenship easier. In short, recovering the role of allegiance in citizenship would likely check the liberalizing trend towards citizenship celebrated by many as a victory for individual rights. In this respect, then, it might seem to mimic the problematic distinctions between true and ‘so-called’ Americans I identified at the outset. Indeed, perhaps it lends them a veneer of theoretical respectability. On the contrary. Distinctions between real and ‘so-called’ citizens loom large in the public imagination and in political discourse, and they are invoked — sometimes to great effect — to justify the infringement of fundamental rights. These distinctions appeal, inchoately, to a thicker conception of citizenship. Providing a coherent account of this conception allows us to determine whether it is normatively defensible and desirable, to more clearly identify its limits, and to therefore avoid the arbitrary distinctions and deprivations that it otherwise invites.

I develop this account through a close-reading of select Supreme Court decisions in cases of treason and statutory expatriation. I draw upon the Court’s discussions for three reasons. First, these discussions provide insight into what role, if any, allegiance plays in more contemporary practices and notions of citizenship. Second, they provide relatively coherent expositions that aid in illuminating various aspects of the concept of allegiance. And finally, they provide concrete illustrations of the legal and political consequences of giving effect to different notions of allegiance. Let me emphasize that I do not use the Court’s decisions to trace the development of its jurisprudence on allegiance, or to identify the ramifications of this jurisprudence for other areas of law.19 Rather, I treat the Court’s decisions as particularly coherent, authoritative and illustrative pronouncements on the contemporary meaning and relevance of allegiance.

I argue that the Court’s discussions of allegiance involve two competing conceptions of allegiance: a thin conception of allegiance that collapses into political obligation and a thick conception of allegiance that appeals to notions of civic virtue. The Court’s holdings seem to signal a move — widely celebrated — towards a liberal conception of citizenship that reduces allegiance to political obligation. I argue, however, that the Court does not fully abandon the language of allegiance or the thicker conception of citizenship to which it gives rise. The Court thus leaves open the door to, among other things, involuntary expatriation and the abuses that inchoate distinctions between true and ‘so-called’ citizens license. The Court’s decisions, however, are helpful in outlining two competing conceptions of allegiance and in identifying the implications these conceptions have for such questions as who owes allegiance, when it is betrayed, and when it is abandoned.

This preliminary investigation into allegiance proceeds in the following way. In Part I, I briefly consider the contexts in which concerns about allegiance and betrayal are invoked, and outline the claims about allegiance made in contemporary political and academic discussions. Here, I focus on the advent of multiple nationality. I then outline in Part II two conceptions of allegiance and illustrate the normative implications of each for political membership and community. In Part III, I analyze the Court’s jurisprudence of treason, and in Part IV, its jurisprudence of statutory expatriation, focusing on how allegiance is defined and relied upon. I conclude by reflecting on what these opinions reveal about the contemporary concept of allegiance, the implications of invoking allegiance in law and politics, and areas of further inquiry.