Seriousness

'Serious Philosophy' by Susan Haack in (2016) 18 Spazio filosofico 395-407 comments

At dinner the night before I was to give a talk in her department, a young professor solemnly told me that there’s no place for humor in serious philosophy. Since the paper on the relation of science and literature I was to present the next day was full of playful literary allusions and verbal jokes this was, to say the least, an awkward moment.  Nonetheless, my paper was a serious piece of work – jokes and all. Now, thanks to Spazio filosofico’s imaginative choice of theme, at last I have my opportunity to explore what’s wrong with the idea that, to be serious, philosophical work must be humorless. It’s been a long time coming; but, as the saying goes, better late than never. 

“Serious,” of course, has a whole raft of uses, and many subtly-interrelated meanings. We laugh about the apocryphal billionaire who complains that household expenses are skyrocketing – “a million here, a million there, and pretty soon you’re talking serious money”; meaning real money, a significant sum of money. Told something scarcely credible, we ask: “seriously?” – meaning: “really; no kidding?” We describe the measles as a serious illness, or a patient as in serious condition; meaning a grave illness, a potentially dangerous condition. We describe a crime as serious; meaning that it’s not just a misdemeanor, it’s a felony. We ask a friend who seems preoccupied and thoughtful, “why so serious?” – meaning: “why so solemn, why so glum?” But we also describe a hardworking, motivated young person as a serious student; meaning that he has a genuine desire to learn and is willing to do what’s needed to succeed in this. And I, for one, think of some people in our profession as serious philosophers, really trying to answer the questions they are tackling, while others – these days, I sometimes wonder if they might not be the majority – seem more concerned to make a name for themselves, or to ensure a safe, comfortable professional life, or ..., etc. 

Etymologically, “serious” derives from the Latin, serius, “weighty,” “heavy”; and, in line with this, some of its many meanings point in the direction of “matters of significance, issues of real import” (“weighty”), and others in the direction of “grave, burdensome” (“heavy”). Hence my first approximation to an explanation of what’s wrong with the idea that, to be serious, a philosopher must be humorless: it confuses two distinct strands in the complex mesh of meanings of “serious,” two distinct sides of seriousness. It mistakenly supposes that, because philosophical questions are serious, i.e., have real significance, and because tackling them requires serious work, i.e., sustained thought and real commitment, a serious philosopher must eschew playfulness and go about his or her5 work, as the saying goes, in grim earnest. On the contrary, I shall argue, taking philosophy seriously and really working at it doesn’t mean that you must set aside playfulness or humor; far from it. In fact, playfulness and humor may actually help in philosophical inquiry, while solemnity and self-importance will, for sure, stultify it. 

I chose a line of Peirce’s for my epigraph because, in my estimation, Peirce was one of the most truly serious of philosophers; because his reflections on what a genuine, committed philosophical thinker must do and how he should go about his work provide a starting point for understanding what serious philosophy is, and what it demands of us; and because he explicitly articulated the place in inquiry of a kind of intellectual free play. Moreover, implicitly and by example, his work allowed a real role – I’m tempted to say, a serious role – for humor; and on at least one occasion he suggested, albeit very briefly, what that role is. So, as I try first to articulate what serious philosophical work involves, and then to explain why this doesn’t preclude humor, I shall often call on his ideas.

Haack goes on to state

secular forms of sham reasoning abound, now in support of one or another of the myriad fads and fashions to which our profession presently seems so susceptible: “feminist” this, that, and the other; “naturalized” everything; “neuro-philosophy”; “experimental philosophy”; the enduring Kripke-cult; the impulse to formalize every aspect of our discipline; and so on. And fake reasoning is ubiquitous. Professionally-ambitious philosophers blithely propose wildly implausible ideas: no one believes anything; it is pointless, superstitious, or politically incorrect to care whether your beliefs are true or are false; there is no truth, no meaning, no values of any kind; physics can explain everything; science is just a kind of confidence trick, nothing more than power, politics, and rhetoric; etc., etc. Those who propound such absurdities presumably hope – consciously or, more likely, in a convenient fog of self-deception – that this will make them famous, or at least notorious; and the not-so-ambitious who happily climb aboard one fashionable bandwagon or another presumably hope – consciously or, more likely, in a convenient fog of self-deception – that this will provide opportunities to join a clique and, better yet, a publication cartel. ...

Allow me to begin a little obliquely, by explaining why – whatever that solemn young professor I mentioned at the beginning may have thought – humor surely can contribute to the effective communication of serious philosophical ideas. To be sure, much of what’s published in philosophy today is written in a bland, chewy, impersonal prose larded with cliquish technicalities – a “style,” if you can call it that, presumably intended (insofar as there’s any particular intention behind it at all) to convey an impression of objectivity, professionalism, and the au courant. But this kind of academic automatic-writing invites, in response, a kind of academic automatic-reading – readers just look out for the jargon, the in-group phrases that enable them to pigeon-hole the author as belonging to one familiar clique or another, and then coast from there with no need for any real thought. And it has another, ironic consequence, tempting some of those who, like myself, find this bland style repellent, to adopt instead a brash, even vulgar tone more appropriate to popular journalism than to the communication of seriously thought-through ideas. So, far from contributing to communication, the deadly, deadpan pseudo-professional style-of-no-style that now seems increasingly de rigeur can only too easily impede it. 

Real communication requires making a real connection with your audience; and humor can help you do this. Introducing a paper on tricky epistemological topics by quoting Donald Rumsfeld’s famously convoluted observations about “unknown unknowns” in U.S. military intelligence in Iraq, for example, as I once did, made the real-world importance of what might otherwise seem “arid and abstract” epistemological questions about relevance and comprehensiveness of evidence nicely vivid. Concocting an imaginary conversation between Peirce and Rorty entirely from their own words proved a devastatingly direct way to show how disastrously Rorty’s “pragmatism” diverged from the real thing – far more rhetorically effective than the detailed scholarly argument I relied on elsewhere. Quoting Kierkegaard’s image of the intellectually grandiose philosopher as a man who builds himself a magnificent castle but then, finding it too drafty and uncomfortable to live in, moves into a shack nearby proved an effective way of revealing how Popper’s philosophy of science shifts up and back between an official falsificationism that is really a thinly-disguised and quite incredible skepticism (the castle), and a ramshackle quasi-fallibilism (the shack). The story of my hopeless – and, in retrospect, hilarious – misreading of the instructions for assembling a flat-pack luggage-rack proved a good way to introduce the idea that exploring and classifying various kinds of misinterpretation can contribute to our understanding of interpretation. And so on. Of course, the humor had better be relevant humor: simply breaking off to ask “have you heard the one about the minister, the priest, and the rabbi who go into a bar?”39 – though it will, to be sure, give your audience a brief respite – does nothing to help get your point across, and may well distract their attention from it.

Visa Cancellation and DIBP Accountability

The Commonwealth Ombudsman has released two own motion reports into the Department of Immigration and Border Protection (DIBP).

The first relates to the administration of Migration Act 1958 (Cth) s 501; the second outlines an investigation into Bridging E visas being cancelled following criminal charges. Both raise questions about disregard of human rights and the commitment of DIBP to the 'Open Government' philosophy noted here.

First report: section 501 of the Migration Act 1958 

Section 501 of the Migration Act allows, or in some cases requires, the cancellation of visas of people who have been convicted of certain offences or those sentenced to more than 12 months imprisonment. A person who has had their visa cancelled may then apply to have the cancellation of their visa revoked so they may remain in Australia.

Following amendments made to s 501 in 2014, the number of visas cancelled under s 501 increased from 76 in 2013–14 to 983 in 2015–16.

While the department aims to cancel visas well before someone’s estimated date of release from prison, so that any revocation process can be finalised while in prison, to date this has rarely occurred.

"The delays in deciding revocation requests undermines the department’s policy of giving primary consideration to the best interests of those who have young children and/or experience prolonged family separation," ... 

The report notes that the largest group affected by s 501 are New Zealand citizens followed by United Kingdom nationals, many of whom have been in Australia since childhood.

One recent cancellation is noted here.

Second report: investigating Bridging E visa cancellations on the basis of a criminal charge 

Ombudsman Colin Neave has also released an own motion report in response to complaints received by his office, as well as community concerns about people who have their Bridging visa (E) cancelled on the basis of a criminal charge, conviction or the possibility of a threat to the Australian community.

The report considered a Direction (Direction 63) issued by the Minister for Immigration and Border Protection relating to Bridging E visas.

The Direction states that Bridging E visa holder[s] who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigrant status.

The Ombudsman’s report investigated examples of people who were not prioritised for release from detention after the criminal charges were withdrawn or otherwise resolved.

"The ongoing detention of many individuals in this cohort is inappropriate and has negatively impacted upon their mental health," Mr Neave said. 

"To deny a person the liberty to live freely in the community based on nothing more than an allegation that leads to a charge that is subsequently withdrawn, raises the question of whether the department has acted prematurely by cancelling a visa."

The first report states

The Ombudsman’s office has a long standing interest in the administration of s 501 of the Migration Act 1958 (the Act) and in 2006 completed an own motion investigation, Administration of s 501 of the Migration Act 1958 as it applies to long term residents. This report was critical of the quality of information provided to the decision maker, in particular that the then Department of Immigration and Multicultural Affairs (DIMA) did not always provide the minister with all relevant information, especially mitigating information, about long term Australian residents when considering the cancellation of their visa.

Section 501 was changed on 11 December 2014 by the passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. Changes included the insertion of s 501(3A) that requires mandatory cancellation of visas in certain circumstances. After the passage of this legislation the number of visas cancelled under s 501 increased from 76 in 2013-14 to 983 in 2015-16.

Following the passage of the legislation complaints to our office and observations from our compliance monitoring of immigrations use of intrusive powers and the inspection of immigration detention facilities raised concerns about the following aspects of the administration of s 501:

•  the length of time a person spends in immigration detention while awaiting a revocation request outcome 

•  notification of a visa cancellation shortly before release from prison 

•  the impact of prolonged and interstate detention on detainees and their families  

• the impact on immigration compliance operations and the detention network.

These concerns led to the decision by the Ombudsman’s office to undertake this investigation.

The department has a stated aim for s 501 visa cancellation cases to:

cancel well before the estimated date of release where possible so that any revocation process can be finalised while in prison.

To date the department has failed to achieve this. Through prolonging family separation this failure has also undermined the other aim of the department to give primary consideration to the best interests of the minor children of persons subject to visa cancellation.

This investigation concluded the efficient administration of s 501 suffers from:

•  a backlog in identifying persons subject to having their visas cancelled under s 501 which reduces the scope to conclude the cancellation/revocation process prior to the end of a prisoner’s custodial sentence 

•  a delay in deciding the outcome of revocation requests. 

This leads to former prisoners spending prolonged periods in immigration detention. The delays and backlog stem from the increase in visa cancellations following the introduction of the s 501(3A) mandatory cancellation provision combined with the large number of persons seeking revocation of their visa cancellation. Other administrative problems exacerbating delays in identifying those subject to cancellation and concluding the revocation request process include:

•  the informal links between the National Charter and Cancellation Centre (NCCC) and state and territory prison services 

•  slow response time from courts and police for records and transcripts 

•  the large number of cases decided personally by the minister 

•  limited scope to include family circumstance when prioritising case 

• s  complex record keeping and reliance on paper files for older cases

This investigation included interviewing some of the people detained as a result of having their visa cancelled under s 501. Their key concerns were:

•  the impact on their families if they are removed from Australia 

•  the length of time taken for a revocation request outcome 

•  what appeared to be inconsistent or quick revocation decisions for persons that did not appear to have exceptional circumstances 

•  being informed of their visa cancellation shortly before their release from prison  

• uncertainty about what assistance would be provided if they awaited the outcome of their revocation decision overseas 

•  the debt incurred to the Commonwealth from being escorted overseas.

This report endorses the department’s aim of informing persons subject to visa cancellation under s 501 of their visa cancellation well before the end of their custodial sentence with the outcome of a revocation request determined before a prisoner’s likely parole date. This will minimise the amount of time spent in detention, the impact on detainees and their families as well the impact on the detention network and compliance areas of the Australian Border Force (ABF).

The Ombudsman makes the following recommendations

Recommendation 1 The department establish Memoranda of Understanding with all state and territory correction services that facilitates an induction process in prisons that identifies prisoners who are not Australian citizens and establishes timeframes for the provisions of prisoner lists to the department. 

Recommendation 2 The department examine options for improving the processes for obtaining criminal history and sentencing remarks. 

Recommendation 3 The department:  review the prioritisation of cases with an aim to placing greater emphasis on those with carer responsibilities towards children and long term residents  introduce a departmental standard for the timeframe to process cancellations and revocation requests. 

Recommendation 4 The department increase awareness amongst staff of the literacy problems some prisoners face and review the format in which information regarding the cancellation of visas is provided to prisoners. Recommendation 5 The department better facilitate access to information on post departure support available for prisoners and their families.

The second report states

We commenced this investigation in response to complaints received by this office and stakeholder concerns raised with us about the cohort of people who have had their Bridging visas cancelled on the basis of a criminal charge, conviction, or the possibility that the person poses a threat to the Australian community. In particular, we are concerned about the people within that group who are detained based on allegations that lead to criminal charges and also those who are not released once the criminal charges against them have been resolved. 

A person must be detained in immigration detention if their visa is cancelled. If they are considered to be an Irregular Maritime Arrival (IMA), the law prohibits them from lodging any further visa application without the personal intervention of the minister. Intervention by the minister is facilitated by departmental identification of cases that fit the guidelines for referral to the minister. 

This investigation identified a case management system that is struggling to adequately manage the volume of people in immigration detention. This, coupled with the mandatory requirement for ministerial intervention in many cases before any progress toward status resolution can be made, means people are remaining in detention longer than is desirable. 

This investigation sites examples of people who were not prioritised for release from detention after their criminal charges were resolved. This left many subject to unnecessarily prolonged and potentially indefinite periods of immigration detention. 

This report also highlights issues associated with the quality of the department’s record keeping. The department wasn’t able to provide all the information to this office, lawfully requested under the Ombudsman Act 1976, within the prescribed time period and, in some cases, not at all. The department has acknowledged and apologised for this failing. The department’s data around this cohort appears not to allow for easy extraction and statistical analysis which can explain its inability to provide some of the information requested. The department failed to provide other relevant materials such as submissions, training packages and case specific information, despite repeated requests.

The Ombudsman makes the following recommendations

Recommendation 1 That the person who is the subject of a Notice of Intent to Consider Cancellation of a visa under s 116 is given adequate time and resources to seek advice and present their reasons against the cancellation. 

Recommendation 2 That the department provide a person with a written notice of decision, including their review rights translated into their own language, when their Bridging visa is cancelled. The notice should include information regarding: a) the reasons for the decision to cancel their Bridging visa b) their right to have the cancellation decision reviewed by the Administrative Appeals Tribunal c) the applicable timeframe for lodging an appeal with the tribunal d) details of how to contact the tribunal e) details of how the department can facilitate contact with the tribunal and a legal representative. 

Recommendation 3 That the department: a) not transfer a person between detention facilities until the statutory time to lodge an appeal has expired (two days), and b) ensure that all possible steps, in particular providing access to the internet, are taken to ensure that a person can request a review of the decision to cancel their visa within the statutory time frame. 

Recommendation 4 That the department: a) promptly seek the minister’s intervention to grant a visa for all cases where the cancellation decision is set aside by the Administrative Appeals Tribunal but the person cannot be released due to the natural expiration of their visa. b) identify all people in immigration detention whose cancellation decision was set aside by the Administrative Appeals Tribunal and, if not already done, brief the minister about the circumstances of their case seeking the minister’s intervention to grant a new visa. 

Recommendation 5 That the department ensures its case management and escalation framework adequately supports the timely and efficient identification and referral of cases that meet the minister’s guidelines for consideration under s 195A.

Mononormativity

Having just written a book chapter on heteronormativity and the 'first year law school experience' I was interested to encounter  'Marriage, Law and Polyamory. Rebutting Mononormativity with Sexual Orientation Discourse?' by Christian Klesse in (2016) 6(6) Oñati Socio-legal Series 1348-1376.

Klesse's paper

traces the genealogy of sexual orientation discourse in US legal scholarship and explores potential drawbacks of the articulation of a sexual orientation argument in the field of relationship recognition. After a long period of refraining from campaigning for legal recognition of multi-partner relationships, polyamory activists have recently shown a stronger interest in litigation. This paper identifies reasons for this shift in recent successes of the campaign for same-sex marriage rights and critically discusses proposals to frame polyamory as a sexual orientation to achieve multi-partner marriage rights through litigation. I argue that advocating a sexual orientation model of polyamory is likely to reduce the complexity and transformative potential of poly intimacies, limit the scope and reach of potential litigation, obstruct the capacity of poly activism to form alliances and increase the likelihood of poly activism to settle for legal solutions (i.e. marriage) that are exclusive and reproductive of a culture of privilege.

Klesse states

In this paper I will discuss the potential drawbacks for polyamory activism of framing polyamory as a sexual orientation in order to advance recognition of multi-partner relationships and families by the law. Sexual orientation discourses have been strengthening alongside identity political strategies across various terrains of poly activism in North America and Europe. The question of whether polyamory can be understood to be an immutable and possibly inborn personality trait analogous to traditional notions of sexual orientation based on gendered ‘object choice’ has also become a subject for contemplation by legal scholars working in the fields of human rights, anti-discrimination and family law. This paper traces the genealogy of sexual orientation discourse in US legal scholarship and explores potential drawbacks of the articulation of a sexual orientation argument in the field of relationship recognition. The paper argues that advocating for a sexual orientation model of polyamory would reduce the complexity and transformative potential of poly intimacies, limit the scope and reach of potential legal litigation, obstruct the capacity of poly activism to form alliances and increase the likelihood of poly activism to settle for legal solutions (i.e. marriage) that are exclusive and reproductive of a culture of privilege.

The structure of the paper is as follows: The first part traces the emergence of sexual orientation discourse with regard to polyamory in influential US legal studies publications in the first decade of the 21st century. In the second part, I discuss changes in the relationship of poly communities to the politics of marriage. I interpret the shift from a long period of non-engagement with the question of legal recognition to a recent interest in legal litigation among US (and international) poly activists as a response towards advancements made by the campaign for same-sex marriage rights. The prominence of polyamory and polygamy in scaremongering slippery slope arguments against same-sex marriage provided a powerful barrier for the articulation of concrete demands for legal recognition within poly activism. This section also analyses in closer detail the legal reasoning behind the strategic deployment of sexual orientation models within a marriage framework. In the third part, I present critical thoughts on why the adaption of sexual orientation discourse may have negative impacts on the development of poly activism. My concerns are with questions of the constitution of poly subjects as political actors, the scope for mobilisation and the risks of reductionist and exclusivist strategies. The conclusion sums up the main arguments.

Klesse concludes

Over recent years, a discourse which posits polyamory as a sexual orientation has gained momentum. ... Sexual orientation arguments have provided an important tool in litigation around same-sex marriage rights. Scholars and activists have recently started to explore whether similar strategies could be useful for poly activists who wish to advocate for the legal recognition of their relationships and families. I have argued that such a strategy may have detrimental effects by reducing the challenge and critical potential of polyamory, channelling activism towards narrow goals defined by a self-limiting equality agenda and undercutting the inclination of the movement to enter larger coalitions around wider social-justice-based struggles.

Multi-partner relationships are excluded from recognition and any protections by the law and certain manifestations of plural marriage face criminalization and prosecution. The damaging impacts of the ‘monogamy of the law’ have been powerfully demonstrated in many studies (Emens 2004, Polikoff 2008, Brake 2013). The history of the campaign for same-sex marriage rights in the United States shows that a piecemeal strategy of litigation can lead to long-term change in expanding the rights allocated to certain institutions and legal statuses (Pierceson 2013). Yet these pragmatic successes cannot mask the fact that the marriage equality campaigns of the LGBT movement has drawn upon an ‘antipluralist and exclusionary conception of marriage’ (Calhoun 2005, p. 1036). Marriage is more accessible and matters more to certain parts of the population (Farrow 2010, West 2007). Moreover, the privileged focus on the rights to marriage have had the effect of limiting the imagination of the advocates for LGBT families to explain the causes of discrimination in a mono-causal fashion. The goal of marriage equality does not necessarily enhance a critical and creative paradigm. Polikoff (2009) suggests that ‘a law reform agenda that values all families and relationships and by extension those of heterosexual as well, does not start with the package of rights that marriage gives different-sex couples and work down from there, strategizing how many of those rights politicians are willing to grant same-sex couples who sign up with the state in a status called civil union or domestic partnership. Instead, such an agenda starts by identifying the needs of all LGBT people and works up from there to graft legislative proposals to meet those needs’ (Polikoff 2009, p. 209).

Poly activism runs the risk of falling into the same trap if it deploys a simple analogy between same-sex marriage and plural marriage. Fischel (2016) proposes a wider social-justice agenda around the value of relational autonomy, rather than a fixation on a ‘fundamental right to marry’. A valuing-all families approach is more inclined to look for legal solutions beyond a singular route to recognition. ‘All families, relationships, and households struggling for stability and economic security will be helped by separating basic forms of legal and economic recognition from the requirement of marital and conjugal relationship’, posits the collective statement ‘Beyond Same-Sex Marriage: A New Strategic Vision for all our Families and; Relationships’ (2006). This argument shares common ground with the concerns of feminist scholars, who want the law to focus on supporting care networks, rather than romantic, conjugal and/or sexual relationships (Fineman 1995, West 2007). 

Sexual orientation models of polyamory may work well to construct marriage equality arguments, but they are at odds with the inherent plurality of polyamory as a social and intimate practice. They may obstruct rather than sustain the creative thinking needed to guarantee access to rights and resources through a more comprehensive law reform agenda. For all these reasons, I agree with Barker and Langdridge (2010, p. 16) who argue that ‘[p]otentially there is more to be gained (politically and theoretically) from a non-monogamy discourse which positions these divisions and boundaries as relevant to all, across the spectrum of relationships (universalizing), rather than one which sees them as an issue of active importance for only a small, relatively fixed, self-defining, non-monogamous (minoritizing) minority’. Rather than framing polyamory as a distinctive identity or orientation, it is helpful to see polyamory as a multi-positional but integrated field of intimate and sexual practices whose participants share at least potentially some concerns with others, both within the non-monogamous spectrum and beyond.

'What’s queer about non-monogamy now?' by Eleanor Wilkinson in Meg Barker and Darren Langrdridge (eds), Understanding Non-Monogamies (Routledge, 2010) states

This chapter is an attempt to move beyond popular narratives that position non-monogamy as nothing more than a personal sexual preference. Instead I want to place non-monogamy into a broader queer political agenda; and aim to see the rejection of monogamy as a political act. I have chosen to focus specifically upon polyamory and potential future moves towards political mobilization. Currently polyamory is a sexual story about interpersonal relations, but what happens when we begin to scale our sexual stories ‘upwards’ to ‘wider’ societal concerns? Although polyamory may be a burgeoning ‘sexual story’ (see Ritchie, this volume), current ways of talking about sex and love are too narrow and individualized. This limits the potential impacts of non- monogamy as a critique of broader structural relations. Putting the politics back in to polyamory opens up the possibility for different stories to be told and alternative affinities to be made. 

However, at the same time we must address the false assumption that those who practice non-monogamy will have an inherent commitment to wider political change (see Aviram, this volume). I therefore suggest that there is a need to differentiate between a rejection of monogamy and a rejection of ‘mononormativity’ (Pieper and Bauer, 2006)1. By making this distinction we can begin to map out a vision of what a politics of anti-mononormativity could become (whilst separating it from the rather more ‘normative’ lifestyles of those who may simply be nonmonogamous). So in attempting to ask ‘what’s queer about non-monogamy now?’ we must first begin with a thorough critique of mononormativity itself. In our attempts to ‘understand non-monogamy’ there is a danger that we can still inadvertently position it as ‘other’; as something that needs explaining (and perhaps excusing). Without a critique of mononormativity we risk leaving monogamy as a practice that requires no explanation or critique. I aim to challenge the myth that monogamy serves the ‘common good’, and to demonstrate that compulsory monogamy disadvantages not just the polyamorist, but a whole host of people whose lives and loves fall outside of this conventional dyadic ideal. 

This chapter will be split broadly into three strands. Firstly I am going to outline how certain forms of polyamory may support rather than challenge existing sexual norms. Yet although popular narratives of polyamory are often criticized for their apolitical stance, I feel that polyamory could still be a highly useful term for queer politics. I shall therefore move on to ask what could be considered ‘queer’ about non- monogamy. In this section I shall give a brief summary of the position of non- monogamy within queer politics, and highlight some of the problems with a simplistic division between the normative and the anti-normative. Here I aim to outline some of the problems of narrowing our political agendas down to solely a matter of radical sexual practice. Having set out my theoretical background I shall then put forward some suggestions about what a politics of anti-mononormativity could become. Ultimately I argue that our discussions about ‘mononormativity’ should not just be limited to a matter of sexual politics; in order to make a queer political intervention, polyamorous politics must make a move from identity to affinity.

Trusts

'The Common Law and Taxation of Trusts in Australia in the Twenty-First Century' by Alexander Robert Fullarton from 2001 argues that

the concept of the ‘trust’ held for over a thousand years under the British legal system is drawing to a close. Education and Legislation is heralding the demise of that ancient and noble institution in the Australian context. The Paper puts forward various alternatives and solutions to the identified problems. 

The term ‘trust’ by definition expresses honour, reliance, justice and friendship. It implies an honourable relationship under which the property of one, the beneficiary, is placed in the control of another, the trustee. The Knights and Barons of Medieval England did not trust their descendants to manage their titles in a favourable fashion but suspected they would slowly but surely allow the decay of property that the barons had fought long and hard to establish. Various types of trust have come to be recognised in modern law. 

In modern times the focus of trusts has shifted somewhat from the preservation of property to the alienation of income and hence taxation. Australian taxation law has continued to attempt to tax the income and property of these trusts with varying degrees of success. Series of Australian Governments have enacted and proposed legislation to pierce the trust structure and tax the income in the hands of the beneficiaries. Where the beneficiaries cannot be taxed the trustee is responsible for the tax. 

For trading purposes trusts are no longer the optimum business structure. The previous taxation benefits of income splitting (and thereby reducing individual taxation burdens) are coming to an end. Trust income arising from personal exertion, whereby income earned by an individual is attempted to be transposed into earnings of a trust, has been vigorously attacked in recent years. The problem is that it is difficult to distinguish between a ‘genuine purpose’ and a ‘tax avoidance one’. 

As beneficiaries are becoming more legally aware they realise the property of their parents has been transferred to them. Parents are being faced with either having to relinquish ownership and control of ‘their’ property or admit that the structure is simply a means of avoiding tax.

Fullarton's suggested 'outcomes' are -

Constitutionally, the Australian Federal Government does not have power to legislate with respect to Trusts other than indirectly by way of matters arising to the taxation implications. The legislative power over Trusts remains in the hands of the States. However a brief history of successive transfer of legislative power from the States to the Commonwealth government indicates that a Federal ‘Trusts Act’ may be inevitable. The Labor Whitlam Government started the Federal Government down the road of ‘centralisation’. The company’s legislative impasse clearly demonstrates the frustration with which successive Federal Governments have been plagued. The problem began with the High Court decision in 1908 in the Huddart Parker and Co Pty Ltd v Moorhead case and has not yet been resolved with the introduction of uniform company’s legislation despite continual attempts over ninety years. From the outset of Federation, the Commonwealth of Australia was envisaged as a servant of the States. The enactors of the Constitution deliberately limited the powers of the Federal Government such that the States would retain sovereignty and control over all matters other than those specifically handed over to the Commonwealth. Clearly there were matters that in the national interest, a central authority was better able to co-ordinate. For the purposes of uniformity, defence, navigation, currency, quarantine, foreign policy and other like matters were placed in the hands of a ‘central authority’. Almost immediately clashes and faults began to appear in the intent and the legal enforcement of the Constitution. The decision of the Huddart Parker and Co Pty Ltd v Moorhead case demonstrated what can happen if rules are followed to the letter and if lawyers argue issues line-by-line and word-by-word. The matter of the Commonwealth power to levy income tax is itself a pivotal point in Australian legal history and arguably the subject of voluminous debate. Discussion of this point is outside the scope of this paper but it is important to note briefly the essential elements by which the ITAA 1936 came into existence, its continuance and the ramifications thereof. ...

It is established that once the States hand over sovereignty or authority to the Federal Government they will never retrieve them. Much debate and many cases have been fought over the matter. That debate is also outside the scope of this paper but is mentioned in order to establish the direction that Commonwealth Legislation is likely to take.

At the core of legislative direction is the Commonwealth’s new found desire to control the States absolutely. Some commentators would argue that the desire is hardly new and has existed since the 1880’s. Conspiracy theorists would have us believe that the dissolution of State Governments absolutely is the ultimate aim of the Federal Government. Whatever the truth of that thought or ultimate plan, if indeed one exists, the title of Father of Australian Centralisation almost certainly goes to Edward Gough Whitlam, Prime Minister of Australian from 1972 until his dismissal on November 11th 1975. ...

It was that knowledge and awareness of the ‘shortcomings’ of the Constitution that brought him to the answer of the conundrum of ‘how can the Commonwealth with its powers limited by the Constitution, control the States and by force if necessary?’ The solution to the problem was to use the Federal constitutional powers over foreign policy. The Federal Government under its foreign policy powers simply executed international agreements which became ipso facto binding on the States. World Heritage and Fishing agreements, United Nations charters and policies set the starting point for the slow but certain wresting of control from the States to the Commonwealth. Consecutive governments were not as blatant as the Whitlam Government but none of Whitlam’s agreements were ever rescinded. On other occasions the Commonwealth has resorted to stealth or outright blackmail. The population of Australia may have thought the Whitlam era was over and history would never repeat itself. History has a nasty habit of repeating itself and the Howard Government is actually succeeding in areas where Whitlam didn’t venture, maybe he didn’t have time.

Successes of centralisation of power by the Howard Government are typified by the issues outlined below:- Gun control - Through the use of the ‘Port Arthur Massacre’ the government used the emotive opportunity to bring in uniform and ‘acceptable firearms controls’. The term acceptable meant acceptable to the Commonwealth.

Many States and their populations disagreed, for example in Western Australia, which had it own effective firearms legislation, or the Northern Territory and Queensland which had none, but saw rampaging gunmen as a city problem. This was achieved as a result of the removal of the powers to raise income tax as discussed above. The States were then left at the mercy of the ‘. . . Commonwealth by the threat of a loss of Commonwealth grants.’

It is alleged in 2006 that statistics of crimes involving firearms have been unaffected by the introduction of the gun control measures from the trend prior to such legislation. That outcome is outside the scope of this paper however the relevant element is the inevitable drift in legislative control from the States to the Commonwealth government.

Tied financial grants - The financial control over the States through the use of Section 96 of the Constitution has become a greater and greater weapon for the Commonwealth in its bid to control the States. As the power to tax is shifted from the States to the Commonwealth the States become more reliant on the benevolence of the Commonwealth for funding. Section 96 was not written with the intent that its use would ultimately serve as a weapon to destroy the States.

No one could have envisaged the transfer of taxes to the Commonwealth that has taken place over the past hundred years but that is the outcome. Section 96 has been drafted in such open terms that the Commonwealth ‘. . . may grant financial assistance to any State on such terms and conditions as Parliament thinks fit.’ Section 96 was used blatantly to force the States to comply or have funding withheld. 

Native title issues - The Commonwealth does not have any authority over land administration or titling. The Commonwealth has the right to acquire land on just terms, or to make special laws for the people of any race.149 It does not however have the power to dictate as to the alienation, encumbrances and transfers of Crown land. That is the province of the States as ex-colonies and founding members of the Commonwealth.

Through the 1967 referendum and the Mabo legislation the Commonwealth is imposing its will on the States to accept ‘Native Title’. Some States and chiefly Western Australia are opposing the Commonwealth on this issue but there is no doubt that despite all argument to the contrary, the Commonwealth will succeed. The all consuming power of Section 96 will overcome any obstacles in this regard.

Revenue and licensing of alcohol, tobacco and fuel - A clever ruse that reinforced Commonwealth powers under section 90 of the Constitution, a gain by stealth rather than an exercise of legal powers. The writer is an ex-quarantine officer of the Commonwealth Health Department and as such is aware that it was common knowledge amongst Commonwealth Quarantine and Customs officers that the control and collection of monies by the States as taxes on alcohol, fuel and tobacco was unlawful. The Constitution forbids the levying of duties by the States which is expressly a province of the Commonwealth.  The Commonwealth by way of duties and excises taxes alcohol, tobacco and fuel. For over sixty years the States also taxed those products by way of licenses based on sales. It was a comfortable but not always popular arrangement. Though many lawmakers and enforcers knew of the illegality, all chose to ignore it as it gave the States a degree of financial independence.

In 1994 and 1995 two duty free store owners in New South Wales, went out of business. The matter would have achieved no further significance had it been left to lie at that. However a curious legal challenge was to unfold. For some unknown reason a pilot was arrested for ‘smuggling’ tobacco from Norfolk Island to New South Wales. The ‘smuggling’ practice was so well organised that purpose-built transport aircraft were used for the regular deliveries.

That Customs became involved in the incident is mystifying as the practice had existed for many years. The owners of the aircraft successfully defended the charge as the tobacco was simply being transported between States and not imported into Australia for the first time. That the complex system of importation and transportation was in place to avoid duty is irrelevant, the practice was lawful.

By coincidence, the owners of two duty free stores became embroiled in an action with the New South Wales government over the State levies by way of licensing. Legal representatives for the parties became aware of the importation case and took action in the High Court to have the convictions for the breaches of the Business Franchise Licenses (Tobacco) Act 1987 (NSW). Though the verdict was contrary to precedents set in Dickenson’s Arcade Pty Ltd v Tasmania (1974); Dennis Hotels Pty Ltd v Victoria (1960); Philip Morris Ltd v Comr of Business Franchises (Vic) (1989); Capital Duplicators Pty Ltd v Australian Capital Territory (No2) (1993), it was held that the State could not impose such levies and that they constituted an excise provided by S 90 of the Constitution. 

The difference being the manner in which the licenses had been based, in New South Wales the fee was based entirely on the total value of sales rather than a set license fee basis and therefore found to be a tax. The only action the New South Wales government had to take was to let the action stand ignore the lost revenue and reset its licensing system back to levels successfully held in the Dickensons and other cases. There the matter may have lay undisturbed for another sixty years but in an interesting political move the Howard, Liberal Government encouraged the Carr, Labor Government to allow the matter to go before the full bench of the High Court even though the plaintiffs’ summons for reference to the Full Court had been dismissed by Kirby J. The Howard Government even financed the legal challenge as under S 96 of the Constitution the Federal Government can grant financial assistance as it thinks fit. Surely the Carr Government should have been aware of ‘Greeks Bearing Gifts’. The outcome was obvious to even the most inexperienced of constitutional law students. The Carr Government was soundly beaten and the State taxation issue sent into disarray. The Howard Government enacted legislation to tax alcohol, tobacco and fuel to provide collections through Federal treasury. The guise is that the tax will be collected on behalf of the States. In fact the States were collecting their own revenue and then became even more dependant on the benevolences of the Federal Government and S 96.

The reader may well wonder what those examples have to do with the future legislation of Trusts. All of the foregoing cases are examples of deliberate and progressive moves to shift control and sovereignty from States to the Commonwealth. By concentrating on one area and then the next, the Commonwealth has managed to extend its control and influence way beyond those powers prescribed in the Constitution.

Many of the above events and other political moves, culminating in the introduction of the GST legislation, will be the final nail in the States’ coffins. Without an independent source of revenue the States are now at the mercy of the Commonwealth. The GST revenue - sharing arrangement with the States is by no means final and binding.

The overwhelming power of S 96 can be used at any time to counter any moves of financial independence and GST rates can be altered. The disparity of fuel pricing between the States particularly that of Western Australia to Queensland is a clear indicator that the States must comply with Federal wishes if they are to satisfactorily finance their maintenance and construction projects. On the other hand if the Western Australian and Queensland 2001 election results can be used as a yardstick, the electorate will have their revenge at the forthcoming Federal election. Australia may not be a true democracy in that the choice of governing group is limited to one of two political parties. The Howard government can take little solace from the alternative being the relatively discredited Labor Party. The Liberal party will not be forming the governing party after 2001.

The authority over Trusts is currently in the hands of the State, but once the new entity taxing legislation is enacted, it will only be a matter of time before power over Trusts is handed over to the Commonwealth, as a matter of uniformity, convenience or duplicity of powers. That the States cannot wrest back powers granted to the Commonwealth is an historical fact. Interestingly the Western Australian experience demonstrates that once Federation was achieved, and the Constitution enacted, the option of withdrawing from the Commonwealth has also been closed to the States.

Historically, there is no doubt that the Howard Government will meet its demise at the very next Federal election.  There is also no doubt the successive Federal Governments will not reverse the trend towards centralisation. The move to entity taxation will eventually see the demise of the Trust, an institution that survived a thousand years are was one of the pinnacles of British law. Trusts may continue to be used for some of the purposes originally conceived that of the dispersal of estates and the like, but as a taxation vehicle the days of the Trust are all but over. The writer predicts that eventually Commonwealth legislation will supersede the State legislation relating to Trusts.

The effect of centralised legislation will be that trust legislation will more closely resemble current New South Wales and Victorian legislation than Western Australian legislation. Past experience and historical fact dictate that the majority of Parliamentarians are influenced by New South Wales and Victoria as they are the main population bases of Australian Society. The legal attitudes of the Federal Government tend to reflect those facts rather than the desire to seek more acceptable alternatives. The fears held by the smaller States that Federalisation would eventually come to mean domination by New South Wales and Victoria will become a reality. It is suggested that the prudent practitioner begin studying New South Welsh and Victorian legislation if he/she is to remain conversant with trust legislation.

It is also likely that the changes to the taxation of trusts will eventually render them to antiquity for business purposes. Many foreign uses of trusts exist and are formed purely for use as tax avoidance vehicles. These foreign trusts are widely promoted by newly formed ‘Tax Havens’. Many of these are ex-British protectorates or colonies such as Vanuatu, the Cook Islands and the British Virgin Islands. These countries promote tax avoidance as a commercial enterprise and have legislated accordingly. The promotion as use of such trusts is becoming more and more prevalent as the use of the Internet and e-commerce grow with the ever expanding use of computer technology. Such trusts are mentioned as alternative future directions of trust law in an international sense, the study of which is extensive and outside the scope of this paper.

Names and Identity Acquisition

Samuel R Delany's 'Coming/Out' in his writes Shorter Views: Queer Thoughts and the Politics of the Paraliterary (Wesleyan University Press, 1999) comments

In the twenty-seven years since the 1969 Stonewall riots, "coming out" has acquired extraordinary significance in the gay community—so much significance that many of us might even say coming out "defines" the difference between being gay and an older, pre-gay notion of being homosexual. Through much of that quarter-century-plus, when, if you hadn't "come out of the closet," many gay men and lesbians felt you had somehow betrayed them, that you couldn't really "define yourself as gay," that you had not "accepted your gay identity," I found myself faced with a paradox: Much of my critical enterprise over that same period had been devoted to showing that such "defining" or "identifying" events (when, as a reader, you first became aware of science fiction; when, as a child, you realized you were black, gay, or an artist) simply did not "define" anything. 

In the gradual, continual, and constantly modulating process of be¬ coming who we are, all events take their meanings, characteristic or un¬ characteristic, from the surrounding event field in which they occur. While certainly they contribute to what we are or are becoming, single events simply do not carry the explicative strength "definition" and "identity" denote. This is not to say some events aren't more important than others. ... 

It's a philosophical paradox: 

Differences are what create individuals. Identities are what create groups and categories. Identities are thus conditions of comparative sim­ plicity that complex individuals might move toward, but (fortunately) never achieve — until society, tired of the complexity of so much individ­ ual difference, finally, one way or the other, imposes an identity on us. 

Identities are thus, by their nature, reductive. (You do not need an identity to become yourself; you need an identity to become like someone else.) Without identities, yes, language would be impossible (because categories would not be possible, and language requires categories). Still, in terms of subjects, identity remains a highly problematic sort of reduction and cultural imposition

'Social Rites of Marriage' by Suzanne Kim and Katherine Thurman in (2016) 17 Georgetown Journal of Gender and the Law 745 comments

The legal consequences for same-sex couples who have married — and for couples who will do so after the historic Obergefell v Hodges decision — are numerous and profound. As legal rhetoric and scholarly research on marriage suggest, however, the social dimension of marriage — apart from its concrete legal benefits — is deeply significant. Despite what we understand about the law’s impact on people’s lives and people’s influence on legal institutions, scholars know surprisingly little about the ways in which same-sex couples socially experience legal marriage. This is all the more pressing, since marriage equality is now a reality in all US states. 

This analysis, part of an exploratory study that examines the intersection of law and the social domain in the context of same-sex marriage, begins to fill a critical gap in socio-legal literatures on marriage and formal recognition of same-sex relationships. We discuss here early themes emerging in this research, based on qualitative interviews and surveys with married same-sex couples, part of a project that provides one of the first scholarly overviews post-Obergefell of negotiation of gender norms in same-sex marriage in daily life. 

Modes of self-presentation (like relationship terms and last name practices), which comprise the focus of this paper, provide a window onto the interplay of legal status, social norms, concepts of tradition, and gender. They also reveal a diverse picture of transitions to formal legal recognition in the context of longstanding, and continued, discrimination against LGBTQ communities. We situate early findings in relation to deeper questions about relationships between marriage, hierarchy, and gender, as well as about intersections of legal and social recognition.

Eugenics and Reparation

'California’s Sterilization Survivors: An Estimate and Call for Redress' by Alexandra Minna Stern, Nicole Novak, Natalie Lira, Kate O’Connor, Siobán Harlow and Sharon Kardia in (2017) 107(1) American Journal of Public Health 50-54 comments

From 1919 to 1952, approximately 20 000 individuals were sterilized in California’s state institutions on the basis of eugenic laws that sought to control the reproductive capacity of people labeled unfit and defective. 

Using data from more than 19 000 sterilization recommendations processed by state institutions over this 33-year period, we provide the most accurate estimate of living sterilization survivors. As of 2016, we estimate that as many as 831 individuals, with an average age of 87.9 years, are alive. 

We suggest that California emulate North Carolina and Virginia, states that maintained similar sterilization programs and recently have approved monetary compensation for victims. We discuss the societal obligation for redress of this historical injustice and recommend that California seriously consider reparations and full accountability.

They state

In 1926, Marsha (all names are pseudonyms) was admitted to the Sonoma State Home in California and recommended for sterilization because of her IQ score of 56, which placed her in the category of “low moron [sic]”. Given this diagnosis and because she was “sly, profane, [and] obstinate,” the medical superintendent determined that Marsha was “dangerous to public health” and, therefore, should be sterilized. Marsha was but one of approximately 20 000 people affected by a law passed in 1909 that authorized such reproductive surgery on patients committed to state homes or hospitals and judged to be suffering from a “mental disease which may have been inherited” and was “likely to be transmitted to descendants.” 

On the books until 1979, this statute provided the legal framework for the most active sterilization program in the United States. California’s sterilization law authorized medical superintendents to perform the operation without consent. Nevertheless, institutional authorities did seek written consent from a family member or legal guardian when possible, probably as a result of liability concerns. Yet, the prison-like environment of state institutions during this era raises serious questions about the validity of the consent process. Notably, sterilization was a prerequisite for release from some institutions. 

Confirming genuine consent is complicated because signatures, dates, and names on consent forms are often inconsistent with information in patient records. The documents themselves do not always record when or whether the operation was actually performed. In addition, we identified multiple efforts by families and patients themselves to prevent sterilization. Although some sterilizations may have been performed with the signed consent of a parent or guardian, these procedures did not meet the standards of voluntary consent, and in many cases people were sterilized against their will. Although California was the most aggressive sterilizer, information about the likely number of living victims is scant because of the paucity of large-scale data sources and the silence of the victims themselves. 

As of 2016, we estimate that as many as 831 patients sterilized in California institutions are alive today. Producing this estimate is one facet of a larger interdisciplinary project devoted to demographic and historical reconstructions of eugenics and sterilization in California. Given public health’s commitments to social and reproductive justice, we believe that public health offers a useful lens for coming to terms with this past injustice. By providing the most rigorous estimate of sterilization survivors in California to date, we hope to spark a conversation about potential opportunities for recognition and redress.

They go on to note that

Human rights and legal scholars have debated instances of injustice that merit more than a simple apology, such as slavery, internment, and genocide. The ethical principles that one legal scholar provides for determining when society is obliged to provide redress to a group of people include that “a human injustice must have been committed” and that said injustice “must be well documented.” In 2003, California officials publicly apologized for the state-run sterilization program, acknowledging the thousands of surgeries as a human injustice. In addition to state counts of the number of sterilizations, our data and archive include official records and requests that fully document the sterilizations and the biased eugenic logic used to justify them. Given the principles outlined by legal scholars guiding “meritorious redress claims,” the state’s own admission of injustice, and the documented impact of sterilization on people with disabilities and from poor backgrounds, it is reasonable to conclude that what happened in California warrants more than a public apology, especially given the state’s high sterilization numbers. Guided by our estimate of the number of living sterilization survivors, we suggest that California emulate its sister states, North Carolina and Virginia, and launch monetary compensation programs for victims. Both North Carolina and Virginia have created agencies (the North Carolina Office of Justice for Sterilization Victims and the Virginia Eugenical Sterilization Act Compensation Program) to process and adjudicate claims for compensation, which were set at $20 000 and $25 000, respectively. Recent efforts in these two states underscore the merit of compensating individuals who have experienced state-sanctioned reproductive injustice. In 2013, after years of organizing by sterilization survivors and supportive legislative officials, North Carolina, which sterilized approximately 8000 people in the 20th century, passed a law to compensate victims. North Carolina’s State Center for Health Statistics used life table methods similar to our own to estimate that there were as many as 2944 living survivors of the North Carolina Eugenics Board’s sterilization program in 2010 (although adjustment for lower life expectancy among groups targeted for sterilization reduced the final estimate of survivors to 1500–2000). Although North Carolina performed fewer total sterilizations than California, its estimate of living survivors is higher because eugenic sterilizations occurred more recently, well into the 1960s.

A $10 million fund was appropriated to correspond to the number of victims deemed eligible for compensation. The state’s Office of Justice for Sterilization Victims required that victims be alive on June 30, 2013, and it accepted claims through June 30, 2014. The state approved 220 of 768 claims and sent out $20 000 checks to verified claimants. The legislation required proof that the procedure was approved by the North Carolina Eugenics Board, and thus some individuals sterilized by private physicians, even those with eugenic intent, were ineligible for compensation. A bill proposed in the state legislature earlier this year would make additional reparations available to some of these victims. In Virginia, where about 7600 people were sterilized in state institutions during the 20th century, the Christian Law Institute pushed for legislation, established the Justice for Sterilization Victims Project, and lobbied the legislature for monetary compensation following the example of North Carolina. The number of survivors in Virginia was estimated to be approximately 1500 on the basis of North Carolina’s calculation that approximately 20% of initial victims had survived to the present day. In 2015, the state set aside $400 000 to compensate survivors with awards of approximately $25 000 each. The Virginia Eugenical Sterilization Act Compensation Program required that victims be alive on February 1, 2015, and the program continues to accept claims.

One concern in both states has been whether receipt of reparations would count toward individuals’ income and make them ineligible for federal programs such as Medicaid or the Supplemental Nutrition Assistance Program. A bill recently passed in the US House of Representatives would ensure that state-level eugenics reparations do not interfere with the benefit eligibility of this aging and vulnerable population. While North Carolina and Virginia were organizing compensation programs, a new episode of sterilization abuse emerged in California, this time among women incarcerated in state prisons. A 2013 Center for Investigative Reporting article revealed that, between 2006 and 2010, close to 150 unauthorized sterilizations were performed in California prisons. In response, Senator Hannah-Beth Jackson requested an investigation by the California state auditor that corroborated and expanded the article’s findings, showing that 144 women were sterilized without adherence to required protocols.

Prejudices expressed by Dr. James Heinrich, the physician who performed many of the tubal ligations, were particularly revealing. He told a reporter that the money spent sterilizing inmates was negligible “compared to what you save in welfare paying for these unwanted children — as they procreated more.” This callous attitude toward the reproductive lives of institutionalized women, the majority low-income women and women of color, echoed earlier eugenic attitudes. In the 1930s, at the height of eugenic sterilization, California’s health officials repeatedly asserted that, in addition to its therapeutic value, sterilization would relieve the state of the economic burden of “defectives” and their progeny.

Senator Jackson connected the prison sterilizations to California’s past when she stated that “pressuring a vulnerable population—including at least one instance of a patient under sedation[—]to undergo these extreme procedures erodes the ban on eugenics.” This recent news and Senator Jackson’s comments point to the importance of recognizing the long history of sterilization abuse involving vulnerable individuals in California.

'Following in North Carolina's Footsteps: California's Challenge in Compensating its Victims of Compulsory Sterilization' by Katherine A. West (2013) 53 Santa Clara Law Review 301 notes

In the 1940s, physicians at the Sonoma State Hospital sterilized Charlie Follett, a fourteen-year-old boy placed in the institution because his parents were alcoholics and unable to care for him. Neither hospital officials nor physicians informed Follett of the procedure he was to undergo. Even worse, Follett did not consent to the operation. According to a CNN interview with Follett, a hospital official brought Follett into the hospital, told him to lie down on an operating table, and gave him a shot to “deaden [his] nerves.” Follett next remembered hearing a “snip, snip”—the sound of him being sterilized. In May 2012, Follett passed away, sixty-seven years after his sterilization operation; he had no remaining family. 

Follett was but one of an estimated 20,108 Californians involuntarily sterilized by the state of California under its eugenic sterilization law. To this date, California has not provided health care services or compensation to its victims of sterilization. State representatives simply issued apologies in 2003 expressing the state’s “profound regret.” 

California is not alone in its history of eugenic sterilization. Beginning in 1907, the United States sterilized roughly 60,000 individuals without their consent. Thirty-two states in total passed eugenic sterilization laws in an attempt to rid the nation of defectives unfit to reproduce and to promote “human betterment.” These state sterilization programs authorized the involuntary sterilization of individuals labeled feebleminded, promiscuous and insane, and targeted those with epilepsy, alcoholism, and syphilis. Proponents of sterilization argued that sterilizing these individuals would cure America’s social ills. State-run sterilization programs continued into the 1970s, with some states maintaining their sterilization laws on the books into the 1980s. Currently, few states have taken action to redress the harm their sterilization victims suffered. Only seven states, including California, have issued apologies recognizing the wrong suffered by their sterilization victims. The remainder of the nation’s victims remain unrecognized.  

North Carolina and its eugenics program recently entered the national spotlight with talks of compensating its estimated 1500 to 2000 living victims. In January 2012, the North Carolina Governor’s Eugenic Compensation Task Force proposed that the North Carolina legislature compensate each living victim with a $50,000 lump sum. In addition, the Task Force recommended that the state offer mental health services for living victims and fund a traveling North Carolina Eugenics Exhibit. In June 2012, the North Carolina state legislature considered the Task Force’s recommendations. The North Carolina House of Representatives approved the legislation; however, the state senate rejected the Task Force’s compensation plan. Had North Carolina adopted these measures, it would have been the first state to compensate its victims of forcible sterilization. While North Carolina contemplated compensating its sterilization victims, eyes turned toward California, the most egregious offender in the nation’s shameful eugenic past. California performed one-third of the total sterilization operations in the nation, more than twice as many sterilizations as its “nearest rivals.” Will California follow North Carolina’s example and consider compensating its living victims? In this Comment, I discuss the challenges California faces in compensating its sterilization victims. Unlike North Carolina whose numbers of sterilizations rose after 1950, California’s sterilization program died down after 1952, meaning a large number of California’s victims are most likely no longer living. In addition, the state will face challenges locating victims and encouraging them to come forward in spite of the shame they may feel. 

Part I of this Comment explores the background of the nation’s eugenics history, focusing particularly on California’s sterilization program. Part II discusses the end of the state eugenic programs and outlines state measures taken to redress victims. Part III analyzes the case for compensation, exploring why states should consider compensating victims of involuntary sterilization. In addition, Part III discusses North Carolina’s approach to the issue. Part IV analyzes California’s challenges in compensating its victims, looking specifically at the number of possible living victims and the difficulties the state will face in locating them. Lastly, Part V examines California’s options and moral obligations, proposing that California should compensate its sterilization victims regardless of how few may be alive and the difficulties the state faces locating victims. I further propose that California should commission a task force to determine the amount of money and type of services it should provide survivors.

Judicial Associates

'The Power Of The Judicial Assistant/Law Clerk: Looking Behind The Scenes At Courts In The United States, England And Wales, And The Netherlands' by Nina Holvast in (2016) 7(2) International Journal For Court Administration comments

Although largely invisible to the public, behind the scenes, judicial assistants/law clerks frequently play a vital role in the process of adjudication. Yet, especially outside of the U.S., little is known about their role and duties in the judicial decision-making process. This article provides insight into the organization of the employment and the duties of judicial assistants in three different jurisdictions: the U.S., England and Wales, and the Netherlands. In particular, this article aims to gain an understanding of the effects different organizational structures have on the potential influence of assistants on the judicial process and to observe what restrictions are employed to prevent assistants from wielding too much influence. 

 Holvast argues

During the hearing, the main public phase of the judicial process, the judge is literally and figuratively positioned at the center. Judicial staff members are usually absent or only present in the background to record the proceedings. Behind the scenes, however, judicial staff members play a vital role in the judicial process. They perform various administrative duties and, in addition, they can assist judges in their adjudicative responsibilities. Virtually all judicial systems employ these types of staff members; however, the position that they occupy in the judicial process and the duties they perform vary significantly from jurisdiction to jurisdiction. In this article, the terms “judicial assistant” and “judicial staff member” are used to describe staff members (in the US also called law clerks) who assist judges in the adjudicative content of their work, but who do not perform any adjudicative duties on their own. This should not be confused with the function of Judicial Assistant (in capital letters), which exists in England and Wales or judicial assistants employed at some American courts. Most research on this topic originates from the United States, and concentrates predominately on law clerks in the U.S. Supreme Court. This research reveals that law clerks play an important role in judicial decision-making and that their abilities to influence are far-reaching. These findings are remarkable, as law clerks are not appointed as adjudicators, but are intended to provide research and support to the judiciary. When a substantial portion of judicial duties are in fact performed by judicial assistants (in this case law clerks) who have not completed a comparable training or gone through the same selection process as judges and who are not subject to the same institutional safeguards (e.g. life-tenure) to ensure their impartiality and independence, this raises fundamental questions about the legitimacy of this allocation of duties (see on this matter also section 4 of Bieri’s contribution to this issue). The probability that law clerks and other non- judicial personnel influence judicial decision-making is an ongoing topic of discussion. It has been a concern of lawyers and academics in the U.S. for decades. Whether the assistants’ influence is regarded as “undue” depends on the perspective one has on adjudication. When taking a classical Rule of Law perspective on adjudication, the involvement of non-judges is perhaps more frequently regarded as “undue” than when one endorses a pragmatic or economic view on adjudication. 

Besides issues concerning differences in training, selection and institutional safeguards, the prospect of diluting one individual’s sense of responsibility for a judgment when large portions of the judicial work are performed by subordinates is also mentioned. In that vein, Posner observes a loss when judgments are “ghostwritten” by law clerks, as clerks are bright, but inexperienced and “judges fool themselves when they think that by carefully editing, they can make a judicial opinion their own.” Posner furthermore argues that extensive delegation could result in more uniform and legalistic judgments, as law clerks would not have the authority and experience to look beyond the (case) law. In addition, Kronman claims that the preparation of memos on cases by subordinates, commissioned and reviewed by a judge, can threaten the deliberative imagination of judges and would make the judges’ perspectives on cases essentially “monocular”. A particularly prominent fear in the U.S. is that of law clerks pursuing their own (political) goals instead of judges’ goals, thereby steering the political outcomes of cases. 

Notwithstanding these concerns, it is widely acknowledged that law clerks have also played a key role in reducing the caseload crises that arose in the U.S. in the 1980s. Given that many countries face rising caseloads and decreasing judicial budgets, delegating certain duties might be ineluctable (see also Bieri in this journal). Judicial assistants can contribute to the efficiency of the adjudication process, and, under certain conditions, also to the quality thereof. According to Edwards the above concerns are, in fact, “much ado about nothing.” Competent and conscientious judges will provide their law clerks with instructions and will “not allow an opinion to issue in their name until the words constitutioning the opinion precisely reflect their views on the proper disposition of the case.” 

In most judicial systems outside the U.S., there is remarkably little knowledge regarding the role of judicial assistants. In those judiciaries, this topic is not a prominent issue of discussion. However, many of the previous concerns could apply equally well to judicial assistants in courts in those jurisdictions. In order to attain greater insight into the issue of delegation of judicial duties to judicial assistants, this article investigates several ways in which judicial assistance is organized in three judiciaries. The central question is: in what ways can the employment of judicial assistants be organized and what are the consequences thereof in relation to the ability of judicial assistants to influence the judicial decision-making? To keep the overview, this article examines only a sample of the existing organizational structures in these judiciaries.

In the next section, the methodology of the article is discussed. Following that section, the selected judicial assistant models are analyzed. Thereafter, the article introduces six features by which judicial assistant models can be distinguished and the ways in which these factors affect judicial assistants’ ability to influence are explored. This is followed by the conclusion which recapitulates the main features that result in or limit the influence of assistants and emphasizes the importance of formalizing their role in the adjudicative process.

Holvast goes on to comment on 'six key features that distinguish the roles and positions of judicial assistants' -

1. Reasons for employing judicial assistants 

2. Ratio of judicial assistants to judges 

3. The qualifications of judicial assistants and the terms of their employment 

4. Duties of assistants and their participation in various stages of the judicial process 

5. Judicial assistants’ assignment to individual judges or the entire court 

6. Judicial assistants working with professional or lay judges

4.1. Reasons for Employing Judicial Assistants 

The first aspect that determines the judicial assistants’ role is the reasoning behind employing them. With regard to U.S. law clerks, the rise in caseloads is the most frequently cited reason for the creation of law clerk positions and for continuing to expand their number. It is also cited as a motivation for the increased allocation of duties to law clerks. This is essentially a motive based on efficiency, as employing assistants is assumed to save judges time. It enables them to handle more cases than would be possible without assistance. A backlog of applications for leave to appeal was also cited as the main reason for starting to employ Judicial Assistants in England and Wales. The Dutch judiciary is increasingly focused on the efficiency of adjudication too and the creation of models with which to delineate the time that judges and assistants spend on cases, reveals a consciousness about the economic benefits of employing assistants. Magistrates’ Courts have also been repeatedly evaluated on their costs, but these studies appear to focus on the (in)efficiency of the employment of lay judges (instead of professionals) and not on the clerks. 

Ward and Weiden conversely state that the establishment of the law clerks position is actually an outgrowth of the apprentice model of legal education. The apprentice component and the unique experience of gaining a deeper understanding of the judicial decision-making process are still mentioned by law clerks, and by Judicial Assistants too, as reasons for applying for the position. Judges frequently emphasize this aspect as well. The Dutch judicial assistant model also originates in an apprenticeship model, but this model was abandoned in the 1950s. From then on, the educational element seems to have vanished. Currently this is of relatively little importance, just as it is for Magistrates’ clerks. A third motive for employing judicial assistants is their plausible contribution to the quality of adjudication. Research contributions of assistants and their involvement as sparring partners clearly help improve the adjudication. All assistants seem to perform these duties to a certain degree, although the processes work differently. The impact on quality is perhaps most obvious at Magistrates’ Courts, where it is the clerks’ responsibility to advise the Magistrates on questions of law. Law clerks and Judicial Assistants mainly serve as sparring partners for the individual judges in their chambers. Dutch judicial assistants are frequently involved in the discussion amongst judges in deliberations. Furthermore, most assistants present their views on cases in memos, which can serve as vehicles for discussion. 

Finally, Magistrates’ clerks and judicial assistants in the Netherlands also perform several administrative and recording tasks, independent of the judge. Ensuring that these tasks are performed is clearly an additional reason for employing the assistants. 

The amount of influence that assistants can have in the recording role is probably minimal. The prospect of wielding (undue) influence is more prominent when assistants are employed for efficiency reasons. Especially when this means that the number of assistants per judge is high. When assistants are employed for reasons of quality improvement, it is actually intended that they have a certain influence on the content of judgments. In this case, the diffusion of responsibilities between judges and assistants is especially likely to become an issue. 

4.2. Ratio of Judicial Assistants to Judges 

Another aspect in which judicial assistant models differ substantially is the degree to which judicial assistants are employed. Employing more assistants increases the likelihood of them having influence. It may turn judges into managers who spend most of their time supervising and coordinating assistants. 

In the Dutch trial courts, judicial assistants generally slightly outnumber the judges. The judicial assistants’ role is particularly important because of the significance of court records for the process of review on appeal. In the U.S., the largest numbers of laws clerks are positioned at the top of the judiciary. The higher the position of a judge, the more law clerks will be assigned to him or her. The number of law clerks for every Supreme Court Justice is four. Judges at other federal Courts and State Highest Courts have about two to three judicial assistants. It is remarkable that the U.S. judiciary has evolved into a system with high reliance on law clerks at the highest level courts, whilst professional judges of its predecessor system in England and Wales, until very recently did not attain any kind of judicial assistance. At present, the English Court of Appeal (38 judges) and Supreme Court (12 judges) still both employ a modest eight judicial assistants. This results in English and Welsh judges having to perform most of the work themselves. The duties of Judicial Assistants are also rather limited and do not include judgment-drafting. This is different from Magistrates’ Courts, where every panel of Magistrates is assisted by one Magistrates’ clerk to provide them with legal advice. 

4.3. The Qualifications of Judicial Assistants and the Terms of their Employment 

The study of judicial assistant models in this article highlights roughly two types of judicial assistants in relation to terms of employment, experience, and credentials. The first type is represented by the U.S. law clerks and English Judicial Assistants in the Courts of Appeal and Supreme Court. These are young, recently graduated lawyers who regularly only occupy the position for a brief period of time, this type of assistant is referred to as temporary assistants. The other type is represented by the Magistrates’ clerks and Dutch judicial assistants in the lower level courts and this type is referred to as the career assistant. These judicial staff members are not necessarily young lawyers, they can be older as well. Moreover, they are employed by the courts for an indefinite time. In the past, these assistants would typically not be legally qualified, but both judiciaries tightened the entry requirements and currently most new assistants are qualified lawyers. 

The choice for temporary assistants serves several purposes. First, it is said to be an important check to prevent undue influence, given that the short term law clerks will never fully master the job and therefore will not be able to consolidate considerable power. In addition, an important motivation for employing recent graduates is that these assistants can present the judges with the latest academic insights on recurrent discussions. By providing young lawyers the opportunity of a rather short clerking experience, the justices also assure themselves of getting the best students who are willing to work exceptionally hard during their year of employment. It also fits the notion of the position as an apprenticeship. 

However, temporary assistant positions entail spending large amounts of time and effort on selecting and training new assistants. Selecting new assistants each year also comes at the expense of attaining continuity in the assistant model and in building expertise. The career assistants, such as the clerks at Magistrates’ Courts and the specific assisting position of staff lawyer in the Dutch judiciary, are employed for their legal knowledge and extensive experience. Furthermore, Dutch staff lawyers are, every so often, involved in producing court policies. Since these judicial assistants are increasingly legally qualified, their contribution to the quality of adjudication can be substantial. However, in the Dutch as well as the English and Welsh system, a lack of career perspectives is observed. This results in the threat of well qualified judicial assistants leaving the judiciary for better job opportunities elsewhere. Experienced assistants are also in a powerful position in relation to judges. Regarding Magistrates, Astor clarifies: “Most lay Magistrates spend half a day, or a day, in court once a week or once a fortnight. They are, in a sense, regular visitors to a complex organization which they play little part in running. It is the Clerk to the Justices and the Clerk's staff, who control this organization and who ensure that the hundreds of cases scheduled to be dealt with each day are properly processed.” This could also, to a lesser degree, be the case in the Netherlands. In particular, in relation to new judges, Dutch judicial assistants can have a powerful position. Evidently, this introduces the risk of career assistants having too much influence and judges relying too much on their expertise, thereby preventing judges from fully considering the merits of cases themselves. 

4.4. Duties of Assistants and their Participation in Various Stages of the Judicial Process 

When comparing the duties of judicial assistants, those of the Dutch assistants seem to be the most wide-ranging, as they include participation in all stages of the judicial process. A historically important responsibility of Dutch judicial assistants is that of creating the court records. Producing a correct record is in fact a shared responsibility of the judge and assistant. In the U.S. and England and Wales (except for in Magistrates’ Courts) administrative staff perform this duty. Recently, Dutch assistants also attained an important role in the preparations for hearings and in drafting judgments, thereby also becoming involved in the content of judicial decision-making. U.S. law clerks are also, to a large extent, involved in the judicial content. In the Supreme Court, their role is particularly far-reaching in the process of deciding what cases will be reviewed (the certiorari process), a feature which is not part of the Dutch mandatory review system. Using memos (in the review process or in preparation for oral arguments) results in the judge no longer being directly confronted with the plurality of claims of the parties but rather receiving a representation of the case from the viewpoint of a subordinate. This is likely to affect judges’ decisions. Kronman fears that this makes the judges’ perspective more monocular. 

Similar to Dutch assistants, U.S. law clerks play a key role in drafting judgments. There is a risk, however, that this involvement inhibits the judge from reconsidering his intuitive first stance on a case.  Furthermore, having the drafting of a judgment done by a subordinate could result in judges (and courts) creating more guidelines in order to assure that the assistants in fact write drafts in accordance with the judge(s)’ views. This could result in less attention for cases that might require deviation from the general directives. Unlike in the Netherlands, in the U.S. Courts of Appeal it is strictly forbidden for anyone other than the judges to enter the deliberation room. This rule limits the actual influence as well as the appearance of law clerks wielding influence. This is different from Dutch judicial assistants, who regularly are present during deliberations. 

The duties of the two types of English judicial assisting staff members are different in many ways. The Magistrates’ clerks play a key role in the courtroom and during deliberations. An interesting observation of Darbyshire was that various court actors viewed court clerks to be more in control of the proceedings than the chair of the Magistrates’ panel. Magistrates’ clerks are also afforded various pre-trial judicial powers. Darbyshire claims that this extends the role of the Justices’ clerk too much. She argues that case management is a judicial task that should be performed by judges and not by clerks. Judicial Assistants assist judges primarily in preparing memos for applications for leave to appeal and, to a lesser degree, in preparing bench memos and acting as sounding boards. Although the function of Judicial Assistant is less than 20 years old, during its existence, the duties have expanded and the contribution of Judicial Assistants to the decision- making process seems to have increased.  In England and Wales, judges appear to be less rigorous about the presence of Judicial Assistants at deliberations than in the U.S. However; they are more restrained in giving assistants a role in drafting judgments.Although the Judicial Assistant scheme was loosely based on the U.S. law clerk model, there is a strongly held opinion amongst judges in England and Wales that Judicial Assistants should not attain the influence that American Law Clerks appear to have. 

4.5. Judicial Assistants’ Assignment to Individual Judges or the Entire Court

The fact that, in common law judiciaries, Appellate Court judges are more adjudicating as individuals (being able to display their individual views on cases through dissenting and concurring opinions to support or deny the final decision) rather than anonymous representatives of the court, is reflected in the manner in which assistants are employed. That is, they are assigned as individual assistants to the judges rather than as assistants to the entire court. England and Wales began their Judicial Assistant model by constructing a pool of assistants available to all judges; however, soon after its creation, this was altered and assistants were assigned to individual judges. This type of arrangement results in assistants frequently having personal relationships with their judges. Peppers indicates several monitoring mechanisms which U.S. Supreme Court justices apply to control the work of law clerks and to prevent them from shirking or wielding undue influence. Some judges, for instance, reduce the likelihood that law clerks have different political preferences by taking this aspect into consideration in the selection procedure. They also monitor law clerks by having products (such as draft-judgements) reviewed by multiple clerks. The personal relationship that many law clerks have with the judges also enhances their loyalty to the judges. The assignment of assistants to individual judges also creates a situation in which judicial assistants associate themselves with professional judicial values held by the specific judge they are supporting and thus may be less concerned with organizational aims. 

In the Dutch judiciary, where judicial assistants work with various judges, the assistants occasionally obtain a role in maintaining the consistency of judgments. Perhaps this setting also results in them being more concerned with upholding organizational aims, such as court efficiency.  In all judicial systems, the judicial assistants are employed by the judicial service. As a consequence, the management of the court has more power over them than over the judges, who obtain special provisions to ensure their independence.

Like Dutch judicial assistants, English Magistrates’ clerks are not assigned to a specific judge. Their employment alongside part-time lay judges places them in a special position. Astor observes a process of balancing organizational aims and procedural rights and legitimacy which Magistrates’ clerks experience when assisting unrepresented defendants. 

4.6. Judicial Assistants Working with Professional or Lay Judges

Panels consisting exclusively of adjudicators without legal training mark the role of the Magistrates’ clerk as a rather unique one. It is exceptional to have adjudication exclusively by lay judges; most countries that employ lay participation utilize systems that group lay and professional judges.  In the English and Welsh system it is the judicial assistant who is required to enhance the legal knowledge of the panel. This is different from judicial assistants who work with professional judges; in that situation, the judges normally retain more legal knowledge than their assistants. A study on Magistrates’ Courts revealed that Magistrates’ justices seek advice more frequently than the professional District judges and the former regard the contribution of Legal Advisers more highly as well.  Their superior legal knowledge combined with their greater experience with court procedures provides Magistrates’ clerks with a unique space to wield influence, which is very different from systems in which assistants are supporting professional judges. Given that Magistrates’ clerks provide legal advice to justices who are not legally qualified, it seems that decisions on law and procedure “[are] invariably that of the clerk”.