Tradeable Birth Certificates?

In Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales [2023] NSWSC 1250 Kunc J analyses Llewellyn's pseudolaw claim that birth certificates are tradeable securities. 

Llewellyn among other matters claimed to be a '"bondholder" and expects full repayment of the face value of the securities".' Unsurprisingly the Court disagreed 

 Ms Dunlop's helpful submissions set out a number of reasons why, with great respect to the Plaintiff, the summons and the relief sought in it are completely misconceived as a matter of the laws applicable in New South Wales and, for that matter, the Commonwealth of Australia generally (Mr Llewellyn’s submissions appeared at one point to suggest a relevant distinction between state law and Commonwealth law). It is sufficient for me to deal with only two matters put by Ms Dunlop that are entirely dispositive of the Plaintiff’s claim. 

The first is the Plaintiff’s proposition that either in and of itself, or by reason of the process of registration and certification or authentication, Mr Llewellyn's birth certificate is a form of security. The Court accepts the State’s submission that the birth certificate is plainly no such thing. Apart from anything else, it contains no words of charge, mortgage, guarantee or similar that one would expect to see in a document that met the orthodox legal definition of a "security". It is a birth certificate, undoubtedly an important document, but on no view is it a security creating rights as such under any law of this country. 

The second fundamental difficulty with the Plaintiff’s case relied upon by the State appears from what I have set out in [16] above, which displays a basic misunderstanding of the expression "full faith and credit" where those words appear in s 118 of the Constitution (Cth) and in other legislation relied upon by the Plaintiff. 

The Plaintiff, fastening upon an online definition from "Investopedia", submits that "credit" in the expression “full faith and credit” is something to do with guaranteeing or evidencing a debt. There can be no doubt that is not the meaning of "credit" in the expression "full faith and credit". "Credit" in that phrase refers to the concept of acceptance or belief in the validity of something. 

The two reasons which I have identified are sufficient to demonstrate for the purposes of the State’s notice of motion that the summons discloses no reasonable cause of action and ought to be summarily dismissed accordingly. There is, in fact or law, no “Trust owned Security” about which any of the defendants can provide the information sought by the summons as explicated in the “petition”. 

However, before leaving the substantive issues raised during the course of the hearing, I should also record that Mr Llewellyn "moved to strike" the State's submissions. He did so on the basis that those submissions were "non fact, hearsay, rhetoric, unwarranted, conjecture" and other epithets to like effect. 

As I sought to explain to Mr Llewellyn during the course of argument, submissions are not evidence and are not required to be sworn. The State’s motion was supported by an affidavit sworn by a solicitor with the conduct of the matter. The State’s submissions are something quite different from the affidavit in support. They are exactly that – submissions – and not evidence. I therefore rejected Mr Llewellyn's application "to strike" the State’s submissions. ... 

I invited Mr Llewellyn to put any submissions as to why he, being the named “petitioner, Aidan Rees Llewellyn as trustee for the House of Llewellyn”, should not be ordered to pay the State’s costs of the summons including the present motion. He responded that he should not be ordered to pay costs as he did not accept the validity of my judgment because of the various facts upon which the Plaintiff relied. He submitted those facts had not been controverted by the State and that my reasons were inadequate. 

This is a case where the usual principle should apply as to costs, namely that costs follow the event. Mr Llewellyn’s submissions do not provide a proper basis to depart from that position in the exercise of the Court’s discretion. The event is the dismissal of the summons in accordance with the State’s notice of motion. The Court will order that the Plaintiff pay the State’s costs of the summons, including of the State’s notice of motion, and make directions for the resolution of the application for costs on a gross sum basis.

Competition, Rockets and Feathers

The 'Gouging' report from Alan Fels for the ACTU comments 

This report concludes that business pricing has added significantly to inflation in recent times. 

‘Profit push’ or ‘sellers inflation’ has occurred against a background of high corporate concentration and is reflected in the surge of corporate profits and the rise in the profit share of Gross Domestic Product. There is much support for the view that prices have added much to inflation. This is to be found in research from OECD, IMF, BIS, European Commission, European Central Bank, US Federal Reserve Bank, Bank of England and many think tanks globally and locally and many detailed research studies. Claims that the rise in profit share in Australia as explained by mining do not hold up. The profits share excluding mining has risen and energy and other prices associated with mining have been a very significant contributor to Australian inflation. ... 

The report analyses a selection of exploitative business pricing practices that enable the extraction of extra dollars from consumers in a way that would not be possible in markets that are competitive, properly informed and that enable overcharged consumers to readily switch from one supplier to another. The fact that there is a quite widespread lack of competition in Australian markets means that pricing practices that might be accepted in very competitive markets are unduly exploitative of consumers in that setting.

 Fels identifies a range of 'not unlawful' practices 

 Loyalty taxes set initial prices low and then sharply increase them in subsequent years when consumers cannot easily detect, question, or renegotiate them and where the ‘transaction costs’ of changing to other competitors are high. Examples come from banking, insurance, energy, and other areas. 

Loyalty schemes are often low cost means of retaining and exploiting consumers by providing them with low value rewards of dubious benefit. These schemes are also often badly run. 

Drip pricing where firms only advertise part of a product’s price and reveal other prices later as the customer goes through the buying process is spreading including in airlines, accommodation, entertainment, pre-paid phone charges, credit cards and others. 

Excuse-flation where general inflation provides camouflage for businesses to raise prices without justification is also more prevalent in the current environment. As inflation starts to fall excessive inflationary expectations and future cost increases can be built into prices. 

Confusion pricing involves confusing consumers with a myriad of complex price structures and plans making price comparisons difficult and dulling price competition. It occurs more and more in areas such as telecommunications, financial or maintenance services and other fields. 

Asymmetric or ‘rockets and feathers’ pricing is of much concern in the current environment especially as inflation is starting to come down. When costs rise prices go up quickly ‘like a rocket’ but when costs fall prices fall slowly ‘like a feather falling to the ground’. This practice of delaying price falls when costs have fallen can be very profitable for businesses. A recent example concerned meat prices when prices paid to farmers for lamb fell but retail prices did not, at least until there was publicity including from this inquiry about the delay. 

Algorithmic pricing is the practice of using algorithms to set prices automatically (but taking account of competitor responses) raises issues about whether this reduces price competition and is analogous to cartel pricing. Price discrimination which in its simplest form involves charging different consumers different prices for the same product enables businesses to set prices according to how much each consumer is willing and able to pay. It takes many forms. It is enabled by a lack of competition. If there were competition charging high prices to customers who wish to or have to pay higher prices would not be possible because competitors would bring those prices down to normal levels. 

This report identifies a number of examples ranging from banks (better rates from customers likely to leave them), electricity (better prices for business customers than for consumers even allowing for lower costs of supply) and medical specialists which offer vastly different prices for near identical services. Of particular concern is the rise of much greater use of price discrimination enabled by the rise of digital platforms, new technology, detailed customer data and sophisticated profit maximising pricing methodologies. These practices all result from an economy which is insufficiently competitive and gives room for businesses to engage in exploitative pricing practices. There is a case for a much more active public policy for investigating and analysing practices that operate at unwarranted cost to customers. 

In order to address these the report recommends policy outcomes which would:

• remove obstacles to competition by the application of competition law or a removal of government restrictions on competition 

• require the provision of better information to consumers 

• lessen or remove obstacles to consumers switching to other suppliers 

• exposing or sometimes shaming exploitative business practices of the kind shown in this report 6

All these business exploitative practices rest on a platform of weak competition in many parts of the economy and would be generally reduced by a strengthening of competition law and policy. Accordingly, recommendations to this effect are made in the report. The prices practices described are not unlawful, but they reflect an imbalance between consumers and the power of business. Price control is not seen as a solution in most or all cases. However, there is a case for governments exercising much closer scrutiny over these practices and for such scrutiny to be a regular part of the policy agenda.

 Fels' recommendations are summarised as

1.1: The Australian Government should use its power to require the ACCC to conduct more price and market investigations. 

1.2: The Australian Government should have power to require the ACCC to undertake market studies as well as price studies. 

1.3: The ACCC should have power of its own to initiate price and market studies. 

1.4: The GST pricing legislation of 2000-2003 provisions regarding the naming of businesses and industries that overcharge should be reinstated. 

1.5: Section 46 of the Australian Competition and Consumer Act should be amended to make it an offence to charge excessive prices in terms similar to the European Union provisions. 

1.6: The Government could establish a Commission on Competition and Prices to review Government and other restrictions on competition and high prices caused by a lack of competition. 

MERGERS AND DIVESTITURE 

2.1: The Australian government should establish a pre-merger notification system along similar lines to most OECD countries. 

2.2: That in merger matters the onus should be on applicants to satisfy the ACCC and on appeal the Australian Competition Tribunal that the merger is not anticompetitive and is in the public interest. 

2.3: The merger test should be augmented to continue to prohibit mergers which substantially lessen competition but there should be an additional provision prohibiting mergers that give rise to substantial market power (a more structural and immediate test) and/or which entrench, create, or add to market power. 

2.4: A divestiture power should be introduced into the competition law. 

COMPETITION 

3.1: The Australian Consumer and Competition Act needs to be shortened. 

3.2: If the secondary boycott law is retained in the Competition Law there should be a provision that secondary boycotts are only unlawful if they substantially lessen competition. 

3.3: Australia should ban non-compete clauses in employment contracts affecting both employees during and post-employment. 

3.4: The current National Competition Review should examine policies and laws that prevent Governments from needlessly restricting competition. 

3.5: The ACCC receives further funding for strong enforcement of the cartel law. It should also apply the criminal sanctions available for unlawful price fixing and other cartel agreements. 

3.5: Treasury should conduct a public consultation to determine the need for improvement in the drafting of the criminal elements of the cartel law in view of recent difficulties in the bank cartel case. 

AVIATION 

4.1: Airport prices should be regulated in the same way as other utility prices. 

4.2: The Australian Government should use the opportunity of its current aviation review to remove international and domestic restrictions on competition. Any remaining restrictions should be reviewed by the Treasury led Competition Policy Review. 

EARLY CHILDHOOD EDUCATION AND CARE 

4.3: The ACCC should be empowered to investigate pricing decisions made by for-profit providers to ensure gaming is not occurring. 

4.4: Prices in relation to disability care and support and aged care should be kept under continuous review by the ACCC. 

BANKING AND FINANCIAL SERVICES 

4.5: The ACCC should be provided with a standing Ministerial Direction to monitor prices and competitiveness in the retail banking sector. 

4.6: The ACCC should be issued with a Ministerial Direction to undertake a further inquiry into pricing practices in foreign exchange markets to develop mechanisms for a fairer transmission of cost information to consumers as well as to provide specific assistance to prevent exploitation of those with low English language proficiency. 

ENERGY 

4.7: There should be a review of the design and operation of the wholesale market as to whether it requires refinements or a fundamental change in the form of a ‘capacity market’ as in North America and in Western Australia. This review should be chaired by an independent expert with input and resources from the AER, AEMO, and ASIC. The level of electricity generation concentration should be kept under review, and there should be close scrutiny of the impact on competition, positive or negative, that could occur in the transition to a re-designed energy market. 

4.8: ASIC should be provided with a Ministerial Direction to investigate the energy derivatives market to ensure that participants in both the National Electricity Market and the markets for derivatives are not misusing their position in either to gain an unfair advantage or influence the price of energy to meet derivatives conditions. 

4.9: Network prices should continue to require close regulatory scrutiny with the long-term interests of consumers put first. 

4.10: There should be a regulatory review of the high degree of price discrimination in the retail electricity and gas markets. 

4.11: State Governments and regulators should continue to introduce initiatives to improve retail outcomes brought about by current market imperfections. 

FOOD AND GROCERIES 

4.12: It is recommended that there should be a comprehensive ACCC inquiry into competition and prices in the retail food and grocery industry. 

4.13: The Food and Grocery Code Review should be fully mandatory. 

4.14: The Food and Grocery Code Review should investigate creating a price register for farmers to assist them in understanding market prices across primary industries. 

SHIPPING COSTS IMPACTING FNQ AND NT 

4.15: The ACCC should once again have an ability to challenge and overturn unreasonable prices charged by Sea Swift to ensure the service is not exploiting its market position. 

ELECTRIC VEHICLES 

4.16: Regulations in the Road Vehicle Safety Act 2018 which block parallel imports of electric vehicles be immediately lifted. 

4.17: Regulations under the Road Vehicle Safety Act 2018 which block parallel imports of cars into Australia should also be repealed in coming months. 

OUT OF POCKET CHARGES BY MEDICAL SPECIALISTS 

4.18: The National Competition policy review should conduct or commission a contemporary study of specialist fees backed by an analysis of restrictions on competition and of the role of information imbalances between patients and specialists. 

4.19: The ACCC or the Productivity Commission or another appropriate body should, separately, review specialist fees and the policy steps that could be taken to make them more transparent or to reduce them. 

PHARMACEUTICALS 

4.20: A mandatory reporting scheme should be implemented in relation to originator and generic agreements to improve the detectability of pay for delay agreements similar to the reporting arrangements in the United States.

Infrastructure

'The hardware turn in the digital discourse: an analysis, explanation, and potential risk' by Luciano Floridi in Philosophy and Technology comments 

The article examines the evolution of the digital discourse, indicating a paradigmatic shift from an immaterial to a material emphasis. Traditionally dominated by a focus on the intangible aspects of the digital—bits rather than atoms, especially software, data, services, experiences and interactions—the digital discourse is experiencing a hardware turn, which brings the infrastructure of digital technologies to the fore. The article elucidates how this transition expands the scope of digital ethics, encompassing the Governance, Ethical, Legal, and Social Implications (GELSI) of material components such as rare earth mineral mining, semiconductor production, datacentre operations, undersea cables and satellites. The interpretation defended is that the hardware turn is not the result of intellectual insights or scholarly advocacy but a response to political powers recognizing the strategic value of owning or controlling the material underpinnings of the digital domain (digital sovereignty). The article warns against the risk of swinging from an exclusively immaterial perspective to a solely material one, advocating for a relational ontology that focuses on the physical and social structures supporting the digital experience. y

Argument

'Institutional Design and the Predictability of Judicial Interruptions at Oral Argument' by Tonja Jacobi, Patrick Leslie and Zoe Robinson in (2024) Journal of Law and Courts comments 

 Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply. 

Increasing attention is being paid to interruption behavior, particularly social norms relating to gender differences: not only are women more likely to be interrupted, but this is true even in contexts where women possess significant power, such as in Congress (Kathlene 1994; Mendelberg et al. 2014) and boardrooms (Dhir 2015). In recent years, scholars have observed these same interruption behavior patterns at U.S. Supreme Court oral arguments. Female Justices are disproportionately interrupted compared to their male counterparts Jacobi and Schweers 2017; Patton and Smith 2017;  Feldman and Gill 2019). A Justice’s ideology and experience also predict interruptive behavior, and interruption rates increase when a Justice is less likely to agree with a colleague or attorney (Jacobi and Sag  2019; Patton and Smith 2020). 

Psychologists and sociologists have long found interruptions to be indications of dominance behavior between individuals (Watts 1991; Zimmerman and West  1975). Interruptions, then, have significance beyond social dynamics: if interruptions are reflective – and potentially reinforcing – of power imbalances, then interruptions can limit the contributions of some oral argument participants and promote others. The U.S. Supreme Court has seemingly recognized this significance, changing its structure of oral argument starting in the 2023 October term in response to findings of disproportionate interruptions of women (Deese 2021). Interruptions at apex court oral argument are particularly important because the transparency of oral argument – especially compared to the rest of the judicial decision-making process – contributes to an apex court’s legitimacy, and gender and other disparities at oral argument may harm that legitimacy and moral authority. 

Accordingly, increasing scholarly attention is being paid to interruptive behavior in political and judicial institutions as a means of revealing structures of social hierarchy within deliberation. The systematic speech patterns discovered between genders, for example, raise concerns that greater representation of women on the Court, among both Justices and advocates, will not prevent women’s voices from being drowned out (Dhir  2015; Kathlene 1994; Mendelberg et al. 2014). 

Despite the importance of the study of interruptive behavior as a proxy for power in political institutions, few studies look outside the U.S. judicial context to examine the institutional design features that might facilitate or constrain oral argument (but see Bentsen et al.  2021; Krehbiel 2016). The paucity of studies of oral argument beyond the U.S. Supreme Court means we have a limited understanding of how institutional design contributes to judicial behavior at oral argument. This lacuna in the judicial behavior literature stands in contrast to the robust study of the role of institutional design on deliberative behavior in legislative politics (Bäck et al. 2014; Goet 2019; Proksch and Slapin 2012) and among scholars of deliberative democracy when designing mini publics (Fung 2003). 

This article examines the role of institutional design in shaping judicial interruptive behavior in oral argument. We examine interruptions at oral argument in the Australian High Court, an apex court that exhibits significant similarities in key institutional features to the U.S. Supreme Court (Aroney and Kincaid 2017). Further, a growing body of empirical scholarship has demonstrated that High Court Justices, like their American counterparts, vote in line with ex ante ideological and partisan preferences (Robinson et al.  2022). This is despite the Australian Constitution not containing the entrenched individual rights that are so often at the center of divisive cases before the U.S. Supreme Court. Relevantly, one recent study showed that case outcomes in the Australian High Court are similarly predicable as the outcomes in the U.S. Supreme Court based on oral argument (Jacobi et al. 2022). There is good reason, then, to believe that interruptions at the High Court may also mirror interruptive behavior at the U.S. Supreme Court, at least in the context of ideological interruptive behavior. 

Yet the institutional contours of the Australian High Court differ markedly in two significant respects. First, gender is a significant driver of partisan judicial selection (Gramlich  2018) and judicial decision-making (Boyd et al. 2010) across the U.S. federal judicial system. However, in Australia, there is no comparable gender divide in partisan judicial selection – both major parties have selected women at similar rates; or in ideology – female High Court Justices do not tend to be more or less liberal than male Justices at the time of appointment; or in decision-making – there is no significant gender difference in the propensity to make liberal decisions in the Australian High Court (Robinson et al.  2022). Second, in contrast to the U.S. Supreme Court, judicial seniority is exceptionally important in the Australian High Court. Unlike the U.S. Supreme Court, the Australian Chief Justice has unusually powerful levers of control over both case dockets and oral arguments, including choosing the size and personnel of the panel that hears the case (Mason 2007). As such, the High Court is more hierarchical, leading to an expectation of deference to the Chief Justice and potentially less disruptive behavior by the puisne (i.e., Associate) Justices. Alongside the institutional similarities, these institutional differences provide the foundation to examine institutional-level drivers of interruptive behavior. 

We analyze all oral arguments in the Australian High Court between 1995 and 2020. We find that institutional design does have an impact on interruptive behavior at the High Court. Specifically, first, in terms of the effect of ideology, Australian interruptive behavior at oral argument looks remarkably like that observed at the U.S. Supreme Court. This is as we as predict, given that the High Court and Supreme Court are institutionally similar in the ideology of judicial appointments and consequent decision-making, but it is contrary to orthodoxy. Second, while seniority is an important predictor of interruptive behavior in the U.S. Supreme Court, again as we hypothesize, the amplified role of the Chief Justice in the Australian High Court leads to significant differences in interruptive behavior vis-à-vis the Chief Justice. Finally, as expected, the relationship between gender and interruptive behavior in the Australian context is present but meaningfully less than in the United States, consistent with the fact that the gender identity of Australian High Court Justices is theoretically less salient than in the U.S. context due to the institutional features of High Court jurisdiction and the related impact on gendered judicial appointments. 

The third result requires further explication. Using standard measurement techniques, as predicted, we find no effect of gender on interruptive behavior in the Australian High Court. Although this result is consistent with our own previous findings (Jacobi et al.  2020), it stands in contrast to studies of interruptive behavior across a range of institutional contexts. To be sure that we are fully and fairly testing whether there is a gender element to interruption behavior, we develop a novel methodological approach to thoroughly investigate the predictors of interruptions. Most studies of interruptive behavior control for an individual’s respective volubility, given that a person can only be interrupted if they are speaking (Johnson et al.  2009; Jacobi and Rozema  2018). But this could permit interruption patterns to be masked by differences in speaking patterns between the genders. For example, a potential interrupter may behave differently depending not only on how many words another person has spoken at oral argument but also how long any individual speech event has been going on, systematically reflecting the varying impatience of interrupters at different stages of the argument. Following this theory, we build in a prediction of the likelihood of an interruption every time any person is speaking. Deploying this approach, we not only confirm the strong impact of the other Justice characteristics we found under the traditional approach of controlling for volubility, but we also find a small but statistically significant gender effect. This result is still meaningfully lower than findings from the United States, as we predicted, but when accounting for the differences between the way men and women speak, there is a small gender effect on interruptions at the Australian High Court. Thus, our third hypothesis is supported, but we find there is more nuance than we, or others before us, anticipated. 

Our findings make three key contributions to the literature on comparative courts generally and interruptive behavior specifically. First, by examining oral argument in an apex court beyond the U.S. Supreme Court, our findings contribute to the growing comparative judicial behavior literature mapping the landscape of comparative judicial institutions. Second, we show that interruptions are predictable based on varying institutional design features. Where institutional design is similar, judicial interruptive behavior is similar; conversely, where institutional design diverges, so too does judicial interruptive behavior. Third, we make a methodological contribution by developing a novel methodological approach to account for volubility and its interaction with interruptive behavior, one that we argue is better suited to studying and identifying drivers of interruptions generally. Conceiving of interruptions as predictable probabilistic parts of speech has significance for studies of interruptions generally and U.S. Supreme Court oral argument specifically. Using the probabilistic method, we show that longer arguments are associated with more interruptions, despite less competition for airtime in Australian arguments. This directly brings into question the theory that interruptions in the U.S. Supreme Court are a product of time constraints and the harried atmosphere at U.S. oral argument. This is not purely a theoretical contribution. In the 2021 term, the U.S. Supreme Court changed its structure of oral argument to include a stage where each Justice is permitted to question the advocate without interruption. This innovation was developed specifically to reduce interruptions (Deese  2021). As such, our findings have significance for both the study of U.S. Supreme Court argument and reforms happening on the ground.

Publishing

Koops,Bert-Jaap. 2022. Goodbye to Publications, or Confessions of a Privacy Law Scholar' by Bert-Jaap Koops in (2022) 20(3) Surveillance & Society 312-316 comments

Privacy and surveillance scholars, myself included, publish too much and read too little. That is basically the abstract for this opinion piece. So, if you’ve got the message, you can stop reading. On second thoughts, if you’ve got the message, maybe you should continue reading. 

My first response to the invitation to contribute to this Dialogue was: “Great idea. There are so many connections between surveillance and privacy scholarship.” Normally, I would think of a topical technological development, something like facial recognition, with, of course, the obligatory reference to artificial intelligence. I would identify two privacy challenges and write something sensible about how surveillance theory could help regulators to address these challenges. A few days’ work, and yet another item to add to my bulky publication list (thank you, Bryce and Scott!). 

My second response was: “Wait. Hasn’t Julie Cohen already written on this, something reasonably definitive?” [Yes, she has (Cohen 2015), even if that was on law generally, not privacy law specifically.] And don’t the two communities of surveillance studies and privacy law already know sufficiently of each other’s existence? Privacy scholars know the basics of surveillance theory (or they shouldn’t call themselves privacy scholars), just as surveillance scholars know basic privacy theory and some privacy law (or at least know their Warren and Brandeis and Westin). And why surveillance studies and privacy law, specifically? Each discipline is surrounded by ten neighboring disciplines that inform it, so the same exercise could be done for, say, surveillance studies and media studies, or privacy law and social psychology. 

As the section editors suggested in their invitation, the potential synergies of the two related disciplines seem underutilized, and it is useful for both fields to discuss how their discipline’s scholarship might benefit from additional cross-pollination. True enough. The editors particularly invited reflections on how these fields’ disciplinary orientations constrain inquiry. But that, I think, is not the real issue. The mainissue is that there is so much knowledge out there already in both fields and, with a little effort, scholars could easily find it if they wanted to, but they don’t. Want to, I mean. Or perhaps they would want to if this were an ideal world, but alas, it isn’t. Scholars simply don’t have time to read each other’s work, because they have to write. 

My third response, therefore, was: “Thanks, but no, thanks.” I shouldn’t be contributing to our collective drowning in the publication deluge. Except, perhaps, to make explicit what I assume many often think but dare not say aloud: shouldn’t we stop running on this publication treadmill to churn out the so-manieth paper on the normative implications of phenomenon X from the perspective of Y, and do some serious reading instead? 

Hence my fourth response: “The only meaningful thing I can think of is a meta-ish opinion piece reflecting about the lack of real discussion in the literature and its potential causes and consequences.” Which resulted in the piece you are now reading, or rather, skimming through because you don’t really have time to read. Hence the seemingly flippant style, which you will realize is a rhetorical device to entice you to keep on reading. I mean, skimming.

Lobbying

'Mapping the Lobbying Footprint of Harmful Industries: 23 Years of Data From OpenSecrets' by Holly Chung, Katherine Cullerton and Jennifer Lacy-Nichols in (2024) The Milbank Quarterly comments 

 Our research reveals the similarities and differences among the lobbying activities of tobacco, alcohol, gambling, and ultraprocessed food industries, which are often a barrier to the implementation of public health policies. Over 23 years, we found that just six organizations dominated lobbying expenses in the tobacco and alcohol sectors, whereas the gambling sector outsourced most of their lobbying to professional firms. Databases like OpenSecrets are a useful resource to monitor the commercial determinants of health. Commercial lobbying is often a barrier to the development and implementation of public health policies. Yet, little is known about the similarities and differences in the lobbying practices of different industry sectors or types of commercial actors. This study compares the lobbying practices of four industry sectors that have been the focus of much public health research and advocacy: tobacco, alcohol, gambling, and ultraprocessed foods. Data on lobbying expenditures and lobbyist backgrounds were sourced from the OpenSecrets database, which monitors lobbying in the United States. Lobbying expenditure data were analyzed for the 1998–2020 period. We classified commercial actors as companies or trade associations. We used Power BI software to link, analyze, and visualize data sets. We found that the ultraprocessed food industry spent the most on lobbying ($1.15 billion), followed by gambling ($817 million), tobacco ($755 million), and alcohol ($541 million). Overall, companies were more active than trade associations, with associations being least active in the tobacco industry. Spending was often highly concentrated, with two organizations accounting for almost 60% of tobacco spending and four organizations accounting for more than half of alcohol spending. Lobbyists that had formerly worked in government were mainly employed by third-party lobby firms. Our study shows how comparing the lobbying practices of different industry sectors offers a deeper appreciation of the diversity and similarities of commercial actors. Understanding these patterns can help public health actors to develop effective counterstrategies. 

The definition of commercial determinants of health (CDoHs) set out in The Lancet 2023 series recognizes that commercial actors are diverse and have different impacts on health. Yet too often, public health advocates fail to make these distinctions, referring to “the industry” or “corporations” as a proxy for harmful commercial actors. This lack of nuance stymies efforts to develop a science of commercial determinants. One way to start thinking through the differences among commercial actors is to compare the practices and attributes of different types of actors. In this study, we contrast the lobbying activities of four industry sectors that severely impact health and have been the focus of much public health research and advocacy: tobacco, alcohol, gambling, and ultraprocessed food (UPF) companies. In addition to comparing commercial actors based on their portfolio, we also differentiate between individual companies and industry trade associations, a distinction that is often missing in empirical studies of political activity. Beyond this paper's conceptual focus on commercial actor diversity, it also seeks to investigate which characteristics of commercial lobbying are feasible to capture at scale. In so doing, it supports efforts to systematically monitor the CDoHs. Attention to CDoHs has grown in recent years, with the World Health Organization (WHO)’s launch of a new program of work in 2021 and the launch of The Lancet series on CDoHs offering two prominent illustrations. Within this emerging discipline, there are many streams of work analyzing different aspects of CDoHs, including system dynamics such as neoliberalism and capitalism, the diversity of commercial actors, commercial practices influencing science, marketing, and politics; and the myriad of case studies concerning harmful industry sectors such as alcohol, gambling, tobacco, UPFs, guns, and fossil fuels.

The authors state 

This study focuses on one commercial activity: lobbying. Lobbying is one of several political strategies that commercial actors use to influence policymaking. Evidence demonstrates that countries with a greater degree of corporate permeation are less likely to implement evidence-based health policies endorsed by the WHO, and more recently, lobbying practices by companies and trade associations have been linked to efforts to influence US participation in and funding of WHO. Although the tobacco industry has a long history of lobbying to deliberately stall, weaken, and block public health regulations of its industry, there is growing evidence that the same political practices are used by gambling, alcohol, and UPF industries to oppose policies that threaten their business interests. We note that much of this research relies on documentary analysis, as empirical data sets of lobbying are rare. Analyzing and monitoring political practices like lobbying is challenging, as information about commercial lobbying and political donations is often poorly disclosed, delayed, or lacking relevant information. In this study, we aimed to explore the utility of one notable non-governmental organization (NGO) database (OpenSecrets) to monitor corporate lobbying. This study is part of our broader program to explore approaches to monitor CDoHs. Lobbying is defined in different ways, with an Organisation for Economic Co-operation and Development survey noting that no country used the same definition. In 2022, a number of NGOs developed the International Standards for Lobbying Regulation, which defined lobbying as “any direct or indirect communication with a public official that is made, managed, or directed with the purpose of influencing public decision making.” Many different activities have been conceptualized as a form of lobbying, including meeting with public servants, coordinating public campaigns to influence voters, funding astroturf organizations (designed to appear as genuine grassroots advocacy), or submissions to policy processes. In some cases, companies have staff employed in-house to specifically focus on lobbying (e.g., government relations units). In other cases, companies hire third-party (external) lobby firms to lobby on their behalf. Although concerns have been raised about the undue influence of some businesses and industry sectors in politics, it is important to note that lobbying itself is a legitimate practice in democratic governments and can support representative policymaking. 

Lobbying can be a resource intensive activity, with an estimated US $4.1 billion spent on lobbying in the United State in 2022. This makes it easier for well-resourced organizations (like many businesses and trade associations) to engage in lobbying and other political activities. Lobbying resources can go beyond the money spent hiring lobby firms (or employing lobbyists directly). One longer-term strategy that can increase the effectiveness of lobbying is the revolving door, which is the movement of individuals from employment in government in political or administrative roles (e.g., elected officials or civil servants) to private industry, and vice versa. Revolving-door practices are particularly common for third-party lobbyists and are understood to confer three main categories of benefits to the lobbyist and their clients: they can leverage professional networks to achieve their clients’ goals; they have intimate knowledge of governmental processes, which can inform strategies; and they may also have insider knowledge regarding government preferences concerning specific policy matters. In the absence of enforced cooling-off periods after exiting public office, the revolving door can also present risks for conflicts of interest to arise, especially if the former government employee moves into a lobbying role that focuses on their former portfolio. 

Efforts to systematically monitor lobbying face several challenges. No single measure of lobbying is consistently available internationally, presenting challenges for efforts to develop global indices of corporate political activity or CDoHs. Of the three monitoring frameworks proposed to measure the influence of commercial actors, lobbying only appears as an indicator in one: the CDoHs index. Authors of the Corporate Permeation Index and Corporate Financial Influence Index excluded lobbying indicators, as there were insufficient comparable data on this metric across countries, though the authors acknowledged lobbying as an important mechanism of CDoH influence on policymaking. Alongside academic efforts to monitor lobbying and corporate political activity are the civil society groups and NGOs who play an active role in monitoring commercial practices, drawing public and policymaker attention to commercial harms and advocating for transformative changes so that people are prioritized over profits. 

Some NGOs have developed databases for monitoring and sharing information about commercial lobbying. OpenSecrets is a nonprofit organization that maintains one of the most extensive databases on political donations, lobbying expenditure, and revolving-door practices in the United States. This database presents an opportunity to monitor corporate lobbying over time and to compare the practices of different industry sectors. This study seeks to expand our understanding of the corporate political activities of four industries that profoundly affect health (tobacco, alcohol, gambling, and UPFs). By exploring one of the more complete data sets concerning corporate lobbying, we aim to answer two questions. First, which patterns could be identified about how different commercial actors engage in lobbying over time? Second, what are the opportunities and limitations afforded by the OpenSecrets database? In the discussion, we reflect on our learnings as well as some of the challenges we faced. We conclude by proposing ways that this database could be adapted and modified so that other jurisdictions can more easily monitor corporate political activity.

Traditional Knowledge

'Traditional Knowledge as Intellectual Property Subject Matter: Perspectives from History, Anthropology, and Diverse Economies' (Queen Mary Law Research Paper No. 418/2024) by Graham Dutfield and Uma Suthersanen comments 

In May 2024, the World Intellectual Property Organization (WIPO), the UN specialised agency for intellectual property, will hold a diplomatic conference with a view to forging a new legal instrument to prevent patents from misappropriating traditional knowledge and associated genetic resources. Thus, after more than 20 years of discussion at WIPO, there is a genuine possibility of a binding legal instrument providing substantive protection of traditional knowledge. Whatever actually transpires, that in itself is a matter of socio-legal and historical importance. Our aim is two fold. First, we enquire whether treating traditional knowledge (TK) as an intellectual property (IP) problem lending itself to an IP-related solution can actually work. In this context, we take account of the likelihood of any adopted international instrument taking the form of a one-size-fits-all text providing legal protection for knowledge deemed “traditional” on the basis of its originating from autochthonous or other groups sharing similar circumstances and related, albeit far from identical, legal and economic interests. By autochthonous, we refer to peoples so rooted psychologically, spiritually and materially to their homeland that it is if they were sprung from the land; their land. Second, we consider whether alternative framings of “the TK problem” in more pluralistic and culturally informed and culturally sensitive forms within or outside IP law may be more promising. IP law of course arises from a myriad of rationales situated within different timelines but embedded within a largely Eurocentric or American discourse and worldview that may be an ill fit for autochthonous and other groups who one presumably are to be the beneficiaries of the kinds of instrument under negotiation. 

The perspective we adopt invites a more intercultural and better informed discourse within law itself, which we feel is absolutely necessary. This perspective is then juxtaposed on the diverse economies approach which seeks to harness different practices in order to break down our dominant view of the world as being predominantly capitalist, at least in the sense of being based on waged labour, and production of commodities for exchange in markets run by capitalist businesses.By employing a multidisciplinary and pluralistic approach, we can better address the challenges facing Indigenous people and governments in the context of current and forthcoming international rules on the governance of TK.