Judicial Archives

'Judges and Their Papers' by Kathryn A. Watts in (2013) New York University Law Review comments

Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.

This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the 35th anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather, the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, this Article — giving renewed attention to a long forgotten 1977 governmental study commissioned by Congress — argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality and confidentiality.  

Patents

'A Rational System of Design Patent Remedies' by Mark A. Lemley at Stanford Law School argues that

A design patent owner who wins her suit is entitled to the defendant's entire profit from the sale of the product, whether or not the design was the basis for buying the product. No other IP regime has this rule, and it makes no sense in the modern world, where a design may cover only a small component of a valuable product. The culprit is section 289 of the Patent Act, a provision added in the nineteenth century, when design patents were very different than they are today. We should abolish section 289 and bring rationality to design patent remedies.

Lemley comments that

In the summer of 2012, a jury in San Jose, California awarded Apple the largest extant patent damages verdict in history, over $1 billion, in its case against Samsung The case attracted enormous press attention. The verdict was rightly portrayed as a big win for Apple, but also generally understood to be just one small piece in a much larger smartphone patent fight that has entangled all the companies and led to more than fifty lawsuits. While everyone agrees $1.05 billion is a lot of money, it also seems to be just a cost of doing business for Samsung, one of many costs in a global fight that has cost nearly $20 billion so far and shows no signs of abating. In one important respect, however, $1.05 billion is not simply a cost of doing business. For the phones at issue in the case, it was the entirety of the business. $1.05 billion wasn’t a reasonable royalty on the sale of technology covered by a patent; it represented Samsung’s entire profit from the products at issue in the case. Never mind Samsung’s own patents, its engineering and design work, or the technologies of Google and countless other inventors incorporated in the Samsung phones. The jury awarded all the profit from the sale of those phones, regardless of source, to Apple as damages. And curiously, it was parts of Apple’s product design, not any technical features, that was responsible for the overwhelming majority of the damages award.

The jury did this because current law required it to. Unlike patents on technical inventions, or for that matter copyrights or trademarks, design patent law requires that infringers – even innocent infringers – pay the plaintiff their entire profit from the sale of the infringing product, even if the design was only a small feature of that product.

That rule, developed more than a century ago, makes no sense. As applied to a modern, multi-component product it drastically overcompensates the owners of design patents, and correspondingly undervalues technical innovation and manufacturing know-how. It punishes even innocent infringers, particularly now that one can infringe a design patent merely on a finding that two independently developed designs are too similar to the ordinary observer. And it leaves troubling questions about what to do with all the other claimants to a share of the defendant’s profits. There can be no question that the entire profits rule has to go; the only question is how to get rid of it. I begin in Part I by discussing how we got to this unfortunate pass. In Part II, I describe the problems the entire profits rule creates for innovation and competition. I conclude in Part III by offering some suggestions for what to do about the rule.

DRM

'A Political History of DRM and Related Copyright Debates, 1987-2012' by Bill D. Herman in (2012) 14 Yale Journal of Law & Technology 162-225 comments that

 Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While those facts are historically true, since the turn of the century, the politics around the issue have shifted substantially and become much messier and less predictable. This study illustrates this changing policy dynamic via a detailed political and legislative history of the major proposals regarding digital rights management and related areas of copyright, from 1987 to the present day.

In 1987, there was no organized opposition to copyright’s expansion. Within fifteen years, however, there was a substantial coalition of opposition, including public intellectuals, allied journalists, and newly-founded nonprofits. By the mid- 2000s, this coalition had substantially slowed the expansion of copyright and even won substantial legislative support for proposals to limit copyright’s reach. Despite being badly outspent and having far fewer allies in Congress, the “strong fair use” coalition had fought the “strong copyright” coalition to a draw in two key debates in the mid-2000s. In early 2012, the strong copyright coalition tried to push through a pair of bills with far- reaching implications for the Internet ecosystem — and it looked like they would ultimately prevail, until Internet activism led millions of voters to contact Congress in opposition. By looking at the political histories of all of these proposals in one place, this article shows an unmistakable trajectory in the politics of copyright, from an era of relatively easy inter-industry negotiation toward an era in which copyright industries face a permanent, principled opposition, emboldened by having executed the largest online protest in history.

ACPA v UDRP

'What is in a Name?' A Comparative Look at the ICANN Uniform Domain Name Dispute Resolution Policy and the United States Anti-Cybersquatting Consumer Protection Act' by Terrence Fernbach is a 54 page Munich Intellectual Property Law Center (MIPLC) Master's Thesis.

Fernbach argues that

Since the establishment and rise of the Internet, there have been situations where others have tried to capitalize on the unique nature of domain names by registering domain names of popular trademarks and/or individuals’ names, and then turning around and selling these domain names to the owners of the trademark or to the individual. This action, known as “cybersquatting”, has been the reason for the enactment of multiple dispute resolution systems by both governments and private institutions. Further, the amount of cybersquatting cases has increased over the years, with the World Intellectual Property Organization reporting increases in cybersquatting cases over the past few years.

This thesis is designed to be more of a practical guide for an American attorney who is faced with domain name dispute case. As a result, this thesis will focus on the International Corporation for Assigned Names and Numbers’ (ICANN) Dispute Resolution Policy, and the Anti-Cybersquatting Consumer Protection Act (ACPA). This thesis will provide three different hypothetical scenarios that may arise in domain name disputes: where two parties have the same name, or where an individual in engaging in a form of cybersquatting, or where a group has created a website for the purposes of criticizing a corporation. This thesis will also highlight the advantages and disadvantages of the ICANN procedures as laid out in the Uniform Domain Name Dispute Resolution Policy (UDRP) and the procedures available under United States federal law as laid out in the ACPA, and discuss legal strategies and probable outcomes for the three different hypothetical scenarios. Finally, this thesis will conclude that while ICANN’s Dispute Resolution Policy has some disadvantages when compared to the ACPA, it is the better dispute resolution option to use for most cybersquatting activities due to its relative speed, efficiency and lower cost, but the Lanham Act provisions as outlined by the ACPA are better suited for those cases where the client wishes for more remedies than just the transfer or the cancellation of the disputed domain name.

 In discussing ACPA he comments that

There are a few advantages in using the ACPA. First, the ACPA is a good method to use in trying to acquire an infringing domain name from a foreign cybersquatter. This is because of the ACPA’s in rem provisions, and the ACPA does not have the same burdens of proof that are found in the UDRP. However, it is important to note that the in rem provisions only apply if the disputed domain name was registered with a registrar or other domain name authority that is located within the United States.

Second, the ACPA also allows for monetary damages, statutory damages and injunctive relief, in addition to the same remedies available under the UDRP. This gives a wide array of remedies available to a plaintiff, most of which are unavailable by the UDRP. Also, the ACPA has the same remedies at its disposal as the UDRP, so the plaintiff can still seek the same relief that would be afforded by the UDRP while also seeking other remedies.

Third, unlike the UDRP, the parties can freely engage in discovery. This allows the plaintiff to access information regarding prior registrations done by the defendant, if any, and to access other information that could help establish the bad faith aspects of the plaintiff’s claim. Also, since this is a federal court action and not an arbitration panel, the parties can attack the credibility of each other’s testimony. This can not happen in the UDRP proceedings, which has the potential of becoming a sort of “I said – he said” situation, with both parties stating their respective submissions are accurate to the best of their knowledge.

Fourth, under the ACPA, the plaintiff can also seek damages from the domain name registrar, provided the plaintiff can prove the registrar acted with bad faith to profit from the registration and maintenance of the infringing domain name. While the UDRP does not have any liability provisions for domain name registrars, the ACPA, through its safe harbor provisions, only waives a registrar’s liability if they act in due diligence and in good faith. This provision allows a plaintiff a cause of action against domain name registrars who basically aid in cybersquatting. Combined with the in rem provisions of the ACPA, the plaintiff can get a cause of action against the domain name itself and, if applicable, get monetary damages from the domain name registrar.

Finally, unlike the ICANN arbitration panels, the federal courts are better suited to handle more complex litigation issues, such as affirmative defenses of acquiescence and fair use. Also, false advertising and unfair competition claims are outside the realm of the UDRP arbitrators. Meanwhile, these issues can be dealt with fairly in the federal courts. As a result, if a plaintiff would have a more complex domain name dispute issue, they would probably be better off using the ACPA instead of the UDRP.

Disadvantages of the ACPA

While there are benefits in using the ACPA for a domain name dispute, there are some disadvantages as well. First, federal litigation is not very fast. In fact, it may take months or even years to finally get a case resolved in federal court. This is not a great option for the plaintiff who wants to quickly get a domain name from the registrant/defendant.

Second, federal litigation is expensive. While arbitration under the UDRP may cost around the mid four-figure range, including agency and arbitration panel fees and attorney’s fees, federal litigation will cost a lot more, and could range in the tens of thousands of dollars at least. Considering the usual remedies involved in a domain name dispute, the plaintiff in an ACPA action might end up winning a Pyrrhic victory, spending a huge sum of money for what could have been achieved, at a much lower cost, using an arbitration proceeding under the UDRP.

Third, while the in rem provisions seem like an advantage, it may not prove to be much of an advantage when compared to the UDRP. In the ACPA, the plaintiff can get in rem jurisdiction only if the applicable domain name registrar is within a federal judicial district. On the other hand, the UDRP Policy applies to any domain name registrar that has agreed to be bound by the UDRP Policy. This gives the complainant an opportunity to get relief under the UDRP with a foreign domain name registrant as opposed to the in rem provisions of the ACPA, since the UDRP Policy can apply to domain name registries and registrars outside of the United States, which the ACPA only applies to American registries and registrars. Considering the remedies are the same for these two different provisions, it might be a better option for a plaintiff to use the UDRP Policy instead of the ACPA. Fourth, as eluded to earlier, federal judges may not necessarily be experts in trademark law. It is quite possible that a federal litigation using the ACPA may be presided over by a judge with no real experience in trademark law or with domain name issues. While having a case presided over by a judge who is unfamiliar with the nuances of the legal issues behind the case is a potential problem with any federal litigation, it could be a problem in a domain name dispute case, especially when dealing with concepts such as parody and fair use.

Just like the UDRP, the ACPA has a series of advantages and disadvantages that will require the plaintiff to consider whether they want to use the ACPA or use the cheaper and faster UDRP arbitration proceedings.

1st Amendment

Jack M. Balkin (Yale University - Law School) has posted 'The First Amendment is an Information Policy' by Jack Balkin in (2013) 41 Hofstra Law Review, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that

we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.

Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.

Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.

Balkin comments that

It is not an exaggeration to say that modern states are informational states: states that recognize and solve problems of governance by collecting, analyzing, and distributing information. Knowledge and information policy is at the heart of government today.

Knowledge and information policy is about far more than the protection of free expression. Modern governments provide social services and benefits to their citizens, like social security, Medicare, and veterans’ pensions. This requires vast data processing systems to compile statistics and distribute benefits. Modern citizenship requires data processing in order to distribute the benefits of citizenship, and this leads to the creation of vast government databases, which, in turn, creates the need for privacy regulation, another important information policy. Governments also invest heavily in public education because it is crucial to democratic citizenship. Governments subsidize the production of information, like agricultural and weather information, as well as geographical data. And, especially in the United States, governments subsidize most basic scientific research.

You might think that information states must tend toward democracy. But it is not so. East Germany had an enormous information collection apparatus—the Stasi—but it certainly was not democratic. Today, China’s knowledge and information policies are designed to keep the Chinese Communist Party in power while growing China’s economy.

The big choice we face today is between democratic information states and authoritarian information states. Different countries lie on a spectrum between these two ideal types.

Authoritarian information states are information gluttons, information misers, and information monopolists. They try to collect as much information as they can, but they do not share it with their people. They try to monopolize control over information in order to serve the interests of those in power.

Democratic information states, by contrast, are information gourmets, information philanthropists, and information decentralizers. They collect only the information they need for governance, and they do not keep information secret any longer than necessary. They not only willingly share information with their citizens, they also create information and knowledge for their citizens to use and enjoy. Democratic information states try to ensure that their citizens have ample opportunities for education; they promote access to knowledge and information in order to form public opinion and to keep government officials in check. Democratic information states also decentralize the production of knowledge and information because this promotes democratic self-government.

Many people are optimistic that the Internet and the digital age will make authoritarian government increasingly difficult if not impossible. I am not so sure. In fact, as I will describe shortly, it is possible for authoritarian states to use the Internet and digital technologies to create digital versions of authoritarian information states. More troublingly, it is also possible that the Internet will tempt democracies like the United States to adopt increasingly authoritarian knowledge and information policies out of fear of terrorism and in order to protect interests in intellectual property.

Justice Hugo Black gave a pretty good account of a knowledge and information policy for a democracy. In a 1945 case called Associated Press v. United States, he argued that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, [and] that a free press is a condition of a free society.” “Diverse” means that we should decentralize information production and information distribution. No one entity should control knowledge production, many people must participate in creating information, and it should be widely distributed. “Antagonistic” means that knowledge production should be structured to allow the clash of different viewpoints, and to encourage dissent and innovation. Therefore, governments should protect and foster institutions, like the press, universities, and scientific research, that can check facts, produce new forms of knowledge, and help guarantee the quality and salience of information. Associated Press involved an agreement by newspapers to limit access to information to their members and create barriers to entry by other news organizations. The members of the Associated Press argued that as members of the media, they had a First Amendment right to do so.

Justice Black disagreed. The Associated Press was using its monopoly power to stifle competition in the gathering and dissemination of news. Justice Black argued that the same values that prevented the government from restricting the flow of information also gave it the right to regulate powerful private interests when they interfered with “the widest possible dissemination of information from diverse and antagonistic sources.” As Justice Black put it, “[i]t would be strange indeed . . . if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.” Justice Black explained:

Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.

Today we live in a world of large and powerful corporations that shape and control the production and flow of knowledge. Many of these players now use the First Amendment to challenge regulation of their business models and to limit competition in the marketplace of ideas. Justice Black’s opinion in Associated Press reminds us that the First Amendment protects speech, not incumbent business models.

Government regulation that decentralizes control over innovation and knowledge production does not necessarily violate the First Amendment and may even be required to promote its central values. As Justice Black put it, “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”

There are two big ideas that I want you to take away from this Essay. The first is that it is important to think in terms of knowledge and information policy. Think about our valued individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

We usually talk about the First Amendment not as a policy but as an individual right. But I also want you to see it as an integral part of knowledge and information policy. Why? Because many parts of information policy cannot easily be cashed out in terms of individual rights. You do not have an individual right to have the government create public libraries. The Constitution did not require the early Congress to subsidize newspaper delivery. You do not have an individual right to government decisions about how much to invest in science in fiscal year 2011. You do not have an individual right to have fiber optic cable brought to your neighborhood, or to have particular frequencies of the electromagnetic spectrum sold at auction, handed out in the form of licenses, or made into a commons for spread-spectrum technologies. These are policy choices. They are decisions about institutions and technological design. And they are crucial to your practical ability to speak in a digital world.

The second big idea is that individual freedoms of speech, press, and assembly require an infrastructure of free expression. That infrastructure includes technologies of communication, policies that promote innovation and diffusion of knowledge, the institutions of civil society that create knowledge and help ensure its quality, and government and private investments in science, education, and communications technology.

WEF Privacy Waffle

The World Economic Forum, which you'll be reassured is "committed to improving the state of the world", has released a document - produced by the cheerleaders at Boston Consulting - titled 'Unlocking the Value of Personal Data: From Collection to Usage' [PDF] regarding "an ongoing multistakeholder dialogue on personal data".

"Key messages" from that dialogue, which emphasise privacy as a commodity rather than human right (and broadly reflect the unwillingness of stakeholders such as Microsoft to move to global best practice) are

• The world has changed, which creates new opportunities but also risks [no surprises there, albeit the Bostons are relying on buzzwords such as "hyperconnected" rather than dead pronouncements that the "world is flat"]

• A new approach to personal data is needed that is flexible and adaptive to encourage innovation, but also protects the rights of individuals. Notice and consent need to be reconsidered to be equipped for this changing world.

• Key aspects of this new approach include:

– Shifting from governing the usage of data rather than the data itself

– Context is key in a world of increasing shades of grey. Black and white solutions won’t work

– New ways to engage the individual, help them understand and provide them the tools to make real choices based on clear value exchange

• A number of potential ways forward emerged from the dialogue:

– The importance of establishing an updated set of principles and the means to uphold them in a hyperconnected world

– Technology can be part of the solution

– allowing permissions to flow with the data and ensuring accountability at scale

– Need to demonstrate how a usage, contextual model can work in specific real world application

The WEF indicates that

Our world is changing. It is complex, hyperconnected, and increasingly driven by insights derived from big data. And the rate of change shows no sign of slowing. Nor does the volume of data show any sign of shrinking. But, the economic and social value of big data does not come just from its quantity. It also comes from its quality – the ways in which individual bits of data can be interconnected to reveal new insights with the potential to transform business and society. Fully tapping that potential holds much promise, and much risk. By themselves, technology and data are neutral. It is their use that can both generate great value and create significant harm, sometimes simultaneously. This requires a rethink of traditional approaches to data governance, particularly a shift from focusing away from trying to control the data itself to focusing on the uses of data. It is up to the individuals and institutions of various societies to govern and decide how to unlock the value – both economic and social – and ensure suitable protections.

As part of the multiyear initiative Rethinking Personal Data, the World Economic Forum hosted an ongoing multistakeholder dialogue on personal data throughout 2012. This dialogue invited perspectives from the US, Europe, Asia, and the Middle East and involved representatives of various social, commercial, governmental and technical sectors, who shared their views on the changes occurring within the personal data ecosystem and how these changes affect the collective ability to uphold core principles. The dialogue also addressed key regional legislative and policy approaches, particularly the proposed European Commission Data Protection Regulation and the US Consumer Privacy Bill of Rights. The global dialogue centred on a set of foundational principles that are familiar across a broad range of cultures and jurisdictions.

The dialogue was based primarily on three clusters building on the 1980 Organisation for Economic Co-operation and Development (OECD) Privacy Principles:

• Protection and security

• Accountability 

• Rights and responsibilities for using personal data 

This document captures some of the key outcomes of the dialogue. It highlights areas that need to be resolved in order to achieve a sustainable balance of growth and protection in the use of personal data.

Protection and Security

Issues of protection, security and the overall stewardship of personal data remain central to the ecosystem. While the complexity of operating in a decentralized and distributed networked environment poses new challenges, ensuring data security remains crucial.

Accountability

Ensuring stakeholder accountability is a task that is increasingly challenging. Unlike the case 30 years ago, when the OECD principles were established, the questions of “Who has data about you?” and “Where is the data about you located?” are impossible to answer today. The challenge surrounding accountability focuses both on which principles to support as well as how to effectively uphold and enforce them, particularly given the lack of resolution on means of accountability. This contributes to a lack of trust throughout the ecosystem. However, technology itself has the potential to be part of the solution in ensuring accountability at scale through appropriate controls and auditing functionality. Privacy by Design which has been widely adopted around the world is key to ensuring privacy is proactively embedded into the technology itself.

Principles can serve as a global foundation for creating an interoperable, flexible and accountable framework for coordinated multistakeholder action. Codes of conduct, technological solutions and contract law can all help translate principles into trustworthy practices that enable sustainable economic growth.

Rights and Responsibilities for Using Personal Data

Participants from the public and private sectors shared a variety of perspectives on how the rights and responsibilities for using personal data might evolve. One common concern was that policy frameworks that constrain how data can be linked, shared and used (such as collection limitations, purpose specifications, and use limitations) are increasingly less effective and anachronistic in today’s hyperconnected world.

It was also pointed out that as data moves through different phases from collection, to usage and disposal, the weighting of the different principles may need to change. This approach is similar to how incremental advancements in the study of the human genome are being accomplished. Scientists explore and discover the human genome under one set of guidelines; a different set applies when those insights are put into action. The dialogue also addressed the changing role of the individual. Three subthemes emerged:

From transparency to understanding: There is a need for new approaches that help individuals understand how and when data is being collected, how the data is being used and the implications of those actions. Simplicity, efficient design and usability must lie at the heart of the relationship between individuals and the data generated by and about them.

From passive consent to engaged individuals: Organizations need to engage and empower individuals more effectively and efficiently. Rather than merely providing a binary yes-or-no consent at the initial point of collection, individuals need new ways to exercise choice and control, especially where data uses most affect them. They need a better understanding of the overall value exchange so that they can make truly informed choices.

From black and white to shades of gray: Context matters. Given the complexity of applications, the idiosyncrasy of individual behaviours and the speed of change, there is a need for flexibility to allow different approaches to using data in different situations.

To keep pace with the velocity of change, stakeholders need to more effectively understand the dynamics of how the personal data ecosystem operates. A better coordinated way to share learning, shorten feedback loops and improve evidence-based policy-making must be established.

The document is decorated with the inevitable examples of enthusiasm about e-health. All will be well, it seems, if we heed the advice from a handful of very large (and mainly US-based) corporations.

Harris on the Constitution

After the Corneloups and the Sheik it's delightful to see Freedom, Democracy and Accountability: A Vision for a New Australian Constitution by the superb Bede Harris, a scholar whose courtesy, integrity and insights has had a profound impact on my cohort.

The book comes with a Foreword by the Hon. Michael Kirby AC CMG.

The contents of the federal Constitution are a mystery to most people, yet it is in the Constitution that are found the rules of how our institutions function, and what powers they may exercise over us. In a time of increasing voter dissatisfaction with how government is conducted in Australia, this book explains how our Constitution works, and why it is in need of reform, covering issues such as how our electoral system can be made fairer, why the innate dignity of the person requires that fundamental freedoms be protected by a Bill of Rights, and how politicians can be made more accountable to Parliament. The book also examines issues such as federalism and an Australian republic, before discussing how civics education could be improved so as to produce citizens who are knowledgeable about their Constitution. The book ends with the full text of a proposed new Australian Constitution.

Harris' work includes 'A critique of the CCAAC Report of 2009 and the statutory guarantee of acceptable quality in the Competition and Consumer Act 2010 (Cth)' (2011) 19 Competition and Consumer Law Journal 152; 'A Model Australian Code Relating to Defective Goods' (2010) 3 Journal of Politics & Law 1; 'The Place of Indigenous Rights in the Bill of Rights Debate - A Rawlsian Justification' (2009) 13 Australian Indigenous Law Reporter 70; and 'The Bill of Rights Debate in Australia - A Study in Constitutional Disengagement' (2009) 3 Journal of Politics & Law 2.

One reason for a Bill  of Rights is to minimise abuses. A perspective is provided by Samuel  Gross in 'How Many False Convictions are There? How Many Exonerations are There?' in Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems (Routledge, 2013) edited by Huff & Killias.

Gross comments that

The most common question about false convictions is also the simplest: How many are there? The answer, unfortunately, is almost always the same and always disappointing: We don’t know. Recently, however, we have learned enough to be able to qualify our ignorance in two important respects. We can put a lower bound on the frequency of false convictions among death sentences in the United States since 1973, and we have some early indications of the rate of false convictions for rape in Virginia in the 1970s and early 1980s. These new sources of information suggest – tentatively – that the rate of false convictions for serious violent felonies in the United States may be somewhere in the range from 1% to 5%. Beyond that – for less serious crimes and for other countries – our ignorance is untouched. ... The very occurrence of false convictions is a reflection of our ignorance. If we know that a defendant is innocent, he is not convicted in the first place, and we are not likely to do better later on. The essence of the problem is that we are trying to count events we can’t observe. There are other unknown quantities in criminal justice: for example, the number of crimes that are not reported to the police. That one, however, can be estimated by a comparatively straightforward method, the victimization survey: a representative sample of the general population is contacted and asked how often members of their households were victimized in the past year, and in what manner (e.g., Rand and Catalano, 2007). This is an imperfect but serviceable tool. We don’t know the exact number of unreported robberies, rapes and assaults, but we can estimate approximately how many occur, and where, and who the victims are. We have no comparable estimates for false convictions.

False convictions are not merely unobserved – like unreported crimes – but in most cases they are unobservable. The problem is not simply that we don’t know whether a particular prisoner is innocent. We also may not know whether he is HIV positive, but we can test him for that condition, or the prison population as a whole, or a random sample. We can’t do anything like that for false convictions, so we’re left with two strategies: (1) We can attempt to infer the frequency of false convictions without direct information, or (2) we can try to use the false convictions we do know about – exonerations – as a basis for estimates about the entire category.

He goes on to conclude -

So where does that leave us? I’ll summarize briefly:

• We know of at least 2000 exonerations in the United States since the beginning of 1989, and there have been many others that are not known to researchers – very likely more than those that are known. 

• These exonerations cannot be used to directly estimate the rate of false conviction because the great majority of erroneous convictions are never detected. 

• We do know, however, that 2.3% to 3.3% of death sentences in the United States since 1973 have ended in exoneration. This is not a complete count. Some innocent defendants who were sentenced to death have not been exonerated – mostly, I expect, defendants who have been removed from death row but remain in prison. 

• We also know that among convicted defendants in rape (and a few homicide) cases for which physical evidence was sent to the Virginia Department of Forensic Science from 1973 through 1987, at least 3.2% to 5% were innocent, and almost certainly quite a few more.

The information at hand is still very limited, and generalizations are difficult. There are strong theoretical reasons to believe that the rate of false convictions may be higher for murders in general, and for capital murders in particular, than for other felony convictions (Gross, 1998). The rape cases for which biological evidence was submitted to the Virginia Department of Forensic Science in the 1970s and 1980s may not be representative of rape cases in the United States generally, let alone other felony cases. We don’t know. 

Still, this is a start – considerably better than total ignorance. It’s enough to make some initial and tentative estimates. Marvin Zalman (2012) makes what he calls a very general “intelligence estimate” of the rate of false convictions in the United States, from 0.5%- 1.0% at the low end to 2% to 3% at the high end. In light of the new information from Virginia, my own tentative estimate would be a similar but somewhat higher range: 1% to 5% of convictions for serious felonies in the United States are erroneous. 

Is that a lot or a little? That depends on your point of view. If as few as 1% of serious felony convictions are erroneous, that means that perhaps ten- to twenty-thousand or more of the nearly 2.3 million inmates in American prisons and jails (Glaze, 2011) are innocent, and thousands of new innocent defendants are locked up each year. If the rate is higher, these numbers will go up. 

If as few as 1/10 of 1% of jetliners crashed on takeoff, we would shut down every airline in the country. That is not a risk we are prepared to take – and we believe we know how to address that sort of problem. Are 10,000 to perhaps 50,000 wrongfully imprisoned citizens too many? Can we do better? How? There are no obvious answers. The good news is that the great majority of convicted criminal defendants in America are guilty. The bad news is that a substantial number are not.