Elections

The Australian Parliament's Joint Standing Committee on Electoral Matters has released The 2013 Federal Election: Report on the conduct of the 2013 election and matters related thereto [PDF].

The Committee's recommendations are

Management of ballot papers

R1 (paragraph 2.95) The Committee recommends that for future elections, the Australian Electoral Commission publish information on its website about ballot paper counting and handling issues on a regular and transparent basis during the count process.

R2 (paragraph 2.118) The Committee recommends that the Australian Electoral Commission report to the Joint Standing Committee on Electoral Matters every six months on the implementation of recommendations made by the Keelty Report and by the Australian National Audit Office reports in response to the events of the 2013 federal election.

3 Workforce management, accountability and corporate structure

R3 (paragraph 3.54) The Committee recommends that the Australian Government consider and assess the formal separation of the roles of state manager and Australian Electoral Officer involving: the appointment of Australian Electoral Officers independent of the Australian Electoral Commission; and the assigning of any non-election duties of Australian Electoral Officers to the Electoral Commissioner or other appropriate officer.

R4 (paragraph 3.64) The Committee recommends that the Australian Electoral Commission formalise all state manager positions to report on all election and roll management programme deliverables directly to the First Assistant xix Commissioners responsible for election and roll management programme business in order to ensure consistency and accountability. The Committee also recommends that all existing state managers be assessed for continued suitability in their positions, with new contracts to be drawn up with clear performance expectations and disciplinary and termination triggers stipulated as terms of employment.

R5 (paragraph 3.140) The Committee recommends that the Australian Electoral Commission develop a set of formal qualifications/certification for polling officials.

R6 (paragraph 3.142) The Committee recommends that the Australian Electoral Commission prioritise development of appropriate changes to existing systems, or new systems, to allow for the compulsory recording and capture of data related to Division-level face-to-face training for polling officials.

R7 (paragraph 3.144) The Committee recommends that the Australian Electoral Commission ensure that Officers-in-Charge of polling places be given a list of training completion for all staff reporting to them.

R8 (paragraph 3.160) The Committee recommends that the Australian Electoral Commission develop a full set of relevant key performance indicators for all senior service delivery staff, to be measured and reported to the Parliament as part of federal election inquiry reporting.

R9 (paragraph 3.194) The Committee recommends that the Australian Electoral Commission commence a corporate culture, leadership and performance measurement reform programme. This programme should be formulated in consultation with the Australian Public Service Commission and a suitably qualified organisational culture and management consultant, gained through an open market tender. This programme should then be overseen by a committee comprising: the Electoral Commissioner;  the Auditor-General;  the Australian Public Service Commissioner; and  an appropriately qualified private industry or academic subject matter expert on organisational culture and performance management.

4 Election preparation and the pre-poll period

R10 (paragraph 4.28) The Committee recommends that the Commonwealth Electoral Act 1918 be amended to require a confirmation to be sought and received from a person prior to their enrolment being added or updated on the electoral roll due to any Federal Direct Enrolment or Update activity.

R11 (paragraph 4.72) The Committee recommends that at the next meeting of the Electoral Council of Australia and New Zealand, the Electoral Commissioner continue to engage with the state electoral commissions regarding normalisation and harmonisation of electoral roll use and purpose.

R12 (paragraph 4.120) The Committee recommends that section 200BA of the Commonwealth Electoral Act 1918 and section 73AA of the Referendum (Machinery Provisions) Act 1984 be amended to provide that notification of pre-poll locations, or potential locations, be made directly to candidates if publication is to be later than two days before the first pre-poll voting day.

R13 (paragraph 4.145) The Committee recommends that the Australian Government examine the future viability of the broadcast media blackout.

Election day and the count

R14 (paragraph 5.12) The Committee recommends that section 206 of the Commonwealth Electoral Act 1918 and section 20 of the Referendum (Machinery Provisions) Act 1984 be amended so as to allow the Australian Electoral Commission to provide a suitable pen for use by electors.

R15 (paragraph 5.26) The Committee recommends that the Australian Electoral Commission clearly set out on its website the requirements for satisfying subsection 194(1A) of the Commonwealth Electoral Act 1918 and subsection 65(1A) of the Referendum (Machinery Provisions) Act 1984 by overseas electors who are unable to satisfy the ‘authorised witness’ requirements of those sections.

R16 (paragraph 5.46) The Committee recommends that, in areas with a significant Indigenous population, the Australian Electoral Commission consult with local Indigenous groups to ensure the suitability of polling places and set targets for the employment of Indigenous polling officials.

R17 (paragraph 5.84) The Committee recommends that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to introduce the requirement that:

• voters must present a form of acceptable identification to be issued with an ordinary pre-poll or election day vote. Acceptable identification should be defined as those acceptable at the 2015 Queensland state election (or the closest federal equivalent); 

• where voters cannot provide acceptable identification they must be issued with a declaration vote; and 

• these declaration votes will be checked at preliminary scrutiny to ensure that the claimed enrolled address matches the electoral roll. If not, then the vote should be rejected.

The Committee also recommends that the Australian Electoral Commission be appropriately resourced to enable this change to be made prior to the next federal election and for a suitable education campaign to be undertaken to inform voters of the new requirements.

R18 (paragraph 5.124) The Committee recommends that the conduct of recount provisions at section 279B and elsewhere within Part XVIII of the Commonwealth Electoral Act 1918 be reviewed, amended and separated in order to provide clearly separated recount provisions and processes for both House of Representatives and Senate recounts. Additionally, any other relevant references to recounts within the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 should be amended to ensure consistency.

R19 (paragraph 5.136) The Committee recommends that the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 be amended to ensure that:

• the rules governing the role of scrutineers during both the scrutiny and the re-count of ballot papers during an election or referendum are harmonised; 

• all scrutineers for a candidate, party or other appointee may only object to a ballot paper once during the original scrutiny, once during fresh scrutiny, and once during a re-count; 

• the role of scrutineers in the investigation of prematurely opened ballot-boxes is clearly codified in section 238B; and 

• political party officials or candidates are able to appoint scrutineers on behalf of all their party candidates in order to allow for the oversight of both House of Representatives and Senate counts or recounts with the one appointment.

R20 (paragraph 5.164) The Committee recommends that the Australian Electoral Commission investigate the early procurement of appropriate premises in each state and territory for central ballot paper scrutiny and election activity with a high level of security and appropriate facilities and infrastructure.

6 Electoral cycle issues

R21 (paragraph 6.66) The Committee recommends that section 290 of the Commonwealth Electoral Act 1918 be amended to allow for the deadline for the nomination of candidate agents to be one week after the close of candidate nominations.

R22 (paragraph 6.86) The Committee recommends that the Australian Electoral Commission hold regular by-invitation forums, at appropriate points in each electoral cycle, with the federal directors and registered officers of political parties in order to achieve improved engagement on relevant legislative, policy and procedural matters.

R23 (paragraph 6.116) The Committee recommends that the Australian Electoral Commission consider undertaking, in consultation with the Joint Standing Committee on Electoral Matters, a wholesale review of the internal consistency and operational adequacy of the Commonwealth Electoral Act 1918 in order to ensure that this Act is a cohesive, effective and contemporary piece of legislation that facilitates best practice election delivery. Such a review would also need to proceed in tandem with progressing the consolidation and harmonisation of the Referendum (Machinery Provisions) Act 1984 with the Commonwealth Electoral Act 1918 so as to create one consolidated Act responsible for federal elections and referenda.

R24 (paragraph 6.118) The Committee recommends that adequate resourcing be allocated and prioritised to fund and support the implementation of the recommendations contained in this report. 

Stigma and occupational clustering

'Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations' by Andras Tilcsik, Michel Anteby and Carly R. Knight in (2015) XX Administrative Science Quarterly 1–36 comments

 Numerous scholars have noted the disproportionately high number of gay and lesbian workers in certain occupations, but systematic explanations for this type of occupational segregation remain elusive. Drawing on the literatures on concealable stigma and stigma management, we develop a theoretical framework predicting that gay men and lesbians will concentrate in occupations that provide a high degree of task independence or require a high level of social perceptiveness, or both. Using several distinct measures of sexual orientation, and controlling for potential confounds, such as education, urban location, and regional and demographic differences, we find support for these predictions across two nationally representative surveys in the United States for the period 2008–2010. Gay men are more likely to be in female-majority occupations than are heterosexual men, and lesbians are more represented in male-majority occupations than are heterosexual women, but even after accounting for this tendency, common to both gay men and lesbians is a propensity to concentrate in occupations that provide task independence or require social perceptiveness, or both. This study offers a theory of occupational segregation on the basis of minority sexual orientation and holds implications for the literatures on stigma, occupations, and labor markets.

 The authors note

Occupational segregation—the systematic distribution of people across occupations based on demographic characteristics—is a pervasive and consequential phenomenon in contemporary organizations. The concentration of members of a demographic group, such as women or racial minorities, in certain occupations profoundly shapes individuals’ social and economic prospects (England, Chassie, and McCormack, 1982; Reskin, 1993; Mandel, 2013).

Likewise, occupational segregation has important consequences for organizations, such as narrowing the talent pools from which employers might hire and shaping the demographic profile of different positions and professional groups within organizations (Dobbin et al., 1993; Kalev, Dobbin, and Kelly, 2006; Barbulescu and Bidwell, 2013; Bidwell et al., 2013).

The occupational segregation of gay and lesbian workers — "one of the largest, but least studied, minority groups in the workforce" (Ragins, 2004: 35) — presents an unresolved puzzle for researchers. Since the late nineteenth century, numerous scholars have noted the unusually high concentration of gay or lesbian workers in certain occupations (e.g., Ellis, 1897; Baumle, Compton, and Poston, 2009), but systematic explanations for this phenomenon remain elusive. This question is particularly puzzling because, at first glance, these occupations seem to have little in common, ranging from some blue-collar trades (e.g., various repairers and mechanics) to certain service jobs (e.g., flight attendants and massage therapists) and white-collar occupations (such as psychologists and postsecondary teachers).

To date, the most consistent account of this phenomenon has been that lesbian and gay workers are often found in occupations that are traditionally associated with the opposite sex (Baumle, Compton, and Poston, 2009). Although predictions based on this observation account for some of the important patterns in gay and lesbian occupational segregation, they leave a great deal of variance unexplained. Recent U.S. data suggest that nearly half of gay men are actually in occupations in which men are the majority of workers, and twothirds of lesbians work in female-majority occupations. The tendency of lesbians and gay men to cross occupational gender lines also cannot account for professional fields in which both lesbian and gay workers are overrepresented, such as psychology, counseling, law, and social work (Baumle, Compton, and Poston, 2009). While numerous other explanations have also been proposed for gay and lesbian occupational patterns, many of these apply to just a small set of occupations and are relevant to either gay men or to lesbians (e.g., Be´ rube´ , 1990, 2011; Chauncey, 1994), rather than capturing the drivers of segregation common to both populations.

To provide a more comprehensive explanation for lesbian and gay occupational segregation, we conceptualize minority sexual orientation as a potential source of concealable stigma (Smart and Wegner, 1999; Ragins, 2008), that is, a socially stigmatized characteristic that is not readily apparent to observers. We draw on Goffman’s (1963) classic insight that a principal challenge for individuals with concealable stigma is to manage information about their stigmatized status in social interactions. This need for stigma management — both at work and beyond — is likely to have important consequences for occupational segregation. In particular, it might lead to an overrepresentation of gay and lesbian workers in occupations that provide a high level of task independence (i.e., freedom to perform one’s tasks without substantially depending on others) or require a high level of social perceptiveness (i.e., accurate anticipation and reading of others’ reactions), or both.

Task independence would allow these workers to manage information about their stigmatized status more effectively in the workplace, while also mitigating the risks associated with disclosure. Social perceptiveness is likely to emerge as an important social adaptation or coping skill for many gay and lesbian people at a relatively young age. Addressing the dilemma of disclosure versus concealment across social situations requires sensitivity in order to read and anticipate others’ reactions (Radkowsky and Siegel, 1997; Pachankis, 2007), which in turn are valued behaviors in occupations that require social perceptiveness.

We test our predictions with two distinct population samples and multiple measures of sexual orientation. Our first data source is the 2008–2010 American Community Survey (ACS), which provides a nationally representative sample of nearly five million people in the United States and allows us to systematically identify individuals living with a same-sex partner. While the size and quality of this sample offer unique advantages, one limitation is that these data capture only those lesbian and gay workers who are members of a cohabiting same-sex couple. Thus we also test our hypotheses on a second sample, the fourth wave of the U.S. National Longitudinal Study of Adolescent Health, collected in 2008–2009. Although this sample is restricted to respondents between the ages of 26 and 31, it effectively complements the ACS data by providing indicators of sexual orientation independent of partnered status. We combined both samples with data from the Occupational Information Network (O*NET), the primary source of survey-based information about the characteristics of occupations in the U.S. economy (Liu and Grusky, 2013). These data allow us to test the hypothesis that common to both gay men and lesbians is a propensity to concentrate in occupations that provide task independence or require social perceptiveness, or both.

They comment further

Building on Goffman’s (1963) classic insights into concealable stigma, we identified two patterns that underlie the occupational landscape for gay and lesbian workers. Fundamental to both of our hypotheses is the idea that occupational segregation is shaped by gay and lesbian workers’ adaptation to potential discrimination and the dilemmas of disclosure that they face both in the workplace and beyond. Our results suggest that this framework can parsimoniously explain a large set of seemingly random patterns across the occupational spectrum. While gay men are more likely to be in female-dominated occupations than are heterosexual men, and lesbians are more highly represented in maledominated occupations than are heterosexual women, common to both gay men and lesbians is a tendency to concentrate in occupations that provide task independence or require social perceptiveness, or both.

A focus on social perceptiveness and task independence can also explain many previous observations about lesbian and gay jobs. As noted earlier, for example, one finding that a sex-typing perspective could not account for is that both gay and lesbian workers are often concentrated in professions that focus on creativity, psychology, counseling, law, and social work (Baumle, Compton, and Poston, 2009). Clearly, working in these fields requires a non-trivial degree of social perceptiveness, perhaps most obviously in the case of psychology, counseling, and social work, but also in creative or artistic fields, in which perception of social conditions and audiences plays an important role. Some of these fields (e.g., creative jobs and psychology) also tend to provide a relatively high level of task independence.

Similarly, many artistic, service-oriented, and care-focused occupations commonly associated with gay men require an above-average level of social perceptiveness. Awareness and anticipation of others’ reactions and mental states — whether they are patients in a healthcare setting, passengers on a plane, audience members in a theatre, or students in a classroom — are relatively important components of many such jobs. Likewise, the (only partially accurate) observation that lesbians might be drawn to highly ‘‘masculine’’ bluecollar work can be explained in a more nuanced and empirically accurate way if one notes that lesbian workers are especially likely to be found in those maledominated, blue-collar jobs that provide an above-average degree of task independence. It is quite striking, for example, that four of the five male-majority occupations with the highest proportion of lesbian workers are various repairers and installers with an above-average degree of task independence (table 2). Thus rather than simply reflecting an innate sensibility of gay men for artistic or caring jobs, or a natural attraction of lesbians to ‘‘masculine’’ jobs, these occupational patterns might be more effectively understood in terms of social perceptiveness and task independence, factors that reflect social adaptation to concealable stigma in the workplace and beyond.

The notion that social perceptiveness due to the need for stigma management plays a key role in occupational segregation suggests implications for both the past and the future of gay and lesbian work. For example, the labor historian Berube’s (2011: 265) research into the gay labor movement led him to ask, ‘‘How do people find queer work and how do they make these jobs their own?’’ By ‘‘queer work,’’ Berube´ meant work that is often performed by, or has the reputation of being performed by, homosexual men and women. His question stemmed from, for example, the observed concentration of gay men in a handful of military jobs during World War II and in steward jobs on ocean liners after the war. By identifying some possible dimensions of ‘‘queer work,’’ our study’s findings start to answer Berube’s question.

Our study suggests, for example, that the ‘‘special talents’’ that some observers attributed to gay soldiers during World War II might not be fully imaginary (Be´ rube´ , 1990: 57). Being a hospital corpsman, a navy yeoman, or a chaplain’s assistant—jobs in which gay men were believed to congregate in the military—may have required a higher degree of social perceptiveness than many other military occupations. Attending to wounded soldiers’ medical and emotional needs, to navy officers’ clerical needs, or to soldiers’ religious comfort are tasks in which the understanding of others’ needs, reactions, emotions, and cognitive states is likely to play a non-trivial role. Similarly, social perceptiveness is likely to have been integral to the work of ship stewards, a servicefocused role involving frequent interactions with passengers. It is important to emphasize, however, that what earlier observers saw as a perhaps innate ‘‘special talent’’ we conceptualize as the result of social adaptation to concealable stigma.

One implication of this view is that, in the long run, the possible de-stigmatization of minority sexual orientation may weaken the relationships that we have documented. In particular, in societies that become more tolerant of same-sex relationships, the need for stigma management in everyday social interactions (Goffman, 1963) might fade over time. Intriguingly, as broader tolerance alleviates the intense and ongoing need for managing stigma-related information in everyday life, it might also lead to a relative ‘‘deskilling’’ of gay and lesbian workers with respect to social perceptiveness. Put otherwise, these workers might lose their distinctiveness (Anteby and Anderson, 2014). At the same time, the patterns that we observed are likely to remain in place for a significant period of time. Even if de-stigmatization took place rapidly, broad occupational patterns are slow to change because they continue to reflect earlier educational and career choices and because network-based mechanisms (such as homophily in job referrals) might also help maintain segregation patterns that had initially emerged as a response to stigmatization (see Marquis and Tilcsik, 2013).

Copcams

From a David Brooks op ed in the NY Times regarding 'cop cams' -

Cop-cams chip away at that. The cameras will undermine communal bonds. Putting a camera on someone is a sign that you don’t trust him, or he doesn’t trust you. When a police officer is wearing a camera, the contact between an officer and a civilian is less likely to be like intimate friendship and more likely to be oppositional and transactional. Putting a camera on an officer means she is less likely to cut you some slack, less likely to not write that ticket, or to bend the regulations a little as a sign of mutual care. 

Putting a camera on the police officer means that authority resides less in the wisdom and integrity of the officer and more in the videotape. During a trial, if a crime isn’t captured on the tape, it will be presumed to never have happened. 

Cop-cams will insult families. It’s worth pointing out that less than 20 percent of police calls involve felonies, and less than 1 percent of police-citizen contacts involve police use of force. Most of the time cops are mediating disputes, helping those in distress, dealing with the mentally ill or going into some home where someone is having a meltdown. When a police officer comes into your home wearing a camera, he’s trampling on the privacy that makes a home a home. He’s recording people on what could be the worst day of their lives, and inhibiting their ability to lean on the officer for care and support. 

Cop-cams insult individual dignity because the embarrassing things recorded by them will inevitably get swapped around. The videos of the naked crime victim, the berserk drunk, the screaming maniac will inevitably get posted online — as they are already. With each leak, culture gets a little coarser. The rules designed to keep the videos out of public view will inevitably be eroded and bent.

Privacy Economics

'The Economics of Privacy' by Alessandro Acquisti, Curtis R. Taylor and Liad Wagman "summarizes and draws connections among diverse streams of empirical and theoretical research on the economics of privacy".

The authors comment

Our focus is on the economic value and consequences of privacy and of personal information, and on consumers’ understanding of and decisions about the costs and benefits associated with data protection and data sharing. We highlight how the economic analysis of privacy evolved through the decades, as, together with progress in information technology, more nuanced issues associated with the protection and sharing of personal information arose. We use three themes to connect insights from the literature. First, there are theoretical and empirical situations where the protection of privacy can both enhance and detract from economic surplus and allocative efficiency. Second, consumers’ ability to make informed decisions about their privacy is severely hindered, because most of the time they are in a position of imperfect information regarding when their data is collected, with what purposes, and with what consequences. Third, specific heuristics can profoundly influence privacy decision-making. We conclude by highlighting some of the ongoing issues in the privacy debate.

Bureaucratic Convenience and Asylum Seeking

The Guardian notes that the Department of Immigration & Border Protection can unilaterally disclose to foreign governments the personal information of people who are refused asylum. That disclosure is for the purposes of  obtaining travel documents for asylum seekers who are involuntarily deported.

Disclosure isn't surprising but the Guardian item is of interest in opening up the procedures of the notoriously opaque Department. The disclosure is based on access under court proceedings to the Department’s manual regarding 'Returns and removals'.

The Guardian states  -

Australia has adopted a controversial practice of approaching foreign governments for travel documents for refused asylum seekers. The practice has raised concerns because the very fact an asylum seeker has applied for protection can give rise to a fresh asylum claim (known as a “sur place claim”) if the foreign government persecutes them for having sought asylum.

This is acknowledged in the removal manual, which states that “under no circumstances should they disclose any information indicating any previous PV [protection visa] applications (or any details of protection claims)”.

The Privacy Act prohibits the disclosure of personal information, but the manual says the department can get around this because the Migration Act “impliedly authorises” the department to pass on details to foreign governments to allow a person to be deported.

“Therefore, the disclosure of personal information for the purposes of obtaining a travel document would be permissible,” it says.

It also suggests the disclosure is legal if the asylum seeker has signed a form 1442i, which says that the department can contact foreign embassies and high commissions.

The policy generally adopts a view that removals can only occur once a claim for protection in Australia has been refused, but it contains several caveats.

The document reveals that:

• Removal officers can plan the removal of a person who is living in the community on a certain type of bridging visa. 

• A direction from the Family Court that an asylum seeker should have access to a child in Australia does not override the department’s obligation to remove the asylum seeker. 

• A request for ministerial intervention – which can allow an asylum seeker to relodge a protection claim with the minister’s permission – will be no barrier to involuntary deportation as long as it has the assent of the assistant secretary of the onshore protection division. 

• When asylum seekers make complaints to the Australian Human Rights Commission, Privacy Commissioner or Ombudsman the process of removal will be halted only on a “case by case” basis. 

• The Department reserves the right to override the rules preventing deportation if the person presents a risk of extreme harm to themselves or others, or where they have a history of “serial and vexatious litigation”. 

• The Department can refuse to allow a person being involuntarily deported to speak to a legal representative if it would “unduly delay or jeopardise” the removal.

Structuralist Legal Histories

'Structuralist Legal Histories' by Justin Desautels-Stein in (2015) 78(1) Law and Contemporary Problems comments

In this article’s contribution to the symposium Theorizing Contemporary Legal Thought, I inquire into some of the topic’s methodological difficulties. In particular, I suggest that, as the writing of contemporary legal thought is the writing of a kind of history, we ought to pay attention both to the special historiographical challenges we are likely to experience as well as those avenues that may better ease our passage into a telling of the “legal contemporary.” Ultimately, my argument is that, although it has been in the periphery for a generation, structuralist legal history may be an edifying way of usefully constructing a history of contemporary legal thought. 

But first things first. Perhaps you haven’t heard of contemporary legal thought. This could be because you already know it, only by another name, maybe the “new private law” or “new legal realism.” Or maybe contemporary legal thought is a mystery due to a temptation to look for analogies in other disciplines, like art history. If so, the idea of “contemporary art” may seem of little use, however, since we typically suspect legal history and art history to be very different things. Trying a different approach, you might wonder if contemporary legal thought is a meaningful category at all. Might it not be the same thing as the “modern” legal thought of the first half of the twentieth century? If not, and “modern” and “contemporary” have different meanings in legal history, what could they be? Falling further, you might even wonder whether “modern” has any stable meaning, much less a “postmodern” contemporary.

Interestingly, in whichever register we ask it, the question of contemporary legal thought has rarely been answered. One possible explanation for this lack is the balkanized state of legal studies in the United States, a condition in which judges, lawyers, and legal academics might operate in an intricately fragmented grid of expertise. From this point of view, when we imagine “law” what we envision is something like the law school faculty webpage, divided up into its disparate areas of experts. There are the business law experts, the civil rights experts, the constitutional law experts, the international law experts, and so on. In “normal” times, these departments of expertise are not understood as having much to do with one another. Moreover, the debates that go on within these areas among the experts themselves splinter the territory even further. The history of the legal disciplines, according to this balkanized view, is a history of shards. As Christopher Tomlins has suggested, “This is the scholarly world we live in now, a world of beauteous fragments that lacks a kaleidoscope, a world of noncausal relationality.”

Although there are sure to be any number of causes for our scholarly hermitry, I suspect that this “beauteous fragmentation” is partially a residue of the postmodernism that arrived at American law schools in the 1980s, and that it is this residue that now works as a block on our theorizing about contemporary legal thought. That is, one possible reason for our general lack of conversation about the “legal contemporary” is that we have arrived at a place in which it has become increasingly difficult to have such conversations. Poststructuralist views of law have yielded an orientation toward legal history whereby the idea of unities and cross-cutting “totalizations” have become increasingly suspect, and “grand narratives” about evolving periods of legal thought have gone out of fashion. But as the broad sweeps have been (appropriately) rendered problematic, legal historians have thrown the baby out with the bathwater, pushing the discipline to be ever more historicist, more contextual, more contingent, albeit more professionally accepted. To be sure, there was much wrong about the breadth of prestructuralist historiography, and it remains a curiosity how it managed for as long as it did.

The importance of theorists of the local and contingent operations of power and ideology as otherwise as different as Geertz and Foucault; the prominence of such theoretical terms (constantly redefined and contested) as hegemony, discourse, and identity, the multiple shifts from the global to the local, from the macro to the micro, and from structure to conjuncture and event in the distinctive intellectual practices of the era . . . are all both symptomatic and constitutive of these developments [in post-structuralist theory]. 

So, in many respects, the late-twentieth-century wave of critical historicism was a good thing. But with the vision of the microgrid of faculty expertise that followed the critique also came a blindness to our potential to usefully generate patterns of argument in so much of our legal language. Paralyzed by the new habit of seeking to establish discontinuities and ruptures, many legal historians turned away from these deeper digs for fear of committing the genuine errors of evolutionary functionalist historiography. I think, however, that as these patterns and structures have slipped into our disciplinary blind spots, we become less likely to get a glimpse of contemporary legal thought. Perhaps like you, I’m interested in seeing into these blind spots, but as we seek to do so we needn’t follow the old roads back to an outdated evolutionary functionalism, with its progress narratives and crass totalizations. The way is open back to a structuralist legal history—a way that generates intelligibility not through the postmodern elaboration of a never-ending series of social contexts, but through the construction of image and style, constrained by and operating through a conceptual structure. This structure is neither apodictically accountable, nor always slipping down the rabbit hole of context-dependent perception. Structuralist legal history, something quite other than late-twentieth-century “critical legal history,” presents a yet-unexplored way to get to contemporary legal thought.

Gone but not forgotten?

'The Right to Be Forgotten: Issuing a Voluntary Recall' (Indiana University Robert H. McKinney School of Law Research Paper No. 2015-13) by R. George Wright comments

 Recently, in Europe and elsewhere, some form of a “Right to Be Forgotten” in various internet and search engine contexts has been recognized. This Article contends, however, that for various largely practical reasons, no such broad-sweeping right should be adopted in the United States. More narrowly particularized defamation, privacy, confidentiality, and emotional distress claims, along with criminal record expungement statutes, jointly provide a better alternative path, especially when modified to address significant socio-economic class effects. Crucially, the superiority of narrower, particularized, contextual, and pluralistic approaches to the concerns underlying a “Right to Be Forgotten” flows from important systematic biases and asymmetries between persons seeking a de-linking or deletion of personal information on the one hand, and information aggregators such as Google on the other. ...

Given the evolving nature of the right to be forgotten, the focus below will not be on specific legal formulas, mechanisms, tests, or procedures. Instead, the focus will be on more basic underlying values, concerns, tendencies, experiences, patterns, risks, and costs. Controversial definitions of ideas such as privacy, autonomy, anonymity, and the public interest will be avoided as much as possible. The focus will instead be more practical. The argument below will rely not on dogmatic assertions about rights, but on a pragmatic sense of the inevitable basic problems in implementing such a right.

In the end, for pragmatic reasons, no broad European-style legal right to be forgotten should be adopted. Narrowly contextual particularized statutory and common law privacy, non- defamation, confidentiality, and emotional distress damages rights, along with criminal expungement statutes, jointly provide a better alternative path. Narrowly focused holdings and statutes can readily be modified to address significant socio-economic class effects.

Any broad-sweeping legal right to be forgotten, beyond such narrow, particularized, context-sensitive accommodations, is ultimately likely, for practical reasons discussed throughout below, to be ill-advised. The superiority of a narrow, particularized, contextual, and pluralistic approach to a right to be forgotten flows from practically significant systematic biases and asymmetries between individuals seeking de-linking or deletion of personal information on the one hand and information aggregators such as Google on the other.

Wright goes on to conclude -

a broad right to be forgotten thus involves distinctive practical problems associated with a substantial element of government paternalism. Such an argument could easily be further developed. The main focus of this Article, however, has instead been on the range of relevant and mutually reinforcing biases and asymmetries, and on related practical considerations more generally. Each of the reinforcing practical concerns raised above adds further pragmatic complications particularly to the operation of any broad-sweeping, generalized right to be forgotten. 

At an extreme, though, even pragmatic concerns for the risks, costs, and sheer workability of any broad legal mechanism unavoidably begin to merge with fundamental relevant moral and political principles. Dystopias, in the extreme case, may manifest the above problems of systematic and mutually reinforcing biases, unnecessarily severe asymmetries of information and motivation, and the resulting policy distortions and inefficiencies. Any such political or moral concern may seem irrelevant if we simplistically think of a right to be forgotten as the merely straightforward universal empowerment of individuals, and perhaps of small groups. But for every individual who is empowered by a legally enforced cleaning of the personal internet slate, many other individuals, disproportionately those who cannot easily afford the most productive internet searches, may lose realistic access to usable information without their knowledge or consent. One might argue in response that the lost information was authoritatively deemed to be outdated or irrelevant, at least for such purposes as the relevant decision maker was able to envision. We will not reiterate here the systematic biases and asymmetries that predictably tend to distort such determinations. Rather, the point here is that determining which items of information should be widely accessible is made not by an empowered individual, but, ultimately, by a government or a court that sets the criteria for search engine corporations and other private actors to follow. How comfortable we should be with a for-profit entity like Google making discretionary public policy decisions is certainly worth asking. But if the corporate decision rules are ultimately set in general terms by governments, it is unclear that individual persons are thereby distinctly empowered. 

In the end, it is certainly understandable that contemporary Europeans in particular, given the history of the twentieth century, would be especially anxious about personal privacy. But it is far from clear why the best response to nightmarish historic centralized governmental abuse of privacy is to entrust decisions as to the relevance and significance of information, in unforeseen contexts, to a few multinationals, and ultimately to centralized governments, rather than diffusely to the various more or less reasonable people who may be affected, positively or negatively, by how sensibly they respond to and discount the information in question. The exercise of discretionary authority to grant or withhold access to information, whether by one or more international profit-seeking entities or by centralized governments, where it is not systematically skewed as described above, may well tend to track the perceived interests of that decision maker. Those interests may not correspond to the interests of affected individuals or the broader public. ... 

The idea of a broad-sweeping right to be forgotten, in whatever form it is proposed, inevitably raises fundamental questions. It is tempting to try to make sound, broad legal policy by somehow pitting the value of informational privacy, however defined, against an equally vague and general right of access to information itself. A debate at that level of competing abstract rights, however, distorts the issues without encouraging genuine progress in understanding.  

The approach taken in this Article has, instead, focused on the systematic and mutually reinforcing patterns of biases and asymmetries likely, in practice, to distort in predictable ways the practical operation of any version of a generalized right to be forgotten. Some of the crucial biases and asymmetries reflect familiar psychologies, cognitive limits, incentives, and patterns of interests of persons and institutions, as recognized in common experience and supported by the available social science evidence. On this basis, this Article has instead recommended a range of better understood, fine-tuned, particularized, more contextualized common law and statutory privacy-oriented remedies, as continually amended in the interests of socio-economic fairness and equality. Given this more attractive alternative path, a broadly generalized right to be forgotten should be subject to a recall.