12 June 2015


Another step in the slow dismantling of the Office of the Australian Information Commissioner with the appointment of John McMillan as NSW Ombudsman.

His departure is convenient for national Attorney-General Brandis, whose initial denial of funding alongside an abortive attempt to formally abolish the OAIC saw McMillan somewhat theatrically working from his kitchen.

Presumably McMillan could have found a desk somewhere in the the OAIC's Sydney office but that would have lacked the headline value, particularly as the OAIC - having been given interim funding pending the Government's hope that its legislation would pass - went on to recruit staff.

The NSW media release states that
At his own request, and because he is aged 65, Professor McMillan has been appointed in an acting capacity for a two-year term. Professor McMillan is the inaugural Australian Information Commissioner and was Commonwealth Ombudsman between 2003 and 2010. He is an Emeritus Professor of the Australian National University. 
“I welcome the appointment of Professor McMillan, whose skills and experience put him in an ideal position to help ensure our public agencies maintain a world’s-best level of performance,” Mr Baird said. 
“Professor McMillan will take over responsibility for Operation Prospect, which Mr Barbour has progressed to its concluding stages, and I look forward to a comprehensive report as soon as possible.
All things considered it might have been better to make a permanent appointment - or amend the 65 year ceiling - rather than bring in McMillan in an 'acting' basis that bypasses the age restriction.

Animal Personhood and Morality

‘Not All Dogs Go To Heaven: Judaism's Lessons In Beastly Morality’ by Mark Goldfeder in (2013-2014) 20 Animal Law 107 considers the moral status of animals and the definition of humanity under traditional Jewish law, as contained in Biblical texts and commentaries by ancient and historical Jewish scholars.
Examining whether animals are capable of moral behavior, it provides examples from various Judaic sources to support the idea that animals are capable of making conscious, moral choices. This Essay goes on to investigate the effect that morality has on the rights and rewards given to animals under Jewish law, and whether, as conscious moral actors, animals have souls. Turning more broadly to the definition of humanity, this Essay discusses whether there might be an expansive contextual definition that would encompass animals with the cognitive ability to communicate and interact like people. Possible tests for humanity under Jewish law, all of which could include animals, such as the contextual/functionality test, or the moral intelligence test, suggest that from a Jewish law perspective, animals that possess the ability to make moral choices may be more human than not.
Goldfeder comments
The idea of divine retribution (i.e., reward and punishment in all its different facets, in both this world and the world to come) is a central tenet of the Jewish faith.' It is intricately connected to the idea of free will, and the ability to choose rationally between morally acceptable and unacceptable behaviors-choose well, and God will reward you; choose poorly and you will be punished. Those who cannot actually choose their own course of behavior for whatever reason have neither moral responsibility nor culpability; as non-moral actors, they can be neither rewarded nor punished for their actions or inactions. 
It has long been assumed that the ability to assess situations and make conscious moral choices is a characteristic unique to mankind. The Bible states that a unique feature of man is his God-like moral intelligence, lada'at too vara (literally, to know good and evil) - i.e., to differentiate between right and wrong. In the Midrash Genesis Rabbah, the Talmudic sage Rabbi Akiva famously links this concept with free will, and in the Middle Ages the Jewish law codifier Maimonides closed the circle, noting that man is the only creature who resembles God in that he has free will. In light of recent findings, including the work of Frans B. M. de Waal and the research of Steven M. Wise, which shed light on the moral behavior and ethical choices found in the animal kingdom, this Essay revisits and explores Judaism's position on animal morality, noting the traditionally accepted views while pushing back to see if there might also be other extant traditions. 
Our exploration starts with the idea of animals as divinely ordained creations, formed in God's wisdom and as part of His ineffable plan. Man, for his part, needs to both know and respect that. The Bible makes specific mention of the moral lessons that man should learn from the other members of the animal kingdom. The Talmud also expands upon these instances. Rabbi Yochanan said: "If the Torah had not been given we could have learnt modesty from the cat, honesty from the ant, chastity from the dove, and good manners from the cock who first coaxes and then mates." There is an entire Kabbalistic book dedicated to the subject of how the creatures of creation praise God every day," and as the Midrash in Genesis Rabbah notes, oftentimes God performs his wondrous actions through the agency of animals. We can accept the premise then that from a Jewish perspective, animals do perform what we might think of as good - and even noteworthy - deeds. 
Jewish law responds by giving animals some rights. A person is not allowed to kill an animal, for instance, unless it is for legitimate human purposes. In a case where an animal kills a person, such as the case of the murderous ox, the Talmud notes that the Torah took pity on the animal, and made it very hard to prosecute him. In fact, in order to sentence an animal to death, we need the testimony of witnesses and a high court of twenty-three judges. This is the same standard required by the Talmud as in any human capital case. By requiring a searching examination before killing an ox, the Torah demonstrates the severity of this matter. 
Humans are not allowed to cause animals pain. Maimonides, in particular, makes it very clear that animals feel not only physical, but also emotional pain:
It is likewise forbidden to slaughter it and its young on the same day, this being a precautionary measure in order to avoid slaughtering the young animal in front of its mother. For in these cases animals feel very great pain, there being no difference regarding this pain between man and the other animals. For the love and the tenderness of a mother for her child is not consequent upon reason, but upon the activity of the imaginative faculty, which is found in most animals just as it is found in man.
Similarly, Nachmanides, an influential medieval authority, adds that animals sometimes even make behavioral choices based upon their feelings 
Lest one thinks that the choices animals make are just simple reactions, not based upon intelligent consideration, the Talmud relays several stories about animals making real, conscious decisions. There is, for example, the famous tale of Rabbi Phinehas ben Yair's donkey:
R. Phinehas happened to come to a certain inn. They placed barley before his ass, but it would not eat. It was sifted, but the ass would not eat it. It was carefully picked; still the ass would not eat it. "Perhaps," suggested R. Phinehas, "it is not tithed?" It was at once tithed, and the ass ate it. He, thereupon, exclaimed, "This poor creature is about to do the will of the Creator, and you would feed it with untithed produce!"
Returning to our original discussion, if divine reward and punishment are based on the making of moral choices and if animals do in fact make good choices, it follows that they are eligible for divine reward and punishment. 
Indeed, the Bible hints that this is the case. On the very last night of their enslavement, when the Jewish people were getting ready for the Exodus from Egypt, the Egyptian houses were full of the cries of families bereft of their firstborns. At midnight, however, at a time when one would expect the animals to join in the howl, out of respect for the children of Israel, no dog moved its tongue. Later in the Bible, dogs are mentioned again: the nation is told that if an animal is slaughtered improperly and is therefore not kosher, they should not throw the meat away, but rather lakelev tashlichun oto (literally, ye shall cast it to the dogs). The Midrash informs us of the underlying reason:
Scripture says: "Ye shall not eat of anything that dieth of itself; thou mayest give it unto the stranger that is within they gates . . . ." Hence, what must Scripture mean by saying: "Ye shall cast it to the dogs"? To the dogs and to such as are like dogs . . . . This is to teach you that the Holy One, blessed be He, does not withhold the reward of any creature.
That verse and rabbinic explanation are an excellent starting point for the question of beastly morality and just reward, but are not entirely satisfying in and of themselves. In typical Jewish philosophy, the discussions revolving around reward and punishment usually focus on life after death, i.e., reward and punishment in the world to come. And so the next question that we have to ask is: Do animals have souls? 
Rabbi Moshe Chaim Luzzato (commonly referred to as "Ramchal"), a very influential Kabbalist and philosopher of the eighteenth century, wrote that animals do in fact have souls. Ramchal asserted that
[o]ne type of soul [nefesh] that man has is the same that exists in all living creatures. It is this [animal] soul that is responsible for man's natural feelings and intelligence.
If they do have souls, then one would expect animals to receive reward in the next world for the things they have done in this world. The canonic responsa literature, during the period of Jewish masters known as the Gaonim (literally, Geniuses, a period roughly from the sixth to the eleventh centuries), provides such an opinion. With regard to animals that die for good (i.e., legitimate) reasons, Rabbi Sherira Gaon, writing in the tenth century, explicitly states, "We are of the opinion that all living creatures, the slaughtering and killing of which God has permitted, have a reward, which they may expect." Bringing us back full circle, a set of Midrashim attributed to Rabbi Akiva - the same Talmudic Rabbi Akiva of the first century who linked reward and punishment to free will - goes one step further than the Gaonim did. The Midrash tells us that animals will even have the ultimate reward, and participate and be included in the eventual resurrection of the dead:
When God renews His world, He himself takes charge of the work of renewal. He arranges all the regulations of the last ones, those of the future world . . . the order of each and every generation, of every being, of every animal, and of every bird .... I have caused all human beings and all creatures to die in this world, and I shall restore their spirit and soul to them and revive them in the World to Come.
Considering the amount of literature that is available within the Jewish tradition on the concept of human morality and divine reward and punishment, it seems rather odd that, if animals make the same kinds of choices -even if the animals' choices are of somewhat lesser degree - we would have to rely on an obscure reference to make the case. More information on the process of rewarding animals is necessary to understand the concept of beastly morality under Jewish law. The remainder of this Essay shifts to focus on that mystery, and attempts to answer the question of the great lacuna in the text of beastly morality. We start by noting that the line between humans and animals was not as clear-cut in ancient (rabbinic) times as it is now. Throughout the discussions in rabbinic literature, we encounter part-human and part-animal beings, such as mermaids and other monsters. The rabbis, as legal theorists, were not scientists, and were more interested in how to classify them than whether these creatures actually existed. From their statements and rulings across the Babylonian Talmud, the Jerusalem Talmud, and the Midrashic lore, one can get a sense of the criteria the rabbis used in determining what exactly it was that gave a creature that elusive thing we tend to call - for lack of a better word - humanity, with the accompanying rights and benefits.   Jewish law recognizes some of the classic tests of humanity such as biology, moral intelligence and communicative ability, free will, etcetera. However, this Essay argues that it is the shifting contextual/functionality test of humanity, as developed in the Jerusalem Talmud, that is the origin of our obligations to certain animals above and beyond our general obligation to not harm life for no reason - and indeed our fundamental understanding of animals in general. If animals display human characteristics - if they look human, or act human in some meaningful cognitive way - they deserve not only human rights but also mutual respect. From a Jewish law perspective, they are, in fact, at some level, "human." That might explain the dearth of specifically animal-focused discussion of morality and compensation; if animals are displaying what we might at first call beastly morality, then perhaps according to Jewish law they have by definition already crossed or started crossing the line into humanity.

Global Privacy Rights?

'An International Right to Privacy? Be Careful What You Wish For' (NYU School of Law, Public Law Research Paper No. 15-15) by Stephen Schulhofer comments
 Nations now have unprecedented capacity to spy on global communication, and yet they typically acknowledge no legal restrictions on their right to surveil non-citizens outside their borders. Moreover, incidental collection and inter-governmental cooperation give people little protection against surveillance by their own governments as well. There is growing support for plugging these loopholes by a multilateral agreement that would establish internationally applicable safeguards. 
The present paper concludes that such an agreement, far from strengthening global privacy protection, would almost certainly weaken it. Even among Western democracies, the search for transnational common ground and the institutional priorities of the negotiators would be inimical to a privacy-protective accord. Paradoxically, privacy will be better served by leaving all nations free to go their own way. Political and economic dynamics render needed reforms more likely through U.S. domestic law than through international agreements, and such reforms would benefit not only Americans but also the world at large.

Genetic Databases

'Legal Protection and Ethical Management of Genetic Databases: Challenges of the European Process of Harmonization' (Jean Monnet Working Paper 19/08) by Lucia Scaffardi comments
The issue of DNA database legislation is one of the most delicate challenges of legislative harmonization at the European level. The balance between the right to privacy, and the right to security and to fair trial is hard to be achieved and it depends a lot from the cultural, historical, philosophical and even religious background each country is characterised by. At present solutions widely differ in Europe. 
The paper seeks to analyse the most important national legislations concerning the use of genetic profiling, underlining on the one hand the effective norms which characterise the most important and innovative national laws and regulations, and, on the other, the implications of those laws and regulations undermining the protection and enforcement of fundamental rights. We will then discuss the European milestones and the process that led to the adoption of the Treaty of Prüm, from both a political and a legal perspective. Finally, the paper will try to assess the process of harmonization, its challenges, the necessary mediations, and above all its relevant ethical, social, economic as well as legal implications.

Food Rights

'Ensuring Food Security Through the Human Right to Adequate Food'  by Sandra Raponi comments
Political movements and academic discussions concerned with food insecurity, food sovereignty, food justice, and sustainable food security have increased significantly in the last few years. In this paper, I consider how the human right to adequate food can help address these issues. The right to adequate food is included as a human right in the United Nations Declaration of Human Rights (1948) and in the International Covenant on Economic, Social, and Cultural Rights (1976). Many international documents and institutions have affirmed and developed this right, including the UN Food and Agricultural Organization. It is helpful to appeal to the right to adequate food as it has been developed and applied internationally when addressing sustainable food security for a few reasons. First, human rights discourse is empowering for claimants and it can provide a powerful motivating force for activists. Second, it is useful to be able to draw on all the work and progress that has been made through international human rights agencies, particularly the UN Committee on Economic, Social and Cultural Rights, and the Special Rapporteur on the Right to Food. Third, in arguing for reforms, it allows us to go beyond our own governments and appeal to the international community for support. 
At the 1996 World Food Summit, governments reaffirmed the right to adequate food and agreed to take efforts to reduce the number of people suffering from hunger and malnutrition in half by 2015. The UN Millennium Development Goals also affirmed this commitment. Despite some important progress, 805 million people are estimated to be undernourished (11.3 percent globally and 13.5 percent for developing countries), and more than 99 million children under age five are still undernourished and underweight. The commitment to ‘end hunger, achieve food security and improved nutrition, and promote sustainable agriculture’ will be affirmed again in the new UN Sustainable Development Goals that will be adopted by states in September 2015. 
Unfortunately within the United States, the right to adequate food has not been taken seriously. Recently, there have been significant cuts to the food stamps program at a time when there has been an increase in ‘food insecure’ households. In poor urban areas, people do not have access to affordable, nutritious food (food deserts). Why is more not being done to ensure food security? Politicians and courts within the United States have rejected the very idea of a ‘right’ to adequate food, as have various legal and political philosophers. Providing food aid and increasing food security has been largely viewed as a voluntary act of charity, not as a human rights obligation. 
In this paper I will address practical and conceptual objections that have been raised against the right to adequate food and other subsistence rights. Philosophers have articulated different accounts of universal human needs or vital interests that support a right to adequate food. For example, the right to adequate food can be justified by accounts of human rights that are based on biological needs, interests that are central to autonomy, vital human interests that are central for living a life with dignity (Jones 2013), human capabilities (Sen 2009), material goods necessary for a decent life (Fabre 2000), and opportunities that are vital to leading a satisfying and fulfilling life (Macleod 2013). For the purposes of this paper, I will not evaluate these different theories. Instead, my defense of the right to adequate food is intended to be consistent with these different accounts of human rights. Given that all human beings need food to survive, this is a basic need and vital interest that can be regarded as essential and necessary in all these different accounts of human rights. 
A common practical objection against socio-economic rights is that, unlike civil political rights, they cannot be transformed into legal rights or enforced by a court of law because they are not practicable or justiciable. Government officials and federal courts have expressed this view in the United States, particularly since the Reagan years (Albisa and Schults 2008, pp. 233 9). Within legal and political philosophy, we can trace this conception of rights to legal positivists, including Jeremy Bentham and Maurice Cranston. Cranston argues that socio economic rights are not real human rights because they are not practicable and cannot be translated into positive law in the same way as civil political rights. Rather, they are utopian ideals or mere manifesto rights. Other legal philosophers argue that in order for something to be a real human right it must be capable of being translated into an enforceable legal right, while leaving open the question of whether certain socio economic rights could be transformed into enforceable legal rights. Some question the justiciability of socio economic rights by arguing that these rights raise questions of resource allocation and that courts lack the institutional competency to determine this. These practical objections have been addressed by the current and former UN Special Rapporteurs on the Right to Food in recent reports. 
In my response, I begin by challenging the traditional division between civil political rights and socio economic rights because this still seems to lurk behind some of these objections. Most importantly, it is a mistake to conflate civil political rights with negative duties (not interfering with rights), and to conflate socio economic rights with positive duties to provide goods and services. Many seem to interpret the right to adequate food primarily in terms of the duty to provide food or money for food, but I will show how this is a small aspect of this right; rather, this right primarily protects people’s access to adequate food in various ways, including against external interferences with this right. I argue that securing the right to adequate food is practicable and justiciable by considering the manner in which this right and other socio economic rights have been interpreted and applied in international law and by other domestic legal systems. I also consider how some socio economic rights have been legally protected in some state constitutions within the United States and enforced by courts. While the right to adequate food and other socio economic rights cannot be translated into positive law in the same way as most civil and political rights, they have and can be transformed into enforceable legal rights. In assessing whether a state sufficiently secures the right to adequate food, courts and international bodies have used a progressive standard based on what each state has the capacity to do. 
I will consider a second, more conceptual objection that concludes that the right to adequate food is a mere ideal and not a real ‘right.’ This objection is based on the conception of rights as normative claims that must correlate to assigned duties against all agents (universal duties) or specified agents (special duties). According to this view, in order to have a right, it must clear which agents have a duty to not infringe upon that right or a duty to fulfill that right. A right is empty and meaningless if we are not able to articulate which agents have the duty to do what to secure the right. Scholars have referred to this objection as the ‘claimability objection’ (Tasioulas 2007). I will consider Onora O’Neill’s defense of this view because she presents a strong version of this objection. She argues that while liberty rights entail universal duties against all others, it is unclear pre institutionally who has a duty to fulfill rights to goods and services, including the right to food. Consequently, she argues that these cannot be universal human rights or real normative claims; rather, they are mere aspirations or empty manifesto rights. She argues that it would be more effective to focus on the broader ethical notion of duties instead of appealing to such rights. 
While I am very sympathetic to O’Neill’s focus on duties, I argue that she limits the concept of rights too much. First, I argue that O’Neill’s account does not adequately appreciate the practical and ethical importance of being able to claim the right to adequate food and other socio economic rights. Second, I argue that O’Neill defines the concept of a right too narrowly by requiring that correlating duties be specified pre institutionally by the idea of the right itself. I argue that while duties need to be specified or institutionalized in order for rights to not be empty ideals, these duties need not be generated automatically from the idea of the right itself. Instead, duties can be specified and institutionalized over time, by considering which agents should have a duty to respect, secure, and fulfill that right. I consider institutional and moral accounts of human rights that illustrate how duties can be specified after, and independent from, the prior justification of a right. While I will focus on defending the idea that the right to adequate food is a human right and should be protected as such, I think that the problem of hunger and malnutrition can and should also be addressed based on the broader moral duty to assist those in need, as well as through obligations of distributive justice. In some cases, access to adequate food may be better addressed by these other two broader approaches. Nonetheless, there are pragmatic and conceptual reasons for also appealing to the right to adequate food as a human right.


‘Hermeneutics and Social Identity' by Georgia Warnke

 in (2014) 45(4) New Literary History 575-594 comments
During at least the last four decades, the relationship between hermeneutics and politics has received a significant amount of attention.  Charles Taylor, Michael Walzer, and others look to the understanding of meanings that hermeneutics explores and, specifically, to the understanding of the meanings that social goods, cultural activities, and past histories have for those who share them. The questions they ask concern how we are to understand our political traditions, their contents, and ourselves, and what consequences follow these understandings. Thus Taylor examines the large structures of thought that orient secularism in the West. Among other projects, Walzer looks to the different meanings different goods hold for different communities and argues that the answer to the question of how to distribute those goods must follow from those meanings.   
Yet while theorists such as Walzer and Taylor have explored the relation between hermeneutics and political theory, few have explored that between hermeneutics and social identity.  I want to try to contribute to this exploration here. The relation seems intuitively clear: social identities such as race and gender are interpretations or ways of understanding who we and others are. Hence, identities should be subject to the conditions of understanding that hermeneutics studies. At the same time, the argument I will make may seem counterintuitive. In examining the conditions of understanding, many hermeneutic theorists emphasize the openness those conditions establish or, in other words, the extent to which no interpretation of meaning can ever be definitive. However, I shall place equal emphasis on the ways in which interpretations, including our interpretations of one another, can fail. Specifically, I want to argue that understandings of who we are are not always legible in the terms race, gender, or other social identities provide. 
Because hermeneutics has its original home in the understanding of texts, I begin by looking at the way we understand the identities of characters in novels. I then ask how the results of this study can help us think about social identities and particularly about the discrimination and marginalization certain individuals and groups suffer on the basis of their social identities. Finally, I turn to an account of social identity that is currently prominent in feminist theory: namely, intersectional theory. Intersectional theory stresses the extent to which social identities such as race and gender interlock—we are never simply women but always white women or women of color, for example—and how these intersections subject certain individuals and groups to additional forms of discrimination and marginalization. Nevertheless, I shall claim that the hermeneutic conditions that apply to social identities suggest the need to disentangle our various identities, and that doing so is important to efforts to combat the discrimination and marginalization with which intersectional theorists are concerned.

11 June 2015


‘Mental Disorder and the Concept of Authenticity’ by Alexandre Erler in (2014) 21(3) Philosophy, Psychiatry and Psychology 219-232 comments
Authenticity has recently emerged as an important issue in discussions of mental disorder. We show, on the basis of personal accounts and empirical studies, that many people with psychological disorders are preoccupied with questions of authenticity. Most of the data considered in this paper are from studies of people with bipolar disorder and anorexia nervosa. We distinguish the various ways in which these people view the relationship between the disorder and their sense of their authentic self. We discuss the principal modern ac- counts of authenticity within the analytic philosophical tradition. We argue that accounts based on autonomous, or wholehearted, endorsement of personal characteris- tics fail to provide an adequate analysis of authenticity in the context of mental disorder. Significant elements of true self accounts of authenticity are required. The concept of authenticity is a basic one that can be of particular value, in the context of self-development, to people with mental disorder and to others experiencing substantial inner conflict.
Erler argues
Authenticity has recently emerged as an issue in bioethics principally in two settings: discussions around enhancement and with reference to mental disorder. One issue that is being much debated is whether some methods of enhancement, for example, using drugs, result in the person becoming inauthentic and are for that reason morally problematic (e.g., see Elliott 1998; DeGrazia 2000). In the setting of mental disorder, people with a disorder, and those around them, may seek to distinguish between the authentic and inauthentic characteristics of the person. Some parents of children with attention deficit hyperactivity disorder (ADHD) are concerned with the issue of when medication helps to ‘reveal’ and when it obscures their child’s authentic character (Singh 2005, 2007). Some people with anorexia nervosa come to see aspects of their personality associated with the anorexia as inauthentic (Hope et al. 2011). Karp reports that many people with bipolar disorder ask themselves: “If I experience X, is it because of the illness, the medication, or is it ‘just me’?” (Karp 2006, 119). In both settings, the relevant authenticity is of human psychological characteristics that, in some contexts, refers to the self as a whole and in others to specific aspects of the self, such as decisions, desires, emotions, and behavior. We use the term ‘authenticity’ to apply to any or all such phenomena, depending on context. 
In this paper, we argue, on the basis of personal accounts and empirical studies, that many people with mental disorder find the issue of authenticity significant particularly in the context of self-development. We distinguish the various ways in which people with mental disorder view the relationships between the disorder and their sense of their authentic self. We go on to discuss why the experience of mental disorder gives rise to questions about authenticity. We then outline the three principal modern accounts of authenticity within the analytic tradition. We consider how these accounts relate to the uses made of the concept of authenticity in the cases we discuss. We argue that only those accounts that give prominence to the idea that there is a ‘true self’ to be discovered provide an adequate analysis of the majority of ways in which those with mental disorder use the concept of authenticity. We argue that the concerns about authenticity are distinct from concerns about best interests and autonomy. Finally, we consider the normative implications of considerations of authenticity in the context of mental disorder (and further contexts). Although the concept of authenticity in the context of mental disorder is mainly of value for prudential reasons, it can also have moral implications.

10 June 2015

Magna Carta

"The Magna Carta and the Contemporary Rule of Law Problem' (Indiana University Robert H. McKinney School of Law Research Paper No. 2015-29) by R George Wright
 seizes upon the 800th anniversary of the Magna Carta to draw attention to important problems associated with the contemporary rule of law. In particular, the Article discusses the rule of law as a systematically undersupplied public good. The Article then notes the insufficiency of standard incentive-based responses to rule of law problems. The Article considers finally the idea of ‘faithfulness’ in the law, and the role of civic and personal virtues in appropriately sustaining the rule of law.
Wright comments
With the octocentenary of the Magna Carta, attention has been drawn to due process of law, to the law of the land,and to the nature and value of the rule of law. The Magna Carta famously promises in particular that “[n]o free man shall be seized or imprisoned . . . except by the lawful judgment of his equals or by the law of the land."If we think about the rule of law as thus gestured at by the Magna Carta, we may find that the precise nature of the rule of law is more contested than the general positive value of the rule of law. As one leading scholar has put it, “[e]veryone, it seems, is for the rule of law. 
This Article will suggest, however, that even a unanimous and sincere collective endorsement of the rule of law would not ensure the rule of law’s continued vitality. The logic of this conclusion requires, first, an introduction to mainstream understandings of the rule of law, and to some assumed benefits of the rule of law. The Article then briefly explores several closely related contexts in which important rule of law concerns arise. 
The institution of the rule of law is then diagnosed, at least by analogy, as what is called an undersupplied public good, with attention then being devoted especially to standard problems of an improperly regulated “commons” and to some elements of modern game theory, including the possible strategic payoffs to a legal actor of apparent “madness” in rule of law contexts. In pursuit of a constructive response to the chronic, systematic undersupply of the rule of law, this Article then explores the idea of faithfulness, or fidelity, and calls attention to some of the basic virtues of character most distinctively relevant to sustaining the rule of law. 
The hope is that cultivating some of the most relevant virtues of character can change not only the otherwise collectively undesirable of choice “payoffs” available to public officials who inadvertently undermine the rule of law, but the capacities and underlying values and priorities that public officials bring to such choices.


The US Financial Crimes Enforcement Network (FinCEN) has announced a US$700,000 civil penalty today against Ripple Labs Inc. and Ripple's subsidiary, XRP II, LLC on the basis that Ripple
willfully violated several requirements of the Bank Secrecy Act (BSA) by acting as a money services business (MSB) and selling its virtual currency, known as XRP, without registering with FinCEN, and by failing to implement and maintain an adequate anti-money laundering (AML) program designed to protect its products from use by money launderers or terrorist financiers. XRP II later assumed Ripple Labs’ functions of selling virtual currency and acting as an MSB; however, like its parent company, XRP II willfully violated the BSA by failing to implement an effective AML program, and by failing to report suspicious activity related to several financial transactions. 
FinCEN stated
Virtual currency exchangers must bring products to market that comply with our anti-money laundering laws. 
Innovation is laudable but only as long as it does not unreasonably expose our financial system to tech-smart criminals eager to abuse the latest and most complex products. ...
Ripple Labs Inc. and its wholly-owned subsidiary both have acknowledged that digital currency providers have an obligation not only to refrain from illegal activity, but also to ensure they are not profiting by creating products that allow would-be criminals to avoid detection. We hope that this sets an industry standard in the important new space of digital currency. 
Federal laws that regulate the reporting of financial transactions are in place to detect and stop illegal activities, including those in the virtual currency arena. 
Unregulated, virtual currency opens the door for criminals to anonymously conduct illegal activities online, eroding our financial systems and creating a Wild West environment where following the law is a choice rather than a requirement. 
Compliance involves the two enterprises agreeing to
  • only transact XRP and “Ripple Trade” activity through a registered MSB; 
  • implement and maintain an effective AML program; 
  • comply with the Funds Transfer and Funds Travel Rules; 
  • conduct a three-year “look-back” to require suspicious activity reporting for prior suspicious transactions; and 
  • retain external independent auditors to review compliance with the BSA every two years up to and including 2020. 
As of 2015 Ripple is stated by FinCEN to be the second-largest cryptocurrency by market capitalization, after Bitcoin.

'Disruptive Technology and Securities Regulation' by Chris Brummer in Fordham Law Review (Forthcoming) comments
Nowhere has disruptive technology had a more profound impact than in financial services — and yet nowhere more do academics and policymakers lack a coherent theory of the phenomenon, much less a coherent set of regulatory prescriptions. Part of the challenge lies in the varied channels through which innovation upends market practices. Problems also lurk in the popular assumption that securities regulation operates against the backdrop of stable market gatekeepers like exchanges, broker-dealers and clearing systems — a fact scenario increasingly out of sync in 21st century capital markets. 
This Article explains how technological innovation not only “disrupts” capital markets — but also the exercise of regulatory supervision and oversight. It provides the first theoretical account tracking the migration of technology across multiple domains of today’s securities infrastructure and argues that an array of technological innovations are facilitating what can be understood as the disintermediation of the traditional gatekeepers that regulatory authorities have relied on (and regulated) since the 1930s for investor protection and market integrity. Effective securities regulation will thus have to be upgraded to account for a computerized (and often virtual) market microstructure that is subject to accelerating change. To provide context, the paper examines two key sources of disruptive innovation: 1) the automated financial services that are transforming the meaning and operation of market liquidity and 2) the private markets — specifically, the dark pools, ECNs, 144A trading platforms, and crowdfunding websites — that are creating an ever-expanding array of alternatives for both securities issuances and trading.

09 June 2015


'The Atomic Age of Data: Policies for the Internet of Things', an 83 page Aspen Institute report by Ellen P. Goodman explores
policy challenges for advancing the promise and mitigating the risks of the Internet of Things (IoT). The report begins by describing the distinctive features of the IoT and mapping its applications and architecture. Its policy examination and recommendations fall into six principal areas of focus: Privacy; Data as Infrastructure; Equity, Inclusion, and Opportunity; Civic Engagement; Telecommunications Networks; and Security. 
The Report explores some of these policy questions in the context of the “smart city” use case. 
Recommendations include:
  • Treat IoT data itself as infrastructure – an essential building block for all kinds of economic, social, and civic activity; 
  • Design-in security controls that reduce threats to connected devices and systems, and ensure that these security controls can be kept current;   
  • Design-in privacy controls that minimize collection of personally identifiable information and effectuate Fair Information Practice Principles; 
  • Promote broad accessibility of data and data analytics, which will require interoperable standards in many parts of the IoT ecosystem; 
  • Government should promote adoption and diffusion of technology, including building out IoT capabilities when it invests in infrastructure (known as a “dig once” proposal); 
  • IoT systems should ensure accessibility for the disabled and underserved through inclusion by design; The IoT should act as a vehicle for citizen participation and empowerment; 
  • Government should promote common standards for smart cities and other applications;
  • Government should use procurement powers and regulatory powers to promote privacy and security.