13 November 2015

Personhood and registration

'Why Personhood Matters' by Tamara R. Piety in (2015) 30 Constitutional Commentary comments
One of the most controversial aspects of Citizens United is the Court's treatment of corporate personhood. Many members of the public feel that the Court held that corporations are "just like people" and they feel this wrong. Yet many scholars argue that the concern for corporate personhood is misplaced. This article argues that corporate personhood is indeed an important part of the rhetorical strategy to suggest that making distinctions between corporations and persons, or between different types of corporations, is discriminatory and ought to be forbidden on that ground. Moreover, this rhetorical strategy allows the Court to elide more substantive justifications for the extension of fundamental rights to ordinary business corporations. The justifications that have been offered--corporate rights are merely a "pass through" to recognize the rights of the people who make up the corporation or corporate speech is protected for its value to the public -- are demonstrably inadequate. I argue that focusing on personhood suggests that not all corporations are equally good candidates to receive fundamental rights protection and because words have a powerful influence on our thinking, the personhood metaphor lends superficial credence to the notion that distinctions between types of corporate speakers is somehow invidious or that distinctions between commercial and non-commercial speech are discriminatory. Because this argument casts a constitutional shadow on a great deal of our regulatory law it seems worth exposing its weak foundation.
'From Registration of Deeds to Registration of Title: A History of Land Registration in Scotland' by Kenneth Reid in George Gretton and Kenneth  Reid (eds) Land Registration' (Avizandum, 2016 ) comments
 The origins of land registration in Scotland lie in a series of statutes of the sixteenth century. A later Act of 1617, still in force today, set up a national system of deeds registration. There was a choice between registration in a local register or in a central register in Edinburgh (the General Register of Sasines); and registration was constitutive of the real rights which the deeds sought to create. From the beginning the registers were open to the public. These early developments were a source of national pride. Towards the end of the seventeenth century, for example, Sir George Mackenzie commented that ‘Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers’. By the end of the nineteenth century, however, the pioneer country seemed in danger of being left behind. Beginning in South Australia in 1858, the ‘Torrens’ system of registration of title spread throughout the Australian colonies and then to many other parts of the British Empire. And in England, too, which had no national land register until the nineteenth century, the first hesitant steps were being taken for the introduction of registration of title. In the light of these developments, a Royal Commission was appointed in Scotland in 1906 to consider a switch from registration of deeds to registration of title but its members were unable to reach agreement. It was left to a second government committee, chaired by Lord Reid and reporting in 1963, to recommend the introduction of registration of title. The clinching argument was an expected reduction in transaction costs, and hence the prospect of cheaper conveyancing. Legislation to implement the Reid Committee’s recommendations was eventually passed in 1979. This paper explores the evolution of land registration in Scotland, analyses the key legal developments, and offers an evaluation of the move from registration of deeds to registration of title.

Internet Rights

'Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights' by Lex Gill, Dennis Redeker and Urs Gasser comments
The idea of an “Internet Bill of Rights” is by no means a new one: in fact, serious efforts to draft such a document can be traced at least as far back as the mid-1990s. Though the form, function and scope of such initiatives has evolved, the concept has had remarkable staying power, and now — two full decades later — principles which were once radically aspirational have begun to crystallize into law. In this paper, we propose a unified term to describe these efforts using the umbrella of “digital constitutionalism” and conduct an analysis of thirty initiatives spanning from 1999 to 2015.
These initiatives have great differences, and range from advocacy statements to official positions of intergovernmental organizations to proposed legislation. However, in their own way, they are each engaged in the same conversation, seeking to advance a relatively comprehensive set of rights, principles, and governance norms for the Internet, and are usefully understood as part of a broader proto-constitutional discourse. While this paper does not attempt to capture every facet of this complex political behavior, we hope to offer a preliminary map of the landscape, provide a comparative examination of these diverse efforts toward digital constitutionalism, and — most importantly — provoke new questions for further research and study.
The paper proceeds in four parts, beginning with a preliminary definition for the concept of digital constitutionalism and a summary of our research methodology. Second, we present our core observations related to the full range of substantive rights, principles and themes proposed by these initiatives. Third, we build on that analysis to explore their perceived targets, the key actors and deliberative processes which have informed their character, and the changes in their substantive content over time. Finally, we look forward, identifying future directions for research in this rapidly changing policy arena and for the broader Internet governance community.


The Information Privacy Law Scholars' Brief in Spokeo, Inc. v. Robins by Julie E. Cohen, Chris Jay Hoofnagle, Paul Ohm, Neil M. Richards, David Thaw, and Lauren E. Willis was
submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and to relieve pressure on public enforcement authorities. The Petitioner’s claim that Respondents cannot pursue it for its violations of the FCRA would unravel that bargain, preserving consumer reporting agencies’ broad immunity from suit while diminishing incentives to handle data fairly.
In an era in which employers increasingly practice “hiring by algorithm,” inaccurate consumer reports — even those that contain putatively favorable inaccuracies — can cause real economic injury to consumers. Such inaccuracies can lead employers to screen out prospective employees as overqualified or too well-paid. Alternatively, employers may suspect resume inflation and dishonesty if background checks reveal inconsistencies or unearned honors.
More generally, lawmakers historically have recognized and responded to non-economic and dignity-based injuries by creating rights of action to remedy such wrongs in court. The FCRA follows that pattern. In enacting the FCRA, Congress did not create injury but rather recognized the injury worked by improper disclosure and mishandling of information. Petitioner’s argument to the contrary threatens to upset numerous privacy, consumer protection, and other laws.

Delinquency Dataveillance

'Databasing Delinquency' by Kevin Lapp in Hastings Law Journal (Forthcoming) comments
For over a century, legislatures and officials have restrained the criminal justice system’s ability to collect information about youth. Databasing Delinquency explains how juveniles now find themselves indefinitely cataloged in sex offender registries, gang databases, and DNA databases. It documents the unprecedented breadth and permanence of law enforcement and court record-keeping. And it shows how schools have become mandated law enforcement informants. Moreover, services both public and private make this information available to law enforcement nationwide, employers, government agencies, colleges and the general public.
The expansion of this modern culture of “dataveillance” to youth has profound implications. It not only harms individual youth in permanent and stigmatizing ways, it reshapes the very meaning of childhood. Putting the developmental characteristics of youth, and childhood, at the center of the analysis, the article reveals the incoherence and destructiveness of databasing delinquency. Mindful of the public safety benefits and inevitability of law enforcement information gathering, the article calls for limits on the amount of information that the criminal justice system can gather, store and share about juveniles. This would add appropriate restraints so that public safety gains from databasing do not come at the expense of juvenile privacy, juveniles’ life chances, or childhood itself.

Blame it on mom

In analysing fraught family relationships the great Tom Lehrer sang
From the Bible to the popular song
There's one theme that we find right along
Of all ideals they hail as good
The most sublime is motherhood
There was a man though, who it seems
Once carried this ideal to extremes
He loved his mother and she loved him
And yet his story is rather grim
I'm reminded of that in reading 'Gangsta Rap Lyrics and Early Childhood Cruelties: are These Artists Searching for Enlightened Witnesses and Seeking to Reveal the Real Truth of Black Mother-Son Love' by Reginald Robinson in (2015) 5(1) Journal of Research in Gender Studies 73–92.

Robinson claims
few writers, feminists, and cultural commentators have actually understood why gangsta rap artists vilify women, especially blacks, with demeaning lyrics, often decrying words that wound as patriarchal oppression. Such critiques deny access to the deeper, more repressed sources for the murderous rage and corrosive hatred that such artists appear to have for black females. Rather, the author posits that the source of such rage and hatred is childhood cruelties of black infants and toddlers in the earliest years of their lives by black parents, especially females. That cruelty gets repressed, surfacing again as nearly autobiographical lyrics because these artists unconsciously need to reveal the truth of their cruel sufferings to others, and they need others like enlightened witnesses to validate their lyric-based personal histories, without at the same time directly confronting their cruel mothers.

Privacy Causes of Action in China

'Tort Liability for Online Privacy Violations in China: The 2014 SPC Regulation' by Scott Livingston and Graham Greenleaf in (2015) 136 Privacy Laws and Business International Report 24-27  comments
China’s Tort Liability Law (TLL) includes two articles protecting an individual’s right to privacy. Article 2 provides a civil right of action for violation of an individual’s “right to privacy” among other “civil rights and interests.” Article 36 specifically protects these civil rights and interests from online infringement. Yet there have been few reported cases to date, possibly because Chinese courts may not have understood how to apply Article 36 to privacy matters, and so may have been unwilling to accept such cases.
In a bid to clarify, China’s Supreme People’s Court (SPC) promulgated a Regulation which clarifies procedural questions relating to Article 36 while also taking the opportunity to add several new substantive provisions. This article analyses both the procedural and substantive aspects, and concludes that the SPC Regulation has the potential to place civil actions far more in the centre of the resolution of privacy disputes in China. It gives explicit guidance on many key points to all of China’s courts in how to deal with such cases, which will both encourage potential litigants and their lawyers to commence cases, and encourage the courts to deal with them. A specific reference to compensation up to US$80,000 may assist.
The authors' preceding 'The Emergence of Tort Liability for Online Privacy Violations in China' in (2015) 135 Privacy Laws and Business International Report 22-24 comments
Between 2009 and 2014, China’s legislative organs promulgated a series of fundamental data privacy laws and regulations. Amongst these developments is an increased attention to providing individuals a civil recourse (or tort action) in instances where their personal privacy has been violated by online activities.
This first part of a two-part article focuses on such protections as existed via China’s 1986 General Principles of the Civil Law (GPCL), and there subsequent codification in the 2009 Tort Liability Law (TLL). However, these developments have not, in themselves, led to a significant level of litigation, possibly due to uncertainly over how the TLL would function in this area. However some cases under the GPCL, notably the Wang Fei case, may have a continuing significance for the meaning of privacy under Chinese law, and on the role of intermediaries (IISPs).
The second part of the article will focus on an attempt to clarify some of these uncertainties, China’s Supreme People’s Court passed a regulation in October 2014 entitled “The Supreme People’s Court Regulations Concerning Some Questions of Applicable Law in Handling Civil Dispute Cases Involving the Use of Information Networks to Harm Personal Rights and Interests.” (SPC Regulation).