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Table of Contents

The Vengeful State: Responses by Democratic Governments to Unauthorized Public Disclosure of National Security Information

Peter Grabosky, Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Voter Primacy

Sarah C. Haan, University of Idaho College of Law

Privacy, Democracy and Freedom of Expression

Annabelle Lever, University of Geneva - Department of Political Science

The Meme of Voter Fraud

Atiba R. Ellis, West Virginia University - College of Law

The Role of Media Discourses in Undermining Trust in the Legal Profession

Rachel M. A. Spencer, University of South Australia - School of Law

Regulating Fear: The Case of Ebola in the United States

Arden Rowell, University of Illinois College of Law

Sponsored by Institute for the Study of the Judiciary,
Politics, and the Media (IJPM) at Syracuse University

"The Vengeful State: Responses by Democratic Governments to Unauthorized Public Disclosure of National Security Information" Free Download
Unsettling Transparency, by Benjamin Authers, John Braithwaite, Valerie Braithwaite, Peter Grabosky, Kate Henne, Kyla Tienhaara, Natasha Tusikov, and Grant Wardlaw, all of the Regulatory Institutions Network, Australian National University (forthcoming).
RegNet Research Paper No. 2014/42

PETER GRABOSKY, Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Recent disclosures by Bradley (now Chelsea) Manning and Edward Snowden have rekindled interest in the tension between state secrecy and the public’s right to know. In authoritarian political systems this is a non-issue, as there is neither pretence on the part of the state, nor expectation on the part of its citizens, that national security information should become the subject of public debate. By contrast, the difficulties faced by liberal democracies are real. While hardly anyone would suggest that national security should be managed in an environment of complete transparency, there are many who suggest that citizens of a democracy are entitled to know about acts of questionable propriety that have been committed by their government on their behalf. And prospectively, it is important for citizens to be party to informed discussion about whether the policies that may lead to these acts are misguided or not. This chapter addresses responses of democratic states to the unauthorised public disclosure of national security information. It is not concerned with espionage, the clandestine provision of one state’s confidential information to another. The analysis is based on five prominent cases, each occurring in one of five liberal democracies: France, Britain, Switzerland, Israel and the United States. Each case will examine the disclosure in question, whether the information revealed was indicative of illegality on the part of the state, and the media through which they were disclosed. It will then discuss the mobilization of law by the aggrieved government, including whether the state violated the law in the course of its response. The concluding section of this chapter will look back at the original disclosures and will address two fundamental questions: Was the information appropriately classified in the first place? What harm to national security resulted from the various disclosures?

"Voter Primacy" Free Download

SARAH C. HAAN, University of Idaho College of Law

This Article argues that Citizens United v. FEC expanded the constitutionally-cognizable audience for campaign finance disclosure to include a group that had never before been held relevant to compelled disclosure: corporate shareholders. In Part IV of Citizens United, the Supreme Court departed from more than thirty years of disclosure analysis to treat corporate shareholders as a target audience for corporate electoral spending disclosure, holding that the governmental interest advanced by campaign finance disclosure laws includes an interest in helping corporate shareholders “determine whether their corporation’s political speech advances the corporation’s interest in making profits.? This part of the opinion, which was joined by eight of the Court’s nine justices, was path-breaking but has been largely neglected and misunderstood.

To reveal the significance of this expansion of the audience for campaign finance disclosure, this Article compares voters’ and shareholders’ informational interests in campaign finance disclosure. After Citizens United, the main governmental interest that can justify campaign finance disclosure laws is an informational interest, and several justices on the current Supreme Court believe that voters lack legitimate informational interests in some kinds of electoral spending disclosure. Shareholder informational interests offer an alternative justification for laws that compel disclosure by corporate electoral spenders. In the coming years, the Court’s assessment of the relative merits of voters’ and shareholders’ interests in disclosure information may well determine the shape of compelled corporate registration, recordkeeping, disclaimers, and reporting. By clarifying the differences between a “voter primacy? and a “shareholder primacy? approach to corporate spending disclosure, this Article lays bare the consequences of choosing one over the other.

"Privacy, Democracy and Freedom of Expression" Free Download
Forthcoming in The Social Dimensions of Privacy, eds. Beate Roessler and Dorota Mokrosinska, (Cambridge University Press, 2014)

ANNABELLE LEVER, University of Geneva - Department of Political Science

Must privacy and freedom of expression conflict? To witness recent debates in Britain, you might think so. Anything other than self-regulation by the press is met by howls of anguish from journalists across the political spectrum, to the effect that efforts to protect people’s privacy will threaten press freedom, promote self-censorship and prevent the press from fulfilling its vital function of informing the public and keeping a watchful eye on the activities and antics of the powerful.1 Effective protections for privacy, from such a perspective, inevitably pose a threat to democratic government via the constraints that they place on the press. Nonetheless, this paper shows, privacy helps to secure democratic forms of expression, and reflection on democratic principles can help us to think about the claims to privacy of individuals when faced with an inquisitive press, or from enthusiastic biographers.

"The Meme of Voter Fraud" Free Download
Catholic University Law Review, Vol. 63, No. 4, 2014

ATIBA R. ELLIS, West Virginia University - College of Law

The idea that the political system is subject to rampant and invisible voter fraud has animated recent debates over the regulation of elections. Election integrity advocates have claimed that this threat justifies voter identification laws and other laws that have narrowed the ability for some citizens to vote, while voting-rights advocates have claimed that these measures are a form of voter suppression. These legal changes have occurred despite research that has demonstrated that virtually no actual voter fraud (specifically voter impersonation fraud) exists. While the consensus is that these voter suppression initiatives are driven by naked partisanship, this consensus fails to consider how longstanding ideological traditions about voter participation (and their interrelation with race, gender, and class myths) influence the debates over how to adequately regulate the right to vote.

This paper will propose a different theoretical framework to address the voter fraud myth: memetics. This paper argues that the most appropriate way to think about the myth of voter fraud is as a meme. A meme is “an idea, behavior, style, or usage that spreads from person to person within a culture? without regard to the truth or falsity of the idea. Memes spread because the ideas re-enforce the views of the purveyors of the meme and increase the purveyor’s power. In a sense, our memes can program us to accept or explain away ideas and can form the basis of our ideologies.

When viewed as a meme, the voter fraud claim can be analyzed as the latest variation on the ideology of exclusion of the “unworthy? from the franchise. The voter fraud meme replicates through both evoking myths and stereotypes about the worthiness of certain voters and motivates individuals and legislatures to replicate the meme through a belief that the unworthy voter will be a threat to the democratic process. This process of replication has contributed to the passage of voter identification and similar legislation, the popularity of heightened regulation of the voting process, and private acts of voter vigilantism. This account will demonstrate how the meme of voter fraud interferes either intentionally or inadvertently with the democratic value of inclusion and forces policymakers to fail to account for the effects of structural exclusion. Courts, scholars, and policymakers can use the analytic framework offered in this paper to more thoroughly understand the ideological forces behind the meme of voter fraud. This paper concludes by offering a framework by which courts and policymakers can separate the voter fraud meme and other such ideology from fact-driven analysis of right to vote issues.

"The Role of Media Discourses in Undermining Trust in the Legal Profession" Free Download
Spencer, Rachel (2013) 'The Role of Media Discourses in Undermining Trust in the Legal Profession', in Discourses of Trust, Palgrave Studies in Professional and Organisational Discourse, pp.220-234

RACHEL M. A. SPENCER, University of South Australia - School of Law

Law students are taught that client-centred practice is critical to the lawyer-client relationship, and that establishing an environment of trust is essential for appropriate advice to be given. It is confronting and confounding to note that the 2011 Readers Digest annual list of Australia's most trusted professions puts lawyers at number 33 out of 45 professions. Lawyers are apparently trusted more than politicians, sex workers and car salesman but not as highly as shop assistants, cleaners, hairdressers and mechanics. This chapter argues that the discourse deployed by media reports of court hearings can have a profound influence upon public trust in the legal profession. Indeed, media discourses can be seen to engender distrust in lawyers.

"Regulating Fear: The Case of Ebola in the United States" Free Download

ARDEN ROWELL, University of Illinois College of Law

A rash of recent news stories have documented Americans’ increasing fear of Ebola. That fear is unpleasant, and it can be costly and even dangerous. But it can also provide an opportunity for the government officials who will be coordinating the federal response to the risk of outbreak.

This short paper proposes a new way to think constructively about public fear. It argues that public fear presents regulators and government officials with the chance to help fear do what it is supposed to do: encourage people to pay attention to the things that imperil them. Regulators and government officials can battle Ebola — or indeed, any other highly dreaded risk — by identifying behaviors that can help individuals take control of their fears, while getting a kick-start to action that is “just as well? to do anyway.


About this eJournal

Sponsored by: Institute for the Study of the Judiciary, Politics, and the Media (IJPM) at Syracuse University.

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Law, Politics & the Media eJournal

Reporter, SCOTUSblog

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Supreme Court Correspondent, Legal Times/Incisive Media

Gordon Hirabayashi Professor for Advancement of Citizenship; Director, Comparative Law and Society Studies (CLASS) Center, University of Washington - Department of Political Science

William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College