Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens' Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become 'public-experts': citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens' Assemblies compared with traditional processes of change. The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies' may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or 'deliberatively rational') decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy

Patent Law - The Next-to-Last Step to Software Patentability?

Since the late 1960\u27s, the question of legal protection for computer software has been the basis for battle between the Court of Customs and Patent Appeals (CCPA) and the Patent and Trademark Office (PTO). The Patent Office generally has considered processes using mathematical formulas to be unpatentable subject matter under 35 USC § 101. The CCPA, considering appeals from the PTO Board of Appeals, consistently has reached the opposite conclusion. Prior to 1981, the Supreme Court delivered only three major decisions which addressed the issue. Although the Court did not find the inventions claimed in those cases to be patentable, it did not reject the possibility that claims involving computer programs could be patentable subject matter under § 101. The rapid technological advances in computers in the past thirty years have meant a tremendous growth in sales in the computer industry. The software industry has grown as rapidly as computer technology, because without software, computer hardware is useless. The question of patentability is one which the computer industry would like resolved quickly, because the profits in question could be sizeable if the courts hold that software is patentable. In the most recent attempt to resolve the battle between the CCPA and the PTO, the Supreme Court, in a 5-4 decision in Diamond v. Diehr, determined that a process which requires the use of a mathematical formula and a computer is patentable subject matter under § 101

Patent Law - The Next-to-Last Step to Software Patentability?

Since the late 1960\u27s, the question of legal protection for computer software has been the basis for battle between the Court of Customs and Patent Appeals (CCPA) and the Patent and Trademark Office (PTO). The Patent Office generally has considered processes using mathematical formulas to be unpatentable subject matter under 35 USC § 101. The CCPA, considering appeals from the PTO Board of Appeals, consistently has reached the opposite conclusion. Prior to 1981, the Supreme Court delivered only three major decisions which addressed the issue. Although the Court did not find the inventions claimed in those cases to be patentable, it did not reject the possibility that claims involving computer programs could be patentable subject matter under § 101. The rapid technological advances in computers in the past thirty years have meant a tremendous growth in sales in the computer industry. The software industry has grown as rapidly as computer technology, because without software, computer hardware is useless. The question of patentability is one which the computer industry would like resolved quickly, because the profits in question could be sizeable if the courts hold that software is patentable. In the most recent attempt to resolve the battle between the CCPA and the PTO, the Supreme Court, in a 5-4 decision in Diamond v. Diehr, determined that a process which requires the use of a mathematical formula and a computer is patentable subject matter under § 101

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strongman

This article revisits the zonal malapportionment and ‘Johrymander’ endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. Fitzgerald spent little time justifying his intuition that an unfair electoral system eroded accountability, and devolved to the Electoral and Administrative Review Commission (EARC) the task of rewriting Queensland electoral law. It did so by adopting precepts well established in other Australian jurisdictions; the process was one of liberalising, but not groundbreaking, catch-up. The Queensland example is intriguing for the paradoxes it presented. Bjelke-Petersen’s electoral manipulations merged pretence with openness. The concept of zonal weighting was given historical and policy justifications and cloaked behind the work of putatively independent commissions, yet its inherent partisanship was a notorious fact. More curious still, the manipulations were unnecessary either as a means of maintaining the conservatives in office or as a legal subterfuge evading constitutional constraints. Rather, Bjelke-Petersen’s pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves in power. Ultimately, as others had, Queensland’s government constructed a long-running but brittle form of agrarian chauvinism, in which the signalling of anti-democratic values inherent in the zonal system was an important rhetorical component. Bjelke-Petersen was proud to govern over, rather than through, democracy

Rights and Deliberative Systems

This article maps a significant area of contribution to (and control of) deliberative democratic systems: human rights enacted in law. Thus it takes up John Dryzek’s call for ‘close study of actual deliberative systems in the terms that theorists specify’. The article shows how the theory and practice of legal rights often provide a good fit with, and sometimes help to elaborate and advance, aspects of systemic deliberative democratic theory. One rationale for presenting a more detailed legal map of deliberative systems is descriptive: to look more comprehensively at the set of participants and activities within such systems. Yet the project may also be framed as normative. To try to ensure that legal rights do not displace, but rather align with, systemic deliberative democracy, courts and other legal actors may engage in what the article terms (pace John Hart Ely) ‘deliberative system reinforcement’

Deliberative or Performative? Constitutional Reform and the Politics of Public Engagement in New Zealand

A key assumption that shapes debates over deliberative constitutionalism is the idea that ‘deliberation’ versus the wielding political power based upon partisan influence somehow represent different poles of the constitutional-deliberative coin. This dualism is problematic. While the term ‘deliberation’ means careful consideration and purposeful and dispassionate decision-making, its adjectival form ‘deliberate’ may also imply ‘calculated’, ‘premeditated’ and ‘controlled’. How democracies deliberate is arguably an empirical and political question rather than a theoretical or normative one. This paper sets out to explore these themes in the context of New Zealand, a country that has had three major constitutional deliberations since 2005. Framed by government as ‘national conversations’ on ‘the future of New Zealand’, these include two initiatives aimed at engaging the public’s views on constitutional reform and a recent consultation over proposals to change the national flag. What is striking about these popular constitutional initiatives, however, is the lack of public engagement or serious government interest. We argue that these ‘non-event’ deliberations highlight one of the key challenges for deliberative constitutionalism: how to prevent instrumentalism and performativity from overshadowing the substantive. In developing our argument we draw on anthropological fieldwork on the role of the Crown in New Zealand and the Commonwealth. As we aim to show, the New Zealand case study highlights yet another problem for deliberative constitutionalism in practice: the difficulties of creating a meaningful public consultation when the main terms of reference (‘Crown’ and ‘Constitution’) are so ambiguous, amorphous and poorly understood

Robust Emulations of Shared Memory in a Crash-Recovery Model

A shared memory abstraction can be robustly emulated over an asynchronous message passing system where any process can fail by crashing and possibly recover (crash-recovery model), by having (a) the processes exchange messages to synchronize their read and write operations and (b) log key information on their local stable storage. This paper extends the existing atomicity consistency criterion defined for multi-writer/multi-reader shared memory in a crash-stop model, by providing two new criteria for the crash-recovery model. We introduce lower bounds on the log-complexity for each of the two corresponding types of robust shared memory emulations. We demonstrate that our lower bounds are tight by providing algorithms that match them. Besides being optimal, these algorithms have the same message and time complexity as their most efficient counterpart we know of in the crash-stop model