Part One: Assessing Law Outputs explains the Higher Education Research Data Collection (HERDC) in relation to law.Part Two: Research Assessment Codes evaluates the fit of FOR codes with current legal research areas, making recommendations for appropriate accommodation of several new research specialisations to provide a clearer picture of the diversity of legal research and assist in assignment of grant assessors. Part Three: Specialist Law Journal Ranking provides a brief explanation of the heritage of the ARC ERA2010 journal ranking list and a discussion of its reliability. It also evaluates current research specialisations with respect to journal rankings in order to provide feedback on areas where little is known about publication venues. Part Four: General Law Journal Ranking analyses ERA 2010 ranked A and A* Australian General Law Journals by subject area and author alignment, to provide a clearer understanding of the ambit of these prestigious publication venues.

Neither the report nor its recommendations have been formally endorsed by CALD at this time.

One of the s48(2) reports issued in 2010 was on the ‘Octopus’ case, which involved the transfer of personal data of users of the widely-used Octopus contactless-card payment system to third-parties for direct marketing purposes. The PC issued s48(2) reports in June 2011 in respect of four of the bank cases in which he named the banks, and announced that such naming ‘will henceforth be adopted for all investigation reports published under section 48(2) of the Ordinance’, subject to certain exceptions. He is is the first personal data authority in the Asia-Pacific to explicitly adopt ‘naming and shaming’ of data users found to have been in breach as a means of promoting compliance with personal data legislation.

This article examines a wide variety of s48(2) reports on the following issues: the CITIC Bank case, where there was mass infringement, but no real penalty, on data retention, on fees for data access which were excessive, on disclosure of details of a debtor’s relatives, on unfair collection practices and improper use of public register information, and where covert monitoring was unfair collection. Other than in the debt collection case, the PC did not serve an enforcement notice in any of the cases summarised above because he was not of the opinion that the breaches found by him had occurred in circumstances that made it likely they would continue or be repeated.

The most recent s48(2) reports relate to “paparazzi” style photo journalism using systematic surveillance and telescopic lens photography to take clandestine photographs of TV personalities within their private residences. In both cases, the PC found that the taking of the photographs amounted to collection of their personal data by unfair means contrary to DPP1(2). He served enforcement notices directing the magazines to remedy their contraventions and the matters occasioning them. The details of the enforcement notices are, however, omitted from the published versions of the PC’s reports.The two magazines have appealed to the Administrative Appeals Board. The article also examines a number of criminal prosecutions resulting from breaches of the Ordinance which have resulted in small fines. The PC commented that ‘the current level of fine is too low to be of deterrent effect, especially for organizational data users’. The overall conclusion is that the PC is tackling a wide variety of compliance issues in spite of the limitations on his formal powers of enforcement, and the absence of powers to order compensation or other remedies, as well as the inadeuqate penalties imposed by Courts.

Malaysia’s Personal Data Protection Act of 2010 has not yet been brought into force, primarily because the government has not appointed a Personal Data Protection Commissioner as required by the Act. The Malaysian government has now indicated it is considering bringing the Act into force without a Commissioner. This article considers whether such a move could result in serious enforcement.

The Philippines Senate passed the Data Privacy Act of 2011 on 20 March 2012, but the Senate Bill differs from House Bill 1554 passed in 2011. There must now be a bicameral conference committee to ‘reconcile’ the versions of the two houses, and then the reconciled version will be sent to the President for signature after its passage by both Houses. No timetable has been set. This article examines the main features of the Senate Bill, including its attempt to exempt outsourcing of foreign personal data, which may reasult in a Phyrric victory for outsourcers if it makes it impossible for the European Union to find that Philippines law is ‘adequate’.

Singapore’s Ministry of Information, Communications and the Arts (MICA) has issued a draft Personal Data Protection Bill, and further consultation paper, while calling for submissions. The data protection principles in the draft Bill are to OECD or better standard in relation to access, correction, data quality, security, notice and deletion/de-identification. However, it does not have specific provisions restricting data exports. Contrary to suggestions in the previous consultation paper, the Bill does not include special protection for some forms of sensitive data; nor an ‘opt-in’ by industry sectors for its more onerous principles; nor an ‘opt-out’ for industry sectors (with DPC permission) from some of the basic principles. The draft Bill therefore appears to be a minimal version of a ‘normal’ data privacy law, rather than the somewhat derisory version promised by the earlier consultation paper.

The article highlights some interesting comparisons: Whereas Malaysia seems intent on abandoning its enacted (but not appointed) data protection authority, both the Philippines and Singapore are going ahead with enacting laws establishing DPAs. Whereas the laws in neither Singapore or Malaysia will cover the public sector, the Philippines law will do so. The Malaysian law does not seem to include a means for complaints to make claims for compensation, but both the Singaporean and Philippnes laws do so. ASEAN member countries have agreed to develop ‘best practices / guidelines’ on data protection (but not to legislate) by 2015, as part of their commitment to establish an integrated ASEAN Economic Community (AEC) by 2015. It is an area to watch.

The data privacy principles in the Regulations are analysed here in accordance with the usual division of privacy principles found in such instruments as the OECD Guidelines, and other principles developed since then. They are on the one hand surprisingly comprehensive, but on the other hand have a couple of major omissions. The enforcement methods in the Regulation are diverse, but primarily at the initiative of the Telecommunications Authorities. They do not include civil damages provisions, but these may be provided by other aspects of Chinese law, read in conjunction with these Regulations.

Commentators on China’s Internet industry expect that these Regulations will be actively enforced, in part as a result of a string of widely publicised unauthorized disclosures of user information by Internet companies in 2011, and that some industry sectors will have considerable compliance problems. The article concludes with reasons for the significance of these Regulations, and how they compare with international standards. The Regulation is a very significant step for China, even if it would be a very limited one in other countries.

In this information age documentation relating to a case is not simply stored in manila folders and filing cabinets, but it is stored electronically in various forms and in a range of (virtual) locations. ESI is data that is stored on an electronic medium, usually a computer or server, and which is accessed through some form of computer program. For example it includes an email, database, Word document, PowerPoint presentation or spreadsheet. ESI by its nature is voluminous as it is easily duplicated. It has replaced the telephone, postal service, face-to-face meetings and even conversations. It can be difficult (although not impossible) to delete. It gives rise to metadata or data about data. ESI is also dynamic; the information can change with time or through the routine operations of the information technology environment, and frequently is incomprehensible when separated from the system that created it.

The volume of ESI is particularly significant for discovery purposes as traditionally the cost of finding information, reviewing it for relevance and examining it for privilege is directly related to the number of documents. The importance of ESI may be illustrated by research that estimated that worldwide email traffic will total 247 billion messages per day in 2009 and in 2013, this figure will almost double to 507 billion messages per day. However, in 2009, about 81% of all email traffic was spam.

Beyond increased volume, ESI can cause many other issues which also increase cost and delay, such as determining the location of ESI, sorting responsive ESI from irrelevant ESI, seeking to retrieve ESI that may have been lost by deletion, overwriting, or recycling. In addition, there is a concern with being able to preserve legal professional privilege that may be strewn amongst vast amounts of documentation. Furthermore, beyond the office, social media such as Facebook and Twitter have created additional avenues for the creation of "documents" which may need to be considered in discovery searches.

There are a few ways in which issues with regards to ESI can be minimised, and this article will consider case management, the pre-discovery conference, and the deposition as potential tools to this end, in addition to discussing in further detail the problems foreshadowed above. These different approaches to discovery allow for a better response to the unique problems of ESI and may be the path to smooth sailing through the oceans of discovery documents.

Two examples of deregulatory agency action are explored in detail. The implementation of the 2004 Final Rule governing the provision of eligible liquidity facilities to asset-backed commercial paper conduits is evaluated and found to almost certainly fail a “clearly erroneous” standard of judicial review. The second example reviews Omarova’s study of the process by which the “business of banking” was reinterpreted to include trade in derivatives; the method of legal analysis that supported this reinterpretation was rejected by the D.C. Circuit. Both of these actions were implemented using interpretive rules, and in both cases these deregulatory actions have not faced legal challenge.

This article argues that the combination of the growing use of interpretive rules and the application of doctrines determining who has standing to challenge the actions of the financial regulatory agencies in court forces agencies to favor deregulatory action over regulatory action. The article proposes (i) that every financial regulatory statute be amended to include a “citizen suit” clause and that courts uphold the right of citizens to sue under such clauses, and (ii) that a division of the Consumer Financial Protection Bureau be created that is dedicated to opposing the policy proposals made by regulated parties to financial regulatory agencies.

Jackson’s response to the Cold War era was twofold. In cases involving members of the Communist Party, he argued that they were different in kind from other dissenters, so that the Justice who argued that the rule of law should apply to Nazi leaders also argued for a departure from applicable first amendment analysis because of the dangers posed by communism. In the area of war-related powers, Jackson took up more directly the ambiguous character of an era that seemed neither wartime nor peacetime. In this context, he favored limits on presidential power. Calling the Korean War an undeclared “foreign venture,” he argued in his famous Steel Seizure concurrence that it would subvert constitutional limits for a president to go to war without a declaration from congress, and then use that state of war as the basis for expanding his own domestic authority.

The essay is based on my contribution to the 2011 James McCormick Mitchell Lecture program at SUNY Buffalo Law School, which commemorated Robert Jackson’s inaugural Mitchell Lecture in October 1951.

After a detailed examination of the nature of secured credit and the historical evolution of the treatment of secured claims in bankruptcy, this paper first explains why, on the statute as written in 1978, Congress intended for secured creditors to have the right to credit bid in a sale under a cram down plan, and did not intend for that right to be supplanted by an alternative indubitable equivalent treatment. However, the paper then demonstrates how the financial world for which the 1978 Code was written has fundamentally changed, with the rise of dominant secured creditors. That change has upset the balance of power, rendering the Code’s scheme obsolete as regards secured creditors in this context.

The paper then asks what can and should be done, either judicially or legislatively, to address the problem of chapter 11’s obsolescence. As a matter of statutory interpretation, a “faithful” Court should be bound to uphold the secured creditor’s right to credit bid, although a dynamic interpretation might counsel otherwise. Legislatively, the time has come to amend the Bankruptcy Code to reverse the default rule on credit bidding; suggested Code amendments are offered. Contrary to the virtually unanimous body of scholarly opinion, the paper argues that credit bidding should not presumptively be required. Instead, a secured creditor should be permitted to credit bid only if it makes a specific showing of “cause” to the court, demonstrating how denial of that right would prejudice the secured creditor in the particular case.