Journal articles on the topic 'Community-based court orders'

The native court in Malaysia comprises of Mahkamah Anak Negeri Sabah and Mahkamah Bumiputera Sarawak. The existence of this court is recognised by the Malaysian Government and they are mentioned in the Federal Constitution of Malaysia. Although these courts are given power and authority in dealing with the personal law of natives in each state, there are challenges in enforcing post-divorce orders made by these courts. This article is significant since there is a dearth of study on this topic. The main objective of this article is to examine the enforcement of post-divorce orders of native courts within East Malaysia. It will also explore the problems and challenges of divorcees in enforcing divorce orders and provide recommendations to improve the existing system. This article adopts library-based and qualitative research method which consists of group discussions and interviews with the village headman (ketua kampung), headman (penghulu), community leader, native courts’ judges, native court of appeal’s judge, registrar of native court and several divorcees. The result of this research identified four challenges vis-a-vis: the capability to find the husband upon the issuance of the divorce order; second, husband’s default payment of maintenance; lack of manpower in enforcing the order and lastly, husband’s conversion to Islam. Thereafter, this article suggests that the government could provide assistance by empowering court bailiffs or enforcement bodies, increasing funding and to designate a special department for enforcement of divorce orders

A large proportion of youthful offenders who enter the juvenile justice system have psychiatric disorders and psychosocial risk factors that perpetuate delinquency, and addressing these issues has been a growing concern of juvenile courts nationwide. This study examines the relationship between the clinical information provided through comprehensive forensic assessments and clinicians' recommendations for placement (community setting vs. secure facility) and judges' sentencing decisions. The sample included 248 youth, ranging from 11 to 17 years old, who were adjudicated in the Cook County (Chicago) Juvenile Court. A reliable and valid approach for coding psychosocial variables is also presented as a prototype for future research. Consistent with previous studies, results show that judges are inclined to adopt clinical recommendations and that the material provided by comprehensive clinical evaluations could diminish the effects of offense and delinquency-based factors on dispositions.

This study uses propensity score matching to test the proposition that imprisonment deters future criminal activity among juvenile offenders. Using data from all court appearances of juveniles in the NSW Children’s Court (Australia) between 2003 and 2004 ( N = 6196), the reoffending of a group of young offenders sentenced to control (i.e. custodial) orders ( N = 376) was compared to a matched group of offenders receiving community-based sanctions. No differences were observed between the two groups. The young offenders given detention orders had a slightly lower rate of reoffending, but this difference was not significant. The results of this study indicate that, over the time period examined in this study, the imposition of a custodial sentence had no effect on the risk of reoffending.

Purpose The purpose of this paper is to determine recidivism costs and benefits for 1,030 community-based male offenders enrolled in a domestic abuse program (DAP) compared to an untreated control group (n=1,030) matched on risk factors. Design/methodology/approach The study time frame was October 1, 2007-June 30, 2010 with reconvictions measured to December 31, 2010. Follow up averaged 19 months. Controls received standard community supervision, but no domestic violence group interventions. Follow up measures included court costs for violent and non-violent reconvictions; re-incarcerations and community-based orders costs measured in days. Findings Adjusting for time at risk, DAP enrollees had 29 percent fewer reconvictions, 46 percent fewer violent reconvictions, 34 percent fewer custodial days, but 23 percent more days on community orders. Costs: DAP enrollment avoided $2.52 M in custodial costs, but higher community correction costs (+$773 K) and court costs (+$5.8 K), reducing the DAP’s criminal justice system cost savings to $1.754 M ($8.92 M for the DAP group compared to $10.67M for controls). Cost benefits: when the 64 DAP program costs were deducted ($602 K), the net benefit to the New South Wales criminal justice system was $1,141 M, or $1,108 per enrollee, providing a net benefit/cost ratio of 2.89. If the DAP was completed, the net benefit was $1,820 per offender. These results compares favorably to economic evaluations of other community-based interventions. Practical implications Group interventions for domestically violent (DV) offenders can provide good investment returns to tax payers and government by reducing demand on scarce criminal justice system resources. The study provides insights into justice costs for DV offenders; a methodological template to determine cost benefits for offender programs and a contribution to cost-effective evidence-based crime reduction interventions. Originality/value Using a rigorous methodology, official court, custodial and community correction services costing data, this is the first Australian cost benefit analysis of a domestic violence group intervention, and the first to justify program expenditure by demonstrating substantial savings to the criminal justice system.

Objective: Involuntary outpatient commitment (OPC)—also referred to as ‘assisted outpatient treatment’ or ‘community treatment orders’—are civil court orders whereby persons with serious mental illness and repeated hospitalisations are ordered to adhere to community-based treatment. Increasingly, in the United States, OPC is promoted to policy makers as a means to prevent violence committed by persons with mental illness. This article reviews the background and context for promotion of OPC for violence prevention and the empirical evidence for the use of OPC for this goal. Method: Relevant publications were identified for review in PubMed, Ovid Medline, PsycINFO, personal communications, and relevant Internet searches of advocacy and policy-related publications. Results: Most research on OPC has focussed on outcomes such as community functioning and hospital recidivism and not on interpersonal violence. As a result, research on violence towards others has been limited but suggests that low-level acts of interpersonal violence such as minor, noninjurious altercations without weapon use and arrests can be reduced by OPC, but there is no evidence that OPC can reduce major acts of violence resulting in injury or weapon use. The impact of OPC on major violence, including mass shootings, is difficult to assess because of their low base rates. Conclusions: Effective implementation of OPC, when combined with intensive community services and applied for an adequate duration to take effect, can improve treatment adherence and related outcomes, but its promise as an effective means to reduce serious acts of violence is unknown.

BackgroundViolent behaviour among persons with severe mental illness (SMI) causes public concern and is associated with illness relapse, hospital recidivism and poor outcomes in community-based treatment.AimsTo test whether involuntary out-patient commitment (OPC) may help to reduce the incidence of violence among persons with SMI.MethodOne-year randomised trial of the effectiveness of OPC in 262 subjects with psychotic or major mood disorders and a history of hospital recidivism. Involuntarily hospitalised subjects awaiting OPC were randomly assigned to release or court-ordered treatment after discharge. Those with a recent history of serious assault remained under OPC until expiry of the court order (up to 90 days); then OPC orders were renewed at clinical/court discretion. Control subjects had no OPC. Four-monthly follow-up interviews with subject, case manager and collateral informant took place and service records were collected.ResultsA significantly lower incidence of violent behaviour occurred in subjects with ⩾6 months' OPC. Lowest risk of violence was associated with extended OPC combined with regular out-patient services, adherence to prescribed medications and no substance misuse.ConclusionsOPC may significantly reduce risk of violent behaviour in persons with SMI, in part by improving adherence to medications while diminishing substance misuse.

This conference was held in Central London in January 1998 and organised jointly by The British Juvenile and Family Courts Society (BJFCS) and The National Association for the Care and Resettlement of Offenders, at which the keynote speaker was The Rt. Hon. Jack Straw MP, the Home Secretary. Important contributions were also made by no fewer than nine members of the Government's Task Force set up in May last year to examine the future of the Youth Courts — a task which, in my opinion as a Youth Court magistrate since 1978 and past chairman of the BJFCS, was ripe for attention. The conference was attended by 300 delegates representing a wide range of professionals involved with young people and the courts.The Home Secretary's opening words emphasised both the timeliness, in view of the Crime and Disorder Bill going through Parliament, and the importance of the conference because of the widely held view that the system was failing. In addition a consultation process was taking place to look at longer-term reform of the Youth Court. The Home Secretary spelled out that too little is done when children start to offend to ‘intervene positively’ in their lives; repeat cautions are used ineffectively; re-offending continues on bail; and there is a lack of supervised community-based programmes aimed at making young people take responsibility for their behaviour, make amends, and change. He drew attention to the disjointed system of both custodial facilities and orders that need to be overhauled. Finally he pointed out that there is a lack of a national strategy.

This study aims to guide judges to the Religious Courts in realizing substantive justice about divorce decisions. Based on the Presidential Instruction on the Compilation of Islamic Law and the books of fiqh, if the wife filed for divorce, then she did not get a living from the ex-husband. However, there is a rule of a Supreme Court Circular, the rule is a wife filed for divorce, but she got a living from her ex-husband except for nusyus. The method is normative juridical with a paradigmatic study of Guba and Lincoln. In the ontology of the postpositivism paradigm, the judge views reality as imperfect rules. Therefore, the judge is obliged to explore the laws that live in the community. Epistemology is a rule that has limitations so that it adapts to situations and conditions, but judges must remain objective. The methodology goes from verification to falsification. Because the judge needs to criticize and falsify the injustice that occurs at trial for the wives, for example, the husband of a civil servant feels that he is difficult by the rules, so he orders his wife to sue for divorce which results in not getting a living from her ex-husband

Some twenty years ago, the importance of international law, particularly for practical purposes, could be described as marginal in national legal orders in the socialist Central and Eastern European (CEE) Countries. The main reason for this was the dualist approach in regard to international law. Fundamental political and economic changes, such as the Velvet Revolution in Czechoslovakia, marked the end of the cold war and the beginning of a transition process. The changes in national legal orders have been accompanied by substantial modifications in the area of constitutional law, mostly resulting in the adoption of entirely new or radically modified constitutions. This is true also for the Czech Republic, Slovakia, Poland and the Russian Federation. One of the most remarkable common characteristics of the new constitutions of the CEE countries is the shift from a dualistic approach to a broad openness to international law. Despite this common feature the manifestation of this openness cannot be regarded as uniform – the methods used by states to deal with international law and to ensure the conformity of the domestic legal order with their international obligations vary. The common denominator of the constitutional orders under review is the fact that the rules of international law are considered to be a part of their national legal orders. General provisions concerning the relationship between national law and international law can be found in the Czech, Russian and Polish constitutions, but not in the Slovak constitution. The common feature of all four constitutional texts is that they take a clear position on the status of treaties, stipulating conditions (approval by parliament, promulgation, etc) under which a treaty or certain categories of treaties (eg as listed by Article 49 of the Czech Constitution) will be considered to be part of the national legal order, as well as the hierarchical status of treaties in the case of a conflict with national law. In all four countries under consideration, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. The situation is considerably different in regard to the role of customary international law: only the Russian Constitution includes not only treaties but also customary international law in the legal order. Nevertheless, Slovak, Czech and Polish constitutional provisions stipulate the commitment of the states to fulfil their obligations under international law, including customary international law. Even though legally binding, these provisions are not identical with general provisions incorporating certain categories of international law as stated above. The openness to international law is demonstrated also by the inclusion of provisions pursuant to which states can transfer certain powers to international organizations. (Such provisions were included in the constitutions of e.g. Slovakia, Poland and the Czech Republic in the context of their integration into the EU for the purpose of ensuring the direct application of Community law.) Thus, if considering the formal openness to international law, a high degree of willingness to open the domestic legal orders to international law can be discerned in the constitutional systems of the states under review. However, the extent of constitutional provisions on the relation of a particular state to international law does not necessarily strengthen its application in practice, as can be observed in the legal order of the Russian Federation. When determining the factual status of international law and its incorporation in the domestic legal orders of the CEE countries, the judicial practice of national courts is of great importance, in particular the judicial practice of constitutional courts. The question of the role of international law in the decisions of constitutional courts appears to be even more interesting because of the fact that implementation of constitutional jurisdiction belongs to one of the most important innovations of CEE transition countries after the end of the cold war. Their broad competencies in respect to international law can be seen as an additional indicator of the openness of their legal orders towards supranational legal rules. International law plays an important role not only as a subject of judicial review but also as a criterion of constitutionality applied in national procedures before the constitutional courts. The extensive jurisprudence of national constitutional courts based on international law is to a large extent characteristic of the CEE Countries. Their constitutional courts often rely on international law, especially human rights, when reviewing the constitutionality of domestic acts. This underlines the fact that general constitutional provisions on international law do not remain only a ‘dead letter.’ However, when demonstrating their openness towards international law, constitutional courts sometimes exceed the limits of their competences, as can be observed e.g. in the case of the Czech Constitutional Court. (Despite the fact that the changes introduced by the Constitution in 2001 caused it to lose the competence to use international law as a criterion for its decisions, the Court continued to base its decisions partly on international law.) Generally it can be argued that the acceptance of international law is remarkably high in the legal orders of the countries under review – in particular when taking into consideration the relatively short time which was needed not only to formally ensure the role of international law, but also to ensure its implementation in practice, most notably in the judicial practice of constitutional courts. This does not mean, however, that there are no difficulties which have to be solved in the future. The application of customary international law by national courts is an example of this. However, the opening of national legal systems of the formerly totalitarian states towards international law has undoubtedly had a positive influence on the process of their transformation towards the rule of law.

In its judgment No. 238/2014 the Italian Constitutional Court, whilst appearing to show respect for the ICJ’s 2012 judgment in Jurisdictional Immunities of the State, makes notable criticisms of that judgment and insists on its own role in the progressive development of international law in the field of State immunity. In particular, the main legal argument of the Constitutional Court, based on the fundamental and inviolable character of the right of access to justice in constitutional law, can also be used, although modified to some extent, in international law. The Court’s argument can also resolve the possible conflict between the international norm of State immunity, on the one hand, and the international norms on fundamental human rights and access to justice, on the other. The present contribution seeks to demonstrate that: (a) the right of access to justice and the connected right to reparation for violations of fundamental human rights are established by two customary international norms; (b) there is a potential conflict between these norms and the norm of State immunity; (c) this conflict becomes real and concrete when the limits on access to justice and reparation laid down by immunity are unjustified in accordance with the rule of “equivalent protection”; and (d) the solution to that conflict derives from the normative superiority of the customary norms on access to justice and reparation (being peremptory in nature when functionally linked to the violation of fundamental human rights) over the norm of State immunity. The judgment of the Constitutional Court, utilizing legal reasoning that can also translate to the level of international law, demonstrates that osmosis may occur between the arguments used in constitutional and international law, and that today there is growing interaction between the domestic and international legal orders and their common values. The law of human rights, placed at the very center of the Constitutional Court’s judgment, is the field in which this community of values emerges most clearly.

Abstract Indonesia is a country that is limited by the constitution, in accordance with the provisions of Article 1 paragraph (2) and (3) of the 1945 Constitution. What is carried out by the executive, legislative, and judicial institutions with different roles, functions and tasks that do not intervene with each other, but are interconnected and intersecting. For example, the DPR Questionnaire Rights to the KPK raises pros and cons, because there are those who think that the KPK cannot be submitted to a questionnaire, but there are those who think that the KPK can also be asked for a questionnaire by the DPR. Questionnaire rights are one of the rights owned by the DPR in carrying out the supervisory function by conducting an investigation of the implementation of a law and/or government policy relating to important, strategic, and broad impacts on the life of the community, nation and state that are allegedly contradictory with the law. KPK is a state institution formed based on the Law so that it is an Organ of Law, but that does not mean that the state institution has no legal or unconstitutional position. KPK is not explicitly mentioned in the 1945 Constitution, but both have constitutional importance in the constitutional system, and even the Constitutional Court states that the term state institution is not always mentioned in the 1945 Constitution, but also formed on the basis of orders from regulations under the constitution. Thus the existence of the KPK as an institution tasked with eradicating corruption is not outside the constitutional system, but instead is placed constitutionally and acknowledged its existence in the constitutional system as one of the state institutions. Keywords: DPR, Hak Angket, KPK

RESUMO: O objetivo do presente trabalho é analisar o principio da sustentabilidade na jurisprudência do Supremo Tribunal Federal, a partir da perspectiva do transconstitucionalismo. O meio ambiente ecologicamente equilibrado vem objeto de inúmeros debates, em nível internacional, inclusive no campo econômico, acerca da necessidade de adoção de medidas internacionais que levem em considerações as questões ecológicas e sociais, a ponto de realizar o enquadramento legal dos países que lucram com a poluição e o desmatamento. No campo da exportação, a comunidade européia também vem avançando na restrição ambiental aos produtos importos fruto de desmatamento. No Brasil os retrocessos a questão ambiental são sentidos na exploração de madeira ilegal e na destruição e queimadas realizadas na Amazônia. Sendo assim, a hipótese a ser desenvolvida engloba o meio ambiente como direito humano e consituticional, previstos nas normativas de direitos humanos e nas constituições modernas, mas requer uma abertura de um dialgo constitucional, levando em consideração, entrelaçamento de novas ordens jurídicas multiplas (local, supranacional, internacional, extraestatal), na construção de novas pontes transconstitucionais. O trabalho desenvolveu, na primeira parte, o aporte teórico do transconstitucionalismo, a partir da metáfora grega de Cilas e Caribdis; buscou, delimitar os conceito e noções elementares da perspectiv transconstitucional. Buscou-se no segundo momento, analisar o princípio da sustentabilidade nas convenções internacionais de direitos humanos. Por fim, constatou-se que a ideia de sustentabilidade, a partir dos postulados do tranconstitucionalismo, ainda que de forma indireta vem ganhando presença no âmbito do Supremo Tribunal Federal, a partir da análise do Recurso Extraordinário (RE)nº 627.189/SP, em que foram aplicadas diversas normativas de ordem jurídicas diversas, num caso que envolveu ato de concessionária de energia elétrica na redução de eletromagnéticos prejudiciais a sáude e ambiente de trabalho. PALAVRAS-CHAVE: Direito Ambiental, desenvolvimento sustentável e transconstitucionalismo. ABSTRACT:The objective of the present work is to analyze the principle of sustainability in the jurisprudence of the Supreme Federal Court, from the perspective of transconstitucionalismo. The ecologically balanced environment has been the subject of numerous debates, internationally, including in the economic field, about the need to adopt international measures that take into account ecological and social issues, to the point of achieving the legal framework of countries that profit from pollution and deforestation. In the field of exports, the European community has also been advancing in the environmental restriction on imported products resulting from deforestation. In Brazil, the setbacks to the environmental issue are felt in the exploitation of illegal wood and in the destruction and burning carried out in the Amazon. Therefore, the hypothesis to be developed encompasses the environment as a human and constitutional right, as provided for in human rights regulations and in modern constitutions, but requires an opening of a constitutional dialogue, taking into account the interweaving of new multiple legal orders (local , supranational, international, extra-state), in the construction of new transconstitutional bridges. The work developed, in the first part, the theoretical contribution of transconstitutionalism, based on the Greek metaphor of Cilas and Caribdis; sought to delimit the concepts and elementary notions of the transconstitutional perspective. The second step was to analyze the principle of sustainability in international human rights conventions. Finally, it was found that the idea of sustainability, based on the postulates of tranconstitutionalism, albeit indirectly, has been gaining presence within the scope of the Supreme Federal Court, based on the analysis of Extraordinary Appeal (RE) No. 627.189 / SP, in that several different legal rules have been applied, in a case that involved an act of electric utility in the reduction of electromagnetic harmful to health and work environment. KEYWORDS: Environmental Law, sustainable development and transconstitutionalism

Scientific study on adat law starts from empirical research, which finds that adat law does not stand alone but works together with other legal orders. This paper is written based on normative legal research by collecting secondary data to answer (1) how legal pluralism explains adat law and adat law community; and (2) how the application of legal pluralism approach in adat law study. The legal pluralism approach explains adat law not as an isolated/marginalized legal order but as a dynamic legal order which interacts with national and international law. From the perspective of legal pluralism, the adat law community is a semi-autonomous social field that produces rules from the interplay between the adat law community and other legal communities/institutions. Categorization of legal pluralism approach application are as follow: first, weak legal pluralism where state law recognizes adat law either by law and regulation or court decision; second, strong legal pluralism which describes through the semi-autonomous social field, shopping forum, and forum shopping concept; third, legal pluralism multi-sited which explain the relationship between legal phenomena in local, national, and international level; and elaborate the role of information, communication, and technology which bridges legal phenomenon from one to another. Abstrak Kajian ilmiah terhadap hukum adat berangkat dari penelitian lapangan yang menemukan bahwa hukum adat tidak pernah berdiri sendiri dan selalu berinteraksi dengan tertib hukum yang lain. Artikel ini ditulis berdasarkan penelitian hukum normatif dengan mengumpulkan data sekunder berupa laporan-laporan penelitian dan artikel jurnal untuk untuk menjawab (1) bagaimana pendekatan pluralisme hukum menjelaskan hukum adat dan masyarakat hukum adat; dan (2) bagaiamana pendekatan pluralisme hukum digunakan dalam studi hukum adat hari ini. Pendekatan pluralisme hukum memahami hukum adat tidak sebagai suatu ketertiban hukum yang terpisah atau termarginalisasi dari ketertiban hukum yang lain, tetapi secara dinamis terus berinteraksi dengan hukum nasional maupun internasional. Dari perspektif pluralisme hukum, masyarakat hukum adat merupakan suatu wilayah sosial semi otonom yang melahirkan hukum berdasarkan hubungan saling memengaruhi dengan masyarakat hukum lain. Penerapan pendekatan pluralisme hukum dalam studi hukum adat dapat dikelompokkan dalam tiga kategori. Pertama, pluralisme hukum lemah di mana negara mengakui hukum adat baik melalui peraturan perundang-undangan maupun putusan pengadilan. Kedua, pluralisme hukum kuat yang dideskripsikan melalui konsep wilayah sosial semi-otonom, forum shopping, dan shopping forum. Terakhir, pluralisme hukum multi-sited yang digunakan untuk menjelaskan hubungan berbagai fenomena hukum antara hukum adat (lokal), nasional, dan internasional serta peran teknologi informasi dan komunikasi dalam menjembatani hubungan tersebut.

Jednym ze znaczniejszych skupisk ludności żydowskiej w Wielkopolsce w XVIII w. było królewskie miasteczko Rogoźno, ośrodek starostwa niegrodowego w powiecie i województwie poznańskim W 1765 r. zamieszkiwało w nim około 448 Żydów tworzących własny kahał (gminę), na czele którego stali rabin i dwóch seniorów, a zarazem ławników sądu kahałowego, z których jeden pełnił zapewne funkcje pisarza i zarazem syndyka. Publikowany przywilej Antoniego Szołdrskiego starosty-tenutariusza rogozińskiego i grodowego łęczyckiego dla Maśka Lewka z Łęczycy, wydany 12 lutego 1765 r. we wsi Gościejewo, stanowi zgodę na wybór i zarazem nominację tegoż Żyda na rabinat rogoziński. Potwierdza on władzę administracyjną, a zwłaszcza sądową rabina, z możliwością apelacji od wyroku sądu, któremu przewodniczył, do starosty, jednakże tylko w tym samym dniu, w którym zapadł ów wyrok. Dalej zakazuje rabinowi oddalanie się od synagogi bez koniecznej przyczyny, nakazuje wobec niego szacunek członkom synagogi, dopuszczając możliwość dochodzenia przez każdego z nich wobec rabina pretensji na drodze sądowej, ale tylko swoim kosztem, bez mieszania w spór synagogi i sąsiadów, w przeciwnym wypadku starosta przyrzeka udzielić rabinowi swego poparcia, a ponadto obiecuje temuż swą obronę, gdyby kahał nie opłacał go zgodnie z zawartą umową i jeśliby był napastowany lub ktoś czynił mu szkodę. Przywilej ten, potwierdzony 6 stycznia 1775 r. przez Jakuba Szołdrskiego, brata Antoniego i jego następcę na starostwie rogozińskim, zostaje wydany z powtórnego urzędowego wpisu jego treści do księgi grodzkiej poznańskiej, dokonanego z inicjatywy Lewka Maśka 10 grudnia 1781 r. Zasługuje on na ogłoszenie drukiem ze względu na skromny stan źródeł do dziejów Żydów w tym miasteczku i rzadkie występowanie tego typu dokumentów. The privilege of Antoni Szołdrski, Rogoźno starost, in the Rogoźno rabbinate, for Lewko Maśko of February 12, 1765 In the 18th century, one of the largest Jewish centers in Greater Poland was found in a royal town, Rogoźno, the heart of non-resident starosty in the Poznań county and district. In 1765, 448 Jews who formed their own qahal (community) lived there. The community was headed by a rabbi and two elders. The latter were at the same time the members of the qahal court. One of them also held the function of a writer and a legal adviser. The privilege published – the privilege of Antoni Szołdrski, non-resident Rogoźno starost and resident Łęczyca starost for Maśko Lewko from Łęczyca, granted on February 12, 1765 in the village of Gościejewko is a permission to assign, and therefore nominate, this particular Jew to be the rabbi in the Rogoźno rabbinate. It confirms his administrative and, more importantly, judiciary powers. It provides the right to appeal from the rabbi-chaired court’s verdict to the starost, but only on the day the verdict was made. The privilege also forbids the rabbi to leave the synagogue unless absolutely necessary. Although it orders the members of the synagogue to respect the rabbi, it allows them to take the rabbi to court, but only at their own expense, without involving the synagogue and neighbors in the dispute. Otherwise, the starost promises that he will not only lend support to the rabbi, but also defend him if the qahal does not pay the rabbi as stipulated in the contract concluded, and if he is abused or harmed. This privilege was confirmed on January 6, 1775 by Jakub Szołdrski, Antoni’s brother and his successor to the Rogoźno starosty. The document is published based on its official re-entry to the Poznań municipal register, conducted from the initiative of Lewko Maśko on December 10, 1781. It deserves to be published due to the little amount of sources on the history of Jews in this town and the fact that this type of documents is quite rare.

Full TextThe first law enacted in Canada to protect existing Aboriginal rights was section 35 of the Constitution Act, 1982.2 The first law in Canada to recognize the rights of non-human animals as anything other than property has yet to be enacted. The first Supreme Court of Canada (hereafter referred to as the Court) case to interpret section 35 was R. v. Sparrow.3 The 1990 case confirmed an Aboriginal right of the Musqueam peoples of British Columbia to fish for food, social and ceremonial purposes. Since this precedent-setting case, many similar claims have been brought before the courts by way of the fluctuating legal space created by s.35. Many of these cases have been about establishing rights to fish4, hunt5, and trap non-human animals (hereafter referred to as animals). The Court has developed, and continues to develop tests to determine the existence and scope of Aboriginal rights. These tests primarily embody cultural, political and, to a surprisingly lesser degree, legal forces. One of the principal problems with these tests is that they privilege, through the western philosophical lens, the interests of humans. Animals are, at best, the resources over which ownership is being contested. The Euro-centric legal conceptualization of animals as 'resources' over which ownership can be exerted is problematic for at least two reasons. First, the relegation of animals solely to a utilitarian role is antithetical to Indigenous-animal relationships and therefore demonstrates one of the fundamental ways the Canadian legal system is ill equipped to give adequate consideration to Indigenous law. Second, failure to consider animals' inherent value and agency in this context reproduces the human-animal and culture-nature binaries that are at the root of many of western Euro-centric society's inequities. This paper argues that Aboriginal peoples' relationships with animals are a necessary, integral and distinctive part of their cultures6 and, therefore, these relationships and the actors within them are entitled to the aegis of s.35. Through the legal protection of these relationships, animals will gain significant protection as a corollary benefit. If the Court were to protect the cultural relationships between animals and Aboriginal groups, a precondition would be acceptance of Indigenous legal systems. Thus, this paper gives a brief answer to the question, what are Indigenous legal systems and why are animals integral to them? The Anishinabe (also known Ojibwe or Chippewa) are Indigenous peoples who have historically lived in the Great Lakes region. The Bruce Peninsula on Lake Huron is home to the Cape Croker Indian Reserve, where the Chippewas of Nawash First Nation live. The people of this First Nation identify as Anishinabe. The Anishinabek case of Nanabush v. Deer is a law among these people and is used throughout the paper as an example of Indigenous-animal relationships. Making the significant assumption that s.35 has the capacity to recognize Indigenous law, the subsequent section of the paper asks why we should protect these relationships and how that protection should be achieved. Finally, the paper concludes that both the ability of s.35 to recognize Indigenous-animal relationships, and the judicial and political will to grant such recognition, are unlikely. Indigenous-animal relationships are integral to the distinctive culture of the Anishinabek, however the courts would be hesitant to allow such an uncertain and potentially far-reaching right. This is not surprising given that such a claim by both Indigenous and animal groups would challenge the foundations upon which the Canadian legal system is based. There are many sensitive issues inherent in this topic. It should be noted the author is not of Indigenous ancestry, but is making every effort to learn about and respect the Indigenous legal systems discussed. While this paper focuses on a number of Anishinabek laws; it is neither a complete analysis of these practices, nor one that can be transferred, without adaptation, to other peoples. Finally, Indigenous peoples and animal rights and Indigenous law scholars, such as Tom Regan and Mary Ellen Turpel-Lafond, respectively, may insist on an abolitionist approach to animal 'use' or reject the legitimacy of s.35 itself.7 These perspectives are worthy and necessary. This paper positions itself amongst these and other sources in order to reflect upon the timely and important issue of the legal status of Indigenous-animal relationships. I:WHAT ARE INDIGENOUS LEGAL SYSTEMS? The Law Commission of Canada defines a legal tradition as “a set of deeply rooted, historically conditioned attitudes about the nature of law, the role of law in the society and the polity, the proper organization and operation of a legal system, and the way law is or should be made, applied, studied, perfected and taught.”8 Indigenous legal traditions fit this description. They are living systems of beliefs and practices, and have been recognized as such by the courts.9 Indigenous practices developed into systems of law that have guided communities in their governance, and in their relationships amongst their own and other cultures and with the Earth.10 These laws have developed through stories, historical events that may be viewed as ‘cases,’ and other lived experiences. Indigenous laws are generally non-prescriptive, non-adversarial and non-punitive and aim to promote respect and consensus, as well as close connection with the land, the Creator, and the community. Indigenous laws are a means through which vital knowledge of social order within the community is transmitted, revived and retained. After European ‘settlement’ the influence of Indigenous laws waned. This was due in part to the state’s policies of assimilation, relocation and enfranchisement. 11 Despite these assaults, Indigenous legal systems have persevered; they continue to provide guidance to many communities, and are being revived and re-learned in others. For example, the Nisga’a’s legal code, Ayuuk, guides their communities and strongly informs legislation enacted under the Nisga’a Final Agreement, the first modern treaty in British Columbia.12 The land and jurisdiction claims of the Wet’suwet’en and Gitxsan Nations ultimately resulted in the Court’s decision in Delgamuukw,13 a landmark case that established the existence of Aboriginal title. The (overturned) BC Supreme Court’s statement in Delgamuukw14 reveals two of the many challenges in demonstrating the validity of Indigenous laws: “what the Gitxsan and Wet’suwet’en witnesses[es] describe as law is really a most uncertain and highly flexible set of customs which are frequently not followed by the Indians [sic] themselves.” The first challenge is that many laws are not in full practice, and therefore not as visible as they could be and once were. What the courts fail to acknowledge, however, is that the ongoing colonial project has served to stifle, extinguish and alter these laws. The second challenge is that the kind of law held and practiced by Indigenous peoples is quite foreign to most non-Indigenous people. Many Indigenous laws have animals as central figures. In Anishinabek traditional law, often the animals are the lawmakers15: they develop the legal principles and have agency as law givers. For instance, the Anishinabek case Nanabush v. Deer, Wolf , as outlined by Burrows, is imbued with legal principles, lessons on conduct and community governance, as well as ‘offenses’ and penalties. It is not a case that was adjudicated by an appointed judge in a courtroom, but rather one that has developed over time as a result of peoples’ relationships with the Earth and its inhabitants. An abbreviated summary of the case hints at these legal lessons: Nanabush plays a trick on a deer and deliberately puts the deer in a vulnerable position. In that moment of vulnerability, Nanabush kills the deer and then roasts its body for dinner. While he is sleeping and waiting for the deer to be cooked, the Wolf people come by and take the deer. Nanabush wakes up hungry, and out of desperation transforms into a snake and eats the brains out of the deer head. Once full, he is stuck inside the head and transforms back into his original shape, but with the deer head still stuck on. He is then chased and nearly killed by hunters who mistake him for a real deer. This case is set within the legal context of the Anishinabek’s treaty with deer. In signing the treaty, the people were reminded to respect beings in life and death and that gifts come when beings respect each other in interrelationships.16 Nanabush violated the rights of the deer and his peoples’ treaty with the deer. He violated the laws by taking things through trickery, and by causing harm to those he owed respect. Because his actions were not in accordance with Anishinabek legal principles, he was punished: Nanabush lost the thing he was so desperately searching for, and he ended up nearly being killed. This case establishes two lessons. The first is that, like statutory and common law, with which Canadians are familiar, Indigenous law does not exist in isolation. Principles are devised based on multiple teachings, pre- vious rules and the application of these rules to facts. That there are myriad sources of Indigenous law suggests that the learning of Indigenous law would require substantial effort on the part of Canadian law-makers.17 The second is that animals hold an important place in Indigenous law, and those relationships with animals – and the whole ‘natural’ world – strongly inform the way they relate to the Earth. II: CAN CANADIAN LAW ACCEPT INDIGENOUS LEGAL SYSTEMS? If there were a right recognized under s.35 concerning the Indigenous-animal relationship, what would it look like? Courts develop legal tests to which the facts of each case are applied, theoretically creating a degree of predictability as to how a matter will be judged. Introduced in Sparrow, and more fully developed in Van der Peet, a ‘test’ for how to assess a valid Aboriginal right has been set out by the Court. Summarized, the test is: “in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right.”18 There are ten, differently weighted factors that a court will consider in making this assessment. The right being ‘tested’ in this discussion is the one exemplified in Nanabush v. Deer: the ability of Indigenous peoples to recognize and practice their laws, which govern relationships, including death, with deer and other animals. The courts have agreed that a generous, large and liberal construction should be given to Indigenous rights in order to give full effect to the constitutional recognition of the distinctiveness of Aboriginal culture. Still, it is the courts that hold the power to define rights as they conceive them best aligning with Canadian society19; this is one way that the Canadian state reproduces its systems of power over Indigenous peoples.20 The application of the Aboriginal right exemplified in Nanbush v. Deer to the Sparrow and Van der Peet tests would likely conclude that the Anishinabek do have an integral and distinctive relationship with animals. However, due to the significant discretion of the Court on a number of very subjective and politically sensitive factors, it is uncertain that the Nanabush v. Deer case would ‘pass’ Van der Peet’s required ten factors.21 This is indicative of the structural restraints that s.35 imposes. 22 The questions it asks impair its ability to capture and respect the interrelationships inherent in Indigenous peoples’ interactions with animals. For example, the Court will characterize hunting or fishing as solely subsistence, perhaps with a cultural element. Shin Imai contends these activities mean much more: “To many…subsistence is a means of reaffirming Aboriginal identity by passing on traditional knowledge to future generations. Subsistence in this sense moves beyond mere economics, encompassing the cultural, social and spiritual aspects for the communities.”23 Scholar Kent McNeil concludes that: “regardless of the strengths of legal arguments in favour of Indigenous peoples, there are limits to how far the courts […] are willing to go to correct the injustices caused by colonialism and dispossession.”24 It is often not the legal principles that determine outcomes, but rather the extent to which Indigenous rights can be reconciled with the history of settlement without disturbing the current economic and political structure of the dominant culture. III:WHY PROTECT THE ANIMAL-INDIGENOUS RELATIONSHIP? Legally protecting animal-Indigenous relationships offers symbiotic, mutually respectful benefits for animals and for the scope of Aboriginal rights that can be practiced. For instance, a protected relationship would have indirect benefits for animals’ habitat and right to life: it would necessitate protecting the means necessary, such as governance of the land, for realization of the right. This could include greater conservation measures, more contiguous habitat, enforcement of endangered species laws, and, ideally, a greater awareness and appreciation by humans of animals and their needs. Critical studies scholars have developed the argument that minority groups should not be subject to culturally biased laws of the mainstream polity.24 Law professor Maneesha Deckha points out that animals, despite the central role they play in a lot of ‘cultural defences,’ have been excluded from our ethical consideration. Certainly, the role of animals has been absent in judicial consideration of Aboriginal rights.26 Including animals, Deckha argues, allows for a complete analysis of these cultural issues and avoids many of the anthropocentric attitudes inherent in Euro-centric legal traditions. In Jack and Charlie27 two Coast Salish men were charged with hunting deer out of season. They argued that they needed to kill a deer in order to have raw meat for an Aboriginal religious ceremony. The Court found that killing the deer was not part of the ceremony and that there was insufficient evidence to establish that raw meat was required. This is a case where a more nuanced consideration of the laws and relationships with animals would have resulted in a more just application of the (Canadian) law and prevented the reproduction of imperialist attitudes. A criticism that could be lodged against practicing these relationships is that they conflict with the liberty and life interests of animals.28 Theoretically, if Indigenous laws are given the legal and political room to fully operate, a balance between the liberty of animals and the cultural and legal rights of Indigenous peoples can be struck.29 Indeed, Indigenous peoples’ cultural and legal concern for Earth is at its most rudimentary a concern for the land, which is at the heart of the challenge to the Canadian colonial system. If a negotiated treaty was reached, or anti-cruelty and conservation laws were assured in the Indigenous peoples’ self government system, then Canadian anti-cruelty30 and conservation laws,31 the effectiveness of which are already questionable, could be displaced in recognition of Indigenous governance.32 Indigenous peoples in Canada were – and are, subject to imposed limitations – close to the environment in ways that can seem foreign to non-Indigenous people.33 For example, some origin stories and oral histories explain how boundaries between humans and animals are at times absent: Animal-human beings like raven, coyote and rabbit created them [humans] and other beings. People …acted with respect toward many animals in expectation of reciprocity; or expressed kinship or alliance with them in narratives, songs, poems, parables, performances, rituals, and material objects. 34 Furthering or reviving these relationships can advance the understanding of both Indigenous legal systems and animal rights theory. Some animal rights theorists struggle with how to explain the cultural construction of species difference: Indigenous relationships with animals are long standing, lived examples of a different cultural conception of how to relate to animals and also of an arguably healthy, minimally problematic way to approach the debate concerning the species divide.35 A key tenet of animal-Indigenous relationships is respect. Shepard Krech posits that Indigenous peoples are motivated to obtain the necessary resources and goals in ‘proper’ ways: many believe that animals return to the Earth to be killed, provided that hunters demonstrate proper respect.36 This demonstrates a spiritual connection, but there is also a concrete connection between Indigenous peoples and animals. In providing themselves with food and security, they ‘manage’ what Canadian law calls ‘resources.’37 Because of the physical nature of these activities, and their practical similarity with modern ‘resource management,’ offering this as ‘proof’ of physical connection with animals and their habitat may be more successful than ‘proving’ a spiritual relationship. Finally, there are health reasons that make the Indigenous-animal relationship is important. Many cultures have come to depend on the nutrients they derive from particular hunted or fished animals. For example, nutrition and physical activity transitions related to hunting cycles have had negative impacts on individual and community health.38 This shows the multidimensionality of hunting, the significance of health, and, by extension, the need for animal ‘resources’ to be protected. IV: HOW SHOULD WE PROTECT THESE ABORIGINAL RIGHTS? If the Anishinabek and the deer ‘win’ the constitutional legal test (‘against’ the state) and establish a right to protect their relationships with animals, what, other than common law remedies,39 would follow? Below are ideas for legal measures that could be taken from the human or the animal perspective, or both, where benefits accrue to both parties. If animals had greater agency and legal status, their needs as species and as individuals could have a meaningful place in Canadian common and statutory law. In Nanabush v. Deer, this would mean that the deer would be given representation and that legal tests would need to be developed to determine the animals’ rights and interests. Currently the courts support the view that animals can be treated under the law as any other inanimate item of property. Such a legal stance is inconsistent with a rational, common-sense view of animals,40 and certainly with Anishinabek legal principles discussed herein.41 There are ongoing theoretical debates that inform the practical questions of how animal equality would be achieved: none of these in isolation offers a complete solution, but combined they contribute to the long term goal. Barsh and James Sákéj Youngblood Henderson advocate an adoption of the reasoning in the Australian case Mabo v. Queensland,42 where whole Aboriginal legal systems were imported intact into the common law. Some principles that Canada should be following can also be drawn from international treaties that Canada has or should have signed on to.43 Another way to seek protection from the human perspective is through the freedom of religion and conscience section of the Charter. Professor John Borrows constructs a full argument for this, and cites its challenges, in Living Law on a Living Earth: Aboriginal Religion, Law and the Constitution.44 The strongest, but perhaps most legally improbable, way to protect the animal- Indigenous relationship is for Canada to recognize a third, Indigenous order of government (in addition to provincial and federal), where all three orders are equal and inform one another’s laws. This way, Indigenous laws would have the legal space to fully function and be revived. Endowing Indigenous peoples with the right to govern their relationships would require a great acquiescence of power by governments and a commitment to the establishment and maintenance of healthy self-government in Indigenous communities. Louise Mandell offers some reasons why Canada should treat Aboriginal people in new ways, at least one of which is salient to the third order of government argument: To mend the [E]arth, which must be done, governments must reassess the information which the dominant culture has dismissed. Some of that valuable information is located in the oral histories of Aboriginal Peoples. This knowledge will become incorporated into decisions affecting the [E]arth’s landscape when Aboriginal Peoples are equal partners in decisions affecting their territories.45 V: CONCLUSION A legal system that does not have to justify its existence or defend its worth is less vulnerable to challenges.46 While it can be concluded that s.35 has offered some legal space for Indigenous laws and practices, it is too deeply couched in Euro-centric legal traditions and the anthropocentric cultural assumptions that they carry. The most effective strategy for advancing Indigenous laws and culture, that would also endow many animals with greater agency, and relax the culture-nature, human-animal binaries, is the formal recognition of a third order of government. Lisa Chartrand explains that recognition of legal pluralism would be a mere affirmation of legal systems that exist, but which are stifled: “…this country is a multijuridical state, where the distinct laws and rules of three systems come together within the geographic boundaries of one political territory.” 47 Revitalizing Indigenous legal systems is and will be a challenging undertaking. Indigenous communities must reclaim, define and understand their own traditions: “The loss of culture and traditions caused by the historic treatment of Aboriginal communities makes this a formidable challenge for some communities. Equally significant is the challenge for the Canadian state to create political and legal space to accommodate revitalized Indigenous legal traditions and Aboriginal law-making.”48 The project of revitalizing Indigenous legal traditions requires the commitment of resources sufficient for the task, and transformative change to procedural and substantive law. The operation of these laws within, or in addition to, Canadian law would of course cause widespread, but worthwhile controversy. In Animal Bodies, Cultural Justice49 Deckha argues that an ethical relationship with the animal Other must be established in order realize cultural and animal rights. This paper explores and demonstrates the value in finding legal space where cultural pluralism and respect for animals can give rise to the practice of Indigenous laws and the revitalization of animal-Indigenous relationships. As Borrows writes: “Anishinabek law provides guidance about how to theorize, practice and order our association with the [E]arth, and could do so in a way that produces answers that are very different from those found in other sources.”50 (see PDF for references)

Jurang Sate primary canal is one of the the main irrigation canal in central Lombok which supplies water from the main network, namely Jangkok, Sesaot, and Keru Feeder weir to several secondary canal and to irrigated tertiary plots. The local community use the Jurang Sate Primary canal in a variety of daily activities, and nowadays it is used as a means of water tourism. The purpose of this study was to determine the water quality for ectourism area spot of the Jurang Sate primary canal based on biological parameters, namely the total Coliform bacteria, and the diversity of phytoplankton species. Measurement of coliform bacteria parameters and phytoplankton diversity was carried out ex-situ. The results showed that the total Coliform bacteria count in each sample calculated with MPN index was in the range of 170-110000 MPN/100 ml. The phytoplankton identified in this study were 24 species, 15 orders, and 6 classes. Phytoplankton species diversity index value of 1.32 (medium category). The water of the primary channel of Jurang Sate was categorized in moderately polluted. The conclusion of this research is the water of the Jurang Sate primary canal is not ideal for water tourism activity.

Habitat loss and fragmentation affect bird communities. Edge area created by fragmentation can affect bird communities through availability of arthropod. The objectives of this study are to examine whether there is any difference in bird diversity and abundance between different plantation types and location between fragments, and to examine if there is any correlation between arthropod and birds. To record Bird community was recorded using point count method with a distant between points 50 m and a fix radius of 25 m in each point for 10 minutes observation. Observation points were placed in each of edge and interior habitat of Cocos nucifera plantation and Syzygium cumini plantation. Arthropod sampling was done twice using yellow trap. High bird abundance and richness were recorded in edge habitat. A total of 24 bird species of 18 families and 10 orders of arthropod were identified in the study plots. There is no correlation between arthropod and bird abundance. Based on major diet, 46% of bird species were insectivores, while 54% species where other types of eater such as 29% species were frugivores, 9% species were nectarivores, and each 4% of bird species were seabirds, carnivores and scavengers, omnivores, and other bird groups). Key words: arthropod communities, bird communities, fragmentation, Ternate

Estimating and comparing microbial diversity are statistically challenging due to limited sampling and possible sequencing errors for low-frequency counts, producing spurious singletons. The inflated singleton count seriously affects statistical analysis and inferences about microbial diversity. Previous statistical approaches to tackle the sequencing errors generally require different parametric assumptions about the sampling model or about the functional form of frequency counts. Different parametric assumptions may lead to drastically different diversity estimates. We focus on nonparametric methods which are universally valid for all parametric assumptions and can be used to compare diversity across communities. We develop here a nonparametric estimator of the true singleton count to replace the spurious singleton count in all methods/approaches. Our estimator of the true singleton count is in terms of the frequency counts of doubletons, tripletons and quadrupletons, provided these three frequency counts are reliable. To quantify microbial alpha diversity for an individual community, we adopt the measure of Hill numbers (effective number of taxa) under a nonparametric framework. Hill numbers, parameterized by an orderqthat determines the measures’ emphasis on rare or common species, include taxa richness (q= 0), Shannon diversity (q= 1, the exponential of Shannon entropy), and Simpson diversity (q= 2, the inverse of Simpson index). A diversity profile which depicts the Hill number as a function of orderqconveys all information contained in a taxa abundance distribution. Based on the estimated singleton count and the original non-singleton frequency counts, two statistical approaches (non-asymptotic and asymptotic) are developed to compare microbial diversity for multiple communities. (1) A non-asymptotic approach refers to the comparison of estimated diversities of standardized samples with a common finite sample size or sample completeness. This approach aims to compare diversity estimates for equally-large or equally-complete samples; it is based on the seamless rarefaction and extrapolation sampling curves of Hill numbers, specifically forq= 0, 1 and 2. (2) An asymptotic approach refers to the comparison of the estimated asymptotic diversity profiles. That is, this approach compares the estimated profiles for complete samples or samples whose size tends to be sufficiently large. It is based on statistical estimation of the true Hill number of any orderq≥ 0. In the two approaches, replacing the spurious singleton count by our estimated count, we can greatly remove the positive biases associated with diversity estimates due to spurious singletons and also make fair comparisons across microbial communities, as illustrated in our simulation results and in applying our method to analyze sequencing data from viral metagenomes.

Shivapuri Nagarjun National Park (SNNP) plays an important role in global biodiversity conservation, but research based on avian diversity along elevation gradients has not been studied yet. Therefore, this study aims to explore avian diversity, its pattern, and environmental variables affecting bird species richness along elevation gradients. The point count method was carried out in the monsoon season (June and July) in 2019. Data for environmental variables including elevation, distance to settlement, distance to nearest water sources, temperature, and precipitation were assessed with respect to the feeding guild. A total of 130 species of bird belonging to 40 families and 12 orders were recorded including the Steppe eagle (endangered species) and Spiny Babbler (only endemic bird of Nepal), which indicate that SNNP supports avian diversity. Diversity indices showed diverse bird community assemblage such as the Shannon-Weiner diversity index (H'=2.65), Simpson diversity index (0.92), and evenness index E=0.94). Our study revealed insectivores were dominating among others and the order Passeriformes had the high species richness. Our observation revealed that the bird species richness was significantly greater at lower elevations than at mid and high elevations, showing a clear monotonic decline in species richness and diversity with increasing elevation. In the case of feeding guild (insectivores, omnivores, frugivores, and carnivores), most of the bird species showed a significant relationship with environmental variables (elevation, distance to settlement, distance to nearest water sources, temperature, and precipitation). It was concluded that not only environmental factors are responsible for affecting avian diversity but elevational gradients consisting of heterogeneous habitats can also play an important role in shaping avian diversity patterns.

Abstract Background In USA in 2007, it was estimated that approximately one third of hospitalized patients, approximately 12 million patients per year receive heparin. Heparin induced thrombocytopenia (HIT) is one of the serious complications of Heparin resulting from immune mediated antibody. 4Ts score is the imperative tool to help differentiate HIT from other causes of thrombocytopenia. The 4Ts score decreases not only risk of bleeding by avoiding anticoagulant but also cost of health care by testing only patients with intermediate to high pretest probability. Our study suggests 4Ts scores calculators are to be introduced as a part of order set for HIT tests. Objective This retrospective study is Part III of our prior studies " Are We Doing Too Many HIT tests", to decrease false positive HIT patients by improving use and awareness about high negative predictive value of 4T score among physicians. This study was carried out to determine outcomes of our previous study of this series in order to assess the reduction of unnecessary ELISA test orders to diagnose HIT in a single urban community hospital in Chicago. Method A retrospective chart review of medical records of the patients (n=181) who underwent H-PF4-ELISA for HIT screening from January 1st, 2016 to December 31st 2017 was conducted. Data was collected from patient's charts which included the requesting department (i.e. ICU, ED, Medical and surgical floors). Also, date of admission, date of onset of platelet drop, degree of thrombocytopenia, incidence of DVT, PE, arterial thrombosis and bleeding and alternative reasons of platelet count drop other than HIT were collected. For each patient a for calculation of Pretest probability by the 4T score was conducted. We stratified these patients based on 4Ts score (0-3) for low probability, (4-5) intermediate probability and (6-8) high probability risk for HIT. We reviewed all charts for which both ELISA and SRA were ordered. Pharmacy department and Hematology labs were contacted to calculate costs of ELISA, SRA and anticoagulation. Results Our results showed that 114 (62.98%) of 181 ELISA tests ordered had low pretest probability for HIT. None of these records were found to be true positive by SRA. However, 24(20%) of low probability category were found positive by ELISA and received anticoagulation and thus were exposed to higher risk of bleeding and additional health care costs. There were 57 (31.49%) out of 181 records had intermediate probability. 16 patients with intermediate probability were ELISA test positive. However, 3 (5.26%) of intermediate probability patients were found to be true positive by SRA. While only 6 (3.31%) out of 181 patients records had high probability for HIT and 3 patients (50%) of high probability were found to be true positive by SRA. However, 11 patients from low probability category and 5 patients from intermediate probability category did not have SRA results in their medical record. Discussion In our previous study, 74.3% of patients tested for HIT during Jan.2013 to Dec. 2014were found to have low probability compared to 62.98% of our current study. Interestingly, patients with intermediate probability have increased to 31.49% from 18% from our previous study. This is a desired decreased. Cost for ELISA test for HIT ranges $200 to $300 per test and cost of SRA is roughly $50 to $60. Cost of one day of Argatroban treatment is roughly $670 which brings the total cost per patient roughly $1000 per day for all those patients who are tested positive by ELISA. 34,200 USD were spent on ELISA test for 114 patients with low probability 4T score who were found true negative. Furthermore, 20 patients with false positive ELISA from low probability 4T category were exposed to 40,200 USD worth of Argatroban during three days while SRA results were awaited. As per our study, educational interventions in our hospital have made remarkable improvement in decreasing the number of ELISA test in patients with low pretest probability from 74.3% to 62.98% Lastly, more than 74,000 USD per 114 patients (with low probability score) could be reduced by introducing "4T score calculation Alert" as a part of order set for HIT in EMR software. We conclude that incorporating prescreening for HIT with 4T score calculation as a part of order set for ELISA could decrease not only the risk of bleeding but also avoidable additional health care cost. Disclosures No relevant conflicts of interest to declare.

Photo by Christian Bowen on Unsplash ABSTRACT Assisted Reproductive Technology can be a beneficial tool for couples unable to reproduce independently; however, it has historically discriminated against the LGBTQ+ community members. Given the evolution and acceptance of LGBTQ rights in recent years, discrimination and barriers to access reproductive technology and health care should be readdressed as they still exist within this community. INTRODUCTION In recent years, the LGBTQ+ community has made great strides toward attaining equal rights. This fight dates back to 1970 when Michael Baker and McConnell applied for a marriage license in Minnesota.[1] After the county courthouse denied the couple's request, they appealed to the Minnesota Supreme Court. Baker and McConnell’s dispute reached the US Supreme Court. Baker v. Nelson[2] was the first time a same-sex couple attempted to pursue marriage through higher courts in the US.[3] Because the couple lost the case, Baker changed his name to a gender-neutral one, and McConnell adopted Baker, allowing Baker and McConnell to have legal protections like the ability to receive certain inheritances. Baker and McConnell received a marriage license from an unsuspecting clerk from Blue Earth County, where they wed on September 3, 1971.[4] BACKGROUND The Supreme Court’s decision left individual state legislatures the option to accommodate same-sex couples’ rights constitutionally. As a result, some states banned same-sex marriage, while others offered alternative options such as domestic partnerships. With many obstacles, such as the Defense of Marriage Act (DOMA) and President Bush’s efforts to limit marriage to heterosexual people, Massachusetts became the first state to legalize gay marriage in 2003.[5] Other states slowly followed. Finally, in 2015 the US Supreme Court made same-sex marriage legal in all 50 states in Obergefell v. Hodges,[6] marking an important milestone for the LGBTQ+ community’s fight toward marriage equality. The Obergefell v. Hodges decision emphasized that members of the homosexual community are “not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions,” thus granting them the right to “equal dignity in the eyes of the law.”[7] This paper argues that in the aftermath of the wide acceptance of LGBTQ rights, discrimination and barriers to access reproductive technology and health care persist nationally. Procreation also faces discrimination. Research supports that children’s overall psychological and physical welfare with same-sex parents does not differ compared to children with heterosexual parents.[8] Some others worry about the children’s developmental health and argue that same-sex male couples’ inability to breastfeed their children may be harmful; however, such parents can obtain breast milk via surrogate donation.[9] Further concerns regarding confusion in gender identity in children raised by same-sex parents are not supported by research in the field indicating that there are “no negative developmental or psychological outcomes for a child, nor does it result in differing gender identity, gender role behavior or sexual partner preference compared to opposite-sex parents.”[10] ANALYSIS l. Desire to Procreate The American perception toward same-sex unions has evolved “from pathology to deviant lifestyle to identity.”[11] In 2001, only 35 percent of Americans favored same‐sex marriage, while 62 percent favored it in 2017.[12] The “Gay marriage generation”[13] has a positive attitude toward same-sex unions, arising from the “interaction among activists, celebrities, political and religious leaders, and ordinary people, who together reconfigured Americans’ social imagination of homosexuality in a way that made gay marriage seem normal, logical, and good.”[14] Same-sex couples’ right to build a biological family and ability to do so using modern reproductive technology is unclear. The data generated by the LGBTQ Family Building Survey revealed “dramatic differences in expectations around family building between LGBTQ millennials (aged 18-35) and older generations of LGBTQ people,”[15] which may be in part attributable to recent federal rulings in favor of same-sex couples. Three important results from this survey are that 63 percent of LGBTQ millennials are considering expanding their families throughout parenthood, 48 percent of LGBTQ millennials are actively planning to grow their families, compared to 55 percent of non-LGBTQ millennials; and 63 percent of those LGBTQ people interested in building a family expect to use assisted reproductive technology (ART), foster care, or adoption to become parents.[16] There are 15.9 million Americans who identify as LGBTQ+ (6.1 million of whom are 18 to 35 years old); thus, an estimated “3.8 million LGBTQ+ millennials are considering expanding their families in the coming years, and 2.9 million are actively planning to do so.”[17] Yet access and affordability to ART, especially in vitro fertilization (IVF) and surrogacy for same-sex couples, has not been consistent at a national level. The two primary problems accessing ART for the LGBTQ community are the lack of federal law and cost. A federal law that guaranteed coverage would address both problems. ll. ART for Same-Sex Couples All same-sex male (SSM) couples and same-sex female (SSF) couples must involve third parties, including surrogates or egg or sperm donors.[18] ART involves the legal status of “up to two women (surrogate and egg donor),” the intended parents, and the child for SSM couples.[19] While sometimes necessary for heterosexual couples using ART, an egg or sperm from someone other than the intended parents or a surrogate will always be necessary for the LGBTQ people seeking ART. ART, in particular IVF, is essential for infertile couples unable to conceive on their own. Unlike other industrialized countries (such as Canada, the United Kingdom, Sweden, Germany, and Australia), the US does not heavily oversee this multibillion-dollar industry.[20] The American Society for Reproductive Medicine does provide lengthy guidelines to fertility clinics and sperm banks; however, state lawmakers have been less active as they seem to avoid the controversy surrounding controversial topics like embryo creation and abortion.[21] As a result, states “do not regulate how many children may be conceived from one donor, what types of medical information or updates must be supplied by donors, what genetic tests may be performed on embryos, how many fertilized eggs may be placed in a woman or how old a donor can be.”[22] lll. A Flawed Definition of Infertility The WHO defines the medical definition of infertility as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after twelve months or more of regular unprotected sexual intercourse.”[23] This antiquated definition must be updated to include social infertility to integrate same-sex couples’ rights.[24] In the US, single individuals and LGBTQ couples interested in building a family by biological means are considered “socially infertile.”[25] If insurance coverage is allotted only to those with physical infertility, then it is exclusive to the heterosexual community. Although some states, such as New York, discussed below, have directly addressed this inequality by extending the definition of infertility and coverage of infertility treatments to include all residents regardless of sexual orientation, this is not yet the norm everywhere else. The outdated definition of infertility is one of the main issues affecting same-sex couples’ access to ART, as medical insurance companies hold on to the formal definition of infertility to deny coverage. lV. Insurance Coverage for IVF Insurance coverage varies per state and relies on the flawed definition of infertility. As of August 2020, 19 states have passed laws requiring insurance coverage for infertility, 13 of which include IVF coverage, as seen in Figure 1. Also, most states do not offer IVF coverage to low-income people through Medicaid.[26] In states that mandate IVF insurance coverage, the utilization rate was “277% of the rate when there was no coverage,”[27] which supports the likelihood that in other states, the cost is a primary barrier to access. When insurance does not cover ART, ART is reserved for wealthy individuals. One cycle of ART could cost, on average, “between $10,000 and $15,000.”[28] In addition, multiple cycles are often required as one IVF cycle only has “about a 25% to 30%” live birth success rate.[29] Altogether, the total cost of successful childbirth was estimated from $44,000 to $211,940 in 1992.[30] On February 11, 2021, New York Governor Andrew M. Cuomo “directed the Department of Financial Services to ensure that insurers begin covering fertility services immediately for same-sex couples who wish to start a family.”[31] New York had recently passed an IVF insurance law that required “large group insurance policies and contracts that provide medical, major medical, or similar comprehensive-type coverage and are delivered or issued for delivery in New York to cover three cycles of IVF used in the treatment of infertility.”[32] But the law fell short for same-sex couples, which were still required to “pay 6 or 12 months of out-of-pocket expenses for fertility treatments such as testing and therapeutic donor insemination procedures before qualifying for coverage.”[33] Cuomo’s subsequent order made up for gaps in the law, which defined infertility as “the inability to conceive after a certain period of unprotected intercourse or donor insemination.”[34] Cuomo’s order and the law combine to make New York an example other states can follow to broaden access to ART. V. Surrogacy Access to surrogacy also presents its own set of problems, although not exclusive to the LGBTQ community. Among states, there are differences in how and when parental rights are established. States in dark green in Figure 2 allow pre-birth orders, while the states in light green allow post-birth parentage orders. Pre-birth orders “are obtained prior to the child’s birth, and they order that the intended parent(s) will be recognized as the child’s only legal parent(s) and will be placed on the child’s birth certificate,” while post-birth parentage orders have the same intent but are obtained after the child’s birth. [35] For instance, states can require genetic testing post-birth, possibly causing a delay in establishing parentage.[36] Although preventable through the execution of a health care power of attorney, a surrogate mother could be the legal, medical decision-maker for the baby before the intended parents are legally recognized. On February 15, 2021, gestational surrogacy – the most popular type of surrogacy in which the surrogate has no biological link to the baby – was legalized in New York,[37] but it remains illegal in some states such as Nebraska, Louisiana, and Michigan.[38] In addition, the costs of surrogacy are rising, and it can cost $100,000 in the US.[39] Medicaid does not cover surrogacy costs,[40] and some health insurance policies provide supplemental surrogacy insurance with premiums of approximately $10,000 and deductibles starting at $15,000.[41] Thus, “surrogacy is really only available to those gay and lesbian couples who are upper class,”[42] leaving non-affluent couples out of options to start a family through biological means. Vl. A Right to Equality and Procreation Some argue that same-sex couples should have the right to procreate (or reproductive rights). Based on arguments stemming from equal rights and non-discrimination, same-sex couples who need to use ART to procreate should have access to it. The need to merge social infertility into the currently incomplete definition of fertility could help same-sex couples achieve access through insurance coverage. The human right of equality and non-discrimination guarantees “equal and effective protection against discrimination on any ground.”[43] The United Nations later clarified that “sexual orientation is a concept which is undoubtedly covered” [44] by this protection. The right to procreate is not overtly mentioned in the US Constitution; however, the Equal Protection Clause states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States… without due process of law.”[45] In fact, some states have abridged the reproductive privileges of some US citizens by upholding prohibitive and intricate mechanisms that deter same-sex couples from enjoying the privileges other citizens have. The Supreme Court acknowledged procreation as a “fundamental”[46] personal right, in Skinner v. Oklahoma, mandating that the reproductive rights of individuals be upheld as the right to procreate is “one of the basic civil rights of man”[47] because “procreation [is] fundamental to the very existence and survival of the race.”[48] In Eisenstadt v. Baird, the courts also supported that “the decision whether to bear or beget a child” fundamentally affects a person.[49] I argue that this protection extends to same-sex couples seeking to procreate. Finally, Obergefell v. Hodges held that the Due Process and Equal Protection clauses ensure same-sex couples the right to marriage, as marriage “safeguards children and families, draw[ing] meaning from related rights of childrearing, procreation, and education.”[50] By implicit or explicit means, these cases align with the freedom to procreate that should not be unequally applied to different social or economic groups. Yet, the cases do not apply to accessing expensive tools to procreate. As heterosexuals and the LGBTQ community face trouble accessing expensive ART for vastly different reasons, especially IVF and surrogacy, the equal rights or discrimination argument is not as helpful. For now, it is relevant to adoption cases where religious groups can discriminate.[51] The insurance coverage level may be the best approach. While the social norms adapt and become more inclusive, the elimination of the infertility requirement or changing the definition of infertility could work. Several arguments could address the insurance coverage deficit. Under one argument, a biological or physical inability to conceive exists in the homosexual couple trying to achieve a pregnancy. Depending on the wording or a social definition, a caselaw could be developed arguing the medical definition of infertility applies to the LGBTQ community as those trying to procreate are physically unable to conceive as a couple planning to become parents. One counterargument to that approach is that it can be offensive to label people infertile (or disabled) only because of their status as part of a homosexual couple.[52] CONCLUSION In the last 50 years, there has been a notable shift in the social acceptance of homosexuality.[53] Marriage equality has opened the door for further social and legal equality, as evidenced by the increased number of same-sex couples seeking parenthood “via co-parenting, fostering, adoption or surrogacy” – colloquially referred to as the ‘Gayby Boom’.[54] However, some prejudice and disdain toward LGBTQ+ parenting remain. Equitable access to ART for all people may be attainable as new technology drives costs down, legislators face societal pressure to require broader insurance coverage, and social norms become more inclusive. [1] Eckholm, E. (2015, May 17). The same-sex couple who got a marriage license in 1971. Retrieved April 08, 2021, from https://www.nytimes.com/2015/05/17/us/the-same-sex-couple-who-got-a-marriage-license-in-1971.html [2] Eckholm, E. [3] A brief history of civil rights in the United States: A timeline of the legalization of same-sex marriage in the U.S. (2021, January 27). Retrieved April 08, 2021, from https://guides.ll.georgetown.edu/c.php?g=592919&p=4182201 [4] Eckholm, E. [5] A brief history of civil rights in the United States: A timeline of the legalization of same-sex marriage in the U.S. (2021, January 27). Retrieved April 08, 2021, from https://guides.ll.georgetown.edu/c.php?g=592919&p=4182201 [6] A brief history of civil rights in the United States [7] A brief history of civil rights in the United States [8] Lee, J., & Bolzendahl, C. (2019). Acceptance and Rejection: Patterns of opinion on homosexuality in the United States and the world. Sociological Forum, 34(4), 1026-1031. doi:10.1111/socf.12562 [9] Lee, J., et al. [10] Lee, J., et al. [11] Lee, J., et al. [12] Lee, et al. [13] Lee, et al. [14] Lee, et al. [15] LGBTQ family building survey. (2020, July 02). Retrieved April 08, 2021, from https://www.familyequality.org/resources/lgbtq-family-building-survey/ [16] LGBTQ family building survey. (2020, July 02). Retrieved April 08, 2021, from https://www.familyequality.org/resources/lgbtq-family-building-survey/ [17] LGBTQ family building survey. (2020, July 02). Retrieved April 08, 2021, from https://www.familyequality.org/resources/lgbtq-family-building-survey/ [18] Mackenzie, S. C., Wickins-Drazilova, D., & Wickins, J. (2020). The ethics of fertility treatment for same-sex male couples: Considerations for a modern fertility clinic. European Journal of Obstetrics & Gynecology and Reproductive Biology, 244, 71-75. doi:10.1016/j.ejogrb.2019.11.011 [19] Mackenzie, et al. [20] Ollove, M. (2015, March 18). States not eager to regulate fertility industry. Retrieved April 08, 2021, from https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/3/18/states-not-eager-to-regulate-fertility-industry [21] Ollove, M. [22] Ollove, M. [23] World Health Organization. (2020, September 14). Infertility. World Health Organization. https://www.who.int/news-room/fact-sheets/detail/infertility [24] Leondires, M. P. (2020, March 19). Fertility insurance Mandates & same-sex couples. Retrieved April 08, 2021, from https://www.gayparentstobe.com/gay-parenting-blog/fertility-insurance-mandates-same-sex-couples/ [25] Lo, W., & Campo-Engelstein, L. (2018). Expanding the Clinical Definition of Infertility to Include Socially Infertile Individuals and Couples. Reproductive Ethics II, 71–83. https://doi.org/10.1007/978-3-319-89429-4_6 [26] Mohapatra, S. (2015). Assisted Reproduction Inequality and Marriage Equality. Chicago-Kent Law Review, 92(1). Retrieved April 08, 2021, from https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4146&context=cklawreview [27] Mohapatra, S. [28] Mohapatra, S. [29] Mohapatra, S. [30] Mohapatra, S. [31] Governor Cuomo announces new actions to expand access to FERTILITY coverage for same sex couples as part of 2021 Women's Agenda. (n.d.). [32] Health Insurers FAQs: IVF and Fertility Preservation Law Q&A Guidance. (n.d.). Retrieved April 08, 2021, from https://www.dfs.ny.gov/apps_and_licensing/health_insurers/ivf_fertility_preservation_law_qa_guidance [33] Governor Cuomo announces new actions to expand access to FERTILITY coverage for same sex couples as part of 2021 Women's Agenda. (n.d.). Retrieved April 08, 2021, from https://www.governor.ny.gov/news/governor-cuomo-announces-new-actions-expand-access-fertility-coverage-same-sex-couples-part#:~:text=February%2011%2C%202021-,Governor%20Cuomo%20Announces%20New%20Actions%20to%20Expand%20Access%20to%20Fertility,Part%20of%202021%20Women's%20Agenda&text=Cuomo%20today%20directed%20the%20Department,wish%20to%20start%20a%20family. [34] Leondires, M. P. [35] Assisted reproduction parentage proceedings information: Academy of Adoption and Assistive Reproduction Attorneys (AAAA). (2019, March 14). Retrieved April 08, 2021, from https://adoptionart.org/assisted-reproduction/parentage-proceedings/ [36] Assisted reproduction parentage proceedings information. [37] Governor Cuomo reminds surrogates and parents of their new Insurance rights and protections During Gestational Surrogacy. (n.d.). Retrieved April 08, 2021, from https://www.governor.ny.gov/news/governor-cuomo-reminds-surrogates-and-parents-their-new-insurance-rights-and-protections-during [38] U.S. Surrogacy Map: Surrogacy laws by state. (2020, December 23). Retrieved April 08, 2021, from https://www.creativefamilyconnections.com/us-surrogacy-law-map/ [39] Mohapatra, S. [40] Beitsch, R. (2017, June 29). As surrogacy surges, new parents seek legal protections. Retrieved April 08, 2021, from https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/29/as-surrogacy-surges-new-parents-seek-legal-protections#:~:text=Medicaid%20does%20not%20cover%20surrogacy,and%20intended%20parents%20at%20risk. [41] Where to find surrogacy insurance? (2017, November 02). Retrieved April 08, 2021, from https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/where-can-i-find-surrogacy-insurance/ [42] Mohapatra, S. [43] International covenant on civil and political rights. (n.d.). Retrieved April 08, 2021, from https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [44] United Nations. (2003). Human rights in the administration of justice: a manual on human rights for judges, prosecutors and lawyers. [45] U.S. Const. amend. XIV, § 1. [46] Skinner v. Oklahoma, Https://caselaw.findlaw.com/us-supreme-court/316/535.html (June 1, 1942). [47] Skinner v. Oklahoma [48] Skinner v. Oklahoma [49] Eisenstadt v. Baird, Https://www.lexisnexis.com/community/casebrief/p/casebrief-eisenstadt-v-baird (March 22, 1972). [50] Obergefell v. Hodges [51] Higgins, T. (2021, June 17). Supreme Court sides with Catholic adoption agency that refuses to work with LGBT couples. CNBC. https://www.cnbc.com/2021/06/17/supreme-court-sides-with-catholic-adoption-agency-that-refuses-to-work-with-lgbt-couples.html. [52] Bowerman, M., May, A., & Rossman, S. (2017, April 24). Should the definition of infertility be more inclusive? USA Today. https://www.usatoday.com/story/news/nation-now/2017/04/22/same-sex-couples-covered-infertility-insurance/100644092/. [53] Mackenzie, et al. [54] Mackenzie, et al.

Photo 3701647 © Jeremy Swinborne | Dreamstime.com INTRODUCTION Among the many unclear issues as interpretations of Employment Division v. Smith arise in the context of vaccination mandates is a simple question: Does any exception to a law at all (whether for a group or an individual) render a law not “generally applicable and religion-neutral” in the eyes of the current Supreme Court? I. Background Prior to Employment Division v. Smith,[i] Sherbert v. Verner[ii] set forth the free exercise test which called for strict scrutiny requiring a compelling state interest and the use of the least restrictive means to achieve the state interest when a law poses a substantial burden to the exercise of religion. Sherbert had a broad holding that prior to Smith applied to laws whether neutral on their face or not, and whether the asserted discrimination was intentional or not. One issue with Sherbert was that judges were not especially adept at judging the sincerity of beliefs and the importance of religious rituals to individuals, making it difficult to determine whether a law imposed a “substantial burden” on the practice of a religion. Employment Division v. Smith holds that laws that are generally applicable and religion-neutral need not be justified by a compelling government interest even if they do have the effect of (unintentionally) burdening a religious practice.[iii] Smith, decided in 1990, altered and narrowed judicial discretion in evaluating neutral laws that may impede the free exercise of religion. Justice Scalia aligned free exercise with other First Amendment rights.[iv] He also alleviated the need for judges to determine the burden on and the sincerity of religious beliefs in instances of neutral laws. “Smith therefore diminished judicial power to grant religious citizens exemptions from their civic obligations...”[v] Yet a carveout was maintained for laws that have a “mechanism for individualized discretion”; strict scrutiny still applies to those. Lukumi[vi] (1993) reaffirmed yet distinguished Smith. In Lukumi, the law in question was adopted to ensure that a religious group would be rendered unable to sacrifice animals. The law had numerous exemptions (clearly people may kill animals for many non-essential reasons like hunting and fishing for sport, etc.) and the lawmakers seemed to have the intent of interfering with animal sacrifice. It was not considered generally applicable on various grounds and the Lukumi Court states, “As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Ibid., quoting Bowen v. Roy, 476 U. S., at 708 (opinion of Burger, C. J.).”[vii] In Lukumi, arguably there were so many exceptions, the rule was clearly targeting religious sacrifices. The Court applied strict scrutiny and the law was deemed unconstitutional. II. The Current Supreme Court and Laws Outside of Smith The current and recent cases indicate that some justices on the Supreme Court assert that the caselaw supports religious exemptions to a broad array of laws. Two arguments support this result: either a limited interpretation of “generally applicable and neutral” or a slightly different tactic which argues that any laws with individual exceptions call for strict scrutiny. (One argument is that those which allow exceptions are not generally applicable and neutral, and thus fall outside of Smith and they require strict scrutiny;[viii] the other is that a law can be generally applicable and neutral, but if it has a system for exceptions, then it is subject to strict scrutiny.[ix]) In John Does 1-3 v. Mills, the Supreme Court denied an injunction on October 29, 2021. The case concerns Maine’s vaccine mandate and will be heard on the merits. Gorsuch dissented from the denial of injunctive relief. He applied Smith, Lukumi, and Fulton v. Philadelphia[x] saying that because there is a medical exemption, the law is not “generally applicable”[xi] and strict scrutiny will apply. Thomas and Alito joined Gorsuch. The Gorsuch dissent also implies that the Maine medical exemption may be somewhat bogus saying Maine finds the “mere trepidation over vaccination as sufficient” if it is expressed in medical rather than religious terms.[xii] Justice Barrett, joined by Kavanaugh, concurred in the denial of the injunction, but clarified that her reasoning was a wish to avoid giving a “merits preview” by enjoining the law, based on the applicants’ likelihood of success, noting the case is “the first to address the questions presented.”[xiii] III. Do Medical Exemptions Negate the Possibility of a Neutral and Generally Applicable Law? Are they a de facto “mechanism for individual exemption”? To me, it seems that under the current law, a medical exemption could make the absence of a religious exemption more problematic. The big issue now is whether Barrett and Kavanaugh and any (even all) other justices are likely to find the medical exemption is a “mechanism for individual exemptions” or whether it otherwise more simply makes a law not neutral or generally applicable. In previous recent COVID-19 cases, the argument of emergency authority was prominent. Caselaw regarding emergency use of governmental powers trumped some constitutional arguments and led to disparate COVID-19 caselaw.[xiv] For example, some courts applied Jacobson v. Massachusetts,[xv] giving deference to public health authorities while others applied strict scrutiny.[xvi] At the Supreme Court level, Justices Sotomayor, Kagan, and Breyer have been more willing to analyze COVID-19 regulations according to emergency powers.[xvii] a. In Favor of the Gorsuch Reasoning The Gorsuch dissent will require the state to offer proof of some rationale for why a medical exemption would be more acceptable, less dangerous, etc. than a religious one. Because there is a medical exemption, the causal nexus between the state’s goals and the restrictions will matter. For example, in Fraternal Order of Police v. Newark, a requirement that police be clean shaven was invalidated because there was a medical exception.[xviii] The problem with the rule was that the government interest in uniformity was not violated any more or less whether the person was noncompliant due to medical as opposed to religious reasons. Gorsuch correctly applied similar reasoning arguing that those not in compliance with the Maine vaccine mandate due to religious exemptions posed no more danger than those noncompliant due to medical conditions.[xix] An opposing side might argue that by the numbers, and without a need for a doctor’s signature, more people would apply for and receive religious exemptions, thus harming the ability to reach herd immunity more, or posing more risk of community spread. b. But, on the other hand There are many laws with medical exemptions. It would not seem right that they be subject to strict scrutiny for failing to offer religious outs as well. For example, places without motorized vehicles could allow motorized wheelchairs. Indeed, the ADA may even call for special treatment in many circumstances where religious special treatment would not be granted. Disability law often requires variances, changing zoning to allow ramps, or other accommodations.[xx] It does not appear that every disability accommodation equates to a need to allow a corresponding religious accommodation, nor that strict scrutiny would apply. Zoning cases are common where churches seek exceptions from historical landmark regulations and the results of those cases vary.[xxi] One of the biggest vulnerabilities of the Smith ruling is that arguably all laws have an individualized enforcement aspect. While it may not be an official exemption or a “mechanism for individual exemption”, individuals have the ability to use courts to challenge laws, there are laws that rely on wishy washy terms, like “good cause”, and there are groups whose failure to comply with laws may be traditionally ignored. In each of those scenarios, those seeking religious exemptions may have a stronger case, and eventually may chip away at Smith. c. Would a Different Built-In Exemption Preclude Application of Smith? Application of Smith may depend on whether the exemption is discretionary or built in. For example, if an exemption said anyone may apply for an exemption with good cause, religious ones should be fairly and equally considered. If an exemption reads anyone with an autoimmune disease is exempt, the class of people exempt would be delineated (unlike the Maine language) rather than discretionary as with the open-ended medical exemption language of the Maine statute. In the case of a class-like exemption, the argument that the law is neutral and generally applicable would be stronger. Smith was not really meant to declare that laws with any categories would be vulnerable to free exercise challenges. Similarly, objective criteria in providing exemptions differs. When criteria for exemptions are made clear, the religious argument could be weaker. However, the Gorsuch argument that in the end the religious objector poses no more danger to others than the medical (or other maybe conscientious, financial, or physical) objector may be the winning argument. IV. Side Note: Another Consideration for Neutral Laws In Roman Catholic Diocese of New York, Justice Kavanaugh created a peer group limitation in applying Smith. Kavanaugh found that a law that limited gatherings at religious services was not neutral. The law had various categories of entity.[xxii] An interesting twist is that other entities similar to churches in objective concrete ways (like theaters) were closed altogether, so arguably religion was favored over those, but disfavored compared to essential businesses (like food stores). The orange and red zones in the challenged Cuomo Executive Order did have specific rules for places of worship. Gorsuch referred to Lukumi in his concurrence and went directly to strict scrutiny without sincerely entertaining the concept that the Executive Order was a neutral and generally applicable law. That is in keeping with his dissent in Does 1-3 v. Mills. Yet, it remains possible to argue that laws with objective, defined categories may still be neutral and generally applicable. V. Time to Abandon Jacobson at this Juncture of COVID-19 Jacobson applies in public health emergencies and, while in recent Supreme Court cases, many justices rightly pointed to the emergency as a reason to compromise important rights, the emergency aspect of the pandemic is waning. In many areas, the positive rate is quite low, businesses are returning to normal, and the vaccination rate is high. As such, the abandonment of strict scrutiny in favor of Jacobson’s emergency deference to public health entities, something Gorsuch failed to entertain in South Bay Pentecostal Church v. Newsom[xxiii] anyway, is arguably no longer warranted. Deference to the state and to experts must be limited to emergencies. Justices Kagan, Breyer, and Sotomayor who rightly cautioned against “armchair epidemiology”[xxiv] during the height of the COVID-19 pandemic might return to stricter stances on protecting rights as the emergency dies down or becomes localized, and as increasing methods and treatments arise, like the COVID-19 pill by Merck. The calculus of whether we need strict COVID-19 regulations is dynamic. This is not a static emergency with powers to be left in place unconditionally. CONCLUSION The argument that vaccination is a civic and moral obligation that people should engage in regardless of religious beliefs is stronger in an emergency. Whether deemed to include a “mechanism for individual exemptions” or just declared not neutral or generally applicable, laws offering any exceptions are more vulnerable to free exercise claims. Under the current Supreme Court composition, anticipating that laws may face strict scrutiny is wise—Smith is unlikely to shield seemingly neutral laws in the face of free exercise cases. That is not necessarily a bad outcome in a country that purports to allow religious freedom and can do so safely. Strict scrutiny is merely a protection that would ensure the public that laws are meaningful, achieve compelling purposes, and do so without unnecessarily impeding fundamental rights. Yet one bad outcome of a rule that says if there are medical exemptions so must there be religious ones is that lawmakers will write laws that are more absolute, rigid, and unyielding to legitimate claims. [i] 494 U.S. 872 (1990). https://supreme.justia.com/cases/federal/us/494/872/#tab-opinion-1958253 [ii] 374 U.S. 398 (1963). https://supreme.justia.com/cases/federal/us/374/398/#tab-opinion-1944463 [iii] Smith, at 879 (religion does not excuse people from compliance with neutral laws.) [iv] Kaplan, Carol M., “The Devil is in the Details: Neutral, Generally Applicable Laws and Exemptions from Smith,” New York University Law Review, October 2000. https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-75-4-Kaplan.pdf [v] Kaplan, at 1053. [vi] Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993). https://supreme.justia.com/cases/federal/us/508/520/#tab-opinion-1959281 [vii] Lukumi, at 537. [viii] Keeler v. Mayor of Cumberland. 940 F. Supp. 879 (D. Md. 1996) https://law.justia.com/cases/federal/district-courts/FSupp/951/83/1381605/; Kaplan, at 1066. [ix] Kaplan, at 1062, citing Swanson v. Guthrie Indep. Sch. Dist., 135 F. Supp. 694 (10th Cir 1998). [x] Fulton v. Philadelphia, 593 U.S. __ (2021) [xi] Does 1-3 v. Mills, 595 U.S. ____(2021). Gorsuch, dissent, p. 2. https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf [xii] Does 1-3 v. Mills, Gorsuch dissent, p. 3. [xiii] Does 1-3 v. Mills, Barret, concurring. https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf [xiv] Zimmerman, A. “Weeding Out Disingenuous Emergency Orders: A Consistent Ethical Justification to Determine Whether to Apply Jacobson V. Massachusetts’ Deferential Approach or the Tiered Scrutiny That Would Apply Absent an Emergency”. 2021. Voices in Bioethics, vol. 7, May 2021, doi:10.7916/vib.v7i.8037. [xv] 197 US 11 (1905). [xvi] Zimmerman, A. 2021. doi:10.7916/vib.v7i.8037. [xvii] South Bay Pentecostal Church v. Newsom (2021), Kagan, dissenting, joined by Breyer and Sotomayor (Justices are “not scientists”.) [xviii] Kaplan, at 1079, citing Fraternal Order of Police v. City of Newark, 170 F. 3d 359 (3d Cir. 1999). [xix] Does 1-3 v. Mills, Gorsuch dissent, p. 4. [xx] https://www.ada.gov/comprob.htm [xxi] Keeler v. Mayor of Cumberland (provisions deemed individualized exemptions so religious deserve strict scrutiny and consideration); Rector of St. Bartholomew’s Church v. City of New York (2d Cir. 1990)(discretion does not negate Smith if it is not discriminatory so religious does not get strict scrutiny); see Kaplan at 1066. [xxii] Cuomo executive order established zones. https://esd.ny.gov/cluster-action-initiative-faq [xxiii] 592 US __ (2021). https://www.supremecourt.gov/opinions/20pdf/20a136_bq7c.pdf [xxiv] South Bay Pentecostal Church v. Newsom (2021) (dissent).

In the mining industry, provision of new habitat through land rehabilitation and affforestation is an important step to anticipate the loss of biodiversity, including bird communities. The positive impacts of land rehabilitation and affforestation thus can be identified from results of periodic monitoring. The turnover of bird communities associated with afforestation is related to changes in structural habitat features that provide food and shelter. In this study, we have monitored bird community assemblages and feeding guild structure in revegetated area of karst in Rembang, Central Java. Three locations (EDP, GBC and GBL) were selected and characterized by different land use, vegetational age and floral composition. Surveys were conducted using point count method in early April for three consecutive years (2020-2022). In total, we have identified 32 bird species from 29 genera, 22 families and 9 orders. Most of birds observed considered as generalist, cosmopolitan and well-adapted to various habitat. Total species richness (19.33±3.22 to 20.67±4.12) and value of diversity index (H’ = 2.41±0.14 to 2.56±0.29) were only slightly differed among locations. Species richness and total abundance in each sites tend to increase along periods of observation, suggesting that bird community change in response to further structural habitat changes that occur as vegetations age. Furthermore, higher abundance occurred in larger area or in sites with more native plant species. The feeding guild costisting 7 groups and dominated by insectivore, both based on number of species (46.88%) and individuals (49.07%). Results of the study are expected to help identify more appropriate management of conservation and habitat restoration in the area.

Abstract. Yarnvudhi A, Leksungnoen N, Siri S, Ponpithuk Y, Sukmasuang R, Duengkae P, Pongcharoen C, Sutummawong N, Marod D, Wachrinrat C, Premashthira A, Tor-ngern P, Poungcharean S, Hermuk S, Kachina P. 2022. Monetary evaluation of supporting ecosystem services as a habitat provider for birds in Thailand urban park. Biodiversitas 23: 4747-4758. Supporting services are important services to maintain ecosystems by providing habitats for organisms and genetic diversity. In this study, the monetary value of supporting services for bird habitats in urban parks was evaluated based on the price for nursing each bird species and market value. Bird diversity was conducted using point count observation. We found total of 53 bird species, 27 families and 8 orders in the park. Total monetary benefit for bird habitats in this park was estimated to be around USD60,354.12 per individual bird with an average value of USD1,138.76 per bird per species. The top three species with the highest monetary value were the Painted Stork (Mycteria leucocephala), Asian Openbill (Anastomus oscitans), and Chinese Pond Heron (Ardeola bacchus). The species diversity index of the bird community (H') was 2.73 and the most abundant bird species were Eastern Spotted Dove (Spilopelia chinensis), Eurasian tree sparrow (Passer montanus), Eastern jungle crow (Corvus levaillantii), Oriental magpie robin (Copsychus saularis), and Coppersmith Barbet (Psilopogon haemacephalus). Among 4 microhabitats, birds were found the most in the trees, followed by lawn, grassland, and wetland areas. The small urban parks should be designed with diverse microhabitats to provide various ecological functions to attract and ensure adequate resources for organisms.

Abstract. Malaki ABB, Alcazar SMT, LILLO EP, Rosales RC, Redoblado BR, DIAZ JL. 2021. Diversity and conservation status of avifauna in Mount Lantoy Key Biodiversity Areas (KBA) in Cebu Island, Philippines. Biodiversitas 23: 671-678. A study on the bird community in Mount (Mt.) Lantoy Key Biodiversity Areas (KBA) was carried out to determine its diversity and conservation status to conserve, protect, and rehabilitate forest habitat within the KBA. The study was conducted across three sampling sites. By using the transect, point count, and mist nets, we found 1,340 individuals belonging to 31 orders, 32 families, and 44 species within the study sites. There were five dominant bird species, i.e., Hypsipetes philippinus (J.R.Forster, 1795), Phapitreron leucotis (Temminck, 1823), Psilopogon haemacephalus (P.L.S.Müller, 1776), Nectarinia jugularis (Linnaeus, 1766), and the endangered Kittacincla cebuensis (Steere, 1890). We also found rare bird species within the study site, such as Haliastur indus (Boddaert, 1783), Geopelia striata (Linnaeus, 1766), Monticola solitarius (Linnaeus, 1758), Oriolus chinensis (Linnaeus, 1766), Dendrocopos maculatus (Scopoli, 1786), Pycnonotus goiavier (Scopoli, 1786), and Rallina eurizonoides (Lafresnaye, 1845). We also found six Philippine endemics, including K. cebuensis, Ninox rumseyi (Rasmussen et al. 2012), H. philippinus, D. maculatus, Loriculus philippensis (Statius Muller, 1776), and Caprimulgus manillensis (Walden, 1875). Based on the IUCN Red List of Threatened Species, two species are Endangered, and 42 species are Least Concern (LC). Using the "Checklist of the Birds of the Philippines," we found two species are Endangered, two species are Near Threatened, and 40 species are LC. The diversity of birds in Mt. Lantoy KBA was moderate. We considered that this KBA is highly exposed to various forest or habitat disturbances such as land-use conversion, charcoal making, firewood gathering, slash-and-burn method of cultivation, and infrastructure development. There is a need to strictly implement the policies governing the utilization of forest resources to augment the diversity of the study site.

It is the same spectacle all over the Western world: whenever delegates gather to discuss the development and consequences of new media technologies, a handful of people among them will stand out from the crowd, and somehow seem not quite to fit in with the remaining assortment of techno-evangelists, Internet ethnographers, multimedia project leaders, and online culture critics. At some point in the proceedings, they'll get to the podium and hold a talk on their ideas for the future of copyright protection and intellectual property (IP) rights in the information age; when they are finished, the reactions of the audience typically range from mild "what was that all about?" amusement to sheer "they haven't got a clue" disbelief. Spare a thought for copyright lawyers; they're valiantly fighting a losing battle. Ever since the digitalisation and networking of our interpersonal and mass media made information transmission and duplication effortless and instantaneous, they've been trying to come up with ways to uphold and enforce concepts of copyright which are fundamentally linked to information as bound to physical objects (artifacts, books, CDs, etc.), as Barlow has demonstrated so clearly in "Selling Wine without Bottles". He writes that "copyright worked well because, Gutenberg notwithstanding, it was hard to make a book. ... Books had material surfaces to which one could attach copyright notices, publisher's marques, and price tags". If you could control the physical media which were used to transmit information (paper, books, audio and video tapes, as well as radio and TV sets, or access to cable systems), you could control who made copies when and where, and at what price. This only worked as long as the technology to make copies was similarly scarce, though: as soon as most people learnt to write, or as faxes and photocopiers became cheaper, the only real copyright protection books had was the effort that would have to be spent to copy them. With technology continuously advancing (perhaps even at accellerating pace), copyright is soon becoming a legal fiction that is losing its link to reality. Indeed, we are now at a point where we have the opportunity -- the necessity, even -- to shift the fictional paradigm, to replace the industrial-age fiction of protective individual copyright with an information-age fiction of widespread intellectual cooperation. As it becomes ever easier to bypass and ignore copyright rules, and as copyright thus becomes ever more illusionary, this new fiction will correspondingly come ever closer to being realised. To Protect and to ... Lose Today, the lawyers' (and their corporate employers') favourite weapon in their fight against electronic copyright piracy are increasingly elaborate protection mechanisms -- hidden electronic signatures to mark intellectual property, electronic keys to unlock copyrighted products only for legitimate users (and sometimes only for a fixed amount of time or after certain licence payments), encryption of sensitive information, or of entire products to prevent electronic duplication. While the encryption of information exchanges between individuals has been proven to be a useful deterrent against all but the most determined of hackers, it's interesting to note that practically no electronic copyright protection mechanism of mass market products has ever been seen to work. However good and elaborate the protection efforts, it seems that as long as there is a sufficient number of interested consumers unwilling to pay for legitimate access, copy protections will be cracked eventually: the rampant software piracy is the best example. On the other hand, where copy protections become too elaborate and cumbersome, they end up killing the product they are meant to protect: this is currently happening in the case of some of the pay-per-view or limited-plays protection schemes forced upon the U.S. market for Digital Versatile Discs (DVDs). The eventual failure of such mechanisms isn't a particularly recent observation, even. When broadcast radio was first introduced in Australia in 1923, it was proposed that programme content should be protected (and stations financed) by fixing radio receivers to a particular station's frequency -- by buying such a 'sealed set' receiver you would in effect subscribe to a station and acquire the right to receive the content it provided. Never known as uninventive, those Australians who this overprotectiveness didn't completely put off buying a receiver (radio was far from being a proven mass medium at the time, after all) did of course soon break the seal, and learnt to adjust the frequency to try out different stations -- or they built their own radios from scratch. The 'sealed set' scheme was abandoned after only nine months. Even with the development of copy protection schemes since the 1920s, a full (or at least sufficiently comprehensive) protection of intellectual property seems as unattainable a fiction as it was then. Protection and copying technology are never far apart in development anyway, but even more fundamentally, the protected products are eventually meant to be used, after all. No matter how elaborately protected a CD, a video, or a computer programme is, it will still have to be converted into sound waves, image information, or executable code, and at that level copying will still remain possible. In the absence of workable copy protection, however, copies will be made in large amounts -- even more so since information is now being spread and multiplied around the globe virtually at the speed of light. Against this tide of copies, any attempts to use legislation to at least force the payment of royalties from illegitimate users are also becoming increasingly futile. While there may be a few highly publicised court cases, the multitude of small transgressions will remain unanswered. This in turn undermines the equality before the law that is a basic human right: increasingly, the few that are punished will be able to argue that, if "everybody does it", to single them out is highly unfair. At the same time, corporate efforts to uphold the law may be counterproductive: as Barlow writes, "against the swift tide of custom, the Software Publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law". Quite simply, their legal costs may not be justified by the results anymore. Abandoning Copyright Law If copyright has become a fiction, however -- one that is still, despite all evidence, posited as reality by the legal system --, and if the makeup of today's electronic media, particularly the Internet, allow that fiction to be widely ignored and circumvented in daily practice -- despite all corporate legal efforts --, how is this disparity between law and reality to be solved? Barlow offers a clear answer: "whenever there is such profound divergence between the law and social practice, it is not society that adapts". He goes on to state that it may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place. But something will happen. After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices, and ethical systems. While technology may undo law, technology offers methods for restoring creative rights. When William Gibson invented the term 'cyberspace', he described it as a "consensual hallucination" (67). As the removal of copyright to the realm of the fictional has been driven largely by the Internet and its 'freedom of information' ethics, perhaps it is apt to speak of a new approach to intellectual property (or, with Barlow, to 'creative rights') as one of consensual, collaborative use of such property. This approach is far from being fully realised yet, and must so for now remain fiction, too, but it is no mere utopian vision -- in various places, attempts are made to put into place consensual schemes of dealing with intellectual property. They also represent a move from IP hoarding to IP use. Raymond speaks of the schemes competing here as the 'cathedral' and the 'bazaar' system. In the cathedral system, knowledge is tightly controlled, and only the finished product, "carefully crafted by individual wizards or small bands of mages working in splendid isolation" (1), is ever released. This corresponds to traditional copyright approaches, where company secrets are hoarded and locked away (sometimes only in order to keep competitors from using them), and breaches punished severely. The bazaar system, on the other hand, includes the entire community of producers and users early on in the creative process, up to the point of removing the producer/user dichotomy altogether: "no quiet, reverent cathedral-building here -- rather, ... a great babbling bazaar of differing agendas and approaches ... out of which a coherent and stable system could seemingly emerge only by a succession of miracles", as Raymond admits (1). The Linux 'Miracle' Raymond writes about one such bazaar-system project which provides impressive proof that the approach can work, however: the highly acclaimed Unix-based operating system Linux. Instigated and organised by Finnish programmer Linus Torvalds, this enthusiast-driven, Internet-based development project has achieved more in less than a decade than what many corporate developers (Microsoft being the obvious example) can do in thrice that time, and with little financial incentive or institutional support at that. As Raymond describes, "the Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximise utility which in the process produces a self-correcting spontaneous order more elaborate and efficient than any amount of central planning could achieve" (10). Thus, while there is no doubt that individual participants will eventually always also be driven by selfish reasons, there is collaboration towards the achievement of communal goals, and a consensus about what those goals are: "while coding remains an essentially solitary activity, the really great hacks come from harnessing the attention and brainpower of entire communities. The developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which bug-spotting and improvements get done by hundreds of people" (Raymond 10). It is obvious that such collaborative projects need a structure that allows for the immediate participation of a large community, and so in the same way that the Internet has been instrumental in dismantling traditional copyright systems, it is also a driving factor in making these new approaches possible: "Linux was the first project to make a conscious and successful effort to use the entire world as its talent pool. I don't think it's a coincidence that the gestation period of Linux coincided with the birth of the World Wide Web, and that Linux left its infancy during the same period in 1993-1994 that saw the takeoff of the ISP industry and the explosion of mainstream interest in the Internet. Linus was the first person who learned how to play by the new rules that pervasive Internet made possible" (Raymond 10). While some previous collaborative efforts exist (such as shareware schemes, which have existed ever since the advent of programmable home computers), their comparatively limited successes underline the importance of a suitable communication medium. The success of Linux has now begun to affect corporate structures, too: informational material for the Mozilla project, in fact, makes direct reference to the Linux experience. On the Net, Mozilla is as big as it gets -- instituted to continue development of Netscape Communicator-based Web browsers following Netscape's publication of the Communicator source code, it poses a serious threat to Microsoft's push (the legality of which is currently under investigation in the U.S.) to increase marketshare for its Internet Explorer browser. Much like Linux, Mozilla will be a collaborative effort: "we intend to delegate authority over the various modules to the people most qualified to make decisions about them. We intend to operate as a meritocracy: the more good code you contribute, the more responsibility you will be given. We believe that to be the only way to continue to remain relevant, and to do the greatest good for the greatest number" ("Who Is Mozilla.org?"), with the Netscape corporation only one among that number, and a contributor amongst many. Netscape itself intends to release browsers based on the Mozilla source code, with some individual proprietary additions and the benefits corporate structures allow (printed manuals, helplines, and the like), but -- so it seems -- it is giving up its unlimited hold over the course of development of the browser. Such actions afford an almost prophetic quality to Barlow's observation that "familiarity is an important asset in the world of information. It may often be the case that the best thing you can do to raise the demand for your product is to give it away". The use of examples from the computer world should not be seen to mean that the consensual, collaborative use of intellectual property suggested here is limited only to software -- it is, however, no surprise that a computer-based medium would first be put to use to support computer-based development projects. Producers and artists from other fields can profit from networking with their peers and clients just as much: artists can stay in touch with their audience and one another, working on collaborative projects such as the brilliant Djam Karet CD Collaborator (see Taylor's review in Gibraltar), professional interest groups can exchange information about the latest developments in their field as well as link with the users of their products to find out about their needs or problems, and the use of the Net as a medium of communication for academic researchers was one of its first applications, of course. In many such cases, consensual collaboration would even speed up the development process and help iron out remaining glitches, beating the efforts of traditional institutions with their severely guarded intellectual property rights. As Raymond sees it, for example, "no commercial developer can match the pool of talent the Linux community can bring to bear on a problem", and so "perhaps in the end the free-software culture will triumph not because cooperation is morally right or software 'hoarding' is morally wrong ... , but simply because the commercial world cannot win an evolutionary arms race with free-software communities that can put orders of magnitude more skilled time into a problem" (10). Realising the Fiction There remains the problem that even the members of such development communities must make a living somehow -- a need to which their efforts in the community not only don't contribute, but the pursuit of which even limits the time available for the community efforts. The apparent impossibility of reconciling these two goals has made the consensual collaborative approach appear little more than a utopian fiction so far, individual successes like Linux or (potentially) Mozilla notwithstanding. However, there are ways of making money from the communal work even if due to the abolition of copyright laws mere royalty payments are impossible -- as the example of Netscape's relation to the Mozilla project shows, the added benefits that corporate support can bring will still seem worth paying for, for many users. Similarly, while music and artwork may be freely available on the Net, many music fans will still prefer to get the entire CD package from a store rather than having to burn the CD and print the booklet themselves. The changes to producer/user relations suggested here do have severe implications for corporate and legal structures, however, and that is the central reason why particularly the major corporate intellectual property holders (or, hoarders) and their armies of lawyers are engaged in such a fierce defensive battle. Needless to say, the changeover from the still-powerful fiction of enforcible intellectual property copyrights to the new vision of open, consensual collaboration that gives credit for individual contributions, but has no concept of an exclusive ownership of ideas, will not take place overnight. Intellectual property will continue to be guarded, trade secrets will keep being kept, for some time yet, but -- just as is the case with the established practice of patenting particular ideas just so competitors can't use them, but without ever putting them to use in one's own work -- eventually such efforts will prove to be self-defeating. Shutting one's creative talents off in a quiet cathedral will come to be seen as less productive than engaging in the creative cooperation occuring in the global bazaar, and solitary directives of central executives will be replaced by consensual decisions of the community of producers and users. As Raymond points out, "this is not to say that individual vision and brilliance will no longer matter; rather, ... the cutting edge ... will belong to people who start from individual vision and brilliance, then amplify it through the effective construction of voluntary communities of interest" (10). Such communal approaches may to some seem much like communism, but this, too, is a misconception. In fact, in this new system there is much more exchange, much more give and take going on than in the traditional process of an exchange of money for product between user and producer -- only the currency has changed. "This explains much of the collective 'volunteer' work which fills the archives, newsgroups, and databases of the Internet. Its denizens are not working for 'nothing,' as is widely believed. Rather they are getting paid in something besides money. It is an economy which consists almost entirely of information" (Barlow). And with the removal of the many barriers to the free flow of information and obstacles to scientific and artistic development that traditional copyright has created, the progress of human endeavour itself is likely to be sped up. In the end, then, it all comes down to what fictions we choose to believe or reject. In the light of recent developments, and considering the evidence that suggests the viability, even superiority of alternative approaches, it is becoming increasingly hard to believe that traditional copyright can, and much less, should be sustained. Other than the few major copyright holders, few stand to gain from upholding these rights. On the other hand, were we to lift copyright restrictions and use the ideas and information thus made available freely in a cooperative, consensual, and most of all productive way, we all might profit. As various projects have shown, that fiction is already in the process of being realised. References Barlow, John Perry. "Selling Wine without Bottles: The Economy of Mind on the Global Net." 1993. 26 Jan. 1999 <www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.php>. Gibson, William. Neuromancer. London: HarperCollins, 1984. Raymond, Eric S. "The Cathedral and the Bazaar." 1998. 26 Jan. 1999 <http://www.redhat.com/redhat/cathedral-bazaar/cathedral-bazaar.php>. Taylor, Mike. "Djam Karet, Jeff Greinke, Tim Song Jones, Nick Peck, Kit Watkins." Gibraltar 5.12 (22 Apr. 1995). 10 Feb. 1999 <http://www.progrock.net/gibraltar/issues/Vol5.Iss12.htm>. "Who Is Mozilla.org?" Mozilla.org Website. 1998. 26 Jan. 1999 <http://www.mozilla.org/about.php>. Citation reference for this article MLA style: Axel Bruns. "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property." M/C: A Journal of Media and Culture 2.1 (1999). [your date of access] <http://www.uq.edu.au/mc/9902/copy.php>. Chicago style: Axel Bruns, "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property," M/C: A Journal of Media and Culture 2, no. 1 (1999), <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]). APA style: Axel Bruns. (1999) The fiction of copyright: towards a consensual use of intellectual property. M/C: A Journal of Media and Culture 2(1). <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]).

Photo by Jeremy Wong on Unsplash ABSTRACT In response to the threat of COVID-19, CMS issued unprecedented restrictions severely limiting the liberty of older adults residing in long-term care. Older adults are identified as at a high risk of becoming infected through exposure to SARS-Cov-2 and of suffering the most severe morbidity and mortality. While protecting the individual from disease, the restrictions also had a determinantal effect. The restrictions exacerbated social isolation and loneliness, two pervasive public health concerns within the older adult population. Legally, the restrictions pass constitutional muster. The ethical analysis presents more questions and debates. Initially, the restrictions to protect the older adult were grounded in public health ethics and bioethics principles. However, the ethical lines become blurred as the risk of harm secondary to isolation increased over the time that the restrictions remained in effect. The ethical point of view becomes more divergent considering the restrictions also preserved medical resources for the greater good of society, arguably diverting them to serve younger people. We have a moral obligation to reduce social isolation and recognize the older adult as a valuable member of society with equal worth and dignity. INTRODUCTION In response to the threat of COVID-19, CMS issued unprecedented restrictions severely limiting the liberty of older adults residing in long-term care. Older adults are identified as at a high risk of becoming infected from exposure to SARS-Cov-2 and from suffering the most severe morbidity and mortality. While protecting the individual from disease, the restrictions also had a determinantal effect. The restrictions exacerbated social isolation and loneliness, two pervasive public health concerns within the older adult population. Legally, the restrictions pass Constitutional muster. The ethical analysis presents more questions and debates. Initially, the restrictions to protect the older adult were grounded in public health ethics and bioethics principles. However, the ethical lines become blurred as the risk of harm secondary to isolation increased over the time that the restrictions remained in effect. The devastation of COVID-19 within the older adult population extends beyond the immediate risk and harm of infection. At the beginning of the COVID-19 pandemic, experts determined that older adults, especially those living in long-term care, were at a greater risk of becoming infected and depleting scarce medical resources. Two days after WHO declared the pandemic, the Centers for Medicare & Medicaid Services (CMS) followed the Centers for Disease Control (CDC) recommendations and announced mitigation measures that required long-term care facilities to (1) restrict volunteers and nonessential personnel from entering the facility; (2) cancel all group activities and communal dining; (3) screen residents and health care personnel for fever and respiratory symptoms; and (4) encourage residents to stay in their rooms. The social isolation resulting from the mitigation measures posed a credible threat to five core domains of healthy aging: (1) promoting health; preventing injury and managing chronic conditions; (2) cognitive health; (3) physical health; (4) mental health; and (5) facilitating social engagement.[1] l. Social Isolation and Loneliness COVID-19 highlighted two pervasive public health concerns confronting older adults—social isolation and loneliness. Social isolation is an objective deficit in the number of relationships and the frequency of contact with family, friends, and the community.[2] Social Isolation is a risk factor for loneliness. Loneliness is the subjective perception of a lack of meaningful relationships.[3] Loneliness has three dimensions: (1) absence of a significant person to provide emotional support and affirm one’s value as a person; (2) absence of a small group of people seen regularly, such as a card group; and (3) absence of a larger network group of people who provide support by being together as a group, for example, church services or rotary meetings.[4] COVID-19 restrictions affected all three dimensions. Social isolation can be as dangerous as smoking fifteen cigarettes per day, earning its designation as a public health priority.[5] Isolation increases the risk of cardiovascular disease, obesity, anxiety, and depression. Loneliness can lead to depression, alcoholism, and suicidal thoughts.[6] Some studies found that loneliness is also a factor in cognitive decline. For example, caregivers reported that 63 percent of older adults with cognitive impairment experienced cognitive decline during the COVID-19 pandemic.[7] In 2017, the American Association of Retired Persons (AARP) reported that social isolation accounted for $6.7 billion in additional Medicare spending although only 14 percent of older adults in the US reported being socially isolated.[8] Approximately 24 percent of community-dwelling older adults in the US are socially isolated. Forty-three percent of adults aged 60 and older report feeling lonely. Those living in long-term care report loneliness at a rate of at least double of community-dwelling older adults.[9] WHO defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”[10] A broad definition of health highlights the detriment of social isolation in older adults. There is a moral obligation to mitigate the effect of isolation.[11] The additional Medicare spending costs attributable to the effects of social isolation secondary to COVID-19 will be extraordinary. Providing social support will directly benefit older adults and indirectly benefit society by reducing Medicare spending associated with the effects of social isolation. Combating the pervasiveness of social isolation requires immediate collaborative community action. Many long-term care residents who depend on visits from family and friends to socialize increasingly felt lonely, abandoned, and despondent,[12] increasing the risk of feeling grief and loss, including individual and collective trauma reactions.[13] Also, normally social opportunities, medical, and legal appointments defaulted to telephone or virtual appointments. The cessation of in-person medical appointments interfered with optimal management of chronic conditions and preventive care. Some older adults lack access to the technology, are unfamiliar with technology, or cannot use technology for other reasons. At least one study supports the potential for older adults to benefit from technology and suggests that training could promote long-term benefits in older adults aged 80 years and over.[14] Focusing on technological advances specific to older adults with input from older adults should be a priority. When communal dining abruptly stopped, residents had to eat all their meals alone in their rooms. Older adults often mention the difficulty of eating meals alone, especially if recently divorced, widowed, or otherwise separated from a spouse or partner. Closure of the exercise facilities limited the ability of an older adult to stay physically active. Reduced physical activity creates long-term adverse health effects.[15] ll. Measures to Mitigate Isolation To facilitate some contact, long-term care facilities devised window visits. The resident remained safely inside the locked facility, standing or seated in front of a window. Visitors stood outside in the grass or parking lot. Any conversation took place over the telephone. To simulate physical contact, residents and visitors pressed their palms together, separated by the glass barrier. The window visits recall the prison visits depicted in movies and television. In late June 2020, CMS relaxed the restrictions and advised that long-term care facilities could resume some communal activities and permit outdoor visits. Although CMS eased the restrictions, interpersonal contact remained minimal. Outdoor visits required scheduling an appointment during limited hours of availability. The facilities limited the visits per week and the duration of each visit to thirty minutes. In addition, the staff enforced wearing personal protective equipment and maintaining physical distancing. Several impracticalities diminished the optimism of the relaxed restrictions. Residents could leave their rooms for meals but remained physically separated at a distance that prevented any meaningful interaction. Similarly, the limitations on the in-person visits presented problems. Non-resident spouses with mobility challenges found the outdoor access difficult, if not impossible. Residents or spouses with hearing and vision losses experienced challenges in communicating while sitting outside, six feet apart, and wearing masks.[16] lll. Legal Precedent for Emergency Measures The primary legal issue stems from the conflict between individual liberty and the public good or health. Jacobson v. Massachusetts provides a framework for balancing individual liberty rights and the public good during a pandemic.[17] Jacobson clarified an essential point of law - the rights and liberties secured by the US Constitution are not absolute.[18] Faced with a pandemic, a community has the right to protect members of the community.[19] Jacobson outlines four standards for imposing public health mandates during a pandemic. First, the State overreaches when it uses public health powers unnecessarily.[20] Second, the state must use the least restrictive means to prevent harm.[21] Third, the state must use reasonable means expected to prevent or ameliorate a health threat.[22] Finally, the intervention must not pose an undue risk.[23] The guidelines in Jacobson, established during the smallpox pandemic, apply to COVID-19. In response to the threat of COVID-19, public health authorities enacted mandates to protect the public, especially older adults, against the highly contagious and virulent virus. The CMS restrictions specifically addressed older adults living in long-term care facilities. While the CMS directives obstructed residents’ liberties, they also contradicted the Assisted Living Facility social model, which places autonomy and independence at the forefront. Given the gravity of harm and the uncertainties in the early phases of the pandemic, the restrictions were arguably the least restrictive means to manage the immediate threat. The effectiveness varied from facility to facility, with many deaths throughout the US in long-term care facilities. While valuable early in the pandemic, at some point the continuation of the mitigation measures increased social isolation and its associated risks. In Jew Ho v. Williamson, the Supreme Court overturned a quarantine order to contain the bubonic plague.[24] The officials enforced the order only against a targeted ethnic population which did not present an identified risk.[25] In reaching its decision, the Court determined that the quarantine order was not a reasonable regulation to prevent the spread of the bubonic plague. Rather, it was racially motivated. The Court ruled that the government cannot impose public health orders in a racially invidious manner.[26] There are similarities between Jew Ho and the CMS restrictions. Like the quarantine order in Jew Ho, the restrictions targeted a specific population. But with COVID-19 older adults were an identified high-risk population because of their susceptibility to infection and severe illness. During the early phases of the pandemic, the directives were reasonable to accomplish the purpose of preventing the spread in the identified high-risk population. They were not discriminatory according to the rule of law in Jew Ho. The argument supporting the constitutionality of the CMS restrictions wanes as the length of the safety precautions increased. lV. Ethical Analysis of the Lengthy Social Isolation The CMS restrictions require the ethical analysis of harm, proportionality, reciprocity, and transparency. As well as analysis under the principles of autonomy, beneficence, non-maleficence, and justice. a. Harm and Proportionality As previously discussed, older adult long-term care residents were more susceptible to COVID-19 and to severe physical effects requiring hospitalization. In addition, older adults are more likely to die from COVID-19. Based on a totality of the circumstances and what we knew about the virus in the early phases of the pandemic, the restrictions were the least restrictive means to protect this high-risk population. But the question of proportionality requires ongoing assessment and re-evaluation. While the initial uncertainty and chaos justified the restrictions, as the pandemic continued and the risk of harm from the restrictions increased, the pendulum began to swing. At some point, upon proof or likelihood of safety, less restrictive alternatives should have been adopted. b. Reciprocity The concept of reciprocity is a core principle of public health and requires the balancing of the benefits and burdens of the social cooperation.[27] When individuals sacrifice their liberty for the benefit of others, they should not be penalized as a result of making the sacrifice, and thus society owes a reciprocal obligation to the individuals, such as providing individuals support and not discriminating against them.[28] Residents did not have any input or choice when CMS and the administrators stripped away their autonomy and liberties. While the restrictions protected the individual resident from the direct harm of infection, the restrictions also protected society from the indirect harm of the depletion of scarce medical resources. Public health officials identified long-term care residents as most likely to require significant medical resources. One talking point repeatedly broadcast was the need to prevent the depletion of hospital beds, ventilators, medications, and supplies. Most assisted-living facilities are for-profit, and residents pay for their food, shelter, and personal needs. What does society owe these long-term care residents in return for the liberty they sacrificed for the benefit of society at large? At the very least, I suggest we owe these individuals the commitment to conduct research exploring and addressing the effects of the restrictions. c. Transparency by Government, the Media, and the Long-Term care Facilities The communications from government and public health officials about the pandemic and the restrictions were opaque, leaving unanswered questions, doubts, and speculation. Some facilities provided families with basic information communicated through robocall messaging, with words of encouragement, painting rosy pictures of the residents' sequestered daily lives. Public health officials assert the common good and protecting the public’s safety and health justify paternalism and compulsory powers.[29] One counterargument is that the compulsory interventions or restrictions push paternalism to new levels.[30] The COVID-19 pandemic and the mitigation interventions highlight this tension between libertarian and epidemiological models based on (1) shortages that triggered rationing and prioritization; and (2) measures that safeguarded public health but infringed on individual rights.[31] d. Autonomy, Beneficence, and Non-Maleficence Through a bioethical lens, we immediately see the clash between the CMS restrictions and the long-term care residents’ autonomy. However, autonomy is not absolute. There was a benefit for the individual resident: the protection from a deadly virus. Thus, I argue that the initial restrictions were beneficent. Yet I also point to the deleterious secondary physical and emotional effects of the isolation and assert that the restrictions should have been safely modified as new information on viral spread and safety came about. We can accept the beneficence of protecting the high-risk resident from a deadly disease while acknowledging the associated harm. However, at some point, we must also ask if the harm experienced due to prolonged severe restrictions reached a level that exceeded the boundaries of beneficence and became maleficent. Perceiving the long-term care resident as a passive recipient of care is paternalistic and antithetical to autonomy and a person-centered approach.[32] Instead, society must recognize older adults as essential stakeholders in policymaking. The direct and active involvement of older adults allows the individual to retain agency rather than becoming a passive recipient of care.[33] Prioritization of the older adult as an autonomous active participant counters ageism and promotes autonomy. e. Justice Justice calls for analysis of several discrepancies. First, the special protection of long-term care residents seems justifiable due to their special vulnerability. CMS treated long-term care facilities alike. Most community-dwelling older adults could decide whether to adhere to stay-at-home restrictions and were not subject to the same level of enforcement that existed within long-term care facilities. The restrictions were far more oppressive for long-term care residents. In response to the assertion that selective lockdown discriminates against older adults, the same arguments discussed above demonstrate the morally relevant justification: older adults are more likely to require hospitalization and die from COVID-19.[34] One convincing argument against restrictions on older adults echoing Kant’s categorical imperative argues that selectively restricting older adults for the good of other people amounts to treating older adults as a means to an end for others.[35] While the restrictions imposed on the individual might slow the spread of the disease within the specific long-term care facility, which protects that individual resident, they also impose on the individual resident to serve the greater good: the preservation of scarce medical resources. The second application pushes the restrictive measures closer to violating Kant’s categorical imperative by treating the older adult as a means to the end of others. That is, younger people and those living outside of long-term care would have more hospital resources available to them if long-term care residents were more severely isolated keeping them from needing hospitalization. From a Kantian perspective, the categorical imperative demands respecting the dignity of persons—Kant’s supreme (formal) principle.[36] When we consider the restrictions, I suggest that we must also consider the impact on dignity. It has been suggested that dignity is the “overarching principle of bioethics.”[37] In the context of an analysis of the socially isolating COVID-19 mitigation measures on older adults in long-term care facilities, we should consider the relational aspect of dignity, recognizing the adult as having value and equal worth. The protracted imposed isolation of older adults to preserve medical resources devalues older adults. Ongoing COVID-19 restrictions should be analyzed for their unjustified harms. A second justice concern outside the scope here is that long-term care facilities are resourced differently, and had different results due to quality of care, number of staff, infection control protocols, and previous health infraction records. CONCLUSION The myopic focus on mortality ignores the risks of morbidity secondary to the devastating effects of social isolation on the older adult’s health and quality of life. The paternalistic prevention eclipsed the resident’s autonomy. At some point, the attention and priority must shift. When formulating policies, we must figure out at what point or in which situations the negative impact of restrictions outweighs the protective benefits. Although the restrictions may have slowed the spread of COVID-19, we must not discount the negative consequences, which may be long-term. From an ethical perspective, we must acknowledge the harm that has occurred within this population and accept the responsibility to redress the harm and prevent repeating the mistakes. The prolonged restrictions stretched legal and ethical boundaries. The mixed purpose of the restrictions (protecting the individual resident and preserving healthcare resources) makes the ethical analysis more challenging. Yet doing something for someone’s own good is still paternalistic and problematic. The public health justification includes the collective. We must confront the tough questions about the efficacy of pandemic mitigation measures and the mitigation measures’ adverse consequences. Leaving the doors to long-term care facilities open during the pandemic would have exposed every resident and staff member to a contagion that presented a significant risk of morbidity and mortality. But locking the doors exacerbated social isolation and loneliness, increasing the risk of morbidity and mortality. Julian Savulescu may be correct that there was no desirable solution. We must still work to find better solutions that will reduce social isolation and recognize the older adult as a valuable member of society with equal worth and dignity. [1] Coronavirus Disease 2019 (COVID-19) Nursing Homes & Long-term care Facilities. (n.d.). Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/index.html. [2]Escalante, E., Golden, R. L., & Mason, D. J. (2020). Social Isolation and Loneliness: Imperatives for Health Care in a Post-COVID World. JAMA Health Forum, 1(12),e201597. https://doi.org/10.1001/jamahealthforum.2020.1597. [3] D'cruz, M., & Banerjee, D. (2020). ‘An invisible human rights crisis’: The marginalization of older adults during the COVID-19 pandemic – An advocacy review. Psychiatry Research, 292, 113369. https://doi.org/10.1016/j.psychres.2020.113369. [4] Simard, J., & Volicer, L. (2020). Loneliness and Isolation in Long-term care and the COVID-19 Pandemic. Journal of the American Medical Directors Association, 21(7), 966–967. https://doi.org/10.1016/j.jamda.2020.05.006. [5] Escalante, E., Golden, R. L., & Mason, D. J. (2020). Social Isolation and Loneliness: Imperatives for Health Care in a Post-COVID World. JAMA Health Forum, 1(12). https://doi.org/10.1001/jamahealthforum.2020.1597. [6] Simard, J., & Volicer, L. (2020). Loneliness and Isolation in Long-term care and the COVID-19 Pandemic. Journal of the American Medical Directors Association, 21(7), 966–967. https://doi.org/10.1016/j.jamda.2020.05.006. [7] Batsis, J. A., Daniel, K., Eckstrom, E., Goldlist, K., Kusz, H., Lane, D., … Friedman, S. M. (2021, January 26). Promoting Healthy Aging During COVID‐19. American Geriatrics Society. https://agsjournals.onlinelibrary.wiley.com/doi/10.1111/jgs.17035. [8] Escalante, E., Golden, R. L., & Mason, D. J. (2020). Social Isolation and Loneliness: Imperatives for Health Care in a Post-COVID World. JAMA Health Forum, 1(12), e201597. https://doi.org/10.1001/jamahealthforum.2020.1597. [9] Simard, J., & Volicer, L. (2020). Loneliness and Isolation in Long-term care and the COVID-19 Pandemic. Journal of the American Medical Directors Association, 21(7), 966–967. https://doi.org/10.1016/j.jamda.2020.05.006. [10] World Health Organization. Frequently Asked Questions. https://www.who.int/about/frequently-asked-questions. [11] Chu, C. H., Donato‐Woodger, S., & Dainton, C. J. (2020). Competing crises: COVID‐19 countermeasures and social isolation among older adults in long‐term care. Journal of Advanced Nursing, 76(10), 2456–2459. https://doi.org/10.1111/jan.14467. [12] Gardner, W., States, D., & Bagley, N. (n.d.). The Coronavirus and the Risks to the Elderly in Long-term care. Journal of aging & social policy. https://pubmed.ncbi.nlm.nih.gov/32245346/. [13] Campbell, A. D. (2020). Practical Implications of Physical Distancing, Social Isolation, and Reduced Physicality for Older Adults in Response to COVID-19. Journal of Gerontological Social Work, 63(6-7), 668–670. https://doi.org/10.1080/01634372.2020.1772933. [14] Radwan, E., Radwan, A., & Radwan, W. (2020). Challenges Facing Older Adults during the COVID-19 Outbreak. European Journal of Environment and Public Health, 5(1), em0059. https://doi.org/10.29333/ejeph/8457. [15] Plagg, B., Engl, A., Piccoliori, G., & Eisendle, K. (2020). Prolonged social isolation of the elderly during COVID-19: Between benefit and damage. Archives of Gerontology and Geriatrics, 89, 104086. https://doi.org/10.1016/j.archger.2020.104086 . [16] Chu, C. H., Donato‐Woodger, S., & Dainton, C. J. (2020). Competing crises: COVID‐19 countermeasures and social isolation among older adults in long‐term care. Journal of Advanced Nursing, 76(10), 2456–2459. https://doi.org/10.1111/jan.14467. [17] Jacobson v. Massachusetts, 197 U.S. 11 (1905). [18] Jacobson. [19] Jacobson. [20] Jacobson. [21] Jacobson. [22] Jacobson. [23] Jacobson. [24] Jew Ho v. Williamson, 103 F.10 (C.C.N.D. Cal., 1900). [25] Jew Ho v. Williamson . [26] Jew Ho v. Williamson. [27] Viens, A. M. (2008). Public Health, Ethical Behavior and Reciprocity. The American Journal of Bioethics, 8(5), 1–3. https://doi.org/10.1080/15265160802180059. [28] Upshur, R. (2003, November 1). The Ethics of Quarantine. Retrieved from https://journalofethics.ama-assn.org/article/ethics-quarantine/2003-11. [29] Kamweri, J. M. M. (2013). The Ethical Balance Between Individual and Population Health Interests To Effectively Manage Pandemics and Epidemics (dissertation). [30] Argued by Ken Wing Professor Emeritus, Seattle University School of Law. Kamweri, J. M. M. (2013). The Ethical Balance Between Individual and Population Health Interests To Effectively Manage Pandemics and Epidemics (dissertation). [31] Interests To Effectively Manage Pandemics and Epidemics (dissertation). [32] Chu, p. 2457. [33] D'cruz, p.7. [34] Savulescu, J., & Cameron, J. (2020). Why lockdown of the elderly is not ageist and why levelling down equality is wrong. Journal of Medical Ethics, 46(11), 717–721. https://doi.org/10.1136/medethics-2020-106336. [35] Hugh McLachlan, Professor Emeritus of Applied Philosophy, [36] Heinrichs, B. (2010). Single-Principle Versus Multi-Principles Approaches in Bioethics. Journal of Applied Philosophy, 27(1), 72-83. doi:10.1111/j.1468-5930.2009.00474.x. [37] Gedge, E. by impact ethics · in C. E. (2015, July 27). What Is Dignity and Does Bioethics Need to Talk About It? Impact Ethics. https://impactethics.ca/2015/07/27/what-is-dignity-and-does-bioethics-need-to-talk-about-it/, citing, The 2005 UNESCO Declaration of Bioethics and Human Rights https://en.unesco.org/themes/ethics-science-and-technology/bioethics-and-human-rights.

“Oh, look at the size of that abalone!”“The beef looks really tasty!”“I really want to eat some!” I am standing in front of a glass case framing the entrance of a food court at Incheon International Airport, South Korea (henceforth Korea). I overhear these exclamations as I watch three teenage girls swarm around me to press their faces against the glass. The case is filled with Korean dishes served in the adjacent food court with brief descriptions and prices. My mouth waters as I lay my eyes on dishes such as bibimbap (rice mixed with meat, vegetables, and a spicy pepper paste called gochujang) and bulgogi (thinly sliced marinated beef) over the teenagers’ shoulders. But alas, we are all deceived. The dishes we have been salivating over are not edible. They are in fact fake, made from plastic. Why have inedible replicas become normalized to stand in for real food? What are the consequences of the proliferation of fake food models in the culinary landscape? And more importantly, why do plastic foods that fall outside the food cycle of production, preparation, consumption, and waste have authority over the way we produce, prepare, and consume food? This paper examines Korean plastic food models as tastemakers that standardize food production and consumption practices. Plastic food both literally and figuratively orders gustatory and aesthetic taste and serves as a tool for social distinction within Korean culinary culture. Firstly, I will explore theoretical approaches to conceptualizing plastic food models as tastemakers. Then, I will examine plastic food models within the political economy of taste in Korea since the 1980s. Finally, I will take a close look into three manufacturers’ techniques and approaches to understand how plastic foods are made. This analysis of the Korean plastic food model industry is based on a total of eight months of fieldwork research and semi-structured interviews conducted from December 2011 to January 2012 with three of the twelve manufacturers in Seoul, South Korea. To protect the identity of my informants, I refer to them as the Pioneer (37 years of experience), Exporter (20 years of experience), and Franchisor (10 years of experience). The Pioneer, a leading food model specialist, was one of the first Korean manufactures who produced Korean models for domestic consumption. His models can be found in major museums and airports across the country. The Exporter is famous for inventing techniques and also producing for a global market. Many of her Korean models are displayed in restaurants in North America and Europe. The Franchisor is one of the largest producers for mid-range chain restaurants and cafes around the nation. His models are up-to-date with current food trends and are showcased at popular franchises. These three professionals not only have gained public recognition as plastic food experts through public competitions, mass media coverage, and government commissioned work but also are known to produce high-quality replicas by hand. Therefore, these three were not randomly selected but chosen to consider various production approaches, capture generational difference, and trace the development of the industry since the late 1970s. Plastic Food Models as Objects of Inquiry Plastic foods are created explicitly for the purpose of not being eaten, however, they impart “taste” in two major ways. Firstly, food models regulate the perception of gustatory and aesthetic taste by communicating flavors, mouth-feel, and visual properties of food through precise replicas. Secondly, models influence social behavior by defining what is culturally and politically appropriate. Food models are made with a variety of materials found in nature (wood, metal, precious stones, and cloth), edible matter (sugar, marzipan, chocolate, and butter), and inedible substances (plastic and wax). Among these materials, plastic is ideal because it creates the most durable and vivid three-dimensional models. Plastic can be manipulated freely with the application of heat and requires very little maintenance over time. Plastic allows for more precise molding and coloring, producing replicas that look more real than the original. Some may argue that fake models are mere hyper-real objects since the real and the simulation are seamlessly melded together and reproductions hold more power over the way reality is experienced (Baudrillard). Post-modern scholars such as Jean Baudrillard and Umberto Eco argue that the production of an absolute fake to satisfy the need for the real results in the rise of simulacra, which are representations that never existed or no longer have an original. I, however, argue that plastic foods within the Korean context rely heavily on originals and reinforce the authority of the original. The analysis of plastic food models can be conceptualized within the broader theoretical framework of uneaten food. This category encompasses food that is elaborately prepared for ritual but discarded, and foods that are considered inedible in different cultural contexts due to religion, customs, politics, and social norms (Douglas; Gewertz and Errington; Harris et al.; Messer; Rath). Analyzing plastic food models as a part of the uneaten food economy opens up analysis of the interrelationship between the physical and conceptual realms of food production and consumption. Although plastic models fall outside the bounds of the conventional food cycle, they influence each stage of this cycle. Food models can act as tools to inform the appropriate aesthetic characteristics of food that guide production. The color and shape can indicate ripeness to inform farming and harvesting methods. Models also act as reference points that ultimately standardize recipes and cooking techniques during food preparation. In restaurants displaying plastic food, kitchen staff use the models to ensure consistency and uniform presentation of dishes. Models often facilitate food choice by offering information on portion size and ingredients. Finally, as food models become the gold standard in the production, preparation, and consumption of food, they also dictate when to discard the “incorrect” looking food. The primary power of plastic food models as tastemakers lies in their ability to seamlessly stand in for the original. Only fake models that are spitting images of the real have the ability to completely deceive the viewer. In “The Work of Art in the Age of Mechanical Reproduction,” Walter Benjamin asserts that for reproduction to invoke the authentic, the presence of the original is necessary. However, an exact replication is impossible since the original is transformed in the process of reproduction. Benjamin argues, “The technique of reproduction detaches the reproduced object from the domain of tradition. By making many reproductions it substitutes a plurality of copies for a unique existence and, in permitting the reproduction to meet the beholder or listener in his own particular situation, it reactivates the object reproduced” (221). Similarly, plastic models of Korean food are removed from the realm of culinary tradition because they deviate from the conventional food cycle but reinforce culinary culture by regulating aesthetic values and food related practices. The notion of authenticity becomes central in determining the strength of plastic food models to order culinary culture by setting visual and social standards. Plastic food models step in to meet the beholder on various occasions, which in turn solidifies and even expands the power of the original. Despite their inability to impart taste and smell, plastic models remain persuasive in their ability to reinforce the materiality of the original food or dish. Plastic Food Models and the Political Economy of Taste in South Korea While plastic models are prevalent all around the world, the degree to which they hold authority in influencing production and consumption practices varies. For example, in many parts of the world, toys are made to resemble food for children to play with or even as joke objects to trick others. In America and Europe, plastic food models are mainly used as decorative elements in historical sites, to recreate ambiance in dining rooms, or as props at deli counters to convey freshness. Plastic food models in Korea go beyond these informative, decorative, and playful functions by visually ordering culinary properties and standardizing food choice. Food models were first made out of wax in Japan in the early 20th century. In 1932, Takizo Iwasaki founded Iwasaki Bei-I, arguably the first plastic food model company in the world. As the plastic food model industry flourished in Japan, some of the production was outsourced to Korea to decrease costs. In the late 1970s, a handful of Japanese-trained Korean manufacturers opened companies in Korea and began producing for the domestic market (Pioneer). Their businesses did not flourish until their products became identified as a tool to promote Korean cuisine to a global audience. Two major international sporting events triggered the growth of the plastic food model industry in Korea. The first was the 1988 Seoul Olympics and the second was the 2002 World Cup. Leading up to these two high-profile international events, the Korean government made major efforts to spruce up the country’s image for tourists and familiarize them with all aspects of Korean culture (Walraven). For example, the designation of kimchi (fermented pickled vegetable) as the national dish for the 1988 Olympics explicitly opened up an opportunity for plastic food models to represent the aesthetic values of Korean cuisine. In 1983, in preparation for showcasing approximately 200 varieties of kimchi to the international community, the government commissioned food experts and plastic model manufacturers to produce plastic replicas of each type. After these models were showcased in public they were used as displays for the Kimchi Field Museum and remain as part of the exhibit today. The government also designated approximately 100 tourist-friendly restaurants across the country, requiring them to display food models during the games. This marked the first large-scale production of Korean plastic food. The second wave of food models occurred in the early 2000s in response to the government’s renewed interest to facilitate international tourists’ navigation of Korean culinary culture during the 2002 World Cup. According to plastic food manufacturers, the government was less involved in regulating the use of plastic models this time, but offered subsidies to businesses to encourage their display for tourists (Exporter; Franchisor). After the World Cup, the plastic food industry continued to grow with demand from businesses, as models become staple objects in public places. Plastic models are now fully incorporated into, and even expected at, mid-range restaurants, fast food chains, and major transportation terminals. Businesses actively display plastic models to increase competition and communicate what they are selling at one glance for tourists and non-tourists alike (Exporter). These increased efforts to reassert Korean culinary culture in public spaces have normalized plastic models in everyday life. The persuasive and authoritative qualities of plastic foods regulate consumption practices in Korea. There are four major ways that plastic food models influence food choice and consumption behavior. First, plastic food models mediate between consumer expectation and reality by facilitating decision-making processes of what and how much to eat. Just by looking at the model, the consumer can experience the sensory qualities of eating the dish, allowing decisions to be made within 30 seconds (Franchisor). Second, plastic models guide what types of foods are suitable for social and cultural occasions. These include during Chuseok (the harvest festival) and Seollal (New Year), when high-end department stores display holiday gift sets containing plastic models of beef, abalone, and pine mushrooms. These sets align consumer expectation and experience by showing consumers the exact dimension and content of the gift. They also define the propriety of holiday gifts. These types of models therefore direct how food is bought, exchanged, and consumed during holidays and reassert a social code. Third, food models become educational tools to communicate health recommendations by solidifying types of dishes and portions appropriate for individuals based on health status, age, and gender. This helps disseminate a definition of a healthful diet and adequate nutrition to guide food choice and consumption. Fourth, plastic food models act as a boundary marker of what constitutes Korean food. Applying Mary Douglas’s notion of food as a boundary marker of ethnicity and identity, plastic food models effectively mark Koreanness to reinforce a certain set of ingredients and presentation as authentic. Plastic models create the ideal visual representation of Korean cuisine that becomes the golden standard, by which dishes are compared, judged, and reproduced as Korean. Plastic models are essentially objects that socially construct the perception of gustatory, aesthetic, and social taste. Plastic foods discipline and define taste by directing the gaze of the beholder, conjuring up social protocol or associations. Sociologist John Urry’s notion of the tourist gaze lends insight to considering the implication of the intentional placement and use of plastic models in the Korean urban landscape. Urry argues that people do not gaze by chance but are taught when, where, and how to gaze by clear markers, objects, events, and experiences. Therefore, plastic models construct the gaze on Korean food to teach consumers when, where, and how to experience and practice Korean culinary culture. The Production Process of Plastic Food Models Analysis of plastic models must also consider who gets to define and reproduce the aesthetic and social taste of food. This approach follows the call to examine the knowledge and power of technical and aesthetic experts responsible for producing and authorizing certain discourses as legitimate and representative of the nation (Boyer and Lomnitz; Krishenblatt-Gimblett; Smith). Since plastic model manufacturers are the main technical and aesthetic experts responsible for disseminating standards of taste through the production of fake food, it is necessary to examine their approaches and methods. High-quality food models begin with original food to be reproduced. For single food items such as an apple or a shrimp, liquid plastic is poured into pre-formed molds. In the case of food with multiple components such as a noodle soup, the actual food is first covered with liquid plastic to replicate its exact shape and then elements are added on top. Next, the mold goes through various heat and chemical treatments before the application of color. The factors that determine the preciseness of the model are the quality of the paint, the skill of the painter, and the producer’s interpretation of the original. In the case of duplicating a dish with multiple ingredients, individual elements are made separately according to the process described above and assembled and presented in the same dishware as that of the original. The producers’ studios look more like test kitchens than industrial factories. Making food models require techniques resembling conventional cooking procedures. The Pioneer, for instance, enrolled in Korean cooking classes when he realized that to produce convincing replicas he needed to understand how certain dishes are made. The main mission for plastic food producers is to visually whet the appetite by creating replicas that look tastier than the original. Since the notion of taste is highly subjective, the objective for plastic food producers is to translate the essence of the food using imagination and artistic expression to appeal to universal taste. A fake model is more than just the sum of its parts because some ingredients are highlighted to increase its approximation of the real. For example, the Pioneer highlights certain characteristics of the food that he believes to be central to the dish while minimizing or even neglecting other aspects. When making models of cabbage kimchi, he focuses on prominently depicting the outer layers of neatly stacked kimchi without emphasizing the radish, peppers, fermented shrimp paste, ginger, and garlic that are tucked between each layer of the cabbage. Although the models are three-dimensional, they only show the top or exterior of the dishes from the viewer’s perspective. Translating dishes that have complex flavor profile and ingredients are challenging and require painstaking editing. The Exporter notes that assembling a dish and putting the final touches on a plate are similar to what a food stylist does because her aim, too, is to make the viewer’s mouth water. To communicate crispy breaded shrimp, she dunks pre-molded plastic shrimp into a thin plastic paste and uses an air gun to make the “batter” swirl into crunchy flakes before coloring it to a perfect golden brown. Manufacturers need to realistically capture the natural properties of food to help consumers imagine the taste of a dish. For instance, the Franchisor confesses that one of the hardest dishes to make is honey bread (a popular dessert at Korean cafes), a thick cut of buttered white toast served piping hot with a scoop of ice cream on top. Convincingly portraying a scoop of ice cream slowly melting over the steaming bread is challenging because it requires the ice cream pooling on the top and running down the sides to look natural. Making artificial material look natural is impossible without meticulous skill and artistic expression. These manufacturers bring plastic models to life by injecting them with their interpretations of the food’s essence, which facilitates food practices by allowing the viewer to imagine and indulge in the taste of the real. Conclusion Deception runs deep in the Korean urban landscape, as plastic models are omnipresent but their fakeness is difficult to discern without conscious effort. While the government’s desire to introduce Korean cuisine to an international audience fueled the increase in displays of plastic food, the enthusiastic adoption of fake food as a tool to regulate and communicate food practices has enabled integration of fake models into everyday life. The plastic models’ authority over daily food practices is rooted in its ability to seamlessly stand in for the real to influence the production and consumption of food. Rather than taking plastic food models at face value, I argued that deeper analysis of the power and agency of manufacturers is necessary. It is through the manufacturers’ expertise and artistic vision that plastic models become tools to articulate notions of taste. As models produced by these manufacturers proliferate both locally and globally, their authority solidifies in defining and reinforcing social norms and taste of Korean culture. Therefore, the Pioneer, Exporter, and Franchisor, are the true tastemakers who translate the essence of food to guide food preference and practices. References Baudrillard, Jean. Simulacra and Simulation. Anne Arbor, MI: University of Michigan Press, 1995. Benjamin, Walter. The Work of Art in the Age of Mechanical Reproduction. New York: Penguin, 1968. 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Kirshenblatt-Gimblett, Barbara. “Theorizing Heritage.” Ethnomusicology 39.3 (1995): 367–80. Messer, Ellen. “Food Definitions and Boundaries.” Consuming the Inedible: Neglected Dimensions of Food Choice. Eds. Jeremy MacClancy, C. Jeya Henry and Helen Macbeth. New York: Berghahn Books, 2007. 53–65. Pioneer, The. Personal Communication. Incheon, South Korea. 19 Dec. 2011. Rath, Eric. Food and Fantasy in Early Modern Japan. Berkeley: University of California Press, 2010. Smith, Laura Jane. Uses of Heritage. London: Routledge, 2006. Urry, John. The Tourist Gaze: Leisure and Travel in Contemporary Societies. London: Sage Publications, 2002.Walraven, Boudewijn. “Bardot Soup and Confucians’ Meat: Food and Korean Identity in Global Context”. Asian Food: The Global and Local. Eds. Katarzyna Cwiertka, and Boudewijn Walraven. Honolulu: University of Hawai’i Press, 2001. 95–115.

Introduction Nun habe ich Euch genug geschrieben, diesen Brief wenn sei [sic] lesen würden, dann würde ich den Genickschuß bekommen.Now I have written you enough, this letter if they would read it, I would get the neck shot. (M., all translations from German sources and quotations by the author) When the German soldier Otto M. wrote these lines from Russia to his family on 3 September 1943 during the Second World War, he knew that his war letter would not be subject to the National Socialist censorship apparatus. The letter contains, inter alia, detailed information about the course of the war on the front, troop locations, and warnings about the Nazi regime. M., as he wrote in the letter, smuggled it past the censorship via a “comrade”. As a German soldier, M. was a member of the Volksgemeinschaft—a National Socialist concept that drew a “racist and anti-Semitic borderline” (Wildt 48)—and was thus not socially excluded due to his status. Nevertheless, in the sentence quoted above, M. anticipates possible future consequences of his deviant actions, which would be carried out by “them”—potentially leading to his violent death. This article investigates how social and societal exclusion is brought forth by everyday media practices such as writing letters. After an introduction to the thesis under discussion, I will briefly outline the linguistic research on National Socialism that underlies the approach presented. In the second section, the key concepts of agency and dispositif applied in this work are discussed. This is followed by two sections in which infrastructural and interactional practices of exclusion are analysed. The article closes with some concluding remarks. During the Second World War, Wehrmacht soldiers and their relatives could not write and receive letters that were not potentially subject to controls. Therefore, the blunt openness with which M. anticipated the brutal sanctions of behavioural deviations in the correspondence quoted above was an exception in the everyday practice of war letter communication. This article will thus pursue the following thesis: private communication in war letters was subject to specific discourse conditions under National Socialism, and this brought forth excluding agency, which has two intertwined readings. Firstly, “excluding” is to be understood as an attribute of “agency” in the sense of an acting entity that either is included and potentially excludes or is excluded due to its ascribed agency. For example, German soldiers who actively participated in patriotic service were included in the Volksgemeinschaft. By contrast, Jews or Communists, to name but a few groups that, from the perspective of racist Nazi ideology, did not contribute to the community, were excluded from it. Such excluding agencies are based on specific practices of dispositional arrangement, which I refer to as infrastructural exclusion of agency. Secondly, excluding agency describes a linguistic practice that developed under National Socialism and has an equally stabilising effect on it. Excluding agency means that agents, and hence protagonists, are excluded by means of linguistic mitigation and omission. This second reading emphasises practices of linguistic construction of agency in interaction, which is described as interactional exclusion of agency. In either sense, exclusion is inextricably tied to the notion of agency, which is illustrated in this article by using data from field post letters of the Second World War. Social exclusion, along with its most extreme manifestations under fascism, is both legitimised and carried out predominantly through discursive practices. This includes for the public domain, on the one hand, executive language use such as in laws, decrees, orders, court hearings, and verdicts, and on the other hand, texts such as ideological writings, speeches, radio addresses, folk literature, etc. Linguistic research on National Socialism and its mechanisms of inclusion and exclusion has long focussed on the power of a regulated public use of language that seemed to be shaped by a few protagonists, most notably Hitler and Goebbels (Schlosser; Scholl). More recent works, however, are increasingly devoted to the differentiation of heterogeneous communities of practice, which were primarily established through discursive practices and are manifested accordingly in texts of that time (Horan, Practice). Contrary to a justifiably criticised “exculpation of the speakers” (Sauer 975) by linguistic research, which focusses on language but not on situated, interactional language use, such a perspective is increasingly interested in “discourse in National Socialism, with a particular emphasis on language use in context as a shared, communicative phenomenon” (Horan, Letter 45). To understand the phenomenon of social and societal exclusion, which was constitutive for National Socialism, it is also necessary to analyse those discursive practices of inclusion and exclusion through which the speakers co-constitute everyday life. I will do this by relating the discourse conditions, based on Foucault’s concept of dispositif (Confessions 194), to the agency of the correspondents of war letters, i.e. field post letters. On Agency and Dispositif Agency and dispositif are key concepts for the analysis of social exclusion, because they can be applied to analyse the situated practices of exclusion both in terms of the different capacities for action of various agents, i.e. acting entities, and the inevitably asymmetrical arrangement within which actions are performed. Let me first, very briefly, outline some linguistic conceptions of agency. While Ahearn states that “agency refers to the socioculturally mediated capacity to act” (28) and thus conceives agency as a potential, Duranti understands agency “as the property of those entities (i) that have some degree of control over their own behavior, (ii) whose actions in the world affect other entities’ (and sometimes their own), and (iii) whose actions are the object of evaluation (e.g. in terms of their responsibility for a given outcome)” (453). Deppermann considers agency to be a means of social and situational positioning: “‘agency’ is to capture properties of the subject as agent, that is, its role with respect to the events in which it is involved” (429–30). This is done by linguistic attribution. Following Duranti, this analysis is based on the understanding that agency is established by the ascription of action to an entity which is thereby made or considered accountable for the action. This allows a practice-theoretical reference to Garfinkel’s concept of accountability and identifies agentive practices as “visibly-rational-and-reportable-for-all-practical purposes” (7). The writing of letters in wartime is one such reflexive discursive practice through which agents constitute social reality by means of ascribing agency. The concept of semantic roles (Fillmore; von Polenz), offers another, distinctly linguistic access to agency. By semantic roles, agency in situated interaction is established syntactically and semantically. Put simply, a distinction is made between an Agent, as someone who performs an action, and a Patient, as someone to whom an action occurs (von Polenz 170; semantic roles such as Agent, Patient, Experiencer, etc. are capitalised by convention). Using linguistic data from war letters, this concept is discussed in more detail below. In the following, “field post” is considered as dispositif, by which Foucault means a thoroughly heterogeneous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions – in short, the said as much as the unsaid. Such are the elements of the apparatus [dispositif]. The apparatus [dispositif] itself is the system of relations that can be established between these elements. (Foucault, Confessions 194) The English translation of the French “dispositif” as “apparatus” encourages an understanding of dispositif as a rather rigid structure. In contrast, the field post service of the Second World War will be used here to show how such dispositifs enable practices of exclusion or restrict access to practices of inclusion, while these characteristics themselves are in turn established by practices or, as Foucault calls them, procedures (Foucault, Discourse). An important and potentially enlightening notion related to dispositif is that of agencement, which in turn is borrowed from Deleuze and Guattari and was further developed in particular in actor-network theory (Çalışkan and Callon; Gherardi). What Çalışkan and Callon state about markets serves as a general description of agencement, which can be defined as an “arrangement of heterogeneous constituents that deploys the following: rules and conventions; technical devices; metrological systems; logistical infrastructures; texts, discourses and narratives …; technical and scientific knowledge (including social scientific methods), as well as the competencies and skills embodied in living beings” (3). This resembles Foucault’s concept of dispositif (Foucault, Confessions; see above), which “denotes a heterogeneous ensemble of discursive and nondiscursive elements with neither an originary subject not [sic] a determinant causality” (Coté 384). Considered morphosemantically, agencement expresses an important interrelation: in that it is derived from both the French agencer (to construct; to arrange) and agence (agency; cf. Hardie and MacKenzie 58) and is concretised and nominalised by the suffix -ment, agencement elegantly integrates structure and action according to Giddens’s ‘duality of structure’. While this tying aspect certainly contributes to a better understanding of dispositional arrangements and should therefore be considered, agencement, as applied in actor-network theory, emphasises above all “the fact that agencies and arrangements are not separate” (Çalışkan and Callon) and is, moreover, often employed to ascribe agency to material objects, things, media, etc. This approach has proven to be very fruitful for analyses of socio-technical arrangements in actor-network theory and practice theory (Çalışkan and Callon; Gherardi). However, within the presented discourse-oriented study on letter writing and field post in National Socialism, a clear analytical differentiation between agency and arrangement, precisely in order to point out their interrelation, is essential to analyse practices of exclusion. This is why I prefer dispositif to agencement as the analytical concept here. Infrastructural Exclusion of Agency in Field Post Letters In the Second World War, writing letters between the “homeland” and the “frontline” was a fundamental everyday media practice with an estimated total of 30 to 40 billion letters in Germany (Kilian 97). War letters were known as field post (Feldpost), which was processed by the field post service. The dispositif “field post” was, in opposition to the traditional postal service, subject to specific conditions regarding charges, transport, and above all censorship. No transportation costs arose for field post letters up to a weight of 250 grams. Letters could only be sent by or to soldiers with a field post number that encoded the addresses of the field post offices. Only soldiers who were deployed outside the Reich’s borders received a field post number (Kilian 114). Thus, the soldiers were socially included as interactants due to their military status. The entire organisation of the field post was geared towards enabling members of the Volksgemeinschaft to communicatively shape, maintain, and continue their social relationships during the war (Bergerson et al.). Applying Foucault, the dispositif “field post” establishes selection and exclusion mechanisms in which “procedures of exclusion” (Discourse 52) become manifest, two of which are to be related to the field post: “exclusion from discourse” and “scarcity of speaking subjects” (Spitzmüller and Warnke 73). Firstly, “procedures of exclusion ensure that only certain statements can be made in discourse” (Spitzmüller and Warnke 73). This exclusion procedure ought to be implemented by controlling and, ultimately, censoring field post letters. Reviews were carried out by censorship offices (Feldpostprüfstellen), which were military units independent of the field post offices responsible for delivery. Censorship initially focussed on military information. However, “in the course of the war, censorship shifted from a control measure aimed at defence towards a political-ideological review” (Kilian 101). Critical remarks could be legally prosecuted and punished with prison, penitentiary, or death (Kilian 99). Hence, it is assumed that self-censorship played a role not only for public media, such as newspapers, but also for writing private letters (Dodd). As the introductory quotation from Otto M. shows, writers who spread undesirable information in their letters anticipated the harshest consequences. In this respect, randomised censorship—although only a very small proportion of the high volume of mail was actually opened by censors (Kilian)—established a permanent disposition of control that resulted in a potentially discourse-excluding social stratification of private communication. Secondly, the dispositif “field post” was inherently exclusive and excluding, as those who did not belong to the Volksgemeinschaft could not use the service and thus could not acquire agentive capacity. The “scarcity of speaking subjects” (Spitzmüller and Warnke 73) was achieved by restricting participation in the field post system to members of the Volksgemeinschaft. Since agency is based on the most basic prerequisite, namely the ability to act linguistically at all, the mere possibility of exercising agency was infrastructurally restricted by the field post system. Excluding people from “agency-through-language” means excluding them from an “agency of an existential sort” (Duranti 455), which is described here, regarding the field post system, as infrastructural exclusion of agency. Interactional Exclusion of Agency in Field Post Letters In this section, I will elaborate how agency is brought forth interactionally through linguistic means on the basis of data from a field post corpus that was compiled in the project “Linguistic Social History 1933 to 1945” (Kämper). The aim of the project is an actor-based description of discursive practices and patterns at the time of National Socialism, which takes into account the fact that society in the years 1933 to 1945 consisted of heterogeneous communities of practice (Horan, Practice). Letter communication is considered to be an interaction that is characterised by mediated indexicality, accountability, reflexivity, sequentiality, and reciprocity (Dang-Anh) and is performed as situated social practice (Barton and Hall). The corpus of field letters examined here provides access to the everyday communication of members of the ‘integrated society’, i.e. those who were neither high-ranking members of the Nazi apparatus nor exposed to the repressions of the fascist dictatorship. The corpus consists of about 3,500 letters and about 2.5 million tokens. The data were obtained by digitising letter editions using OCR scans and in cooperation with the field post archive of the Museum for Communication Berlin (cf. sources below). We combine qualitative and quantitative methods, the latter providing heuristic indicators for in-depth hermeneutical analysis (Felder; Teubert). We apply corpus linguistic methods such as keyword, collocation and concordance analysis to the digitised full texts in order to analyse the data intersubjectively by means of corpus-based hermeneutic discourse analysis (Dang-Anh and Scholl). However, the selected excerpts of the corpus do not comprise larger data sets or complete sequences, but isolated fragments. Nevertheless, they illustrate the linguistic (non-)constitution of agency and thus distinctively exemplify exclusionary practices in field post letter writing. From a linguistic point of view, the exclusion of actors from action is achieved syntactically and semantically by deagentivisation (Bernárdez; von Polenz 186), as will be shown below. The following lines were written by Albert N. to his sister Johanna S. and are dated 25 June 1941, shortly after the beginning of the German Wehrmacht’s military campaign in Russia (Russlandfeldzug) a few days earlier. Vor den russ. Gefangenen bekommt man einen Ekel, d.h. viele Gefangene werden nicht gemacht.One gets disgusted by the Russian prisoners, i.e. many prisoners are not made. (N.) In the first part of the utterance, “mitigation of agency” (Duranti 465) is carried out using the impersonal pronoun “man” (“one”) which does not specify its referent. Instead, by means of deagentivisation, the scope of the utterance is generalised to an indefinite in‑group of speakers, whereby the use of the impersonal pronoun implies that the proposition is valid or generally accepted. Moreover, the use of “one” generalises the emotional expression “disgust”, thus suggesting that the aversive emotion is a self-evident affect experienced by everyone who can be subsumed under “one”. In particular, this includes the author, who is implicitly displayed as primarily perceiving the emotion in question. This reveals a fundamental practice of inclusion and exclusion, the separating distinction between “us”/“we” and “them”/“the others” (Wodak). In terms of semantic roles, the inclusive and generalised formal Experiencer “one” is opposed to the Causative “Russian prisoner” in an exclusionary manner, implicitly indicating the prisoners as the cause of disgust. The subsequent utterance is introduced by “i.e.”, which marks the causal link between the two phrases. The wording “many prisoners are not made” strongly suggests that it refers to homicides, i.e. executions carried out at the beginning of the military campaign in Russia by German troops (Reddemann 222). The depiction of a quasi-universal disgust in the first part establishes a “negative characterization of the out-group” (Wodak 33) which, in the expressed causal relation with the second phrase, seems to morally legitimise or at least somehow justify the implied killings. The passive form entirely omits an acting entity. Here, deagentivisation obscures the agency of the perpetrators. However, this is not the only line between acting and non-acting entities the author draws. The omission of an agent, even the impersonal “one”, in the second part, and the fact that there is no talk of self-experienceable emotions, but war crimes are hinted at in a passive sentence, suggest the exclusion of oneself as a joint agent of the indicated actions. As further data from the corpus indicate, war crimes are usually not ascribed to the writer or his own unit as the agents but are usually attributed to “others” or not at all. Was Du von Juden schreibst, ist uns schon länger bekannt. Sie werden im Osten angesiedelt.What you write about Jews is already known to us for some time. They are being settled in the East. (G.) In this excerpt from a letter, which Ernst G. wrote to his wife on 22 February 1942, knowledge about the situation of the Jews in the war zone is discussed. The passage appears quite isolated with its cotext in the letter revolving around quite different, trivial, everyday topics. Apparently, G. refers in his utterance to an earlier letter from his wife, which has not been preserved and is therefore not part of the corpus. “Jews” are those about whom the two agents, the soldier and his wife, write, whereas “us” refers to the soldiers at the front. In the second part, agency is again obscured by deagentivisation. While “they” anaphorically refers to “Jews” as Patients, the agents of their alleged resettlement remain unnamed in this “agent-less passive construction” (Duranti 466). Jews are depicted here as objects being handled—without any agency of their own. The persecution of the Jews and the executions carried out on the Russian front (Reddemann 222), including those of Jews, are euphemistically played down here as “settlements”. “Trivialization” and “denial” are two common discursive practices of exclusion (Wodak 134) and emerge here, as interactional exclusion of agency, in one of their most severe manifestations. Conclusion Social and societal exclusion, as has been shown, are predominantly legitimised as well as constituted, maintained, and perpetuated by discursive practices. Field post letters can be analysed both in terms of the infrastructure—which is itself constituted by infrastructuring practices and is thus not rigid but dynamic—that underlies excluding letter-writing practices in times of war, and the extent to which linguistic excluding practices are performed in the letters. It has been shown that agency, which is established by the ascription of action to an entity, is a central concept for the analysis of practices of exclusion. While I propose the division into infrastructural and interactional exclusion of agency, it must be pointed out that this can only be an analytical distinction and both bundles of practices, that of infrastructuring and that of interacting, are intertwined and are to be thought of in relation to each other. Bringing together the two concepts of agency and dispositif, despite the fact that they are of quite different origins, allows an analysis of exclusionary practices, which I hope does justice to the relation of interaction and infrastructure. By definition, exclusion occurs against the background of an asymmetrical arrangement within which exclusionary practices are carried out. Thus, dispositif is understood as an arranged but flexible condition, wherein agency, as a discursively ascribed or infrastructurally arranged property, unfolds. Social and societal exclusion, which were constitutive for National Socialism, were accomplished not only in public media but also in field post letters. Writing letters was a fundamental everyday media practice and the field post was a central social medium during the National Socialist era. However, exclusion occurred on different infrastructural and interactional levels. As shown, it was possible to be excluded by agency, which means exclusion by societal status and role. People could linguistically perform an excluding agency by constituting a division between “us” and “them”. Also, specific discourses were excluded by the potential control and censorship of communication by the authorities, and those who did not suppress agency, for example by self-censoring, feared prosecution. Moreover, the purely linguistic practices of exclusion not only constituted or legitimised the occasionally fatal demarcations drawn under National Socialism, but also concealed and trivialised them. As discussed, it was the perpetrators whose agency was excluded in war letters, which led to a mitigation of their actions. In addition, social actors were depreciated and ostracised through deagentivisation, mitigation and omission of agency. In extreme cases of social exclusion, linguistic deagentivisation even prepared or resulted in the revocation of the right to exist of entire social groups. The German soldier Otto M. feared fatal punishment because he did not communicatively act according to the social stratification of the then regime towards a Volksgemeinschaft in a field post letter. This demonstrates how thin the line is between inclusion and exclusion in a fascist dictatorship. 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IntroductionThis article proposes that the practice of relaxation—a mode of bodily self-organisation within time—provides a way to diversify times as political and creative intervention. Relaxation, which could seem counter-intuitive, may function as intentional temporal intervention and means to slip some of the binds of neoliberal, surveillance capitalist logics. Noting the importance of decision-making (resonant with what Zuboff has called “promising”) as political, ethical capacity (and what dilutes it), I will argue here that relaxation precedes and invites a more active relation to the future. Relaxing and deciding are contrasted, in turn, with something dubbed ‘sub-habituality.’ This neologism would work as a critical poetics for the kind of (non)time in which we may be increasingly living. If, in Discipline and Punish, 1970s Foucault explored the various strategies of coupling time constraints/‘refining’ of time periods (150) with surveillance, I argue here that we might reconsider these same elements—time, constraint, intentionality—aslant and anew, as we approach the third decade of the 21st century (nearly 20 years after Google began opportunistically gathering the data exhaust of its searches). If in a disciplinary society, the organisation of bodies in time served various orders of domination, is it possible that in a control society (as Deleuze has named it), time and bodily composure may be harnessed otherwise to evade surreptitious logics of a neoliberal flavour?The elements noted by Foucault (i.e. structured time, bodily organisation) can—when rendered decisive, coupled with relaxation (to be defined), and with surveillance muddled or subtracted—become tools and modes for questioning, resisting and unsettling various mechanisms of domination and the dilutions of ethical capacity that accompany them in the current moment. We may, in other words, decide to structure our time when unobserved (for example with Flight Mode or connectivity off on laptops, etc.) for intentional, onto-political ends. A later Foucault, incidentally, went on to connect certain practices of care of the self to ethics, as ethical obligations (Foucault, “Ethics”). Time plays a role in such practices. With this as background, this article will read atmospherically some of Gilles Deleuze’s ontological offerings regarding time from his 1968 work Difference and Repetition. However, before this, I wish to clarify the article’s understanding of neoliberalisation in a digital moment.A neoliberalising moment, to use Springer’s preferred nomenclature (5), co-exists presently with a ubiquity of digital media engagement and co-opts it and exacerbates its reach for its manoeuvres. The former’s logics—which digital practices might at once support and/or contest—involve well-known imperatives of ‘efficiency’, aesthetics of striving, untrammelled growth, logics of scarcity and competition, privatisation of community assets, the so-called autonomy of the market, and so on. In his essay on control societies (which notably, after World War II, eclipse the disciplinary societies described by Foucault), Deleuze puts it like this:the corporation constantly presents the brashest rivalry as a healthy form of emulation, an excellent motivational force that opposes individuals against one another and runs through each, dividing each within. (5, my emphasis)Neoliberalism, where corporations have tended to replace factories, relies variously on competition between peers, dubious forms of (often ludicrous) motivation, fluctuating salaries and debt (in the place of explicit enclosures), so as to reduce the capacity and the lived expansiveness of the human (and non-human) beings who exist within its order.With this as background, I’m interested in the ways that personal electronic devices (PEDs) and the apps they house may—if used mostly compliantly and uncritically—impact what I would like to call our temporal diversity. This would involve a whittling-down of our access to atmospheres, thus to more impoverished constellations of living, and finally to profound disenablings in many spheres. PEDs provide a monetisable means of pervasive surveillance and increasingly-normalised "veillance" (Lupton 44). Certain modes of domination—if we read this term to mean a reduction of (ethical, creative, political) capacity—furthermore mobilise very specifically a co-opting of time (in the form of ‘engagement’, our eyes on a screen) and time’s strategic fragmentation. The latter is facilitated variously by monetised, gamified apps, and social media Skinner-box effects, entwined with the veillance made possible by the data exhaust of our searches and other trackable online behaviours, self-loggings, and so on. Recalling the way, in disciplinary societies, that power relations play out via the enclosure and regulation of bodies and their movement—the latter imposed externally and with the imperative of a ‘useful time’ or with the aim of self-optimising—I’m curious about how self-selected modes of resistant bodily organisation might operate to insulate or shelter humans living under and within various intensities of neoliberalisation, its discourse and its gaze. Sheltered, one might recover a creative or robust response. To use temporal strategies and understandings, we may subtract ourselves (even just sometimes) from stealthy modes of control or ‘nudging’, from ways of being which are increasingly marketed as ‘common sense’ approaches to activity and spendings of time.With regard to neoliberalisation (defined according to Springer, 37-38) and its coupling with digital life, I query if we may be finding ourselves too-often dipping below the threshold of what ought to be our most assumed temporality: namely, Deleuze’s ‘living’ or habitual present (from the second chapter of his Difference and Repetition). The moniker of ‘temporal diversity’ seeks to flag that—in a moment where we observe and resist the shutting down of diversity in numerous spheres, of species, eco-systems, cultures and languages, and their eclipse by modes produced for our consumption by globalisation—we could easily miss another register at which diversity is threatened. We might arguably be facing the loss of something which, after the fact, we may struggle to name—since it is not a ‘thing’—and whose trajectory of disappearance might wholly elude us. This diversity is that of times.Deleuze’s Three Syntheses in Difference and RepetitionIn Chapter 2 of his 1968 work, Deleuze explores three ways in which time can synthesise. Each synthesis involves a kind of weaving of the basic operations of difference and repetition. One way to read Deleuze in this work is that he (among other things) effectively sketches three kinds of atmospheres of time. Each of these, I argue, if seen as frame, contributes a richness and diversity to what a life—and what our shared life—can be and feel like.The first kind of time is called the habitual or ‘living’ present. It synthesises from a stitching together, drawing together, of the retaining of disappearing, disparate instances that otherwise bear no basic relation to one another (Deleuze, Difference 97). As a ‘present’, it has a stretch, a ‘reach’ which depends somewhat on our organism’s capacity to contract discontinuous instants. As Hughes beautifully puts it: “Our contractile range is the index of our finitude” (110). As we’ll see below, it would be a crumbling of this ‘range’ that sub-habituality designates. This living present of Deleuze also has a past inflection, marked by the just-gone and by a mode of memory, as well as by a future aspect, marked—not always constructively—by anticipation.One way to read the ‘living’ present is as being akin to our temporal ‘food and shelter’, a basic synthesis in which to dwell basically. Not thrilling or obviously creative, seductive or vast, it is the time—I’d suggest—in which we establish routine, in which we maintain a liveable life. Theorists such as Grosz have argued—in this tradition with Deleuze which positively evaluates habit—that habit, as mode of time, frees the organism up so that invention and innovation can then seed (see Grosz).The ‘living’ present turns out, however, not to be assumable in every case. For example, in cases of PTSD, I’d contend, it may be interrupted, lost, thus is not to be taken for granted under all conditions. Its status under a gamified neoliberalisation or surveillance capitalism is of interest to me and thus I offer this poetics of sub-habituality as a way to designate its vulnerability—that we might slip below its steadying threshold.Neither does the habitual present constitute much of a diversity; it would not cut it, let’s say, as enough for an abundant or varied temporal life. The habitual present contributes to the conditions that would enable me to form intentions (as a cohering ‘self’), to fashion basic schedules with my own initiative, to order an adult life. For a truly rich temporal life, however, we’d wish to include the poetics intimated by Deleuze’s two other syntheses, their more diverse atmospheres and the arguably political capacities they open to us.The second (passive) synthesis pertains to a vast and insisting past, in the lineage of Henri Bergson, and which, Deleuze notes, might be accessed or ‘saved for ourselves’ via that which we call reminiscence (Difference 107)—a dreamy, expansive and often-pleasurable state (except, for example, in cases of PTSD, or even perhaps versions of dementia, where the person may not be able to leave or surface from it). To dig, in thought, ‘down’ into the register of this vast past and to unearth a rigorous account of it, one goes via a series of paradoxes (see Deleuze, Difference 101-105). If the first passive synthesis is constituted by habit’s mechanisms, the second passive synthesis is constituted by memory’s: “memory is the fundamental synthesis of time which constitutes the being of the past (that which causes the present to pass)” (Deleuze, Difference 101). Hughes puts it thus: “the pure past in general [is] a horizon of having-been-ness, in which what was apprehended [in the first synthesis] finds the conditions of its reproducibility” (108). If such a pastness designates one moment in how selves and their being-as-time synthesise, one might want to know how to include this rich, languorous, sometimes lost and meandering, atmosphere in a life. This might assist an understanding of what distorts or precludes it, and thus our learning for how to invite it in, alongside our more habitual modes.No mode of time, therefore, is simplistically inflected as positive or negative. Without their multiplicity, I’m arguing, we are left temporally less endowed. I wish to articulate not the swapping of one kind of time for another—as if one would only favour productive ‘times’, or efficient ‘times’, or competitive ‘times’, or steady ‘times’, or dreamy, meandering ‘times’—but a diversity. When we feel wildly dissatisfied and imagine that a tangible thing, situation or acquisition—content in time, in other words—would serve as a salve for this uneasiness, we might also consider that what’s missing could be a temporal mode. Which one have we lost the capacity to access or drift into? I’ll now turn to the third synthesis which Deleuze explores, which pertains to the future and its opening up.For the purposes of my argument here, I want to use this third synthesis to gesture towards the future as a possible mode—empty, sheer—and which distinguishes itself entirely from the future ‘aspects’ of the first two syntheses. I both take a poetic cue from Deleuze, as well as note that this synthesis is the least obvious or accessible in a usual life, one in which habit’s organisation is established, and even in which perhaps there are pockets of the ‘erotic’ (Deleuze, Difference 107) and/or expansive driftings of the second synthesis of memory. The third synthesis, then—associated with Deleuze’s take on thought—marks the moment when something becomes active. Deleuze presents it to the reader of Difference and Repetition in relation to Nietzsche’s Eternal Return:that is why it is properly called a belief of the future, a belief in the future. Eternal Return affects only the new, what is produced under the condition of default and by the intermediary of metamorphosis. However it causes neither the condition nor the agent to return: on the contrary, it repudiates these and expels them with all its centrifugal force. (Difference 113, emphasis original)When habit dominates our temporal palette, the future appears to be possible only in habit’s guise of it—that is, in the mode of anticipation, which then morphs to prediction as this synthesis moves into its more active modes. Anticipation is a pragmatic but weak future. It is useful, without doubt, since habit’s future mode knows to say: at three o’clock I need to get my shoes on, grab keys and wallet, and drive to pick up X. I anticipate that they will be waiting on this corner, and so on. Habit’s internally available ‘future’ is crucial and steadying. Knowing how to manoeuvre within it is part of learning to live some kind of organised life. In sub-habituality I’d argue, we may not even have that. Zuboff intimates this when in Chapter 11 she speaks of a right to a future tense.Deleuze’s third synthesis opens the self precisely onto that which-cannot-be-anticipated. The Nietzschean mode of the future that Deleuze explores at length is not akin to habit’s ordering and stabilising; it is not to be compared to the reminiscent climes of pure memory, to the vast dilations and contractions of its insisting topographies. The third synthesis asks more of us. It asks us to forget the versions of ourselves we have been (in the very moment that we affirm the repetition of everything that has been, to the letter) and to stare unblinkingly into a roaring Nothingness, or better into the strange weathers of a Not-Determined-Yet.My own practice-based creative research into these matters confirms Deleuze’s architectures. I say: we need the two other temporal syntheses and rely on them in order to dramatise something new in the third synthesis. The is the ability, in other words, to decide and to forget enough to be able to dance forward into an unknown future.Sub-Habituality: Or Less than a ‘Living’ PresentKorean thinker Byung-Chul Han links our use of devices, and the necessity of engaging with them for our social/economic survival, to the kind of dispersed and fretful awareness needed by animals surviving predators in the wild. He sees ‘multitasking’ in no way as any kind of evolution, but names it provocatively a regression, which precludes the kind of contemplation upon which sophisticated cultural practices and fields, such as art and philosophy, arguably depend (Han 26-29). Habit involves the crucial notion of a ‘range’ of, or a capacity for, contracting disparate instants—so as to make possible their being stitched together, via contemplation’s passivity (Deleuze 100), and thereby to synthesise a (stable, even liveable) present. Recall that Hughes called it the index of our finitude. How do digital engagements—specifically with apps and their intentionally gamified designs, and which involve a certain velocity of uncadenced movement and gesture (eyes, hands, neck position)—impact an ability to synthesise a steady-enough present? Sub-habituality, as name, seeks a poetics to bring to articulation an un-ease that would be specifically temporal, not psychological, or even merely physiological.To know about the stability offered by habit’s time allows the cultivation of temporal atmospheres that are pleasant and stable, as well as having the potential to open onto creative/erotic modes of a vast past, as well as not be closed to the pure future. This would be a curation of the present, learning how to ‘play’ its mechanisms such that the most expansive and interesting aspects of this mode—which can condition and court other modes—can come forth.Sub-habituality is that time where the gathering of instants into any stretch is hindered, shattering the operations of coherence and narrowing aperture for certain experiences. No stretch in which to dwell. The vast and calming surfaces of our attention breaking into shards. Sub-habituality would be anti-contemplative, in an ontological sense. No instant could hold for long enough to relate to its temporal peers. Teetering there on the edge of a non-time, any ‘subject’ who might intend is undermined.Next, I turn to the notion of relaxation as bodily practice and strategy to insulate or shelter humans living under and within various intensities of digitalised neoliberalisation. Instead of offering oneself up for monetised organisation, one organises oneself via the nuanced effort that is a ‘dropping of excess effort’. The latter is relaxation and may thwart surreptitious modes of (imposed temporal) (dis)organisation, or what tends to appear increasingly as ‘common sense’ approaches to activity and spendings of time. We practise deciding to structure blocks of time, so that within their bounds we can risk experimenting with relaxation, its erotics and its vectors of transformation.RelaxationNeoliberalisation, after Springer, involves the becoming common-sensical of numerous logics: competitiveness in every sphere of life, ubiquity of free market logics, supposed scarcity (of time, opportunity), rationalisation and instrumentalisation of processes and attitudes to doing, and an emphasis on a discourse of efficiency (even when it is not, in actuality, what obtains). For Deleuze, in a control society, similarlymany young people strangely boast of being “motivated”; they re-request apprenticeships and permanent training. It’s up to them to discover what they are being made to serve, just as their elders discovered, not without difficulty, the telos of the disciplines. ("Postscript", 7)How can we serve less this current telos? What (counter or subtractive) practices might undermine the conditions for the entrenching of such logics? My contention in this article is that practices of the body that also involve the intentional organising of time, along with approaches to movement generally that forgo striving and forcing (that is: kinds of violent ‘work’), may counter some of the impacts (especially of a temporal nature, as discussed above) that align with and allow for neoliberal logics’ pervading of all spheres of life. Relaxation is a useful shorthand for such strategies.In my work elsewhere on practising, I’ve argued that relaxation is the third (of four) criteria that constitute the specific approach to ‘doing’ that can be designated practising (see Pont; Attiwill et al.). Relaxation is a very particular approach to any behaviour or movement, whereby the ‘doer’ pays close attention and seeks to use only the necessary amount of effort for the activity in question. This dropping of ‘natural’ (or knee-jerk) effort is itself a kind of unusual effort. The word ‘natural’ here comes from writings by Vachaspati Mishra (192) and makes the subtle point that relaxation intervenes on what is ‘natural’ or on what has acquired inertia, on that which enacts itself without decision or intention. In this strictly ontological/temporal intervention, relaxation refuses to collude with common-sense approval for striving-as-new-piety that dominate neoliberalised discourses and their motivational propagandas.Relaxation constitutes an enacted—repeatedly enacted—decision at the level of the body to organise movement/doing in ways subtracted from neoliberalised discourse, reawakening intention. It is a quiet intervention, precise and difficult, that works to counter a widespread fundamentalism of doing with excess (or Leistung with its inevitable flipside of collapse and exhaustion, as critiqued by Han 24-25). This dovetails with the ubiquity of digital engagements/behavioural training, which effectively constitute an unending labour for many. Counter-intuitively, relaxation (when understood strictly as practice, not in its lay inflection as compensatory ‘collapse’) can establish a minimum membrane hindering the penetration of this labour into all spheres of a life. Once PEDs are intentionally used—very difficult to do—and limited in terms of the proportion of time they are engaged with, they pose a reduced threat to times’ diversity. (To organise my time, curiously too, I make use of PED timer features, on flight mode, and so on. Others use apps specifically designed to help them use fewer apps.)We find ourselves here faced with various and emergent practices of saying ‘no’ to serve a process that experiments with affirming something else—perhaps this ‘else’ would be the conditions for that which does yet exist, that is: truly open futures, creativity, robustness in the face of change. Promising? Deciding? My argument is that a body immersed too much in sub-habituality is less capable overall of withstanding the atmospheres of the third synthesis (and, if we follow Han, too dispersed and fragmented to access certain atmospheres that we might associate with the second). It may not even have a sense of a living present. It becomes less and less intentional, more malleable, very tired.There is—in the work of the body that resists complying with the logics of neoliberalisation, that resists a certain corrosion of Deleuze’s first time (and of the subsequent two times that in Deleuze open from them)—a clear practice of dropping, letting fall, not picking up in the first place. We forgo then certain modes of, or approaches to, action when we work to subtract ourselves from an encroaching (a)temporality that is none at all. To foil reactivity we have two obvious options: we learn to activate our reactivity—to act it; or we pause just before enacting from within its logic. Relaxation is more about the latter.ConclusionThe sub-habitual discussed in this article is, most importantly, a grim affective/temporal register to inhabit. For many, its unpleasantness is met with queries about mental health, since it naturally impacts us in a register that feels like bad thinking, like bad feeling. By introducing an onto-temporal inflection into such queries, I suggest there might be a certain kind of ‘health’ or better still a ‘pleasure’ in a life that can obtain with the cultivation of a diversity of times. Deleuze’s model of three kinds of temporal synthesis tempts me as one way to track what might be going missing in a moment when certain technologies, serving particular economic and political agendas and ideologies, can coax our rhythms, behaviours and preoccupations down particular paths. The fleshy, energetic and thinking body, as a site of affirmation, as a vehicle for practices that subtract themselves from dominant logics, can—I’ve argued here—be a crucial factor in working with temporality in such a way that one is not left with an homogenised non-time in which we are not-quite-subjects or diluted selves vulnerable to being worked on by logics that drive neoliberalisation and its sufferings. Relaxation is among a suite of strategies that may keep our times (and ourselves as modes of time) diverse: stable, pleasure-capable, imaginative and fierce.ReferencesAttiwill, Suzie, Terri Bird, Andrea Eckersley, Antonia Pont, Jon Roffe, and Philipa Rothfield. Practising with Deleuze. Edinburgh: Edinburgh University Press, 2017.Deleuze, Gilles. Difference and Repetition. Trans. Paul Patton. London: Continuum, 2004.———. “Postscript on the Societies of Control.” October 59 (1992): 3-7.Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage Books, 1995.———. “The Ethics of the Concern for Self as a Practice of Freedom.” The Essential Works of Michel Foucault, Vol. 1: Ethics: Subjectivity and Truth. Ed. Paul Rabinow. New York: New Press, 1997. 281-302.Grosz, Elizabeth. “Habit Today: Ravaisson, Bergson, Deleuze and Us.” Body and Society 19(2&3): 2013. 217-239.Han, Byung-Chul. Müdigkeitsgesellschaft Burnoutgesellschaft Hoch-Zeit. Berlin: Matthes & Seitz, 2016.Hughes, Joe. Deleuze’s Difference and Repetition: A Reader’s Guide. New York: Bloomsbury, 2009. Lupton, Deborah. The Quantified Self. Cambridge: Polity Press, 2016.Mishra, Vachaspati. The Yoga System of Patanjali. Trans. J. Haughton Woods. Delhi: Motilal Banarsidass, 1914 (by arrangement with Harvard University Press).Pont, Antonia. “An Exemplary Operation: Shikantaza and Articulating Practice via Deleuze.” Transcendence, Immanence and Intercultural Philosophy. Eds. Nahum Brown & William Franke. Cham, Switzerland: Palgrave Macmillan, 2016. 207-236.Springer, Simon. The Discourse of Neoliberalism. London: Rowman & Littlefield, 2016.Zuboff, Shoshana. The Age of Surveillance Capitalism. New York: PublicAffairs, 2019. (Kindle Edition.)

The academic journal is obsolete. In a world where there are more titles than ever, this is a comment on their form – especially the print journal – rather than their quantity. Now that you can get everything online, it doesn’t really matter what journal a paper appears in; certainly it doesn’t matter what’s in the same issue. The experience of a journal is rapidly obsolescing, for both editors and readers. I’m obviously not the first person to notice this (see, for instance, "Scholarly Communication"; "Transforming Scholarly Communication"; Houghton; Policy Perspectives; Teute), but I do have a personal stake in the process. For if the journal is obsolete then it follows that the editor is obsolete, and I am the editor of the International Journal of Cultural Studies. I founded the IJCS and have been sole editor ever since. Next year will see the fiftieth issue. So far, I have been responsible for over 280 published articles – over 2.25 million words of other people’s scholarship … and counting. We won’t say anything about the words that did not get published, except that the IJCS rejection rate is currently 87 per cent. Perhaps the first point that needs to be made, then, is that obsolescence does not imply lack of success. By any standard the IJCS is a successful journal, and getting more so. It has recently been assessed as a top-rating A* journal in the Australian Research Council’s journal rankings for ERA (Excellence in Research for Australia), the newly activated research assessment exercise. (In case you’re wondering, M/C Journal is rated B.) The ARC says of the ranking exercise: ‘The lists are a result of consultations with the sector and rigorous review by leading researchers and the ARC.’ The ARC definition of an A* journal is given as: Typically an A* journal would be one of the best in its field or subfield in which to publish and would typically cover the entire field/ subfield. Virtually all papers they publish will be of very high quality. These are journals where most of the work is important (it will really shape the field) and where researchers boast about getting accepted.Acceptance rates would typically be low and the editorial board would be dominated by field leaders, including many from top institutions. (Appendix I, p. 21; and see p. 4.)Talking of boasting, I love to prate about the excellent people we’ve published in the IJCS. We have introduced new talent to the field, and we have published new work by some of its pioneers – including Richard Hoggart and Stuart Hall. We’ve also published – among many others – Sara Ahmed, Mohammad Amouzadeh, Tony Bennett, Goran Bolin, Charlotte Brunsdon, William Boddy, Nico Carpentier, Stephen Coleman, Nick Couldry, Sean Cubitt, Michael Curtin, Daniel Dayan, Ben Dibley, Stephanie Hemelryk Donald, John Frow, Elfriede Fursich, Christine Geraghty, Mark Gibson, Paul Gilroy, Faye Ginsberg, Jonathan Gray, Lawrence Grossberg, Judith Halberstam, Hanno Hardt, Gay Hawkins, Joke Hermes, Su Holmes, Desmond Hui, Fred Inglis, Henry Jenkins, Deborah Jermyn, Ariel Heryanto, Elihu Katz, Senator Rod Kemp (Australian government minister), Youna Kim, Agnes Ku, Richard E. Lee, Jeff Lewis, David Lodge (the novelist), Knut Lundby, Eric Ma, Anna McCarthy, Divya McMillin, Antonio Menendez-Alarcon, Toby Miller, Joe Moran, Chris Norris, John Quiggin, Chris Rojek, Jane Roscoe, Jeffrey Sconce, Lynn Spigel, John Storey, Su Tong, the late Sako Takeshi, Sue Turnbull, Graeme Turner, William Uricchio, José van Dijck, Georgette Wang, Jing Wang, Elizabeth Wilson, Janice Winship, Handel Wright, Wu Jing, Wu Qidi (Chinese Vice-Minister of Education), Emilie Yueh-Yu Yeh, Robert Young and Zhao Bin. As this partial list makes clear, as well as publishing the top ‘hegemons’ we also publish work pointing in new directions, including papers from neighbouring disciplines such as anthropology, area studies, economics, education, feminism, history, literary studies, philosophy, political science, and sociology. We have sought to represent neglected regions, especially Chinese cultural studies, which has grown strongly during the past decade. And for quite a few up-and-coming scholars we’ve been the proud host of their first international publication. The IJCS was first published in 1998, already well into the internet era, but it was print-only at that time. Since then, all content, from volume 1:1 onwards, has been digitised and is available online (although vol 1:2 is unaccountably missing). The publishers, Sage Publications Ltd, London, have steadily added online functionality, so that now libraries can get the journal in various packages, including offering this title among many others in online-only bundles, and individuals can purchase single articles online. Thus, in addition to institutional and individual subscriptions, which remain the core business of the journal, income is derived by the publisher from multi-site licensing, incremental consortial sales income, single- and back-issue sales (print), pay-per-view, and deep back file sales (electronic). So what’s obsolete about it? In that boasting paragraph of mine (above), about what wonderful authors we’ve published, lies one of the seeds of obsolescence. For now that it is available online, ‘users’ (no longer ‘readers’!) can search for what they want and ignore the journal as such altogether. This is presumably how most active researchers experience any journal – they are looking for articles (or less: quotations; data; references) relevant to a given topic, literature review, thesis etc. They encounter a journal online through its ‘content’ rather than its ‘form.’ The latter is irrelevant to them, and may as well not exist. The Cover Some losses are associated with this change. First is the loss of the front cover. Now you, dear reader, scrolling through this article online, might well complain, why all the fuss about covers? Internet-generation journals don’t have covers, so all of the work that goes into them to establish the brand, the identity and even the ‘affect’ of a journal is now, well, obsolete. So let me just remind you of what’s at stake. Editors, designers and publishers all take a good deal of trouble over covers, since they are the point of intersection of editorial, design and marketing priorities. Thus, the IJCS cover contains the only ‘content’ of the journal for which we pay a fee to designers and photographers (usually the publisher pays, but in one case I did). Like any other cover, ours has three main elements: title, colour and image. Thought goes into every detail. Title I won’t say anything about the journal’s title as such, except that it was the result of protracted discussions (I suggested Terra Nullius at one point, but Sage weren’t having any of that). The present concern is with how a title looks on a cover. Our title-typeface is Frutiger. Originally designed by Adrian Frutiger for Charles de Gaulle Airport in Paris, it is suitably international, being used for the corporate identity of the UK National Health Service, Telefónica O2, the Royal Navy, the London School of Economics , the Canadian Broadcasting Corporation, the Conservative Party of Canada, Banco Bradesco of Brazil, the Finnish Defence Forces and on road signs in Switzerland (Wikipedia, "Frutiger"). Frutiger is legible, informal, and reads well in small copy. Sage’s designer and I corresponded on which of the words in our cumbersome name were most important, agreeing that ‘international’ combined with ‘cultural’ is the USP (Unique Selling Point) of the journal, so they should be picked out (in bold small-caps) from the rest of the title, which the designer presented in a variety of Frutiger fonts (regular, italic, and reversed – white on black), presumably to signify the dynamism and diversity of our content. The word ‘studies’ appears on a lozenge-shaped cartouche that is also used as a design element throughout the journal, for bullet points, titles and keywords. Colour We used to change this every two years, but since volume 7 it has stabilised with the distinctive Pantone 247, ‘new fuchsia.’ This colour arose from my own environment at QUT, where it was chosen (by me) for the new Creative Industries Faculty’s academic gowns and hoods, and thence as a detailing colour for the otherwise monochrome Creative Industries Precinct buildings. There’s a lot of it around my office, including on the wall and the furniture. New Fuchsia is – we are frequently told – a somewhat ‘girly’ colour, especially when contrasted with the Business Faculty’s blue or Law’s silver; its similarity to the Girlfriend/Dolly palette does introduce a mild ‘politics of prestige’ element, since it is determinedly pop culture, feminised, and non-canonical. Image Right at the start, the IJCS set out to signal its difference from other journals. At that time, all Sage journals had calligraphic colours – but I was insistent that we needed a photograph (I have ‘form’ in this respect: in 1985 I changed the cover of the Australian Journal of Cultural Studies from a line drawing (albeit by Sydney Nolan) to a photograph; and I co-designed the photo-cover of Cultural Studies in 1987). For IJCS I knew which photo I wanted, and Sage went along with the choice. I explained it in the launch issue’s editorial (Hartley, "Editorial"). That original picture, a goanna on a cattle grid in the outback, by Australian photographer Grant Hobson, lasted ten years. Since volume 11 – in time for our second decade – the goanna has been replaced with a picture by Italian-based photographer Patrick Nicholas, called ‘Reality’ (Hartley, "Cover Narrative"). We have also used two other photos as cover images, once each. They are: Daniel Meadows’s 1974 ‘Karen & Barbara’ (Hartley, "Who"); and a 1962 portrait of Richard Hoggart from the National Portrait Gallery in London (Owen & Hartley 2007). The choice of picture has involved intense – sometimes very tense – negotiations with Sage. Most recently, they were adamant the Daniel Meadows picture, which I wanted to use as the long-term replacement of the goanna, was too ‘English’ and they would not accept it. We exchanged rather sharp words before compromising. There’s no need to rehearse the dispute here; the point is that both sides, publisher and editor, felt that vital interests were at stake in the choice of a cover-image. Was it too obscure; too Australian; too English; too provocative (the current cover features, albeit in the deep background, a TV screen-shot of a topless Italian game-show contestant)? Running Order Beyond the cover, the next obsolete feature of a journal is the running order of articles. Obviously what goes in the journal is contingent upon what has been submitted and what is ready at a given time, so this is a creative role within a very limited context, which is what makes it pleasurable. Out of a limited number of available papers, a choice must be made about which one goes first, what order the other papers should follow, and which ones must be held over to the next issue. The first priority is to choose the lead article: like the ‘first face’ in a fashion show (if you don’t know what I mean by that, see FTV.com. It sets the look, the tone, and the standard for the issue. I always choose articles I like for this slot. It sends a message to the field – look at this! Next comes the running order. We have about six articles per issue. It is important to maintain the IJCS’s international mix, so I check for the country of origin, or failing that (since so many articles come from Anglosphere countries like the USA, UK and Australia), the location of the analysis. Attention also has to be paid to the gender balance among authors, and to the mix of senior and emergent scholars. Sometimes a weak article needs to be ‘hammocked’ between two good ones (these are relative terms – everything published in the IJCS is of a high scholarly standard). And we need to think about disciplinary mix, so as not to let the journal stray too far towards one particular methodological domain. Running order is thus a statement about the field – the disciplinary domain – rather than about an individual paper. It is a proposition about how different voices connect together in some sort of disciplinary syntax. One might even claim that the combination of cover and running order is a last vestige of collegiate collectivism in an era of competitive academic individualism. Now all that matters is the individual paper and author; the ‘currency’ is tenure, promotion and research metrics, not relations among peers. The running order is obsolete. Special Issues An extreme version of running order is the special issue. The IJCS has regularly published these; they are devoted to field-shaping initiatives, as follows: Title Editor(s) Issue Date Radiocracy: Radio, Development and Democracy Amanda Hopkinson, Jo Tacchi 3.2 2000 Television and Cultural Studies Graeme Turner 4.4 2001 Cultural Studies and Education Karl Maton, Handel Wright 5.4 2002 Re-Imagining Communities Sara Ahmed, Anne-Marie Fortier 6.3 2003 The New Economy, Creativity and Consumption John Hartley 7.1 2004 Creative Industries and Innovation in China Michael Keane, John Hartley 9.3 2006 The Uses of Richard Hoggart Sue Owen, John Hartley 10.1 2007 A Cultural History of Celebrity Liz Barry 11.3 2008 Caribbean Media Worlds Anna Pertierra, Heather Horst 12.2 2009 Co-Creative Labour Mark Deuze, John Banks 12.5 2009 It’s obvious that special issues have a place in disciplinary innovation – they can draw attention in a timely manner to new problems, neglected regions, or innovative approaches, and thus they advance the field. They are indispensible. But because of online publication, readers are not held to the ‘project’ of a special issue and can pick and choose whatever they want. And because of the peculiarities of research assessment exercises, editing special issues doesn’t count as research output. The incentive to do them is to that extent reduced, and some universities are quite heavy-handed about letting academics ‘waste’ time on activities that don’t produce ‘metrics.’ The special issue is therefore threatened with obsolescence too. Refereeing In many top-rating journals, the human side of refereeing is becoming obsolete. Increasingly this labour-intensive chore is automated and the labour is technologically outsourced from editors and publishers to authors and referees. You have to log on to some website and follow prompts in order to contribute both papers and the assessment of papers; interactions with editors are minimal. At the IJCS the process is still handled by humans – namely, journal administrator Tina Horton and me. We spend a lot of time checking how papers are faring, from trying to find the right referees through to getting the comments and then the author’s revisions completed in time for a paper to be scheduled into an issue. The volume of email correspondence is considerable. We get to know authors and referees. So we maintain a sense of an interactive and conversational community, albeit by correspondence rather than face to face. Doubtless, sooner or later, there will be a depersonalised Text Management System. But in the meantime we cling to the romantic notion that we are involved in refereeing for the sake of the field, for raising the standard of scholarship, for building a globally dispersed virtual college of cultural studies, and for giving everyone – from unfavoured countries and neglected regions to famous professors in old-money universities – the same chance to get their research published. In fact, these are largely delusional ideals, for as everyone knows, refereeing is part of the political economy of publicly-funded research. It’s about academic credentials, tenure and promotion for the individual, and about measurable research metrics for the academic organisation or funding agency (Hartley, "Death"). The IJCS has no choice but to participate: we do what is required to qualify as a ‘double-blind refereed journal’ because that is the only way to maintain repute, and thence the flow of submissions, not to mention subscriptions, without which there would be no journal. As with journals themselves, which proliferate even as the print form becomes obsolete, so refereeing is burgeoning as a practice. It’s almost an industry, even though the currency is not money but time: part gift-economy; part attention-economy; partly the payment of dues to the suzerain funding agencies. But refereeing is becoming obsolete in the sense of gathering an ‘imagined community’ of people one might expect to know personally around a particular enterprise. The process of dispersal and anonymisation of the field is exacerbated by blind refereeing, which we do because we must. This is suited to a scientific domain of objective knowledge, but everyone knows it’s not quite like that in the ‘new humanities’. The agency and identity of the researcher is often a salient fact in the research. The embedded positionality of the author, their reflexiveness about their own context and room-for-manoeuvre, and the radical contextuality of knowledge itself – these are all more or less axiomatic in cultural studies, but they’re not easily served by ‘double-blind’ refereeing. When refereeing is depersonalised to the extent that is now rife (especially in journals owned by international commercial publishers), it is hard to maintain a sense of contextualised productivity in the knowledge domain, much less a ‘common cause’ to which both author and referee wish to contribute. Even though refereeing can still be seen as altruistic, it is in the service of something much more general (‘scholarship’) and much more particular (‘my career’) than the kind of reviewing that wants to share and improve a particular intellectual enterprise. It is this mid-range altruism – something that might once have been identified as a politics of knowledge – that’s becoming obsolete, along with the printed journals that were the banner and rallying point for the cause. If I were to start a new journal (such as cultural-science.org), I would prefer ‘open refereeing’: uploading papers on an open site, subjecting them to peer-review and criticism, and archiving revised versions once they have received enough votes and comments. In other words I’d like to see refereeing shifted from the ‘supply’ or production side of a journal to the ‘demand’ or readership side. But of course, ‘demand’ for ‘blind’ refereeing doesn’t come from readers; it comes from the funding agencies. The Reading Experience Finally, the experience of reading a journal is obsolete. Two aspects of this seem worthy of note. First, reading is ‘out of time’ – it no longer needs to conform to the rhythms of scholarly publication, which are in any case speeding up. Scholarship is no longer seasonal, as it has been since the Middle Ages (with university terms organised around agricultural and ecclesiastical rhythms). Once you have a paper’s DOI number, you can read it any time, 24/7. It is no longer necessary even to wait for publication. With some journals in our field (e.g. Journalism Studies), assuming your Library subscribes, you can access papers as soon as they’re uploaded on the journal’s website, before the published edition is printed. Soon this will be the norm, just as it is for the top science journals, where timely publication, and thereby the ability to claim first discovery, is the basis of intellectual property rights. The IJCS doesn’t (yet) offer this service, but its frequency is speeding up. It was launched in 1998 with three issues a year. It went quarterly in 2001 and remained a quarterly for eight years. It has recently increased to six issues a year. That too causes changes in the reading experience. The excited ripping open of the package is less of a thrill the more often it arrives. Indeed, how many subscribers will admit that sometimes they don’t even open the envelope? Second, reading is ‘out of place’ – you never have to see the journal in which a paper appears, so you can avoid contact with anything that you haven’t already decided to read. This is more significant than might first appear, because it is affecting journalism in general, not just academic journals. As we move from the broadcast to the broadband era, communicative usage is shifting too, from ‘mass’ communication to customisation. This is a mixed blessing. One of the pleasures of old-style newspapers and the TV news was that you’d come across stories you did not expect to find. Indeed, an important attribute of the industrial form of journalism is its success in getting whole populations to read or watch stories about things they aren’t interested in, or things like wars and crises that they’d rather not know about at all. That historic textual achievement is in jeopardy in the broadband era, because ‘the public’ no longer needs to gather around any particular masthead or bulletin to get their news. With Web 2.0 affordances, you can exercise much more choice over what you attend to. This is great from the point of view of maximising individual choice, but sub-optimal in relation to what I’ve called ‘population-gathering’, especially the gathering of communities of interest around ‘tales of the unexpected’ – novelty or anomalies. Obsolete: Collegiality, Trust and Innovation? The individuation of reading choices may stimulate prejudice, because prejudice (literally, ‘pre-judging’) is built in when you decide only to access news feeds about familiar topics, stories or people in which you’re already interested. That sort of thing may encourage narrow-mindedness. It is certainly an impediment to chance discovery, unplanned juxtaposition, unstructured curiosity and thence, perhaps, to innovation itself. This is a worry for citizenship in general, but it is also an issue for academic ‘knowledge professionals,’ in our ever-narrower disciplinary silos. An in-close specialist focus on one’s own area of expertise need no longer be troubled by the concerns of the person in the next office, never mind the next department. Now, we don’t even have to meet on the page. One of the advantages of whole journals, then, is that each issue encourages ‘macro’ as well as ‘micro’ perspectives, and opens reading up to surprises. This willingness to ‘take things on trust’ describes a ‘we’ community – a community of trust. Trust too is obsolete in these days of performance evaluation. We’re assessed by an anonymous system that’s managed by people we’ll never meet. If the ‘population-gathering’ aspects of print journals are indeed obsolete, this may reduce collegiate trust and fellow-feeling, increase individualist competitiveness, and inhibit innovation. In the face of that prospect, I’m going to keep on thinking about covers, running orders, referees and reading until the role of editor is obsolete too. ReferencesHartley, John. "'Cover Narrative': From Nightmare to Reality." International Journal of Cultural Studies 11.2 (2005): 131-137. ———. "Death of the Book?" Symposium of the National Scholarly Communication Forum & Australian Academy of the Humanities, Sydney Maritime Museum, 2005. 26 Apr. 2009 ‹http://www.humanities.org.au/Resources/Downloads/NSCF/RoundTables1-17/PDF/Hartley.pdf›. ———. 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