Journal articles: 'Export Administration Act of 1979 (United States)' – Grafiati (2024)

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During 1994, the total sales value of chemicals exported from the United States exceeded $51 billion, up 15 percent over the previous year and resulting in the chemical sector outpacing all other sectors that finished the year with favorable trade balances. Chemicals leaving the United States were shipped under the control provisions of both the Department of Commerce's Export Administration Regulations (EAR), and the Department of State's International Traffic in Arms Regulations (ITAR). Though this is something of an oversimplification, the EAR basically concerns itself with products that have civilian application, and the ITAR with products of use to the military. Currently, the Commodity Control List of the EAR, overseen by Commerce's Office of Export Licensing within the Bureau of Export Administration, identifies fifty-four chemicals and ten toxins as intermediate agents and precursors to chemical weapons subject to export regulation. The Munitions List of the ITAR, administered by the Office of Defense Trade Controls of the State Department's Bureau of Politico-Military Affairs, identifies twenty-two chemicals as subject to regulation and cautions that this listing is merely illustrative, as any “chemical agent,” defined as “a substance having military application,” is subject to export control.

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The petroleum industry in Australia is at the centre of a web of complex laws. In addition to the legislation under which petroleum exploration and production tenements are granted there is a multiplicity of statutes and regulations, Commonwealth and State, which have a direct bearing on the conduct of those involved in exploring for or exploiting Australia's petroleum reserves. For example, the level of participation by foreigners is governed by the Commonwealth Foreign Investment Guidelines and the Foreign Takeovers Act 1975; the Commonwealth has control over the export of petroleum under the Customs (Prohibited Exports) Regulations and domestic markets are subject to the operation of the Crude Oil Allocation Scheme. The Commonwealth continues to have the right to regulate the transfer of funds to and from Australia under the Banking (Foreign Exchange) Regulations. Certain States such as South Australia and New South Wales have their own foreign investment guidelines.Not only this, there are revenue laws which govern very much the way in which petroleum projects are organised, interests transferred and otherwise dealt with and finance made available, such as State stamp duty legislation, Commonwealth income tax laws, and Commonwealth legislation imposing registration fees on dealings in exploration permits and production licences. A new tax, Resource Rent Tax, is to be introduced.Then there are laws which have an indirect bearing on petroleum activities such as the Companies Code which, in addition to governing the administration and organisation of companies, controls the way funds can be raised.The statutory and regulatory framework is only part of the picture. The rights and obligations of participants in petroleum projects as between themselves are almost always set out in a joint venture or joint operating agreement, the combination between the participants being known as an unincorporated joint venture. This form of business organisation is not a partnership; it is not the creature of legislation. Indeed it has been rarely referred to in Acts of Parliament. Problems arising under the joint venture agreement will be considered against the backdrop of the general law which unfortunately has seldom been called upon to resolve disputes between participants in joint ventures. An illustration of one of these rare instances is Brian Pty Ltd v United Dominions Corporation Ltd (1983), where the New South Wales Court of Appeal considered the fiduciary relationship of joint venturers.Despite this legislative and regulatory' backdrop and the uncertainties as to the true effect of joint venture agreements, the industry up until quite recently has survived with little litigation. This is no longer the case. Recent and pending litigation shows that there is no reluctance on the part of participants to take their disputes to court, often at great expense and with unfortunate results for previously close relationships. It must now be said that money spent to achieve proper and clear agreement on organisational and legal matters at the earliest stage of a project is money just as well spent as that on drilling and other operational activities.

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The FDA Food Safety Modernization Act (FSMA) is by all accounts the most sweeping and comprehensive update to U.S. food laws in seventy years, aiming to confront the reality that the nation's food supply has undergone fundamental shifts in its sources, distribution channels, and intermediate handlers. The law's intent is to prevent problems that can cause foodborne illness and enable the Food and Drug Administration (FDA) to keep a record of facilities processing food for sale in the United States, a mandate that expands FDA's already global regulatory activities. FSMA gives FDA broad new powers to prevent food safety problems, detect and respond to food safety issues, and improve the safety of imported foods. Because the law specifically aims to update FDA authority in light of the reality of global food and food additive markets, Section 305 FSMA calls for FDA to develop a comprehensive plan to expand the “technical, scientific, and regulatory capacity of foreign governments and their respective food industries in countries that export foods to the United States.”

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On May 28, 1976, President Gerald R. Ford signed into law the Medical Device Amendments to the Federal Food, Drug and Cosmetic Act. The purpose of the Amendments is to ensure that medical devices are safe and effective, and properly labelled for their intended use. In order to accomplish this mandate, the Amendments provide the Food and Drug Administration (FDA) with authority to regulate devices during most phases of their development, testing, and use. The FDA's approach to this regulation focuses heavily on both the pre- and post-market phases of a device's lifetime. During the pre-market phase, the FDA concentrates on providing a reasonable assurance that new devices are adequately evaluated for safety and effectiveness. Implicit in this assessment is the concept of balancing risk to benefit. If the benefits significantly outweigh the risks for the intended use, the device will most likely be approved for marketing in the United States. Since risk/benefit assessments for new technology involve considerable clinical judgment, the FDA utilizes expert panels composed of clinicians, engineers, toxicologists, and other experts familiar with the devices. These panels are often directed to review the data provided by the manufacturer to support claims for device safety and effectiveness. If the advisory panel believes the data support the manufacturer's claims, a recommendation for approval for marketing is made to the FDA. The Agency must ultimately decide whether the device is to receive approval for marketing.

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Corporate administration has for some time been perceived as a basic part of a business' progress in the present serious climate. This has been brought to the front because of a progression of high-profile embarrassments, including those including Enron, Parmalat, WorldCom, and Lehman Brothers, and the worldwide local area has perceived the basic idea of successful corporate administration. Corporate administration standards should be intermittently reconsidered considering the undeniably unsure and complex business climate wherein we presently track down ourselves. There has been significant discussion about "what establishes great administration?" all through the world. Administration principles have fundamentally centeredaround more noteworthy leading body of chief obligations, more tight leading group of chief guideline, and expanded investor fomentation lately. Running against the norm, there are no generally perceived principles for evaluating the progress of corporate administration rehearses. Corporate administration as legally necessary has significant constraints as far as viability and ought to be kept away from if conceivable. Also, as verified above, depending essentially on an overall arrangement of standards with no limiting regulation has various weaknesses. Because of the "consistence or-clarify" administration rule, numerous nations have fostered a center street strategy that recognizes the basic variable for progress. This is a judicious procedure since it guarantees that organizations stick to center codes and norms. It empowers more noteworthy adaptability and embraces clever thoughts that benefit partners over the long haul. Because of this methodology, organizations are encouraged to be more straightforward, as any deviations should be openly clarified. At last, yet absolutely not least, a business' drawn out presence is dependent upon its conviction to persistently seek after higher administration norms. While the professional workplace is continuously changing, the key standards of straightforwardness, morals, and responsibility should remain resolute. Having strong corporate administration rules set up is a vital part of carrying on with work in the cutting edge time. As a precondition for battling with intense rivalry for practical development in a powerful worldwide market setting, it additionally goes about as an outflow of the reasonableness, obligation, revelation, and straightforwardness prerequisites important to augment an incentive for all partners. Corporate Governance is tied in with maintaining standards, taking part in moral strategic policies, making a helpful commitment to social issues, and leading business in a way that is reasonable for all partners. Compelling corporate administration is broadly perceived as a vital device for risk the board and financial turn of events, the last option of which is made conceivable by guaranteeing monetary productivity, development, and partner certainty. At the point when the seeds of present day corporate administration are analyzed, obviously the United States' Watergate issue planted the starts of the cutting edge corporate administration development. The resulting examinations empowered US administrative and official associations to pinpoint control shortcomings that empowered various firms to make unlawful political commitments. Subsequently, the United States laid out the Foreign and Corrupt Practices Act of 1977, which has clear arrangements for the foundation, upkeep, and evaluation of inward control frameworks. In 1979, the Securities and Exchange Commission of the United States of America ordered the announcing of interior monetary controls. The Treadway Commission was established in 1985 in light of a progression of high-profile organization disappointments in the United States, most prominently the Savings and Loan fiasco. Its significant occupation was to learn the essential reasons of monetary report distortion and to give suggestions for alleviating such deception.

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For more than a decade, China has a policy of managing its currency exchange rate (RMB) to limit its appreciation against other currencies like U.S dollar. This policy has been subjected to many criticisms from United States’ lawmakers as currency manipulation. The U.S. argues that China is gaining an advantage of export and attracting direct foreign investment at the expense of other countries including the United State. The claim also has included that China’s manipulation causes U.S. trade deficit as well as high rate of unemployment. Meanwhile, China’s policy makers argue that its policy of exchange rate is a mechanism tool to enhance the development of the country and attaining market growth to make China rich and powerful. This research paper underlines the root of this argument and how china’s currency policy has affected both economics of U.S. and China. Many economists have emphasized on the appreciation of RMB as an important factor to attain the trade balance. However, this research argues that the appreciation is not going to matter. Pressure has been put on Obama’s Administration to push China to appreciate its currency and to designate China as a "currency manipulator". Several Bills have been introduced to discuss this issue.From a legal perspective, two entities could tackle this issue. They are the World Trade Organization (WTO) and the International Monetary Fund (IMF). However, IMF lack legitimacy and leverage and WTO has no jurisdiction over the exchange rate. So, none of these entities could handle the currency issue. Therefore, this paper analyzes some possible solutions such as Omnibus Act, tariffs, import quotas and forming new legislation. Where, it concludes that the best solution could be via forming a new international agency.

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In the aftermath of Watergate and Vietnam, Congressional investigations uncovered the largely unknown activities of the CIA and other agencies, which included arming and interfering in the domestic politics of regimes in both Central America and Iran. These programmes had also involved supporting reactionary regimes in ways that some saw as drawing the United States into conflicts, like Vietnam, without public knowledge or consent. In 1987, it was revealed that the Reagan administration had operated a clandestine policy in Nicaragua that evaded the restrictions placed upon the executive by the Boland Amendment in terms of aid given to the Nicaraguan Contras and that National Security Council (NSC) staff had lied to Congress and concealed these illegal actions. They had solicited funds from foreign allies and smuggled arms to the Contra insurgents in support of their efforts to topple the Sandinista regime. Contrary to the Arms Export Control Act and to its own publicly stated policy, the administration had also sold arms, particularly missiles, to Iran, which had been branded a sponsor of international terrorism since the Iranian revolution, and which was currently at war with its neighbour, Iraq. Such deals had formed part of ‘arms for hostages’ negotiations that were also contrary to official policy. Finally, it was disclosed that profits from the arms sales had been diverted to fund the Contras and hence to evade Congressional restrictions on funding. This article explores why these illegal actions did not result in President Reagan’s impeachment. It considers the merits of the administration’s claims that this was a ‘rogue operation’ by zealots within the NSC, and the success of its efforts to present Reagan as eager to cooperate with efforts to discover the truth of what had happened. It reviews the interactions between the Tower Commission, Congressional investigations and Office of Independent Counsel probe (Lawrence Walsh) and shows how these contributed to Reagan’s ‘escape’ from impeachment. It reviews the argument that Reagan’s underlying health problems contributed to his lax management of NSC operations and it considers the importance of televised testimony, particularly that of Oliver North, in shaping public opinion in the administration’s favour. Finally, it considers how this significant episode in 1980s politics foreshadowed major trends in US politics that can be seen as culminating in the present, acute partisan divide, Donald Trump’s double impeachment, and a manifest decline in public trust and respect for American political institutions.

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Abstract The deduction of certain state and local taxes (SALT) from the U.S. federal income tax base provides substantial amounts of indirect federal subsidy to state and local governments and also allows cross-state exportation of deductible state and local taxes. The Tax Cuts and Jobs Act of 2017 (TCJA) limits the SALT deduction and increases standard deduction per filer each year. This study examines the impact of TCJA on the distribution of this indirect federal subsidy and exportation of major state and local taxes. Using individual income tax data from the Internal Revenue Service, this research shows that the law narrows the disparity in states’ receipt of the indirect federal subsidy and reduces the capacity of high-tax states to export their taxes to other states. The findings shed light on the continued debate regarding the effectiveness and fairness of this important type of intergovernmental transfer in the United States.

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ABSTRACT In the late 1960s in the United States, public interest in motor vehicle safety was at an all-time high, resulting in the National Traffic and Motor Vehicle Safety Act, the Highway Safety Act, and the creation of the National Highway Traffic Safety Administration. Around 1970, a group of industry scientists saw a need for a forum for creation of useful tire standards and dissemination of scientific knowledge about tires. This led to the formation of the American Society for Testing and Materials (ASTM) Committee F-09 on tires in 1971. In 1972, the committee began publication of the journal Tire Science & Technology (TSTCA), the first peer-reviewed journal dedicated exclusively to scientific articles on tires. In 1979, ASTM ceased publication of the journal, and in 1980, members of F-09 incorporated The Tire Society to continue publication. In 1982, The Tire Society held its first annual Conference on Tire Science and Technology. Nearly 40 years later, the society has been through many changes, but the journal, the annual conference, and the core mission of encouraging and disseminating knowledge about tire science and technology remain. Through a review of documents and interviews with members of the society, this article seeks to comprehensively document the history of The Tire Society.

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The stand-off involving the asylum-seekers on board the Tampa, off the coast of Australia in August-September 2001, represented a critical confluence of security, fear. The Australian government’s response to the issue of stranded asylum-seekers, it is argued here, was a directly calculated political representation aimed at creating fear in the Australian populace: fear of a threat to Australian security. The fear generated by the Australian government, in which the national media was a willing accomplice, allowed for a perception among Australians that the government’s actions, in refusing to allow the Tampa to offload its passengers, were consistent with the provision of national security. The government was preserving the territorial integrity and sovereignty of the state in the face of this constructed ‘threat’ to Australia’s security. The provision of security is central to the state’s reason for being. If the state is not capable of providing security, however that security is to be defined, the continued legitimacy and even existence of the state itself must necessarily be questioned, as Michael Dillon has argued. The power and importance of the security narrative can therefore not be underestimated. Further, Dillon argues, this security has generally been conceived as the security of the ‘self’ against the ‘other’. Attempts to be seen to be ‘doing the job’ of security has throughout history involved the identification and vilification of this other, with the fear of the other consequently constituting or reifying the self and contributing to the legitimacy of governments. The nature of this relationship between identity, security and fear is central to the government’s politics of representing the asylum seekers. The Howard government acknowledged, rightly, that making people afraid of the threat posed by waves of foreign asylum seekers and evoking the narrative of security would contribute to a solidification of the Australian self, and unite the people of Australia behind its political leaders, who were working to protect Australians from this ‘threat’. The fear created by the Australian government was constructed in a number of ways. First, the government argued that Australia was faced with a possible future wave of illegal immigrants, a situation that threatened the future security of the country. Seen in this light, the decision to prevent the Tampa from offloading asylum seekers was a means of achieving security by sending a message to would-be boat people that Australia was not a ‘soft touch’. Second, the government evoked a range of images central to traditional discourses of security, concerned predominantly with the preservation of the nation-state from military attack. As Burke argues, the government variously talked of ‘territorial integrity’, ‘sovereignty’ and ‘national interests’, concepts that, when spoken of together, would seem more suited to a situation of armed conflict rather than one involving the captain of a cargo boat looking to offload asylum seekers for processing in Australia. The consistency of this type of language with earlier depictions of the threat of Japanese invasion during World War II, for example, is not an historical coincidence. It is argued here that the use of such language helped create a context in which the idea of asylum seekers as threatening to Australian security, and therefore to be feared, had resonance with the domestic population. Finally, the government constructed fear through its attempts to depict the asylum-seekers as an ‘other’, foreign to Australian identity. This was achieved in part through questioning the legitimacy of their claims to asylum over others awaiting processing, and also through the very act of depicting them as threats to security. Their religious and ethnic otherness was not played on specifically by the government, although claims that asylum seekers threw children into the ocean, which were to later be proved erroneous, portrayed asylum-seekers as less than human. The combination of these acts constructed a fear in the Australian populace, a fear of the threat to Australian self from a foreign other, thus pointing to the relationship between fear, security and identity. In an excellent recent text on Australian security, Anthony Burke convincingly argues that the government’s response to, or indeed creation of, the Tampa crisis can be viewed as the continuation of an enduring narrative of security and fear that has been the cornerstone of Australian identity and subjectivity since 1788. This narrative, he argues, has been constitutive and reflective of Australia’s sense of self, and has allowed for politics that has denied the rights of the other throughout Australia’s history. This perspective is not limited to the Australian subject. In a seminal text on US security, David Campbell argues that the provision of security in the United States has similarly been linked to identity politics in which the fear of a vilified other was central to the constitution of the self and the legitimacy of governments. The relationship between fear, identity politics and security is particularly evident, Campbell argues, in the McCarthy era attacks on ‘communist dissidents’ during the early years of the Cold War. The point to be made from these examples is that fear is not just implicated in the construction of security and indeed the self: it is integral to that project. Facile as the comparison may be, the approach of the Australian government to this issue is reminiscent of the plot of the 1995 movie, Canadian Bacon. In the film, a US President suffering from low popularity ratings invents a confrontation with Canada in order to unite the American people behind him and enhance his chances of winning a second term in office. In inventing this threat, his administration portrayed Canadians residing in the United States as possible spies for the Canadian administration and also expressed suspicion of the hegemonic aspirations of the Canadian government in general. The fear created through such a depiction, it was hoped, would allow the President enough popularity to be re-elected. Perhaps the central difference between this example and the Howard government’s approach to the asylum seeker ‘threat’ is that the fictional US President in question was not successful in his bid for re-election. Joseph Camilleri has persuasively argued that security is a psychological rather than material state. In other words, security is about feeling rather than being secure. As such, governments must seek to create conditions in which this feeling of security is engendered in order to retain legitimacy. Enter the narrative of fear. Fear creates a basis for perceptions that the government is providing security, because once a population becomes concerned at threats posed by different actors, that population becomes almost necessarily supportive of actors viewed as capable of addressing that threat. Seen in this light, the creation of threat, regardless of the material significance of the threat itself, is a useful tool for governments to maintain legitimacy. Importantly, in the case of the asylum-seekers, these individuals themselves, and the nature of their plight, had limited relevance to the political project of the Australian government. This is aside from the important caveat that they were not of Anglo-Saxon appearance, and therefore ‘different’ to dominant depictions of the Australian self, a difference reinforced by claims of their willingness to endanger the lives of their own children. The fact that many asylum seekers were escaping the oppression of a regime Howard himself had described as evil, and whose invasion he was simultaneously supporting, seems to have slipped through the cracks of popular consciousness. This paradox did not seem to bother the Australian government, whose political representation of asylum seekers did not require any attention to where they had come from or why they had been willing to risk their lives in seeking refuge. The government merely had to point to a future ‘wave of boat-people’: queue-jumping ‘illegals’ who had targeted Australia as an international ‘soft touch’. The fear created by such an image was enough to suppress any lingering form of empathy or, for that matter, rationality. Even a rationalist would struggle to reconcile the government’s commitment to international human rights norms, its support for the war against terrorism and depiction of the evil Taliban regime of Afghanistan, and its commitment to preventing Afghani asylum-seekers from having claims processed in Australia. The government was riding on a wave of fear, a fear that would play a significant role in the re-election of the Howard government and the continued popular support for mandatory detention of asylum-seekers and the government’s ‘Pacific Solution’. Can we imagine a situation in which security can mean something other than the security of the self (in this case the Australian nation-state) at the expense of the other (asylum seekers)? Can we imagine a situation in which security is associated with emancipation of individuals, as Critical Security theorists advocate, rather than the (military) protection of the sovereignty of the state? Burke is sceptical, largely because the narrative of security as fear has permeated Australian politics, and the Australian subject, since the initial dispossession of indigenous people in the eighteenth century. In an international climate where fear still prevails, particularly in the wording of President Bush’s recent State of the Union address in which he warned Americans of the ‘Axis of Evil’, it is difficult to see how, or where, normatively progressive security politics would be located. When government or regime legitimacy can be assisted through recourse to an identity politics predicated on fear, what incentive could we imagine for an acknowledgment of the claims of ‘others’? The answer to this question lies partly in this paper itself, and in the other contributions in this journal to the question of fear and social relations. The power of fear, it is argued here, is necessarily undermined by an analysis of the construction of fear itself. This form of critique, following Foucault, is critical to breaking down a knowledge-power nexus that, in the case of security and the asylum seekers renders us secure through the suffering of others. While we may not expect critical analysis to reconstitute politics and identity in the short-term, we can reasonably expect such analyses to undermine the resonance of such narratives of fear. References Burke, Anthony. In Fear of Security: Australia’s Invasion Anxiety. Sydney: Pluto, 2002. Camilleri, Joseph. ‘The security dilemma revisited: Implications for the Asia-Pacific’, in W. Tow, R. Thakur and I. Hyun eds. Asia’s Emerging Regional Order: Reconciling Traditional and Human Security. Tokyo: UN University Press, 2000. Campbell, David. Writing Security: United States Foreign Policy and the Politics of Identity. Minneapolis: University of Minnesota Press. Dillon, Michael. The Politics of Security: Towards a Philosophy of Continental Thought. London: Routledge, 1996. Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Vintage, 1979. Canadian Bacon. Dir. Micheal Moore. PolyGram, 1995 (Screenplay by Michael Moore). Citation reference for this article MLA Style McDonald, Matt. "Fear, Security and the Politics of Representing Asylum Seekers" M/C: A Journal of Media and Culture 5.1 (2002). [your date of access] < http://www.media-culture.org.au/0203/security.php>. Chicago Style McDonald, Matt, "Fear, Security and the Politics of Representing Asylum Seekers" M/C: A Journal of Media and Culture 5, no. 1 (2002), < http://www.media-culture.org.au/0203/security.php> ([your date of access]). APA Style McDonald, Matt. (2002) Fear, Security and the Politics of Representing Asylum Seekers. M/C: A Journal of Media and Culture 5(1). < http://www.media-culture.org.au/0203/security.php> ([your date of access]).

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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 hom*osexual 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 hom*osexuality 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 hom*osexual 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 hom*osexual couple.[52] CONCLUSION In the last 50 years, there has been a notable shift in the social acceptance of hom*osexuality.[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 hom*osexuality 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.

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In India Courts are overburdened with litigations. There are so many reasons for over burdening but one of the good reason is that proportionately to the case number of courts are less, and applications of procedural law consumes lot of time and it result into delay. “Justice Delayed is Justice Denied” that is the reason people usually frustrate by litigations in India. Recently there is a good realization amounts all stockholders of law that there should be quick disposal of cases and prompt justice delivered system. Considering this aspect, to lessen the burden of court alternate dispute resolution system is encouraged and having good result in the form of mediation and arbitration. Even civil courts under section 18 resort to settle the matter through mediation. In criminal arbitration of justice now fast track courts are doing very good role and delay in criminal trials to some extent is minimize may not be fully controlled. But for that we have to give credit to Supreme Court of India by giving directions in number of Public interest Litigation started from Hussainara Khatun & Others Vs Home Secretary, State of Bihar ( 1979 AIR 1369,1979 SCR(3)532). There is also a one thought to introduce plea bargaining in India. Plea bargain usually occurs any time before verdict is passed. Good thing about Plea Bargain is that it concludes a criminal case without a trial. PLEA BARGAINING IN INDIA Prior to the Criminal law (Amendment) Act, 2005 the concept of Plea Bargain was totally unknown. In state of UP vs Chandrika( AIR 2000SC 164) and Kripalsingh Vs State of Haryana 2000(1) Crimes 53 (SC). Supreme Court of India observed that the concept of Plea Bargaining is against the Public Policy and further said that neither that trial Courts nor High Court has Jurisdiction to bypass the minimum sentence prescribed by the law. Before proceeding to plea bargaining the concept now started introducing in India, it would be good known what is pleas bargaining. There is no perfect or simple definition of Plea Bargaining. Simply we can put it and say that a plea bargaining is a contractual bargaining between the prosecution and in defendant accused concerning disposition of a criminal charge. However, unlike other contractual obligations it is not enforceable until a Judge approved it. From the point of view accused means who trends conviction and demand lesser sentence where he likely to be convicted. As researcher written about that the Plea bargaining, introduced in India from the year 2005 and not earlier. But there are certain provisions n earlier Acts also i.e. provision in chapter XXI of Crpc. The same has taken place through amendment I criminal law (Amendment) Act, 2005 and came into the effect from July 2005. Recognizing that there are significant differences in criminal procedures as well as in the role and status of various agencies in different countries, the Act does not give recognition to any existing practice akin to plea-bargaining. Instead, it lays down procedures with a distinct feature of enabling an accused to an application for plea bargaining in the court where the trial is pending. The Act further requires the court after receiving the application, must examine the accused in camera to ascertain whether the application has been filed voluntarily. Once the court is convinced that the accused is participating, in the plea-bargain voluntarily, the court must then issue notice to the Public prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation of such a mutually acceptable settlement is left to the free will of the prosecution (including the victim) and the accused. If a settlement is reached, the court can award compensation based on it to the victim and then hear the parties on the issue of punishment. The Court may release the accused on probation if the law allows for it; if a minimum sentence is provided for the offence committed’ the accused may be sentenced to half of such minimum punishment; above, then the accused may be sentences to one fourth of the punishment provided or extendable for such offences. The accused may also avail of the benefit under section 428 of the code of criminal Procedure, 1973 which allows setting of the period of detention undergone by the accused against the sentence of imprisonment in plea bargained settlement. The court must deliver the Judgement in open Court according to the terms of the mutually agreed disposition and formula prescribed for sentencing including victim Compensation. IT may be noted that this Judgement is final and no appeal lies apart from a writ petition to the State high Court under article 226 and 226 of the Constitution or a special leave petition to the Supreme Court under Article 136 of the Constitution. IN addition to above the Act also provides: • If the accused is a first time offender, the court will have the option of releasing him/her on probation. Alternatively, the court may grant half the minimum punishment for the particular offence. • The plea-bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years; it does not apply where such offence affect the socio-economic condition of the country or has been committed against a woman or a child below the age of 14 years; • The application for plea – bargaining should be filed by the accused voluntarily; • The statement or facts stated by an accused in an application for plea-bargaining shall not be used for any other purpose other than for plea bargaining; This was the concept of plea bargaining, in a nutshell, as included in Indian Criminal Justice Process. It would be pertinent here to understand how different the above process is from the plea bargaining as practiced in United States. In India rate of conviction is not high, on the contrary acquittal rate is more i.e. why accused do not resort to plea-bargaining. Because in plea bargaining once you accept guilt, conviction is must. When most of the accused are told that the will be acquitted by court they usually do not come forward for plea bargaining. Therefore unless and until conviction rate is not become higher, there will not be good result of plea bargaining what actually was happened in USA same cannot be happened in India immediately. The need of the time is to revamp criminal administration of the justice.

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IntroductionThe Internet (especially in the so-called Web 2.0 phase), digital media and file-sharing networks have thrust copyright law under public scrutiny, provoking discourses questioning what is fair in the digital age. Accessible hardware and software has led to prosumerism – creativity blending media consumption with media production to create new works that are freely disseminated online via popular video-sharing Web sites such as YouTube or genre specific music sites like GYBO (“Get Your Bootleg On”) amongst many others. The term “prosumer” is older than the Web, and the conceptual convergence of producer and consumer roles is certainly not new, for “at electric speeds the consumer becomes producer as the public becomes participant role player” (McLuhan 4). Similarly, Toffler’s “Third Wave” challenges “old power relationships” and promises to “heal the historic breach between producer and consumer, giving rise to the ‘prosumer’ economics” (27). Prosumption blurs the traditionally separate consumer and producer creating a new creative era of mass customisation of artefacts culled from the (copyrighted) media landscape (Tapscott 62-3). Simultaneously, corporate interests dependent upon the protections provided by copyright law lobby for augmented rights and actively defend their intellectual property through law suits, takedown notices and technological reinforcement. Despite a lack demonstrable economic harm in many cases, the propertarian approach is winning and frequently leading to absurd results (Collins).The balance between private and public interests in creative works is facilitated by the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107). The majority of copyright laws contain “fair” exceptions to claims of infringement, but fair use is characterised by a flexible, open-ended approach that allows the law to flex with the times. Until recently the defence was unique to the U.S., but on 2 January Israel amended its copyright laws to include a fair use defence. (For an overview of the new Israeli fair use exception, see Efroni.) Despite its flexibility, fair use has been systematically eroded by ever encroaching copyrights. This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.A Brief History of CopyrightThe law of copyright extends back to eighteenth century England when the Statute of Anne (1710) was enacted. Whilst the length of this paper precludes an in depth analysis of the law and its export to the U.S., it is important to stress the goals of copyright. “Copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Vaidhyanathan 11). Copyright was designed as a right limited in scope and duration to ensure that culturally important creative works were not the victims of monopolies and were free (as later mandated in the U.S. Constitution) “to promote the progress.” During the 18th century English copyright discourse Lord Camden warned against propertarian approaches lest “all our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are” (Donaldson v. Becket 17 Cobbett Parliamentary History, col. 1000). Camden’s sentiments found favour in subsequent years with members of the North American judiciary reiterating that copyright was a limited right in the interests of society—the law’s primary beneficiary (see for example, Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994]). Putting the “Fair” in Fair UseIn Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) Justice Storey formulated the modern shape of fair use from a wealth of case law extending back to 1740 and across the Atlantic. Over the course of one hundred years the English judiciary developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without consent. Storey’s synthesis of these principles proved so comprehensive that later English courts would look to his decision for guidance (Scott v. Stanford L.R. 3 Eq. 718, 722 (1867)). Patry explains fair use as integral to the social utility of copyright to “encourage. . . learned men to compose and write useful books” by allowing a second author to use, under certain circ*mstances, a portion of a prior author’s work, where the second author would himself produce a work promoting the goals of copyright (Patry 4-5).Fair use is a safety valve on copyright law to prevent oppressive monopolies, but some scholars suggest that fair use is less a defence and more a right that subordinates copyrights. Lange and Lange Anderson argue that the doctrine is not fundamentally about copyright or a system of property, but is rather concerned with the recognition of the public domain and its preservation from the ever encroaching advances of copyright (2001). Fair use should not be understood as subordinate to the exclusive rights of copyright owners. Rather, as Lange and Lange Anderson claim, the doctrine should stand in the superior position: the complete spectrum of ownership through copyright can only be determined pursuant to a consideration of what is required by fair use (Lange and Lange Anderson 19). The language of section 107 suggests that fair use is not subordinate to the bundle of rights enjoyed by copyright ownership: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright” (Copyright Act 1976, s.107). Fair use is not merely about the marketplace for copyright works; it is concerned with what Weinreb refers to as “a community’s established practices and understandings” (1151-2). This argument boldly suggests that judicial application of fair use has consistently erred through subordinating the doctrine to copyright and considering simply the effect of the appropriation on the market place for the original work.The emphasis on economic factors has led courts to sympathise with copyright owners leading to a propertarian or Blackstonian approach to copyright (Collins; Travis) propagating the myth that any use of copyrighted materials must be licensed. Law and media reports alike are potted with examples. For example, in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004) a Sixth Circuit Court of Appeals held that the transformative use of a three-note guitar sample infringed copyrights and that musicians must obtain licence from copyright owners for every appropriated audio fragment regardless of duration or recognisability. Similarly, in 2006 Christopher Knight self-produced a one-minute television advertisem*nt to support his campaign to be elected to the board of education for Rockingham County, North Carolina. As a fan of Star Wars, Knight used a makeshift Death Star and lightsaber in his clip, capitalising on the imagery of the Jedi Knight opposing the oppressive regime of the Empire to protect the people. According to an interview in The Register the advertisem*nt was well received by local audiences prompting Knight to upload it to his YouTube channel. Several months later, Knight’s clip appeared on Web Junk 2.0, a cable show broadcast by VH1, a channel owned by media conglomerate Viacom. Although his permission was not sought, Knight was pleased with the exposure, after all “how often does a local school board ad wind up on VH1?” (Metz). Uploading the segment of Web Junk 2.0 featuring the advertisem*nt to YouTube, however, led Viacom to quickly issue a take-down notice citing copyright infringement. Knight expressed his confusion at the apparent unfairness of the situation: “Viacom says that I can’t use my clip showing my commercial, claiming copy infringement? As we say in the South, that’s ass-backwards” (Metz).The current state of copyright law is, as Patry says, “depressing”:We are well past the healthy dose stage and into the serious illness stage ... things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together.The erosion of fair use by encroaching private interests represented by copyrights has led to strong critiques leveled at the judiciary and legislators by Lessig, McLeod and Vaidhyanathan. “Free culture” proponents warn that an overly strict copyright regime unbalanced by an equally prevalent fair use doctrine is dangerous to creativity, innovation, culture and democracy. After all, “few, if any, things ... are strictly original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others” (Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), qted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994)). The rise of the Web 2.0 phase with its emphasis on end-user created content has led to an unrelenting wave of creativity, and much of it incorporates or “mashes up” copyright material. As Negativland observes, free appropriation is “inevitable when a population bombarded with electronic media meets the hardware [and software] that encourages them to capture it” and creatively express themselves through appropriated media forms (251). The current state of copyright and fair use is bleak, but not beyond recovery. Two recent cases suggest a resurgence of the ideology underpinning the doctrine of fair use and the role played by copyright.Let’s Go CrazyIn “Let’s Go Crazy #1” on YouTube, Holden Lenz (then eighteen months old) is caught bopping to a barely recognizable recording of Prince’s “Let’s Go Crazy” in his mother’s Pennsylvanian kitchen. The twenty-nine second long video was viewed a mere twenty-eight times by family and friends before Stephanie Lenz received an email from YouTube informing her of its compliance with a Digital Millennium Copyright Act (DMCA) take-down notice issued by Universal, copyright owners of Prince’s recording (McDonald). Lenz has since filed a counterclaim against Universal and YouTube has reinstated the video. Ironically, the media exposure surrounding Lenz’s situation has led to the video being viewed 633,560 times at the time of writing. Comments associated with the video indicate a less than reverential opinion of Prince and Universal and support the fairness of using the song. On 8 Aug. 2008 a Californian District Court denied Universal’s motion to dismiss Lenz’s counterclaim. The question at the centre of the court judgment was whether copyright owners should consider “the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court ultimately found in favour of Lenz and also reaffirmed the position of fair use in relation to copyright. Universal rested its argument on two key points. First, that copyright owners cannot be expected to consider fair use prior to issuing takedown notices because fair use is a defence, invoked after the act rather than a use authorized by the copyright owner or the law. Second, because the DMCA does not mention fair use, then there should be no requirement to consider it, or at the very least, it should not be considered until it is raised in legal defence.In rejecting both arguments the court accepted Lenz’s argument that fair use is an authorised use of copyrighted materials because the doctrine of fair use is embedded into the Copyright Act 1976. The court substantiated the point by emphasising the language of section 107. Although fair use is absent from the DMCA, the court reiterated that it is part of the Copyright Act and that “notwithstanding the provisions of sections 106 and 106A” a fair use “is not an infringement of copyright” (s.107, Copyright Act 1976). Overzealous rights holders frequently abuse the DMCA as a means to quash all use of copyrighted materials without considering fair use. This decision reaffirms that fair use “should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design” but something that it is integral to the constitution of copyright law and essential in ensuring that copyright’s goals can be fulfilled (Leval 1100). Unlicensed musical sampling has never fared well in the courtroom. Three decades of rejection and admonishment by judges culminated in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004): “Get a license or do not sample. We do not see this stifling creativity in any significant way” was the ruling on an action brought against an unlicensed use of a three-note guitar sample under section 114, an audio piracy provision. The Bridgeport decision sounded a death knell for unlicensed sampling, ensuring that only artists with sufficient capital to pay the piper could legitimately be creative with the wealth of recorded music available. The cost of licensing samples can often outweigh the creative merit of the act itself as discussed by McLeod (86) and Beaujon (25). In August 2008 the Supreme Court of New York heard EMI v. Premise Media in which EMI sought an injunction against an unlicensed fifteen second excerpt of John Lennon’s “Imagine” featured in Expelled: No Intelligence Allowed, a controversial documentary canvassing alleged chilling of intelligent design proponents in academic circles. (The family of John Lennon and EMI had previously failed to persuade a Manhattan federal court in a similar action.) The court upheld Premise Media’s arguments for fair use and rejected the Bridgeport approach on which EMI had rested its entire complaint. Justice Lowe criticised the Bridgeport court for its failure to examine the legislative intent of section 114 suggesting that courts should look to the black letter of the law rather than blindly accept propertarian arguments. This decision is of particular importance because it establishes that fair use applies to unlicensed use of sound recordings and re-establishes de minimis use.ConclusionThis paper was partly inspired by the final entry on eminent copyright scholar William Patry’s personal copyright law blog (1 Aug. 2008). A copyright lawyer for over 25 years, Patry articulated his belief that copyright law has swung too far away from its initial objectives and that balance could never be restored. The two cases presented in this paper demonstrate that fair use – and therefore balance – can be recovered in copyright. The federal Supreme Court and lower courts have stressed that copyright was intended to promote creativity and have upheld the fair doctrine, but in order for the balance to exist in copyright law, cases must come before the courts; copyright myth must be challenged. As McLeod states, “the real-world problems occur when institutions that actually have the resources to defend themselves against unwarranted or frivolous lawsuits choose to take the safe route, thus eroding fair use”(146-7). ReferencesBeaujon, Andrew. “It’s Not the Beat, It’s the Mocean.” CMJ New Music Monthly. April 1999.Collins, Steve. “Good Copy, Bad Copy: Covers, Sampling and Copyright.” M/C Journal 8.3 (2005). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0507/02-collins.php›.———. “‘Property Talk’ and the Revival of Blackstonian Copyright.” M/C Journal 9.4 (2006). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0609/5-collins.php›.Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953.Efroni, Zohar. “Israel’s Fair Use.” The Center for Internet and Society (2008). 26 Aug. 2008 ‹http://cyberlaw.stanford.edu/node/5670›.Lange, David, and Jennifer Lange Anderson. “Copyright, Fair Use and Transformative Critical Appropriation.” Conference on the Public Domain, Duke Law School. 2001. 26 Aug. 2008 ‹http://www.law.duke.edu/pd/papers/langeand.pdf›.Lemley, Mark. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001.———. Free Culture. New York: Penguin, 2004.Leval, Pierre. “Toward a Fair Use Standard.” Harvard Law Review 103 (1990): 1105.McDonald, Heather. “Holden Lenz, 18 Months, versus Prince and Universal Music Group.” About.com: Music Careers 2007. 26 Aug. 2008 ‹http://musicians.about.com/b/2007/10/27/holden-lenz-18-months-versus-prince-and-universal-music-group.htm›.McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002. 26 Aug. 2008 ‹http://www.stayfreemagazine.org/archives/20/public_enemy.html›.———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday, 2005.McLuhan, Marshall, and Barrington Nevitt. Take Today: The Executive as Dropout. Ontario: Longman Canada, 1972.Metz, Cade. “Viacom Slaps YouTuber for Behaving like Viacom.” The Register 2007. 26 Aug. 2008 ‹http://www.theregister.co.uk/2007/08/30/viacom_slaps_pol/›.Negativland, ed. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. “End of the Blog.” The Patry Copyright Blog. 1 Aug. 2008. 27 Aug. 2008 ‹http://williampatry.blogspot.com/2008/08/end-of-blog.html›.Tapscott, Don. The Digital Economy: Promise and Peril in the Age of Networked Intelligence. New York: McGraw Hill, 1996.Toffler, Alvin. The Third Wave. London, Glasgow, Sydney, Auckland. Toronto, Johannesburg: William Collins, 1980.Travis, Hannibal. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal, Vol. 15 (2000), No. 777.Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York; London: New York UP, 2003.

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Introduction In any list of dictators and antagonists of the West the name of Libya’s Colonel Muammar Qaddafi will always rank highly as one of the most memorable, colourful and mercurial. The roles he played to his fellow Libyans, to regional groupings, to revolutionaries and to the West were complex and nuanced. These various roles developed over time but were all grounded in his self-belief as a messianic revolutionary figure. More importantly, these roles and behaviours that stemmed from them were instrumental in preserving Qaddafi’s rule and thwarting challenges to it. These facets of Qaddafi’s public self accord with the model of “persona” described by Marshall. Whilst the nature of political persona and celebrity in the Western world has been explored by several scholars (for example Street; Wilson), little work has been conducted on the use of persona by non-democratic leaders. This paper examines the aspects of persona exhibited by Colonel Qaddafi and applied during his tenure. In constructing his role as a revolutionary leader, Qaddafi was engaging in a form of public performance aimed at delivering himself to a wider audience. Whether at home or abroad, this persona served the purpose of helping the Libyan leader consolidate his power, stymie political opposition and export his revolutionary ideals. The trajectory of his persona begins in the early days of his coming to power as a charismatic leader during a “time of distress” (Weber) and culminates in his bloody end next to a roadside drainage culvert. In between these points Qaddafi’s persona underwent refinement and reinvention. Coupled with the legacy he left on the Libyan political system, the journey of Muammar Qaddafi’s personas demonstrate how political personality can be the salvation or damnation of an entire state.Qaddafi: The Brotherly RevolutionaryCaptain Muammar Qaddafi came to power in Libya in 1969 at the age of just 27. He was the leader of a group of military officers who overthrew King Idris in a popular and relatively bloodless coup founded on an ideology of post-colonial Arab nationalism and a doing away with the endemic corruption and nepotism that were the hallmarks of the monarchy. With this revolutionary cause in mind and in an early indication that he recognised the power of political image, Qaddafi showed restraint in adopting the trappings of office. His modest promotion to the rank of Colonel was an obvious example of this, and despite the fact that in practical terms he was the supreme commander of Libya’s armed forces, he resisted the temptation to formally aggrandize himself with military titles for the ensuing 42 years of his rule.High military rank was in a way irrelevant to a man moving to change his persona from army officer to messianic national leader. Switching away from a reliance on military hierarchy as a basis for his authority allowed Qaddafi to re-cast himself as a leader with a broader mission. He began to utilise titles such as “Chairman of the Revolutionary Command Council” (RCC) and “Brotherly Leader and Guide of the Revolution.” The persona on display here was one of detached impartiality and almost reluctant leadership. There was the suggestion that Qaddafi was not really acting as a head of state, but merely an ordinary Libyan who, through popular acclaim, was being begged to lead his people. The attraction of this persona remained until the bitter end for Qaddafi, with his professed inability to step aside from a leadership role he insisted he did not formally occupy. This accords with the contention of Weber, who describes how an individual favoured with charisma can step forward at a time of crisis to complete a “mission.” Once in a position of authority, perpetuating that role of leadership and acclamation can become the mission itself:The holder, of charisma seizes the task that is adequate for him and demands obedience and a following by virtue of his mission. His success determines whether he finds them. His charismatic claim breaks down if his mission is not recognized by those to whom he feels he has been sent. If they recognize him, he is their master—so long as he knows how to maintain recognition through ‘proving’ himself. But he does not derive his ‘right’ from their will, in the manner of an election. Rather, the reverse holds: it is the duty of those to whom he addresses his mission to recognize him as their charismatically qualified leader. (Weber 266-7)As his rule extended across the decades, Qaddafi fostered his revolutionary credentials via a typical cult of personality approach. His image appeared on everything from postage stamps to watches, bags, posters and billboards. Quotations from the Brother Leader were set to music and broadcast as pop songs. “Spontaneous” rallies of support would occur when crowds of loyalists would congregate to hear the Brotherly Leader speak. Although Qaddafi publicly claimed he did not like this level of public adoration he accepted it because the people wanted to adore him. It was widely known however that many of these crowds were paid to attend these rallies (Blundy and Lycett 16).Qaddafi: The Philosopher In developing his persona as a guide and a man who was sharing his natural gifts with the people, Qaddafi developed a post-colonial philosophy he called “Third Universal Theory.” This was published in volumes collectively known as The Green Book. This was mandatory reading for every Libyan and contained a distillation of Qaddafi’s thoughts and opinions on everything from sports to politics to religion to the differences between men and women. Whilst it may be tempting for outsiders to dismiss these writings as the scribbling of a dictator, the legacy of Qaddafi’s persona as political philosopher is worthy of some examination. For in offering his revelations to the Libyan people, Qaddafi extended his mandate beyond leader of a revolution and into the territory of “messianic reformer of a nation.”The Green Book was a three-part series. The first instalment was written in 1975 and focuses on the “problem of democracy” where Qaddafi proposes direct democracy as the best option for a progressive nation. The second instalment, published in 1977, focuses on economics and expounds socialism as the solution to all fiscal woes. (Direct popular action here was evidenced in the RCC making rental of real estate illegal, meaning that all tenants in the country suddenly found themselves granted ownership of the property they were occupying!) The final chapter, published in 1981, proposes the Third Universal Theory where Qaddafi outlines his unique solution for implementing direct democracy and socialism. Qaddafi coined a new term for his Islamically-inspired socialist utopia: Jamahiriya. This was defined as being a “state of the masses” and formed the blueprint for Libyan society which Qaddafi subsequently imposed.This model of direct democracy was part of the charismatic conceit Qaddafi cultivated: that the Libyan people were their own leaders and his role was merely as a benevolent agent acceding to their wishes. However the implementation of the Jamahiriya was anything but benevolent and its legacy has crippled post-Qaddafi Libya. Under this system, Libyans did have some control over their affairs at a very local level. Beyond this, an increasingly complex series of committees and regional groupings, over which the RCC had the right of veto, diluted the participation of ordinary citizens and their ability to coalesce around any individual leader. The banning of standard avenues of political organisation, such as parties and unions, coupled with a ruthless police state that detained and executed anyone offering even a hint of political dissent served to snuff out any opposition before it had a chance to gather pace. The result was that there were no Libyans with enough leadership experience or public profile to take over when Qaddafi was ousted in 2011.Qaddafi: The Liberator In a further plank of his revolutionary persona Qaddafi turned to the world beyond Libya to offer his brotherly guidance. This saw him champion any cause that claimed to be a liberation or resistance movement struggling against the shackles of colonialism. He tended to favour groups that had ideologies aligned with his own, namely Arab unity and the elimination of Israel, but ultimately was not consistent in this regard. Aside from Palestinian nationalists, financial support was offered to groups such as the Provisional Irish Republican Army, the Moro National Liberation Front (Philippines), Umkhonto we Sizwe (South Africa), ETA (Spain), the Polisario Front (Western Sahara), and even separatist indigenous Australians. This policy of backing revolutionary groups was certainly a projection of his persona as a charismatic enabler of the revolutionary mission. However, the reception of this mission in the wider world formed the basis for the image that Qaddafi most commonly occupied in Western eyes.In 1979 the ongoing Libyan support for groups pursuing violent action against Israel and the West saw the country designated a State-Sponsor of Terror by the US Department of State. Diplomatic relations between the two nations were severed and did not resume until 2004. At this point Qaddafi seemed to adopt a persona of “opponent of the West,” ostensibly on behalf of the world’s downtrodden colonial peoples. The support for revolutionary groups was changing to a more active use of them to strike at Western interests. At the same time Qaddafi stepped up his rhetoric against America and Britain, positioning himself as a champion of the Arab world, as the one leader who had the courage of his convictions and the only one who was squarely on the side of the ordinary citizenry (in contrast to other, more compliant Arab rulers). Here again there is evidence of the charismatic revolutionary persona, reluctantly taking up the burden of leadership on behalf of his brothers.Whatever his ideals, the result was that Qaddafi and his state became the focus of increasing Western ire. A series of incidents between the US and Libya in international waters added to the friction, as did Libyan orchestrated terror attacks in Berlin, Rome and Vienna. At the height of this tension in 1986, American aircraft bombed targets in Libya, narrowly missing Qaddafi himself. This role as public enemy of America led to Qaddafi being characterised by President Ronald Reagan (no stranger to the use of persona himself) as the “mad dog of the Middle East” and a “squalid criminal.” The enmity of the West made life difficult for ordinary Libyans dealing with crippling sanctions, but for Qaddafi, it helped bolster his persona as a committed revolutionary.Qaddafi: Leader of the Arab and African Worlds Related to his early revolutionary ideologies were Qaddafi’s aspirations as a pan-national leader. Inspired by Egypt’s Gamel Abdul Nasser from a young age, the ideals of pan-Arab unity were always a cornerstone of Qaddafi’s beliefs. It is not therefore surprising that he developed ambitions of being the person to bring about and “guide” that unity. Once again the Weberian description of the charismatic leader is relevant, particularly the notion that such leadership does not respect conventional boundaries of functional jurisdictions or local bailiwicks; in this case, state boundaries.During the 1970s Qaddafi was involved in numerous attempts to broker Arab unions between Libya and states such as Egypt, Syria and Tunisia. All of these failed to materialise once the exact details of the mergers began to be discussed, in particular who would assume the mantle of leadership in these super-states. In line with his persona as the rightly-guided revolutionary, Qaddafi consistently blamed the failure of these unions on the other parties, souring his relationship with his fellow Arab leaders. His hardline stance on Israel also put him at odds with those peers more determined to find a compromise. Following the assassination of Egypt’s Anwar Sadat in 1981 Qaddafi praised the act as justified because of Sadat’s signing of the Camp David Accords with Israel.Having given up on the hope of achieving pan-Arab Unity, Qaddafi sought to position himself as a leader of the African bloc. In 2009 he became Chairperson of the African Union and took to having himself introduced as “The King of Kings of Africa.” The level of dysfunction of the African Union was no less than that of the Arab League and Qaddafi’s grandiose plans for becoming the President of the United States of Africa failed to materialise.In both his pan-Arab and pan-Africa ambitions, we see a persona of Qaddafi that aims at leadership beyond his own state. Whilst there may be delusions of grandeur apparent in the practicalities of these goals, this image was nevertheless something that Qaddafi used to leverage the next phase of his political transformation.Qaddafi: The Post-9/11 Statesman However much he might be seen as erratic, Qaddafi’s innate intelligence could result in a political astuteness lacking in many of his Arab peers. Following the events of 11 September 2001, Qaddafi was the first international leader to condemn the attacks on America and pledge support in the War on Terror and the extermination of al-Qaeda. Despite his history as a supporter of terrorism overseas, Qaddafi had a long history of repressing it at home, just as with any other form of political opposition. The pan-Islamism of al-Qaeda was anathema to his key ideologies of direct democracy (guided by himself). This meant the United States and Libya were now finally on the same team. As part of this post-9/11 sniffing of the wind, Qaddafi abandoned his fledgling Weapons of Mass Destruction (WMD) program and finally agreed to pay reparations to the families of the victims of the Pan Am 107 flight downed over Lockerbie in 1987.This shift in Qaddafi’s policy did not altogether dispel his persona of brotherly leadership amongst African nations. As a bloc leader and an example of the possibility of ‘coming in from the cold’, Qaddafi and Libya were reintegrated into the world community. This included giving a speech at the United Nations in 2009. This event did little to add to his reputation as a statesman in the West. Given a 15-minute slot, the Libyan leader delivered a rambling address over 90 minutes long, which included him tearing up a copy of the UN Charter and turning his back to the audience whilst continuing to speak.Qaddafi: The Clown From the Western point of view, performances like this painted Qaddafi’s behaviour as increasingly bizarre. Particularly after Libya’s rapprochement with the West, the label of threatening terrorist supporter faded and was replaced with something along the lines of a harmless clown prince. Tales of the Libyan leader’s coterie of virgin female bodyguards were the subject of ridicule, as was his ardour for US Secretary of State Condoleezza Rice. Perhaps this behaviour was indicative of a leader increasingly divorced from reality. Surrounded by sycophants dependent on his regard for their tenure or physical survival, as well as Western leaders eager to contrast his amiability with that of Saddam Hussein, nobody was prepared to draw attention to the emperor’s new clothes.Indeed, elaborate and outlandish clothing played an increasing role in Qaddafi’s persona as the decades went on. His simple revolutionary fatigues of the early years were superseded by a vast array of military uniforms heavily decorated with medals and emblems; traditional African, Arab or Bedouin robes depending on the occasion; and in later years a penchant for outfits that included images of the African continent or pictures of dead martyrs. (In 2009 Vanity Fair did a tongue-in-cheek article on the fashion of Colonel Qaddafi entitled Dictator Chic: Colonel Qaddafi—A Life in Fashion. This spawned a number of similar features including one in TIME Magazine entitled Gaddafi Fashion: The Emperor Had Some Crazy Clothes.)The Bedouin theme was an aspect of persona that Qaddafi cultivated as an ascetic “man of the people” throughout his leadership. Despite having many palaces available he habitually slept in an elaborate tent, according once again with Weber’s description of the charismatic leader as one who eschews methodical material gain. This predisposition served him well in the 1986 United States bombing, when his residence in a military barracks was demolished, but Qaddafi escaped unscathed as he was in his tent at the time. He regularly entertained foreign dignitaries in tents when they visited Libya and he took one when travelling abroad, including pitching it in the gardens of a Parisian hotel during a state visit in 2007. (A request to camp in New York’s Central Park for his UN visit in 2009 was denied; “Inside the Tents of Muammar Gaddafi”).The role of such a clown was unlikely to have been an aim for Qaddafi, but was instead the product of his own increasing isolation. It will likely be his most enduring character in the Western memory of his rule. It should be noted though that clowns and fools do not maintain an iron grip on power for over 40 years.The Legacy of Qaddafi’s Many Personas Colonel Muammar Qaddafi was a clever and complex leader who exhibited many variations of persona during his four decades of rule. These personas were generally facets of the same core self-belief of a charismatic leader, but could be conflicting, and often confusing, to observers. His eccentricities often hid a layer of deeper cunning and ambition, but ultimately led to his marginalisation and an impression by world leaders that he was untrustworthy.His erratic performance at the UN in 2009 perhaps typifies the end stages of Qaddafi’s leadership: a man increasingly disconnected from his people and the realities of what was going on around him. His insistence that the 2011 Libyan revolution was variously a colonial or terrorist inspired piece of theatre belied the deep resentment of his rule. His role as opponent of the Western and Arab worlds alike meant that he was unsupported in his attempts to deal with the uprising. Indeed, the West’s rapid willingness to use their airpower was instrumental in speeding on the rebel forces.What cannot be disputed is the chaotic legacy this charismatic figure left for his country. Since the uprising climaxed in his on-camera lynching in October 2011, Libya has been plunged in to turmoil and shows no signs of this abating. One of the central reasons for this chaos is that Qaddafi’s supremacy, his political philosophies, and his use of messianic persona left Libya completely unprepared for rule by any other party.This ensuing chaos has been a cruel, if ironic, proof of Qaddafi’s own conceit: Libya could not survive without him.References Al-Gathafi, Muammar. The Green Book: The Solution to the Problem of Democracy; The Solution to the Economic Problem; The Social Basis of the Third Universal Theory. UK: Ithaca Press, 2005.Blundy, David, and Andrew Lycett. Qaddafi and the Libyan Revolution. Boston and Toronto: Little Brown & Co, 1987.Marshall, P. David. “Persona Studies: Mapping the Proliferation of the Public Self”. Journalism 15.2 (2014): 153-170.Qaddafi, Muammar. Speech at the United Nations 2009. ‹http://www.youtube.com/watch?v=BKMyY2V0J0Y›. Street, John. “Celebrity Politicians: Popular Culture and Political Representation.” British Journal of Politics and International Relations 6 (2004): 435-52.Street, John. “Do Celebrity Politics and Celebrity Politicians Matter?” The British Journal of Politics & International Relations 14.3 (2012): 346-356.TIME Magazine. “Gaddafi Fashion: The Emperor Had Some Crazy Clothes.” ‹http://content.time.com/time/photogallery/0,29307,2055860,00.html›.TIME Magazine. “Inside the Tents of Muammar Gaddafi.” ‹http://content.time.com/time/photogallery/0,29307,2058074,00.html›.Totman, Sally, and Mat Hardy. “In the Green Zone: 40 years with Colonel Qaddafi.” Ed. Geoffrey Hawker. APSA 2009: Proceedings of the APSA Annual Conference 2009. Sydney: Macquarie University, 2009. 1-19.Totman, Sally, and Mat Hardy. “The Rise and Decline of Libya as a Rogue State.” OCIS 2008: Oceanic Conference on International Studies. Brisbane: University of Queensland, 2008. 1-25.Vanity Fair. “Dictator Chic: Colonel Qaddafi—A Life in Fashion.” ‹http://www.vanityfair.com/politics/features/2009/08/qaddafi-slideshow200908›.Weber, Max, Hans Heinrich Gerth, and C. Wright Mills. From Max Weber: Essays in Sociology. London: Routledge, 2009.Wilson, J. “Kevin Rudd, Celebrity and Audience Democracy in Australia.” Journalism 15.2 (2013): 202-217.

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A same-but-different dichotomy has recently been encapsulated within the US Food and Drug Administration’s ill-defined concept of “substantial equivalence” (USFDA, FDA). By invoking this concept the genetically modified organism (GMO) industry has escaped the rigors of safety testing that might otherwise apply. The curious concept of “substantial equivalence” grants a presumption of safety to GMO food. This presumption has yet to be earned, and has been used to constrain labelling of both GMO and non-GMO food. It is an idea that well serves corporatism. It enables the claim of difference to secure patent protection, while upholding the contrary claim of sameness to avoid labelling and safety scrutiny. It offers the best of both worlds for corporate food entrepreneurs, and delivers the worst of both worlds to consumers. The term “substantial equivalence” has established its currency within the GMO discourse. As the opportunities for patenting food technologies expand, the GMO recruitment of this concept will likely be a dress rehearsal for the developing debates on the labelling and testing of other techno-foods – including nano-foods and clone-foods. “Substantial Equivalence” “Are the Seven Commandments the same as they used to be, Benjamin?” asks Clover in George Orwell’s “Animal Farm”. By way of response, Benjamin “read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran: ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS”. After this reductionist revelation, further novel and curious events at Manor Farm, “did not seem strange” (Orwell, ch. X). Equality is a concept at the very core of mathematics, but beyond the domain of logic, equality becomes a hotly contested notion – and the domain of food is no exception. A novel food has a regulatory advantage if it can claim to be the same as an established food – a food that has proven its worth over centuries, perhaps even millennia – and thus does not trigger new, perhaps costly and onerous, testing, compliance, and even new and burdensome regulations. On the other hand, such a novel food has an intellectual property (IP) advantage only in terms of its difference. And thus there is an entrenched dissonance for newly technologised foods, between claiming sameness, and claiming difference. The same/different dilemma is erased, so some would have it, by appeal to the curious new dualist doctrine of “substantial equivalence” whereby sameness and difference are claimed simultaneously, thereby creating a win/win for corporatism, and a loss/loss for consumerism. This ground has been pioneered, and to some extent conquered, by the GMO industry. The conquest has ramifications for other cryptic food technologies, that is technologies that are invisible to the consumer and that are not evident to the consumer other than via labelling. Cryptic technologies pertaining to food include GMOs, pesticides, hormone treatments, irradiation and, most recently, manufactured nano-particles introduced into the food production and delivery stream. Genetic modification of plants was reported as early as 1984 by Horsch et al. The case of Diamond v. Chakrabarty resulted in a US Supreme Court decision that upheld the prior decision of the US Court of Customs and Patent Appeal that “the fact that micro-organisms are alive is without legal significance for purposes of the patent law”, and ruled that the “respondent’s micro-organism plainly qualifies as patentable subject matter”. This was a majority decision of nine judges, with four judges dissenting (Burger). It was this Chakrabarty judgement that has seriously opened the Pandora’s box of GMOs because patenting rights makes GMOs an attractive corporate proposition by offering potentially unique monopoly rights over food. The rear guard action against GMOs has most often focussed on health repercussions (Smith, Genetic), food security issues, and also the potential for corporate malfeasance to hide behind a cloak of secrecy citing commercial confidentiality (Smith, Seeds). Others have tilted at the foundational plank on which the economics of the GMO industry sits: “I suggest that the main concern is that we do not want a single molecule of anything we eat to contribute to, or be patented and owned by, a reckless, ruthless chemical organisation” (Grist 22). The GMO industry exhibits bipolar behaviour, invoking the concept of “substantial difference” to claim patent rights by way of “novelty”, and then claiming “substantial equivalence” when dealing with other regulatory authorities including food, drug and pesticide agencies; a case of “having their cake and eating it too” (Engdahl 8). This is a clever slight-of-rhetoric, laying claim to the best of both worlds for corporations, and the worst of both worlds for consumers. Corporations achieve patent protection and no concomitant specific regulatory oversight; while consumers pay the cost of patent monopolization, and are not necessarily apprised, by way of labelling or otherwise, that they are purchasing and eating GMOs, and thereby financing the GMO industry. The lemma of “substantial equivalence” does not bear close scrutiny. It is a fuzzy concept that lacks a tight testable definition. It is exactly this fuzziness that allows lots of wriggle room to keep GMOs out of rigorous testing regimes. Millstone et al. argue that “substantial equivalence is a pseudo-scientific concept because it is a commercial and political judgement masquerading as if it is scientific. It is moreover, inherently anti-scientific because it was created primarily to provide an excuse for not requiring biochemical or toxicological tests. It therefore serves to discourage and inhibit informative scientific research” (526). “Substantial equivalence” grants GMOs the benefit of the doubt regarding safety, and thereby leaves unexamined the ramifications for human consumer health, for farm labourer and food-processor health, for the welfare of farm animals fed a diet of GMO grain, and for the well-being of the ecosystem, both in general and in its particularities. “Substantial equivalence” was introduced into the food discourse by an Organisation for Economic Co-operation and Development (OECD) report: “safety evaluation of foods derived by modern biotechnology: concepts and principles”. It is from this document that the ongoing mantra of assumed safety of GMOs derives: “modern biotechnology … does not inherently lead to foods that are less safe … . Therefore evaluation of foods and food components obtained from organisms developed by the application of the newer techniques does not necessitate a fundamental change in established principles, nor does it require a different standard of safety” (OECD, “Safety” 10). This was at the time, and remains, an act of faith, a pro-corporatist and a post-cautionary approach. The OECD motto reveals where their priorities lean: “for a better world economy” (OECD, “Better”). The term “substantial equivalence” was preceded by the 1992 USFDA concept of “substantial similarity” (Levidow, Murphy and Carr) and was adopted from a prior usage by the US Food and Drug Agency (USFDA) where it was used pertaining to medical devices (Miller). Even GMO proponents accept that “Substantial equivalence is not intended to be a scientific formulation; it is a conceptual tool for food producers and government regulators” (Miller 1043). And there’s the rub – there is no scientific definition of “substantial equivalence”, no scientific test of proof of concept, and nor is there likely to be, since this is a ‘spinmeister’ term. And yet this is the cornerstone on which rests the presumption of safety of GMOs. Absence of evidence is taken to be evidence of absence. History suggests that this is a fraught presumption. By way of contrast, the patenting of GMOs depends on the antithesis of assumed ‘sameness’. Patenting rests on proven, scrutinised, challengeable and robust tests of difference and novelty. Lightfoot et al. report that transgenic plants exhibit “unexpected changes [that] challenge the usual assumptions of GMO equivalence and suggest genomic, proteomic and metanomic characterization of transgenics is advisable” (1). GMO Milk and Contested Labelling Pesticide company Monsanto markets the genetically engineered hormone rBST (recombinant Bovine Somatotropin; also known as: rbST; rBGH, recombinant Bovine Growth Hormone; and the brand name Prosilac) to dairy farmers who inject it into their cows to increase milk production. This product is not approved for use in many jurisdictions, including Europe, Australia, New Zealand, Canada and Japan. Even Monsanto accepts that rBST leads to mastitis (inflammation and pus in the udder) and other “cow health problems”, however, it maintains that “these problems did not occur at rates that would prohibit the use of Prosilac” (Monsanto). A European Union study identified an extensive list of health concerns of rBST use (European Commission). The US Dairy Export Council however entertain no doubt. In their background document they ask “is milk from cows treated with rBST safe?” and answer “Absolutely” (USDEC). Meanwhile, Monsanto’s website raises and answers the question: “Is the milk from cows treated with rbST any different from milk from untreated cows? No” (Monsanto). Injecting cows with genetically modified hormones to boost their milk production remains a contested practice, banned in many countries. It is the claimed equivalence that has kept consumers of US dairy products in the dark, shielded rBST dairy farmers from having to declare that their milk production is GMO-enhanced, and has inhibited non-GMO producers from declaring their milk as non-GMO, non rBST, or not hormone enhanced. This is a battle that has simmered, and sometimes raged, for a decade in the US. Finally there is a modest victory for consumers: the Pennsylvania Department of Agriculture (PDA) requires all labels used on milk products to be approved in advance by the department. The standard issued in October 2007 (PDA, “Standards”) signalled to producers that any milk labels claiming rBST-free status would be rejected. This advice was rescinded in January 2008 with new, specific, department-approved textual constructions allowed, and ensuring that any “no rBST” style claim was paired with a PDA-prescribed disclaimer (PDA, “Revised Standards”). However, parsimonious labelling is prohibited: No labeling may contain references such as ‘No Hormones’, ‘Hormone Free’, ‘Free of Hormones’, ‘No BST’, ‘Free of BST’, ‘BST Free’,’No added BST’, or any statement which indicates, implies or could be construed to mean that no natural bovine somatotropin (BST) or synthetic bovine somatotropin (rBST) are contained in or added to the product. (PDA, “Revised Standards” 3) Difference claims are prohibited: In no instance shall any label state or imply that milk from cows not treated with recombinant bovine somatotropin (rBST, rbST, RBST or rbst) differs in composition from milk or products made with milk from treated cows, or that rBST is not contained in or added to the product. If a product is represented as, or intended to be represented to consumers as, containing or produced from milk from cows not treated with rBST any labeling information must convey only a difference in farming practices or dairy herd management methods. (PDA, “Revised Standards” 3) The PDA-approved labelling text for non-GMO dairy farmers is specified as follows: ‘From cows not treated with rBST. No significant difference has been shown between milk derived from rBST-treated and non-rBST-treated cows’ or a substantial equivalent. Hereinafter, the first sentence shall be referred to as the ‘Claim’, and the second sentence shall be referred to as the ‘Disclaimer’. (PDA, “Revised Standards” 4) It is onto the non-GMO dairy farmer alone, that the costs of compliance fall. These costs include label preparation and approval, proving non-usage of GMOs, and of creating and maintaining an audit trail. In nearby Ohio a similar consumer versus corporatist pantomime is playing out. This time with the Ohio Department of Agriculture (ODA) calling the shots, and again serving the GMO industry. The ODA prescribed text allowed to non-GMO dairy farmers is “from cows not supplemented with rbST” and this is to be conjoined with the mandatory disclaimer “no significant difference has been shown between milk derived from rbST-supplemented and non-rbST supplemented cows” (Curet). These are “emergency rules”: they apply for 90 days, and are proposed as permanent. Once again, the onus is on the non-GMO dairy farmers to document and prove their claims. GMO dairy farmers face no such governmental requirements, including no disclosure requirement, and thus an asymmetric regulatory impost is placed on the non-GMO farmer which opens up new opportunities for administrative demands and technocratic harassment. Levidow et al. argue, somewhat Eurocentrically, that from its 1990s adoption “as the basis for a harmonized science-based approach to risk assessment” (26) the concept of “substantial equivalence” has “been recast in at least three ways” (58). It is true that the GMO debate has evolved differently in the US and Europe, and with other jurisdictions usually adopting intermediate positions, yet the concept persists. Levidow et al. nominate their three recastings as: firstly an “implicit redefinition” by the appending of “extra phrases in official documents”; secondly, “it has been reinterpreted, as risk assessment processes have … required more evidence of safety than before, especially in Europe”; and thirdly, “it has been demoted in the European Union regulatory procedures so that it can no longer be used to justify the claim that a risk assessment is unnecessary” (58). Romeis et al. have proposed a decision tree approach to GMO risks based on cascading tiers of risk assessment. However what remains is that the defects of the concept of “substantial equivalence” persist. Schauzu identified that: such decisions are a matter of “opinion”; that there is “no clear definition of the term ‘substantial’”; that because genetic modification “is aimed at introducing new traits into organisms, the result will always be a different combination of genes and proteins”; and that “there is no general checklist that could be followed by those who are responsible for allowing a product to be placed on the market” (2). Benchmark for Further Food Novelties? The discourse, contestation, and debate about “substantial equivalence” have largely focussed on the introduction of GMOs into food production processes. GM can best be regarded as the test case, and proof of concept, for establishing “substantial equivalence” as a benchmark for evaluating new and forthcoming food technologies. This is of concern, because the concept of “substantial equivalence” is scientific hokum, and yet its persistence, even entrenchment, within regulatory agencies may be a harbinger of forthcoming same-but-different debates for nanotechnology and other future bioengineering. The appeal of “substantial equivalence” has been a brake on the creation of GMO-specific regulations and on rigorous GMO testing. The food nanotechnology industry can be expected to look to the precedent of the GMO debate to head off specific nano-regulations and nano-testing. As cloning becomes economically viable, then this may be another wave of food innovation that muddies the regulatory waters with the confused – and ultimately self-contradictory – concept of “substantial equivalence”. Nanotechnology engineers particles in the size range 1 to 100 nanometres – a nanometre is one billionth of a metre. This is interesting for manufacturers because at this size chemicals behave differently, or as the Australian Office of Nanotechnology expresses it, “new functionalities are obtained” (AON). Globally, government expenditure on nanotechnology research reached US$4.6 billion in 2006 (Roco 3.12). While there are now many patents (ETC Group; Roco), regulation specific to nanoparticles is lacking (Bowman and Hodge; Miller and Senjen). The USFDA advises that nano-manufacturers “must show a reasonable assurance of safety … or substantial equivalence” (FDA). A recent inventory of nano-products already on the market identified 580 products. Of these 11.4% were categorised as “Food and Beverage” (WWICS). This is at a time when public confidence in regulatory bodies is declining (HRA). In an Australian consumer survey on nanotechnology, 65% of respondents indicated they were concerned about “unknown and long term side effects”, and 71% agreed that it is important “to know if products are made with nanotechnology” (MARS 22). Cloned animals are currently more expensive to produce than traditional animal progeny. In the course of 678 pages, the USFDA Animal Cloning: A Draft Risk Assessment has not a single mention of “substantial equivalence”. However the Federation of Animal Science Societies (FASS) in its single page “Statement in Support of USFDA’s Risk Assessment Conclusion That Food from Cloned Animals Is Safe for Human Consumption” states that “FASS endorses the use of this comparative evaluation process as the foundation of establishing substantial equivalence of any food being evaluated. It must be emphasized that it is the food product itself that should be the focus of the evaluation rather than the technology used to generate cloned animals” (FASS 1). Contrary to the FASS derogation of the importance of process in food production, for consumers both the process and provenance of production is an important and integral aspect of a food product’s value and identity. Some consumers will legitimately insist that their Kalamata olives are from Greece, or their balsamic vinegar is from Modena. It was the British public’s growing awareness that their sugar was being produced by slave labour that enabled the boycotting of the product, and ultimately the outlawing of slavery (Hochschild). When consumers boycott Nestle, because of past or present marketing practices, or boycott produce of USA because of, for example, US foreign policy or animal welfare concerns, they are distinguishing the food based on the narrative of the food, the production process and/or production context which are a part of the identity of the food. Consumers attribute value to food based on production process and provenance information (Paull). Products produced by slave labour, by child labour, by political prisoners, by means of torture, theft, immoral, unethical or unsustainable practices are different from their alternatives. The process of production is a part of the identity of a product and consumers are increasingly interested in food narrative. It requires vigilance to ensure that these narratives are delivered with the product to the consumer, and are neither lost nor suppressed. Throughout the GM debate, the organic sector has successfully skirted the “substantial equivalence” debate by excluding GMOs from the certified organic food production process. This GMO-exclusion from the organic food stream is the one reprieve available to consumers worldwide who are keen to avoid GMOs in their diet. The organic industry carries the expectation of providing food produced without artificial pesticides and fertilizers, and by extension, without GMOs. Most recently, the Soil Association, the leading organic certifier in the UK, claims to be the first organisation in the world to exclude manufactured nonoparticles from their products (Soil Association). There has been the call that engineered nanoparticles be excluded from organic standards worldwide, given that there is no mandatory safety testing and no compulsory labelling in place (Paull and Lyons). The twisted rhetoric of oxymorons does not make the ideal foundation for policy. Setting food policy on the shifting sands of “substantial equivalence” seems foolhardy when we consider the potentially profound ramifications of globally mass marketing a dysfunctional food. If there is a 2×2 matrix of terms – “substantial equivalence”, substantial difference, insubstantial equivalence, insubstantial difference – while only one corner of this matrix is engaged for food policy, and while the elements remain matters of opinion rather than being testable by science, or by some other regime, then the public is the dupe, and potentially the victim. “Substantial equivalence” has served the GMO corporates well and the public poorly, and this asymmetry is slated to escalate if nano-food and clone-food are also folded into the “substantial equivalence” paradigm. Only in Orwellian Newspeak is war peace, or is same different. It is time to jettison the pseudo-scientific doctrine of “substantial equivalence”, as a convenient oxymoron, and embrace full disclosure of provenance, process and difference, so that consumers are not collateral in a continuing asymmetric knowledge war. References Australian Office of Nanotechnology (AON). Department of Industry, Tourism and Resources (DITR) 6 Aug. 2007. 24 Apr. 2008 < http://www.innovation.gov.au/Section/Innovation/Pages/ AustralianOfficeofNanotechnology.aspx >.Bowman, Diana, and Graeme Hodge. “A Small Matter of Regulation: An International Review of Nanotechnology Regulation.” Columbia Science and Technology Law Review 8 (2007): 1-32.Burger, Warren. “Sidney A. Diamond, Commissioner of Patents and Trademarks v. Ananda M. Chakrabarty, et al.” Supreme Court of the United States, decided 16 June 1980. 24 Apr. 2008 < http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=447&invol=303 >.Curet, Monique. “New Rules Allow Dairy-Product Labels to Include Hormone Info.” The Columbus Dispatch 7 Feb. 2008. 24 Apr. 2008 < http://www.dispatch.com/live/content/business/stories/2008/02/07/dairy.html >.Engdahl, F. William. Seeds of Destruction. Montréal: Global Research, 2007.ETC Group. Down on the Farm: The Impact of Nano-Scale Technologies on Food and Agriculture. Ottawa: Action Group on Erosion, Technology and Conservation, November, 2004. European Commission. Report on Public Health Aspects of the Use of Bovine Somatotropin. Brussels: European Commission, 15-16 March 1999.Federation of Animal Science Societies (FASS). Statement in Support of FDA’s Risk Assessment Conclusion That Cloned Animals Are Safe for Human Consumption. 2007. 24 Apr. 2008 < http://www.fass.org/page.asp?pageID=191 >.Grist, Stuart. “True Threats to Reason.” New Scientist 197.2643 (16 Feb. 2008): 22-23.Hochschild, Adam. Bury the Chains: The British Struggle to Abolish Slavery. London: Pan Books, 2006.Horsch, Robert, Robert Fraley, Stephen Rogers, Patricia Sanders, Alan Lloyd, and Nancy Hoffman. “Inheritance of Functional Foreign Genes in Plants.” Science 223 (1984): 496-498.HRA. Awareness of and Attitudes toward Nanotechnology and Federal Regulatory Agencies: A Report of Findings. Washington: Peter D. Hart Research Associates, 25 Sep. 2007.Levidow, Les, Joseph Murphy, and Susan Carr. “Recasting ‘Substantial Equivalence’: Transatlantic Governance of GM Food.” Science, Technology, and Human Values 32.1 (Jan. 2007): 26-64.Lightfoot, David, Rajsree Mungur, Rafiqa Ameziane, Anthony Glass, and Karen Berhard. “Transgenic Manipulation of C and N Metabolism: Stretching the GMO Equivalence.” American Society of Plant Biologists Conference: Plant Biology, 2000.MARS. “Final Report: Australian Community Attitudes Held about Nanotechnology – Trends 2005-2007.” Report prepared for Department of Industry, Tourism and Resources (DITR). Miranda, NSW: Market Attitude Research Services, 12 June 2007.Miller, Georgia, and Rye Senjen. “Out of the Laboratory and on to Our Plates: Nanotechnology in Food and Agriculture.” Friends of the Earth, 2008. 24 Apr. 2008 < http://nano.foe.org.au/node/220 >.Miller, Henry. “Substantial Equivalence: Its Uses and Abuses.” Nature Biotechnology 17 (7 Nov. 1999): 1042-1043.Millstone, Erik, Eric Brunner, and Sue Mayer. “Beyond ‘Substantial Equivalence’.” Nature 401 (7 Oct. 1999): 525-526.Monsanto. “Posilac, Bovine Somatotropin by Monsanto: Questions and Answers about bST from the United States Food and Drug Administration.” 2007. 24 Apr. 2008 < http://www.monsantodairy.com/faqs/fda_safety.html >.Organisation for Economic Co-operation and Development (OECD). “For a Better World Economy.” Paris: OECD, 2008. 24 Apr. 2008 < http://www.oecd.org/ >.———. “Safety Evaluation of Foods Derived by Modern Biotechnology: Concepts and Principles.” Paris: OECD, 1993.Orwell, George. Animal Farm. Adelaide: ebooks@Adelaide, 2004 (1945). 30 Apr. 2008 < http://ebooks.adelaide.edu.au/o/orwell/george >.Paull, John. “Provenance, Purity and Price Premiums: Consumer Valuations of Organic and Place-of-Origin Food Labelling.” Research Masters thesis, University of Tasmania, Hobart, 2006. 24 Apr. 2008 < http://eprints.utas.edu.au/690/ >.Paull, John, and Kristen Lyons. “Nanotechnology: The Next Challenge for Organics.” Journal of Organic Systems (in press).Pennsylvania Department of Agriculture (PDA). “Revised Standards and Procedure for Approval of Proposed Labeling of Fluid Milk.” Milk Labeling Standards (2.0.1.17.08). Bureau of Food Safety and Laboratory Services, Pennsylvania Department of Agriculture, 17 Jan. 2008. ———. “Standards and Procedure for Approval of Proposed Labeling of Fluid Milk, Milk Products and Manufactured Dairy Products.” Milk Labeling Standards (2.0.1.17.08). Bureau of Food Safety and Laboratory Services, Pennsylvania Department of Agriculture, 22 Oct. 2007.Roco, Mihail. “National Nanotechnology Initiative – Past, Present, Future.” In William Goddard, Donald Brenner, Sergy Lyshevski and Gerald Iafrate, eds. Handbook of Nanoscience, Engineering and Technology. 2nd ed. Boca Raton, FL: CRC Press, 2007.Romeis, Jorg, Detlef Bartsch, Franz Bigler, Marco Candolfi, Marco Gielkins, et al. “Assessment of Risk of Insect-Resistant Transgenic Crops to Nontarget Arthropods.” Nature Biotechnology 26.2 (Feb. 2008): 203-208.Schauzu, Marianna. “The Concept of Substantial Equivalence in Safety Assessment of Food Derived from Genetically Modified Organisms.” AgBiotechNet 2 (Apr. 2000): 1-4.Soil Association. “Soil Association First Organisation in the World to Ban Nanoparticles – Potentially Toxic Beauty Products That Get Right under Your Skin.” London: Soil Association, 17 Jan. 2008. 24 Apr. 2008 < http://www.soilassociation.org/web/sa/saweb.nsf/848d689047 cb466780256a6b00298980/42308d944a3088a6802573d100351790!OpenDocument >.Smith, Jeffrey. Genetic Roulette: The Documented Health Risks of Genetically Engineered Foods. Fairfield, Iowa: Yes! Books, 2007.———. Seeds of Deception. Melbourne: Scribe, 2004.U.S. Dairy Export Council (USDEC). Bovine Somatotropin (BST) Backgrounder. Arlington, VA: U.S. Dairy Export Council, 2006.U.S. Food and Drug Administration (USFDA). Animal Cloning: A Draft Risk Assessment. Rockville, MD: Center for Veterinary Medicine, U.S. Food and Drug Administration, 28 Dec. 2006.———. FDA and Nanotechnology Products. U.S. Department of Health and Human Services, U.S. Food and Drug Administration, 2008. 24 Apr. 2008 < http://www.fda.gov/nanotechnology/faqs.html >.Woodrow Wilson International Center for Scholars (WWICS). “A Nanotechnology Consumer Products Inventory.” Data set as at Sep. 2007. Woodrow Wilson International Center for Scholars, Project on Emerging Technologies, Sep. 2007. 24 Apr. 2008 < http://www.nanotechproject.org/inventories/consumer >.

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Abstract:

IntroductionAs both a historical and cultural entity, the city of New Orleans has long-maintained a reputation as a centre for hedonistic and carnivaleque pleasures. Historically, images of mardi gras, jazz, and parties on the shores of the Mississippi have pervaded the cultural vision of the city as a “mecca” for “social life” (Marina 2), and successfully fed its tourism narratives. Simultaneously, however, a different kind of narrative also exists in the historical folds of the city’s urban mythology. Many tales of vampire sightings and supernatural accounts surround the area, and have contributed, over the years, to the establishment and mystification of New Orleans as a ‘vampire city’. This has produced, in turn, its own brand of vampire tourism (Murphy 2015). Mixed with historical rumours and Gothic folklore, the recent narratives of popular culture lie at the centre of the re-imagination of New Orleans as a vampire hub. Taking this idea as a point of departure, this article provides culturally- and historically-informed critical considerations of New Orleans as a ‘vampire city’, especially as portrayed in The Originals (2013-2017), a contemporary television series where vampires are the main protagonists. In the series, the historical narratives of New Orleans become entangled with – and are, at times, almost inseparable from – the fictional chronicles of the vampire in both aesthetic and conceptual terms.The critical connection between urban narratives and vampires representation, as far as New Orleans is concerned, is profoundly entangled with notions of both tourism and fictionalised popular accounts of folklore (Piatti-Farnell 172). In approaching the conceptual relationship between New Orleans as a cultural and historical entity and the vampire — in its folkloristic and imaginative context — the analysis will take a three-pronged approach: firstly, it will consider the historical narrative of tourism for the city of New Orleans; secondly, the city’s connection to vampires and other Gothicised entities will be considered, both historically and narratively; and finally, the analysis will focus on how the connection between New Orleans and Gothic folklore of the vampire is represented in The Originals, with the issue of cultural authenticity being brought into the foreground. A critical footnote must be given to the understanding of the term ‘New Orleans’ in this article as meaning primarily the French Quarter – or, the Vieux Carre – and its various representations. This geographical focus principally owes its existence to the profound cultural significance that the French Quarter has occupied in the history of New Orleans as a city, and, in particular, in its connection to narratives of magic and Gothic folklore, as well as the broader historical and contemporary tourism structures. A History of TourismSocial historian Kevin Fox Gotham agues that New Orleans as a city has been particularly successful in fabricating a sellable image of itself; tourism, Gotham reminds us, is about “the production of local difference, local cultures, and different local histories that appeal to visitors’ tastes for the exotic and the unique” (“Gentrification” 1100). In these terms, both the history and the socio-cultural ‘feel’ of the city cannot be separated from the visual constructs that accompany it. Over the decades, New Orleans has fabricated a distinct network of representational patterns for the Vieux Carre in particular, where the deployment of specific images, themes and motifs – which are, in truth, only peripherally tied to the city’ actual social and political history, and owe their creation and realisation more to the success of fictional narratives from film and literature – is employed to “stimulate tourist demands to buy and consume” (Gotham, “Gentrification” 1102). This image of the city as hedonistic site is well-acknowledged, has to be understood, at least partially, as a conscious construct aimed at the production an identity for itself, which the city can in turn sell to visitors, both domestically and internationally. New Orleans, Gotham suggests, is a ‘complex and constantly mutating city’, in which “meanings of place and community” are “inexorably intertwined with tourism” (Authentic 5). The view of New Orleans as a site of hedonistic pleasure is something that has been heavily capitalised upon by the tourism industry of the city for decades, if not centuries. A keen look at advertising pamphlets for the city, dating form the late Nineteenth century onwards, provides an overview of thematic selling points, that primarily focus on notions of jazz, endless parties and, in particular, nostalgic and distinctly rose-tinted views of the Old South and its glorious plantations (Thomas 7). The decadent view of New Orleans as a centre of carnal pleasures has often been recalled by scholars and lay observers alike; this vision of he city indeed holds deep historical roots, and is entangled with the city’s own economic structures, as well as its acculturated tourism ones. In the late 19th and early 20th century one of the things that New Orleans was very famous for was actually Storyville, the city’s red-light district, sanctioned in 1897 by municipal ordinance. Storyville quickly became a centralized attraction in the heart of New Orleans, so much so that it began being heavily advertised, especially through the publication of the ‘Blue Book’, a resource created for tourists. The Blue Book contained, in alphabetical order, information on all the prostitutes of Storyville. Storyville remained very popular and the most famous attraction in New Orleans until its demolition in 1919 Anthony Stanonis suggests that, in its ability to promote a sellable image for the city, “Storyville meshed with the intersts of business men in the age before mass tourism” (105).Even after the disappearance of Storyville, New Orleans continued to foster its image a site of hedonism, a narrative aided by a favourable administration, especially in the 1930s and 1940s. The French Quarter, in particular, “became a tawdry mélange of brothers and gambling dens operating with impunity under lax law enforcement” (Souther 16). The image of the city as a site for pleasures of worldly nature continued to be deeply rooted, and even survives in the following decades today, as visible in the numerous exotic dance parlours located on the famous Bourbon Street.Vampire TourismSimultaneously, however, a different kind of narrative also exists in the recent historical folds of the city’s urban mythology, where vampires, magic, and voodoo are an unavoidable presence. Many tales of vampire sightings and supernatural accounts surround the area, and have contributed, over the years, to the establishment and mystification of New Orleans as a ‘vampire city’. Kenneth Holditch contends that ‘”New Orleans is a city in love with its myths, mysteries and fantasies” (quoted in McKinney 8). In the contemporary era, these qualities are profoundly reflected in the city’s urban tourism image, where the vampire narrative is pushed into the foreground. When in the city, one might be lucky enough to take one of the many ‘vampire tours’ — often coupled with narratives of haunted locations — or visit the vampire bookshop, or even take part in the annual vampire ball. Indeed, the presence of vampires in New Orleans’s contemporary tourism narrative is so pervasive that one might be tempted to assume that it has always occupied a prominent place in the city’s cultural fabric. Nonetheless, this perception is not accurate: the historical evidence from tourism pamphlets for the city do not make any mentions of vampire tourism before the 1990s, and even then, the focus on the occult side of new Orleans tended to privilege stories of voodoo and hoodoo — a presence that still survives strongly in the cultural narrative city itself (Murphy 91). While the connection between vampires and New Orleans is a undoubtedly recent one, the development and establishment of New Orleans as vampire city cannot be thought of as a straight line. A number of cultural and historical currents appear to converge in the creation of the city’s vampire mystique. The history and geography of the city here could be an important factor, and a useful starting point; as the site of extreme immigration and ethnic and racial mingling New Orleans holds a reputation for mystery. The city was, of course, the regrettable site of a huge marketplace for the slave trade, so discussions of political economy could also be important here, although I’ll leave them for another time. As a city, New Orleans has often been described – by novelists, poets, and historians alike – as being somewhat ‘peculiar’. Simone de Behaviour was known to have remarked that that the city is surrounded by a “pearl grey” and ‘luminous’ air” (McKinney 1). In similar fashion, Oliver Evans claims the city carries “opalescent hints” (quoted in McKinney 1). New Orleans is famous for having a quite thick mist, the result of a high humidity levels in the air. To an observing eye, New Orleans seems immersed in an almost otherworldly ‘glow’, which bestows upon its limits an ethereal and mysterious quality (Piatti-Farnell 173). While this intention here is not to suggest that New Orleans is the only city to have mist – especially in the Southern States – one might venture to say that this physical phenomenon, joined with other occurrences and legends, has certainly contributed to the city’s Gothicised image. The geography of the city also makes it sadly famous for floods and their subsequent devastation, which over centuries have wrecked parts of the city irrevocably. New Orleans sits at a less than desirable geographical position, is no more than 17 feet above sea level, and much of it is at least five feet below (McKinney 5). In spite of its lamentable fame, hurricane Katrina was not the first devastating geo-meteorological phenomenon to hit and destroy most of New Orleans; one can trace similar hurricane occurrences in 1812 and 1915, which at the time significantly damaged parts of the French Quarter. The geographical position of New Orleans also owes to the city’s well-known history of disease such as the plague and tuberculosis – often associated, in previous centuries, with the miasma proper to reclaimed river lands. In similar terms, one must not forget New Orleans’s history of devastating fires – primarily in the years 1788, 1794, 1816, 1866 and 1919 – which slowly destroyed the main historical parts of the city, particularly in the Vieux Carre, and to some extent opened the way for regeneration and later gentrification as well. As a result of its troubled and destructive history, Louise McKinnon claims that the city ‒ perhaps unlike any others in the United States ‒ hinges on perpetual cycles of destruction and regeneration, continuously showing “the wear and tear of human life” (McKinney 6).It is indeed in this extremely important element that New Orleans finds a conceptual source in its connection to notions of the undead, and the vampire in particular. Historically, one can identify the pervasive use of Gothic terminology to describe New Orleans, even if, the descriptions themselves were more attuned to perceptions of the city’s architecture and metrological conditions, rather than the recollection of any folklore-inspired narratives of unread creatures. Because of its mutating, and often ill-maintained historical architecture – especially in the French Quarter - New Orleans has steadily maintained a reputation as a city of “splendid decay” (McKinney, 6). This highly lyrical and metaphorical approach plays an important part in building the city as a site of mystery and enchantment. Its decaying outlook functions as an unavoidable sign of how New Orleans continues to absorb, and simultaneously repel, as McKinney puts it, “the effects of its own history” (6).Nonetheless, the history of New Orleans as a cultural entity, especially in terms of tourism, has not been tied to vampires for centuries, as many imagine, and the city itself insists in its contemporary tourism narratives. Although a lot of folklore has survived around the city in connection to magic and mysticism, for a number of reasons, vampires have not always been in the foreground of its publicised cultural narratives. Mixed with historical rumours and Gothic folklore, the recent narratives of popular culture lie at the centre of the re-imagination of New Orleans as a vampire spot: most scholars claim that it all started with the publication of Anne Rice’s Interview with the Vampire (1976), but actually evidence shows that the vampire narrative for the city of New Orleans did not fully explode until the release of Neil Jordan’s cinematic adaptation of Interview with the Vampire (1994). This film really put New Orleans at the centre of the vampire narrative, indulging in the use of many iconic locations in the city as tied to vampire, and cementing the idea of New Orleans as a vampiric city (Piatti-Farnell 175). The impact of Rice’s work, and its adaptations, has also been picked up by numerous other examples of popular culture, including Charlaine Harris’s Southern Vampire mystery series, and its well-known television adaptation True Blood. Harris herself states in one of her novels: “New Orleans had been the place to go for vampires and those who wanted to be around them ever since Anne Rice had been proven right about their existence” (2). In spite of the fact that popular culture, rather than actual historical evidence, lies at the heart of the city’s cultural relationship with vampires, this does not detract from the fact that vampires themselves – as fabricated figures lying somewhere between folklore, history, and fiction – represent an influential part of New Orleans’s contemporary tourism narrative, building a bridge between historical storytelling, mythologised identities, and consumerism. The Originals: Vampires in the CityIndeed, the impact of popular culture in establishing and re-establishing the success of the vampire tourism narrative in New Orleans is undeniable. Contemporary examples continue to capitalise on the visual, cultural, and suggestively historical connection between the city’s landmarks and vampire tales, cementing the notion of New Orleans as a solid entity within the Gothic tourism narrative. One such successful example is The Originals. This television show is actually a spin-off of the Vampires Diaries, and begins with three vampires, the Mikaelson siblings (Niklaus, Elijah, and Rebekkah) returning to the city of New Orleans for the first time since 1919, when they were forced to flee by their vengeful father. In their absence, Niklaus's protégé, Marcel, took charge of the city. The storyline of The Originals focuses on battles within the vampire factions to regain control of the city, and eliminate the hold of other mystical creatures such as werewolves and witches (Anyiwo 175). The central narrative here is that the city belongs to the vampire, and there can be no other real Gothic presence in the Quarter. One can only wonder, even at this embryonic level, how this connects functions in a multifaceted way, extending the critique of the vampire’s relationship to New Orleans from the textual dimension of the TV show to the real life cultural narrative of the city itself. A large number of the narrative strands in The Originals are tied to city and its festivals, its celebrations, and its visions of the past, whether historically recorded, or living in the pages of its Gothic folklore. Vampires are actually claimed to have made New Orleans what it is today, and they undoubtedly rule it. As Marcel puts it: “The blood never stops flowing, and the party never ends” (Episode 1, “Always and Forever”). Even the vampiric mantra for New Orleans in The Originals is tied to the city’s existing and long-standing tourism narrative, as “the party never ends” is a reference to one of Bourbon Street’s famous slogans. Indeed, the pictorial influence of the city’s primary landmarks in The Originals is undeniable. In spite of the fact the inside scenes for The Originals were filmed in a studio, the outside shots in the series reveal a strong connections to the city itself, as viewers are left with no doubt as to the show’s setting. New Orleans is continuously mentioned and put on show – and pervasively referred to as “our city”, by the vampires. So much so, that New Orleans becomes the centre of the feud between supernatural forces, as the vampires fight witches and werewolves – among others- to maintain control over the city’s historical heart. The French Quarter, in particular, is given renewed life from the ashes of history into the beating heart of the vampire narrative, so much so that it almost becomes its own character in its own right, instrumental in constructing the vampire mystique. The impact of the vampire on constructing an image for the city of New Orleans is made explicit in The Originals, as the series explicitly shows vampires at the centre of the city’s history. Indeed, the show’s narrative goes as far as justifying the French Quarter’s history and even legends through the vampire metaphor. For instance, the series explains the devastating fire that destroyed the French Opera House in 1919 as the result of a Mikaelson vampire family feud. In similar terms, the vampires of the French Quarter are shown at the heart of the Casquette Girls narrative, a well-known tale from Eighteenth-century colonial New Orleans, where young women were shipped from France to the new Louisiana colony, in order to marry. The young women were said to bring small chests – or casquettes – containing their clothes (Crandle 47). The Originals, however, capitalises on the folkloristic interpretation that perceives the girls’ luggage as coffins potentially containing the undead, a popular version of the tale that can often be heard if taking part in one of the many vampire tours in New Orleans. One can see here how the chronicles of the French Quarter in New Orleans and the presumed narratives of the vampire in the city merge to become one and the same, blurring the lines between history and fiction, and presenting the notion of folklore as a verifiable entity of the everyday (Kirshenblatt-Gimblett 25) It is essential to remember, en passant, that, as far as giving the undead their own historical chronicles in connection to New Orleans, The Originals is not alone in doing this. Other TV series like American Horror Story have provided Gothicised histories for the city, although in this case more connected to witchcraft, hoodoo, and voodoo, rather than vampires.What one can see taking place in The Originals is a form of alternate and revisionist history that is reminiscent of several instances of pulp and science fiction from the early 20th century, where the Gothic element lies at the centre of not only the fictional narrative, but also of the re-conceptualisation of historical time and space, as not absolute entities, but as narratives open to interpretation (Singles 103). The re-interpretation here is of course connected to the cultural anxieties that are intrinsic to the Gothic – of changes, shifts, and unwanted returns - and the vampire as a figure of intersections, signalling the shift between stages of existence. If it is true that, to paraphrase Paul Ricoeur’s famous contention, the past returns to “haunt” us (105), then the history of New Orleans in The Originals is both established and haunted by vampires, a pervasive shadow that provides the city itself with an almost tangible Gothic afterlife. This connection, of course, extends beyond the fictional world of the television series, and finds fertile ground in the cultural narratives that the city constructs for itself. The tourism narrative of New Orleans also lies at the heart of the reconstructive historical imagination, which purposefully re-invents the city as a constructed entity that is, in itself, extremely sellable. The Originals mentions on multiple occasions that certain bars — owned, of course, by vampires — host regular ‘vampire themed events’, to “keep the tourists happy”. The importance of maintaining a steady influx of vampire tourism into the Quarter is made very clear throughout, and the vampires are complicit in fostering it for a number of reasons: not only because it provides them and the city with a constant revenue, but also because it brings a continuous source of fresh blood for the vampires to feed on. As Marcel puts it: “Something's gotta draw in the out-of-towners. Otherwise we'd all go hungry” (Episode 1, “Always and Forever”). New Orleans, it is made clear, is not only portrayed as a vampire hub, but also as a hot spot for vampire tourism; as part of the tourism narratives, the vampires themselves — who commonly feign humanity — actually further ‘pretend’ to be vampires for the tourists, who expect to find vampires in the city. It is made clear in The Originals that vampires often put on a show – and bear in mind, these are vampires who pretend to be human, who pretend to be vampires for the tourists. They channel stereotypes that belong in Gothic novels and films, and that are, as far as the ‘real’ vampires of the series, are concerned, mostly fictional. The vampires that are presented to the tourists in The Originals are, inevitably, inauthentic, for the real vampires themselves purposefully portray the vision of vampires put forward by popular culture, together with its own motifs and stereotypes. The vampires happily perform their popular culture role, in order to meet the expectations of the tourist. This interaction — which sociologist Dean MacCannell would refer to, when discussing the dynamics of tourism, as “staged authenticity” (591) — is the basis of the appeal, and what continues to bring tourists back, generating profits for vampires and humans alike. Nina Auerbach has persuasively argued that the vampire is often eroticised through its connections to the “self-obsessed’ glamour of consumerism that ‘subordinates history to seductive object” (57).With the issue of authenticity brought into sharp relief, The Originals also foregrounds questions of authenticity in relation to New Orleans’s own vampire tourism narrative, which ostensibly bases into historical narratives of magic, horror, and folklore, and constructs a fictionalised urban tale, suitable to the tourism trade. The vampires of the French Quarter in The Originals act as the embodiment of the constructed image of New Orleans as the epitome of a vampire tourist destination. ConclusionThere is a clear suggestion in The Originals that vampires have evolved from simple creatures of old folklore, to ‘products’ that can be sold to expectant tourists. This evolution, as far as popular culture is concerned, is also inevitably tied to the conceptualisation of certain locations as ‘vampiric’, a notion that, in the contemporary era, hinges on intersecting narratives of culture, history, and identity. Within this, New Orleans has successfully constructed an image for itself as a vampire city, exploiting, in a number ways, the popular and purposefully historicised connection to the undead. In both tourism narratives and popular culture, of which The Originals is an ideal example, New Orleans’s urban image — often sited in constructions and re-constructions, re-birth and decay — is presented as a result of the vampire’s own existence, and thrives in the Gothicised afterlife of imagery, symbolism, and cultural persuasion. In these terms, the ‘inauthentic’ vampires of The Originals are an ideal allegory that provides a channelling ground for the issues surrounding the ‘inauthentic’ state of New Orleans a sellable tourism entity. As both hinge on images of popular representation and desirable symbols, the historical narratives of New Orleans become entangled with — and are, at times, almost inseparable from — the fictional chronicles of the vampire in both aesthetic and conceptual terms. ReferencesAnyiwo, U. Melissa. “The Female Vampire in Popular Culture.” Gender in the Vampire Narrative. Eds. Amanda Hobson and U. Melissa Anyiwo. Rotterdam: Sense Publishers, 2016. 173-192. Auerbach, Nina. Our Vampires, Ourselves. Chicago: University of Chicago Press, 1995.Crandle, Marita Woywod. New Orleans Vampires: History and Legend. Stroud: The History Press, 2017.Gotham, Kevin Fox. Authentic New Orleans: Tourism, Culture, and Race in the Big Easy. New York: New York University Press, 2007.———. “Tourism Gentrification: The Case of New Orleans’ Vieux Carre’.” Urban Studies 42.7 (2005): 1099-1121. Harris, Charlaine. All Together Dead. London: Gollancz, 2008.Interview with the Vampire. Dir. Neil Jordan. Geffen Pictures, 1994. Kirshenblatt-Gimblett, Barbara. “Mistaken Dichotomies.” Public Folklore. Eds. Robert Baron and Nick Spitzer. Oxford: University of Missisippi Press, 2007. 28-48.Marina, Peter J. Down and Out in New Orleans: Trangressive Living in the Informal Economy. New York: Columia University Press, 2017. McKinney, Louise. New Orleans: A Cultural History. Oxford: Oxford University Press, 2006.Murphy, Michael. Fear Dat New Orleans: A Guide to the Voodoo, Vampires, Graveyards & Ghosts of the Crescent City. New York: W.W. Norton & Company, 2015.Piatti-Farnell, Lorna. The Vampire in Contemporary Popular Literature. London: Routledge, 2014. Ricoeur, Paul. Memory, History, Forgetting. Chicago: University of Chicago Press, 2004. Singles, Kathleen. Alternate History: Playing with Contingency and Necessity. Boston: de Gruyter, 2013.Souther, Mark. New Orleans on Parade: Tourism and the Transformation of the Crescent City. Baton Rouge: University of Louisiana Press, 2006. Stanonis, Anthony J. Creating the Big Easy: New Orleans and the Emergence of Modern Tourism, 1918-1945. Athens: University of Georgia Press, 2006.The Originals. Seasons 1-4. CBS/Warner Bros Television. 2013-2017.Thomas, Lynell. Desire and Disaster in New Orleans: Tourism, Race, and Historical Memory. Durham: Duke University Press, 2014.

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Introduction This article explores the changing relational quality of “the shadow of hierarchy”, in the context of the merging of platforms with infrastructure as the source of the shadow of hierarchy. In governance and regulatory studies, the shadow of hierarchy (or variations thereof), describes the space of influence that hierarchal organisations and infrastructures have (Héritier and Lehmkuhl; Lance et al.). A shift in who/what casts the shadow of hierarchy will necessarily result in changes to the attendant relational values, logics, and (techno)socialities that constitute the shadow, and a new arrangement of shadow that presents new challenges and opportunities. This article reflects on relevant literature to consider two different ways the shadow of hierarchy has qualitatively changed as platforms, rather than infrastructures, come to cast the shadow of hierarchy – an increase in scalability; and new socio-technical arrangements of (non)participation – and the opportunities and challenges therein. The article concludes that more concerted efforts are needed to design the shadow, given a seemingly directionless desire to enact data-driven solutions. The Shadow of Hierarchy, Infrastructures, and Platforms The shadow of hierarchy refers to how institutional, infrastructural, and organisational hierarchies create a relational zone of influence over a particular space. This commonly refers to executive decisions and legislation created by nation states, which are cast over private and non-governmental actors (Héritier and Lehmkuhl, 2). Lance et al. (252–53) argue that the shadow of hierarchy is a productive and desirable thing. Exploring the shadow of hierarchy in the context of how geospatial data agencies govern their data, Lance et al. find that the shadow of hierarchy enables the networked governance approaches that agencies adopt. This is because operating in the shadow of institutions provides authority, confers bureaucratic legitimacy and top-down power, and offers financial support. The darkness of the shadow is thus less a moral or ethicopolitical statement (such as that suggested by Fisher and Bolter, who use the idea of darkness to unpack the morality of tourism involving death and human suffering), and instead a relationality; an expression of differing values, logics, and (techno)socialities internal and external to those infrastructures and institutions that cast it (Gehl and McKelvey). The shadow of hierarchy might therefore be thought of as a field of relational influences and power that a social body casts over society, by virtue of a privileged position vis-a-vis society. It modulates society’s “light”; the resources (Bourdieu) and power relationships (Foucault) that run through social life, as parsed through a certain institutional and infrastructural worldview (the thing that blocks the light to create the shadow). In this way the shadow of hierarchy is not a field of absolute blackness that obscures, but instead a gradient of light and dark that creates certain effects. The shadow of hierarchy is now, however, also being cast by decentralised, privately held, and non-hierarchal platforms that are replacing or merging with public infrastructure, creating new social effects. Platforms are digital, socio-technical systems that create relationships between different entities. They are most commonly built around a relatively fixed core function (such as a social media service like Facebook), that then interacts with a peripheral set of complementors (advertising companies and app developers in the case of social media; Baldwin and Woodard), to create new relationships, forms of value, and other interactions (van Dijck, The Culture of Connectivity). In creating these relationships, platforms become inherently political (Gillespie), shaping relationships and content on the platform (Suzor) and in embodied life (Ajunwa; Eubanks). While platforms are often associated with optional consumer platforms (such as streaming services like Spotify), they have increasingly come to occupy the place of public infrastructure, and act as a powerful enabler to different socio-technical, economic, and political relationships (van Dijck, Governing Digital Societies). For instance, Plantin et al. argue that platforms have merged with infrastructures, and that once publicly held and funded institutions and essential services now share many characteristics with for-profit, privately held platforms. For example, Australia has had a long history of outsourcing employment services (Webster and Harding), and nearly privatised its entire visa processing data infrastructure (Jenkins). Platforms therefore have a greater role in casting the shadow of hierarchy than before. In doing so, they cast a shadow that is qualitatively different, modulated through a different set of relational values and (techno)socialities. Scalability A key difference and selling point of platforms is their scalability; since they can rapidly and easily up- and down-scale their functionalities in a way that traditional infrastructure cannot (Plantin et al.). The ability to respond “on-demand” to infrastructural requirements has made platforms the go-to service delivery option in the neo-liberalised public infrastructure environment (van Dijck, Governing Digital Societies). For instance, services providers like Amazon Web Services or Microsoft Azure provide on demand computing capacity for many nations’ most valuable services, including their intelligence and security capabilities (Amoore, Cloud Ethics; Konkel). The value of such platforms to government lies in the reduced cost and risk that comes with using rented capabilities, and the enhanced flexibility to increase or decrease their usage as required, without any of the economic sunk costs attached to owning the infrastructure. Scalability is, however, not just about on-demand technical capability, but about how platforms can change the scale of socio-technical relationships and services that are mediated through the platform. This changes the relational quality of the shadow of hierarchy, as activities and services occurring within the shadow are now connected into a larger and rapidly modulating scale. Scalability allows the shadow of hierarchy to extend from those in proximity to institutions to the broader population in general. For example, individual citizens can more easily “reach up” into governmental services and agencies as a part of completing their everyday business through platform such as MyGov in Australia (Services Australia). Using a smartphone application, citizens are afforded a more personalised and adaptive experience of the welfare state, as engaging with welfare services is no-longer tied to specific “brick-and-mortar” locations, but constantly available through a smartphone app and web portal. Multiple government services including healthcare and taxation are also connected to this platform, allowing users to reach across multiple government service domains to complete their personal business, seeking information and services that would have once required separate communications with different branches of government. The individual’s capacities to engage with the state have therefore upscaled with this change in the shadow, retaining a productivity and capacity enhancing quality that is reminiscent of older infrastructures and institutions, as the individual and their lived context is brought closer to the institutions themselves. Scale, however, comes with complications. The fundamental driver for scalability and its adaptive qualities is datafication. This means individuals and organisations are inflecting their operational and relational logics with the logic of datafication: a need to capture all data, at all times (van Dijck, Datafication; Fourcade and Healy). Platforms, especially privately held platforms, benefit significantly from this, as they rely on data to drive and refine their algorithmic tools, and ultimately create actionable intelligence that benefits their operations. Thus, scalability allows platforms to better “reach down” into individual lives and different social domains to fuel their operations. For example, as public transport services become increasingly datafied into mobility-as-a-service (MAAS) systems, ride sharing and on-demand transportation platforms like Uber and Lyft become incorporated into the public transport ecosystem (Lyons et al.). These platforms capture geospatial, behavioural, and reputational data from users and drivers during their interactions with the platform (Rosenblat and Stark; Attoh et al.). This generates additional value, and profits, for the platform itself with limited value returned to the user or the broader public it supports, outside of the transport service. It also places the platform in a position to gain wider access to the population and their data, by virtue of operating as a part of a public service. In this way the shadow of hierarchy may exacerbate inequity. The (dis)benefits of the shadow of hierarchy become unevenly spread amongst actors within its field, a function of an increased scalability that connects individuals into much broader assemblages of datafication. For Eubank, this can entrench existing economic and social inequalities by forcing those in need to engage with digitally mediated welfare systems that rely on distant and opaque computational judgements. Local services are subject to increased digital surveillance, a removal of agency from frontline advocates, and algorithmic judgement at scale. More fortunate citizens are also still at risk, with Nardi and Ekbia arguing that many digitally scaled relationships are examples of “heteromation”, whereby platforms convince actors in the platform to labour for free, such as through providing ratings which establish a platform’s reputational economy. Such labour fuels the operation of the platform through exploiting users, who become both a product/resource (as a source of data for third party advertisers) and a performer of unrewarded digital labour, such as through providing user reviews that help guide a platform’s algorithm(s). Both these examples represent a particularly disconcerting outcome for the shadow of hierarchy, which has its roots in public sector institutions who operate for a common good through shared and publicly held infrastructure. In shifting towards platforms, especially privately held platforms, value is transmitted to private corporations and not the public or the commons, as was the case with traditional infrastructure. The public also comes to own the risks attached to platforms if they become tied to public services, placing a further burden on the public if the platform fails, while reaping none of the profit and value generated through datafication. This is a poor bargain at best. (Non)Participation Scalability forms the basis for a further predicament: a changing socio-technical dynamic of (non)participation between individuals and services. According to Star (118), infrastructures are defined through their relationships to a given context. These relationships, which often exist as boundary objects between different communities, are “loosely structured in common use, and become tightly bound in particular locations” (Star, 118). While platforms are certainly boundary objects and relationally defined, the affordances of cloud computing have enabled a decoupling from physical location, and the operation of platforms across time and space through distributed digital nodes (smartphones, computers, and other localised hardware) and powerful algorithms that sort and process requests for service. This does not mean location is not important for the cloud (see Amoore, Cloud Geographies), but platforms are less likely to have a physically co-located presence in the same way traditional infrastructures had. Without the same institutional and infrastructural footprint, the modality for participating in and with the shadow of hierarchy that platforms cast becomes qualitatively different and predicated on digital intermediaries. Replacing a physical and human footprint with algorithmically supported and decentralised computing power allows scalability and some efficiency improvements, but it also removes taken-for-granted touchpoints for contestation and recourse. For example, ride-sharing platform Uber operates globally, and has expressed interest in operating in complement to (and perhaps in competition with) public transport services in some cities (Hall et al.; Conger). Given that Uber would come to operate as a part of the shadow of hierarchy that transport authorities cast over said cities, it would not be unreasonable to expect Uber to be subject to comparable advocacy, adjudication, transparency, and complaint-handling requirements. Unfortunately, it is unclear if this would be the case, with examples suggesting that Uber would use the scalability of its platform to avoid these mechanisms. This is revealed by ongoing legal action launched by concerned Uber drivers in the United Kingdom, who have sought access to the profiling data that Uber uses to manage and monitor its drivers (Sawers). The challenge has relied on transnational law (the European Union’s General Data Protection Regulation), with UK-based drivers lodging claims in Amsterdam to initiate the challenge. Such costly and complex actions are beyond the means of many, but demonstrate how reasonable participation in socio-technical and governance relationships (like contestations) might become limited, depending on how the shadow of hierarchy changes with the incorporation of platforms. Even if legal challenges for transparency are successful, they may not produce meaningful change. For instance, O’Neil links algorithmic bias to mathematical shortcomings in the variables used to measure the world; in the creation of irritational feedback loops based on incorrect data; and in the use of unsound data analysis techniques. These three factors contribute to inequitable digital metrics like predictive policing algorithms that disproportionately target racial minorities. Large amounts of selective data on minorities create myopic algorithms that direct police to target minorities, creating more selective data that reinforces the spurious model. These biases, however, are persistently inaccessible, and even when visible are often unintelligible to experts (Ananny and Crawford). The visibility of the technical “installed base” that support institutions and public services is therefore not a panacea, especially when the installed base (un)intentionally obfuscates participation in meaningful engagement like complaints handling. A negative outcome is, however, also not an inevitable thing. It is entirely possible to design platforms to allow individual users to scale up and have opportunities for enhanced participation. For instance, eGovernance and mobile governance literature have explored how citizens engage with state services at scale (Thomas and Streib; Foth et al.), and the open government movement has demonstrated the effectiveness of open data in understanding government operations (Barns; Janssen et al.), although these both have their challenges (Chadwick; Dawes). It is not a fantasy to imagine alternative configurations of the shadow of hierarchy that allow more participatory relationships. Open data could facilitate the governance of platforms at scale (Box et al.), where users are enfranchised into a platform by some form of membership right and given access to financial and governance records, in the same way that corporate shareholders are enfranchised, facilitated by the same app that provides a service. This could also be extended to decision making through voting and polling functions. Such a governance form would require radically different legal, business, and institutional structures to create and enforce this arrangement. Delacoix and Lawrence, for instance, suggest that data trusts, where a trustee is assigned legal and fiduciary responsibility to achieve maximum benefit for a specific group’s data, can be used to negotiate legal and governance relationships that meaningfully benefit the users of the trust. Trustees can be instructed to only share data to services whose algorithms are regularly audited for bias and provide datasets that are accurate representations of their users, for instance, avoiding erroneous proxies that disrupt algorithmic models. While these developments are in their infancy, it is not unreasonable to reflect on such endeavours now, as the technologies to achieve these are already in use. Conclusions There is a persistent myth that data will yield better, faster, more complete results in whatever field it is applied (Lee and Cook; Fourcade and Healy; Mayer-Schönberger and Cukier; Kitchin). This myth has led to data-driven assemblages, including artificial intelligence, platforms, surveillance, and other data-technologies, being deployed throughout social life. The public sector is no exception to this, but the deployment of any technological solution within the traditional institutions of the shadow of hierarchy is fraught with challenges, and often results in failure or unintended consequences (Henman). The complexity of these systems combined with time, budgetary, and political pressures can create a contested environment. It is this environment that moulds societies' light and resources to cast the shadow of hierarchy. Relationality within a shadow of hierarchy that reflects the complicated and competing interests of platforms is likely to present a range of unintended social consequences that are inherently emergent because they are entering into a complex system – society – that is extremely hard to model. The relational qualities of the shadow of hierarchy are therefore now more multidimensional and emergent, and experiences relating to socio-technical features like scale, and as a follow-on (non)participation, are evidence of this. Yet by being emergent, they are also directionless, a product of complex systems rather than designed and strategic intent. This is not an inherently bad thing, but given the potential for data-system and platforms to have negative or unintended consequences, it is worth considering whether remaining directionless is the best outcome. There are many examples of data-driven systems in healthcare (Obermeyer et al.), welfare (Eubanks; Henman and Marston), and economics (MacKenzie), having unintended and negative social consequences. Appropriately guiding the design and deployment of theses system also represents a growing body of knowledge and practical endeavour (Jirotka et al.; Stilgoe et al.). Armed with the knowledge of these social implications, constructing an appropriate social architecture (Box and Lemon; Box et al.) around the platforms and data systems that form the shadow of hierarchy should be encouraged. This social architecture should account for the affordances and emergent potentials of a complex social, institutional, economic, political, and technical environment, and should assist in guiding the shadow of hierarchy away from egregious challenges and towards meaningful opportunities. To be directionless is an opportunity to take a new direction. The intersection of platforms with public institutions and infrastructures has moulded society’s light into an evolving and emergent shadow of hierarchy over many domains. With the scale of the shadow changing, and shaping participation, who benefits and who loses out in the shadow of hierarchy is also changing. Equipped with insights into this change, we should not hesitate to shape this change, creating or preserving relationalities that offer the best outcomes. Defining, understanding, and practically implementing what the “best” outcome(s) are would be a valuable next step in this endeavour, and should prompt considerable discussion. 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