Journal articles: 'United States. Defense Contract Management Agency' – Grafiati (2024)

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ABSTRACTIn the United States, civil common carrier telecommunications are provided by private companies, not by any agency of the government. Regulation of these services and spectrum management oversight is provided by the Federal Communications Commission (FCC), an agency of the government. Government telecommunications are operated by individual agencies, e.g. the Department of Defense, under the overall regulation of the Office of Spectrum Management of the National Telecommunications and Information Administration (NTIA), a government body separate from the FCC. In bands shared by the civil and government sectors, liaison and coordination is effected between the FCC and the NTIA.

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This research examines one explanation for why replacing the chief executive officer does not seem to improve firm performance despite its positive effect on financial markets: some new chief executive officers (CEOs) are able to negotiate favorable agency contracts, and therefore protect their positions, at the expense of performance that would benefit shareholders. In a longitudinal study of 150 publicly-traded firms in the United States, we found that the governance systems that align the CEO’s and owners’ interests, the mechanisms by which compliance with the agency contract is monitored, and the firm’s strategies and performance differed as a function of ownership concentration. In firms with dispersed ownership, new CEOs initiated changes favorable to them in the composition of the board of directors and in the level of and risk associated with their compensation. We also explore reasons for the differing patterns of institutionalized power resulting from the agency contract.

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To monitor trends in alternative work arrangements, the authors conducted a version of the Contingent Worker Survey as part of the RAND American Life Panel in late 2015. Their findings point to a rise in the incidence of alternative work arrangements in the US economy from 1995 to 2015. The percentage of workers engaged in alternative work arrangements—defined as temporary help agency workers, on-call workers, contract workers, and independent contractors or freelancers—rose from 10.7% in February 2005 to possibly as high as 15.8% in late 2015. Workers who provide services through online intermediaries, such as Uber or TaskRabbit, accounted for 0.5% of all workers in 2015. Of the workers selling goods or services directly to customers, approximately twice as many reported finding customers through off-line intermediaries than through online intermediaries.

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The literature on economic statecraft has long focused on the effectiveness of foreign aid and trade as tools of inducement. However, existing scholarship largely neglects the role played by government procurement. By choosing to purchase goods or hire labor in foreign states, governments can provide economic benefits for strategic ends. The United States in particular leverages its defense procurement as a foreign policy tool. We introduce a new data set of US government procurement using information on all contracts executed overseas from 2000 to 2015. We develop a typology of how states use procurement to achieve foreign policy goals—power projection, counterinsurgency, and development—and provide descriptive statistics to explore variation in spending across countries and over time. We illustrate the power of the contract data by using it to code US military access in Africa, assess the relationship between spending and economic growth, and test whether economic inducements can buy influence.

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Foreign producers and importers often have a challenging, uphill battle when defending against a dumping petition. The statutory framework for evaluating whether foreign producers are selling below fair value in the United States leaves significant discretion to the U.S. Department of Commerce and the U.S. International Trade Commission and foreign producers often find themselves on the losing end of a court’s analysis under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., when the court rules that the agency has reasonably interpreted a governing statute. This did not occur, however, in the recent case of Dorbest Limited v. United States, when the U.S. Court of Appeals for the Federal Circuit ruled that the Department of Commerce’s (“Commerce”) regulation for computing labor rates to calculate a dumping margin for a Chinese product defied Congress’ mandate set out in the governing statute.

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This research explored federal intervention with the particular emphasis on examining how a collaborative relationship between Department of Defense (DOD) and Homeland Security (DHS) led to greater effectiveness between these two federal departments and their subordinates (United States Northern Command and Federal Emergency Management Agency, respectively) during the preparation and response phases of the disaster cycle regarding US continental-based hurricanes. Through the application of a two-phased, sequential mixed methods approach, this study determined how their relationship has led to longitudinal improvements in the years following Hurricane Katrina, focusing on hurricanes as the primary unit of analysis.

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In 1969, when few commercial communications networks existed, a U.S. Defense Department research agency created an experimental system that would eventually become the Internet. Driven by both research and military considerations, the designers of the Internet created a complex, robust, and flexible system that differed in significant ways from contemporary commercial communications networks. In the 1970s and 1980s, computer manufacturers (mainly based in the United States) and telecommunications carriers (mainly operating outside the United States) vied to offer commercial network products and services, but no single company or technology was able to dominate the market, in part because computer users preferred the type of nonproprietary technical standards used in the Internet. In the 1980s, the National Science Foundation took over operation of the Internet, and in the 1990s the NSF turned over the network to privatesector operators. While the Internet has rapidly increased in scale under commercial ownership, the technology also continues to reflect the systems research origins.

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The author explores the operational capability of the European defense policy in the last 3 years. From the creation and adoption of the European Security Strategy, the European Union has made several specific steps in the development of the European Security and Defense Policy. Despite the disagreements with the United States about Iraq and the internal divisions in the "New and Old Europe" EU has shown the ability to set new military and civilian goals, make a small, but effective battle group concept for crisis management and conflict prevention as well as the European Defense Agency. The author also describes the main operations and missions of EU in the world, ranging from the Balkans and Africa to the Middle East and Eastern Asia. Finally, the paper analyses the Constitution for Europe and the articles concerning ESDP.

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The development of effective hazard trees assessment practices has been an important focus of urban forestry for many years. When a publicly owned tree fails and causes property damage, personal injury or death in the United States, a potential consequence for a government agency is litigation. Although managing a large public tree resource can seem daunting, simple assessment parameters can be used to identify high-risk features within the tree population. Through analysis of the interaction between high-risk elements in the tree population and definition of a long-term, managed approach to tree risk reduction, strong policies and practices can be initiated. This program emphasizes two concepts. First, implementation of a well thought out risk reduction strategy improves the overall health of the urban forest, which results in a safer urban environment. This goal is universal, regardless of national boundaries. Second, documentation and implementation of tree risk management policies forms the foundation for a government agency’s defense, if litigation ever occurred.

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The export control and economic sanctions laws are a minefield for U.S. companies that export products and engage in other forms of cross-border transactions. Mistakes are common, even for diligent, well-intentioned exporters. The company suspecting it has exported an item or technology outside of compliance with these complex laws must consider whether to disclose the violation to the relevant federal agency. Although usually not required by law, a voluntary disclosure can be advisable for many reasons, including avoidance or mitigation of penalties. But two things are true about the vast majority of violations: Most do not remotely threaten the national security of the United States and most are unlikely to be independently discovered by the enforcing agency. The would-be discloser is justified in wondering what is the merit-for the company and for the national security-in making a disclosure. In addition, where the company does decide to disclose, it confronts a host a questions, including what should be disclosed, how, to whom, and when to make the disclosure. This article considers these questions in the context of the three primary U.S. export-control and economic sanctions laws: the International Traffic in Arms Regulations (ITAR), administered by the State Department's Directorate of Defense Trade Controls (DDTC); the Export Administration Regulations (EAR), administered by the Commerce Department's Bureau of Industry and Security (BIS); and the economic sanctions regulations administered by the Treasury Department's Office of Foreign Assets Control (OFAC).

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Because there is no dominant source of employment–law norms in the United States, the study and practice of the law of the workplace in this country is inherently transubstantive. Students must master contract, tort, and agency concepts, as well as various statutory mandates. And employment–law practitioners and policy makers know well the challenges created by the interplay between these disparate legal regimes. In other ways, however, the standard approach to employment law in this country is narrow. Although scholars offer more holistic critiques, the discussion often leaves out legal conceptions that frame the discussion elsewhere. One example is the extent to which workplace regulation is treated as a subject of human rights law; in the United States, unlike other parts of the world, worker protections rarely are viewed through this lens. Another example, which is the primary focus of this essay, is the fact that discussions of worker management or worker–firm relations rarely consider interplay with corporate law. This is peculiar, given that, as recognized abroad, employment and corporate law are the two principal bodies of legal norms governing corporate internal affairs. Thus, despite the disparate sources of workplace regulation in the United States, we have built ‘borders’ between employment law and other areas of legal inquiry. Such compartmentalization is reinforced by the standard law school curriculum. In this essay, I explore how the study of comparative and international employment law provides students with an opportunity not only to learn about other legal regimes, but also to bridge the divide between employment law and other areas of regulation at home. In the corporate context in particular, it challenges students to reconceptualize the legal relationships among the firm’s stakeholders – workers, managers, investors, and others. Thus, while there is obvious value in examining different approaches to regulating employment, the challenges of practice in a shrinking world, and the tensions between private ordering and public mandates in a globalized economy, the pedagogical significance of the study of the global workplace extends further. It helps us see and then move beyond the artificial substantive borders we have constructed.

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The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process for resolving agency-contractor disputes in light of the growing complexities and importance of Government procurement programs. In introducing the bill, its primary sponsor underscored the need for an efficient adjudicatory process in which both Government agencies and the contracting industries had confidence: One cannot dispute the almost universal expressions of industry and the practicing bar that the system needs change. A good remedies system is a major element in good procurement, and a good system depends not only on fairness and justice, but also on whether the people who are subject to the system believe it is fair and just. In some respects, the CDA fell short of providing a comprehensive framework for Government contract dispute resolution and its stated aim to “provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes.” In particular, the Act did not prescribe any period of time for a party to submit an administrative claim for monetary or other relief after occurrence of the breach or other injury. After sixteen years and many complaints from both Government agencies and contractors about dealing with stale claims, Congress finally adopted a CDA limitations period as part of the Federal Acquisition Streamlining Act of 1994 (“FASA”). That statute of limitations, now codified at 41 U.S.C. §7103(a) (4), provides: Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim. Decisions by BCAs and Federal Circuit courts under the CDA statute of limitations were relatively rare in the several years following the amendment. Since the early 2010s, however, the number of cases has skyrocketed. This spike in limitations disputes undoubtedly is attributable to the massive increase in military procurement following September 11, including unprecedented spending for goods and services in Afghanistan, Iraq, and other conflict zones. The sheer volume of defense contracts and contractual activity often made it difficult for the parties to recognize and submit claims within six years of the occurrence of the underlying facts. In a relatively short period of time, the tribunals with jurisdiction over defense contract litigation had to decide a large number of limitations disputes with little guidance from direct precedent or legislative or regulatory history. These circ*mstances have led to case law that is not always consistent in analysis or reconcilable in outcome. Part I of this Article provides an overview of the architecture and key features of the CDA. Part II examines the salient legislative and regulatory history surrounding the adoption of the CDA statute of limitations. Part III discusses when a CDA claim “accrues” and triggers the six-year time period for submitting a claim. In Part IV, we review some of the major issues that arise under the statute in significant and recurrent types of contractor-agency disputes. Part V concludes with a brief evaluation of whether the CDA statute measures up to the “long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations.” Increasing litigation about limitations periods are challenging CDA tribunals to develop coherent and consistent criteria for parties to determine when the six-year period begins to run on their potential claims. Arguably, the trial judges have made that challenge more difficult by attempting to impose precedent under the Tucker Act’s non- discovery-accrual standard on FAR 31.201’s “discovery” rule language. That challenge has been compounded by a general tendency of the BCAs and COFCs to find that claims do not accrue until the claimant possesses the information on which the claim is based. It is reasonable to conclude that the decisional law has not matured to the ideal, and perhaps, idealistic, state of consisting of “rules ensuring fair and predictable enforcement of statutes of limitations.” It may also be observed that, despite the FAR Council’s express intent and “knew or should have known” definition of “accrual” in FAR 33.201, the decisional law to date has not developed or applied typical discovery rule analysis in examining the facts of the cases or in judgments whether claims are timely or untimely. With rare exception, the decisions have not dismissed as untimely claims based on when a claimant “should have known” or been aware of the relevant facts where the claimant did not have actual knowledge or possess the information showing that it had a claim. As a result, the precedent offers virtually no guidance on issues traditionally fundamental to a “reasonably should have learned” analysis, which include the following: (1) What information is sufficient to put a claimant on “notice”? (2) Does “notice” itself trigger the period (as Gray suggests), or does the statute initiate when a diligent claimant discovers the facts, or reasonably would have discovered the facts? (3) When and under what circ*mstances does a claimant have an affirmative duty to make a reasonable inquiry aimed towards “discovery” of potential claims? (4) When and under what circ*mstances may a claimant rely on the other party’s contractual duties to provide information in deter- mining the nature and extent of any “diligence” expected of the claimant? On a more fundamental level, however, the cases have never ad- dressed whether the FAR’s discovery rule definition of “accrual” appropriately serves as controlling over the definition of the otherwise undefined term “accrual” in section 7103(4)(a) of the CDA. The FAR Council undertook to define the word “accrue” in Section 4(a) pursuant to its general authority to promulgate regulations “as may be necessary to implement this Act,” and not in response to any specific delegation. The failure to examine whether the FAR Council’s adoption of its definition of “accrue” is sufficient under the recent Supreme Court decision relating to proper construction of statutory limitations provisions and, separately, deference to federal agencies in implementing regulations, raises questions of whether any “discovery rule” should apply in CDA statute of limitations cases. In several recent cases, the Supreme Court has sent a strong signal that the courts should not “graft” a “discovery rule” on the term “accrues” or the like in a federal statute of limitations absent “textual, historical, or equitable reasons” to do so. In Gabelli v. SEC, the SEC in 2008 filed a civil enforcement action against defendants for securities law violations between 1999 and 2002 and sought civil penalties, which are subject to a statute of limitations that require an action to be brought “within five years from the date when the claim first accrued.” The SEC argued that the statute is subject to a “discovery rule,” delaying accrual until it discovered or “could have been discovered with reasonable diligence.” The Court rejected that argument: “In common parlance a right accrues when it comes into existence . . . .” . . . Thus the “standard rule” is that a claim accrues “when the plaintiff has a complete and present cause of action.” . . . That rule has governed since the 1830’s when the predecessor to §2462 was enacted. . . . And that definition appears in dictionaries from the 19th century up until today. See, e.g., 1 A. Burrill, A Law Dictionary and Glossary 17 (1850) (“an action accrues when the plaintiff has a right to commence it”); Black’s Law Dictionary 23 (9th ed. 2009) (defining “accrue” as “[t]o come into existence as an enforce- able claim or right”). The Court added: “[T]he cases in which ‘a statute of limitation may be suspended by causes not mentioned in the statute itself . . . are very limited in character, and are to be admitted with great caution; other- wise the court would make the law instead of administering it.’” At a minimum, the CDA forums will need to address, if and when any litigant raises the question, whether “accrues” in section 7103(a) (4) (A) means (1) when the claimant “knew or should have known” of the cause, or (2) in light of Gabelli and other recent precedent, when the claimant “has a complete and present cause of action” regardless of the claimant’s state of mind. In this regard, while the FAR Council and the CDA forums have relied significantly on Tucker Act precedent, neither appears to have considered that, as in the CDA, the Tucker Act does not define “accrue,” and since its enactment, the federal courts consistently have construed “accrue” in the Tucker Act to mean the date when “when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” The Supreme Court, moreover, recently clarified that under the Chevron deference analysis, “deference is not due [a regulatory definition of a statutory term] unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity. . . . Where . . . the canons supply an answer, ‘Chevron leaves the stage.’” Notably, there is no indication in the record that the FAR Council determined that the CDA statute’s use of “accrue” was “ambiguous,” or adopted its “discovery” definition standard to clarify an ambiguity. On the contrary, it noted the “discovery requirement must remain,” notwithstanding little support and much objection among commentators, because “many pricing defect cases have their original events at the beginning of the contract or on contract award, but often cannot be discovered by the Government until years later.” The CDA forum’s “discovery” rule, and the CDA forum’s default use of that definition, may be vulnerable in light of Gabelli, a growing hostility to Chevron deference, and the regulatory record.

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Purpose The purpose of this study was to investigate the stability of the cost performance index (CPI) for environmental remediation projects as the topic is not addressed in the literature. CPI is defined as the earned value of work performed divided by the actual cost of the work, and CPI stability represents the point in time in a project after which the CPI varies by less than 20 percent (measured in different ways). Design/methodology/approach After collecting monthly earned value management (EVM) data for 136 environmental remediation projects from a United States federal agency in fiscal years 2012 and 2013, the authors used the nonparametric Wilcoxon signed-rank test to analyze CPI stability. The authors also used nonparametric statistical comparisons to identify any significant relationships between CPI stability and independent variables representing project and contract characteristics. Findings The CPI for environmental projects did not stabilize until the projects were 41 percent complete with respect to project duration. The most significant factors contributing to CPI stability were categorized into the following managerial insights: contractor qualifications, communication, stakeholder engagement, contracting strategy, competition, EVM factors, and macro project factors. Originality/value As CPI stability for environmental remediation projects has not been reported in the literature, this research provides new insights to help project managers understand when the CPIs of environmental remediation projects stabilize and which factors have the most impact on CPI stability.

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Abstract: The economists agree that actually the African economies did take off. A further growth, however, needs investments. Attracting these investments is precisely one of the purposes of the African Union with her 54 Member States and of - in a geographically more limited area - the OHADA, the organization for the harmonization of business law in mainly French-speaking Africa. The originality of the OHADA consists in the adoption of uniform Acts, which apply in all 17 Member States. It is only fair to say that through these uniform statutes the influence of France and that of the French juridical culture are perpetuated in Africa. In this paper, the OHADA legislation is described, more specifically from the perspective of one of the Member States, namely the Democratic Republic of Congo, the former Belgian colony. An overview of the uniform Acts relating to the following commercial contracts is given: sale, arbitration agreement, carriage of goods by land, lease for professional purposes, lease of the management of a business, agency and brokerage, pledge, surety, and other guarantees. The uniform Acts modernize the outdated law of the Member States. Some of the introduced innovations are the Trade and Personal Property Credit Register and the Trustee for the guarantees. The French law as it stands in our days (including e.g. the trust-like device of the "fiducie") serves as a model, but so does the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles. The latter is not faithfully followed, though. For instance, the remedy of the anticipatory breach (provided for in the CISG) did disappear out of the revised uniform Act relating to the general commercial law. The unilateral avoidance for breach of contract (provided for in the UNIDROIT Principles), on the other hand, is only by exception allowed and the exceptional circ*mstances are not defined. The creditor must normally thus apply to the court for an order resolving the contract. The non-commercial special contracts continue to be regulated by the national law of each Member State. This can produce odd effects, so is the ownership of the goods sold transferred to the buyer at the very moment of the agreement of the contracting parties according to the Congolese Civil Code, while the ownership of the goods sold in Congo by commercial contract takes place at the moment of the delivery since the joining of the OHADA. In the present state of affairs, the general law of contracts (as opposed to the OHADA special rules for the different nominate contracts) remains also part of the national law of the Member States. Obviously, this has to change by all means, if one wants the harmonization of the commercial contracts. This article deals therefore also with a text that should become the cornerstone of the OHADA legislation, i.e., the preliminary draft on general contract law. It follows as close as possible the UNIDROIT Principles and there are good reasons for this, as explained by the draughts man professor M. Fontaine. Unfortunately, this draft is momentarily blocked off backstage by some lawyers steeped in the myth of the French legal culture. It may indeed seem hard to imagine, for instance, that the causa disappears! But then also does the consideration in the UNIDROIT Principles.

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Problem statement. Because of the military aggression of the Russian Federation, the Ukrainian people and the authorities face demanding challenges regarding the reconstruction of the country. One of the main priorities during the recovery in the post- war period is to find new, alternative sources of financing, in particular, using the advantages of public and private partnership (PPP). Analysis of recent research and publications. The proposals of Ukrainian and foreign researchers and practitioners regarding the PPP mechanism application for implementing the reconstruction of public and industrial buildings, construction and management of new highways, and other projects may be valuable for post-war reconstruction of Ukraine. Additional research on the PPP specifics in martial law and the post-war period is necessary to improve the regulatory and institutional support of public and private partnership and investment activities. Highlighting the previously unsolved parts of the general problem. Identification of opportunities for increasing the transparency of relevant measures, improving legislation related to the PPP, including in the field of concession instruments, development of proper institutional support for the PPP are significant areas of research related to the further development of public and private partnership in Ukraine, in particular, in the conditions of martial law and the post-war period. Presentation of the main material. Restoring the functioning of critical infrastructure facilities as soon as possible and gradual reconstruction of other objects which are necessary for the full life of the country are the essential tasks of Ukraine. It is not possible to put the financial burden only on the state and local budgets in a short period. Private investments should be attracted through the PPP mechanism, which, according to the experience of other countries, is one of the most effective ways to attract funds for developing the infrastructure and providing services to consumers in many fields. The experience of countries that have rebuilt their national economies after military conflicts in recent decades is helpful. The legislation of the Republic of Serbia uses the term "Public contract" and the concept of public and private partnership, which enables central and local authorities to meet infrastructure needs. The use of PPP in this country allows attracting private capital for construction and operation of roads, schools, water supply, landfills, and other projects in a lack of budgetary funds. The experience of other countries in promoting PPP development shows the effectiveness of the functioning of specialized institutions. For example, the Kosovo PPP Committee promotes and supports the implementation of PPP in many sectors of the economy to provide more efficient infrastructure and public services at a lower cost. According to the analysis of international experience, the most common reconstruction projects using PPP in the world are those implemented in the road and transport infrastructure, port, railway, and aviation activities, pipeline infrastructure development, stadiums, etc. The historical example of the aid of the United States of America to European countries after the Second World War is valuable. Accordingly, it is institutionally appropriate to provide help to Ukraine through a specialized agency with the participation of donor countries and in agreement with the International Monetary Fund and the World Bank. Similarly to the "Marshall Plan", it would be appropriate for aid recipients to provide detailed plans and reports on investment projects and the progress of their implementation to the created agency that would establish and regulate the relevant criteria and requirements. Creating the national coordinating body in Ukraine, developing a strategy and determining priorities for the country’s recovery, and forming the central and regional project management teams are necessary steps for combining public finance and private investment. It is essential, in particular, in conditions of concession, which provide for the transfer of the state or municipal property to a private investor for temporary use. Moreover, there should be provided the availability of information and transparency of the activities of relevant institutions and equal opportunities for potential private investors to participate in PPP projects for restoring Ukrainian facilities. Conclusions and prospects for further research. The public and private partnership mechanism aims at increasing the efficiency and quality of the implementation of reconstruction projects and commissioning the new facilities within the post-war reconstruction of Ukraine. The transparency of investment activities based on the PPP mechanism and the rational distribution of powers in cooperation with interested parties should play an important role. The experience of European countries that carried out reconstruction after military conflicts indicates the feasibility of developing institutional support for the PPP mechanism and transparency of information and activities of the relevant institutions. It is advisable to conduct further research on the problems of reconstruction of Ukraine involving the public and private partnership mechanism by improving the institutional support of investment processes in Ukraine.

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Current political and legal conditions caused by the medical reform implementation, transformation of legislation, and increased activity of patients to protect their rights, have given rise to the need to find the best forms, methods and means of protecting human rights in the field of medical care. The Council of Europe recommends the governments of member states to ensure that patient safety becomes a cornerstone of all relevant healthcare strategies and defines that, while people can make mistakes in all areas of activity, they can turn those mistakes to experience in order to prevent their repeating, and medical professionals and medical organizations that have reached a high level of security have the potential to recognize errors and learn to avoid them. Given the risky nature of the provision of medical care, it is not always possible to achieve the desired result, as well as the inadequate provision or non-provision of medical care can be harmful to the patient's life and health. According to the practice of law enforcement and the current state of development of these relationships, the patients themselves are more vulnerable and their rights are most often being violated. Given the modern period of medical and legal practice implementation, attention should be drawn to arbitration as an out-of-court jurisdictional form of protecting the subjects’ to legal relations rights in the provision of medical care. Although the arbitral tribunal does not belong to the judicial system, while being a quasi-judicial authority; however, this form is considered to be jurisdictional, since it is a special non-governmental authorized body created to resolve disputes arising from civil and commercial relations. The Constitutional Court of Ukraine notes that the arbitration of disputes between the parties in the field of civil and commercial relations is a kind of non-governmental jurisdictional activity, which arbitration courts conduct on the basis of the laws of Ukraine, including, in particular, the methods of arbitration. In performing the functions of protection, arbitral tribunals do not exercise justice, but arbitration of disputes. The peculiarity of this method of protection is that, on the one hand, it has similar features with state justice (for example, in the aspect of the adoption of binding decisions), but at the same time it is similar with extrajudicial forms of non-jurisdiction, as, in particular, mediation (however, there is a significant difference between them: the mediator does not make decisions, but only contributes to the decision making by the parties). One of the major issues in the scope of the study is the question of the possibility of referring subjects to medical legal relations medical to an arbitration tribunal to resolve disputes arising from the provision of medical care. The criteria for the jurisdiction of arbitration courts include: a) the nature of the controversial legal relationship: arbitration court subordinate cases of civil and commercial relations; b) the subjects of controversial legal relations: legal entities and/or individuals; c) the existence of an arbitration agreement between the parties to the dispute. Novadays, both in national and foreign legal practice, medical arbitrations have been established and operate. In 2009, the first and only Permanent Court of Arbitration was established at the All-Ukrainian Public Organization "Foundation for Medical Law and Bioethics of Ukraine". The purpose of this specialized court is to ensure fair, speedy and effective arbitration of disputes arising from healthcare legal relations and reconciliation of parties to the dispute. However, this court has not yet considered a case due to a number of factors, such as: 1) the lack of legal awareness of the subjects to medical legal relations regarding the possibility of resolving the case through an arbitration court; 2) low level of legal culture of subjects of legal disputess, generating judicial way of disputes resolution as the only possible option; 3) the introduction of amendments to the Law of Ukraine "On Arbitration Courts" in the aspect of excluding from the jurisdiction of arbitration courts disputes related to the protection of consumer rights, including those in the sphere of medical services. The experience of foreign countries in this aspect is positive. Thus, Arbitration Court for Health Insurance and Health, which is a specialized arbitration in healthcare issues, operates at the St. Petersburg Chamber of Commerce and Industry. It is a self-standing permanent authority that resolves disputes arising from civil legal relations between actors and participants in the health insurance system and the healthcare system in St. Petersburg. In the United States, there is the Federal Arbitration Law that encourages the use of arbitration in all matters, if the agreement contains a clause on arbitration. Most states have adopted relevant legislation that regulates health arbitration and imposes special requirements for arbitration agreements. National Medical Arbitration Commission under the Ministry of Health, which exercises medical arbitration and aims to resolve disputes between a doctor and a patient using alternative ways of resolving conflicts, operates in Mexico. All employees and experts are fully funded at the expense of state budget. The Commission is an official body authorized to provide, at the request of judges, expert opinions, which may in future be the basis for judgements. In order to resolve a dispute, whether through the application of a conciliation procedure or arbitration, both parties need to agree that the case would not be tried in court and that the purpose of the Commission's work is not limited to imposition legal liability to a doctor. The Commission is not a judicial body, therefore, it cannot impose penalties, but only gives the parties the opportunity to make reparations under contract. Taking into account the above, the institute of medical arbitration in Ukraine is worth implementation, as the number of medical cases increases and more and more individuals apply for the protection of violated rights in healthcare system. Advantages of resolving disputes that arise in the provision of medical care in arbitration courts are: 1) simplification of the trial procedure; 2) short terms of consideration of the case; 3) possibility of choosing a judge; 4) preservation of confidentiality; 5) freedom to establish rules of arbitration; 6) voluntary involvement in the arbitration process; 7) synthesis of discretion, which is covered by the review procedure, and the imperativeness due to the binding decision of the parties. Functions of medical arbitration are the following: a) protective: protection of rights of subjects of legal relations in the field of medical assistance; b) controlling: it is the component of healthcare quality management system; c) educational: enhancement of legal culture and legal awareness of the subjects of medical legal relations, as well as promotion of confidence in arbitration proceedings. Taking into account foreign experience and national legal regulation, and according to the specific nature of legal relations in the field of medical assistance and the task of arbitration proceedings in defense of non-proprietary rights, it would be advisable to make modifications to reduce the scope of subordinate prohibitions for arbitration, in particular, in cases concerning disputes in the field of consumer rights protection, identifying only those categories that would be banned (the cases for medical services consumers’ rights protection should not fall into scope of such limitation), as well as conducting spectral work on increasing the authority of the arbitration proceedings and the level of competence of arbitrators. Also, it should be noted that tort cases can be subject to arbitration in case entering into agreements (arbitration agreements) between the creditor and the debtor in order to achieve the purpose of the obligation: the reimbursem*nt of the harm done to the victim.

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ABSTRACT This article describes how the U.S. Army developed a new ad hoc medical formation, named Urban Augmentation Medical Task Force for the Department of Defense (DoD) in response to the Coronavirus Disease 2019 pandemic in the Continental United States during the spring of 2020. We review the role of the DoD support of the Federal Emergency Management Agency as a part of Defense Support of Civilian Authorities.

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Abstract Background The United States Food and Drug Administration (FDA) and European Medicines Agency (EMA) have collaborated in good clinical practice (GCP) inspections since September 2009. The two agencies operate under different regulatory frameworks for GCP oversight. No systematic assessments of GCP inspection findings have been reported. Methods We identified common inspections of clinical investigators, sponsors, and contract research organizations conducted by both agencies in support of marketing applications that had the same trial data submitted between 2009 and 2015. We grouped inspection findings into deficiency areas. We reviewed and compared these findings and calculated concordance rate for each deficiency area. Results Twenty-six clinical investigator sites and 23 sponsors/contract research organizations were inspected by both agencies in support of 31 marketing applications during this period. For FDA, the most common GCP findings were deficiencies related to Protocol Compliance for clinical investigator inspections and Trial Management issues for sponsor/contract research organization inspections. For EMA, deficiencies related to Documentation (including Trial Master File) were the most common findings for both clinical investigator and sponsor/contract research organization inspections. There was high concordance, of approximately 90%, for deficiencies related to Protocol Compliance for clinical investigator inspections and Trial Management for sponsor/contract research organization inspections between the two agencies. There was a concordance rate of about 70% for Documentation deficiencies for both clinical investigator and sponsor/contract research organization GCP inspections. Conclusion GCP inspection findings from 49 common clinical investigator and sponsor/contract research organization inspections were comparable, providing support for continued FDA-EMA GCP collaboration.

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Rivaroxaban is a direct factor Xa inhibitor and a non-vitamin K antagonist (VKA) novel oral anticoagulant (NOAC) approved for a number of indications. It has been approved since 2011 by both the United States Food and Drug Administration and the European Medicines Agency for use in patients with non-valvular atrial fibrillation (NVAF) to reduce the risk of stroke and systemic embolism. However, anticoagulant therapy (both VKAs and NOACs) has been associated with an increased risk of bleeding. Although the majority of bleeding events are minor from a clinical standpoint (e.g. ecchymoses), major bleeding events have also been reported. This warrants the need for robust and large-scale clinical and safety data to guide physicians in patient selection, risk stratification, and treatment choice. While NOACs have been subject to a number of randomised clinical trials, observational studies, and real-world registries, large-scale observational studies are still scarce. This article reviews the newly published data from the XANTUS and the United States Department of Defense post-marketing safety surveillance studies, two landmark real-world observational studies on rivaroxaban use and safety in NVAF patients, and puts them in perspective with regard to clinical trial data and other real-world data. Both sets of results were presented at the European Society of Cardiology Congress on 31st August, 2015. This data collection represents more than 45,000 patients from 22 countries.

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ABSTRACT Introduction Obstetric fistulae are a leading scourge for women in developing countries resulting, in severe individual suffering and devastating socio-economic repercussions for her family and community. The underlying causes of obstetric fistula stem from multiple factors to include poor nutrition, early marriage, insufficient education and inferior social status of women as well as substandard medical care. The US Agency for International Development (USAID) has invested more than $100 million globally since 2004 to address these factors as well as support women suffering with fistulae. The ultimate goal is to eradicate obstetric fistula in Bangladesh in the next 20 years. Despite these efforts, nearly 20,000 women in Bangladesh, still suffer with this malady. Methods To close this gap, USAID and the Department of Defense (DOD) developed a novel Interagency Agreement (IAA) leveraging the surgical skills of military health professionals to scale-up the ongoing fistula care program. The agreement outlined three lines of effort: (1) treat existing fistulae by bolstering surgical capacity of the existing USAID fistula care program; (2) promote fistula mitigation with lectures and hands-on teaching of obstetric care as well as safe gynecologic surgery; and (3) assist with advocacy at higher levels of the Bangladesh government. A Bangladesh Fistula Mission Partnership working group was formed to design and implement this IAA. Critical partners from the US Embassy in Dhaka included USAID (Health, Legal, Contracting), the DOD (Office of Defense Cooperation), and Department of State (Regional Security Officer). Partners from the US Army included United States Army-Pacific Command (Surgeon, Legal, Finance, Security Cooperation, Contracting), Regional Health Command-Pacific (Operations, Legal, Public Affairs), and Tripler Army Medical Center (Department of OBGYN, Operations, Public Affairs). Institutional Review Board approval was not required as the treatments offered were standard of care. Results The Tripler Army Medical Center (TAMC) health professionals executed the IAA with one pre-deployment site survey and two surgical missions in 2016–2017. The military team supported the surgical repair of 40 pelvic fistulae and perineal tears and provided operative management for an additional 25 patients with pelvic organ prolapse. Furthermore, the team conducted 19 professional lectures and multiple educational forums at hospitals in Kumudini, Khulna and the premier medical university in Dhaka for over 800 attendees including physicians, nurses and students to help prevent obstetric and surgical fistulae. Importantly, the team assisted USAID as subject matter experts in its advocacy to the Bangladesh Ministry of Health for improved maternity care and regulatory oversight. During the missions, the team enhanced their readiness by exercising individual and collective tasks while exposing personnel to the cultural context of the region. Conclusion This IAA was the first USAID funded and DoD-executed health mission in the US Indo-Pacific Command Area of Responsibility. Direct participation in the IAA enabled TAMC to support the US Indo-Pacific Command Theater Campaign Plan, the Department of Defense Instruction 2000.30 on Global Health Engagements, the USAID Country Development Cooperation Strategy, and the US Ambassadors Integrated Country Strategy Objectives in Bangladesh. This effort can serve as a model for future cooperation between USAID and the DoD.

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Background: The Supply Chain Management System (SCMS) is a contract managed under the Partnership for Supply Chain Management (PFSCM) consortium by the United States Agency for International Development (USAID). SCMS procures commodities for programmes supported by the US President’s Emergency Plan for AIDS Relief (PEPFAR). From 2005 to mid-2012, PEPFAR, through SCMS, spent approximately $384 million on non-pharmaceutical commodities. Of this, an estimated $90m was used to purchase flow cytometry technology, largely for flow cytometry platforms and reagents.Objectives: The purpose of this paper is to highlight the cost differences between low, medium and high utilisation rates of common CD4 testing instruments that have been procured though PEPFAR funding.Method: A scale of costs per test as a function of test volume through the machine was calculated for the two most common CD4 testing machines used in HIV programmes: Becton Dickinson (BD) FACSCount™ and BD FACSCalibur™. Instrument utilisation data collected at the facility level in three selected countries were then used to calculate the onsite cost-per-test experienced in each country.Results: Cost analyses indicated that a target of at least 40% utilisation for FACSCount™ and 15% utilisation for FACSCalibur™, respectively, closely approach maximal per-test cost efficiency. The average utilisation rate for CD4 testing instruments varies widely by country, level of laboratory and partner (0% − 68%).Conclusion: Our analysis indicates that, because cost-per-test is related inversely to sample throughput, the underutilisation of flow cytometry machines is resulting in an increase in average cost-per-test for many instruments.

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Photograph by Gonzalo Echeverria (2010)Declaring War Soon after Al Qaeda’s terrorist attacks on 11 September 2001, the Bush Administration described its new grand strategy: the “Global War on Terror”. This underpinned the subsequent counter-insurgency in Afghanistan and the United States invasion of Iraq in March 2003. Media pundits quickly applied the Global War on Terror label to the Madrid, Bali and London bombings, to convey how Al Qaeda’s terrorism had gone transnational. Meanwhile, international relations scholars debated the extent to which September 11 had changed the international system (Brenner; Mann 303). American intellectuals adopted several variations of the Global War on Terror in what initially felt like a transitional period of US foreign policy (Burns). Walter Laqueur suggested Al Qaeda was engaged in a “cosmological” and perpetual war. Paul Berman likened Al Qaeda and militant Islam to the past ideological battles against communism and fascism (Heilbrunn 248). In a widely cited article, neoconservative thinker Norman Podhoretz suggested the United States faced “World War IV”, which had three interlocking drivers: Al Qaeda and trans-national terrorism; political Islam as the West’s existential enemy; and nuclear proliferation to ‘rogue’ countries and non-state actors (Friedman 3). Podhoretz’s tone reflected a revival of his earlier Cold War politics and critique of the New Left (Friedman 148-149; Halper and Clarke 56; Heilbrunn 210). These stances attracted widespread support. For instance, the United States Marine Corp recalibrated its mission to fight a long war against “World War IV-like” enemies. Yet these stances left the United States unprepared as the combat situations in Afghanistan and Iraq worsened (Ricks; Ferguson; Filkins). Neoconservative ideals for Iraq “regime change” to transform the Middle East failed to deal with other security problems such as Pakistan’s Musharraf regime (Dorrien 110; Halper and Clarke 210-211; Friedman 121, 223; Heilbrunn 252). The Manichean and open-ended framing became a self-fulfilling prophecy for insurgents, jihadists, and militias. The Bush Administration quietly abandoned the Global War on Terror in July 2005. Widespread support had given way to policymaker doubt. Why did so many intellectuals and strategists embrace the Global War on Terror as the best possible “grand strategy” perspective of a post-September 11 world? Why was there so little doubt of this worldview? This is a debate with roots as old as the Sceptics versus the Sophists. Explanations usually focus on the Bush Administration’s “Vulcans” war cabinet: Vice President Dick Cheney, Secretary of Defense Donald Rumsfield, and National Security Advisor Condoleezza Rice, who later became Secretary of State (Mann xv-xvi). The “Vulcans” were named after the Roman god Vulcan because Rice’s hometown Birmingham, Alabama, had “a mammoth fifty-six foot statue . . . [in] homage to the city’s steel industry” (Mann x) and the name stuck. Alternatively, explanations focus on how neoconservative thinkers shaped the intellectual climate after September 11, in a receptive media climate. Biographers suggest that “neoconservatism had become an echo chamber” (Heilbrunn 242) with its own media outlets, pundits, and think-tanks such as the American Enterprise Institute and Project for a New America. Neoconservatism briefly flourished in Washington DC until Iraq’s sectarian violence discredited the “Vulcans” and neoconservative strategists like Paul Wolfowitz (Friedman; Ferguson). The neoconservatives' combination of September 11’s aftermath with strongly argued historical analogies was initially convincing. They conferred with scholars such as Bernard Lewis, Samuel P. Huntington and Victor Davis Hanson to construct classicist historical narratives and to explain cultural differences. However, the history of the decade after September 11 also contains mis-steps and mistakes which make it a series of contingent decisions (Ferguson; Bergen). One way to analyse these contingent decisions is to pose “what if?” counterfactuals, or feasible alternatives to historical events (Lebow). For instance, what if September 11 had been a chemical and biological weapons attack? (Mann 317). Appendix 1 includes a range of alternative possibilities and “minimal rewrites” or slight variations on the historical events which occurred. Collectively, these counterfactuals suggest the role of agency, chance, luck, and the juxtaposition of better and worse outcomes. They pose challenges to the classicist interpretation adopted soon after September 11 to justify “World War IV” (Podhoretz). A ‘Two-Track’ Process for ‘World War IV’ After the September 11 attacks, I think an overlapping two-track process occurred with the “Vulcans” cabinet, neoconservative advisers, and two “echo chambers”: neoconservative think-tanks and the post-September 11 media. Crucially, Bush’s “Vulcans” war cabinet succeeded in gaining civilian control of the United States war decision process. Although successful in initiating the 2003 Iraq War this civilian control created a deeper crisis in US civil-military relations (Stevenson; Morgan). The “Vulcans” relied on “politicised” intelligence such as a United Kingdom intelligence report on Iraq’s weapons development program. The report enabled “a climate of undifferentiated fear to arise” because its public version did not distinguish between chemical, biological, radiological or nuclear weapons (Halper and Clarke, 210). The cautious 2003 National Intelligence Estimates (NIE) report on Iraq was only released in a strongly edited form. For instance, the US Department of Energy had expressed doubts about claims that Iraq had approached Niger for uranium, and was using aluminium tubes for biological and chemical weapons development. Meanwhile, the post-September 11 media had become a second “echo chamber” (Halper and Clarke 194-196) which amplified neoconservative arguments. Berman, Laqueur, Podhoretz and others who framed the intellectual climate were “risk entrepreneurs” (Mueller 41-43) that supported the “World War IV” vision. The media also engaged in aggressive “flak” campaigns (Herman and Chomsky 26-28; Mueller 39-42) designed to limit debate and to stress foreign policy stances and themes which supported the Bush Administration. When former Central Intelligence Agency director James Woolsey’s claimed that Al Qaeda had close connections to Iraqi intelligence, this was promoted in several books, including Michael Ledeen’s War Against The Terror Masters, Stephen Hayes’ The Connection, and Laurie Mylroie’s Bush v. The Beltway; and in partisan media such as Fox News, NewsMax, and The Weekly Standard who each attacked the US State Department and the CIA (Dorrien 183; Hayes; Ledeen; Mylroie; Heilbrunn 237, 243-244; Mann 310). This was the media “echo chamber” at work. The group Accuracy in Media also campaigned successfully to ensure that US cable providers did not give Al Jazeera English access to US audiences (Barker). Cosmopolitan ideals seemed incompatible with what the “flak” groups desired. The two-track process converged on two now infamous speeches. US President Bush’s State of the Union Address on 29 January 2002, and US Secretary of State Colin Powell’s presentation to the United Nations on 5 February 2003. Bush’s speech included a line from neoconservative David Frumm about North Korea, Iraq and Iran as an “Axis of Evil” (Dorrien 158; Halper and Clarke 139-140; Mann 242, 317-321). Powell’s presentation to the United Nations included now-debunked threat assessments. In fact, Powell had altered the speech’s original draft by I. Lewis “Scooter” Libby, who was Cheney’s chief of staff (Dorrien 183-184). Powell claimed that Iraq had mobile biological weapons facilities, linked to Abu Musab al-Zarqawi. However, the International Atomic Energy Agency’s (IAEA) Mohamed El-Baradei, the Defense Intelligence Agency, the State Department, and the Institute for Science and International Security all strongly doubted this claim, as did international observers (Dorrien 184; Halper and Clarke 212-213; Mann 353-354). Yet this information was suppressed: attacked by “flak” or given little visible media coverage. Powell’s agenda included trying to rebuild an international coalition and to head off weather changes that would affect military operations in the Middle East (Mann 351). Both speeches used politicised variants of “weapons of mass destruction”, taken from the counterterrorism literature (Stern; Laqueur). Bush’s speech created an inflated geopolitical threat whilst Powell relied on flawed intelligence and scientific visuals to communicate a non-existent threat (Vogel). However, they had the intended effect on decision makers. US Under-Secretary of Defense, the neoconservative Paul Wolfowitz, later revealed to Vanity Fair that “weapons of mass destruction” was selected as an issue that all potential stakeholders could agree on (Wilkie 69). Perhaps the only remaining outlet was satire: Armando Iannucci’s 2009 film In The Loop parodied the diplomatic politics surrounding Powell’s speech and the civil-military tensions on the Iraq War’s eve. In the short term the two track process worked in heading off doubt. The “Vulcans” blocked important information on pre-war Iraq intelligence from reaching the media and the general public (Prados). Alternatively, they ignored area specialists and other experts, such as when Coalition Provisional Authority’s L. Paul Bremer ignored the US State Department’s fifteen volume ‘Future of Iraq’ project (Ferguson). Public “flak” and “risk entrepreneurs” mobilised a range of motivations from grief and revenge to historical memory and identity politics. This combination of private and public processes meant that although doubts were expressed, they could be contained through the dual echo chambers of neoconservative policymaking and the post-September 11 media. These factors enabled the “Vulcans” to proceed with their “regime change” plans despite strong public opposition from anti-war protestors. Expressing DoubtsMany experts and institutions expressed doubt about specific claims the Bush Administration made to support the 2003 Iraq War. This doubt came from three different and sometimes overlapping groups. Subject matter experts such as the IAEA’s Mohamed El-Baradei and weapons development scientists countered the UK intelligence report and Powell’s UN speech. However, they did not get the media coverage warranted due to “flak” and “echo chamber” dynamics. Others could challenge misleading historical analogies between insurgent Iraq and Nazi Germany, and yet not change the broader outcomes (Benjamin). Independent journalists one group who gained new information during the 1990-91 Gulf War: some entered Iraq from Kuwait and documented a more humanitarian side of the war to journalists embedded with US military units (Uyarra). Finally, there were dissenters from bureaucratic and institutional processes. In some cases, all three overlapped. In their separate analyses of the post-September 11 debate on intelligence “failure”, Zegart and Jervis point to a range of analytic misperceptions and institutional problems. However, the intelligence community is separated from policymakers such as the “Vulcans”. Compartmentalisation due to the “need to know” principle also means that doubting analysts can be blocked from releasing information. Andrew Wilkie discovered this when he resigned from Australia’s Office for National Assessments (ONA) as a transnational issues analyst. Wilkie questioned the pre-war assessments in Powell’s United Nations speech that were used to justify the 2003 Iraq War. Wilkie was then attacked publicly by Australian Prime Minister John Howard. This overshadowed a more important fact: both Howard and Wilkie knew that due to Australian legislation, Wilkie could not publicly comment on ONA intelligence, despite the invitation to do so. This barrier also prevented other intelligence analysts from responding to the “Vulcans”, and to “flak” and “echo chamber” dynamics in the media and neoconservative think-tanks. Many analysts knew that the excerpts released from the 2003 NIE on Iraq was highly edited (Prados). For example, Australian agencies such as the ONA, the Department of Foreign Affairs and Trade, and the Department of Defence knew this (Wilkie 98). However, analysts are trained not to interfere with policymakers, even when there are significant civil-military irregularities. Military officials who spoke out about pre-war planning against the “Vulcans” and their neoconservative supporters were silenced (Ricks; Ferguson). Greenlight Capital’s hedge fund manager David Einhorn illustrates in a different context what might happen if analysts did comment. Einhorn gave a speech to the Ira Sohn Conference on 15 May 2002 debunking the management of Allied Capital. Einhorn’s “short-selling” led to retaliation from Allied Capital, a Securities and Exchange Commission investigation, and growing evidence of potential fraud. If analysts adopted Einhorn’s tactics—combining rigorous analysis with targeted, public denunciation that is widely reported—then this may have short-circuited the “flak” and “echo chamber” effects prior to the 2003 Iraq War. The intelligence community usually tries to pre-empt such outcomes via contestation exercises and similar processes. This was the goal of the 2003 NIE on Iraq, despite the fact that the US Department of Energy which had the expertise was overruled by other agencies who expressed opinions not necessarily based on rigorous scientific and technical analysis (Prados; Vogel). In counterterrorism circles, similar disinformation arose about Aum Shinrikyo’s biological weapons research after its sarin gas attack on Tokyo’s subway system on 20 March 1995 (Leitenberg). Disinformation also arose regarding nuclear weapons proliferation to non-state actors in the 1990s (Stern). Interestingly, several of the “Vulcans” and neoconservatives had been involved in an earlier controversial contestation exercise: Team B in 1976. The Central Intelligence Agency (CIA) assembled three Team B groups in order to evaluate and forecast Soviet military capabilities. One group headed by historian Richard Pipes gave highly “alarmist” forecasts and then attacked a CIA NIE about the Soviets (Dorrien 50-56; Mueller 81). The neoconservatives adopted these same tactics to reframe the 2003 NIE from its position of caution, expressed by several intelligence agencies and experts, to belief that Iraq possessed a current, covert program to develop weapons of mass destruction (Prados). Alternatively, information may be leaked to the media to express doubt. “Non-attributable” background interviews to establishment journalists like Seymour Hersh and Bob Woodward achieved this. Wikileaks publisher Julian Assange has recently achieved notoriety due to US diplomatic cables from the SIPRNet network released from 28 November 2010 onwards. Supporters have favourably compared Assange to Daniel Ellsberg, the RAND researcher who leaked the Pentagon Papers (Ellsberg; Ehrlich and Goldsmith). Whilst Elsberg succeeded because a network of US national papers continued to print excerpts from the Pentagon Papers despite lawsuit threats, Assange relied in part on favourable coverage from the UK’s Guardian newspaper. However, suspected sources such as US Army soldier Bradley Manning are not protected whilst media outlets are relatively free to publish their scoops (Walt, ‘Woodward’). Assange’s publication of SIPRNet’s diplomatic cables will also likely mean greater restrictions on diplomatic and military intelligence (Walt, ‘Don’t Write’). Beyond ‘Doubt’ Iraq’s worsening security discredited many of the factors that had given the neoconservatives credibility. The post-September 11 media became increasingly more critical of the US military in Iraq (Ferguson) and cautious about the “echo chamber” of think-tanks and media outlets. Internet sites for Al Jazeera English, Al-Arabiya and other networks have enabled people to bypass “flak” and directly access these different viewpoints. Most damagingly, the non-discovery of Iraq’s weapons of mass destruction discredited both the 2003 NIE on Iraq and Colin Powell’s United Nations presentation (Wilkie 104). Likewise, “risk entrepreneurs” who foresaw “World War IV” in 2002 and 2003 have now distanced themselves from these apocalyptic forecasts due to a series of mis-steps and mistakes by the Bush Administration and Al Qaeda’s over-calculation (Bergen). The emergence of sites such as Wikileaks, and networks like Al Jazeera English and Al-Arabiya, are a response to the politics of the past decade. They attempt to short-circuit past “echo chambers” through providing access to different sources and leaked data. The Global War on Terror framed the Bush Administration’s response to September 11 as a war (Kirk; Mueller 59). Whilst this prematurely closed off other possibilities, it has also unleashed a series of dynamics which have undermined the neoconservative agenda. The “classicist” history and historical analogies constructed to justify the “World War IV” scenario are just one of several potential frameworks. “Flak” organisations and media “echo chambers” are now challenged by well-financed and strategic alternatives such as Al Jazeera English and Al-Arabiya. Doubt is one defence against “risk entrepreneurs” who seek to promote a particular idea: doubt guards against uncritical adoption. Perhaps the enduring lesson of the post-September 11 debates, though, is that doubt alone is not enough. What is needed are individuals and institutions that understand the strategies which the neoconservatives and others have used, and who also have the soft power skills during crises to influence critical decision-makers to choose alternatives. Appendix 1: Counterfactuals Richard Ned Lebow uses “what if?” counterfactuals to examine alternative possibilities and “minimal rewrites” or slight variations on the historical events that occurred. The following counterfactuals suggest that the Bush Administration’s Global War on Terror could have evolved very differently . . . or not occurred at all. Fact: The 2003 Iraq War and 2001 Afghanistan counterinsurgency shaped the Bush Administration’s post-September 11 grand strategy. Counterfactual #1: Al Gore decisively wins the 2000 U.S. election. Bush v. Gore never occurs. After the September 11 attacks, Gore focuses on international alliance-building and gains widespread diplomatic support rather than a neoconservative agenda. He authorises Special Operations Forces in Afghanistan and works closely with the Musharraf regime in Pakistan to target Al Qaeda’s muhajideen. He ‘contains’ Saddam Hussein’s Iraq through measurement and signature, technical intelligence, and more stringent monitoring by the International Atomic Energy Agency. Minimal Rewrite: United 93 crashes in Washington DC, killing senior members of the Gore Administration. Fact: U.S. Special Operations Forces failed to kill Osama bin Laden in late November and early December 2001 at Tora Bora. Counterfactual #2: U.S. Special Operations Forces kill Osama bin Laden in early December 2001 during skirmishes at Tora Bora. Ayman al-Zawahiri is critically wounded, captured, and imprisoned. The rest of Al Qaeda is scattered. Minimal Rewrite: Osama bin Laden’s death turns him into a self-mythologised hero for decades. Fact: The UK Blair Government supplied a 50-page intelligence dossier on Iraq’s weapons development program which the Bush Administration used to support its pre-war planning. Counterfactual #3: Rogue intelligence analysts debunk the UK Blair Government’s claims through a series of ‘targeted’ leaks to establishment news sources. Minimal Rewrite: The 50-page intelligence dossier is later discovered to be correct about Iraq’s weapons development program. Fact: The Bush Administration used the 2003 National Intelligence Estimate to “build its case” for “regime change” in Saddam Hussein’s Iraq. Counterfactual #4: A joint investigation by The New York Times and The Washington Post rebuts U.S. Secretary of State Colin Powell’s speech to the United National Security Council, delivered on 5 February 2003. Minimal Rewrite: The Central Intelligence Agency’s whitepaper “Iraq’s Weapons of Mass Destruction Programs” (October 2002) more accurately reflects the 2003 NIE’s cautious assessments. Fact: The Bush Administration relied on Ahmed Chalabi for its postwar estimates about Iraq’s reconstruction. Counterfactual #5: The Bush Administration ignores Chalabi’s advice and relies instead on the U.S. State Department’s 15 volume report “The Future of Iraq”. Minimal Rewrite: The Coalition Provisional Authority appoints Ahmed Chalabi to head an interim Iraqi government. Fact: L. Paul Bremer signed orders to disband Iraq’s Army and to De-Ba’athify Iraq’s new government. Counterfactual #6: Bremer keeps Iraq’s Army intact and uses it to impose security in Baghdad to prevent looting and to thwart insurgents. Rather than a De-Ba’athification policy, Bremer uses former Baath Party members to gather situational intelligence. Minimal Rewrite: Iraq’s Army refuses to disband and the De-Ba’athification policy uncovers several conspiracies to undermine the Coalition Provisional Authority. AcknowledgmentsThanks to Stephen McGrail for advice on science and technology analysis.References Barker, Greg. “War of Ideas”. PBS Frontline. Boston, MA: 2007. ‹http://www.pbs.org/frontlineworld/stories/newswar/video1.html› Benjamin, Daniel. “Condi’s Phony History.” Slate 29 Aug. 2003. ‹http://www.slate.com/id/2087768/pagenum/all/›. Bergen, Peter L. The Longest War: The Enduring Conflict between America and Al Qaeda. New York: The Free Press, 2011. Berman, Paul. Terror and Liberalism. W.W. Norton & Company: New York, 2003. Brenner, William J. “In Search of Monsters: Realism and Progress in International Relations Theory after September 11.” Security Studies 15.3 (2006): 496-528. Burns, Alex. “The Worldflash of a Coming Future.” M/C Journal 6.2 (April 2003). ‹http://journal.media-culture.org.au/0304/08-worldflash.php›. Dorrien, Gary. Imperial Designs: Neoconservatism and the New Pax Americana. New York: Routledge, 2004. Ehrlich, Judith, and Goldsmith, Rick. The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. Berkley CA: Kovno Communications, 2009. Einhorn, David. Fooling Some of the People All of the Time: A Long Short (and Now Complete) Story. Hoboken NJ: John Wiley & Sons, 2010. Ellison, Sarah. “The Man Who Spilled The Secrets.” Vanity Fair (Feb. 2011). ‹http://www.vanityfair.com/politics/features/2011/02/the-guardian-201102›. Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. New York: Viking, 2002. Ferguson, Charles. No End in Sight, New York: Representational Pictures, 2007. Filkins, Dexter. The Forever War. New York: Vintage Books, 2008. Friedman, Murray. The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy. New York: Cambridge UP, 2005. Halper, Stefan, and Jonathan Clarke. America Alone: The Neo-Conservatives and the Global Order. New York: Cambridge UP, 2004. Hayes, Stephen F. The Connection: How Al Qaeda’s Collaboration with Saddam Hussein Has Endangered America. New York: HarperCollins, 2004. Heilbrunn, Jacob. They Knew They Were Right: The Rise of the Neocons. New York: Doubleday, 2008. Herman, Edward S., and Noam Chomsky. Manufacturing Consent: The Political Economy of the Mass Media. Rev. ed. New York: Pantheon Books, 2002. Iannucci, Armando. In The Loop. London: BBC Films, 2009. Jervis, Robert. Why Intelligence Fails: Lessons from the Iranian Revolution and the Iraq War. Ithaca NY: Cornell UP, 2010. Kirk, Michael. “The War behind Closed Doors.” PBS Frontline. Boston, MA: 2003. ‹http://www.pbs.org/wgbh/pages/frontline/shows/iraq/›. Laqueur, Walter. No End to War: Terrorism in the Twenty-First Century. New York: Continuum, 2003. Lebow, Richard Ned. Forbidden Fruit: Counterfactuals and International Relations. Princeton NJ: Princeton UP, 2010. Ledeen, Michael. The War against The Terror Masters. New York: St. Martin’s Griffin, 2003. Leitenberg, Milton. “Aum Shinrikyo's Efforts to Produce Biological Weapons: A Case Study in the Serial Propagation of Misinformation.” Terrorism and Political Violence 11.4 (1999): 149-158. Mann, James. Rise of the Vulcans: The History of Bush’s War Cabinet. New York: Viking Penguin, 2004. Morgan, Matthew J. The American Military after 9/11: Society, State, and Empire. New York: Palgrave Macmillan, 2008. Mueller, John. Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them. New York: The Free Press, 2009. Mylroie, Laurie. Bush v The Beltway: The Inside Battle over War in Iraq. New York: Regan Books, 2003. Nutt, Paul C. Why Decisions Fail. San Francisco: Berrett-Koelher, 2002. Podhoretz, Norman. “How to Win World War IV”. Commentary 113.2 (2002): 19-29. Prados, John. Hoodwinked: The Documents That Reveal How Bush Sold Us a War. New York: The New Press, 2004. Ricks, Thomas. Fiasco: The American Military Adventure in Iraq. New York: The Penguin Press, 2006. Stern, Jessica. The Ultimate Terrorists. Boston, MA: Harvard UP, 2001. Stevenson, Charles A. Warriors and Politicians: US Civil-Military Relations under Stress. New York: Routledge, 2006. Walt, Stephen M. “Should Bob Woodward Be Arrested?” Foreign Policy 10 Dec. 2010. ‹http://walt.foreignpolicy.com/posts/2010/12/10/more_wikileaks_double_standards›. Walt, Stephen M. “‘Don’t Write If You Can Talk...’: The Latest from WikiLeaks.” Foreign Policy 29 Nov. 2010. ‹http://walt.foreignpolicy.com/posts/2010/11/29/dont_write_if_you_can_talk_the_latest_from_wikileaks›. Wilkie, Andrew. Axis of Deceit. Melbourne: Black Ink Books, 2003. Uyarra, Esteban Manzanares. “War Feels like War”. London: BBC, 2003. Vogel, Kathleen M. “Iraqi Winnebagos™ of Death: Imagined and Realized Futures of US Bioweapons Threat Assessments.” Science and Public Policy 35.8 (2008): 561–573. Zegart, Amy. Spying Blind: The CIA, the FBI and the Origins of 9/11. Princeton NJ: Princeton UP, 2007.

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Under contract to BIO-WEST, Inc., Gray & Pape, Inc., of Houston, Texas, conducted a Phase I marine archaeological survey for the proposed Webster to Seadrift Pipeline Project in Calhoun and Jackson counties, Texas. Enterprise Products Operating LLC sponsored the archaeological survey. All marine fieldwork and reporting activities were completed with reference to state law (Antiquities Code of Texas [Title 9, Chapter 191 of the Texas Natural Resources Code] and Texas State rules found in the Texas Administrative Code [Title 13, part 2, Chapters 26 and 28]) for cultural resources investigations. Work was completed under Texas Antiquities Permit Number 9004. The United States Army Corps of Engineers, Galveston District has been identified as the lead federal agency. All project records are curated at the Center for Archaeological Studies at Texas State University in San Marcos, Texas. The Phase I underwater archaeological investigation assessed the number, locations, cultural affiliations, components, spatial distribution, data potential, and other salient characteristics of potential submerged cultural resources within the proposed project area. The linear project area includes approximately 391 hectares (967 acres) of submerged land in Calhoun and Jackson counties, Texas. The investigation included a comprehensive magnetic and acoustic remote sensing survey and target analysis designed to determine the presence or absence of potentially significant remote sensing targets that might be affected by proposed project activity. Background research revealed that there are no previously recorded sites within the Area of Potential Effects and that there have been two previous cultural resource surveys (Pearson et al. 1993; Gearhart 2016), conducted between 1993 and 2016, partially within the project Area of Potential Effects. Research also revealed that the 50-meter (164-foot) avoidance areas, as mandated by Texas Administrative Code, Title 13, Part 2, Chapter 26, for three previously recorded magnetic anomalies (Mag 7–Mag 9) identified by Gearhart (2016) are partially located within the survey area. These three magnetic anomalies were recommended for avoidance as they represent potential cultural resources. The grid for the remote sensing survey within the open waters of Lavaca Bay consisted of a total of 19 track lines (Lines 1–16, 18,19, 37, and 38) at 20-meter (65.6-foot) line spacing oriented parallel to an existing pipeline right-of-way. The remaining portions of the project area within Lavaca River and Catfish Bayou were surveyed at 20-meter (65.6-foot) line spacing (Lines 0, 17, 22–35, and 39–43) oriented perpendicular to the survey corridor. The marine field investigations consisted of a magnetometer and side-scanning sonar investigation of the proposed project area in safely navigable waters between July 29 and 30, 2019, and required approximately 60-person hours to complete. A total of 284.6 kilometers (176.9 linear survey miles) were transected utilizing the magnetometer and side-scan sonar. Comprehensive analysis of the magnetic and acoustic data recorded for this project resulted in the identification of 127 discrete magnetic anomalies, with 80 meeting or exceeding the Pearson and Linden (2014) 50-gamma/65-foot criteria. A total of 43 of the 80 anomalies that meet or exceed the 50-gamma/65-foot criteria are associated with existing pipelines. While the remaining 37 anomalies, consisting of 22 magnetic targets, meet and/or exceed the 50-gamma/65-foot criteria, they do not meet Gearhart’s 2011 magnetic orientation and spatial criteria to be considered potentially significant. They are interpreted as relic oils wells, ferrous debris scatters associated with the oil and natural gas industries and recreational and commercial fishing activities, and miscellaneous debris from previous tropical storms and hurricanes. Review of the sonar record revealed two distinct acoustic targets (SST-1 and SST-2) consisting of the remnants of a subsequent exploratory oil well and a subsided pipeline trench. Based on the applied criteria, these magnetic and acoustic targets do not exhibit any characteristics associated with historic shipwrecks and/or other significant submerged cultural resources. As such, the recommended management action for magnetic targets, Numbers 1–22, as well as acoustic targets, SST-1 and SST-2, is no further archaeological investigations. One magnetic target, Number 23, situated outside of the Area of Potential Effects, is associated with previously recorded anomaly Mag 8, which was deemed as potential historic shipwreck remains. While it is located outside of the Area of Potential Effects, it was recorded within the 50-meter (164 foot) avoidance buffer of previously recorded anomaly Mag 8. No magnetic signatures were recorded within the portion of the avoidance buffer that is within the Area of Potential Effects. The lack of any residual magnetic signatures of the anomaly within the Area of Potential Effects indicate that no portions of the ferrous source objects for Mag 8 extend into the current survey area or the construction footprint; and therefore, the submerged target or its avoidance buffer will not be impacted by the proposed activities. Additionally, no magnetic signatures associated with previously recorded anomalies Mag 7 and Mag 9 were identified in the 50-meter (164-foot) avoidance buffers within the Area of Potential Effects. The lack of any residual magnetic signatures of anomalies (Mag 7 and Mag 9) within the Area of Potential Effects indicate that no portions of the ferrous source objects for these two magnetic anomalies extend into the current survey area or the construction footprint; and therefore, the submerged targets or their avoidance buffers will not impacted by the proposed activities. The recommended management action for the portions of the 50-meter (164-foot) avoidance buffers for Mag 7, Mag 8, and Mag 9 that extend partially into the current survey area is avoidance from any bottom disturbing activities. If bottom disturbing activities within the buffer buffers cannot be avoided, additional marine archaeological investigations in the form of diver-ground-truthing will be required to determine the nature and historical significance of the source magnetic objects.

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Was it seven or eight summers ago, when the sun first became our enemy and set our skin on fire? We find it now in the normality of strange weather and the telescoping of the seasons; wherein it’s 27 degrees and there are no leaves yet on the trees, a hot August day in April. We watch the media spectacles of monster storms and mud slides that arrive with increasing force and frequency. And we despair over the death of the Polar bears, starving because the Arctic sea-ice upon which they catch seals can no longer bear their weight. Up there, we hear, the permafrost is melting, and the Inuit of Baffin Island are witnessing thunder and lightning for the first time in their lives. Down here, along the southern border of Canada, we are just beginning to feel the fear in our guts. The ambivalence and discomfort which we may feel about these changes – whose effects are as intimate as they are remote – speak to a more subtle perception that everything has now come undone: realigned and re-made by forces beyond our control, and yet, of our own making. That significant futurity which was once the sine qua non of a rational modernity – the self-confident assurance that things can only get better and never worse – has fallen to the wayside of our collective memory, useful now only for the purposes of Hallmark greeting cards. As usual, we suffer from a failure of imagination, wherein the only facts worth knowing become unspeakable, verboten vulgarities never to be uttered out-loud in polite company. What accounts for this silence? While we may increasingly feel that something is amiss in the world, this experience is not authorised or legitimated by the propositions of commercial media or conventional thought. What are the social consequences of this gap between the corporeal experience of global warming and its public representation? Can such affectual experience be mined as a means to advocate social change? In Canadian and American commercial media, discussion of “global warming” is still largely absent (Ungar; Weingart, Engels and Pansegrau). When the hurricanes Katrina and Rita whirled into Level 5 status across the very hot waters of the Gulf of Mexico this Fall, mention of global warming was quickly flicked away as a minor irritant. Such omissions are not surprising, given the political economy of American media. The automobile industry spends US$3 billion out of a total of US$9 billion annual expenditures of all advertising on network television. Not one of these ads is for hybrid cars. It is also our idea of nature that allows us to relegate matters of the environment to the periphery of our concerns. In its more piously Wordsworthian vestiges, nature is deemed as self-evident and unaltered by the ravages of time. It’s this temporal stasis attributed to nature that allows us to absolve ourselves from its fate. Nature, after all, is the non-human. And while the argument that only humans make history – that only humans transform and innovate themselves and their environment and manipulate the dimensions of time – can be recognised as a neat piece of social construction built in the interests of human conquest, we are still reticent to acknowledge nature on its own terms. Val Plumwood has argued that, “if the category of ‘nature’ is seen as phony, if it can only appear when suitably surrounded by scare quotes, [then] we are less likely to be inspired by appeals to nature’s integrity in [it’s defence]” (3). Somehow, believing in nature slides into an unseemly essentialism or a fetishistic form of love. Perhaps it’s not surprising then that so many people do not feel compelled to come to nature’s defense. Survey research from the United States, published in 2000 and 2003, shows that while 90% of Americans have now heard of global warming and believe it’s an important issue, a much smaller percentage are actually concerned about it (Stamm, Clark and Eblacas; Leiserowitz). Other matters such as employment, the economy and the rising costs of housing take priority over environmental issues. Furthermore, the research finds that while espousing environmental values, only a small percentage of respondents would self-identify as “environmentalist”. While being pro-environment is perceived as “having good character”, having too much of this good character is a bad thing. Still, can’t they feel what’s going on? Certainly here on the coast of British Columbia, where rainforests still run along the ocean’s edge, something has changed. Nothing is quite as ‘temperate’ as it once was. The weather shifts unexpectedly and dramatically, and the summers have become too hot and too dry. Global warming has brought a new atmosphere to the forests, as if under all this unfamiliar dryness and dust a latent extinction is beginning to stir. This current prospect – the death of not just a million species of plant and animal life (Kirby), but of countless human lives – may be redirecting our attention now to the interdependent relation, the fluid interchanges, between human and non-human worlds. This deadly probability may engender a new vitality, new ways of feeling life. “Nature”, as Michel Serres puts it, “is reminding us of its existence” (29). The challenge posed by this recognition prohibits the perception of nature in static terms, as a commodity or as handy oubliette for societal debris. In so doing, feeling the life of nature allows consideration of the ways in which nature and human culture have long been wedded to one another, not just in terms of the semiotic operations of a binarism, but as a complex and reciprocal project of interdependent life. Recognition of the interdependence of human and non-human life may also entail a particular affectual sensibility – a means of feeling life as it resonates against our skin and fills our senses. In this moment, “everything that is, resounds”. Here, “the sense and recognisability of things … do not lie in conceptual categories in which we mentally place them, but in their positions and orientations which our postures address” (Lingus 59). It’s not a question then of what nature means to us, but does nature do with us? How does it make us feel? Emotion has remained discursively submerged in discussions of climate change, not only because the stakes are such that only the scientists, with their particular authority and legitimacy, are afforded a voice, but also because it threatens the legitimacy of a formal rationalist representation of nature which excludes the non-human from the purview of ethical consideration. An affectual relationship to the natural world does have its difficulties. “Feeling nature” is based upon some sort of understanding with it, a form of competency, of ‘knowing your way around’. Such knowledges are often bound by class: the privileged remit of the romantic individual in search of an authentic experience, or the uncomfortable locale of hard and often violent labour. Still, it is in feeling the shrinking of life into the shadows of an uncommon heat that we may use this sentience to good effect. In his book The Natural Contract, Michel Serres argues that, “through exclusively social contracts, we have abandoned the bond that connects us to the world. … What language do the things of the world speak that we might come to an understanding of them contractually? … In fact, the Earth speaks to us in terms of forces, bonds and interactions … each of the partners in symbiosis thus owes … life to the other, on pain of death” (39). Long ago, when we were young, many of us made good money working in the coastal forest of British Columbia – either cutting it or milling it or planting it. I was alone there once for 6 weeks and was haunted daily by a raven who would track my movements through the trees, muttering incantations and clicks. By the time I walked out of the woods I was nearly speechless and it took me weeks to recover the easy cultural behaviour that came so naturally before. A friend of mine once had the job of getting rid of the young poplar and alder trees that colonise the logging slash. His task was to “cut and squirt”: to slash the trees with a machete and squirt poison inside the cut. Maybe it was a bad case of anthropomorphism, or maybe it was the drugs, but to this day, he swears he could hear the trees scream. References Kirby, Alex. “Climate Risk to Million Species.” BBC News Online, U.K. Edition, 7 Jan. 2004. Leiserowitz, A. American Opinions on Global Warming: Project Results. Eugene: U of Oregon, 2003. Lingus, Alphonso. The Imperitive. Bloomington: Indiana UP, 1998. Plumwood, Val. “Nature as Agency and the Prospects for a Progressive Naturalism.” Capitalism, Nature, Socialism 4 (2001): 3-32. Serres, Michel. The Natural Contract. (Trans. E. MacArthur and W. Paulson), Ann Arbor: Michigan UP, 1995. Stamm, K.R., F. Clark and P.R. Eblacas. “Mass Communication and Public Understanding of Environmental Problems: The Case of Global Warming.” Public Understanding of Science 9 (2000): 219-37. Ungar, S. “Is Strange Weather in the Air?: A Study of U.S. National News Coverage of Extreme Weather Events.” Climatic Change 41 (1999): 133-50. Weingart, P.A., A. Engels and P. Pansegrau. “Risks of Communication: Discourses on Climate Change in Science, Politics and the Mass Media.” Public Understanding of Science 9 (2000): 261-83. Citation reference for this article MLA Style Seaton, Beth. "Feeling the Heat." M/C Journal 8.6 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0512/08-seaton.php>. APA Style Seaton, B. (Dec. 2005) "Feeling the Heat," M/C Journal, 8(6). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0512/08-seaton.php>.

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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. If we wish the shadow of hierarchy to continue to be productive, then finding a social architecture to shape the emergence and directionlessness of socio-technical systems like platforms is an important step in the continued evolution of the shadow of hierarchy. References Ajunwa, Ifeoma. “Age Discrimination by Platforms.” Berkeley J. Emp. & Lab. L. 40 (2019): 1-30. Amoore, Louise. Cloud Ethics: Algorithms and the Attributes of Ourselves and Others. Durham: Duke University Press, 2020. ———. “Cloud Geographies: Computing, Data, Sovereignty.” Progress in Human Geography 42.1 (2018): 4-24. Ananny, Mike, and Kate Crawford. “Seeing without Knowing: Limitations of the Transparency Ideal and Its Application to Algorithmic Accountability.” New Media & Society 20.3 (2018): 973–89. Attoh, Kafui, et al. “‘We’re Building Their Data’: Labor, Alienation, and Idiocy in the Smart City.” Environment and Planning D: Society and Space 37.6 (2019): 1007-24. Baldwin, Carliss Y., and C. 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