The idea that the House of Lords should be elected is built on sound ideological foundations – democracy is good. I think it really is good, I just don’t see why people need multiple identical elected representatives to represent them. I think, if the second house will be made up by people voted for by the same people and arranged in the same political parties who will decide along party lines on the same legislation, this only happens because we assume we need a second house at all. Why would we? It’s exactly the same as the lower house.

I don’t want an elected House of Lords, I want a differently constituted upper house or I want us to save a bit of money by getting rid of it entirely. The whole point of the House of Lords is that it’s supposed to be able to resist the hue and cry of the masses and look at things objectively, the whole point of the House of Commons is that it’s supposed to listen to the voters.

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The Slackoisie is a fairly specific term for a made up, blawgosphere word. It’s not a generational thing, it’s a personality thing. I think the biggest issue is the importance you attach to your opinion – in that how critical it is that others agree with it. I’d think it’s a very human thing to say “how don’t you agree with me? I’m right” but that’s why I suspect I’m the sort of person that Greenfield is discussing.

To relate the problem of relying on opinions in law to law the way to write a good law essay is, surprisingly, using lots of law. However law does not come from your opinions, it comes from other people’s opinions. My mooting tutor memorably advised the society that the ideal submission should have you regretfully explaining that, try as you might, there is simply no other way to read the previous decisions other than to benefit your side. It’s not your opinion, it’s the law. Basically an academic law degree is all about learning to wield authoritative opinions to accomplish what you want in life. It’s not the sort of thing that really strong opinions would like, I’d have thought, but there you go.

He posts a litmus test – an email exchange between a student and a professor at NYU. I’m going to call it a Rorschach Blot – it’s not a question you answer, what’s important is what you make of it.

It involves a student ringing up to complain about being ejected from the class because he or she was an hour late and this isn’t a bad thing because he was actually just trying out lots of different classes that evening and that was why he was late getting there. The professor in turn clarifies that the student was jumping between multiple classes with the intention of finding one that he liked.

The professor did not seem to be very impressed by this, he actually tells the student to pull himself together, it looks a little like this:

Sent: Tuesday, February 9, 2010 7:15:11 PM GMT -08:00 US/Canada Pacific Subject: Brand Strategy FeedbackProf. Galloway,

I would like to discuss a matter with you that bothered me. Yesterday evening I entered your 6pm Brand Strategy class approximately 1 hour late. As I entered the room, you quickly dismissed me, saying that I would need to leave and come back to the next class. After speaking with several students who are taking your class, they explained that you have a policy stating that students who arrive more than 15 minutes late will not be admitted to class.

As of yesterday evening, I was interested in three different Monday night classes that all occurred simultaneously. In order to decide which class to select, my plan for the evening was to sample all three and see which one I like most. Since I had never taken your class, I was unaware of your class policy. I was disappointed that you dismissed me from class considering (1) there is no way I could have been aware of your policy and (2) considering that it was the first day of evening classes and I arrived 1 hour late (not a few minutes), it was more probable that my tardiness was due to my desire to sample different classes rather than sheer complacency.

I have already registered for another class but I just wanted to be open and provide my opinion on the matter.

Regards,
xxxx

—
xxxx
MBA 2010 Candidate
NYU Stern School of Business
xxxx.nyu.edu
xxx-xxx-xxxx

The professor’s reply:

From: To: “xxxx” Sent: Tuesday, February 9, 2010 9:34:02 PM GMT -08:00 US/Canada Pacific Subject: Re: Brand Strategy Feedbackxxxx:

Thanks for the feedback. I, too, would like to offer some feedback.

Just so I’ve got this straight…you started in one class, left 15-20 minutes into it (stood up, walked out mid-lecture), went to another class (walked in 20 minutes late), left that class (again, presumably, in the middle of the lecture), and then came to my class. At that point (walking in an hour late) I asked you to come to the next class which “bothered” you.

Correct?

You state that, having not taken my class, it would be impossible to know our policy of not allowing people to walk in an hour late. Most risk analysis offers that in the face of substantial uncertainty, you opt for the more conservative path or hedge your bet (e.g., do not show up an hour late until you know the professor has an explicit policy for tolerating disrespectful behavior, check with the TA before class, etc.). I hope the lottery winner that is your recently crowned Monday evening Professor is teaching Judgement and Decision Making or Critical Thinking.

In addition, your logic effectively means you cannot be held accountable for any code of conduct before taking a class. For the record, we also have no stated policy against bursting into show tunes in the middle of class, urinating on desks or taking that revolutionary hair removal system for a spin. However, xxxx, there is a baseline level of decorum (i.e., manners) that we expect of grown men and women who the admissions department have deemed tomorrow’s business leaders.

xxxx, let me be more serious for a moment. I do not know you, will not know you and have no real affinity or animosity for you. You are an anonymous student who is now regretting the send button on his laptop. It’s with this context I hope you register pause…REAL pause xxxx and take to heart what I am about to tell you:

xxxx, get your shit together.

Getting a good job, working long hours, keeping your skills relevant, navigating the politics of an organization, finding a live/work balance…these are all really hard, xxxx. In contrast, respecting institutions, having manners, demonstrating a level of humility…these are all (relatively) easy. Get the easy stuff right xxxx. In and of themselves they will not make you successful. However, not possessing them will hold you back and you will not achieve your potential which, by virtue of you being admitted to Stern, you must have in spades. It’s not too late xxxx…

Again, thanks for the feedback.

Professor Galloway

I actually think the professor is right to tell the postgraduate student that he can’t wander into classes an hour late. I think he’s really right to point out that you want to get the easy stuff right. I also think that the reason people are seeing this as an incredibly snarky email is that it is an incredibly snarky email, it apparently has to be. “Again, thanks for the feedback” concludes the lecturer, not (mainly) because he’s being snarky but because the student actually was giving him feedback on his performance.

And that’s just totally crazy.

commits or participates in acts of terrorism, prepares for, promotes or encourages terrorism or is otherwise concerned in terrorism”.

The reason I mention this is that I last heard it being used by Alan Johnson as a nuclear option against Islam4UK, the attention seeking publicity whore of a personal quest for fame that wanted to protest the killing of Muslims by British soldiers by marching with fake coffins through the place where British soldiers were marching with real coffins and so proving that you don’t need to be big, a real group or even serious about doing it to be terrifically inappropriate.

I’ve always regarded the implications of proscribing a group under the 2000 Act as ludicrously excessive – it makes it a custodial, terrorist related offence to not report seeing someone displaying the group’s logo, even if it’s being displayed ironically. It also makes it possible to go to jail for a terrorist offence if you own an ironic t-shirt. It’s just false advertising to me – these are just not what you think of when you hear “terrorist offences” and yet the Terrorism Act is what you’d be charged under.

However, the recent judgement in the trial of R (Binyam Mohammed) v Secretary of State for Foreign and Commonwealth Affairs and particularly Lord Neuberger’s comments at paragraph 168, which are currently unpublished, but to quote Jonathan Sumption were something like:

1. that the Security Service does not in fact operate in a culture that respects human rights or abjures participation in coercive interrogation techniques;
2. that this was in particular true of Witness B whose conduct was in this respect characteristic of the service as a whole (‘it appears likely that there were others’);
3. that officials of the Service deliberately misled the Intelligence and Security Committee on this point;
4. that this reflects a culture of suppression in its dealings with the Committee, the Foreign Secretary and indirectly the Court, which penetrates the service to such a degree as to under any UK government assurances based on the Service’s information and advice; and
5. that the Service has an interest in suppressing information which is shared, not by the Foreign Secretary himself (whose good faith is accepted), but by the Foreign Office for which he is responsible.

So, bearing in mind point i, are we in a position where the Home Secretary may make it a crime to be a member of our intelligence services? Obviously not, even I’m not serious about the idea and I’m suggesting it on my blog. The thing is, he could.

NB: The inhuman treatment (David Miliband is at pains to point out that “inhuman treatment” isn’t quite as bad as “torture”, which is the sort of statement that makes you want to punch Foreign Secretaries in the face) Binyam Mohammed received includes “genital mutilation” – basically while Mohammed was in Morocco someone, presumably to make him answer questions, took a razor blade to his gentleman area. Speaking as a guy this is never acceptable and means that I, and half of the population of the world, sympathise with him on general principle. Great job, SyS.

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Jeremy Vine has done a Panorama report on the new child/agencies-which-deal-with-children protection scheme that is coming into force in England & Wales and Northern Ireland soon. I’m happy that it isn’t coming Scotland, I found paying for a Disclosure Scotland report for some voluntary work in high school to be bad enough. I’m a well behaved person and I understand that getting convicted of child sexual abuse is a suboptimal way to enter the graduate employment market. Also, like just about everyone else in the country, that’s not how I roll. There’s lot of doubt about this scheme but basically I think it sounds horrible – basically the government collect a lot of stuff, I’m unsure if it’s called “data” if it’s unverified rumours, about you and decide from that if you like kids an appropriate amount. They then charge you money to tell you aren’t a paedophile. I think that’s a nice touch.

I find the idea that they’re now looking for gossip in making their decisions to be utterly horrifying – the idea that your employment status effectively gets to be determined by the nosy woman who doesn’t like you because you have a blue door on your house or something makes my skin crawl. If you’re going to listen to absolutely anything the scope for abuse is insane. It’s like something out of the Crucible, I can see why they thought it might be useful but I can’t believe it actually got through Parliament.

Of course the biggest worry with these things is that the government will leave your data on the train somewhere. It’s not like it hasn’t happened before. I was horrified to see a weaselly “I am not aware of anything from the ISA [Independent Safeguarding Authority - I know, right?] being left on train” come from its chairman’s mouth on Panorama. They’re new, I’d have preferred a straight “we’ve not left anything on the train.” I’d be interested to see if they would agree to be bound by a personal undertaking – something like “my personal data will be collected, stored and processed according to data protection principles.” Having something extra and actionable should be a good way to get inaccurate personal information amended quickly.

The ISA is pretty stoic about the fact that it is difficult to prove how effective it is but appears to be going ahead with their system anyway. However, the best statistic in the episode was from checking how many calls to Childline last year were about sexual abuse by people who would be covered by the new scheme – 13. That’s not the casual way estate agents talk about thousands, that’s three more than ten.

NB: The new regime only applies to E&W and NI applies to the UK as a whole, Scotland follows later in the year, and only to people who deal with children on a weekly basis or more and through a child caring body, so family friends are OK (although I suppose you can apply regardless). However if that’s your situation it’s a crime to come into contact with children without this document, so it’s something to sort out quickly.

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In fact, I think one of the most vital things that the state should limit itself to doing is, when it finds one citizen attempting to end the life of another, to come along and ask in a comically plummy voice, “what’s going on here then?”

I was reading Gilderdale’s trial was horrific but necessary to retain a vital principle – Madeline Bunting in today’s Guardian and thought that she was really spot on. I have my own issues with assisted suicide but I think her observations are vitally important too, particularly in that it’s important not to subtly (or not) encourage people to end their own lives. I’d hope you wouldn’t tell a man on a bridge to jump, so you wouldn’t do it to an elderly relative either.

I think calls that the Gilderdale trial was a mistake are entirely wrong. I think that we need to be careful to watch who we put on trial but if someone is connected with the suspicious, non-natural death of a human being (let’s hypothetically say my death) they should damn well have to explain what they were doing. People who try to end others’ lives are not the sort of people we need to keep out of court. I don’t like the idea of accepting things which let you kill people – I don’t think it ends well.

I think if you kill someone in self defence you should have to show that it was self defence, if you were provoked you should have to show that you were provoked. Self defence lets you get away with murder, we really need to be careful with that. I think if someone claims they killed someone to end their suffering they should equally have to show that they did it to end their suffering and regardless, because every single murder victim in history was going to die eventually anyway, if they were actually OK with living in suffering that should never ever be a defence.

The problem with all of homicide defences based on the victim’s conduct (self defence, battered wife syndrome, assisted suicide etc) is that it is very hard to get the victim’s side of things afterwards. It’s hard to say you didn’t hit your wife after your murder, for example, and it’s also hard to say you didn’t consent to your death. If someone wishes to escape responsibility on the basis that you wanted to die and they were only carrying out your wishes I would humbly want someone to check that out.

We don’t have a legal right to die, we have an absolute certainty to it. What we do have is a right to life. If someone dies, potentially in very violent circumstances, it is a big deal and we should accept that. There are many reason that a carer might kill their patient, or even a mother might kill her daughter which have nothing to do with dignity or choice or love or anything else that is good.

I would hate for my murderer to get off because I was sick. Don’t just take their word for it.

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I particularly like the built in iBooks program. I actually own an iBook so I find this slightly confusing, the iBook was a laptop and iBooks is an online ebook store. I really think that having such a big player in the market will really change what we see in the ebook market. I hope it means that we will have the sort of really amazing media features that you can do with computer technology. The New York Times has already shown off an application where you can read their newspaper and have inline video content. I think that’s really very impressive. Apple is not a publishing company, it wants to sell books so that people have a reason to buy their iPad device. Therefore things which are good for selling the iPad will be pushed for. I think that bodes well for user experience. Also they’re selling them in ePub format and more stores should do that.

There’s been a real internet backlash against it. I think this is probably because it’s been the single biggest tech story of the decade. The “Apple Tablet” was the big non-surprise of the year. People expected it to just about make your tea for you. The main complaint is that it’s just a big iPhone. I think this seems to forget that people really like their iPhones.

I think the comments that the name is stupid because it sounds like a feminine hygiene product are just facile. That gives the anti Mac brigade a bad name.

I haven’t used one (of course I haven’t) but I think it goes without saying that it will sell like hot cakes and some market will be affected by it.

The big news is that they’ve ported iWork to the new device which means that you can actually do pretty honest work on what is primarily a music, book, movie, photo device. I don’t know how much work will be done on it but the potential is there and that’s a good reason to consider buying it.

Welcome everyone to Blawg Review #248, this week hosted at scotslawstudent.com. Today is the 251st anniversary of celebrated Scottish poet Robert Burns’ birth, which took place on this day in 1759. Burns was a prolific poet who wrote his best work in Scots, which is not the same as English, and he also recorded traditional Scottish music and spread it to a much wider audience than ever before. He’s why you probably sang Auld Lang Syne on New Year’s Eve no matter where you live.

Robert Burns

The traditional way of marking the birthday is with haggis (an indigenous hill dwelling creature with legs shorter on one side than the other and hunted with a net), neaps (mashed turnips), tatties (potatoes, same), whisky (uisge beatha, “water of life” – a popular local health tonic), poetry (by Burns) and song (by the same). Bagpipes and other musical accompaniment is sometimes considered optional but very welcome.

Unfortunately, due to some technical limitations of internet technology, your host can only offer you a review of some of the best legal blog posts made this week.

Readers should feel free to follow tradition while you read this blawg review, however, luckily the transatlantic haggis trade has reopened just in time, as reported in today’s Guardian, so American Burns fans can now buy haggis openly instead of with their Cuban cigars.

The “great chieftan o’ the puddin-race” was one of earliest casualties of the BSE crisis of the 1980s-90s, banned on health grounds by the US authorities in 1989 because they feared its main ingredient ‑ minced sheep offal ‑ could prove lethal.

A Burns Supper is simply a typical formal meal with food in courses, drink, speeches, a very sharp knife and bagpipes. Like many cultural events it is most commonly seen outside of its country of origin, and particularly in the US.

Speaking of the US, something called the Supreme Court made up its mind on something called Citizens United v FEC this week, you may have heard about this. Sounds serious.

The law everywhere has trouble dealing with what a legal person, like companies, unions, charities, trusts and so on is, since it’s clearly not a person in the normal sense, and what rights and responsibilities of natural persons they should get. For example, people are allowed to give to political parties, should companies?

The Citizens United judgement provides the lion’s share of US legal blogging for this week because it reverses the previous position on US electoral donations. Both Liz Kurtz at the Legal Blog Watch and Jonathan Adler at the Volokh Conspiracy provides a set of links providing a number of perspectives on the 5-4 decision.

Some “critics and dissenters immediately predicted it would alter elections in 2010 and beyond by unleashing a new flood of corporate and union money into a system already awash with special-interest funds” wrote Tony Mauro in The National Law Journal.
(Legal Blog Watch)

We, in Britain, also have a Supreme Court to oversee our legal system. Well, England, Wales, Northern Ireland, the Isle of Man and so on do. Scotland is, yet again, an edge case as Professor Neil Walker reported on Friday, basically because we might secede. Absolvitor, a good resource of Scottish facing legal issues, summarises the various avenues of appeal Scottish litigants possess:

As you know, the current position is that in civil cases, a right of appeal lies from the Inner House of the Court of Session to the Supreme Court. In criminal matters, the High Court of Justiciary (sitting in an appellate capacity) is the final court of appeal. Unless there is a “devolution matter” raised (usually a human rights point), in which case the Supreme Court will take a look. Happy so far? Good.

Needless to say Independence (with a big I) would change everything again. Do not be surprised if a lot of people get confused.

Selkirk Grace

One of Burns’ pithiest poems is the Selkirk Grace, dealing with misfortune and inequality (and thankfulness for not being in that situation) in society in four lines.

Some hae meat and canna eat,
And some wad eat that want it;
But we hae meat, and we can eat,
Sae let the Lord be thankit.

Sadly this remains the case today and with the recent earthquake in Haiti still constantly in the news the role of charity has been brought to the forefront.

Inksters is a Glasgow based firm of solicitors who have made great and innovative use of social networking and internet communications in general. I discovered the ARTL (Automated Registration of Title to Land) system for electronic property conveyancing through the @BrianInkster twitter feed.

Brian Inkster has made it clear that he possesses an active social conscience and he is not long returned from a Habitat for Humanity Global Village Challenge in Argentina. The firm’s Give Blog has been nominated for a Scotblogs Award and I’d encourage others to check that out.

Entrance of the haggis

For a main course I thought I would start with three blawg reviews aside from the venerable Blawg Review.

It is really very hard, I’ve discovered, to do a good review of the goings on in the legal sphere and CharonQC’s Herculean task of reviewing the events every day demands recognition. It’s been an eventful week in Britain, with terror alert increases, an Iraq war inquiry, a legal costs review, assisted suicide (including a proposal for legislative reform in Scotland), home defence criminality and more. CharonQC, with the help of roja, deals with it.

The facts of this case are well known. The case caused an outcry, prompting politicians to respond “robustly”. Many lawyers took the view that the self defence, reasonable and proportionate force, laws in this country are sufficient. Many, including me, felt that the trial judge was right to sentence Mr Hussain and his brother to prison. Chasing someone down the road and battering them so badly with a cricket bat that the bat broke and the victim suffered serious injury is not self defence. It may well be a completely understandable reaction, but no matter how one looks at it, it is retribution. It is vengeance. It is taking the law into your own hands.

(I happen to agree, I think self defence is a powerful defence which needs respected)

Also noteworthy is the 16th A Round Tuit which came out this week, dealing with a range of issues, from the overabundance of law students (eek) to the ongoing Google v China dispute through the medium of Conan O’Brien.

I may not be an avid late night TV watcher and I can hardly care less which network or host prevails in the ratings battle, but I’ve been closely following the fiasco NBC created when it tried to juggle one too many hosts and came up a time slot or two short. Why the sudden interest? In short, because this week late night was all about contracts and intellectual property and was on at a reasonable hour.

The Conglomerate Blog makes the leap between the Google v China dispute and Citizens United. Both show the role of the company in relation to public power. This makes a short essay that is worth checking out.

I would argue that Google’s threat to leave China because of government intrusion into its operations can be seen as a victory for those who advocate for corporate social responsibility. And the Citizens United decision obviously represents a victory for those who want to see corporations as not being creatures of the state, but rather as persons that can check government action. But these two victories pose thorny intellectual problems for the victors.

The Legal Underground does Weekly Law School Roundup #208 from Buenos Aires. He links to a set of exam tips “They all say it so it must be true” that have always served me well and I would highlight them to other students going through the same trials.

1. Come into the exam with a good attitude, be calm and confident
2. Read the call of the question first!
3. Read slowly and carefully
4. Spend time outlining your answers
5. Answer the damn question! Make sure you understand what he is asking! Dont answer questions he isnt asking. FOLLOW DIRECTIONS!

Address To a Haggis

The most famous part of the Burns supper is where the Haggis is piped into the room, the Address to a Haggis is recited and it is sliced open. I think this provides as much of a chance to slew into lawyer branding as I’m ever going to have.

Keven O’Keefe at Lexblog.com provides 4 questions to let you define your personal brand.

1. What differentiates you from everyone else who might have a similar background or set of experiences?
2. What skills, abilities, knowledge and attitudes do you have (or are developing) that will make people want to work with, follow or ‘friend’ you — online or off?
3. What value can you create for others as a friend, blogger, colleague, teammate, boss or subordinate?
4. What will make you satisfied and fulfilled that you are indeed making a contribution?

I think I could handle this style of branding myself – this sounds a lot like simply evaluating your professional life and it’s a lot less strenuous and time consuming than the rest of social media can be.

Loyal toast

Unfortunately, although the time has come to toast the Monarch, I can’t find a legal blogger who talked about her in the last week. So it falls upon me – raise your glasses, good on you Queenie, keep up the good work.

Immortal memory

Burns was a serious ladies’ man, a poet, a writer and it’s probably safe to assume that he’d be the sort to let a TV camera turn his head. A worry which surrounds the legal profession is that judges and lawyers are also the sort to let cameras turn their heads. The issue of cameras in court has been discussed widely in blawgosphere but Ramblings of a Scottish Studentappeals to me for the Scottish, student perspective.

There are some concerns around TV cameras being routinely allowed into courts. Justice is supposed to be open, but there are times where sensitive issues are being dealt with and TV cameras in the court room may make these harder to conduct. Also, there is a fear that the legal profession (including judges) may be tempted to “act up” to the cameras.

Appreciation

Scott Greenfield gave the US facing Judge Kozinski perspective a little while ago. I think Scott Greenfield talks a lot of sense on his blawg and I’m a fan.

I agree with him on cameras in court I’d like to be able to watch it on TV to learn from but that’s not what court’s there for.

Toast to the Lassies

I feel terrible relegating an interesting post on mediation, how it can go wrong and Texas to this position of the supper. I really like ADR and I try to read and learn about it whenever I get the chance.

My limited experience of mediation shows that it needs a reasonable attempt on both sides for it to possibly work. Holly Hayes Bovio comments on ‘Bad Faith Mediation: Bad News for Mediators’ (Susan Schultz, Texas Mediator, Winter edition) and the implications this has on mediator confidentiality.

Ms. Schultz refers also to the subchapter of the Texas ADR Procedures Act devoted to “impartial third parties”. She asks, “How does the mediator build trust among the parties and maintain impartiality when the mediator is also tasked with reporting bad faith based on each party’s conduct? Making the mediator the watchdog for bad faith is not consistent with impartiality.”

Toast to the Laddies

One of the more inevitable outcomes of picking a side against homosexual liberties is that eventually someone will make you the butt of a joke. Legal Pad comments on an IP battle when a pro- proposition 8 group found out that their logo had been parodied by a pro marriage equality group.

The SF Gate’s Scavenger blog reports that the righteous forces of Yes on 8 are not amused that their stick-figure logo for straight families united against unstraight families has been parodied (or, hey, infringed) by the folks from across the aisle (political aisle, not the one a wedding party walks).

A pro-marriage-equality group parodied the ProtectMarriage.com logo for its Prop 8 Trial Tracker site (hope they’re following Dan Levine’s daily stream of insightful courtroom tweets). Prop8_yeson8_logo And, shockingly, the ProtectMarriage people turn out to be kinda upset about it. I know, who saw that coming? So we have a suit for infringement, blah blah. We present the logos of both sides for your consideration.

Other toasts and speeches

Law schools

Law schools have always had a real problem fitting into a role, from their first days they had to fit into a legal system where people learned about philosophy or classics at university and then going into practice to learn by doing from a working lawyer. In the early days nascent law schools needed to avoid stepping on too many legally trained toes. Over the last century or so this has developed into a situation where law has split into distinctly academic and “trench” law. This leaves law graduates (and undergrads just doing work experience, I’ve had this experience myself) realising that merely knowing Lord Atkin’s neighbourhood test doesn’t set you up to be a practising lawyer.

Wired GC quotes a new law graduate to show this reaction:

“I just graduated from law school; I know me, I wouldn’t hire me as my lawyer at this point.”

I recall when BabyBarista took his first case, a sanguine repeat offender who calmly accepted that he was not a greatly experienced lawyer. I imagine few others would.

Legal writing

Legal writing is a major issue for everyone ranging from the 1Ls, through the 3Ls (like me) and of course to practitioners. I imagine Justice Steven’s pen must still be smoking after his 90 page dissent in Citizens. It’s a specialised skill that I have a sadly fluctuating grasp of.

The (new) legal writer provides a set of references which helps people trying to write plainly, typesetting, and proof reading. I read this sort of thing all the time, I don’t think you can get enough advice for how you perform.

To that end UCL Practitioner suggests another 30 posts.

Events in Scotland

I mention Lord Atkin’s famous test from Donoghue v Stevenson because it gives me a good tie to a pair of websites dedicated to the snail in the ginger beer case. Paisley is a Scottish city and so the case was initially a delict action, only becoming a tort when it reached the House of Lords.

thepaisleysnail.com is a site dedicated purely to the “most famous case in the common law world” as an historical interest. It includes a talk from Lord Denning, known to administrative law students as “da man.”

The other, thepaisleysnail.blogspot.com/, is a teaching blog for mini trials. I find the concept of HMA v Goldilocks, heard at St Margaret’s Junior School in November, to be exactly the sort of thing that the law needs in a county where too often your first introduction to the criminal justice system (or any law at all) is at the wrong end of a Children’s Panel. I would have loved to have that in my primary school.

Post dinner singing

Often, once the speeches are out of the way in a Burns Supper, it devolves into a singathon which goes through all of his songs that at least one person present knows the words and/or tune of.

One reason that people can so readily repeat Burns’ work, even in the most glitzy of corporate events is that Burns’ copyright has lapsed and his works are now in the public domain. This is not always the case and the spectre of IP infringement and IP enforcement hovers over practically every user of the internet in one way or another.

ICANN, back at the turn of the century, created a quasi-arbitration process for dealing with cybersquatting. This UDRP was to deal with people who registered domain names which were confusingly similar to another’s trademark. This problem arises everywhere where there is a scarcity of names which correspond to multiple parties’ interests, even if there is no process in place to deal with it like with domain names. Twitter suffers from this scarcity in terms of account names. The principle concern is trade mark dilution although flat out bad faith deception is also possible. The Chicago IP Litigation Blog provides a guide to identifying and stopping peope who are masquerading as you:

1. Claim Your Names
2. Play Sherlock Holmes
3. Get Your Name Back
4. Take Action
5. Use Your New Twitter Identity

Likelihood of confusion follows up with advice on the branding of, not whisky, but wine. He provides useful realist advice – for example “Your advice should not place undue weight on the so-called merits of the inevitable legal challenge to your client’s business. These are irrelevant unless your client is funded for extensive litigation” – that doesn’t just talk about what can be done but what probably should be done.

Also remind your client that copyright has its own penumbras and emanations, and can often be seen quacking very much like a twademark–consider the recent “60 Years Later” ruling granting a monopoly to J.D. Salinger on the concept of Holden Caulfield. If there’s any way copyright can be assserted against your client, which is likely considering that the work you refer to does have a copyright, it will be.

Vote of thanks

And this draws to a close an intense couple days of blog watching. It’s been very educational and I think it’s been a good week for scouring the blawgosphere. Thanks to Ed. of the Blawg Review for picking the Scots Law Student for this week. Thanks for reading, have a hearty Burns’ Night. Sláinte.

The problem with that is defending a decision to be open solely on the basis of openness slightly misses the point. Openness is a noble principle for public bodies but it is not a particularly useful end in itself, if it was clothes and curtains would be illegal. The idea of making things open is that it will make things better through the increased amount of oversight rather than a direct connection of openness to quality. That’s putting the cart before the horse. Openness is a means, not an end.

Saying that you should modernise things because they can be modernised is an even worse situation for any system to be in and you end up with examples like the NHS hit and miss database systems (some are good, some are massive failures). The advantages of doing modernisation right are numerous but you do it for the advantages, not the modernisation.

The advantages that come from openness are huge, it’s necessary for people who are expected to obey the edicts of courts to generally trust that the people in the court are not going to put on a black cap and send them down for funsies and so justice needs to be seen to be done. Also openness is one of the biggest cures for corruption (up to a point, if you get to the point where “everyone knows” about corrupt officials openness is the least of your worries) and this is a good thing, you should be against corruption in any legal system.

That means that I don’t think promoters of the move really get to say that court TV will make the court system work better than it does now. We need openness in the court for several reasons but whether that is in the form of public rights of access or in published judicial decisions or in a live TV camera in every court is another matter entirely. Whether the rigmarole of setting up broadcast feeds from inside courtrooms (commentators from the US have found this creates a substantial delay) is worth the chance that,

1. something will be done wrongly,
2. someone will see,
3. recognise the mistake and
4. do something about it

or

1. someone will not attempt to do something wrong that they would have done on the existing audio recording but will not because of the camera recording them,

is something that would require quite careful research to answer.

Things don’t get better just because you can watch them on TV nor is being able to watch it on TV what makes it good, just look at Big Brother.

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“is white spirit as good as gbl?”

At getting rid of paint, yes. I wouldn’t risk drinking it. If you’re the Mona Lisa it might not be good but it has its place, which is taking paint from surfaces.

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I suspect that car theft is used because it is so morally unambiguous, a lot of people wouldn’t say that stealing a loaf of bread to feed your starving family is wrong at all so “you wouldn’t steal a loaf of bread” has never caught on whereas car theft is harder to defend and so it gets compared to anything and everything that’s not liked.

The problem with the analogy is that it’s too simple and broadly used. Things can be bad without being like car theft. If something is not like car theft then comparing it to car theft will not help your argument. The main issue is car theft involves someone losing something (a car) and file sharing doesn’t involve someone losing any asset – the analogy is so ill fitting a rejoinder of “I wouldn’t steal a car, but I’d download one if I could” has sprung up in some quarters.

A very clear misuse of the car theft analogy came in the Modern Warfare 2 “Javelin Glitch” – you could juggle your weapons in such a way that that the game would forget about your grenade until you were killed and then it would get so confused you’d explode. It’d often have the effect of killing people near your character (like your killer). Some people hated it and other people loved it (Penny Arcade decided it was the only way to beat the over-powered dual shotgun game-play style).

What I am describing, of course, is a sneaky way of playing a video game in which you pretend to be a soldier and shoot people. Microsoft reacted by banning the Xbox Live accounts of those using it and rushing a patch out uncharacteristically quickly. There was a fair amount of discussion at the time if using any particular mistake caused by a developer was worse than another and if it merited locking you out of an online gaming system you had paid to access. There’s apparently some provisions in the terms and conditions to allow cheaters to be banned so it seems on the face of it to be all right since they didn’t just decide to do it out of the blue.

The head of Xbox Live policy on this issue reacted to the controversy by posting this message on Twitter:

“Wow some of you think cheating a glitch is ok.um.If I install my car stereo wrong and it disables my door locks it’s not ok to STEAL MY CAR”
- @Stepto

I must confess I am naturally put off this guy because of that “um” but regardless here the senior Microsoft employee whose policy banned everyone compares cheating at a video game to car theft. They’re different types of problem – ask any 5 year old. I know I don’t like car theft but it does nothing to help his case on banning cheaters.

The problem of the analogy for its user- I’ve discussed it from the perspective of listeners before – as the thing that persuades someone is that it needs to be a good one or it backfires and if it’s all you have your argument falls. Cheating in games can be annoying and it can spoil it for other people but it’s not like stealing a car. If someone asks you “did you just compare health reform to the Holocaust?” they’re not buying your argument.

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