Law students need to be particularly careful with their online identity. Here is a handy guide to tidying up.
Have you been getting warnings from your university to clean up your online profile? Perhaps you've been ignoring them – but you're secretly terrified your Facebook could ruin your career chances.
The truth is, it's not enough to obscure yourself online, anonymising your accounts in the hope that prospective employers won't find you. Take the opportunity to give yourself a positive edge, and showcase your personal brand.
Here is the definitive guide to all you need to know to look digitally competent:
Ensure you are easily found
That avatar of Keith Lemon, a beer bottle, or you wearing a micro bikini and pink cowboy hat while cage dancing in Faliraki is not doing your image in the workplace any favours. Select one distinctive headshot of yourself that is instantly recognisable and use it across all of your accounts – from LinkedIn to Twitter to Facebook. Ensure you are not mistaken for someone else and made to suffer for their bad behaviour.
Consider your employer as your primary audience, and don't pout or tinker with the pic so much that your interviewer either won't recognise you, or won't approve of you. If a prospective employer searches for you, be sure they find you and like what they see.
Write a snappy bio paragraph showcasing your interests and aptitudes, and use the same one across all your platforms.
Make a name for yourself
If you discover someone out there with the same name, consider further branding. Upload a backdrop on your Twitter, and use it as a Facebook banner, and a watermark on your blog and aboutme.com. It should highlight your qualities, interests and values – check out how Team GB athletes have done this: here's @TomDaley1994 making a splash.
Start a blog, preferably Wordpress (it has a higher Google page ranking than Blogger or Tumblr), and open SlideShare and Flickr accounts and any others you can think of. You'll soon send your namesake falling down the pecking order on Google – right down to page 2, or better still 3.
I had one student with a great academic record who couldn't even get an interview. Eventually, an agency bothered to give him honest feedback. Matt discovered that while he didn't have a Facebook profile, another student in his year with the same name, but a very different lifestyle, did.
We created profiles for him on three popular platforms, identified his best qualities with the help of a book called Strengths Finder, and created an authentic representation of Matt. Take control of your digital profile and mould it with care.
Clean up
Remove all bad language, meticulously correct poor spellings, and avoid textspeak – it gives a very bad impression.
If you find anything potentially damaging about you on a Google search, try to get it removed by contacting whoever put it there or asking site moderators to take it down. Get on to Google and ask them to remove that page from their search results.
Play down time-wasting
Delete all trace of the 60 hours a week you spend tending crops on Farmville, and remove casino-style games and apps – you don't want potential employers to get the impression you will waste their time gaming.
Photographic negatives
Clean up your photo albums – but don't sanitise your pics to the point where you appear bland and characterless.
Showcase your fun side, your sporting achievements, your team leadership, your wide group of friends and social activities, your ability to handle alcohol, your love of travel and music, even evidence of your time in the library revising. Remove the images of drinking games, though, and streaking in the fountain at Trafalgar Square.
Untag yourself in unwise photographs; remove them completely if you can. Don't be tempted to be indiscreet on apps like Snapchat (which let you set the time a photo lasts). Screenshots and photos of phones mean anything can be permanent.
Consider carefully how photos of you sleeping all over campus on Foursquare could look to a potential employer.
Groups and memberships
Audit Facebook like/fan pages and groups.
Misogynistic comments on pages naming and shaming people for doing the walk of shame after a big night in the student union bar says more about you than the person you are defaming. Play nicely, and never talk negatively about anyone online – employers may fear you will vent about them.
Consider very carefully whether you want to remain a fan of pages where members admit sexual indiscretions or express bigoted views, even in jest.
What should you "like" then? Savvy students like Facebook groups representing the brands they want to work for. They join groups on LinkedIn run by companies they want to notice them. It's an effective strategy. Observe the discussions they host on their pages and contribute thoughtfully.
Network with staff you meet on work placements. Be seen to move with those you aspire to join. If you offer an opinion in a professional LinkedIn group, be mindful of your tone and don't come across as pompous. If someone rebuts your opinion, reply politely, and show yourself capable of seeing several sides to an argument. You never know who may be reading.
You are known by the company you keep
Are you genuinely friends with 1,200 people? Have you checked what they're up to lately? If your Facebook friends are pictured wearing electronic tags, taking drugs, or driving with cans of beer in their hands, your own image can suffer.
Be sure to balance status updates about your social life with mentions of time spent studying. Boasting about your new designer laptop or flying first class may give employers the impression that you don't actually need the job as much as the next candidate.
Never use social media when you are angry, tired, drunk or under the influence of anything else. Never react or reply to anyone who you feel may be trying to flame you or wind you up. If you are wrong, apologise promptly and in public.
Blog don't bleat
You have a right to free speech. But if you blog about people you know, be aware that a lack of discretion sends a message to employers.
Companies such as Apple are very particular about any mention of their brand or workplace by employees on social media – and may be uncomfortable with employing someone who diarises their every move online. Not only do companies want to guard their brand, they often need to protect client confidentiality.
Employers may see what you are saying about fellow students or lecturers as an indication of what you might share about them or their clients.
That's private
Of course you should lock down your privacy settings. But I have recently heard of two UK employers asking candidates to log in to their Facebook during an interview.
Practice and rehearse how you would negotiate with an interviewer who requests that you log in to your social media accounts at an interview – remaining polite and professional is actually not that easy.
Be sure to indicate that you are very interested in the post, but explain that you feel the request is a breach of your privacy and also a legal breach of Facebook's own terms and conditions of service. You could gently point out that some states in the US (including Illinois and Maryland) have legislated against this practice and diplomatically try to move the interview on.
Obviously you could still ultimately be forced to accommodate the request and face the consequences – but if you always consider everything you say on social media as public, and you never share anything you wouldn't be happy for your grandma to read, you could turn the situation to your advantage.
Important insights on the reliability of memory (and thus oral testimony & evidence).
Private Collection/Peter Ertl/Albertina, Vienna
Heinrich Kühn: Hans with Bureau, 1905; from Heinrich Kühn: The Perfect Photograph, the catalog of a recent exhibition organized by the Albertina, Vienna. Now out of print, it was edited by Monika Faber and Astrid Mahler and published by Hatje Cantz.
In 1993, approaching my sixtieth birthday, I started to experience a curious phenomenon—the spontaneous, unsolicited rising of early memories into my mind, memories that had lain dormant for upward of fifty years. Not merely memories, but frames of mind, thoughts, atmospheres, and passions associated with them—memories, especially, of my boyhood in London before World War II. Moved by these, I wrote two short memoirs, one about the grand science museums in South Kensington, which were so much more important than school to me when I was growing up; the other about Humphry Davy, an early-nineteenth-century chemist who had been a hero of mine in those far-off days, and whose vividly described experiments excited me and inspired me to emulation. I think a more general autobiographical impulse was stimulated, rather than sated, by these brief writings, and late in 1997, I launched on a three-year project of writing a memoir of my boyhood, which I published in 2001 as Uncle Tungsten.1
I expected some deficiencies of memory—partly because the events I was writing about had occurred fifty or more years earlier, and most of those who might have shared their memories, or checked my facts, were now dead; and partly because, in writing about the first fifteen years of my life, I could not call on the letters and notebooks that I started to keep, assiduously, from the age of eighteen or so.
I accepted that I must have forgotten or lost a great deal, but assumed that the memories I did have—especially those that were very vivid, concrete, and circumstantial—were essentially valid and reliable; and it was a shock to me when I found that some of them were not.
A striking example of this, the first that came to my notice, arose in relation to the two bomb incidents that I described in Uncle Tungsten, both of which occurred in the winter of 1940–1941, when London was bombarded in the Blitz:
One night, a thousand-pound bomb fell into the garden next to ours, but fortunately it failed to explode. All of us, the entire street, it seemed, crept away that night (my family to a cousin’s flat)—many of us in our pajamas—walking as softly as we could (might vibration set the thing off?). The streets were pitch dark, for the blackout was in force, and we all carried electric torches dimmed with red crêpe paper. We had no idea if our houses would still be standing in the morning.On another occasion, an incendiary bomb, a thermite bomb, fell behind our house and burned with a terrible, white-hot heat. My father had a stirrup pump, and my brothers carried pails of water to him, but water seemed useless against this infernal fire—indeed, made it burn even more furiously. There was a vicious hissing and sputtering when the water hit the white-hot metal, and meanwhile the bomb was melting its own casing and throwing blobs and jets of molten metal in all directions.A few months after the book was published, I spoke of these bombing incidents to my brother Michael. Michael is five years my senior, and had been with me at Braefield, the boarding school to which we had been evacuated at the beginning of the war (and in which I was to spend four miserable years, beset by bullying schoolmates and a sadistic headmaster). My brother immediately confirmed the first bombing incident, saying, “I remember it exactly as you described it.” But regarding the second bombing, he said, “You never saw it. You weren’t there.”
I was staggered by Michael’s words. How could he dispute a memory I would not hesitate to swear on in a court of law, and had never doubted as real? “What do you mean?” I objected. “I can see the bomb in my mind’s eye now, Pa with his pump, and Marcus and David with their buckets of water. How could I see it so clearly if I wasn’t there?”
“You never saw it,” Michael repeated. “We were both away at Braefield at the time. But David [our older brother] wrote us a letter about it. A very vivid, dramatic letter. You were enthralled by it.” Clearly, I had not only been enthralled, but must have constructed the scene in my mind, from David’s words, and then appropriated it, and taken it for a memory of my own.
After Michael said this, I tried to compare the two memories—the primary one, on which the direct stamp of experience was not in doubt, with the constructed, or secondary, one. With the first incident, I could feel myself into the body of the little boy, shivering in his thin pajamas—it was December, and I was terrified—and because of my shortness compared to the big adults all around me, I had to crane my head upward to see their faces.
The second image, of the thermite bomb, was equally clear, it seemed to me—very vivid, detailed, and concrete. I tried to persuade myself that it had a different quality from the first, that it bore evidence of its appropriation from someone else’s experience, and its translation from verbal description into image. But although I now know, intellectually, that this memory was “false,” it still seems to me as real, as intensely my own, as before. Had it, I wondered, become as real, as personal, as strongly embedded in my psyche (and, presumably, my nervous system) as if it had been a genuine primary memory? Would psychoanalysis, or, for that matter, brain imaging, be able to tell the difference?
My “false” bomb experience was closely akin to the true one, and it could easily have been my own experience too. It was plausible that I might have been there; had it not been so, perhaps the description of it in my brother’s letter would not have affected me so. All of us “transfer” experiences to some extent, and at times we are not sure whether an experience was something we were told or read about, even dreamed about, or something that actually happened to us.
This is especially apt to happen with very early experiences, with one’s so-called “earliest memories.” I have a vivid memory from about the age of two of pulling the tail of our chow, Peter, while he was gnawing a bone under the hall table, of Peter leaping up and biting me in the cheek, and of my being carried, howling, into my father’s surgery in the house, where a couple of stitches were put in my cheek.
There is an objective reality here: I was bitten on the cheek by Peter when I was two, and still bear the scar of this. But do I actually remember it, or was I told about it, subsequently constructing a “memory” that became more and more firmly fixed in my mind by repetition? The memory seems intensely real to me, and the fear associated with it is certainly real, for I developed a fear of large animals after this incident—Peter was almost as large as I was at two—a fear that they would suddenly attack or bite me.
Daniel Schacter has written extensively on distortions of memory and the “source confusions” that go with them, and in his book Searching for Memory recounts a well-known story about Ronald Reagan:
In the 1980 presidential campaign, Ronald Reagan repeatedly told a heartbreaking story of a World War II bomber pilot who ordered his crew to bail out after his plane had been seriously damaged by an enemy hit. His young belly gunner was wounded so seriously that he was unable to evacuate the bomber. Reagan could barely hold back his tears as he uttered the pilot’s heroic response: “Never mind. We’ll ride it down together.” The press soon realized that this story was an almost exact duplicate of a scene in the 1944 film A Wing and a Prayer. Reagan had apparently retained the facts but forgotten their source.Reagan was a vigorous sixty-nine-year-old at the time, was to be president for eight years, and only developed unmistakable dementia in the 1990s. But he had been given to acting and make-believe throughout his life, and he had displayed a vein of romantic fantasy and histrionism since he was young. Reagan was not simulating emotion when he recounted this story—his story, his reality, as he believed it to be—and had he taken a lie detector test (functional brain imaging had not yet been invented at the time), there would have been none of the telltale reactions that go with conscious falsehood.
It is startling to realize that some of our most cherished memories may never have happened—or may have happened to someone else. I suspect that many of my enthusiasms and impulses, which seem entirely my own, have arisen from others’ suggestions, which have powerfully influenced me, consciously or unconsciously, and then been forgotten. Similarly, while I often give lectures on similar topics, I can never remember, for better or worse, exactly what I said on previous occasions; nor can I bear to look through my earlier notes. Losing conscious memory of what I have said before, and having no text, I discover my themes afresh each time, and they often seem to me brand-new. This type of forgetting may be necessary for a creative or healthy cryptomnesia, one that allows old thoughts to be reassembled, retranscribed, recategorized, given new and fresh implications.
Sometimes these forgettings extend to autoplagiarism, where I find myself reproducing entire phrases or sentences as if new, and this may be compounded, sometimes, by a genuine forgetfulness. Looking back through my old notebooks, I find that many of the thoughts sketched in them are forgotten for years, and then revived and reworked as new. I suspect that such forgettings occur for everyone, and they may be especially common in those who write or paint or compose, for creativity may require such forgettings, in order that one’s memories and ideas can be born again and seen in new contexts and perspectives.
Webster’s defines “plagiarize” as “to steal and pass off (the ideas or words of another) as one’s own: use (another’s production) without crediting the source …to commit literary theft: present as new and original an idea or product derived from an existing source.” There is a considerable overlap between this definition and that of “cryptomnesia.” The essential difference is that plagiarism, as commonly understood and reprobated, is conscious and intentional, whereas cryptomnesia is neither. Perhaps the term “cryptomnesia” needs to be better known, for though one may speak of “unconscious plagiarism,” the very word “plagiarism” is so morally charged, so suggestive of crime and deceit, that it retains a sting even if it is “unconscious.”
In 1970, George Harrison composed an enormously successful song, “My Sweet Lord,” which turned out to have great similarities to a song by Ronald Mack (“He’s So Fine”), recorded eight years earlier. When the matter went to trial, the judge found Harrison guilty of plagiarism, but showed psychological insight and sympathy in his summary of the case. He concluded:
Did Harrison deliberately use the music of “He’s So Fine”? I do not believe he did so deliberately. Nevertheless…this is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
Private Collection
Georges Seurat: Night Stroll, 1887–1888
Helen Keller was accused of plagiarism when she was only twelve.2 Though deaf and blind from an early age, and indeed languageless before she met Annie Sullivan at the age of six, she became a prolific writer once she learned finger spelling and Braille. As a girl, she had written, among other things, a story called “The Frost King,” which she gave to a friend as a birthday gift. When the story found its way into print in a magazine, readers soon realized that it bore great similarities to “The Frost Fairies,” a children’s short story by Margaret Canby. Admiration for Keller now turned into accusation, and Helen was accused of plagiarism and deliberate falsehood, even though she said that she had no recollection of reading Canby’s story, and thought she had made it up herself. The young Helen was subjected to a ruthless inquisition, which left its mark on her for the rest of her life.
But she had defenders, too, including the plagiarized Margaret Canby, who was amazed that a story spelled into Helen’s hand three years before could be remembered or reconstructed by her in such detail. “What a wonderfully active and retentive mind that gifted child must have!” Canby wrote. Alexander Graham Bell came to her defense, saying, “Our most original compositions are composed exclusively of expressions derived from others.”3
Indeed, Keller’s remarkable imagination and mind could not have developed and become as rich as they were without appropriating the language of others. Perhaps in a general sense we are all dependent on the thoughts and images of others.
Keller herself said of such appropriations that they were most apt to occur when books were spelled into her hands, their words passively received. Sometimes when this was done, she said, she could not identify or remember the source, or even, sometimes, whether it came from outside her or not. Such confusion rarely occurred if she read actively, using Braille, moving her finger across the pages.
The question of Coleridge’s plagiarisms, paraphrases, cryptomnesias, or borrowings has intrigued scholars and biographers for nearly two centuries, and is of special interest in view of his prodigious powers of memory, his imaginative genius, and his complex, multiform, sometimes tormented sense of identity. No one has described this more beautifully than Richard Holmes in his two- volume biography.
Coleridge was a voracious, omnivorous reader who seemed to retain all that he read. There are descriptions of him as a student reading The Times in a casual fashion, then being able to reproduce the entire paper, including its advertisements, verbatim. “In the youthful Coleridge,” writes Holmes,
this is really part of his gift: an enormous reading capacity, a retentive memory, a talker’s talent for conjuring and orchestrating other people’s ideas, and the natural instinct of a lecturer and preacher to harvest materials wherever he found them.Literary borrowing was commonplace in the seventeenth century—Shakespeare borrowed freely from many of his contemporaries, as did Milton.4 Friendly borrowing remained common in the eighteenth century, and Coleridge, Wordsworth, and Southey all borrowed from one another, sometimes even, according to Holmes, publishing work under each other’s names.
But what was common, natural, and playful in Coleridge’s youth gradually took on a more disquieting form, especially in relation to the German philosophers (Friedrich Schelling above all) whom he “discovered,” venerated, translated, and finally came to use in the most extraordinary way. Whole pages of Coleridge’s Biographia Literaria consist of unacknowledged, verbatim passages from Schelling. While this unconcealed and damaging behavior has been readily (and reductively) categorized as “literary kleptomania,” what actually went on is complex and mysterious, as Holmes explores in the second volume of his biography, where he sees the most flagrant of Coleridge’s plagiarisms as occurring at a devastatingly difficult period of his life, when he had been abandoned by Wordsworth, was disabled by profound anxiety and intellectual self-doubt, and more deeply addicted to opium than ever. At this time, Holmes writes, “his German authors gave him support and comfort: in a metaphor he often used himself, he twined round them like ivy round an oak.”
Earlier, as Holmes describes, Coleridge had found another extraordinary affinity, for the German writer Jean-Paul Richter—an affinity that led him to translate and transcribe Richter’s writings, and then to take off from them, elaborating them in his own way and then, in his notebooks, conversing and communing with Richter. At times, the voices of the two men became so intermingled as to be hardly distinguishable from one another.
In 1996, I read a review of a new play, Molly Sweeney, by Brian Friel. It was, I read, about a massage therapist, born blind, who is given sight by an operation in middle life, but then finds this unprecedented ability to see profoundly confusing. Molly is unable to recognize anybody or anything, can make nothing of what she sees—and ultimately, gratefully, returns to her original state of blindness. I was startled by this, because I myself had written and published in The New Yorker, just three years earlier, the case history of a patient with an exceedingly similar story (“To See and Not See”). When I obtained a copy of Friel’s new play, I was not surprised to find it brilliant and original in conception and style, but I was surprised to find, over and above the thematic similarities, entire phrases and sentences from my own case history.
I wrote to Friel, and he responded that he had indeed read my piece, and had been much moved by it (the more so as he had feared he was losing his own vision). He had also read many other case histories of the restoration of vision. Friel concluded that he must have inadvertently used some phrases from my account, but that this was completely unconscious, and agreed to add to Molly Sweeney an acknowledgment of the sources of his inspiration.
Freud was fascinated by the slippages and errors of memory that occur in the course of daily life, and their relation to emotion, especially unconscious emotion; but he was also forced to consider the much grosser distortions of memory that some of his patients showed, especially when they gave him accounts of having been sexually seduced or abused in childhood. He at first took all these accounts literally, but eventually, when there seemed little evidence or plausibility in several cases, he started to wonder whether such recollections had been distorted by fantasy, and whether some, indeed, might be total fabulations, constructed unconsciously, but so convincingly that the patients themselves believed in them absolutely. The stories that patients told, and had told to themselves, could have a very powerful effect on their lives, and it seemed to Freud that their psychological reality might be the same whether they came from actual experience or from fantasy.
In our present age, descriptions and accusations of childhood abuse have reached almost epidemic proportions. Much is made of so-called recovered memories—memories of experiences so traumatic as to be defensively repressed, and then, with therapy, released from repression. Particularly dark and fantastic forms of this include descriptions of satanic rituals of one sort and another, accompanied often by coercive sexual practices. Lives, and families, have been ruined by such accusations. But it has been shown, in at least some cases, that such descriptions can be insinuated or planted by others. The frequent combination, here, of a suggestible witness (often a child) with an authority figure (perhaps a therapist, a teacher, a social worker, or an investigator) can be particularly powerful.
From the Inquisition and the Salem witch trials to the Soviet trials of the 1930s and Abu Ghraib, varieties of “extreme interrogation,” or outright physical and mental torture, have been used to extract political or religious “confessions.” While such interrogation may be intended to extract information in the first place, its deeper intentions may be to brainwash, to effect a genuine change of mind, to fill it with implanted, self-inculpatory memories, and in this it may be frighteningly successful.5
But it may not take coercive suggestion to affect a person’s memories. The testimony of eyewitnesses is notoriously subject to suggestion and to error, frequently with dire effects on the wrongfully accused.6 With the advent of DNA testing, it is now possible to find, in many cases, an objective corroboration or refutation of such testimony, and Schacter notes that “a recent analysis of forty cases in which DNA evidence established the innocence of wrongly imprisoned individuals revealed that thirty-six of them (90 percent) involved mistaken eyewitness identification.”
If the last thirty years have seen a surge or resurgence of ambiguous memory and identity syndromes, they have also led to important research—forensic, theoretical, and experimental—on the malleability of memory. Elizabeth Loftus, the psychologist and memory researcher, has documented a disquieting success in implanting false memories by simply suggesting to a subject that he has experienced a fictitious event. Such pseudo-events, invented by psychologists, may vary from mildly upsetting or comic incidents (that, for example, as a child, one was lost in a mall) to more serious incidents (that one was the victim of a serious animal attack, or a serious assault by another child). After initial skepticism (“I was never lost in a shopping mall”), and then uncertainty, the subject may move to a conviction so profound that he will continue to insist on the truth of the implanted memory, even after the experimenter confesses that it never happened in the first place.
What is clear in all these cases—whether of imagined or real abuse in childhood, of genuine or experimentally implanted memories, of misled witnesses and brainwashed prisoners, of unconscious plagiarism, and of the false memories we probably all have based on misattribution or source confusion—is that, in the absence of outside confirmation, there is no easy way of distinguishing a genuine memory or inspiration, felt as such, from those that have been borrowed or suggested, between what the psychoanalyst Donald Spence calls “historical truth” and “narrative truth.”
Even if the underlying mechanism of a false memory is exposed, as I was able to do, with my brother’s help, in the incendiary bomb incident (or as Loftus would do when she confessed to her subjects that their memories were implanted), this may not alter the sense of actual lived experience or reality that such memories have. Nor, for that matter, may the obvious contradictions or absurdity of certain memories alter the sense of conviction or belief. For the most part the people who claim to be abducted by aliens are not lying when they speak of how they were taken into alien spaceships, any more than they are conscious of having invented a story—some truly believe that this is what happened.
Once such a story or memory is constructed, accompanied by vivid sensory imagery and strong emotion, there may be no inner, psychological way of distinguishing true from false—or any outer, neurological way. The physiological correlates of such memory can be examined using functional brain imaging, and these images show that vivid memories produce widespread activation in the brain involving sensory areas, emotional (limbic) areas, and executive (frontal lobe) areas—a pattern that is virtually identical whether the “memory” is based on experience or not.
There is, it seems, no mechanism in the mind or the brain for ensuring the truth, or at least the veridical character, of our recollections. We have no direct access to historical truth, and what we feel or assert to be true (as Helen Keller was in a very good position to note) depends as much on our imagination as our senses. There is no way by which the events of the world can be directly transmitted or recorded in our brains; they are experienced and constructed in a highly subjective way, which is different in every individual to begin with, and differently reinterpreted or reexperienced whenever they are recollected. (The neuroscientist Gerald M. Edelman often speaks of perceiving as “creating,” and remembering as “recreating” or “recategorizing.”) Frequently, our only truth is narrative truth, the stories we tell each other, and ourselves—the stories we continually recategorize and refine. Such subjectivity is built into the very nature of memory, and follows from its basis and mechanisms in the human brain. The wonder is that aberrations of a gross sort are relatively rare, and that, for the most part, our memories are relatively solid and reliable.
We, as human beings, are landed with memory systems that have fallibilities, frailties, and imperfections—but also great flexibility and creativity. Confusion over sources or indifference to them can be a paradoxical strength: if we could tag the sources of all our knowledge, we would be overwhelmed with often irrelevant information.
Indifference to source allows us to assimilate what we read, what we are told, what others say and think and write and paint, as intensely and richly as if they were primary experiences. It allows us to see and hear with other eyes and ears, to enter into other minds, to assimilate the art and science and religion of the whole culture, to enter into and contribute to the common mind, the general commonwealth of knowledge. This sort of sharing and participation, this communion, would not be possible if all our knowledge, our memories, were tagged and identified, seen as private, exclusively ours. Memory is dialogic and arises not only from direct experience but from the intercourse of many minds.
1 See Oliver Sacks, Uncle Tungsten: Memories of a Chemical Boyhood (Vintage, 2001).
2 This episode is related in great and sympathetic detail by Dorothy Herrmann in her biography of Keller, Helen Keller: A Life (University of Chicago Press, 1998).
3 Mark Twain later wrote to Helen Keller:
Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that “plagiarism” farce! As if there was much of anything in any human utterance except plagiarism!... For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources.Indeed, Mark Twain had committed such unconscious theft himself, as he described in a speech at Oliver Wendell Holmes’s seventieth birthday:Oliver Wendell Holmes...was...the first great literary man I ever stole any thing from—and that is how I came to write to him and he to me. When my first book was new, a friend of mine said to me, “The dedication is very neat.” Yes, I said, I thought it was. My friend said, “I always admired it, even before I saw it in The Innocents Abroad.”
I naturally said, “What do you mean? Where did you ever see it before?”
“Well, I saw it first some years ago as Doctor Holmes’s dedication to his Songs in Many Keys.”
...Well, of course, I wrote to Dr. Holmes and told him I hadn’t meant to steal, and he wrote back and said in the kindest way that it was all right and no harm done; and added that he believed we all unconsciously worked over ideas gathered in reading and hearing, imagining they were original with ourselves.4 The Cambridge History of English and American Literature says of Milton:
The parallel-hunters and the plagiarism-hunters and the source-hunters have spent immense pains... to show that Milton imitated, borrowed from, or, in this way and that, followed, the Adamo of...Andreini (1613), the Lucifer...of...Vondel (1654), the Adamus Exul of Grotius (1601), Sylvester’s Du Bartas (1605) and even Caedmon.... Supposing Milton to have read all these books, Paradise Lost remains Milton’s; and it is perfectly certain, not merely that nobody else could have constructed it out of them, but that a syndicate composed of their authors, each in his happiest vein and working together as never collaborators worked, could not have come within measurable distance of it, or of him.5 The theme of brainwashing or breaking a man, with the forcible derangement of memory, is terrifyingly illustrated in George Orwell’s novel 1984, and in the Alec Guinness film The Prisoner.
6 Hitchcock’s film The Wrong Man (the only nonfiction film he ever made) documents the terrifying consequences of a mistaken identification based on eyewitness testimony.
by Maria Popova“A man’s brain originally is like a little empty attic, and you have to stock it with such furniture as you choose.”
“The habit of mind which leads to a search for relationships between facts,” wrote James Webb Young in his famous 1939 5-step technique for creative problem-solving, “becomes of the highest importance in the production of ideas.” But just how does one acquire those vital cognitive customs? That’s precisely what science writer Maria Konnikova explores in Mastermind: How to Think Like Sherlock Holmes (UK; public library) — an effort to reverse-engineer Holmes’s methodology into actionable insights that help develop “habits of thought that will allow you to engage mindfully with yourself and your world as a matter of course.”
Bridging ample anecdotes from the adventures of Conan Doyle’s beloved detective with psychology studies both classic and cutting-edge, Konnikova builds a compelling case at the intersection of science and secular spiritualism, stressing the power of rigorous observation alongside a Buddhist-like, Cageian emphasis on mindfulness. She writes:
The idea of mindfulness itself is by no means a new one. As early as the end of the nineteenth century, William James, the father of modern psychology, wrote that, ‘The faculty of voluntarily bringing back a wandering attention, over and over again, is the very root of judgment, character, and will. … An education which should improve this faculty would be the education par excellence.’ That faculty, at its core, is the very essence of mindfulness. And the education that James proposes, an education in a mindful approach to life and to thought.
[…]
In recent years, studies have shown that meditation-like thought (an exercise in the very attentional control that forms the center of mindfulness), for as little as fifteen minutes a day, can shift frontal brain activity toward a pattern that has been associated with more positive and more approach-oriented emotional states, and that looking at scenes of nature, for even a short while, can help us become more insightful, more creative, and more productive. We also know, more definitively than we ever have, that our brains are not built for multitasking — something that precludes mindfulness altogether. When we are forced to do multiple things at once, not only do we perform worse on all of them but our memory decreases and our general wellbeing suffers a palpable hit.
But for Sherlock Holmes, mindful presence is just a first step. It’s a means to a far larger, far more practical and practically gratifying goal. Holmes provides precisely what William James had prescribed: an education in improving our faculty of mindful thought and in using it in order to accomplish more, think better, and decide more optimally. In its broadest application, it is a means for improving overall decision making and judgment ability, starting from the most basic building block of your own mind.
But mindfulness, and the related mental powers it bestows upon its master, is a skill acquired with grit and practice, rather than an in-born talent or an easy feat attained with a few half-hearted tries:
It is most difficult to apply Holmes’s logic in those moments that matter the most. And so, all we can do is practice, until our habits are such that even the most severe stressors will bring out the very thought patterns that we’ve worked so hard to master.
Echoing Carl Sagan, Konnikova examines the role of intuition — a grab-bag concept embraced by some of history’s greatest scientific minds, cultural icons, and philosophers — as both a helpful directional signpost of intellectual inquiry and a dangerous blind spot:
Our intuition is shaped by context, and that context is deeply informed by the world we live in. It can thus serve as a blinder — or blind spot — of sorts. … With mindfulness, however, we can strive to find a balance between fact-checking our intuitions and remaining open-minded. We can then make our best judgments, with the information we have and no more, but with, as well, the understanding that time may change the shape and color of that information.
“I consider that a man’s brain originally is like a little empty attic, and you have to stock it with such furniture as you choose,” Holmes famously remarked. Indeed, much like the inventor’s mind, the problem-solver’s mind is the product of that very choice: The details and observations we select to include in our “brain attic” shape and filter our perception of reality. Konnikova writes:
Observation with a capital O — the way Holmes uses the word when he gives his new companion a brief history of his life with a single glance — does entail more than, well, observation (the lowercase kind). It’s not just about the passive process of letting objects enter into your visual field. It is about knowing what and how to observe and directing your attention accordingly: what details do you focus on? What details do you omit? And how do you take in and capture those details that you do choose to zoom in on? In other words, how do you maximize your brain attic’s potential? You don’t just throw any old detail up there, if you remember Holmes’s early admonitions; you want to keep it as clean as possible. Everything we choose to notice has the potential to become a future furnishing of our attics — and what’s more, its addition will mean a change in the attic’s landscape that will affect, in turn, each future addition. So we have to choose wisely.
Choosing wisely means being selective. It means not only looking but looking properly, looking with real thought. It means looking with the full knowledge that what you note — and how you note it — will form the basis of any future deductions you might make. It’s about seeing the full picture, noting the details that matter, and understanding how to contextualize those details within a broader framework of thought.
But while our minds might be wired to wander, argues Konnikova, multitasking is a myth that only detracts from our productivity and intellectual efficiency:
As neurologist Marcus Raichle learned after decades of looking at the brain, our minds are wired to wander. Wandering is their default. Whenever our thoughts are suspended between specific, discrete, goal-directed activities, the brain reverts to a so-called baseline, ‘resting’ state — but don’t let the word fool you, because the brain isn’t at rest at all. Instead, it experiences tonic activity in what’s now known as the DMN, the default mode network: the posterior cingulate cortex, the adjacent precuneus, and the medial prefrontal cortex. This baseline activation suggests that the brain is constantly gathering information from both the external world and our internal states, and what’s more, that it is monitoring that information for signs of something that is worth its attention. And while such a state of readiness could be useful from an evolutionary standpoint, allowing us to detect potential predators, to think abstractly and make future plans, it also signifies something else: our minds are made to wander. That is their resting state. Anything more requires an act of conscious will.
The modern emphasis on multitasking plays into our natural tendencies quite well, often in frustrating ways. Every new input, every new demand that we place on our attention is like a possible predator: Oooh, says the brain. Maybe I should pay attention to that instead. And then along comes something else. We can feed our mind wandering ad infinitum. The result? We pay attention to everything and nothing as a matter of course. While our minds might be made to wander, they are not made to switch activities at anything approaching the speed of modern demands. We were supposed to remain ever ready to engage, but not to engage with multiple things at once, or even in rapid succession.
[…]
Attention is a limited resource. Paying attention to one thing necessarily comes at the expense of another. Letting your eyes get too taken in by all of the scientific equipment in the laboratory prevents you from noticing anything of significance about the man in that same room. We cannot allocate our attention to multiple things at once and expect it to function at the same level as it would were we to focus on just one activity. Two tasks cannot possibly be in the attentional foreground at the same time. One will inevitably end up being the focus, and the other — or others — more akin to irrelevant noise, something to be filtered out. Or worse still, none will have the focus and all will be, albeit slightly clearer, noise, but degrees of noise all the same.
Indeed, that allocation of attention to one thing at the expense of another produces a phenomenon known as “attentional blindness,” wherein our intense focus on a specific element makes us practically blind to all else. But there is hope in training. Konnikova offers:
The Holmes solution? Habit, habit, habit. That, and motivation. Become an expert of sorts at those types of decisions or observation that you want to excel at making. … If you learn first how to be selective accurately, in order to accomplish precisely what it is you want to accomplish, you will be able to limit the damage that System Watson can do by preemptively teaching it to not muck it up. The important thing is the proper, selective training — the presence of mind — coupled with the desire the motivation to master your thought process.
No one says it’s easy. When it comes right down to it, there is no such thing as free attention; it all has to come from somewhere. And every time we place an additional demand on our attentional resources — be it by listening to music while walking, checking our email while working, or following five media streams at once — we limit the awareness that surrounds any one aspect and our ability to deal with it in an engaged, mindful, and productive manner.
Konnikova argues that, not unlike willpower and habit loops, attention is analogous to a muscle that can get strained, but can also be bolstered with training and purposeful repeat use. She goes on to offer four key strategies for optimizing your attention:
- Be Selective
Our vision is highly selective as is — the retina normally captures about ten billion bits per sec of visual information, but only ten thousand bits actually make it to the first layer of the visual cortex, and, to top it off, only 10 percent of the area’s synapses is dedicated to incoming visual information at all. Or, to put it differently, our brains are bombarded by something like eleven million pieces of data — that is, items in our surroundings that come at all of our senses — at once. Of that, we are able to consciously process only about forty. What that basically means is that we ‘see’ precious little of what’s around us, and what we think of as objective seeing would better be termed selective filtering — and our state of mind, our mood, our thoughts at any given moment, our motivation, and our goals can make it even more picky than it normally is.
[…]
Our minds are set [for selective attention] for a reason. It’s exhausting to have the Holmes system running on full all the time — and not very productive, at that. There’s a reason we’re prone to filter out so much of our environment: to the brain, it’s noise. If we tried to take it all in, we wouldn’t last very long. Remember what Holmes said about your brain attic? It’s precious real estate. Tread carefully and use it wisely. In other words, be selective about your attention.
At first glance, this may seem counterintuitive: after all, aren’t we trying to pay attention to more, not less? Yes, but the crucial distinction is between quantity and quality. We want to learn to pay attention better, to become superior observers, but we can’t hope to achieve this if we thoughtlessly pay attention to everything. That’s self-defeating. What we need to do is allocate our attention mindfully. And mindset is the beginning of that selectivity.
- Be Objective
It’s psychologist Daniel Gilbert’s theory about believing what we see taken a step further: we believe what we want to see and what our mind attic decides to see, encode that belief instead of the facts in our brains, and then think that we saw an objective fact when really, what we remember seeing is only our limited perception at the time. We forget to separate the factual situation from our subjective interpretation of it.
[…]
Setting your goals beforehand will help you direct your precious attentional resources properly. It should not be an excuse to reinterpret objective facts to mesh with what you want or expect to see. Observation and deduction are two separate, distinct steps — in fact, they don’t even come one right after the other.
- Be Inclusive
Attention is about every one of your senses: sight, smell, hearing, taste, touch. It is about taking in as much as we possibly can, through all of the avenues available to us. It is about learning not to leave anything out — anything, that is, that is relevant to the goals that you’ve set. And it is about realizing that all of our senses affect us — and will affect us whether or not we are aware of the impact.
To observe fully, to be truly attentive, we must be inclusive and not let anything slide by — and we must learn how our attention may shift without our awareness, guided by a sense that we’d thought invisible.
- Be Engaged
When we are engaged in what we are doing, all sorts of things happen. We persist longer at difficult problems — and become more likely to solve them. We experience something that psychologist Tory Higgins refers to as flow, a presence of mind that not only allows us to extract more from whatever it is we are doing but also makes us feel better and happier: we derive actual, measurable hedonic value from the strength of our active involvement in and attention to an activity, even if the activity is as boring as sorting through stacks of mail. If we have a reason to do it, a reason that engages us and makes us involved, we will both do it better and feel happier as a result. The principle holds true even if we have to expand significant mental effort — say, in solving difficult puzzles. De- spite the exertion, we will still feel happier, more satisfied, and more in the zone, so to speak.
What’s more, engagement and flow tend to prompt a virtuous cycle of sorts: we become more motivated and aroused overall, and, consequently, more likely to be productive and create something of value.
In a section on the importance of distance in creative thinking, Konnikova echoes previous insights on the need for unconscious processing that allows for ideas to align:
One of the most important ways to facilitate imaginative thinking is through distance. In ‘The Adventure of the Bruce-Partington Plans,’ a case that comes quite late in the Holmes-Watson partnership, Watson observes:
One of the most remarkable characteristics of Sherlock Holmes was his power of throwing his brain out of action and switching all his thoughts on to lighter things whenever he had convinced himself that he could no longer work to advantage. I remember that during the whole of that memorable day he lost himself in a monograph which he had undertaken upon the Polyphonic Motets of Lassus. For my own part I had none of this power of detachment, and the day, in consequence appeared to be interminable.
Forcing your mind to take a step back is a tough thing to do. It seems counterintuitive to walk away from a problem that you want to solve. But in reality, the characteristic is not so remarkable either for Holmes or for individuals who are deep thinkers. The fact that it is remarkable for Watson (and that he self-admittedly lacks the skill) goes a long way to explaining why he so often fails when Holmes succeeds.
Psychologist Yaacov Trope argues that psychological distance may be one of the single most important steps you can take to improve thinking and decision-making. It can come in many forms: temporal, or distance in time (both future and past); spatial, or distance in space (how physically close or far you are from something); social, or distance between people (how someone else sees it); and hypothetical, or distance from reality (how things might have happened). But whatever the form, all of these distances have something in common: they all require you to transcend the immediate moment in your mind. They all require you to take a step back.
[…]
In essence, psychological distance accomplishes one major thing: it engages System Holmes.
Mastermind: How to Think Like Sherlock Holmes is fascinating from cover to cover — highly recommended.
Public domain images via Flickr Commons
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After his retirement as senior law lord, Bingham criticised the Iraq war as "a serious violation of international law". Photograph: David Levene
In November 2006, Lord Bingham delivered an academic paper called The Rule of Law. Disappointingly for the then senior law lord, "the legal correspondents of the leading newspapers largely ignored the lecture". Fortunately, though, in a column written a week later for the Guardian, Martin Kettle recognised its considerable importance.
Perhaps Kettle's article caught the eye of Penguin Books. It was they who persuaded Bingham to expand his lecture into the short volume from which I have taken the quotation in the previous paragraph. Bingham delivered his manuscript as promised and found it hard to understand why the publishers waited another year before bringing it out. They, in turn, were no doubt unfamiliar with authors who met deadlines.
I must plead guilty to being one of the legal correspondents who concluded that Bingham's lecture would never make the news pages. Sadly, the greatest judge of his generation is no longer able to hear my plea in mitigation - which is that, powerful advocate as Bingham was, he made his thesis appear so sensible, so obvious, that nobody could have thought there was anything new in it.
Far from it. Until Bingham spoke, "the rule of law" meant pretty much what Dicey had said it meant in 1885. Bingham's definition of that much-used term is now entirely authoritative and will probably remain so for the next 120 years or more. In summary, it is "that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."
There's a lot packed into that sentence and it's worth reading it again until you grasp what it means. Both in the lecture and more extensively in the book, Bingham expands his definition into eight sub-rules or principles.
First, he says, "the law must be accessible and so far as possible intelligible, clear and predictable". As he explains, this is a restraint on judicial activism. "It is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way."
His second principle is that "questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion". This does not mean that judges are automatons lacking the ability to take decisions in individual cases. But any discretion granted by law must not be exercised in an arbitrary fashion.
Third, "the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation". Equality before the law is rightly seen as a cornerstone of the constitution, though it did not deter the last Labour government from passing legislation in 2001 under which the only terrorist suspects who could be detained indefinitely were foreigners.
Bingham's fourth principle has been promoted from sixth place in his lecture. It is that "ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably". This is a fundamental and long-standing principle of public law, the basis of judicial review.
Fifth, says Bingham, "the law must afford adequate protection of fundamental human rights". In what may be seen as an attack from the grave on critics of the European convention within the current government, he demands to know which of the convention rights they would discard. "Would you rather live in a country in which these rights were not protected by law?" he asks sharply.
Sixth, Bingham continues, the state must provide a way of "resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve". As he recognises, this is more of an aspiration than an assessment of the current position.
Seventh, "adjudicative procedures provided by the state should be fair". His use of admittedly ponderous language is designed to embrace not only criminal trials but also civil hearings and administrative decisions.
Finally, says Bingham, "the rule of law requires compliance by the state with its obligations in international law as in national law". There are those who would argue to the contrary. But asserting this principle gives Bingham the opportunity to restate his view that Britain's invasion of Iraq in 2003 was unlawful, a view he was careful not to express in the lecture he delivered while still a judge.
There is much more to Bingham's book than a carefully-crafted set of principles. It takes in nearly 800 years of history from Magna Carta to his own famous ruling in the Belmarsh case, outlawing discrimination against foreign terrorist suspects. The Rule of Law is an ideal law book for those who wouldn't think of reading a book about law.
Guardian Books is offering £3 off the paperback edition of The Rule of Law until 5 December, with free delivery for all UK orders.
Conor Gearty wrote about The Rule of Law ("It reads like the transcript of a parlour game played by a particularly precocious set of undergraduates") in the Observer last year.
Calista Flockhart and Gil Bellows, star in the Fox series 'Ally McBeal'. The show always makes an appearance in top lists of legal dramas, but the law really only served as a backdrop to the surreal personal lives of the characters Photograph: Larry Watson/AP
Maxine Peake in Silk
Barristers complain on Twitter about the minor inaccuracies, and Maxine Peake strikes some as unconvincing. But at a time when the criminal bar is struggling to attract the best talent, it is probably the best recruiting tool the profession has. Few other series have portrayed so faithfully how sets operate and their members hustle for work. RT
A decade before Peter Moffat struck gold with Silk for the BBC, he wrote North Square for Channel 4. Set in Leeds, it stars some of the same cast (notably a younger Rupert Penry-Jones) and acquired something of a cult following among lawyers. Unfortunately, lawyers alone can't sustain a programme, and North Square was axed after one series. But you can still watch every episode online. RT
Surely the long-haired Cambridge student played by a brooding young Ewan McGregor can't be a serial rapist - or can he? ITV's Kavanagh QC was first broadcast in 1995 and starred John Thaw in the title role and Anna Chancellor as a barrister. The courtroom exchanges sound heavy-handed now but back then a successful drama series could pull in 13m viewers. Thaw reportedly hated wearing a wig. RT
Will Gardner in The Good Wife
The Good Wife has been hailed by many critics as a post-feminist legal drama, and it many ways it is: lawyer-turned-stay-at-home-mother Alicia Florrick is wronged by her powerful state's attorney husband, who is caught red-handed in a sexual scandal and sent to jail (parallels with DSK are so obvious that viewers may wonder which came first: reality or fiction). Left with two teenagers to provide for, 40-something Florrick has to climb back onto the legal bus to learn from scratch the ropes of the profession she left 15 years ago – not an easy feat in the world of Chicago law. The show's female characters are fantastic: nuanced, complex, with a dark side seldom shown in action-focused legal dramas. Florrick's internal struggle – to be a virtuous woman who is very much in public view, or to give in to her true desires – is a joy to follow.But it is the character of Will Gardner, prodigy-lawyer and partner of the show's legal firm, which really does it for me. Gardner (Josh Charles) is a young and viciously ambitious man who, has shown in the video above, has had to kill a part of himself to be at the top of his game. He can win a case with a nonchalant shrug, a thin smile and a killer line. He has no pity whatsoever for any of his adversaries, but falls for the woman he never forgot: Florrick, whom he dated at university. Gardner is the archetype of the "ruthless lawyer" common in too many TV series, but with a twist: his love for her is all-encompassing, and will cost him dearly. I'm a sucker for strong macho types who show signs of weaknesses after wrestling with their emotions, before finally surrendering to them. Cliché, but what can I say – it works. JR
A certain type of barrister will always model himself on the tenant of 3 Equity Court, who refused to prosecute as a matter of principle. John Mortimer wrote the TV scripts before setting off to the Old Bailey. The Penge Bungalow murders are probably his best-known case. RT
The final episode was broadcast in 1966, but Perry Mason continues to inspire a certain kind of American courtroom drama in which the gifted attorney dramatically demonstrates the defendant's innocence - often in front of a preliminary hearing, apparently because hiring extras to play the jury was expensive. RT
Ally McBeal
Ally McBeal always makes an appearance in top lists of legal dramas, but in fact the law only served as a backdrop to the surreal personal lives of the characters. A sample exchange between John Cage, partner at Ally's firm Cage & Fish, sums it up: "Because what you do want isn't out there. Secretly I think you know that. That's why you have developed this ability to look at a judge and see Al Green, to look at a cloud and see cotton candy." One of the most bizarre TV shows of the 1990s, Ally Mcbeal inspired a generation to think that being a lawyer was all about flirting in unisex toilets, dancing babies and Barry White cameos. MWR
Oliver Babish in The West Wing
The ultimate in-house lawyer, played by Oliver Platt, delivers the ultimate quickfire performance in two minutes of brilliant scripting and pacing. RT
Alan Shore in Boston Legal
Alan Shore (James Spader) delivers a moving courtroom speech on behalf of his client's right to give her sick father a fatal dose of morphine. John Mortimer was a consultant on the series, which ran for five seasons from 2004. RT
Maurice Levy in The Wire
Someone has to represent a bunch of violent drug dealers, and fortunately for them that man is the utterly unscrupulous Maury Levy (Michael Kostroff). In this scene, state's attorney Rhonda Pearlman (Deirdre Lovejoy) offers him a deal she thinks he can't refuse. RT
Saul Goodman in Breaking Bad
"Better call Saul!" We never see Saul Goodman in this clip. We don't need to, because the inflatable Statue of Liberty above his office says it all: "When the going gets tough, you don't want a criminal lawyer, all right? You want a *criminal* lawyer." RT
Josephine Karlsson in Engrenages
Engrenages - saison 3 - teaser Joséphine by mainstream-club
Of all these shows, Engrenages (broadcast in the UK under the title Spiral) feels both the most modern and the most persuasive. That's in large part due to Audrey Fleurot's performance, which takes elements of the familiar persona of the hardbitten female cop and brings them to her role as a lawyer. Engrenages offers a striking insight into the French criminal justice system, too. Series four is due to be broadcast in France next month. RT
The strange coincidence of Richard Parker (on the Speluncian Explorers, Life of Pi and Dudley & Stephens case)
In 1838 Edgar Allan Poe’s only full length novel, “The Narrative of Arthur Gordon Pym of Nantucket”1 was published. The novel was not a commercial, or literary success.
Poe’s novel is a seafaring tale about Arthur Gordon Pym who was a stowaway on a whaling ship called the Grampus. After a number of misadventures including a mutiny after which a number of crew were cast adrift on a small boat “Bounty -style”, three of the sailors, manage to retake control of the ship. They spare the life of one of the mutineers to help them run the ship. However further bad luck ensues when a storm hits and the mast is broken and the hold is flooded. The foursome find themselves adrift without provisions and facing death by starvation and thirst.
Ultimately with no land in sight and no rescue appearing likely, they decide to resort to cannibalism and draw straws to decide who will be killed.
Now if you’re reading this article and thinking that this story sounds familiar, it is because every law student knows the (in)famous necessity case: R v Dudley and Stephens (1884) 14 QBD 2732. The facts of that case commenced on 19 May 1884 when the yacht Mignonette3 set sail from Southampton bound for Australia4. On 5 July the four member crew were cast adrift in a lifeboat some 1600 miles from the Cape of Good Hope when the yacht sank after being damaged by a wave. After 21 days with no food or water, Dudley (with the agreement of Stephens) killed the cabin boy (being the youngest and weakest) for food. They were rescued four days later. Dudley’s diary in a masterstroke of understatement records the rescue occurred “as we was having our breakfast we will call it”5. On return to England, Dudley and Stephens were tried for murder, found guilty and sentenced to death. The sentence was not carried out and they were pardoned on the basis that they serve a prison term of six months. To escape the notoriety, Dudley migrated to Australia in 18856.
While the case seems to be an eerie example of life imitating fiction, an even more remarkable aspect of these stories is that the name of the fictional crew member who drew the short straw in Poe’s novel and the name of the real life cabin boy (murdered 46 years later) in Dudley and Stephens was both Richard Parker!
This story was apparently the inspiration for Lon Fuller’s “The Case of the Speluncean Explorers”7 and also for a Monty Python sketch8. In an interesting reverse twist, Yann Martel’s Booker Prize winning novel “Life of Pi” is about an Indian boy, Pi Patel who is stranded on a life boat with a fully grown bengal tiger for 227 days after the cargo ship transporting his family’s zoo sinks. The tiger’s name? – you guessed it – Richard Parker.
3The Mignonette was a 15.8m cruiser. Jessica Watson’s Pink Lady was 10.2m.
4The yacht had been purchased by John Henry Want who became Attorney General of New South Wales in 1885
6Later life did not go well for Thomas Dudley who became the first person in Australasia to die from the bubonic plague in 1900. He is buried at the North Head Quarantine Station in Sydney.
7Lon L Fuller (1949) 62 Harvard Law Review 616-645
8Monty Python’s Flying Circus, Episode 26 – Lifeboat (Cannibalism) sketch
Creative commons acknowledgment for the photograph.
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4.03 avg rating — 1,625 ratings45 
The Essential Federalist and Anti-Federalist Papers
by David Wootton (Editor)
4.09 avg rating — 101 ratings46 
The Supreme Court: The Personalities and Rivalries That Defined America
by Jeffrey Rosen
3.44 avg rating — 258 ratings47 
The Majesty of the Law: Reflections of a Supreme Court Justice
by Sandra Day O'Connor
3.51 avg rating — 230 ratings48 
Indefensible: One Lawyer's Journey Into the Inferno of American Justice
by David Feige
3.85 avg rating — 136 ratings49 
C Street: The Fundamentalist Threat to American Democracy
by Jeff Sharlet (Goodreads Author)
3.79 avg rating — 214 ratings50 
International Law
by Valerie Epps
4.00 avg rating — 2 ratings51 
Making Your Case: The Art of Persuading Judges
by Antonin Scalia
3.77 avg rating — 235 ratingsFlagging a list will send it to the Goodreads Customer Care team for review. We take abuse seriously in our book lists. Only flag lists that clearly need our attention. As a general rule we do not censor any content on the site. The only content we will consider removing is spam, slanderous attacks on other members, or extremely offensive content (eg. pornography, pro-Nazi, child abuse, etc). We will not remove any content for bad language alone, or for being critical of a book.
This list is not required reading. We share it with you as it may provide valuable insight into your future profession in the law. Think about your interests in the law, or your questions about the law school experience and consider reading a related book.
The lawyers' lawyer? Tom Bingham. Photograph: David Levene
Whatever did inquiring legal minds read before Lord Bingham published The Rule of Law? This slim volume has rapidly become the book Guardian-reading lawyers are most likely to recommend to anyone interested in the profession. As Joshua Rozenberg put it: "Bingham's definition of that much-used term is now entirely authoritative and will probably remain so for the next 120 years or more. In summary, it is 'that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.'
"Dear Sam, I hope you don't mind me writing to you in this way..." The only book to receive as many nominations as Bingham's was Letters to a Law Student, by All Souls fellow and director of studies at Pembroke College, Cambridge. Solicitous, authoritative and hardly discounted even by Amazon, it knows its audience - those who already have a place to read law are advised to skip the first chapters.
Welsh legal scholar Williams died in 1997, but Learning the Law lives on - though much of the rest of his prolific output is out of print. His support for legalising abortion and euthanasia, as well as his role in decriminalising suicide in 1961, earned his reputation as a reformer. But not everyone is a fan. "I read it once and I've never touched it again," wrote Stephen Clark (LLB Exeter and about to start his BPTC). "This is supposedly the standard introductory text, but I couldn't encourage students enough to stay away from it. It really won't help when it comes to knowing the law, it won't help when it comes to understanding the law and it won't impart you with the skills necessary to do well on the LLB."
Recommended by - among others - Southampton University lecturer Mark Telford, What About Law? describes the various fields of law in engaging detail, though is less forthcoming with practical advice. Opens with the legal implications of the wild party 17-year-old Laura throws while her parents are away for the weekend.
Baroness Kennedy, as listeners to her current Radio 4 series will know, is as much concerned with justice as the law. Much of this lively and highly readable book is devoted to exploring the myriad ways in which the legal system has let down women - as lawyers, victims and defendants - though there is also plenty of optimism, particularly about the ability of women to rise to the top of the legal establishment. Kennedy's Just Law was also nominated.
Somewhere in the new Rolls Building, a modern Jarndyce v Jarndyce is doubtless lumbering - or perhaps the Technology and Construction Court is hosting a particularly lengthy dispute involving tree roots. Dickens was a court reporter for four years and undoubtedly drew on his experiences, particularly at the Old Bailey, for his fiction - this coining trial may have inspired part of Great Expectations.
Other nominations
Cardiff and UCL academic Richard Moorhead: The End of Lawyers by Richard Susskind
UK Human Rights Blog editor and 1COR barrister Adam Wagner: Geoffrey Robertson's The Justice Game
Carrie Alcott: How Law Works by Gary Slapper ("Absolutely brilliant. Have just read it now, going in to my final year, and really wish I'd come across it before I began studying")
Lila Lamrabert: The Law Machine by Clare Dyer and Marcel Berlins
Michael Zymler and Jennie Evans: How To Win Every Argument: The Use and Abuse of Logic by Madsen Pirie
Jason Miller and Emma Morris: The Case of the Speluncean Explorers by Lon Fuller (Miller: "Jurisprudence isn't everyone's cup of tea but it shows a variety of legal and moral viewpoints.")
Stacey Roden: Learning Legal Rules by James Holland
Paul O'Grady: A Short History of Western Legal Theory by John Kelly
Marika Giles Samson: The Best Defense by Paul Dershowitz
Jack Gilbert: The Colour of Law by Mark Giminez ("on a purely motivational basis")
Students' tales of the unexpected30 August 2012
What is a deadline to the legally dead, spooks and spymasters? Jack Grove on extraordinary excuses
Credit: Getty
Spirited defence: student's 'genuine belief' in ghosts won deadline extension
Ghosts, erupting volcanoes and the outbreak of civil war are some of the stranger excuses offered by students who failed to submit work on time.The list of unusual excuses has been compiled by John Curry, lecturer in computing at City of Bath College, who contacted Times Higher Education after reading about the comical crop of exam howlers in this year's annual competition.
Mr Curry, who teaches a BSc in applied computing accredited by the University of Bath, said he had been amused and amazed by some of the extraordinary legitimate reasons and genuine excuses that he had been given over the past 14 years.
One student asked for extra time after he was wrongly held as a spy in China, while another undergraduate gained an extension because he had been declared legally dead and the Indian government was trying to seize his home, Mr Curry said.
One student asked for leniency because his World of Warcraft character had died.
Variations on "the dog ate my homework" excuse have met with little sympathy - these have included pets deleting work or eating a USB stick. Similarly, pet illnesses and disappearances cut no ice.
"Some of the excuses seem pretty improbable, but when you have someone's death certificate in their hands, you have to accept their excuse," said Mr Curry, an expert on cyberwarfare.
Excuses relating to IT disasters that were once accepted by lecturers now tend to be dismissed, he added.
"Students are told to back up their work, and universities now have extensive IT facilities if something happens," he said.
"Some of the excuses are just [a way] to stall for 24 hours. If you go on social media, you can improve your mark marginally by just picking up on the gossip about a paper.
"I think lecturers are more aware that undergraduates communicate with each other like this."
Other stalling excuses include "I left my work at home", "lent it to a friend who lost it" and the bluff - "I thought the hand-in was tomorrow", Mr Curry added.
More unusual, but bona fide, reasons he has encountered include students being held at gunpoint, being unable to fly to the UK because rebels were shelling an airport and being kept awake by a ghost.
"That person genuinely believed there was a ghost and I actually accepted their word and gave them a few more hours," he said.
"I'm actually more sympathetic to someone who just says 'I have not done the work' because they are being honest. I might give them a few more hours. However, that is very, very rare - it's only happened on one occasion."
jack.grove@tsleducation.com.
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Image Copyright jonasj (Flickr), 2011
I. Introduction
Suppose that every morning you woke up and made yourself a pot of coffee. But did you really make that coffee? You put the coffee grounds into the coffee pot, then you poured the water in, and finally you turned on the coffee pot. The water was then siphoned through the coffee grounds and brown (coffee) water inevitably ended up in the pot. You had to be the one that made the coffee, right? Technically, one could argue that it was the coffee machine that made the coffee and you simply helped perpetuate its process.
This conundrum arises because of the word “make” and how society defines it. Typically, if you go into a dictionary, and look up a word such as “make,” there will be a laundry list of sentences explaining its meaning, based upon the context that the word is used within the English language. Of course the coffee scenario above does no more than stir up a little common debate about semantics; however, imagine you were facing a twenty-year prison sentence if it was found that you were the one who made the coffee. In People v. Hill, the Michigan Supreme Court was faced with that decision, yet rather than determining who made the coffee, the Court determined whether someone “made” (or “produced”) child sexually abusive material.1
The Michigan Supreme Court made a massive and elementary error when it held in Hill that the defendant merely possessed child sexually abusive material.2 The decision inevitably limited the applicably of § 750.145c(2), and now it only applies to individuals who originally create child sexually abusive material.3 However, this paper will show that, the Michigan legislators clearly intended § 750.145 to include individuals who reproduce the material, which includes Hill’s acts.4
Section II(i) will outline the history of statutory interpretation, specifically in Michigan. Sections II(i) and II(ii)(1-3) will discuss the legislative history and precedent surrounding § 750.145c. Sections II(iii)(1-2)(a-b) will then walk through the procedural history of People v. Hill, which includes two Court of Appeal decisions, a Federal Court decision, and multiple Supreme Court decisions. Section II(iv) will discuss the most recent Supreme Court opinions influenced by the Hill case. Section III will then explain the proper analysis of Hill and ultimately set-up Section IV, the proper interpretation of § 750.145c(2)
II. Background
i. Statute Interpretation
When determining the meaning of words and phrases used within a statute, courts rely on the rules of statutory interpretation.5 The goal of interpretating a “statute is to ascertain and give effect to” the legislature’s intent.6 The first step in interpreting any statute is to review and read the language of the statute, and if the language is clear or unambiguous then no further anaylsis is needed.7 When the statute contains undefined terms they should be given their plain and ordinary meaning while attempting to remain “consistent with the legislative aim [used when] enacting the statute.”8
If the language within a statute is ambigious, a court may go beyond the words provided in the statute in order to ascertain the legislator’s intent.9 An ambiguity exists when the language “used in its particular context has more than one common and accepted meaning.”10 However, an ambiguity is overted when “common words [are] used in their ordinary fashion,” and thus leads to only one reasonable conclusion.11
The rules of statutory interpretation should only “serve as [a] guide . . . to assist the judiciary in determining the intent of the legislature.”12 On the other hand, the words and phrases within a statute are the “most reliable [proof] of the [l]egislature’s intent” and “every word, phrase, and clause” within the statute should be given effect.13 Further, a “[c]ourt must presume that every word has some meaning” within the context of the statute.14 However, it should “avoid a construction that would render any part of a statute surplusage or nugatory” while maintaining the intended “grammatical context, unless it is clear that something different was intended.”15
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In yesterday’s Irish Independent, Dearbbail McDonald reported that the public will get better access to court documents under plans being considered by the Government:
Ireland is unique among countries with a common law system as it does not provide access to court documents. Members of the public, as well as the media, have no way of securing access to documents, including court statements and legal submissions, that are opened and relied on in legal proceedings. …
The lack of access to court files has been raised in submissions to amend the forthcoming Legal Services Regulation Bill.
The image above is of the Irish Petty Sessions Court, taken from the Illustrated London News in February 1853, and it shows open justice at its best: a packed courtroom, with a full crowd following the proceedings. The Petty Sessions Court was established by the Petty Sessions (Ireland) Act, 1851; and it has long since been subsumed within the District Court.
I have referred to aspects of the Legal Services Regulation Bill, 2011 already on this blog; and I hope that this welcome and significant development will find a legislative home when the Bill becomes law. Strictly speaking, this is unnecessary, as there already exist various rights of access to such material, at common law, under the European Convention on Human Rights, and under the Constitution; but an addition to these rights is very welcome.
For example, at common law, the Court of Appeal in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012) (blogged here) emphasised the centrality of open justice and the rule of law to the common law tradition, and upheld the Guardian’s application for access to court documents opened during a high profile extradition hearing. It would be unfortunate if any access provisions added to the Legal Services Regulation Bill were to cut down on this common law right. However, given that the statutory incorporation of the European Convention on Human Rights mean that any legislative restrictions upon the principle of open justice must be read in a manner compatible with Convention rights such as Article 6 (fair trial) and Article 10 (freedom of expression), there would be interpretative limits on any restrictions on open justice added to the Legal Services Regulation Bill. Moreover, the Constitution would place even more substantive limits on such restrictions (in common with other jurisdictions, such as the US, South Africa, and Canada, where the principle of open justice is underpinned by constitutional provisions), so that an overbroad or disproportionate restriction upon the principle of open justice in the Legal Services Regulation legislation would be unconstitutional.
In many ways, therefore, provisions in the Legal Services Regulation Bill providing for access to court documents will simply restate rights that already exist. However, if they encourage the exercise of these rights, then that will be a good day’s work. We might not get courtrooms as packed as in the picture above. However, if court documents are available to the media to explain proceedings to the public (as the Supreme Court explained in Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161), then that will be a thoroughly good thing for the rule of law and Irish society.
Update 1: following up Dearbhail’s article in yesterday’s Irish Independent, Seth Tillman draws my attention to his op-ed in the same paper: Time to open up courts and let justice be seen. He points out that the High Court of Australia posts the parties’ legal submissions on its website; that in the US, legal submissions are posted on the websites of the two dominant electronic publishers, Westlaw and LexisNexis; and that in Canada, England & Wales, New Zealand, and South Africa, processes are place for the public to request such documents. In his view, there are four compelling arguments why similar materials should be publicly available in Ireland as well:
First, the current position of the Irish courts is inconsistent with modern notions of transparency, access to information, … simple fairness[,] … [and] prevailing western good governance norms. …
Second, these submissions often form the basis of hearings, oral arguments, and other trial court or appellate proceedings. But such proceedings are incomprehensible (or nearly so) without advance access to these documents. …
Third, competition for legal services is stifled by the lack of public access to these documents. … [Lawyers] who wish to practise in a specialty which is new to them lack access to a library of written filings to use as models. Ultimately, this bids up the price for legal services at the expense of overall consumer welfare. …
Fourth, the only way journalists can get copies of legal submissions in advance of a hearing is to ask (actually, beg) … [lawyers] on the case for a copy. … [Such lawyers] can extract favourable coverage from journalists covering public proceedings. … If you want honest newspapers and media coverage, you have to open the courts up.
I am therefore with him that the Legal Services Regulation Bill should institute a reasonably transparent process permitting public access to court documents, such as legal submissions and court transcripts. Time will tell whether this hope will be realised.
Update 2: Two other Irish blawggers have taken up Tillman’s op-ed. First, Paul McMahon on Ex Tempore writes about his frustrations at running a blog about the Irish Supreme Court and seeking to blog about upcoming hearings and decisions without access to the parties’ submissions. And he argues that “regardless of whether access to court documents is protected by the letter of the Constitution, a blanket ban on access violates its spirit”. For the kinds of reasons I explore here, I entirely agree. Second, Rossa McMahon on A Clatter of the Law argues that, since we can’t all access the courts, we should at least have access to court documents:
Tillman is absolutely correct in arguing that the lack of public access to court documents effectively limits public access to the courts and therefore the citizen’s right to see justice being done. In addition, it must obviously make life unnecessarily difficult for journalists who must rely on what is said in court along with whatever information the parties are willing to share. In fact, it is often difficult or impossible to even obtain a copy of a written judgment resulting from court proceedings.
As I have commented before on this blog, Justice may be blind, but the public are not, and they should not lightly have blindness thrust upon them.
This entry was posted on Thursday, August 23rd, 2012 at 12:15 pm and is filed under Open Justice. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Women in robes
In an article entitled "Women in Robes" appearing in the most recent issue of the Americas Quarterly, a policy journal, I present statistics on the number of women in the judiciary around the world and argue for gender parity to further equality, enhance courts' legitimacy, and strengthen the rule of law. (A popular Venezuelan blog has written about the article here.)
I am not the first to present such arguments. IntLawGrrls contributor Judge Patricia M. Wald, among others, has made the case that the contribution of women judges on international criminal tribunals was essential to prosecutions of rape as a crime against humanity. In a recent article in the Chicago Journal of International Law, IntLawGrrls contributor Nienke Grossman contended that sex representation is important for the legitimacy of international tribunals.
In arguing for increased gender parity in courts, Wald and Grossman, among others, claim that women may reach different (and presumably better) decisions than men. Scores of empirical studies have attempted to determine whether the gender of a judge makes a difference to his or her decisions. Consider the findings of a 2010 American Journal of Political Science article, "Untangling the Causal Effects of Sex on Judging", by Professors Christina L. Boyd (SUNY Buffalo Department of Political Science), Lee Epstein (now at the University of Southern California School of Law), and Andrew Martin (Washington University School of Law).
These co-authors reviewed over 30 empirical studies that had been designed to determine whether the gender of a judge influences the decision he or she makes. Depending on the methods employed and proxies and data used, the studies reached divergent conclusions. About one-third showed that women judges come to different conclusions than male judges. About one-third had mixed results. And the final third found no sex-based differences whatsoever.
In their own study on the topic, Boyd, Epstein, and Martin analyzed 13 areas of decisions handed down by U.S. appellate courts, courts in which judges hear and decide cases in panels of three. They found that in cases implicating sex discrimination in employment, the probability of a judge deciding in favor of the party alleging discrimination decreased by 10% when the judge was a male. Conversely, when a woman was on such a panel, the likelihood of a male judge ruling in favor of the plaintiff increased from 2% to 14%.
In my own experience with working with judges, as the Faculty Director of Cornell Law’s Avon Global Center for Women & Justice, I have found that women judges can have broad impact in the courts over which they preside and countries in which they work.
There are numerous examples of positive structural changes initiated by women judges, such as courts where child-witnesses can testify without confronting their abusers and the provision of legal aid to domestic violence victims. These structural changes have improved access to courts for women litigants.
Yet, to echo a word of caution voiced in a 2009 article by University of Chicago Law Professor Rosalind Dixon, not all women judges will make decisions that feminists consider positive. Indeed, some can do more damage than good.
Several years ago, for a report on women in prison, I interviewed a woman who had just been released from a New York state prison after serving 17 years for killing her boyfriend, who had repeatedly beat and raped her. The act for which she was convicted occurred while she was defending herself against a beating. The judge told her to take a plea agreement. Raising of a “battered women’s syndrome” defense was resisted, because the judge could not believe that the defendant, as a white, employed, and educated woman, could suffer from that syndrome.
The judge was a woman.
Signed the Law of School Quotas ... Brazilian President Dilma Rousseff. Photo: AFP
RIO DE JANEIRO: The Brazilian government has enacted a sweeping affirmative action law, requiring public universities to reserve half their admission spots for the largely poor students in the nation's public schools and vastly increase the number of university students of African descent across the country.
The law, signed this week by the President, Dilma Rousseff, seeks to reverse the racial and income inequality that has long characterised Brazil, a country with more people of African heritage than any nation outside Africa.
''Brazil owes a historical debt to a huge part of its own population,'' said Jorge Werthein, the director of the Brazilian Centre for Latin American Studies. ''The democratisation of higher education, which has always been a dream for the most neglected students in public schools, is one way of paying this debt.''
Affirmative action has stirred controversy and opposition, even at some of the state universities that are exempt from the new law and have their own programs to admit underprivileged students. Critics contend that enforcing expansive quotas will undercut the quality of Brazil's public university system, given the nation's relatively weak public elementary and secondary schools.
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Although the new legislation, called the Law of Social Quotas, is expected to face legal challenges, it drew broad support among legislators.
Of Brazil's 81 senators, only one voted against the law this month. Other spheres of government have also supported affirmative action measures. The Supreme Court unanimously upheld in April the racial quotas enacted in 2004 by the University of Brasilia, which reserved 20 per cent of its spots for black and mixed-race students.
Dozens of other Brazilian universities, both public and private, have also adopted their own affirmative action policies in recent years, trying to curb the dominance of such institutions by middle- and upper-middle-class students who were educated at private elementary and secondary schools.
Public universities in Brazil are largely free of charge and typically of better quality than private universities.
The Law of Social Quotas takes the previous affirmative action policies to another level, giving Brazil's 59 federal universities just four years to ensure that half of the entering class comes from public schools.
Luiza Bairros, the minister in charge of Brazil's Secretariat for Policies to Promote Racial Equality, said officials expected the number of black students admitted to these universities to rise to 56,000 from 8700.
The New York Times
Does this guy look boring? Photograph: Joe Wrinn/AP
In an episode of The Simpsons, the juvenile delinquent Jimbo Jones helps a group which is trying to reduce crime in the community. The scheme, however, goes badly wrong. Disenchanted, Jimbo turns to another member and says "Hey man, you've really let me down. Now I don't believe in anything anymore. I'm joining Law School".
Although law is sometimes portrayed as a dull discipline pursued by ethically dubious practitioners, it is a spellbindingly vivid and varied subject which affects every part of human life.
Physics, history, Spanish, business, architecture, and other subjects are all vital disciplines but law permeates into every cell of social life. Law governs everything from the embryo to exhumation. Law regulates the air we breathe, the food and drink that we consume, our travel, sexuality, family relationships, our property, sport, science, employment, education, and health, everything in fact from neighbour disputes to war.
A university law degree is the most adaptable of academic qualifications. Only people who want to become doctors study medicine whereas people with diverse career plans study law.
Many law graduates, of course, do go on to become solicitors or barristers but, equally, many others use the qualification to become successful in companies, academic research, the media, the civil service, local government, teaching, campaign organisations, and politics - over 80 MPs, for example, have law degrees.
Being educated in logical thinking, the articulate expression of complex ideas, the composition and art of argument, and how to use evidence and rules, law graduates have an excellent record of employability. A law degree can prepare someone for work at the highest levels – many world leaders are lawyers including Barack Obama. Other law graduates such as Gandhi, Nelson Mandela, Derren Brown, Gaby Logan, and Gerard Butler, chose different careers.
Historically, legal education had a bad start. The law schools set up in London in the early thirteenth-century were banned in 1234 by a writ of Henry III. He thought trouble would come from people knowing the law. Later, it was the disciples of Jeremy Bentham who launched the first degree in English law, at University College London in 1826. The first graduating class of three was in 1839.
Legal study develops organically in line with social needs. Today, areas of study and practice like sports law, media law, immigration law, human rights, and international criminal justice are very important, though they did not exist as recently as fifty years ago.
Much legal study involves reading and discussing the decisions of appeal courts. Only particularly unusual cases are appealed so the law reports are brimming with interesting and unusual human dramas.
There are over a million decisions you can study – reading them all, though, is not compulsory as your law lecturers appreciate the need for you also to engage in essential life-supporting activity such as sleep. You will learn many areas of law including the rules that determine whether a judge is being impartial, how contracts are made, and how careful the law requires people to be when they do everything including surgery, sport, science, and even manoeuvre during sex.
The courts showcase a constant run of extraordinary and bizarre cases spanning eight hundred years, and there are many colourful decisions from other jurisdictions. Recent examples have included whether you can sell your soul on the internet, a court order which forbade a man from laughing in public, a lawyer who tried to use quotations from the film The Hangover in arguing for his drunken client, another lawyer who was caught using Wikipedia for his arguments, and the question of whether a vibrating condom is technically a contraceptive or a sex toy.
Law is an organic body of rules and good lawyers help to reshape it. As one judge, Lord Denning, noted in a case in 1954, just because something has never been argued before doesn't mean it is wrong. He said:
"If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on: and that will be bad for both".
Knowing the law is empowering. The American comedian Jerry Seinfeld said that a lawyer is "the person who knows the rules of the country". He said "we are all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box". Controlling everything, law is a constantly stimulating and hugely important game.
TORT
Tort is more an umbrella of different topics than a single subject. It covers civil wrongs that aren't crimes but, if proved, result in compensation for the loss suffered. You'll cover the principles and key cases that developed them.
Perhaps the best thing about tort is that you'll study the law behind headline stories. Should the Catholic church be responsible for abuses committed by priests? You'll look to recent developments in the tort of negligence for this. Is there a tort for breach of privacy? Naomi Campbell's case against the Mirror newspaper will shed some light. And the most interesting areas are those where strict legal principles either give way to a broader sense of fairness and justice - or don't.
That torts change over time may make the subject interesting, but it is also the biggest challenge: caselaw governs most torts, which means a lot of reading judgments. Get used to reading long, often meandering, sometimes pointlessly complex essays written by judges. Then ignore the writing style of most of them for your own work, and aim for crisp, well-referenced arguments.
CONTRACT
This states the obvious, but contract law covers all of the features of contracts: when a contract is formed, how to end a contract, and what counts as having performed contractual obligations.
After studying contract law, you won't be able to go to the student bar's 2-4-1 all-night-free-boozathon without wondering if you've given consideration for the drinks. You'll also develop a strong understanding of what a smoke ball is (no, it isn't that).
But contract law won't just make you a party bore. An understanding of it is essential for civil legal practice. It underpins commercial law and opens the door to employment law. There is also a strong contrast with European legal systems in contract law, and an increasing influence of EU law. Though there are firm principles that you must learn, there is also room to develop your own views.
LAND/PROPERTY
Studying property law will bring a new meaning to the word interest. At its heart, property law aims to teach you when an interest in land is valid in law, how to create one and when it is necessary.
This knowledge is clearly of practical use. Before I went to university I didn't know what a mortgage was. Some of you will, unfortunately, have landlords at university that are less than scrupulous. Land law includes tenancy rights and obligations. It's practicality is land law's strength, but be wary of giving out advice just because you study law.
Lowlights definitely include the Law of Property Act 1925 - which includes what seems like thousands of schedules and millions of paragraphs detailing types of interest in land, all of which need to be learned. For me, this was like trying to learn an Excel spreadsheet by heart. However, land law rewards those that buckle in and get on with it - marks are relatively easy to gain if you put in the hard shifts.
EQUITY/TRUSTS
Perhaps the most mysterious of the core subjects, equity used to be a different type of law, built on ideas of natural law and justice, with disputes settled in different courts to common law. In the 1870s (that's recent in the context of English law), the division was abolished.
This left us with the law governing equitable interests. One important type is an equitable trust and many equity courses will focus on the formation and effect of trusts. Equity isn't a core subject in many degree programmes, and many aspects of trust law are taught in property courses.
EUROPEAN UNION LAW
This subject covers the institutions, legislation and cases of the EU, and if you're wondering why it's a core subject, then it will be an eye-opener.
EU law is firmly embedded in domestic law because of the European Communities Act 1972. It means European treaties and regulations have effect here and EU directives must be implemented. The EU principles of free movement of goods, workers and services are also applicable in England and Wales. The meat of the subject is in understanding how these features are implemented and what happens if they aren't.
The most interesting part of the subject was learning that great swathes of our law are dependent on EU legislation. Sex discrimination, other employment law, and parts of immigration law have a huge debt to the EU.
I also think it's a subject that clicks into place when you understand the main principles. A lot depends on how you learn: figure out what works for you, then use it to learn the key structures and this will be an enjoyable subject.
HUMAN RIGHTS
Human rights law isn't a core course everywhere but is often offered as an option, and human rights law now threads through most other core subjects.
Clearly the Human Rights Act 1998 (HRA) is central. But it's also only half the story. You will cover case law from the European court of human rights in Strasbourg as well.
Human rights law is brimming with controversy and is rarely out of the news. Should Abu Qatada be deported? How far should freedom of expression stretch? Are our courts subservient to Strasbourg? Each of these questions rests on human rights law. And studying it is a great myth-busting tool - you will be able to spot the many incorrect statements made by press and politicians.
A note of caution - as a subject strongly influenced by politics, history and current affairs it may be easy to get carried away in fascinating debates. But your course will deal with each right guaranteed by the HRA in turn and the slightly mechanistic way courts have interpreted them. It is important to get a handle on this, as well as the sexier aspects of human rights law.
CRIMINAL
Criminal law is almost certainly allocated as a compulsory subject in order to reassure law students that there is more to law than corporations, tax and contracts. Instead you will find yourself studying the laws of murder, grievous bodily harm, criminal damage, how to plead a successful provocation defence, and in what circumstances sadomasochistic acts in your own home may be unlawful (every law student's favourite: R v Brown).
S&M aside, the study of the law of crime is equally interesting as it is challenging. It's the first subject of the law degree where you will find yourself using Latin phrases regularly, and time is taken to get to grips with psychological concepts such as intent, recklessness, insanity and diminished responsibility. Far from enabling you to simply stand up in court and argue a criminal defence, studying crime will equip you with an understanding of the individual elements of a crime, while providing some of the most interesting caselaw you will come across during the degree.
PUBLIC/CONSTITUTIONAL
One of the most engrossing elements of public law is its current nature and relevance. Study is fast-paced and analytical, as you can find yourself studying the benefits of the relatively new supreme court one day, and arguing for or against House of Lords reform the next. Conceptual issues such as sovereignty of parliament and whether the Crown should be "above the law" ensure that there is plenty of room for debate, and current affairs are just as relevant as historical legislation.
You will quickly grasp the legislative process, and understand the roles of various public bodies, whether looking at judicial reform, ministerial practices or the duty of the executive. Far from a dull overview of the government and courts, public law is an opportunity to really understand the inner workings of English law, and the decisions which affect citizens every day.
Ros Taylor asks: Consider this London Underground poster. What might a lawyer find interesting about it? (C) M&C Saatchi
The ethical dilemma
Imagine you live in a country that practices the death penalty for child murder. Your client is arrested on suspicion of murdering a teenage boy. He is also suspected of the abduction and possible murder of two teenage girls from your neighbourhood. In the course of your first meeting he confesses to killing the boy. He also tells you that he has killed the two girls and hidden their bodies. He is hazy about how they were killed, but suggests each death was an accident. He draws you a map. He then instructs you not to disclose the location of the bodies unless prosecutors agree not to seek the death penalty. Are you able to offer to get your client to reveal the location if prosecutors undertake not to seek the death penalty? The police leak your negotiation strategy to the press. There is uproar. The father of one of the girls comes to see you to asks you to tell him where the body is. He says he will tell no one that you told him if you reveal the information. Can you tell him? Should you?
Richard Moorhead, currently Professor of Law at Cardiff University and future Professor of Law and Professional Ethics at University College London
To publish or not to publish
Scarlett has just been appointed to be a main board director of one of the largest companies in the world. She is the first woman to be appointed to the board of this company and as a result there is considerable media interest in her. Lesley, a journalist with the Daily Sludge, has acquired the following information from one of Scarlett's friends:
(a) The fact that Scarlett had an abortion while she was at university;
(b) The fact that Scarlett paid a nanny, who was from Thailand and did not have a right to work in the UK, in cash.
Additionally, Lesley has acquired, from a Facebook friend of Scarlett's, a photograph taken outside a nightclub of Scarlett engaged in what appears to be a passionate kiss with a woman. On the basis that both facts are true and the picture is genuine, should Scarlett be able to prevent the Daily Sludge publishing the facts and/or the photograph, and if it does publish should the Daily Sludge and/or Lesley incur any legal liability?
Alastair Mullis, professor and head of the Law School at the University of East Anglia
Can they sue?
X plc, a drug company, invents a new drug to alleviate GKW, a painful skin condition for which there is at present no other cure. Tests conducted on animals suggest that it is safe, but no one can tell whether it will produce unwanted side effects on humans until it has been tried on them. Wishing to find out, X plc offers the drug to GKW suffers, on condition that they sign a "waiver clause" in which they agree not to sue X plc if any unwanted side effects occur. It quickly emerges that, though the drug helps the great majority of users without producing side effects, in a small minority it causes severe and disabling arthritis. Among the subjects so affected are Tom, Dick and Harry, who wish to claim compensation from X plc, despite the fact that they signed the waiver clause. Advise them.
John R Spencer, professor of law at Cambridge University
Showing discrimination
Sarah works in a large department store. The dress code of the store requires that female staff wear full makeup. However, Sarah becomes a Christian and comes to believe that the Bible discourages women from the vanity of wearing make-up. Because she refuses to wear makeup to work, she is dismissed. Sarah thinks that she has been discriminated against and that she should get her job back. Her employer argues that they are entitled to require employees to comply with a particular image and that, if Sarah is not able to do that, she should not be working for them. Is this religious discrimination?
Dr Chloe Wallace, lecturer in law at Leeds University
On the weekend it was reported that Tasmania intends to legalise same sex marriage despite the Commonwealth Marriage Act 1961 defining “marriage” as being between a man and a woman. Given that apparent discrepancy, does Tasmania have the power under our Constitution to pass a same-sex marriage law? I will briefly answer this question below. I also refer people to the detailed advice on this matter given by Professor George Williams in 2005.
Australia is a federation. Under our Constitution, power is split between the federal government (“the Commonwealth”) and the States. Most of the federal government’s powers are spelt out in section 51. Under s. 51(xxi), the Commonwealth has power over the subject matter of “marriage”: this provision provides the Commonwealth’s authority to enact the Marriage Act. However, the powers in s.51 are “concurrent” powers, meaning they are shared between the Commonwealth and the States. Hence, the States too have power over marriage.
Given that the Commonwealth and the States can legislate in the same area, there is the potential for inconsistency. Section 109 of the Constitution tells us how to resolve inconsistencies. Basically, the Commonwealth law will prevail.
So how is “inconsistency” determined? Is it likely that the Tasmanian Act would be struck down as being inconsistent with the Commonwealth Act? I speculate on this below, though it is acknowledged that there is as yet no draft of the proposed Tasmanian law. Bills, which have since lapsed, circulated in 2005 and 2008.
The first test of inconsistency is to ask whether simultaneous obedience is impossible. Does one law compel what the other demands? This test will not apply. For a start, neither the Commonwealth Act or any proposed Tasmanian Act will compel anybody to get married.
The second test is to ask whether one law confers a right taken away by the other. Certainly, the Tasmanian law would grant a right for same sex couples to get married which is not recognised under Commonwealth law. But the Commonwealth does not take away such a right: it does not prohibit same sex marriage at the State level. The Marriage Act has nothing to say about that matter.
The most likely source of inconsistency, if one exists, lies under the third test of “cover the field” inconsistency. Under this test, a State law will be deemed to be inconsistent if it is found that the Commonwealth intended for its law to be the sole law on the topic in question (ie. it intends to “cover the field”).
With regard to the Commonwealth’s intention, section 6 of the Marriage Act explicitly preserves the validity of State and Territory laws relating only to the registration of marriage. Section 6 therefore seems to implicitly exclude the validity of State and Territory laws relating to other aspects of marriage. That is, the Commonwealth has signalled an intention to cover the field of all aspects of marriage besides registration. Which is not promising for the Tasmanian law.
But what in fact is “the field” of the Commonwealth law? Identifying the field (ie the topic of a law) for the purposes of section 109 is notoriously unpredictable.
If the field is “marriage”, then the Tasmanian law would be in constitutional trouble. However, Professor Williams suggests that the field is in fact “opposite sex marriage”, thus leaving the field of “same sex marriage” open for the States. In this regard, he points to the parts of the Commonwealth Act dealing with the recognition of marriage solemnised in foreign countries. Section 88EA makes it clear that same sex marriages conducted overseas are not recognised as “marriages” under the Commonwealth law. Given the Parliament clearly turned its mind to this issue, it is significant that the law says nothing about the recognition of same sex marriages conducted in Australia. That may indicate that that field was simply vacated for the States. On the other hand, given that s88EA deals to a small extent with same sex marriage, that may make it more difficult to argue that the field of the law is confined to “opposite sex marriage”.
The explicit reference to marriage being between a man and a woman in the Marriage Act was introduced by amendments in 2004, and was clearly designed to head off arguments that the Act allowed same sex marriage. Ironically, if Professor Williams is correct, the Howard government amendments may also have the effect of reducing the field of the Commonwealth law, and opening up space for Tasmania to fill.
There are international precedents for same sex marriages being performed at a provincial rather than national level. Same sex marriage is permitted and recognised in a number of US states, but not at the federal level. They are also performed in Mexico City, and these marriages must be recognised throughout Mexico.
If Tasmania is to pass the proposed legislation, it will complete a remarkable journey. Tasmania was the last State to decriminalise same sex relations. In 1994, those laws were found by a United Nations body to breach Australia’s international human rights obligations in Toonen v Australia. The State government only reluctantly repealed the law in 1997 when it became clear that they were unconstitutional, as the Commonwealth had overriden them in 1994 in response to the UN decision. Now it seems that Tasmania may be the first domino to drop in recognising same sex marriage.
Such a law will likely face constitutional challenge, and it is not certain that it would survive. However, any victory by same sex marriage opponents could well be short-lived, as the momentum towards acceptance of same sex marriage in this country seems unstoppable.
Pussy Riot is a collective of young, cool, smart women with attitude who may just be Russian President Vladimir Putin’s worst nightmare. Pussy Riot engage in guerrilla punk protests, popping up unexpectedly at iconic sites in Moscow to blast punk songs critical of Putin. They are probably now the most globally recognised expression of the “Russian Winter” movement for greater democracy in Russia, which exploded last December in the wake of parliamentary elections widely believed to be rigged. “Recognised” is however a misnomer as the ten or so members of Pussy Riot wear balaclavas (as well as bright skimpy outfits) and are anonymous. Even their parents don’t necessarily know who they are!
But three of them are now very well known. Nadezhda Tolokonnikova (22), Maria Alekhina, (24), and Yekaterina Samutsevich (29) have been detained since March and are now facing trial for “hooliganism motivated by religious hatred or hostility”, which could lead to seven year sentences for each of them. The charges arise from a song performed at the altar of Cathedral of Christ the Saviour, a prominent Russian Orthodox Church in Moscow in February. During the performance, Pussy Riot called on the Virgin Mary to “throw Putin out”. The women undoubtedly caused offence to many religious Russians, but their detention as well as the prospect of seven years’ imprisonment for the three, including two young mothers, has caused considerable disquiet. 200 prominent Russians, as well as 41000 others, have signed a letter calling for their release.
The offending church gig
Public interest in the trial has led to it being streamed live on the internet. Not all of it though. Key parts of the trial like witness testimony are excluded.
The case has attracted international attention. Amnesty International has declared the three to be prisoners of conscience. And the Russian government has surely been embarrassed by a string of international performers such as the Red Hot Chili Peppers and Sting calling for the release of the Pussy Riot three on stage in Moscow.
The Pussy Riot Three AAP: EPA Sergei Chirikov
Pussy Riot join the long and honourable roll call of brave dissident artists, exemplified (for example) today by the artist Ai Weiwei in China, the comedians The Moustache Brothers in Burma, and Syrian cartoonist Ali Farzat. Pussy Riot’s predecessors as musical outlaws include the Plastic People of the Universe in Czechoslovakia after the Prague Spring, the Klaus Renft Combo in East Germany, and Victor Jara, a Chilean folk singer murdered in Augusto Pinochet’s coup of 1973.
45 years ago, the harsh sentence handed out to (now Sir) Mick Jagger for a minor drug offence was condemned by conservative Times commentator William Rees-Mogg in his famous 1967 editorial, “Who breaks a butterfly on a wheel?” Rees Mogg speculated that disproportionate sentences (later overturned) were imposed due to the perceived threat the young anarchic Rolling Stones posed to Britain’s staid establishment. The parallels in the Pussy Riot case have been noticed by the BBC, though the stakes for the three young women are much higher.
However, it may be another butterfly analogy that Putin should be wary of – that of “the Butterfly effect” (though I concede this may be an imperfect analogy). While the Pussy Riot trial seems designed by Russian authorities to use a compliant judiciary to send a message by making an example of the women, Putin better hope it doesn’t reinvigorate the opposition, and add to their number due by generating widespread disgust at the regime’s disproportionate response. Pussy Riot’s chapter in the long running saga of “art versus power” is far from over.
The Houston panel reported on Monday 13 August 2012. The government has committed to implementing all of its recommendations.
In fact, one of its recommendations (recommendation 7) has already been implemented. Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) received royal assent on 17 August 2012 and is now in force.
As everybody now knows, passage of the Act has cleared the way for the immediate reinstitution of the “Pacific Solution” (recommendations 8 and 9) and, in theory, for implementation of the “Malaysian Solution” (recommendation 10) as well. Unfortunately, we may not yet have hit bottom. Here’s why.
The panel’s recommendation 15 was “that a thorough review of refugee status determination (RSD) would be timely and useful.” It sounds innocuous doesn’t it?
In this, as in so many things, context is everything. The context here is provided by two principles set out in recommendation 1 of the report, which the panel states “should shape Australian policy making on asylum seeker issues”. They are:
“The facilitation of a regional cooperation and protection framework that is consistent in the processing of asylum claims, the provision of assistance while those claims are being assessed and the achievement of durable outcomes.
The application of a ‘no advantage’ principle to ensure that no benefit is gained through circumventing regular migration arrangements.”
The Conversation’s asylum seeker expert panel, of which I was a member, also recommended that there should be regional consistency in processing and outcomes. If such consistency exists, asylum seekers have less incentive to travel onward from their initial country of refuge because they will gain, in the Houston panel’s terms, “no advantage” by so doing.
However, we added an important rider which the Houston panel did not. We said that consistency should be achieved by “bringing the situation for all those seeking asylum up to highest existing standards in the region or better.” This is the most ethical way of achieving consistency but it is also the most difficult and most expensive.
There is also a cheap and easy, but obviously unethical way of achieving consistency, which is to bring standards throughout the region down to the lowest common denominator regardless of how low that might be. And then there is the third way, which is to bring some countries in the region up to minimum acceptable standards while bringing other countries down to minimum acceptable standards.
Since another of the principles articulated in recommendation 1 of the Houston report is “[a]dherence by Australia to its international obligations”, the Houston panel clearly did not intend to countenance Australia falling below minimum acceptable standards. However, the view of the panel seems to be that in the legal protections provided to asylum seekers in Australia we should deliberately aim for no more than a bare pass.
That view is the subtext of paragraph 3.75 elaborating on recommendation 15:
“Over recent years, comparable countries such as the United Kingdom and Canada have undertaken significant reform of their migration legislation and processes for the determination of refugee status, including appeal rights. It would be relevant to assess whether there are aspects of such reforms that would be relevant in Australia’s circumstances.”
Not convinced? Well here is what the panel later highlights about the recent reforms in the UK (p106):
“The UK adopts a targeted range of restrictions on appeals, including deadlines to appeal, some limitations on who can appeal, how many times an individual can appeal and access to free legal representation.”
In paragraph 3.76 of the report, the panel says eight things should be included in the scope of the recommendation 15 review. One of these is “a more expeditious assessment process to finalise RSDs”. Restrictions on appeal certainly make for more expeditious finalisation of RSDs, but it also makes for less fairness in the process and greater risk that valid refugee claims will be rejected.
As the panel itself notes, there are presently in Australia “a significant number of negative decisions at primary assessment which are overturned on review.” Moreover, the panel explicitly states that the UK’s processes are one of the factors explaining the lower overall refugee recognition rates for certain nationalities in the UK compared to Australia.
Australia, as a developed country and a liberal democracy, usually aims for and achieves much better than a bare pass for its legal system. What counts as a bare pass, as opposed to a fail, is always contestable (as evidenced by the line of students outside my door after exam results are released). Aiming high is the best way of ensuring we do not fall short.
Of course, those who regard asylum seekers as “the enemy at the gates” may think it of little consequence if we do fall short. However, such people would do well to keep in mind these words of Thomas Paine in his Dissertation on the First Principles of Government: “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”
The government and health advocates are deservedly celebrating the High Court decision on plain packaging. But tobacco companies have been quick to note that while they’ve lost a key battle, they intend to continue fighting the war.
A Philip Morris spokesperson reportedly stated that the High Court decision would have “no legal bearing” on the cases pending in the World Trade Organization (WTO) or on its challenge under the Hong Kong–Australia bilateral investment treaty.
This statement underestimates the extent of the deference shown to domestic courts by international tribunals. But it’s true that the decision doesn’t preclude these cases from proceeding or guarantee that the government will prevail in them.
Investor-state dispute settlement
The investor-state dispute under the Hong Kong treaty is particularly concerning for supporters of the legislation. Unlike the WTO, there’s no exception under the treaty for public health measures. And unlike in the Australian Constitution, “expropriation” (the act of a government taking private property) is defined very broadly.
Although detailed reasoning has not yet been provided, the High Court appears to have agreed with the government’s argument that it hasn’t acquired any property from tobacco companies. Unfortunately, under international investment law, the direct acquisition of property is not necessary to trigger the requirement for compensation. If a government measure has a significant impact on an investment (such as a negative effect on the investor’s profits), a tribunal may decide in favour of that investor.
Yesterday’s High Court decision is just one battle in the war over plain packaging. mejilopezvazquez/Flickr
This difference between domestic and international law clearly demonstrates how foreign investors are currently provided greater rights under international investment treaties than domestic firms are accorded under Australian law. The Gillard government rightly decided last year that this is inappropriate and announced that it would no longer agree to investor-state dispute settlement procedures in trade or investment agreements. But existing treaties – such as the one with Hong Kong – still expose the government to liability.
Distorted rules
Philip Morris’ plan to proceed with its investor-state dispute despite yesterday’s ruling highlights the extent to which the investment arbitration system has been distorted by corporate interests since it was first developed in the 1960s.
Originally, the system was meant to provide protection for investors operating in countries where the rule of law was absent or where court systems were considered corrupt or biased against foreigners. Now, disgruntled corporations such as Philip Morris, who’ve had their day in court and have been treated fairly in a transparent and accountable manner, are utilising the arbitration system as a supranational court of appeal.
The government has very strong arguments on its side but outcomes in investment arbitration are notoriously hard to predict. There’s no system of basing decisions on precedents and case law is both recent and inconsistent.
And the government could be forced to pay very large legal costs and arbitration fees, even if it wins the case. The High Court has apparently awarded all costs to the government. This also happens on occasion in investment arbitration, but there are no strict rules about the division of costs between winners and losers.
The investor-state dispute settlement procedure in the Australia-Hong Kong bilateral investment treaty is the next battleground. Desmond Elliott
Public vs corporate interests
Still, the government should, without a doubt, continue to defend the legislation. It’s legal fight is about far more than the public health system in this country and the millions of people who have been negatively affected by tobacco products. It’s fundamentally about the right of governments to regulate in the public interest and the role of international institutions in constraining the behaviour of sovereign states.
The government also should maintain its policy against the inclusion of investor-state dispute settlement procedures in trade and investment agreements. It’s under enormous pressure to abandon this policy in the current negotiations for a Trans-Pacific Partnership Agreement. And it has recently been criticised for this at home by the Australian Chamber of Commerce and Industry.
The Philip Morris case perfectly highlights the many problems with investment arbitration, while the purported benefits of the system remain unproven.
The government has shown itself to be a trailblazer in the area of tobacco regulation and many other countries look set to emulate the plain packaging policy, especially in light of yesterday’s victory in the High Court. It is now also leading the way in rejecting systems of international arbitration that enhance corporate power at the expense of democracy. It seems inevitable that other countries will follow suit in this domain as well.
Read other articles on plain packaging published since the High Court decision:
The Australian High Court has found that the Gillard Government’s Tobacco Plain Packaging Act 2011 does not breach that section of the constitution that prohibits federal legislation acquiring property except on just terms. But the authority of the High Court may be challenged by international trade and investment processes that contest the rule of law not only in this country, but globally.
The federal plain packaging legislation was enacted in compliance with obligations under international law embodied in the World Health Organization’s (WHO) Framework Convention on Tobacco Control. In reaching its decision, the High Court was fulfilling the constitutional role allocated to it under a social contract entered into by the Australian people in 1901.
This compact has since been reinforced by acceptance and implementation of such decisions and the process behind them for over a century by Australian federal and state politicians, judges and the general populace. A central part of the contract is that Australia will be governed by a rule of law, with its implicit predictability and certainty.
Australian taxpayers (through their governments) have invested an enormous amount of time and resources in creating a system of governance predicated on the capacity of a non-corrupt judiciary to decide on disputes by fairly interpreting laws promulgated in advance in public.
jerik0ne/Flickr
Foreign corporations operating in Australia benefit from such an equitable governance structure. Indeed, it is one of the primary reasons they invest here. Australia regularly ranks very highly in rule of law rankings of nations around the world. And as legal scholar Brian Tamanaha reminds us in one of the seminal works on the subject, “No other single political ideal has ever achieved global endorsement.”
Yet Australia is about to confront, for the first time, the possibility that a decision of the highest court in our land will in effect be overturned by off-shore tribunals with only a tenuous connection to Australian legal traditions. Such off-shore investment tribunals are not accountable to the Australian populace and have extremely limited capacity to refer to governance arrangements directly endorsed by Australian citizens.
Unaccountable tribunals
On 13 March 2012, Ukraine requested consultations in the World Trade Organisation (WTO) with Australia concerning Australia’s Tobacco Plain Packaging Act 2011 and its implementation.
Ukraine’s argument is that Australia’s plain packaging legislation breaches various provision of the WTO Trade Related Intellectual Property (TRIPS) Agreement; the Technical Barriers to Trade (TBT) Agreement; and the General Agreement on Tariffs and Trade(GATT) 1994. Interestingly, there’s no mention of the WTO being required to take the WHO and its Framework Convention on Tobacco Control into account in this consultation.
The World Health Organisation (WHO) has not been offered a voice in the debate. US Mission Geneva/Flickr.
In another potential challenge, the multinational tobacco company Phillip Morris has re-badged itself for this purpose as an Asian company based in Hong Kong and lodged an investor-state complaint against the Australia under the Hong Kong-Australia Bilateral Investment Treaty (BIT).
Unlike the WTO dispute, this will not involve a standing body but will allow an ad hoc gathering of three trade arbitrators to rule (without the requirement of exhausting local remedies and without prospect of appeal) on whether Australia has to pay damages to this tobacco company for passing legislation found to be constitutional and a fulfilment of Australia’s international legal obligations under a WHO treaty.
Such disputes may only be the beginning of a new off-shore phase of jurisprudence with the potential to undermine the authority of the High Court and the rule of law in Australia.
Unaccountable arbitrators
Philip Morris International has lobbied the US Trade Representative (USTR) to include investor state dispute settlement in the Trans Pacific Partnership Agreement (TPPA). On 12 June 2012, a leaked copy of the investment chapter for the TPPA confirmed its provisions would allow foreign firms to skirt Australian domestic courts and laws to directly sue our government in the International Centre for the Settlement of Investment Disputes (ICSID).
Arbitrators would be paid by the hour (often over several years of proceedings), could act as a legal representative in one case and an arbitrator in another, and would have vested financial interests in verdicts for corporations. Governments cannot initiate suits before this tribunal.
They would not be required to take the constitutional, legislative or international human rights context (including standard legal due process procedures) into account, or maintain a public record of their decisions. All of this undermines their capacity to claim they are part of the rule of law.
The Australian High Court could have its role usurped. John O'Neill/Wikimedia Commons.
Defending the rule of law
The capacity of these three types of tribunals to potentially have the final say on such an important public health issue (as well as those likely to face future generations of Australians in areas such as environmental sustainability and financial sector stability) is a direct affront to the rule of law, not only in this country but globally.
The leaked TPPA text would even provide investors with a right to demand compensation for “indirect” expropriation (Article 12.12) and allow foreign investors to claim government actions (such as the plain packaging laws) require technically unlimited financial compensation because of a slightly higher burden in complying with the law (Article 12.4 and 12.5). Such proposals give foreign investors (such as tobacco multinationals) greater rights than domestic investors.
In its April 2011 trade policy statement, the Australian Government vowed to no longer include provisions on “investor-state dispute settlement” in bilateral and regional trade agreements that it signs. Australia deserves high praise for refusing to agree to a TPPA investor state provision. But it’s surprising that the various Australian law councils haven’t taken up the issue and supported the federal government’s stance in favour of preserving from such threats the rule of law in this country.
Much hyperbole has been generated by the recent revelations concerning Sir Anthony Mason’s involvement in the 1975 dismissal, but for the most part it shows ignorance of the past.
Earlier this week, The Australian claimed it was “an unprecedented, extensive and unconventional relationship between a High Court judge and a Governor-General during a constitutional crisis.”
But not only was it not “unprecedented” or “unconventional” for a High Court judge to have advised a vice-regal representative on the extent of his or her powers back in 1975, it is actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of reserve powers.
Nothing new
In 1975, the Governor-General of Australia, Sir John Kerr, dismissed Gough Whitlam as prime minister, after the opposition party, led then by Malcolm Fraser blocked supply through the senate.
A new book has revealed that Mason played a more significant role than previously known in advising the Governor-General on the scope of the reserve powers.
The very first victim of the exercise of these powers at the Commonwealth level was the first Labor prime minister, Chris Watson, whose four-month old government was terminated when the Governor-General Lord Northcote refused him an election. In exercising his reserve power to refuse Watson’s advice to dissolve the parliament and hold an election, Northcote relied upon advice about the extent of his powers from none other than the first Chief Justice of the High Court, Sir Samuel Griffith.
The Chief Justice also advised the Governor-General Lord Dudley on the refusal of a dissolution to the Fisher government in 1909 and most likely advised on the 1905 refusal of a dissolution to the Reid government, although there is not sufficient documentation to be sure in that case.
Chief Justice Griffith and Justice Barton, both drafters of the Constitution, freely advised the Governor-General Sir Ronald Munro Ferguson on many constitutional issues, including the extent of his discretion in relation to the grant of a double dissolution in 1914; how to deal with the resignation of Prime Minister Fisher in 1915; whether a referendum could be held over conscription; and how to deal with Prime Minister Hughes’ resignation after the second conscription referendum failed in 1917.
Greater stability
As the two-party system solidified and majority governments became the norm at the commonwealth level, there was no real call on the Governor-General to exercise reserve powers and therefore, no need for constitutional advice.
This did not mean that High Court justices were necessarily more circumspect about giving advice. Sir John Latham, for example, while Chief Justice of the High Court, apparently advised the prime minister on the drafting of a referendum to overturn the High Court’s judgment in the Communist Party case.
The next occasion for the exercise of reserve powers at the national level did not arise until the Prime Minister, Harold Holt, went missing in 1967. The Governor-General, having taken advice from the chief justice, Sir Garfield Barwick, exercised his reserve power to terminate Harold Holt’s commission as prime minister and appoint John McEwen until a new Liberal leader could be chosen.
Stately advice
In the meantime, at the state level, constitutional crises still abounded and advice was regularly given to governors by judges. In 1932, the NSW governor received advice from the NSW Chief Justice on dismissing the Lang Government, just as in 1927 his predecessor had received the Chief Justice’s advice on his reserve powers concerning the dissolution of Parliament and the “swamping” of the upper House.
In 1939, the next Chief Justice of the NSW Supreme Court advised the governor about a constitutional crisis involving the defeat of the government on a financial measure.
In Victoria, political instability and constitutional crises extended into the 1950s. In 1952, for example, the chief justice of the High Court, Sir Owen Dixon, along with the Chief Justice of the Victorian Supreme Court, advised the governor about a conflict very similar to 1975.
Labor, with the support of break-away Liberals, blocked supply in the upper House. The Governor refused the Country Party premier an election because supply would have run out during the election period. A new premier was commissioned, who managed to pass supply in the upper House but was then defeated in the lower House.
It was Sir Owen Dixon who advised the Governor to restore the former premier and grant him an election.
In 1955, Dixon again advised the Governor on how to deal with a government that was running out of supply but not prepared to recall Parliament and face a vote of no confidence.
Dixon also advised the Western Australian governor in 1956 and 1961 on other constitutional crises.
More context needed
These are only the cases that have come to light through research and the existence of relevant diaries and papers. No doubt they are the tip of the iceberg and that much more informal advice has been given to vice-regal officers from judges over the years.
Indeed, the Queen apparently receives informal advice from judges in the United Kingdom. She also obtains independent legal advice from her own solicitors and advice from academics. It is neither unprecedented, unusual, nor unconventional.
Looking at Sir Anthony Mason’s informal advice to Sir John Kerr through post-1975 eyes is unfair. In the context of the time, his actions were consistent with those of his predecessors or his colleagues.
Since 1975, there have been significant changes, with some of the actions of Governors-General becoming the subject of judicial review (although the reserve powers are still likely to be unreviewable) and with the High Court developing a much stricter separation of powers, prohibiting judges from taking on roles that involve advising the executive, even when they are acting in a non-judicial capacity.
While it would be unwise for a judge today to take on such a role, it is much harder to make that assessment in relation to actions taken in 1975.
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