• A prosecutor in the Missouri Attorney General's office
• Assistant Secretary of Education
• Head of the Equal Employment Opportunity Commission
• Served for a year on the DC Circuit Court of Appeals
• Written a best-selling book
• Served as a Supreme Court Justice for 17 years

You are unqualified to be a Supreme Court Justice.

But if you have

• served 143 days in the US Senate
• served in the Illinois State Senate
• been a community organizer

You are qualified to be President of the United States.

Just don't ask me about when a baby gets to have human rights.

Virginia Law Review, Forthcoming

FREDERICK SCHAUER, Harvard University - John F. Kennedy School of Government

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities - cases, statutes, constitutions, regulations, articles, and books, primarily - are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law's use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

Source:  LSN Jurisprudence & Legal Philosophy APS Vol. 9 No. 29,  08/15/2008

Ed Brayton describes the case at Dispatches From the Culture Wars.

The silence from McCain: Will it grow deafening?

More reading:

• Denver Post, July 11, 2008, "McCain staff asked for protester's ouster"
• McCain asks release of Tibetan protester, in Tibet, Denver Post, July 26, 2008
• Librarian pleads not guilty of trespass; McCain, convention center, cops, all deny asking for enforcement of the rule
• Tucson Citizen opinion piece on McCain's metamorphosis into Bush's policies

Mercredi 23 juillet, la Haute Cour de Londres a condamné le tabloïd à 60 000 livres (76 000 €) de dommages et intérêts pour violation de la vie privée après la diffusion de photos et de vidéos d'une séance sadomasochiste qualifiée de « nazie » orchestrée par Max Mosley.

La défense traditionnelle contre l’accusation de diffamation, à savoir la liberté de la presse et l’intérêt public de révéler qu’un homme puissant aie des activités aussi « dépravées », n’ont cette fois pas fonctionné. Le juge a donné raison à Max Mosley, qui a reconnu son penchant pour le sadomasochisme, mais a rejeté tout nazisme, déclarant au juge : « C'est la dernière chose dont je souhaite me souvenir dans un contexte sexuel ». Son père, Oswald Mosley, était chef du mouvement britannique British Union of Fascists.

Si l’amende est plus élevée (elle est en général de 5 à 6 000 livres pour ce genre d’affaires), c’est en partie pour l’exemple. Mark Thomson, avocat spécialiste des médias, estime que « Si les amendes sont de 10 000 livres, ce ne sera pas assez pour décourager les tabloïds de publier de telles photos. »

Un procès qui pourrait donc faire jurisprudence, et qui prouve les limites du sensationnalisme.

Pascaline Vallée

Que dit cette clause (ma traduction):

L'achateur et le vendeur conviennent de tenter de résoudre par une médiation tout conflit et toute plainte qui naitrait de ce Contrat, ou de toute transaction qui en résulte, avant de recourrir à un arbitrage ou à une action en justice... Si, dans le cadre d'un conflit ou d'une plainte pour lequel le présent paragraphe s'applique, une des parties entame une action sans avoir d'abord tenté une médiation, ou refuse une médiation après qu'une demande lui en ait été faite, alors cette partie renonce explicitement à bénéficier éventuellement de la répétibilité des frais de justice, même si celle-ci devait être établie dans le cadre d'une telle action.

Une telle clause me paraît en effet rendre encore plus intéressante la solution médiée pour les signataires d'un tel contrat. Mais cela est-il possible (et les termes devraient-ils en être différents ?)

For the love of God, Britain. You really, really, really, really need to grow your balls back.

A good first step would be to arm your police. I know it sounds all hillbillyish and redneckian, but there’s something called “deterrence.” It’s this crazy concept we uncivilized rubes over here in ‘Murrica apply in order to give our law enforcement the ability to, you know, enforce the law.

But the wimps there have learned their lessons.  For example they don't want to use the word MOB (as in group of people rioting against the public order and beating up two cops) because that might be inflammatory:

“Whilst we would never use the word ‘mob’ which is an inflammatory word, we can confirm that eye witnesses have described their initial fear that officers were going to be seriously injured or killed.”

and Rachel shows what will probably be the followup:

I expect the followup article to this one to explain how the injured officers are being sued for inflaming the rage of the crowd, and maybe even a few arrests will be made of the witnesses for hate speech because they described the scene as “horrifying.”

The British do make a habit of locking up people who actually defend themselves and their property.

Get out while you can - those of you who don't want to be paying jizya in a few years.

[Note: I am writing two posts on this movie, as I think there's sooooo much in it to talk about ;-). This first part gives a synopsis and review. The second part will pick up on some of the threads running through it. Back to the show.]

Between November 1945 and October 1946, 24 of the key figures in the Nazi leadership faced trial before the International Military Tribunal. The trials were important not only in prosecuting the war crimes committed by the Nazis, but also in setting the foundations for prosecuting international war crimes in years to come.

Contrary to my expectations, Judgment at Nuremberg is not an account of those trials. Rather, it is about the later Judges’ Trials of 1948, which were held under US military law. While initially disappointed that the villains of Nazism weren't the villains in this story, I soon found the choice of the judges' trials a more fascinating story that took the film in completely unanticipated directions.

Threads

The movie is set in the post-war ruins of Nuremberg, once the site of massive Nazi rallies. The ruins are a character in themselves – not only are Germany's buildings in ruins, but so too its soul. And one of the things this film is doing is sifting through those ruins to see if anything (dignity, innocence) remains.

Another important thread in this movie is the nature of law. The choice of the trial of judges – who are the ultimate umpires or protectors of Law – absolutely shifts the focus to a trial of Law as well. But more on this later.

Synopsis

Spencer Tracey plays Chief Judge Dan Haywood, a former US District Court judge styled in the mold of American Supreme Court justice Oliver Wendell Holmes – the epitome of American legal virtue. The judge is the audience's surrogate – like him, it's all new to us and we are being asked to judge as well.

The judge presides over the prosecution of 4 judges in the Nazi regime, including Dr Ernst Janning (Burt Lancaster). Each faced a number of war crimes-related charges, including murder, and each entered a plea of not guilty. Richard Widmark plays the firebrand prosecutor, Colonel Lawson, while Maximilian Schell plays the sterling role of counsel for defence.

Now, as counsel for the defense points out "... it is not only Ernst Janning who is on trial here, it's German people". Enter the subplot.

The judge takes time out from the proceedings to explore Nuremberg – a refreshing break from the sometimes heavy proceedings. He meets Frau Berthold (Marlene Dietrich), widow of a German military official tried and executed at the first Nuremberg trials – they lived in the house occupied by the judge for the trials' duration. Berthold and the judge develop a close, but all above board, bond in the movie. In many ways, she symbolises the goodness and beauty of Germany in the shadow of the war’s atrocities, or at least the attempt to revive it. One great and very poignant scene is where they are both walking home together and a chorus of Germanfolk are singing "Das Lied eines Jungen Soldaten auf der Wacht", or "Lili Marleen" (an old German song made famous by Dietrich, who sang it to Allied troops in the war). As the two walk, Dietrich herself begins to sing.

This narrative provides relief from the gravity and dramatic tension of the courtroom, and also boasts some fitting samples of Beethoven, Wagner and a little oomp-pa-pa for good measure.

The trial continues to unfold, with the prosecution presenting two key witnesses. The first is the nervous Rudolf Peterson (played by the uber talented Montgomery Clift), who was forcibly "sanitised" (neutered) as part of the Nazi mental health policy. The second was Irene Hoffman (Judy Garland), imprisoned for refusing to testify against a Jewish family friend for alleged rape. Both cases were handled by the judges on trial.

The cross-examinations are harrowing, as both witnesses pretty much go on trial again care of the defence. The main argument is that both witnesses were correctly and appropriately judged according to laws at the time. While there is a lot of detail here, it is edge-of-seat stuff and a bit of a head *&^# to be honest. The defence's cross-examination is superb, uncomfortably convincing, but ultimately flawed.

Despite protestations from his counsel, Janning also gives testimony. His words are a chilling indictment not only of what happened, but all involved both inside an outside Germany, people and nations. The film winds up with the judges' verdict and reasons for decision, and a touching farewell.

Review

Judgment at Nuremberg is a thoroughly though-provoking and dramatic piece of legal drama, up there with the likes of To Kill A Mockingbird. It presents the complexity involved in questions of justice, responsibility and morality, while still very much retaining a dramatic edge.

The performances are brilliant, especially from Clift, Dietrich and Lancaster. I think the only major flaw lies with some of the photography, which seemed a little melodramatic in parts.

There is no doubt that it is a dense and lengthy movie, but it never really drops the ball and the reward is it makes you walk away with something to think about. It's an experience.

Another great thing about the movie is that it is not a victor's film. On first blush, the movie comes across as a bit of American self-aggrandisement. However, the emotivism of the US colonel-prosecutor, reminders that the US wanted to move on from the war crimes trials prove it otherwise. Also, the ever looming Cold War is excellently backgrounded in the film – the wheels of history are turning. The US is about to step into a whole new era where the same questions of justice, law and morality will prove just as vital – Vietnam was just around the corner.

So, five-star goodness from me. Judge for yourself.

My next post will pick up some of the threads that come up in the movie.

Still, it is concerning, the lack of knowledge, understanding and familiarity amongst both Muslims and non-Muslim regarding Islam in general and Islamic Jurisprudence specifically. It should be known that I have a great interest in law, policy and ethics both Islamic and secular. It is of special interest to me to understand where the two intersect as well as where they diverge. This, I think, is important in understanding the relationship between any areas of study. If we understand the boundaries and limits of differences then we can attempt to respectfully engage and negotiate the boundaries without intellectual violence.

It is concerning as there exists a current amongst non-Muslims and Muslim - both sinister and unsuspecting - to undermine the validity, applicability and legitimacy of Islamic Jurisprudence in contemporary times. Nothing is further from the truth!

Here it is important to make a distinction between two terms “Shari’ah” and “Fiqh” as both are used interchangeably and both are often translated in the same way. While there is a practical synergy between these terms there are profound and distinct technical differences which are necessary to distinguish. Professor Imran Nyazee says, “The term shari’ah includes both law and tenets of faith, that is, the ‘aqa’id (belief system). The real distinction between shari’ah and fiqh, however, is that shari’ah is the law itself, while fiqh is knowledge of that law – its jurisprudence.”[1]

Another way of looking at it is shari’ah is the divinely revealed and inspired sources of law while fiqh (jurisprudence) are the scholarly efforts to discover the intent, extent, scope, range and application of the divinely revealed intent of God. That is, an effort to understand the relationship between divine intent and the legally responsible.

In this way one could say that the shari’ah exists as divinely revealed principles by which mankind is to engage to understand the application of law, ethics, and spirituality in every time, place and circumstance.

What has been the failure of many Muslims is to understand what one might term a “grey area”, that is, the relationship between revelation and reason. The areas which God has not delineated in clear unambiguous text guidelines for a particular case. This area has been the province of the faqih (jurisprudent) throughout the history of Islam and includes many luminary and upright men and women. Yet it seems that Muslims have become largely disconnected from this tradition whether as layman seeking the advice and counsel of the faqih or as a student seeking to traverse the path of scholarship that leads to the status of jurist.

Likewise this apparent loss of continuity has also given way to much misunderstanding amongst non-Muslims in being able to relate to the precepts of Islamic Legal discourse. There has been a lull in building a matrix of understanding in the academic, public and political discourses to characterize the differences and more importantly the similarities and points of intersection.

Relative to western discourse, if we can agree that; democracy finds its origins in principles, when interpreted gives rise to organic formulations of democratic rule. Similarly shari’ah consists of principles which are interpreted and give rise to organic formulations of Islamic rule. Then we can see that the human manifestations of the two have similarities in form and function and it can be argued that Islamic rule is, at least, as relevant, applicable and legitimate a rule as any other system. However, we [Muslims] would argue the geneses of our principles are divine in nature, while those of democracy (or other systems for that matter) are humanistic in nature. While, I don’t intend to discuss this issue in this entry it serves as a brief note of where the two systems depart.

Nevertheless, the following article touches on how rape is adjudicated from an Islamic perspective. I have highlighted sections that are of note and of concern to this post although it may dismay some of our Muslim readership that don’t quite understand that Muslims too have so-called “man-made” laws. However, find solace in knowing that our system and methodology of legal derivation is highly sophisticated and nuanced and is the product of 1400 years of erudite scholarship. It is not trivial in any regard and any scholarly derivation and attempt to discover divine intent is subject to examination in light of the Qur’an and Sunnah (the citadels of light and guidance in every time and place).

Prepared by the Research Committee of IslamToday.net under the supervision of Sheikh `Abd al-Wahhâb al-Turayrî

 

There is a lot of misunderstanding about how the crime of rape is established within an Islamic judicial system. Many people are of the false opinion that four witnesses must see the act of rape in order for a conviction to hold in the courts. They are understandably appalled by the idea that a woman who cannot produce four witnesses to the crime will be unable to bring justice to bear on her attacker. Nothing could be further from the truth.

It is true that the prescribed punishment (hadd) for fornication requires four witnesses in order for that specific punishment to be a sacred duty for the Muslim courts to carry out. However, what it means is that, in the absence of four witnesses, the judge will prescribe a punishment for the perpetrator according to his discretion or according to the country's penal code. He will not be obliged to prescribe the specific prescribed punishment for fornication. In any case, rape is a far more serious matter than fornication and deserves a more severe punishment.

It is important to clarify a common misconception that many people have about the judicial system in a state that operates within the parameters of Islamic Law. It is commonly assumed that every decision and every criminal sentencing in an Islamic country is derived directly from Islamic religious teachings and from sacred law. This is not the case at all.

A court operating under Islamic Law will be obliged to carry out Islamic legal injunctions in the few instances where those injunctions are relevant. Otherwise, the judicial decisions of the court will be based upon the court's application and interpretation of the country's statutory law and on the discretion of the judge, as it is with purely secular legal systems.

In Islam, there are a handful of crimes that are addresses by the sacred texts and are given prescribed punishments (hudûd in Arabic). The same texts determine the evidentiary burden that is required to establish guilt. When this evidence is established, it becomes the religious duty of the courts to carry out the sentence. There are only a few crimes of this nature. Even with these crimes, if the burden of evidence is not met for the prescribed punishment to be carried out, then it will not be obligatory upon the courts to carry out that specific prescribed punishment.

Instead, the matter reverts to the discretion of the court. It becomes, like any other crime, a matter for the court to decide on its own authority or for the country's legal system to determine through statutory legislation. The discretionary punishment (ta`zîr in Arabic) might be a protracted prison sentence, or even the death penalty whipping.

We can see an example of this in the law that the Muslim scholars in Saudi Arabia have approved of, where the death penalty is decreed by statute for drug smugglers who bring large quantities of drugs into the country. No punishment for drug smuggling is mentioned in the Qur’ân and Sunnah. This is a discretionary punishment set by statute.

The courts and the civil law codes can also determine the evidentiary burden needed for a conviction. This may include circumstantial evidence, any number of male or female witnesses, DNA evidence, and so forth.

The vast majority of civil and criminal cases heard by the courts in an Islamic country will not be decided on the basis of scriptural teachings. In the vast majority of criminal cases, the definition of crimes will be determined by the country's statutory laws, which are developed through the country's legislative process. Likewise, sentencing will either be dictated by statute or passed according the judge's discretion. This is very similar to the situation in the judicial systems of secular countries.

In the secular courts of the West and other parts of the world, they do not have any such thing as divinely prescribed punishments. All punishments are determined by the discretion of the courts or by the country's statutory penal law. Still, rapists are punished for their crimes. The same can be said for the courts in an Islamic legal system. The matter reverts to the discretion of the courts in the absence of the specific evidence required for carrying out the prescribed punishment.

And Allah knows best.

 

 

The judiciary is becoming an important election issue. John McCain is warning conservatives that control of today's finely balanced Supreme Court depends on his election. Unfortunately, his jurisprudence is likely to be anything but conservative.

The idea of a "living Constitution" long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing "judicial activism" and proclaiming their fidelity to "original intent." However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired.

Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, and criticizing the recent decision overturning the death penalty for a child rapist. With the three members most likely to leave the Supreme Court in the near future occupying the more liberal side of the bench, the next appointments probably won't much change the Court's balance.

But even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.

Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

Ok, Barr makes a common error here, as Ilya Somin and others have pointed out. The term "unitary executive" usually refers to expanded presidential power vis-a-vis the rest of the executive but not necessarily the other arms of the government. Nonetheless, there is a lot of sensible stuff in Barr's op-ed and I recommend reading the full version.

If, like me, you are a libertarian with a preference for Obama over McCain, Barr increasingly looks like the candidate you should vote for (assuming of course you are eligible to vote -- I am not!). I will expand on this point in a future post.

(Hat Tip: Reason Hit and Run)

The Student Law Review, published by Routledge Cavendish is a publication bordering on the "terrifyingly polished" and I find it to be a very interesting read that I try to pick up whenever I can.

I've done a quick and rough digest of the contents of this edition, and it's a very, very long post so I've added it after the break. I will be back later to fact check but right now I'm just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

The publication is split into sections by area of law covered and the Summer 08 edition covers :

Administrative Law

The Student Law Review provides two case reports for two very recent (this year) Canadian cases discussing the old standard question in any liberalist law school - separation of powers. In particular, the result of a challenge regarding the parole board. These cases are still wet on the page and overseas, so this is the first place that I found the reports of these cases which is very interesting.

Civil Liberties and Human Rights

The article on page 5 is particularly interesting - a report written by Professor Helen Fenwick from the Human Rights Centre at the University of Durham - about the viability of blasphemy law. It's these kind of interesting, unexpected questions which makes the SLR so interesting to me. The article notes the issues arising from the (designed entirely to protect Anglican sensibilities) details of the existing and how this fits into the modern context, after it was resurrected on behalf of Mary Whitehouse of all people in response to the Gay News' "The Love that dares to speak its name", with other faiths and also the limitations it naturally places on freedom of expression and therefore - the European Convention on Human Rights.

Civil Litigation

This is an expose on the Limitation Act 1980 and the effect that this has in cases of sexual abuse - where allegations may be made with very little proof but yet there is a distinct, in my opinion, public interest in seeing a prosecution, however, this may be offset by the fact that defendants may have to spend many thousands of pounds defending themselves from allegationns for which there is nearly no evidence to be discovered at all - and to an unfavourable jury, failing to provide evidence may been seen as a very negative action indeed.

Constitutional Law

The constitutional law article is an interest particularly close to my heart - the extent of domestic covert surveillance and the legal foundation for it. I'm interested in watching the development of something which could utterly revolutionise both how people behave as well as how trials are conducted. I've seen enough on TV of the police patiently recording drug dealer's conversations to see how useful it could be but I can think of how it needs controlled too and this article is interesting for this reason.

Criminal Law

The criminal law section this edition is actually interactive, which I think is a brilliant touch for a publication aimed at student. This section is looking at the accuracy of a number of fictious jury directions - for example:

Attempt
You have heard that the defendant entered the door of a bank where he was not a customer and that he had in his pocket a replica gun. He was spotted by the security guard and immediately turned round and left. He has been charged with burglary and attempted robbery... I now turn to the charge of attempted robbery. You must not convict the defendant of attempted robbery unless you are satisfied that he intended to commit theft and intended to use force in order to do so ar at least intended to put someone in fear that he would use force in order to do so. If you are satisfied on that matter, you still must not not convict the defendant unless you are satisfied that he had actually got as far as making the attempt, that is that his actions had gone beyond preparation such that he could be said to be "on the job". You may consider that his actions were such that they had only one explanation, namely that he was ment on robbery. If so, that will make clear to you that his actions had gone beyond preparation and that he had made an attempt.

Commentary
Certainly the defendant cannot be guilty of an attempt if he das not got an intention to commit the full offence, here robbery. Certainly also, the defendant cannot be guilty unless his actions have crossed over from acts of mere preparation, so that he can be said to have made the attempt. The error the judges made was in the last two sentences of the extract above. It was wrong to direct the jury on what used to be know as the "equivocality theory" and to instruct them that the defendant must have gone beyond preparation if his actions were unequivocal, inexplicable on any basis other that that he had the necessary intention. That was wrong begause firstly the equivocality theory probably never was part of the law, it did not survive when the common law offence of attempt was replaced by the statutory effence of attempt in the Criminal Attempts Act 1981. Any specific pre-1981 tests of proximity no longer apply and the usse of whetther the defendant has beyond preparation is now simply one of fact for the jury: Gullefer [1990] 3 All ER 882.

As you can see, the direction sounds perfectly correct on the law except in one point which is technically not an accurate point. While robbery is not a Scottish crime equivocality theory is an issue which appears up here too, with the same caveat of the statutes which limit it. It's perhaps a little early for a student to be learning about how to make jury directions but nonetheless it is a very effective way to revise exact (and exact knowledge is important) knowledge of legal principles.

Employment Law

The Employment law section is of interest to students who do not work on a permanent contract as it concerns the legal rights of agency workers - since agency workers do not qualify under some of the strongest workers protective legislation, and lose some of the protectiotns that permanent workers have. Andrew Bell, from Nottingham Law School uses the case of James v London Borough of Greenwich [2008] EWCA Civ 35, which showed the rights arising to an agency cleaner who had to take some time off of work due to illness. The council who had previously used her services argued that she was not entitled to the same benefits as a permanent employee and could be replaced at any time.

English Legal System

Gary Slapper, from the Centre for Law at the Open University, writes an interesting article about legal professional privilege, a tradition which he explains as being due to:

"You don't want to live in anarchy, you want to live in a soriety of laws and rules. As there are thousands of laws, you don't want to have to become an expert yourself on them all, any more than you want to learn medicine just so that you can be your own doctor. You want experts on the law: lawyers. So, a society should encourage citizens to go to its lawyers for advice whenever they are in difficulties. To ensure the client-lawyer communications are completely private and confidential."

It's an interesting issue, one that I have most often seen in relation to the confidentiality that exists between a priest and a confesser. While, admittedly, this would be fine for an advocate because if the client admits to their crimes to them there is still a process in place for them to either be convinced to plead guilty or to change their representation. The example where it becomes strained is where a client goes to a solicitor not for representation, but for advice about a situation which is illegal. The typical example goes to R v Cox and Railton in which a libellous publisher went to his solicitor to be informed that he couldn't sell property for his business partner and the man then asked if "anyone knew about the partnership except for you". The solicitor was later called as a witness in the resulting trial and the testimony was part of the case which convicted them.

You would never admit to a crime to a lawyer if you knew this would then lead to your own prosecution but how about for events which you do not know are illegal? But, also, the other thing issue is that, unlike a doctor keeing a patient's details private, there could be a public need that the information - for example a confession about a crime, be reported leaving this a contested area morally.

Equity and Trusts

This section includes a series of collected by M A Ramjohn, from Thames Valley University from around the world. Again these are right up to the minute and represent the current opinion of case law in the field. It's a very useful resource to have a collection of extremely relevant cases which have only just been decided. As well as giving recent authorities it also lets a student see how recent events have played out behind the scenes legally. The cases cited here revolve around dishonesty and the tests for this. Dishonesty is a massive problem in trusts (ironically) because so much of the legally binding element in directly suited into keeping the parties honest.

European Union Law

Again, this section is a recent case report but, for some reason, despite the astonishing length that I generally associate with European Court of Justice and European Court of Human Rights reports I still find the reports fascinating and exotic - even down to the party names. I suspect this feeling of the exotic will fade rapidly the more I read of them but the fact is, right now, I think there's a lot of charm to the European cases that I've read. I think that the fact that the European courts are the very last resort and tend to be for only the most serious and meritorious cases means that it weeds out a great number of cases which won't be as interesting or as contested.

The case which Jim Davies, from the Centre of European Law and Integration at the University of Leicester looks at is a computer law one which came before the ECJ in January of this year - Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU which involves the issue of the downloading of copyrighted materials. The question which was referred to the ECJ was if the Spanish law which Telefonica based its argument on, while valid in Spain may have broken Community law. This was to deal with the issue of if ISPs could be used to gain real world information which would then be used to locate the people who are responsible for the downloading. This comes from the Belgian case SABAM v Scarlet which made this possible.

Evidence

The evidence column comes from the pen of Lisa Mountford, who is a solictor and a Barrister who is also attached to Staffordshire University Law School and discusses something fundamental to evidence law - the "admi[ssion] of hearsay in the interests of justice". We have all seen legal dramas in which the hero witness has said "I didn't do it, I heard that [...] did it, not me!" and the opposing laywer stands up and says "Objection - hearsay" and the judge immediately shoots back a "sustained" and tells the jury to disregard it. This example is uniquely American legal drama but nevertheless - this is a genuine point which has to be got around if the only evidence that can be provided is hearsay. If the only reason that your witness knows that someone did a crime was that someone else had told them, then there is no way that you can. The Criminal Justice Act 2003 actually defines what kinds of hearsay can be admitted, generally on the basis that they are essential to the case and there is a very difficult test involved with a lot of discretion on the part of the judge. The article also mentions that the admissability of a confession depends on the person who makes it, up until R v Y, where not only the person who made the confession is implicated, but also the people who were mentioned in it.

Family Law

The family law column comes from M E Rodgers from Nottingham Law School and describes probably the most extreme case in family law - a child being removed at birth. This case is chosen due to the topical nature and the fact that it is an effective cautionary tale where the effect that the removal would have been acceptable - had the correct procedure been followed and since there were mistakes made in the process that ended up in the child being removed from G the whole case was decided in G's favour.

Health Law

Andrew Alonzi, who is a solicitor and a senior lecturer at Nottingham Law School discusses the Mental Capacity Act 2005 which came into full force on the 1st October 2007 and codified the issue of advance decisions to refuse medical treatment. It's the living will for someone who does not want medical treatment for an illness or in the case of a heart attack or the like - however, there are a long series of checks before it can be confirmed that the person who refuses treatment is mentally capable of deciding that they do not want to be treated. This has to be a careful process because if someone decides to refuse potentially life saving treatment this is a weighty decision which is one that.

It is a very picky area of law which needs to be specifically addressed by someone who wants to decide to refuse treatment - because should a person who has refused, say, to be intubated if they stop breathing suffer a heart attack they can still be resucitated with a defibrilator and the events which are specified must be present (say, a loss of mental capacity after a stroke - up until there is a loss of capacity, they can still be treated in the way that they have refused) and should someone be able to prove that there are reasonable grounds (a fairly broad standard) that the person who refused treatment was unaware of circumstances that would have reasonably affected their decision - something which a reasonably diligent lawyer working with a doctor can almost certainly very quickly work out in short measure.

Intellectual Property Law

There is an interesting crossover here - with an IP challenge to a bioinformatic system. This leads to a question of the policy associated with patenting software in the UK - previously software inventions were not protected by the UK patent office. However, the European policy will allow software to be be protected this way.

Mark Van Hoorebeek, from Bradford University Law School, show that there are only four main requirements that are required for an invention to be patented - the invention must be new, must involved an inventive step, has an industrial application and (according to the Patent Act 1977 it must not be excluded by 1(2) or (3), which is unfortunately - at 1(2)(c):

It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of: a scheme, rule or method of performing a mental act, playing a game or doing business, or a program for a computer.

Which sadly means that the whole computer program is forbidden, no matter how well it qualities under the other three points. However, in Europe, it is possible to patent a software application and therefore, there is a gap in the domestic law which, according to my professors, would be filled by the Community law.

International Trade Law

Dr Jason Church, from the University of Westminster, provides a student eye view of how to use the Hague Visby rules in your studies to deal with issues of international carriage. It's a reasonably short article packed with practical advice for law students faced with questions on this topic - Church reports that the questions are popular because of the schematic layout of the system and this advice may come in useful in the future once I start to look at jursidictions outside Scotland.

Jurisprudence

Stuart Toddington, also from the University of Westminster, gives an interesting look at the jurisprudence of "Universalism, Multiculturalism and the Rule of Law" which looks at the faults of the traditional universalised way of looking at people under the law to looking at the individual traits of the people involved and how this affects their position. It's a fundamentally different approach which has begun to slowly sweep the legal field, one very heavily publicised example is in the changes to the treatment of victims of rapes in trials. Technically a rape victim is just another eye witness but there is a major difference from them to someone who spotted a drunken driver enter a car. The issue of multicultuarism leads to another problem - one in which societies which have vastly different priorities to the standard English or Scottish legal system, for example, someone who rates their loyalty to the State (the sworn oath of honesty) less highly than their loyalty to family (who may be on trial) may not be as honest a witness as would be hoped. The issue of dealing with this is a big problem in a modern, multicultural world where people are different but considered to be exactly the same before the law. It is also seen in the famous "same but different" decision which meant that segregation was still allowed in the US up until fairly recently.

Land Law

Dr M J Dixon, Reader in the Law of Real Property, Queen's College Cambridge, writes about the effect of an Appeal Court decision (Ofulue v Bossert [2008] EWCA Civ 7) about adverse possession. The interesting fact is the issue of the now settled spill over of ECHR decisions which affected this case which means that the state of European law more tellingly affects this area of law, the possession of land, than previously confirmed.

Tort Law

Firstly, you immediately see that this publication is not entirely Scottish in intent and, in fact, it really could not be any less Scottish with serious effort. The cover story is about how to qualify to the bar, in New York and this section here happily talks about an area of law which is huge in the rest of the world - especially in common law systems because of its origins in England, but called Delict here. Nevertheless, although the systems are distinct and different this does not mean that the issue of fault and injury differ that dramatically even though the jurisdiction changes and the basic lessons from both are pretty much directly applicable.

Roderick Bagshaw, Tutor and Fellow from Magdalen College, Oxford gives a report on limitation and a report on negligence. In the first case, the tort case is one which is raised by victims of sexual abuse during care who missed the time limit but argued that they should still be able to claim. They claimed that the claims for deliberate abuse were for breach of duty". This meant that, as the abuse was in the line of employment it circumwents the issue of Stubbings v Webb [1993] AC 498 which held that "claims for deliberate assault were not 'for negligence, nuisance or breach of duty' and thus, the employers of the abusers should be vicariously liable for their injuries. "The decision turned on the interpretation of the phrase 'for negligence, nuisance or breach of duty, in a statute"

The case also provides guidance on the point at which the claimants have knowledge - that is they know "a) that the injury in question was significant" and "c) the identity of the defendant" and this is tested under the stanadardof the reasonable man - which leaves a lot of discretion the courts. It is interesting even from a lay perspective to see what counts as knowing from a legal perspective.

The other case, which deals which negligence relating to a public authority, is Jain v Treant Strategic Health Authority [2008] 2 WLR 456, this is to do with the question of an unlicenced nursing home. The challenge resulted from the owners being alledgedly reckless with their registration, the appeal was allowed, although one judge dissented. This case also looks at the

Book Review

The books reviewed this edition are:

The main piece is about "Revenue Law - Text and Materials" byDavid Salter, Natalie Lee and John Snape and the short piece by Tim Vollans, Coventry University Law School highlights the strength of previous books on the subject and the strength of this one. It's an interesting sentiment where the field can be covered by a textbook and a casebook.

The other books recieve less attention but nonetheless have a useful mention, sounding like a blurb:
International Law 6th edition, Malcolm Shaw

"Malcolm Shaw's engaging and authoritative International Law has become the definitive textbookfor instructorsand students alive in this increasingly popular field of academic study. The hallmark writing style provides a stimulating account, while maintaining detail and academic rigour. The analysis integrated in the textbook challenges students to develop critical thinking skills.

Key Features
Completely updated 6th edition contains:
New chapter on international criminal law
Dedicated chapter on the International Court of Justice
Detailed references throughout encourage further reading on the part of the student at either an undergraduate or postgraduate level.
High level analysis ombined with stimulating and engaging writing style."

Also noted in the book review section is:
The Law and Policy of the world Trade Organisation, Peter Van den Bossche

Also worth noting is the 20% discount code offered from Cambridge University Press if you use the discount code on this page, with the price of law textbooks it is always worth looking at any savings you can find.

For those whose law schools are not as generous or would prefer to have a copy delivered to their home the Student Law review costs £16.50 for a 1 year subscription or £39.50 for 3 years, which includes a 20% discount. The publication comes out 3 times a year. The magazine is subsidised through adverts which dot the pages. The adverts are, for the most part, uninvasive and they are all scrupulously

The Student Law Review subscription line can be contacted on +44(0)17553 681813 and the subscription form is inside the magazine.

This was an unexpected challenge of a post. Normally, I would have split this post up into separate reports on each of the articles and publish each one as an individual post but in this case I wanted to show what the typical edition of Student Law Review contains and I think I have shown that it contains a great deal of unusual content, however I was trying to do it in a minimal style. The full edition is nearly 60 pages long and full of dense text so these few thousand words were not the easiest to cut down. I personally think that any law material you read during down periods is beneficial to your overall development as a law student - one of my tutors actually recommends trying to read three cases a day -presumbaly for four years, which is a staggering undertaking, so I feel that reading periodicals which are themselves entertaining may not train you to read the primary sources of law but are still a side of legal reasoning that is worth exposing yourself to.

>> Encore un excellent article de Marc Landré. (...) les entreprises pourraient donc devoir communiquer aux salariés, pourquoi pas via leur CE, les données ayant servies de base à la détermination de leur rémunération si elles ne veulent pas voir d'éventuelles inégalités de traitement entre salariés révélées.

• Watching: Une pétition pour l’installation définitive du Parlement européen à Strasbourg tinyurl.com/6qto4p

>> Ainsi motivée : "Cela coûte environ 200 millions d'euros par an aux contribuables de déplacer le Parlement entre Bruxelles/Belgique et Strasbourg/France".

• Reading: Les PV pour non-affichage du ticket d'horodateur jugés illégaux tinyurl.com/6qxz8o

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Wedgie killer?

Reality once again demonstrates that hoaxes can't keep up. Truth is either stranger than fiction, or just better.

You just can't make this stuff up:

The Utah Supreme Court today threw out the manslaughter conviction of Erik Kurtis Low, who killed a Park City man after the victim gave him a "wedgie."

Low, now 40, claimed in his 2005 trial he was defending himself when he shot 38-year-old Michael Jon Hirschey following a night of drinking, drug use and horseplay.

Ah, the old drinking, drug use and horseplay excuse.

The Utah Supreme Court said the trial court erred in instructing the jury on possible sentences, giving the jury too many ways to find the man guilty. The conviction was tossed out. Prosecutors cannot retry on the old charges, but new charges are possible.

Watch that space. Accurate history is always better than the hoax stuff.

Other resources:

• Deseret News story on the appeal
• Park Record story on the case -- this newspaper is published in Park City, in Summit County, where the trial took place.

Of course, I'm still conflicted about dear old Recah. I love his total lack of restraint, but I also cringe at his hyperboles.

Well, today, he unleashed a doozy of a lovesong to the boxer du jour. It's a long article, but I just had to put it up here.

COMMENTARY
Pacquiao dumps the script for his greatest moment

By Recah Trinidad
Philippine Daily Inquirer
First Posted 04:04:00 07/01/2008

MANILA, Philippines—He was a work in progress, trainer Freddie Roach kept saying of Manny Pacquiao. There was likewise no clear hint the former poor boy, a skinny southpaw who used to sleep on the cold floor, would be able to come up with the greatest, richest performance of his life.

But last Sunday in Las Vegas, Roach, a two-time trainer of the year, could only watch in quiet glee as Pacquiao transformed from a brawling bull into a full-fledged ring matador with his clinical demolition of defending world lightweight champion David Diaz.

The change was complete as it was classy.

It also erased whatever cheap doubts there were on Pacquiao’s earlier installation as world pound-for-pound boxing king.

Not bad so far. A little too gooey-eyed, but still tolerable. Now if only he would quit while he was ahead.

* * *

Roach may have exaggerated in bragging that Diaz would need something supernatural to conquer Pacquiao.

I think I may need something supernatural to get through this smarmy crap.

But the way Pacquiao did it, not even a miracle would’ve saved Diaz from the speed and sharpness of the former one-handed raw banger they now call a prizefight masterpiece.

Raw banger?

Fight promoters hit it right when they labeled the championship “Lethal Combination,” peddling the promise of a bloody, no-holds barred duel in the Nevada desert.

Pacquiao however threw away the script and, in the process, created one of the most awesome mismatches in prizefight lore.

What script? I'm confused.

* * *

Indeed, there were suggestions of two brick-fisted warriors out to outgun and out-slug each other in a terrible test of steel nerves and gangland guts.

You gotta love'em metaphors, but gangland guts? Awesome alliteration.

Pacquiao however left his boiling temper, his predictable impatience in the dugout.

Of course, there were instances when he would smirk and again bang his gloves—a trademark of his explosiveness—after getting hit.

But these could all be a put-on, a ploy to mask a surefire edge he had gained with his newfound overview fighting stance.

Instead of bend low, engage his foe in an eyeball-to-eyeball goring battle, Pacquiao coolly stood his ground, speared and danced his way out of harm’s way enroute to a slow but sure dominance, before unleashing a crisp, soundless left cross to the chin, a sword thrust through a bull’s heart vein.

Heart vein? Is that the same as the lung windpipe? Or the kidney ureter? Or the womb fallopian tube? And didn't you love how he "danced his way out of harm's way?" Sounds like a male flamenco dancer ducking the flying stilletos of his partner. But beyond that, if it were such a storied mismatch, how could Pacquiao have ever been in harm's way?

* * *

To those who wondered where they had witnessed this scene before, it could be in the movies, out in the sun-baked bullfight arenas in Madrid or Hemingway’s Pamplona where, as the great American writer put it, “the bull, as it should be is dead; the man, as he should be, is alive with a tendency to smile.”

Fight fans can be such gore-loving fuckers, can't they?

The truth is that, after completing a perfect execution, an unforgettable world boxing rarity, fear suddenly crossed Pacquiao’s mind as Diaz lay battered, bloodied, convulsing on the floor.

Oh dear god, no.

Here, Pacquiao decided to again dump the fight script.

Again with the script! Are we in Hollywood? Or Gangland? Or the bull rings of Spain? Make up your mind, Recah.

* * *

Instead of thumping his breast, instead of bursting into a triumphant yell, Pacquiao readily turned to his fallen foe. Pacquiao reached out for Diaz’s arms and tried to pull him back.

The celebration could wait.

He suddenly saw in the opponent a brother in utter distress and, like a passing Samaritan, Pacquiao offered to help Diaz off a deathly cliff.

That he did it before claiming triumph as cameras rolled and the whole world watched was indeed incredible.

Maybe this same thing had happened to other ring greats, Ali, Sugar Ray Leonard, Julio Cesar Chavez, or Oscar de la Hoya himself, but they had left the golden chance at heroism and nobility slip.

Anyway, Pacquiao may have not realized it but, after making his countryman very proud with his conquest of a fourth world crown, he next handed the Pinoy a rare gift. The native nobility Pacquiao displayed in that moment of moments helped immeasurably in telling the world that the Filipino, cheated, cursed, corrupted, is brave, strong, and, last but not the least, worthy of applause and respect.

*Sniff-sniff.*  Okay. I admit it. This part really rang true. I was never prouder of Pacquiao than I was at that moment when true concern came over his features and he grasped Diaz's outstretched arm. That was a golden moment for sportsmanship. Quite a refreshing change from all the trash-talking one has come to expect - and dread - from professional sports.

Thank God for the greatest Filipino fighter ever.

Too cheesy, but can't argue with that.

1. The meaning of ‘woman’

When we want to speak about the foundational aspects to understanding women, first it is necessary to define what we mean by woman as opposed to man not a woman as opposed to her husband. A woman can take certain titles such as a wife, a mother, a daughter, a sister, an aunt, a grandmother, and the likes. Each one of these titles comes with special rights which have been mentioned in the books of law and jurisprudence. To make an example and woman with the title of ‘wife’ has been mentioned opposed to the title of ‘husband’ and each one of these titles has rights and duties in relation to the other. The title ‘mother’ has special rights in relation to children and visa-versa that must be observed. The title ‘daughter’ has special rights in relation to the parents. But, these titles will not be discussed in this research – only a woman in respects to being human opposed to a man will be discussed. But, in the continuation of this research other topics will also be dealt with.

2. A woman’s place in the universe

source : Macbidouille.com

"The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement."

Throw out the US constitution, the united states code, the federal rules of civil procedure as well, while you'rea at it.