The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: May, 2009

Performant is not a word (that you should use)

Admittedly it is a word. I just think it’s a very bad word. Teeth on edge sort of thing.

I use a modified version of the Strike Out system when I’m reading things online – if it’s something that’s interesting or important I’ll keep going but if it’s just for fun I will make a quick value judgement and if it’s badly spelt or poorly written in some other way I’m liable to get bored and go read something else. I also have a fairly short trigger for words which were spawned in the bleak hell of the corporate report/presentation.

Blue-sky-thinking-out-of-the-box has me physically wrestling the mouse towards the close box. Performant’s another word that gets a wince out of me. I think it’s a word you use to sound clever, like the egregious user of French. Which can be me sometimes but that’s because French is more beautiful as language than I am skilled in its performance. Remember I’m not here to say I’m perfect, just that using it to my hypocritical self is dicey.

The biggest problem with performant is that it’s a waste of a word, it’s entirely reliant on context to reveal what particular facet of performance you’re actually referring to.  The next is the smugness which fair drips off the word, it’s a masonic handshake of a buzz-word clique, you either get it or you’re not cool.  Thirdly is the fact that other words actually suit the situations where it gets rolled out entirely better.

This is due to me reading a review on the new Ubuntu Netbook Remix (9.04) release which said that the reviewer’s system was “more performant” with the new interface turned off.  The reviewer means his computer was quicker after he disabled the newly added parts and that’s obvious.  It’s still entirely valid though and there’s no shame in saying it was more responsive or merely just “faster”, which conveys more information while being half as many words.  There’s simply no need to dive into corporate speak.

Edit (ugly, rant of a paragraph deleted): In hindsight does every post need a sharp non sequitr about law?  Probably not, I don’t like the word, that’s all I’m actually saying.

Pringles – not enough potato to tax?

Revenue & Customs v Procter & Gamble UK [2009] EWCA Civ 407 sounds at first glance to be one of those many commercial tax cases that are just sent to try us students with copious amounts of critical, yet tedious, detail with mind bogglingly large sums of money dropped in for flavour.

It turns out to be rather more entertaining – making it to the front page of today’s Metro, a free paper not well known for its legal reporting, because it concerns Procter & Gamble trying to prove that their savoury snack is not made of potatoes, to the horror and confusion of shoppers everywhere.

In a similar arrangement to the Jaffa Cake debate (I still don’t know*) the “once you pop you can’t stop” “savoury snack” (says Procter and Gamble) that is Pringles has been thoroughly judged to be a potato crisp.

The real precedential gem in this Court of Appeal judgement does not concern food or tax more than any other field but is the creation of (I believe) a new legal standard to stand alongside the venerable “reasonable man”, the “reasonable professional” and the “moron in a hurry.” It is the standard of the “child at a party.” That is, what would a child at a party interpret the product to be. I find it hard to express in words just how lovely I find this test.

The Court of Appeal ruling has cost the makers of Pringles potentially £100-120 million so I suspect moves to a further appeal are already under way so it remains to be seen if the child at a party will be an interesting bit of obiter or real, live law.

Although on hearing the arguments of the manufacturers I don’t know if the child should have Pringles at his party in the first place. The Guardian sub editors are calling this a “brilliant, ‘our product is rubbish’ defence” and they’re pretty spot on, one of the language arguments (the VAT regulations were distinguished on a made of / made from point) was that you couldn’t say they were made of potato because they were made from nearly equal amounts of fat, a detail sure to warm (and clog, possibly) any mother’s heart.

*the court says cake, yes, but I’m still not convinced

An open letter to the Internet in defence of, well, letters

Dear Internet,
I’ve noticed you never get letters anymore, it’s a shame. The only thing that comes through the letter box now is generally a bill. The electronic version of the letter, the email, is also in grim condition. It is either a spam infested wasteland or a firmly stodgy business tool. The current champion of email – Research In Motion has made millions from business email but has struggled to make a similar dent into the consumer market.

Young people, it appears, have decided that email is a big business shill and do not use it for social purposes preferring to use instant messenging and social networking sites. I find that sad as a young person who actively likes email. I think email is the letter of the internet – you write it all in advance, address it and send it off, to get a whole message back.

Letter writing is nice, email is a little less formal – there’s no chance to open an envelope and it can be lost among adverts for various enhancements. Since the email is so much like the much appreciated letter, except less expensive and quicker, it is sad to see that it has been relegated to the position of “work tool” by the young people of today.

Although email is undeniably a fantastic tool for work, as is the traditional letter, and many technologies rejoice to be adopted as one because it will be written into compliance specifications and generally hand around for future decades it does mean that Joe Teenager will not be so keen to go for it. That means that when Joe Teenager becomes Joe Office Worker email genuinely will only be a work tool to him.

RIM has made excellent money from showing how useful not much more than always having access to your email can be but remains very much a corporate business – it only recently put cameras on its phones because of corporate policies against cameras. The Blackberry, however, is a household name – they are quality devices and Barack Obama loves them which are just two substantial points in their favour.

The mobile phone, in my eyes, is not the easel for the next great letter, which should rather be penned in an attic flat, next to a window while it’s raining to really set the scene but with all teenagers (seemingly anyway) possessing phones with email capability this could be the scene of the resurgence of the letter. Next time Joe Teenager (or Joe Twenty Something, or Joe Thirty Something or…) is on a bus for a few minutes with nothing to do he should sit down and start to write a letter, using his phone and sending it off by email. He should occasionally resist the temptation to send a quick text now and again because you can say much more in a letter.

Yours,
A blogger

1 year on

I’m just going to quickly get this in under the wire – 20/05/2009 is the one year anniversary of the start of this blog. It’s been a very varied year with lots of learning, too much bunking off and some heart stoppingly scary exams at the end but I still think I need a summer holiday at the end of it all. First though, comes blogging.

Exams are over

364 days since this blog started with a call to the first year exams I’m finished my second year ones. They are harder, it needs said, and much less fun this time round. If you let your classes get away from you the catchup is like dealing with jetlag.

I’m going to list some of the topics I’ve been saving up while the exams were cramping my style as an advance warning:

Highbrow: MP Expenses
Lowbrow: Pens (I’ve had enough time with these lately to get fairly interested in them)
and some more

Unexpectedly obvious Amazon item

Although I should technically be studying my poor, abused eyes off for my upcoming exams I’m clearly not (I’d guess a reader could see that, because I’m typing a blog post, that fact speaks for itself) and instead I’m browsing notebooks on Amazon. Along side the various commercial forms of “blank paper in a book” which is in equal parts confusing as a product (you pay what for blank pages?!) and utterly compelling when you realise how handy they are was a traditional printed book by Dan Price, it’s called “How to make a journal of your life.”

I don’t keep a journal, I should probably admit this in advance, but I think I might know how I would make a journal of my life – I’d get a journal and I’d write about my life in it. I know I got into university and everything but I didn’t even have to try there. I’m being facetious but does this point to a culture that needs HOWTO books about everything?

The book appears to mainly be about why you would write a journal rather than actually how you go about it and that’s a good message. No lesser a being than Socrates said that, “the unreflected life is not worth living” and the journal is a good tool for that.

All this being said – is it £9 (less thanks to Amazon’s sales) worth of good message and tips? I suspect it probably is over a lifetime, really, and no one is forcing anyone to buy against their wi

Justice Scalia – another dodgy dossier?

Knowledge comes in two massively different categories – data, which is the collective name for “facts” and then there’s information, which is data when it has been put into context. We have been told that we are living in a “information economy” and this is a lot more literal for some people than others – information has become a marketable good in itself. This is not a new phenomenon – there are reports of employees selling books of customer details to competitors for hundreds of years. If information is so valuable should we be concerned about information about us?

Antonin Scalia, the US Supreme Court Justice, doesn’t appear to think so. In fact, he’s gone so far to state that he believes it is “silly” to think that “every datum” about you online is private. I think he’s perfectly right in that statement but I would dearly like to be able to say that some information about me is private, Scalia agrees. I think it’s too far to say that data that I didn’t publish should be private but it’s probably really quite close for private individuals. If I actively choose not to fill in an item on a social networking profile that’s because I chose not to say. If someone circumvents me in my desire to not reveal personal details that’s obviously a move that impacts upon my privacy. Is it legally actionable or indeed malicious or even harmful? That varies on the detail that’s been revealed but I would have less privacy now than I did before.

The danger of data?

Data is pretty harmless without context and there are few facts about people that are “dangerous”(1) in isolation. The real “danger” is aggregation – collecting and putting that data into context. I say danger but it’s actually a very valuable part of the world and always has been. Every student and researcher does this every day they work, it’s the very basis of academia and it’s their collecting and analysing of information that is the added value that they’re rewarded for. The collecting of data is not an inherently bad act, it’s not always a bad thing. Some data collecting activities are illegal because of what the data is but the action of collecting images is not bad unless the images portray something illegal.

The role of data in academics

The academic world has long believed that knowledge is more useful when it is put together in context. This leads to people creating periodicals, textbooks, journals, papers, everything that is produced by the academic world relies on the collection and analysis of data in one way or another. This type of data collection is generally beneficial to society unless the mode of collecting the data itself is flawed or unethical and generally it’s not been a problem. We have ethics committees for that.

Data collection as a business

It’s equally useful in other places than just dusty universities – the marketing world has long believed that people can be sold to more effectively if you have a very detailed picture of them. To this end millions of pounds are expended annually on creating accurate surveys and market research and it’s often a very worthwhile investment to target marketing budgets very carefully.

Data collection in the public sector

The public sector intimately relies on the collection and management of data. The census is probably the largest data collection process currently undertaken and it is used to assess the level of funding for many public services (if the census says we have more children that means we need more capacity in schools). The compilation of the census is a hugely important job and it’s crucial for efficiency that it’s done accurately. A welfare state needs to know where it should be sending the services that it provides and in what proportions. It would be lovely to think that in the great British transaction taxpayers (obviously I’m a student, so Ken Dodd and I are taking a moral stance) merely swap taxes for services and that’s all but it seems increasingly we don’t.

The intelligence community is equally interested in collating information and it has been manifested, quite disturbingly, in the idea that you can identify “terrorist behaviour” and then, by using “data mining” thresh out the people exhibiting this terrorist behaviour so you can question them. This leads to the Home Secretary’s apparently inexorable plot to collect every piece of information about the electorate she can possibly lay her hands on. I think it leads to a crippling amount of false positives once you put the whole country on it and leads to a horribly high amount of people coming under vaguely McCarthyist levels of suspicion (and remember national security is area that the courts are often wary of overruling the executive on) for merely behaving in a way that is out of the average, which is especially hard because the authorities obviously can’t tell anyone what “average behaviour” is because then the people you’re trying to find could use it to hide. This is a massive issue in today’s Britain and one which appears to not be going away, especially with the deliberate human rights incompatibilities which are starting to really mount up with the UK DNA database.

The response to Scalia

Scalia’s comments have attracted a lot of attention, his use of the word “silly” has been considered by some people to be particularly offensive. The topic is very important to a great number of people and it deserves to be taken seriously. It is taken so seriously, in fact, that Information Privacy Law is taught as a class at Fordham Law in the US. The professor in charge – Joel Reidenberg – sets a piece of coursework which is to compile as much information as possible from publicly accessible sources on a particular person, generally himself. This year, however, the setting of the task happened to coincide quite neatly with Scalia’s statement and, this is extremely controversial, he became the subject of this year’s assignment.

US law students, probably because they’re on courses which leave them in such sickening levels of debt they absolutely require top dollar jobs to possibly pay off, are amazingly industrious and the hand-in they submitted ran to 15 pages of facts about the judge. As a combination of a desire to be ethical and open and to encourage debate the dossier was sent to Scalia to show him how unprivate his life was and see if this would change his mind. I found his reply to be fairly unexpected.

Scalia’s response

Scalia, to everyone’s surprise I think, did not really reply with a answer to if he considered the dossier to step into areas which he considered to deserve privacy protection or if it actually did break privacy law or other issues which I’d really love to hear him answer on but instead criticised the professor for his “judgement”. I can understand his reaction to this – receiving 15 pages of facts about myself would make me feel deeply uneasy since they come from a stranger and it’s not a justification to “e-stalk” because they said it wasn’t a universal right. Deciding you can teach someone a lesson by doing what they said was fine leads down a dingy road which ends with Dick Cheney being waterboarded. It’s not ethical just because people don’t see a problem with it.

Comments that suggest that Scalia was “asking for it” are wrong, he was not asking for a 15 page collection of his publicly accessible details to be arrive in his mail. He would have used totally different language if he was, probably including “I’d like” or “Please can I get” more than he did. He was taking a strong position on the topic but not actually giving his blessing to the project. However, that does not mean the dossier does not constitute an incredibly useful discussion aid in this debate and I believe that is what it was intended to be.

That out of the way I would dearly like to know what facet of Reidenberg’s judgement was wrong in Scalia’s opinion – legally, morally, socially, ethically? I think that Scalia simply saying that he thought the dossier was ill judged leaves so many questions unanswered. Most fundamentally of all would be “what is the ill-judged element?”

The dossier contained no new information, it was simply a collection of facts already accessible on the internet. All the students did was put the dossier together, probably using little more than a combination of copy and paste with Word’s footnotes and formatting for polish and referencing. If Scalia thinks the dossier was ill-judged he presumably must think that the aggregation of data is what’s ill-judged. That leads to some quite thought provoking questions:

  1. Does that mean that marketeers are practicing bad judgement when they compile demographic data?
  2. Is the government practicing bad judgement when they compile census data?
  3. Is it ok to use surveys because they’ve been consented to?
  4. What level of consent could you use to stop people repeating the dossier project?
  5. Are we talking EULAs on search engines here?

Most of all we have to ask is “bad judgement” illegal?

Legality

This is what it comes down to. Could bad judgement be enough to make the compiling of data illegal? Not in the US according to Scalia and also would we be comfortable being quite that paternalistic? Privacy law is supposed to cover unreasonable violations of privacy and no further, especially in the US where the right to free speech is entrenched in their highest source of law.

This requires a line in the sand to see what is unreasonable. It is a difficult task further complicated by the unusual nature of data even the most sensitive facts about a person – even something like “HIV positive” – is harmless without other pieces of information – a name, for example. Whereas very innocuous details, “[name] has spent 5% more on petrol than average this month” when combined with other equally innocuous trivia can reveal hugely embarrassing or unfortunate situations which completely violate the person’s privacy, for example [name] suffering from a serious illness and using the small amount of extra petrol to drive to hospital for regular treatment.

We would consider “outing” an HIV sufferer to be a massive breach of their privacy if they are not a danger to others yet we could not draw an unbreachable privacy line at “petrol receipts.” This does not help anyone in deciding if the information they possess is going to be an unreasonable breach of privacy when it’s put online before a judge decides on the legality of the end result and that’s a difficult position to be in.

Edit:  Thank god I went for broad strokes instead of lots of close analysis.  As someone who has tried to get full quotes from the Associated Press will know, that was not the full response, this appears to have been:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

This is a bit better response than a mere “ill-judged.”  I still wonder if it covers malice which is a wholly different kettle of fish.  The issue would have many fewer people wearing tinfoil hats if it was simply an academic exercise that law students did in an elective but there are hugely significant implications which need to be addressed.  The reference to the First Amendment is quite interesting, it’s a constitutional right that often gets criticised as everyone’s free ticket to shooting their mouth off with impunity.  Scalia’s statement of using the rights in the first amendment with responsibility is common sense but it’s not something that can be guaranteed – just as data collection can be innocent and it can be something more.  There’s limits on free speech in the UK, who’s to say there can’t be the same for data collection.  The only question is what metric we use for that limit.

(1) from a data security perspective

Errata

It has been noted in the comments that some details are incompletely stated or inaccurate:

Justice Scalia was sent a letter which included an offer to be sent the dossier, rather than the entire dossier itself (which is, subjectively speaking, a better image in a narrative)
Scalia’s response was sent through the “legal tabloid” abovethelaw.com and not the professor directly.
I don’t believe I stated that the dossier has been published but just to be explicit – it’s not been. It’s still a “course material” and protected as such.

Thanks again to the commentator “Accuracy” for the fact-spotting.

ScotsLawStudent.com mentioned on Law Actually

Many thanks to Michael of Law Actually for his coverage of the blog/blawg, it’s lovely to very nice to get a mention, Law Actually is one of the blogs I regularly read and follow with great interest. Law Actually, as a matter of fact was the point at which it occurred to me that I could blawg about this university thing. I’d actually not noticed just how much the blog was trending into the tech world until he pointed it out. This has deviated from the high brow, dusty black letter aspirations that I had originally held for it and bears considering.  In a hobby project you get to play to your interests and, hey, I’m interested.

In a nod to the next generation (I’m almost up to my third year now) I’d like to add some tips for new students who see this. I get a lot of search hits from people looking at attending law school and deeply suggest that people should start their own blog, with some caveats, because it’s a great way to put your experience out there.

1) Decide if you want to write anonymously or use your name.

I did to keep my baby steps from being intimately connected to my offline, aspiring to get paid as a lawyer, persona. I suspect you could work out who I am reasonably easily but hopefully prospective employers casually doing a google won’t come across my laughably wide-eyed and naive opinions. If not you need to remember to keep your posts employer-safe and to take it pretty seriously, you might never have your masterpiece on “top 10 jokes to play on the falling down drunk” post come back to bite you but the chance is there and I would suggest keeping it away from your equally masterpiece work on “the concept of occupier liability in virtual worlds” in case it affects you further down the line. By no means think you can’t write the first if you want to but I don’t think you should connect it to identity that you hope to have appear before a judge, in the good way.

2) How much of an online presence do you want to have?

This boils down to:

Do you need a website?

Generally no- all you need is a way to put your words online. A blog works for that with aplomb. You can get a free blog with wordpress.com among many others. A website has potential more functionality than a blog on its own but most people would be very surprised at the functionality of blog software and hosts. You don’t need a website just to host files – wordpress.com gives you 2GB of storage for free which lets you handle media of all kinds, 2GB’s enough to provide a fairly decent archive of podcasts, all attached to quick connections and lots of bandwidth.

Choose a good blog host

Blogging is a great way to publish your words, I’m just about old enough to remember when “publishing your words” amounted to plain, hand written HTML files in your 50MB of ISP hosted storage for most people and modern blogging is so much better. You have three main choices – a social networking site (Facebook etc) blog, a dedicated “blawg” or to post about legal topics on a blog you already write. All options work. I happen to go for the dedicated blawg and it’s the route that most other legal bloggers seem to take. It’s possible to move to another host after you’ve started but it’s fairly heavy work to move everything over.

To Tweet or not to Tweet

Twitter is extremely useful to consider because, frankly, Tweets are wonderfully quick to write in a way that a five hundred word blog post is not. I personally have a sporadic presence on Twitter which finds bursts of updates when I rememeber about it. I am ashamed to point out a distinct causual link between the breaking of my easy-tweet panel applet and a dry spell in my posting. It’s not for everyone and if you don’t like it you can stop using it. It is for many people and there’s a lot of good material put on Twitter. I’m unsure I like the ephemeral nature of it though.

3) How much time do you want to spend on it?

Producing good writing is hard work (and tiring, just ask any student why they can’t get up in the morning!) and regularly publishing them takes a considerable amount of time. You can shortcut that by writing less often or, in a manner of speaking, writing less. You can do what I can’t, which is write fewer words, or you can do what I can do, which is research less. I can not do research with the best of them. You probably won’t see a footnote on this entire site. That couldn’t be more different for other people, particularly on practioner blawgs, for example on firm websites, where the blogger is actually reporting on novel legal research. It’s a (non-peer reviewed, mind) journal article you can get to with google. I have found these useful to give me an overview in a particular question of law. You don’t have to write that sort of blog but if you do put your name to it it would be wonderful to be able to show that you can.

I have let the blog lapse a little, it’s true, but I still check it often and try to update it when I get a minute. It’s hard to fit it in and you always have to remember that, unless, your blog by some miracle is generating a great deal of money for you, it’s not a job and real life committments should come before getting a new post out. Twitter is a good option for people who just want to publish their thoughts and opinions and not spend a lot of time on it but it’s equally not for everyone.

4) The tech bit: How should you write your blog

This is actually not as straight forward as it used to be. Previously if you wanted to type an online journal your only avenue was a desktop computer, without it you weren’t going to get much online. Now your options are considerably more varied so much so that the the previously cutting edge al fresco laptop blogger is in danger of becoming passe. I’ve not read that anyone is blogging from a mobile yet (and don’t really fancy it on my bog standard phone keypad) but I imagine it must be getting done – lawyers and the Blackberry are pretty inextricable these days. I have a reasonably ardous bus commute as part of my day and if I had a way to type on the bus I suspect I could get a fair bit done and the smartphone might be a reasonable way to do it. Currently I use the time for reading but typing might be a good way to pass that time too. Beyond that, it’s a typing task like anything else you do. You find a way to type that you can stand and you do it that way. I use a manual typewriter because of the lovely noise. It’s really not much cop on the bus but it’s a nice addition to my desk at home.

Conclusions

I can’t recommend blogging your law school experience enough, if nothing else it’ll be an interesting record to look back over when you finish your career. I think legal blogging fulfills two crucial roles in today’s world – legal reporting and advertising. I think that having sane, reasoned and knowlege legal comment is crucial. Ben Goldacre recently made a wonderful analogy comparing reporting science with reporting snooker. He pointed out that economics and finance get pretty full fat coverage with shedloads of figures and theories being bandied about and you still need 4 years of university education in that too. If you can watch full fat reporting of a complicated game like snooker you can handle full fat reporting on the way the very world works. It’s like that in law too, it needs a lifetime to master but affects everyone and it’s rarely objectively reported. It’s too often you hear unattributed anecdotes about the broken nature of the law without a voice in the wilderness pointing out the reasoning behind it.

The other one is to educate law students – I relied on family members in the profession, who had been qualified for some time, for my introduction to what will happen at law school and things change in that time so I was playing by ear for a lot of what was happening. I only came across a blawg, and only after my first year was already over, by a chance google result. Other people have searched for information online before even applying and this shows slightly more research than I did and fair play to them that’s a good move. Legal bloggers can and do help these people by having a decent coverage of the mystical place for them when they search.

Additionally I’ve got my original aim of going over things I’ve read for the benefit of refreshing it in your mind, that still works although I’ve not been doing much of it on the blog. Any benefit which might improve your ability to analyse and remember law is to be pounced on posthaste.