Blawg Review #248

by scotslawstudent

Welcoming speech

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

Robert Burns

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

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

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

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

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

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

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

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

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

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

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

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

Selkirk Grace

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

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

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

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

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

Entrance of the haggis

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

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

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

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

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

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

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

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

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

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

Address To a Haggis

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

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

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

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

Loyal toast

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

Immortal memory

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

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

Appreciation

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

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

Toast to the Lassies

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

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

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

Toast to the Laddies

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

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

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

Other toasts and speeches

Law schools

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

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

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

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

Legal writing

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

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

To that end UCL Practitioner suggests another 30 posts.

Events in Scotland

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

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

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

Post dinner singing

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

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

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

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

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

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

Vote of thanks

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

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