The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: September, 2011

We don’t own the footprints

“The great irony is we don’t own the surface of the moon, so in a sense we don’t own the footprints” left by Apollo astronauts

In developments rather outside of my jurisdiction, NASA is seeking consensus with private space exploration companies (this alone proves we are in the future) over guidelines to preserve the historical artefacts they put on the moon during the previous century.

Google’s Lunar X prize includes a $20m award for landing a robot that can move 500 metres and send back images from the moon but with a $4m bonus “heritage prize” for landing near one of the Apollo missions. This means that about a dozen teams are actively aiming rockets at some of the most significant, and most fragile, relics of human progress ever.

Interestingly the law here comes from the Outer Space Treaty 1967, which is one of these UN treaties which you notice in footnotes when you’re a student and think is just a cool bit of Cold War trivia. The treaty means means that, because the surface of the moon has no owner, there is no authority which can tell private bodies to leave Apollo 11 alone.

Science mentions the experience of anthropologist Beth O’Leary who approached the US National Park Service trying sort out preservation guidelines and was told that the agency “did not have the jurisdiction to work on such guidelines.”. She provided the quote at the top in 2000. I suspect the change of heart must have something to do with Google putting up the ton of money.

There is likely to be a great deal of money in actual lunar artifacts — I hesitate to imagine how much someone would pay for the Apollo 11 lander module — but they remain extremely important relics for our species.

In the 20 July guidelines, NASA proposes that the Apollo 11 and 17 sites remain off-limits, with ground-travel buffers of 75 meters and 225 meters from each respective lunar lander. Furthermore, NASA simulations and footage from previous lunar missions led Kelso to conclude that 2-kilometer-radius no- fly zones over each site would prevent rocket exhaust from contaminating artifacts. NASA, however, would condone limited activities among the artifacts of other sites, according to the document.

H/T: Science, 2 September 2011, 1207-8

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Juries are crazy, sometimes

In the shadow of the Neil Lennon look-we-have-a-video-it-happened-on-TV Not Proven verdict Scott Greenfield writes about a law review article across the pond about how the exclusionary rule — one of the central procedural concepts in all litigation that’s ever heard of England articulating the principle that, for various reasons, some evidence is simply too unfair to be shown to a jury — is back firing on criminal defendants.

Greenfield’s primary criticism of the article is fundamentally that it’s a case of throwing the baby out with the bath water and I find him as persuasive as ever on this. The problem is jurors’ imaginations running amok rather than the ability to exclude, for example, torture confessions.

The problem is sort of a reverse CSI-effect where instead of juries assuming that, if the accused actually did it, there would be DNA and fingerprints; they assume that the accused did do it and there’s something horribly incriminating that their sleazy defence lawyer got buried. The jury then takes it on themselves to imagine what that non-existent evidence is and convicts accordingly. I don’t know how common this is and the rules on jury interviews in the UK makes it tricky to find out but it’s potentially a very serious problem, not least for what it does to the presumption of innocence.

I imagine this comes straight from police dramas where the sleazy defence lawyer is always getting stuff buried. It’s looking increasingly like your odds of conviction in solemn trials depends more than it should on if your jury prefers CSI to Law and Order.

The lesson seems to be that juries sometimes do unpredictable things, whether that’s returning unexpected verdicts, assuming evidence is normally definitive or that it even exists in the first place. We still have to be careful about constitutional safeguards, especially in jurisdictions where the constitution is as flexible as ours.

H/T: Simple Justice

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