Skepticlawyer

So, Sandy Hook

December 19, 2012 – 1:01 pm

By skepticlawyer

Today, as promised, I’m going to talk about Sandy Hook Elementary. I’m also not going to provide you with any easy answers or solutions.

This means that if you don’t want to acknowledge the grim reality that public policy is hard, stop reading now lest you get to the end of this piece and find that I’ve made you miserably unhappy and that you therefore wish to abuse me. This post is the first of two; the next one will go up when I have some more information about a crucial aspect of the investigation as it unfolds.

I ended my last piece on 2DayFM’s prank gone wrong with Charlie Brooker’s plea to report spree killings differently, so I’ll start this one on the same theme: the spectacle.

This comes from Plato’s Republic:

Leontius, the son of Aglaion, was coming up from the Peiraeus, close to the outer side of the north wall, when he saw some dead bodies lying near the executioner, and he felt a desire to look at them, and at the same time felt disgust at the thought, and tried to turn aside. For some time he fought with himself and put his hand over his eyes, but in the end the desire got the better of him, and opening his eyes wide with his fingers he ran forward to the bodies, saying, ‘There you are, curse you, have your fill of the lovely spectacle’.

Nearly everything in Plato’s Republic is A-Grade bunkum, but that insight is a telling one. Charlie Brooker calls it ‘rubbernecking’ and anyone who’s ever slowed down to gawp at an RTA or wondered what the Romans got out of their incredibly violent entertainments or played Call of Duty or obsessively tried to learn more about the latest school shooting understands the desire that got the better of Leontius. Violent death. It’s just so interesting, dammit. And these days, we know that it’s not just our eyes that want to look. We do, too. Plato thought that ideal versions of everything existed out there in the ether–he called them ‘forms’. But there are no forms, or if there are, they exist not in the stars but in our heads. Just like the rubbernecking habit.

This means that any discussion of Sandy Hook–here or elsewhere–is in some respects voyeuristic. We are perving on other people’s grief, and that’s not an attractive habit. I find it revealing that the two commentators who made the ‘grief’ point in the most lapidary fashion represent political extremes. Here is socialist Guy Rundle, in Crikey!:

Too calm, too practised. They are too good at this now. There is too much stricken meditation on the unknowable nature of evil, too much “this is not a day for politics”, too much coming together, too much spirituality that is really passivity with a gloss, too many candles, too many floating lanterns. These things have become as polished and inverted in intent as teen funerals with their slideshow montages to Time of Your Life.

There’s something nauseating about such forbearance. The systematic and thorough killing of 20 children under seven should not be an occasion for which anyone is sufficiently prepared. By its very nature, it should be an occasion for hysteria, for disarray, for uncontrollable grief.

[...]

The meditative reflection on display strikes one as a particular condition of a more general process — the manner in which a type of fatalism has encroached on daily life at the very root — in America. Though expressed in religious terms, it seems to have more to do with the all-encompassing power of abstract systems, corporations, processes, a life lived in permanent suspension from the real.

“We need to take action,” the superintendent had said in Bridgeport and I brightened for a moment. “We need to take action to comfort, action to be vigilant.” Which is not action at all, but its opposite.

And here is paleolibertarian Ilana Mercer:

Almost as warped as the (evil, not ill) mass murderer who killed 20 children and 7 adults (his mother included) at an elementary school in Newtown, Conn., is the freaky spectacle of mass contagion—where members of the public turn professional mourners, flocking to funeral happenings for victims they never knew.

Yes, each one of us can project his own baggage onto the senseless deaths in Newtown. But grief is not a tribal affair. Communities don’t grieve; individuals who incur loss do. These ritualistic displays among regular folks across the US are symptomatic of our festering cultural commons. [Emphasis in original]

At the center of this festering culture is the journalist, acting as a master of ceremonies (MC). (I can see Anderson Cooper reconfiguring his Hero of the Year Award as we speak. This low-watt, dim bulb of a journo chooses America’s heroes each year, based on how many tears they shed. Pretty much.) For the media’s blow-by-blow, wall-to-wall coverage of the memorial in Newtown, Connecticut—and of every connected utterance on the issue, official or other—is a deconstruction of the discipline of journalism.

So–that acknowledgment of our devotion to the spectacle over–it’s time to address a few (and it is only a few, because life is too short) of the early stage explanations for Sandy Hook, and to put them out of their misery.

It was the guns what done it!

I’m about to make both pro and anti-gun friends very unhappy (so you have been warned), but this lawyer with a modicum of statistical understanding is heartily sick of both sides abusing the numbers.

First, some background radiation to what I’m about to say.

The United States is, compared to OECD averages, a phenomenally violent country. And within the US, the South has levels of violence on par with much of the developing world.

US v OECD assault death rates

South v rest of USA assault death rates

As should be reasonably obvious, even the blood-drenched United States is getting better as time passes: much better. New York has recently had cause to boast about crime rates dropping to levels not seen since 1960. This decline in all forms of crime (not just assault deaths) has been repeated throughout the developed world, although the rest of us are falling from a much a lower ‘high’. The decline in violent crime has also continued across the US and EU, independent of both the financial crisis and rates of firearm ownership.

Recorded offences in those EU countries where consistent time series data is kept (via European Commission/Eurostat)

US firearm deaths over time (via Center for Disease Control)

It is important to remember that the most common gun-related death in the US (and elsewhere) is a suicide, and that if there is one ‘gun control’ proposal that would help to reduce this figure, it would be a mandated requirement to have secured firearms (what is sometimes called a ‘gun cabinet’) with separate ammunition storage. I was brought up (in my Australian country childhood) to do this — not only by my parents but also by the local Sporting Shooters’ Association.

Many people make the mistake of assuming that because there is effectively a gun for every American (thanks to the 2nd Amendment), it is always and everywhere the high rate of gun ownership that produces the high death from assault rate. This is only true up to a point. Not only do other countries have high rates of gun ownership combined with low rates of firearm death (Switzerland is a common and well documented example), firearms are not the only independent variable when it comes to rates of violent crime. Other things are going on, which I’ll deal with in the next post. That said, it is important for gun rights advocates to understand that banning guns would not be meaningless:

That leaves us with the big one, the argument I’ve been circling around for 2,000 words: ban guns. Ban them all.

I’m not going to insult your intelligence by arguing that this wouldn’t work. Guns do not create homicidal intent, as some people have argued, but they do make homicidal intent more lethal. A bullet is harder to stop, requires less physical strength to deploy, and does a huge amount of damage. And shooting someone takes a lot less time than stabbing or bludgeoning them. That is why we now arm the US military with rifles instead of big knives. Conservatives who argue that a total ban wouldn’t lower the homicide rate are being ridiculous.

However–even if you tore up the Bill of Rights and banned guns, overcoming all the practical hurdles in your path–while you would certainly reduce the death toll, the US would still be a more violent country than the others in the OECD. Of course, you could argue that an America without guns would undergo a vast cultural shift, would–in effect–become Canada. But, as my mother used to say, “if ‘ifs’ and ‘ands’ were pots and pans, there’d be no need for ironmongers”. Jeffrey Goldberg explains:

But these gun-control efforts, while noble, would only have a modest impact on the rate of gun violence in America.

Why?

Because it’s too late.

There are an estimated 280 million to 300 million guns in private hands in America—many legally owned, many not. Each year, more than 4 million new guns enter the market. This level of gun saturation has occurred not because the anti-gun lobby has been consistently outflanked by its adversaries in the National Rifle Association, though it has been. The NRA is quite obviously a powerful organization, but like many effective pressure groups, it is powerful in good part because so many Americans are predisposed to agree with its basic message.

America’s level of gun ownership means that even if the Supreme Court—which ruled in 2008 that the Second Amendment gives citizens the individual right to own firearms, as gun advocates have long insisted—suddenly reversed itself and ruled that the individual ownership of handguns was illegal, there would be no practical way for a democratic country to locate and seize those guns.

Many gun-control advocates, and particularly advocates of a total gun ban, would like to see the United States become more like Canada, where there are far fewer guns per capita and where most guns must be registered with the federal government. The Canadian approach to firearms ownership has many attractions—the country’s firearm homicide rate is one-sixth that of the U.S. But barring a decision by the American people and their legislators to remove the right to bear arms from the Constitution, arguing for applying the Canadian approach in the U.S. is useless.

So, yes, guns make the problem worse. But even without the guns, there is still one hell of a problem. And good luck with trying to do anything about the guns.

Finally: always remember that it is easy for people in the UK to criticize the US on its terrible violence. Compared to the US, the UK (even more than many other European nations, like France) is an astonishingly peaceful, ordered country. It is hard to believe that this nation of gardeners, queuers, and apologisers once ruled the greatest empire the world has ever seen, but it did. As an erstwhile classicist, I sometimes like to play the ‘compare the imperialists’ game: London v Rome. Apart from a grave public politeness, a sentimental fondness for their pets, and the rule of law, the two societies had nothing in common. Not for nothing did historian Tom Holland call the Romans ‘a superpredator of a civilisation’. One wonders what the Brits did if they did not predate, or if there were once more to them than cricket and liberal democracy.

It is also fair to say that Britain both before and after Dunblane started with a less absolutist attitude towards civil liberties than the US, and also, a lot fewer guns.

Moving swiftly on…

If we can’t ban guns, what can we do? Magazine size, concealed carry, and background checks

Once the ‘ban guns’ argument falls over, three alternative proposals are routinely floated, one from strong 2nd Amendment supporters and two from the more moderate end of the gun control spectrum. They are as follows:

1. Background checks.

2. Ban extended capacity magazines.

3. Allow concealed carry/remove ‘gun free’ zones.

There is modest evidence that background checks and banning extended capacity magazines would make a would-be school shooter’s decision to inflict carnage more difficult. Megan McCardle observes:

You can, to be sure, name one or two things that might make a marginal difference: ban extended-capacity magazines, and require background checks for private sales. As a proponent of reasonable gun control that in some ways goes farther than current rules (I’d like to require that people pass a shooting and gun safety test before they can own a gun), these rules don’t strike me as crazy.

But we are back to generic solutions. These “reasonable controls” would not, in fact, have done much to stop the horror at Newtown; Lanza’s problem was not that he didn’t know the four rules of gun safety, or that his aim was bad. And Lanza didn’t buy the guns, so a background check would not have stopped him.

Could we go bigger? Should we ban the relatives of anxious sad sacks from buying guns? How about family friends? (Michael Carneal broke into a friend’s house while they were away for Thanksgiving and stole the guns he used to shoot up his Kentucky school.) The question answers itself; the kind of all-knowing surveillance regime that this would require would be both impossible, and intolerable.

Reducing the magazine sizes seems modestly more promising, but only modestly. It takes a few minutes of practicing to learn how to change a magzine in a few seconds. Even if you banned magazines, forcing people to load the gun itself, people could just carry more guns; spree shooters seem to show up, as Lanza did, with more guns and ammunition than they actually need. In this specific case, it might well not have helped at all. Would Lanza really have been gang-rushed by fast-thinking primary school students if he stopped to reload?

There is also evidence that gun free zones just make the individuals within them more vulnerable, and that they actually attract criminal elements (as in, those with unlicensed weapons) because they are unprotected. This may, once again, be peculiar to the US and may not apply outside it.

The problem of concealed carry

Concealed carry, one would assume, stands or falls on the evidence. The way people argue over it, one would think that it either works brilliantly (gun rights groups) or generates chaos and crime (law enforcement and gun control groups). In fact, it does neither. Time and again, the enactment of concealed carry laws has not changed the crime rate in either direction. At all. People don’t even get to argue over correlation and causation because the data doesn’t get that far. It’s a wash, indistinguishable from noise.

Claims in favour of concealed carry laws and their ability to reduce crime were first made by John Lott in his book More Guns, Less Crime. Lott, an academic economist who–perhaps unusually–supports gun rights argued that violent crime decreases in areas where law abiding citizens are allowed to carry concealed weapons. Lott’s case, when first made, seemed empirically very strong. Indeed, in terms of an understanding of the operation of economic incentives, the basic argument is sound. Gun free zones don’t work because of the incentives involved, so by extension concealed carry should work, for the simple reason that if a criminal thinks his potential victim is armed, he may be deterred from committing the crime. However, it proved impossible for other scholars to replicate Lott’s results, while (by his own admission, foolishly), Lott waded into heated usenet debates, and was later caught sockpuppetting in his own cause.

Discrediting Lott did not serve to make the concealed carry argument go away, however, because the opposite claim–that it increases crime rates–turned out to be equally untrue. Consider the following case study:

In 2004, the Ohio legislature passed a law allowing private citizens to apply for permits to carry firearms outside the home. The decision to allow concealed carry was, of course, a controversial one. Law-enforcement organizations, among others, argued that an armed population would create chaos in the streets. In 2003, John Gilchrist, the legislative counsel for the Ohio Association of Chiefs of Police, testified, “If 200,000 to 300,000 citizens begin carrying a concealed weapon, common sense tells us that accidents will become a daily event.”

When I called Gilchrist recently, he told me that events since the state’s concealed-carry law took effect have proved his point. “Talking to the chiefs, I know that there is more gun violence and accidents involving guns,” he said. “I think there’s more gun violence now because there are more guns. People are using guns in the heat of arguments, and there wouldn’t be as much gun violence if we didn’t have people carrying weapons. If you’ve got people walking around in a bad mood—or in a divorce, they’ve lost their job—and they get into a confrontation, this could result in the use of a gun. If you talk to emergency-room physicians in the state, [they] see more and more people with gunshot wounds.”

Gilchrist said he did not know the exact statistics on gun-related incidents (or on incidents concerning concealed-carry permit holders specifically, because the state keeps the names of permit holders confidential). He says, however, that he tracks gun usage anecdotally. “You can look in the newspaper. I consciously look for stories that deal with guns. There are more and more articles in The Columbus Dispatch about people using guns inappropriately.”

Gilchrist’s argument would be convincing but for one thing: the firearm crime rate in Ohio remained steady after the concealed-carry law passed in 2004. [Emphasis mine]

The devil in the detail

It seems not to be widely known among the general public (excepting those who have some knowledge of firearms) that the Bushmaster .223 the killer used in Sandy Hook is a very common rifle in the US and not covered by any ‘assault weapons’ ban–historical, current, or proposed (the term is actually legal, rather than technical, and suggests that US Congressional draftsmen are not, generally, gun-owners). It is widely used for hunting and easy to customise:

Mr. Halbrook, who compiled manufacturing estimates for a lawsuit, said that by a conservative estimate, 3.3 million to 3.5 million AR-15s were made in the United States from 1986 through the first half of this year and were not exported. A similar estimate, for manufacturing from 1986 through 2009, was summarized by a District of Columbia circuit court judge as sufficient evidence that the rifles were in “common use.”

Enthusiasts praise the AR-15 rifle as lightweight, durable, accurate and, compared with other long guns, gentle in its kick. They describe the rifle as a gadget geek’s dream — the “Barbie doll” of firearms, as one gun dealer described it — because of an array of accessories that allow it to be easily customized.

“The average person can change stocks, they can put lasers on them, they can put locks on them,” said Tony Dee, the chief gunsmith at The Gun Store in Las Vegas. “It’s just endless. It’s like building a custom car. You can just accessorize it to your own personal taste.”

Mr. Dee said his wife owned a pink, chrome-plated AR-15. “It’s blinged out pretty good.”

Where to now?

I expected angry and inflamed online debate about gun laws in the wake of Sandy Hook. I did not expect some of the arguments and assertions I’ve seen about mental illness. There are policy proposals (from people I had hitherto assumed to be reasonable) I’ve heard that would amount not only to the reinstitutionalisation of the mentally ill but also to a deliberate decision to tear up the Bill of Rights for not a few of America’s most vulnerable people. To my mind, the mental illness debate is more urgent and frightening than the anger swirling around the 2nd Amendment debate right now. I want to address the issues raised therein with some care, which is why I’ve confined this first post to voyeurism, guns, and crime.

The take home?

1. Crime rates, including violent crime rates, are dropping like a stone across the developed world.

2. Despite also experiencing a significant drop in violent crime rates, the US is still much more violent than other OECD countries.

3. Much of this crime is independent of rates of gun ownership.

4. There are insurmountable Constitutional impediments to getting major changes to US gun laws as they currently stand.

5. Not all of the small changes otherwise possible are pointless.

By skepticlawyer | Posted in Law, Public Policy | Tagged 2nd Amendment, AR-15, Bill of Rights, Charlie Brooker, concealed carry, gun laws, Guy Rundle, Ilana Mercer, Newtown, Sandy Hook Elementary, statistics, USA, Voyeurism | Comments (2)

The unforeseeable plaintiff

December 17, 2012 – 6:16 am

By skepticlawyer

Making sense of the world requires–nay, demands–that we find patterns in events. And, as part of modernity, we’ve become used to the clear-headed, formalised pattern-finding of law and science. There are ways to look for explanations, and things that ought properly to be discarded along the way. That’s why we have ‘legal method’ and ‘scientific method’. Those of us with some statistical literacy are aware of the dangers of confusing correlation with causation, or drawing on analyses where N is too small or too unrepresentative, or not comparing like with like (lawyers and scientists both have to avoid the last one). Indeed, ‘one of these things is not like the others’ and ‘treat like cases alike’ is a bit of cognition shared by both methods. Legal method and scientific method are very different from each other in other respects.

However, this careful use of method based on empirical testing and the facts of the case and the best evidence rule and so on is either (a) relatively new (scientific method) or (b) relatively rare (legal method). It is one of the sobering details of humanity’s collective generation of self-knowledge that science proper is only about 350 years old, while legal method recognisable to a modern lawyer arose in precisely two civilisations. Two. Countem.

For most people in most civilisations for most of history, the reason the volcano erupted was because the great God Zog was angry. And the reason the people in that village sickened and died was because this evil witch-woman cast a spell. And the reason bad stuff happened to us was because we failed to worship God/s in the right way. And so on. Occasionally people in the past stumbled on a bit of law or science by mistake: pigs really do use up a lot of water and it’s very unwise to keep them in a desert environment, so Jews and Muslims get an accidental science ‘tick’. Local communities really are better at managing their own affairs, rather than being directed by centralised, top-down diktats: so the medieval Japanese get an accidental law ‘tick’.

But this is rare. The towering pile of crap that our ancestors took for granted is stacked so high with the detritus of stupid attempts to locate patterns where none exist that Sergei Bubka couldn’t pole vault over it. We can be very stupid apes indeed.

The search for patterns is still very much with us, of course. Nothing quite matches the rich and fruity madness of a really complex conspiracy theory in its attempts to extract data from noise, and not just recent conspiracies like the idea that 9/11 was an inside job or that the moon landings were faked. Older conspiracy theories–the idea that the Jews were engaged in a secret plot to take over the world, for example–should resonate with us not just because they’re ridiculous, but because they’re actively dangerous. People–lots of people–have died thanks to the widespread belief that Jews were/are engaged in a secret plot to take over the world. There are other case studies, too. Remember the religious nutter who blamed 9/11 on abortion and paganism? Or the religious groups who’ve blamed the killings in Sandy Hook Elementary on the absence of prayer in schools?

However, we needn’t stop with conspiracy theories: pattern-finding where no patterns exist is alive and well and seemingly plausible in lots of places, partly because those engaged in the hunt for patterns now think that they have a good enough grasp of the pitfalls of mistaking correlation for causation, or for extracting the wrong data from the right noise, or for identifying what really happened that they won’t fall into the same trap as the people who blamed the erupting volcano on the Angry God Zog.

So, in the last fortnight, we’ve had two utterly mistaken attempts to find patterns. The first involves an abuse of legal method, and the second involves an abuse of scientific method.

The first involved an argument that 2DayFM’s prank call caused the suicide of nurse Jacintha Saldanha. The second involved the ascription of the killings in Sandy Hook Elementary (variously) to mental illness, guns, anti-depressants, autism, and angry white boy angst (no, I’m not making the last one up), among other things (and I’m sure more correlative/causal speculations will emerge in the next few days).

I’m going to direct most of my comments in this piece to the 2DayFM prank, because I am in possession of sufficient information to make my comments properly informed and have good knowledge of legal method. One of the things that has annoyed me about both situations is the wild speculation in the absence of sufficient information. The fact that the killer in Sandy Hook was misidentified and the world was told that his mother was a teacher at the school when she wasn’t suggests the extent to which people were pattern-finding not only because they don’t understand the limits of available information, but also because they were engaging in a desperate attempt to paint a coherent picture by adding details that were either distorted or invented. There is too much missing information to be coherent about Sandy Hook right now, apart from the most anodyne observations.

So, enter the unforeseeable plaintiff

In law, it is sometimes possible to hold someone responsible for harms he causes to another person in a context outside the criminal law. The harm is compensated for by the payment of damages: to place, insofar as money can do it, the plaintiff in the same position he would have been, had the tort/delict not been committed. ‘Tort’ is what lawyers call a civil wrong in common law countries. ‘Delict’ is what lawyers call a civil wrong in Roman law countries. The rules developed in both civilisations (Roman and English) are broadly similar, and in recent years have come to influence each other. The most famous tort of all is, of course, negligence.

When I say that word ‘negligence’ I’m sure many of you have mental images of ambulance-chasing lawyers, of ‘no-win no fee’ arrangements, of cheesy late night advertisements that ask you if you’ve been injured recently and if you have, please call our hotline.

It is not an area of the law that attracts a great deal of affection.

However, it is an area of law that exists to make sense of the conundrum of human pain. It acknowledges that we sometimes desperately, desperately wish to blame someone for something, and then give the hurt person enough money to assuage their pain. In so far as money can do it, of course. Does it matter when you’ve lost your legs? And in the wake of 2DayFM’s prank call gone terribly wrong, lots of people suddenly got very tortalicious. They wanted to do the negligence thing and put some blame somewhere because something terrible had happened.

In a grossly simplified version of the law, to make out a case in negligence, you have to establish first that there is a duty of care; secondly, you need to show that the duty of care (at a given standard) has been breached; and thirdly, that the breach caused the injury. Then you establish whether there are any relevant defences, and the quantum of damage caused. That damage, in its turn, must not be ‘too remote’: not too distant in time or space. At each of the first three stages you have to decide whether the injury was reasonably foreseeable. At each stage the test gets more specific and difficult to establish.

The easiest test to satisfy is the existence of a duty of care: in Roman law countries, the test is drawn particularly tightly at the causation stage (which is why you see so much precarious scaffolding in France and Germany, and why the latter country has no speed limits on the autobahn). In common law countries, it’s easier to make out a case in negligence at each step of the process, but moves to impose limits often happen at the breach of duty stage: you have to get a bunch of professionals to agree that a fellow member of their cabal breached his duty at a standard on which all those professionals agree: the so-called Bolam Test. Good luck with that, by the way.

But duty is the easy bit in both Roman and English systems. Except when you encounter the unforeseeable plaintiff. Then there isn’t even a duty of care. Jacintha Saldanha falls squarely into this category, which means (by way of explanation) I ought to introduce you to the law’s most famous unforeseeable plaintiff.

Step forward, Mrs Palsgraf

In Palsgraf v Long Island Railroad Co 248 NY 339; 162 NE 99 (1928), Mrs Palsgraf was waiting for a train at one end of the Long Island Railroad Co’s platform. At the other end of the platform, a train was just pulling out when two men ran to catch it. They tried to jump aboard. One man got on successfully, but the second could not quite get up. Two of the railway company’s guards attempted to help the man, one pushing him up from behind, and the other holding out his arm to assist the man up. One of the guards dislodged a parcel that one of the men was carrying under his arm. The parcel was about 15 inches long and covered by newspaper. It looked harmless, but it actually contained fireworks. When the parcel fell onto the platform, the fireworks exploded. In the wake of the explosion, some metal scales next to where Mrs Palsgraf was standing were dislodged and fell and hit her. It is not really clear whether the scales were dislodged by the explosion or by the panicking passengers, but the court presumes the former. Mrs Palsgraf was badly hurt as a result.

The test for reasonable foreseeability at the duty of care stage is whether the defendant and plaintiff are placed in such a relation to one another that it is reasonably foreseeable that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter. This meant that the question in Palsgraf was whether it was reasonably foreseeable that Mrs Palsgraf would suffer the injuries she did. Clearly the chain of events was pretty crazy. Cardozo J (for whom the American law school is named) of the New York Court of Appeals delivered a famous judgment in favour of the Railroad Company (and ultimately, he made up the majority). He said:

Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and wilfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. […] [B]odily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not wilful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.

So Mrs Palsgraf went home empty-handed. And many people, encountering her story for the first time, often think that justice was not done. Indeed, in the court below the appeals court where Cardozo J presided, the decision went 3:2 in the opposite direction.

If one applies the facts of Palsgraf to Jacintha Saldhana’s situation, one gets a chain of reasoning that looks a bit like this (hat tip to USAnian lawyer mate Tim Mulligan):

The nurse was tricked into giving private medical information about Kate Middleton. The transgression was disclosed to the media. The media made hay of it. The nurse suffered tremendous embarrassment. The nurse committed suicide. The alternative explanation, that the suicide was unrelated to the embarassment, may or may not be true but seems less likely, albeit without seeing detailed evidence. Granted, the links are far too weak to support a burden of proof in law. Doing this kind of prank is just not likely to cause death, so it would be impossible to impose liability. But nonlegal causation seems possible if tenuous to be sure.

The problem, of course, is at the ‘tricked’ stage. Since when do radio stations owe a duty of care to their listeners or, even worse, people who are not their listeners?

Step forward, Mrs Palsgraf.

Of course, there may be other legal issues in play: employment law (a point made by professional nursing associations in both the UK and Australia before the suicide), data protection, breach of privacy. British comedian Dom Joly, a ‘pranker’ extraordinaire, makes it clear in this piece that he always gets consent before broadcast. Yes, this removes some of the frisson attached, inevitably, to the ‘biter bit’, but it saves him from a lot of lawsuits:

Online, the lynch mobs gathered and the radio station in Australia where the two DJs worked was the target of thousands of angry e-missives demanding that the prank callers be hanged, drawn and quartered – and those were the liberal ones.

As a “pranker” myself (although I loathe that term) I have to admit that I very much had the feeling of “there but for the grace of God go I”. How would I feel if somebody to whom I had done something on one of my television programmes had killed themselves as a direct result of it? It would be the end of everything. That’s why we have strict rules that insist that everybody we film has to give (and sign) an informed consent form that allows us to use the material we have shot. This has often prevented us from using footage that was comedy gold. The most normal reason for consent being denied is that the person was wandering around with someone that they shouldn’t be with and I’m certainly not in the business of home-wrecking.

This means that if there is law to which we can to turn to assuage someone’s hurt, it will not provide balm for Jacintha Saldhana’s family’s aches. It may protect Kate Middleton’s privacy, or the hospital’s professional reputation, or–were she still alive–Jacintha Saldhana’s employment contract. This does not mean that the law is an ass. It just means that law has the wrong tools for this particular situation: sometimes law fails because its tools are blunt (how often have I told this blog’s readers that law is a broadsword and not a scalpel?). But in Jacintha Saldhana’s case the law fails because none of its tools fit.

So we cannot turn to law

It has become, of late, very much a part of the modern ‘solution’ to nastiness that hovers around the blurry limits of legality to turn, immediately, to law, and not to let it go. This is rarer in the US than it is in Britain or Australia or on the Continent, but even in the US laws have been passed restricting Westboro Baptist Church’s notorious picketing of funerals. In Scotland, they’d be pinged for breach of the peace before you could say ‘William Wallace’, while England has a smörgåsbord of public order offences from which to choose when it comes to people who carry on like pork chops in public. Americans are always horrified by this, but then Scotland and England are both robust democracies with a reverent respect for the rule of law, so the difference may be one of degree and not kind.

If there is no law to wield on Jacintha Saldhana’s behalf, then perhaps there is something else. And it is in this ‘something else’ where people have to make decisions about what sort of society in which they wish to live, what they think is funny, what they think is reasonable. And all those decisions ought properly to be made without turning to law. You, the citizens of a liberal democracy, are on your own. The King’s writ not only does not run; it ought not run, lest we set lawyers up as some sort of weird council of Platonic Guardians (you don’t want that, you really don’t).

In this context, I found a piece by another lawyer-writer (yes, I’m not the only one!) of particular moment. Here is Matt Rubinstein making a great deal of sense (and do read the rest of what he says):

My favourite film in the 1990s was probably Terry Gilliam’s The Fisher King, which stars Jeff Bridges as radio cult personality Jack Lucas, whose offhand incitement to class warfare prompts a lonely caller to open fire on a yuppie watering-hole, killing seven people and then himself. Jack is dancing around his penthouse, rehearsing a catchphrase for a new TV vehicle, when he sees the news on his three televisions. In Richard LaGravenese’s draft script, Jack is finally silenced by the unfolding report. In the filmed version, he manages a manifestly inadequate, and yet somehow perfect, “Fuck.” You can see in his face that he’s not just worried about his career or the public recriminations: he’s devastated because the world has just revealed to him that he’s an arsehole.

Like most people on this side of the world, I heard the news of Jacintha Saldanha’s death hours before Mel Greig and Mike Christian woke up on Saturday morning. I could only imagine that their reactions were something like Jack’s here. I have no doubt that they’re as shattered, gutted and heartbroken as they say. But their near-identical interviews with A Current Affair and Today Tonight are a little off-putting in their repeated insistence that (a) they weren’t responsible for putting the prank to air, and (b) nobody could have expected or foreseen the consequences. I believe that both these things are largely true, and also that the presenters were lawyered out of expressing anything that might be mistaken for actual remorse—as opposed to being “sorry that this has happened”—for the usual reasons. But it doesn’t hurt to admit that you were an arsehole. And if you ring up a maternity ward and ask to speak to a woman who’s having a difficult pregnancy and pretend to be her relatives by putting on silly voices—I’m sorry, but you’re kind of an arsehole. You don’t need to take all or most or even much of the blame for what ultimately happened, and you don’t deserve death threats or invitations to suicide. But you can’t expect much sympathy either, because you were kind of arseholes, and you might as well just own that and try not to be such arseholes next time. If you have to prank call someone, call someone who could conceivably be argued to deserve it. If things go wrong—or horribly right—maybe bail out of the call. Have a think about what you’re doing, and don’t just rely on “processes” you don’t understand to decide whether it’s a good idea or not. Little things.

Matt’s piece shows how to address dickishness without getting all legal on everybody’s arse. But even when one resists the temptation to go to law, there are two arguments that you just can’t make, because they reveal you to be not just an idiot, but an idiot across time and space. Those two arguments are as follows:

1. ‘But these mouthbreathers (who listen to 2DayFM) vote!’

And

2. ‘But working-class people listen to 2DayFM; attacking what ordinary people like is elitist!’

But these mouthbreathers (who listen to 2DayFM) vote!

Throughout human history, people considered mouthbreathers were denied the vote or (in non-democratic/representative systems) other forms of political and economic agency. Most of the time, the people considered mouthbreathers were women and poor and middle-class people. Occasionally one encounters a civilisation that doesn’t write women off (the Romans, the Spartans, the pre-First Reform Bill Scots), but they still wrote off everybody who was poor (male and female). In more modern times–once we’d discovered that enslaving people on the basis of skin-colour made it quicker and easier to catch them and turn them to our economic ends–we did the same thing to black people, too.

Even the most sensible and moderate thinkers–people who’ve fed our modern ideas about liberty and democracy–bought into the mouthbreathers rhetoric. In the middle of a beautiful argument for extending political rights to Roman women (they already had full economic rights), Stoic philosopher Musonius Rufus casually mentions that you don’t want to give stupid people the vote. John Stuart Mill, the saint of liberalism, was behind the separate university seats that gave graduates of Oxford, Cambridge, and the Ancient Scottish universities two votes: one in their university constituency, and one in their home constituency. Mill thought that this would be a prophylactic against ‘crude majoritarianism’ (ie, the stupid people).

Unless you’re serious about restricting the franchise on the basis of education, property holdings, or some other metric, don’t go there. Just don’t.

Especially if you’re female or have net worth of less than £1,000,000.

But working-class people listen to 2DayFM; attacking what ordinary people like is elitist!

This suggests that the tastes evinced by people who are poorly educated (or just poor) are in some way elevated because the people who exhibit those tastes are authentic (and, presumably, oppressed). It is an outgrowth of the postmodern focus on ‘authenticity’ and is in fact deeply elitist: it holds poor people and women and black people and any other ‘group’ among the currently ‘politically correct to like’ (US Republicans tried desperately to add white religious Southerners to the mix; they failed) to a lower standard. They can listen to shitty music and watch Jerry Springer and speak in words of two syllables or less because, well, they’re poor (black, Muslim, Asian, working-class), and because poor, more real!

Of course, this is the intellectual equivalent of the smartest kid in the school patting the learning disabled kid on the head and saying ‘you did your best’. It also pretends that culture is a democracy (it isn’t) and confuses political agency with cultural agency. It is entirely legitimate to write off the tastes and artistic preferences of an entire class of people without simultaneously denying them political agency. Their economic circumstances (or race, or gender, or whatever) should provide them with no protection. Because political rights and cultural tastes are different things, and should not be confused. One billion people who all like (x) can be wrong.

Unless you’re serious about equating everything from dog-fighting and gladiatorial shows to Hilary Mantel and Puccini, or some other cultural artifact, then don’t go there. Especially if you’re highly educated and cultured and prefer Mantel and Puccini to dog-fighting or football hooliganism.

2DayFM is not improved by the relative ‘authenticity’ of its audience. Shit taste remains shit.

But what about Sandy Hook?

At some point, I will have something further to say about Sandy Hook Elementary, but I’ll need to know more, first. I realise I’ve probably ‘missed the moment’ with 2DayFM, but I’d rather be right than quick; I think this preference goes with being a lawyer. When the time comes, I’ll try to be right (not quick) about Sandy Hook.

Instead, I’ll leave you with two pieces of information to consider and digest. The first is a graph illustrating just how much more violent the US is than other developed democracies (even allowing for the recent decline in crime rates across the developed world, and independent of gun ownership). The second is Charlie Brooker addressing why it’s so very stupid to talk about school shooters in the way we do.

It may well be in all our interests to take what he says seriously. If we don’t, I submit, we’re actively drawing patterns that aren’t real. We’re also actively inviting people into our beautifully (but fakely) patterned lion’s den. And then we’re leaving them there.

By skepticlawyer | Posted in Law, Science, Skeptics, Tort | Tagged 2DayFM, Bolam Test, Cardozo J, Charlie Brooker, Dom Joly, Jacintha Saldhana, legal method, Matt Rubinstein, Palsgraf v Long Island Railway Co, Sandy Hook Elementary, scientific method, The Fisher King, Westboro Baptist Church | Comments (22)

Apologies and the law: Alan Jones again

December 13, 2012 – 7:01 pm

By Legal Eagle

one thing I don’t need
is any more apologies
i got sorry greetin me at my front door
you can keep yrs
i don’t know what to do wit em
they don’t open doors
or bring the sun back
they don’t make me happy
or get a mornin paper
didn’t nobody stop usin my tears to wash cars
cuz a sorry.

Ntozake Shange, for colored girls who have considered suicide/when the rainbow is enuf

The Sydney Morning Herald reports that a court has ordered that controversial Sydney broadcaster Alan Jones must apologise on-air for certain comments made in 2005 in relation to persons of Lebanese Muslim origin:

The Administrative Decisions Tribunal has ordered Jones to apologise on his 2GB radio show between 8am and 8.30am any day next week over the comments he made on-air in April 2005.

It comes two months after Jones lost a lengthy legal bid to overturn the 2009 decision, which found he incited hatred, serious contempt and severe ridicule of Lebanese Muslims.

The case was taken against him by Sydney-based Lebanese-born Muslim leader, Keysar Trad.

In its latest decision handed down on Wednesday, the tribunal rejected a submission that an apology made by Jones on December 6 was “an adequate acknowledgment of wrongdoing”.

Instead it ordered him to read out the following apology any day next week from December 17:

“On 28 April 2005 on my breakfast program on Radio 2GB, I broadcast comments about Lebanese males including Lebanese Muslims.

“The comments were made following a Channel Nine television current affairs show about the conduct of young Lebanese men in Hickson Road at the Rocks.

“The Administrative Decisions Tribunal has found that my comments incited serious contempt of Lebanese males including Lebanese Muslims.

“Those comments were in breach of the NSW Anti-Discrimination Act.

“I apologise for making those comments which I recognise were unlawful.

“I also apologise on behalf of Radio 2GB.”

The original complaint related to comments he made on April 28 about a Nine Network current affairs story reportedly showing young men of Lebanese origin taunting police.

“If ever there was a clear example that Lebanese males in their vast numbers not only hate our country and our heritage, this was it,” Jones said.

Referring to the men as “vermin” and “mongrels”, he added: “They simply rape, pillage and plunder a nation that’s taken them in.

Jones is no stranger to the need to apologise: he recently had to apologise for comments in relation to Julia Gillard’s deceased father.

As it happens, one of the topics we considered in Remedies this semester was the notion of an apology as a legal remedy. When a court issues an ‘apology order’, a defendant can be forced to issue an apology to the plaintiff. Professor Robyn Carroll has noted:

One perspective is that the law has not role to pay because the apology is a moral act that will have no worth or value if it is offered as a legal requirement or for legal purposes. Another perspective, more instrumental in nature, is that the law has a role to play in creating opportunities for apologies to be offered that achieve some social or psychological benefit.[1]

Readers may remember the Eatock v Bolt case, where newspaper columnist Andrew Bolt was found to have contravened s 18C of the Racial Discrimination Act 1975 (Cth) (I’ve written about it here and here). The plaintiffs sought an apology order, but Bromberg J refused to make such an order, saying at [465]–[468]:

There is force in the contention of HWT that an apology should not be compelled by an order of the Court because that compels a person to articulate a sentiment that is not genuinely held. An apology is one means of achieving the public vindication of those that have been injured by a contravention of s 18C. The power granted to the Court to require a respondent to redress any loss or damage is a wide power. There are other means by which public vindication may be achieved.

Public vindication is important. It will go some way to redressing the hurt felt by those injured. It will serve to restore the esteem and social standing which has been lost as a consequence of the contravention. It will serve to inform those influenced by the contravening conduct of the wrongdoing involved. It may help to negate the dissemination of racial prejudice.

Whilst I will not order HWT to apologise, in the absence of an appropriate apology, I am minded to make an order which fulfils the purposes which I have identified.

My preliminary view is that a corrective order should be made which would require HWT to publish a notice in the Herald Sun in print and online. The terms of the notice would include an introduction which referred to this proceeding and the order requiring its publication and set out the declaration made by the Court. In order to give the publication of the corrective notice a prominence and frequency commensurate with the publication of the Newspaper Articles and to facilitate it being communicated to those likely to have read the Newspaper Articles, I have in mind that the corrective order would require the publication of the notice in the Herald Sun newspaper and online, on two separate occasions in a prominent place immediately adjacent to Mr Bolt’s regular column.

It was interesting when we debated this case in class. Precisely the divide Carroll describes emerged in class discussion. Some thought it was beneficial to force people to apologise because it vindicated the rights of the wronged party; others thought a forced apology was no apology at all, and that it was unduly coercive to force people to apologise. On balance, I tend to the latter view, but then one clever student said to me, “I bet you force your kids to say sorry when they don’t mean it, don’t you?” I had to uncomfortably concede that I do, and moreover, I conceded that I’d forced my son to apologise to my daughter that very morning (argh! sprung!). However, I decided that was different because that was in the context of a close familial relationship, they are kids and I am their mother, and it’s quite different when the State forces an adult to say sorry by the coercive machinery of the law. That being said, I’m all for the law allowing more space for defendants to apologise if they want to, which has not traditionally been seen as a function of law, but which may be more common. For example, s 47J of the Wrongs Act 1958 (Vic) now provides that an apology is not evidence of tortious behaviour, meaning that a tortfeasor is far more likely to apologise for any injury to the plaintiff.

Already a spirited discussion has taken place on my Facebook page about the Jones case. (I do hope the participants will come here and continue the discussion!) Unlike my class, I think we were mostly agreed that an order to apologise is inappropriate and fruitless. To me, it’s important that Jones will not genuinely believe a word of his apology. Nor is it likely to increase his or his listeners’ tolerance for young Lebanese men. Rather it is likely to increase their perception that the politically correct are attempting to police their views and suppress their freedom to discuss things which concern them, and to respond to that with anger. Moreover, we were also broadly agreed that the law should be very wary of coercing someone to say something they do not want to say. The response to this by those who favour an order to apologise might be that the apology is vindicatory for young Lebanese men, and that it will make them feel less aggrieved when they see Jones being forced to apologise. Maybe it will, but I suspect it will also fan the grievances of his supporters.

The main argument we were having on Facebook was whether Jones was at least partly responsible for fanning the flames of the Cronulla Riots with his comments later in 2005. My own opinion (as I have documented in this post here) is that Jones sailed pretty close to the wind of incitement – he read out texts and messages which suggested violence was an appropriate course towards Lebanese men in the days before the Cronulla Riots broke out. Incitement of violence is one area where I personally think the law can legitimately step in and regulate speech to prevent physical harm to others. At one point, Jones read out a text message suggesting that people who wanted to bash ‘Lebs’ and ‘Wogs’ should meet on a particular date and place, but then qualified this by saying, ‘[b]oys, don’t get down there and come at this nonsense, this will only make things worse. The police are genuinely concerned now that the SMS is going to inflame things even further and we’ll – we’re talking about vigilante retribution.’ But when a later caller tried to insert some balance into the discussion by saying that both Lebanese Muslim and Anglo-Saxon rabble rousers were equally responsible for egging each other on, the caller was told ‘[y]eah, let’s not get too carried away…we don’t have Anglo-Saxon kids out there raping women in Western Sydney. So let’s not get carried away with all this mealy-mouthed talk about there being two sides.’

What then about the ‘vermin’ and ‘mongrels’ comment for which Jones is presently being forced to apologise? It must be said that these comments have some pretty unpleasant historical echoes to my ears, and could perhaps be thought to border on incitement in the light of those echoes. Calling people vermin is a short way of saying that they are dirty and dangerous and (as befits vermin) they need to be exterminated. Hitler described the Jews as “pests”, “dangerous viruses” and “vermin” in the lead up to the Holocaust, and Hutu leaders described the Tutsi as inyenzi (cockroaches) in the lead up to the Rwandan genocide. It’s pretty hardcore stuff, even if Jones didn’t mean it to be.

That being said, I’m sure that people have less sympathy for the case in relation to the ‘vermin’ and ‘mongrels’ comment because it has been brought by Keysar Trad, a Lebanese Australian man and former advisor to Sheikh Hilally. Trad is perhaps Jones’s Lebanese Australian counterpart in terms of inflaming tension and making offensive comments. In a defamation proceeding Trad brought against 2GB a few years back (described in a post here), the trial judge decided that the defamatory imputations made by 2GB about Trad could be defended on the basis that they were truthful because:

Trad had expressed opinions in which he had condoned the view that female victims of sexual assault and rape were to blame rather than the male perpetrators;
Trad had defended the views of Sheikh Hillaly that child martyrdom in war was honourable and that suicide bombing was a legitimate tool;
Trad had included links to Mein Kampf and the Protocols of Zion in his website, encouraging beliefs that Jewish people intend to take over the world, which have been a driving force for acts of violence against Jewish people;
Trad had publically called for Hezbollah to be delisted as a terrorist organisation;
Trad had said that homosexuals were depraved perverts who should be likened to cancer, and that the appropriate punishment for those who undertook homosexual activities was to be stoned to death;
Trad described Anglo-Irish inhabitants of Australia as “criminal dregs” and Hindus as “cow worshippers”, generally denigrating these groups of people; and
Trad sought to defend Sheikh Hillaly’s failure to condemn the September 11 attacks, and questioned whether Muslims were responsible for those attacks.

(The case went all the way up to the High Court: see Harbour Radio Pty Ltd v Trad [2012] HCA 44 where Trad lost, and has now been remitted back to the New South Wales Court of Appeal for decision).

As you can see, Trad is as instrumental in inflaming tensions in the Sydney community as Jones is. I’m sure that this doesn’t help matters with this kind of a case – dare I say that Trad is a pot calling the kettle black – but that still doesn’t mean Jones’s comments are okay.

Jones’s comments have very unpleasant connotations if you follow the historical echoes. Nonetheless, I stand by my conclusion that making Jones apologise is not going to ease tensions between Lebanese Australians and Anglo-Celtic Australians, and that it is problematic to coerce people to apologise in principle and from a pragmatic point of view. I understand that the law has an important vindicatory function, but I think that a court simply saying that Jones’s comments were inappropriate is enough to vindicate the rights of those wronged by Jones’s statement. I’d rather leave more room in the law for people to apologise if they choose to do so, because to my mind, a genuine apology must be a matter of choice.

Discuss.

[1] Robyn Carroll, ‘Beyond Compensation: Apology as a Private Law Remedy’ in Jeff Berryman and Rick Bigwood (eds), The Law of Remedies: New Directions in the Common Law (Irwin Law Inc, Toronto, 2010) 323, 329.

By Legal Eagle | Posted in Australia, Free Speech, Law, Media, Personal liberty, Politics, Public Policy, Racism, Society | Tagged Alan Jones, apologies, apology, Cronulla riots, keysar trad, mongrels, Racism, remedies, Sydney, vermin | Comments (69)

Nothing is in walking distance

December 11, 2012 – 4:26 pm

By Lorenzo

I recently moved moved house from inner Western Melbourne (Seddon) to outer Western Melbourne (Truganina), hence my absence from blogging. The most direct way to the nice new house (and it is a nice new house, a vast improvement on the decrepit dump my housemate and I were previously renting) is along a road which has newly constructed, and to-be-constructed, suburbs on one side and dusty paddocks with sheep grazing on the other. (The dusty paddocks are, of course, every bit as much the result of human action as the new suburbs but the former have less biodiversity.)

Since I lived in Canberra for 11 years, the made-for-cars layout of the new suburbs is familiar. What is less familiar is how less well-designed they are. First, in Canberra, the linking streets between suburbs were mostly dual carriageway as a matter of course. The linking streets where I now am are often single carriageway and so easily clog up in peak hour.

Secondly, nothing is in walking distance (and I count something up to 30 minutes walk away as walking distance). Both because, despite the single-carriageway streets, things are more spread out and because there is no shopping centre at the heart of each suburb. Instead, it is the land of streets of franchised megastores and drive-to-malls.

I realise that the push to have developers’ pay for infrastructure upfront, so it is included in house purchase prices, is likely to lead to under-provision of infrastructure. Upfront payment for infrastructure is a pretty silly way to pay for something that will be providing benefits for decades, that is what government debt should be for.

Same spot, different direction

But the point is not to rationally provide infrastructure, it is to maximise the value of land allocated to housing — so incumbents get wealth effects from rising prices, so tax revenues from land are maximised and so government land corporations can maximise their return from the power to compulsorily purchase and control usage. The combined effect of which is to raise the cost of future infrastructure, because the land value is pushed up so much, and lower the benefit to government of providing infrastructure through higher taxes since it is cheaper and easier to raise the tax value of land by restricting its use.

There was an old joke that, if the Soviet Union took over the Sahara Desert, in five years there would be a shortage of sand. The joke seems much less funny as government ensures that land-rich Australia has the most expensive housing land in the Anglosphere (apart from Hong Kong; rather a special case). Watching designed dysfunction in operation makes it much less funny too.

By Lorenzo | Posted in Australia, Public Policy | Tagged infrastructure, public debt | Comments (8)

Lumley v Wagner: The Nonperformance of the Cantatrice

December 8, 2012 – 6:06 am

By Legal Eagle

I love cases. I simply love cases. I love the drama of them, and I love to go hunting for extra facts about the case. The case of Lumley v Wagner (1852) 1 De GM & G 604; 42 ER 687 involved Johanna Wagner, a famous German singer (and the niece of Richard Wagner). She contracted with Mr Lumley that she would sing at his theatre for a certain period of time. Included in the contract was a term that she would not sing anywhere else without written authority from Mr Lumley. Subsequently, Ms Wagner and her father agreed to sing for Mr Gye at Covent Garden for a larger sum than that promised by Mr Lumley (possibly partly because Mr Lumley had apparently not paid Johanna, despite the payment stipulated under the contract). Mr Lumley sought to restrain Johanna Wagner from singing for Mr Gye based on the clause in her contract in which she had promised not to sing for anyone else. Mr Lumley said he was just enforcing the negative covenant, not requiring the specific performance of the entire agreement. The Court of Chancery were prepared to issue an injunction to restrain the negative covenant, although they were not prepared to enforce Ms Wagner’s positive obligation to sing (to force someone to perform a service is an impermissible imposition on their individual autonomy – whereas if you just restrain them from singing for someone else, you’re not forcing them to positively sing for the person they contracted with). There was a very obvious tone in the judgment to the effect that, “You may think conduct like this is fine in Germany, but we English honour our promises.”

There was then a companion case, Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749, where Mr Lumley sued Mr Gye for the economic tort of inducing breach of contract. A majority of the court held Mr Gye liable for inducing Ms Wagner’s breach of contract using the cases about seduction of servants, among other things. Coleridge J was very doubtful about this extension of the law and said in dissent, ‘None of this reasoning applies to the case of a breach of contract: if it does, I should be glad to know how any treatise on the law of contract could be complete without a chapter on this head, or how it happens that we have no decisions upon it. Certainly no subject could well be more fruitful or important; important contracts are more commonly broken with than without persuaders or procurers, and these often responsible persons when the principals may not be so.’

Via the Obligations Discussion Group, I became aware of this video:

This is also the Saturday chit-chat post.

By Legal Eagle | Posted in History, Law, Music, Personal liberty, Saturday chit-chat, Tort | Tagged Benjamin Lumley, contract, Frederick Gye, inducing breach of contract, Johanna Wagner, lumley v gye, lumley v wagner | Comments (20)

Bomb Sight

December 7, 2012 – 8:18 pm

By DeusExMacintosh

An interactive map showing the location of bombs dropped on London during World War II has been created. It reveals the devastation caused by the Blitz over eight months.

The year-long project, called Bomb Sight, was devised by a team from the University of Portsmouth using data from the National Archives.

The website and android app also allow people to find out the types of bombs that fell.

Dr Kate Jones, the University of Portsmouth geographer who devised the project, said: “When you look at these maps and see the proliferation of bombs dropped on the capital, it does illustrate the meaning of the word Blitz, which comes from the German meaning lightning.

“It seems astonishing that London survived the onslaught.”

Users can zoom in to specific streets on the map, which uses red symbols to illustrate where each bomb landed.

The project was funded by education and research charity Jisc which offers resources and expertise to educational organisation.

More than 20,000 people were killed and and 1.4m people made homeless during the Blitz, which took place between 7 September 1940 and 11 May 1941.

On 29 December 1940, air raids targeted the City of London, leaving the square mile in flames.

Bombs rained down on St Paul’s Cathedral, which Prime Minister Winston Churchill said should be protected at all costs…

A spokesman from Bomb Sight said the project uses maps of the London bomb census, taken between October 1940 and June 1941. The bombing locations were combined with geo-located photographs from the Imperial War Museum, and memories from the BBC’s WWII People’s War Archive….

The website appeared to be experiencing problems due to high volumes of traffic earlier.

- BBC News

By DeusExMacintosh | Posted in Britain, Defence, Fark!, Funnies, History, Popular culture, Terrorism | Tagged bomb sight, jisc, London bomb census, national archives, The Blitz, university of portsmouth, WWII | Comments (0)

Letter from a former slave to his master

December 1, 2012 – 9:02 am

By Legal Eagle

Today I came across an interesting post, via Letters of Note, which details a letter which a former slave, Jourdon Anderson, wrote to his former master, Colonel P.H. Anderson of Big Spring, Tennessee. Colonel Anderson had written to Jourdon Anderson, requesting him to come back to work on his farm. According to sources of the time, Jourdon Anderson dictated his reply.

(Image from Wikipedia)

It is an amazing letter, and you have to read the whole thing, particularly the last line. All I can say is that I have immense admiration and respect for Jourdon Anderson’s polite, firm and beautifully pointed response.

Dayton, Ohio, August 7, 1865

To My Old Master, Colonel P.H. Anderson, Big Spring, Tennessee

Sir: I got your letter, and was glad to find that you had not forgotten Jourdon, and that you wanted me to come back and live with you again, promising to do better for me than anybody else can. I have often felt uneasy about you. I thought the Yankees would have hung you long before this, for harboring Rebs they found at your house. I suppose they never heard about your going to Colonel Martin’s to kill the Union soldier that was left by his company in their stable. Although you shot at me twice before I left you, I did not want to hear of your being hurt, and am glad you are still living. It would do me good to go back to the dear old home again, and see Miss Mary and Miss Martha and Allen, Esther, Green, and Lee. Give my love to them all, and tell them I hope we will meet in the better world, if not in this. I would have gone back to see you all when I was working in the Nashville Hospital, but one of the neighbors told me that Henry intended to shoot me if he ever got a chance.

I want to know particularly what the good chance is you propose to give me. I am doing tolerably well here. I get twenty-five dollars a month, with victuals and clothing; have a comfortable home for Mandy,—the folks call her Mrs. Anderson,—and the children—Milly, Jane, and Grundy—go to school and are learning well. The teacher says Grundy has a head for a preacher. They go to Sunday school, and Mandy and me attend church regularly. We are kindly treated. Sometimes we overhear others saying, “Them colored people were slaves” down in Tennessee. The children feel hurt when they hear such remarks; but I tell them it was no disgrace in Tennessee to belong to Colonel Anderson. Many darkeys would have been proud, as I used to be, to call you master. Now if you will write and say what wages you will give me, I will be better able to decide whether it would be to my advantage to move back again.

As to my freedom, which you say I can have, there is nothing to be gained on that score, as I got my free papers in 1864 from the Provost-Marshal-General of the Department of Nashville. Mandy says she would be afraid to go back without some proof that you were disposed to treat us justly and kindly; and we have concluded to test your sincerity by asking you to send us our wages for the time we served you. This will make us forget and forgive old scores, and rely on your justice and friendship in the future. I served you faithfully for thirty-two years, and Mandy twenty years. At twenty-five dollars a month for me, and two dollars a week for Mandy, our earnings would amount to eleven thousand six hundred and eighty dollars. Add to this the interest for the time our wages have been kept back, and deduct what you paid for our clothing, and three doctor’s visits to me, and pulling a tooth for Mandy, and the balance will show what we are in justice entitled to. Please send the money by Adams’s Express, in care of V. Winters, Esq., Dayton, Ohio. If you fail to pay us for faithful labors in the past, we can have little faith in your promises in the future. We trust the good Maker has opened your eyes to the wrongs which you and your fathers have done to me and my fathers, in making us toil for you for generations without recompense. Here I draw my wages every Saturday night; but in Tennessee there was never any pay-day for the negroes any more than for the horses and cows. Surely there will be a day of reckoning for those who defraud the laborer of his hire.

In answering this letter, please state if there would be any safety for my Milly and Jane, who are now grown up, and both good-looking girls. You know how it was with poor Matilda and Catherine. I would rather stay here and starve—and die, if it come to that—than have my girls brought to shame by the violence and wickedness of their young masters. You will also please state if there has been any schools opened for the colored children in your neighborhood. The great desire of my life now is to give my children an education, and have them form virtuous habits.

Say howdy to George Carter, and thank him for taking the pistol from you when you were shooting at me.

From your old servant,

Jourdon Anderson

I don’t know whether Colonel Anderson replied! I suspect not. Wikipedia tells me that, having failed to get his slaves back, Colonel Anderson was forced to sell his land for a pittance to meet his debts and two years later, he died. (Dare I say karma?) Apparently Colonel Anderson’s descendants were still angry at the slaves when contacted in 2006.

The Emancipation Proclamation had been declared by President Lincoln in September 1863 to cover slaves in Confederate States, whereupon Jourdan and his wife had been among the approximately 4 million slaves who been able to get their ‘free papers’.

Kottke has a summary of what subsequently happened to Jourdon and Mandy Anderson and their children.

This is also the Saturday chit-chat post.

By Legal Eagle | Posted in History, Human/Civil rights, Personal liberty, Saturday chit-chat, Society | Tagged History, Jourdon Anderson, letters of note, slavery | Comments (46)

Low Ryder

November 29, 2012 – 10:22 pm

By DeusExMacintosh

The cost of sending a delegation led by First Minister Alex Salmond to the Ryder Cup golf tournament in America was almost £470,000, the Scottish government has said.

The trip in September was part of a plan to “maximise the economic benefits” of hosting the cup in Scotland in 2014.

The government estimates the event will generate about £100m for the economy.

Opposition parties criticised the costs as excessive.

In a written response to a question from Labour, External Affairs Secretary Fiona Hyslop stated: “The overall cost of Team Scotland’s participation at the 2012 Ryder Cup was £468,580 and every effort was made to minimise costs including liaising with partner organisations to secure preferred rates where possible and identifying in-kind support.

“The Team Scotland approach in Chicago will help ensure we maximise the economic benefits of hosting the Ryder Cup in 2014 which will generate at least £100m for the Scottish economy.”

The tournament at Medinah, near Chicago, provided a “unique opportunity” to promote Scotland to a worldwide audience, she added.

The visit incorporated ministerial visits and business meetings, with the 36-strong delegation also including representatives of VisitScotland, EventScotland and Scottish Development International as well as the Scottish government.

- BBC News

By DeusExMacintosh | Posted in Britain, Funnies, Politics, scotland, Sport | Tagged Alex Salmond, gleneagles, golf, ryder cup, Scottish National Party, st andrews old course | Comments (0)

Weather With You

November 26, 2012 – 6:20 am

By skepticlawyer

It is striking, sometimes, how one loses touch with bits of one’s past. I was reminded of this, last week, when I learnt that the Queensland Supreme Court has been completely rebuilt. The dingy piece of 70s ugliness where I did the Brisbane bits of my pupillage is, from what I can gather, no more (say farewell, then, to those hideous green and orange carpets, and decor in chambers that managed to look like something from the Starship Enterprise gone terribly, terribly wrong). The new courthouse, like Norman Foster’s Reichstag dome, is a thing of light and air: a statement of transparency and openness, perhaps. It only opened officially in August this year.

That discovery wrenched me, sharply, even dizzyingly, back to the last trial in which I participated in my home state: the Palm Island Case. Called north to Townsville from Rockhampton, my pupil-master and I had to find our way around an unfamiliar courthouse and a city divided against itself: hence my choice of the American photograph to the left, because it catches something I saw day after day at the trial and never want to see again. My pupil-master is dead now, but this thing was so obvious that everyone noticed it, not just the Judge and his pupil who stared face-on at the ground floor and the gallery day after day: Chloe Hooper, who later wrote an award-winning book–The Tall Man–about the case, described it thus:

By the Friday morning of the trial, day four, the courtroom was divided like some disastrous wedding. The two families had been waiting nearly three years for this. And now time stood still; it bent and stretched and both sides waited for the seconds to pass. [...] An Aboriginal law student attending the trial with some Palm Island friends told me she had never been in a courtroom with a greater sense of ‘us’ and ‘them’. Downstairs, everyone was white. Upstairs, everyone was black.

This, note, was in 2007.

The picture has its own history, too, some of which I have been able to discern (I put the following up as a Facebook status update earlier today; it’s gone a bit viral since):

I do not know who took this photograph, but it depicts a Georgia State Trooper with a riot shield at a KKK protest in a north Georgia city at some point in the 80s. The trooper is black. Standing in front of him and touching his shield is a curious child (I am not certain of the gender) dressed in a Klan hood and robe.

I have stared at this picture and wondered what must have been going through that trooper’s mind. Before him is an innocent child who is being taught to hate him because of the color of his skin. The child doesn’t understand what he is being taught, and at this point he doesn’t seem to care. Like any other child his curiosity takes hold and he wants to explore this new thing that this man is holding – probably because he can see his reflection in it and that’s a cool thing and he wants to check it out.

In this, I see innocence mixed with hate, the irony of a black man protecting the right of white people to assemble in protest against him, temperance in the face of ignorance, and hope that racism can be broken. This child may remember that a black man smiled at him once and he didn’t seem so bad after all.

Immediately after the Hurley trial–within a month, if I recall correctly–I was on my way to Oxford on a Clarendon Scholarship.

Lucky me. Rooty toot. Cameron Doomadgee was still dead. Chris Hurley still damaged. Townsville still divided against itself.

Friends tell me that controversy over the Hurley matter is ongoing: not having been back to Australia in the interval, I have lost touch with the trial that was once so much a part of my life. And while I seldom talk about it, I know that–with Justice Dutney gone–I have privileged mental access to one of the defining events of Australia’s recent history. One day I’ll figure out what I’m supposed to do with those memories. Well, I hope I will.

And sometimes I am reminded of it, unbidden, for reasons almost entirely unconnected to the case. Queensland gets a new Supreme Court. Lucky Queensland. Rooty toot. Sometimes the reasons for my spontaneous recollection are related, however. How am I supposed to explain to Scottish and English friends the complexities of race in my home state? Should I tell them about the courtroom that managed (voluntarily) to turn itself into a scene straight out of To Kill a Mockingbird? Yeah, right. Rooty toot. That’ll work. Not.

I thought about using another Crowded House song as a title for this post: Don’t Dream it’s Over, but I thought better of it. I haven’t been in Australia since July 2007. I’m no longer qualified to comment on what may or not happen when it comes to race in Australia. In an important sense, my memories, diary notes, and impressions of the Hurley trial are preserved in that special sort of aspic that emigrants take everywhere with them wherever they go.

So Weather With You it is.

Everywhere you go, you always take the weather with you.

By skepticlawyer | Posted in Australia, Law, Racism | Tagged Chloe Hooper, Chris Hurley, Crowded House, don't dream it's over, Justice Dutney, Palm Island, Queensland Supreme Court, The Tall Man, To Kill a Mockingbird, Townsville, Weather with you | Comments (11)

Hard Time

November 26, 2012 – 3:00 am

By DeusExMacintosh

Prisoners in relationships will be prevented from sharing jail cells in a crackdown on sex in prison by the new Justice Secretary.

Chris Grayling, who took over the role in the September re-shuffle, is understood to be looking at banning prisoners from setting up “cosy, domestic” living arrangements as part of his drive to make sure jail is not seen as a comfortable place.

There is no data on how many inmates are in same-sex relationships but the prison authorities accept there is a “degree of inevitability” to sex in jails.

One source close to Mr Grayling: “We don’t want and we will not accept prisoners replicating cosy, domestic relationships by being able to share cells in our prisons.”

Ministers will have to be careful that any move to split up same-sex couples in prison relationships does not attract challenges under human rights laws.
The Government is already facing a battle with the European Court of Human Rights over its efforts to keep a ban on prisoner voting.

Sex in prison is not allowed under current laws but charities believe it is relatively common. Under current guidelines, prisons make condoms available to inmates under prescription from doctors…

Mr Grayling’s move comes after ministers signalled that prisoners are likely to be banned from watching premium Sky TV channels in all jails. Nearly 3,000 prisoners in privately-run jails were eligible to access subscription Sky TV in September, figures showed. This week, Jeremy Wright, the prisons minister, declared: “Not for much longer.”

Mr Grayling has said also prison is not meant to be a place “full of perks and undeserved privileges”. He has ordered an urgent review “make changes where we need to”.

“There’s a balance between making sure you have things that provide the right incentives within prisons for prisoners to behave well and things that, if they’re looked at from the outside world, look as if they are out of kilter with what people would expect from prisons,” he said this week.

“What we’re trying to do is make sure we’ve got the right balance and what we do is defensible in both directions.”

He has also warned of tough action against inmates who take pictures of themselves at leisure and upload them to the internet.

He said: “Those offenders who smuggle mobile phones into prisons and take pictures of themselves and their fellow inmates purporting to be having an easy time should take heed – they will face serious disciplinary consequences.”

It comes after eight men at Haverigg prison in Cumbria flouted the ban on mobile phones in jails, posing while stripped to the waist and grinning before uploading the holiday snap-type photo to Facebook.

The Government is also considering blocking mobile phone signals within jails.

- The Telegraph

By DeusExMacintosh | Posted in Britain, Fark!, Funnies, Human/Civil rights, Law, Politics, Sexuality | Tagged Chris Grayling, her majesty's prison service, HMP Haverigg, HMPS, justice secretary, ministry of justice, prison reform | Comments (8)

Skepticlawyer

So, Sandy Hook

The unforeseeable plaintiff

Apologies and the law: Alan Jones again

Nothing is in walking distance

Lumley v Wagner: The Nonperformance of the Cantatrice

Bomb Sight

Letter from a former slave to his master

Low Ryder

Weather With You

Hard Time

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