Sat, 23 Aug 2008

Seen in a community law zine:

May 2008 edition, back page quiz:
"2: I recently retired as a justice of the High Court. Who am I? (Clue: I am fat and mean.)"

(Rot13 Answer: Vna Pnyyvana)

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Wed, 13 Aug 2008

Heroes - Judge Stern

Judge Herbert J. Stern was a US District Judge for New Jersey between 1973 and 1987. In 1979, he was named US Judge for Berlin for it's one sitting - United States v. Tiede (86 FRD 227). This court existed by virtue of Berlin's formal status as "occupied", and was convened because of West German reluctance to prosecute.

In Robert M. Cover's Violence and the Word (Yale Law Journal, V95: 1601, 1986), there is an excerpt of his sentencing of skyjacker Hans Detlef Alexander Tiede. At this point, Stern has already fought a protracted battle over whether a jury trial should be granted and whether the U.S. Constitution was to govern the proceedings. It is a rare case of cracks emerging in what appears usually to be a smoothly coordinated mechanism of punishment.

"Gentlemen [addressing the State Department and Justice Department lawyers], I will not give you this defendant. . . . I have kept him in your custody now for nine months, nearly. . . . You have persuaded me. I believe, now, that you recognize no limitations of due process. . . .

I don't have to be a great prophet to understand that there is probably not a great future for the United States Court for Berlin here. [Stern had just been officially "ordered" not to proceed with a civil case brought against the United States on an unrelated matter.] . . .

Under those circumstances, who will be here to protect Tiede if I give him to you for four years? Viewing the Constitution as non-existent, considering yourselves not restrained in any way, who will stand between you and him? What judge? What independent magistrate do you have here? What independent magistrate will you permit here?

When a judge sentences, he commits a defendant to the custody — in the United States he says, 'I commit you to the custody of the Attorney General of the United States' — et cetera. Here I suppose he says, I commit to the custody of the Commandant, or the Secretary of State, or whatever . . . I will not do it. Not under these circumstances. . . .

I sentence the defendant to time served. You . . . are a free man right now."

I have to admit, I tear up a little bit at "I will not do it." That's principle.

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Sun, 08 Jun 2008

Straight Talking Lords

I think I've discussed my love of the straight talking, and perhaps slightly insane, Law Lords before. Here's another example, this one from Froom v Butcher, [1976] 1 QB 286, one of the "seatbelt cases", and a clear announcement that damage reductions for contributory negligence were about who caused the harm, not who caused the accident:

... Quite a lot of people, however, think differently about seat belts. Some are like the plaintiff. They think that they would be less likely to be injured if they were thrown clear than if they were strapped in. They would be wrong. -- Lord Denning

"They would be wrong." has to be the judicial equivalent of

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Wed, 04 Jun 2008

Law Smackdown

From the sixth Sir David Williams Lecture, "The Rule of Law", Lord Bingham of Cornhill:

In our country, and in the United States, decisions have been made of which neither country can be proud.48
48In this country, one would instance R v Halliday [1916] 1 KB 738, [1917] AC 260 and Liversidge v Anderson [1942] AC 206; in the United States, notably, Korematsu v United States 323 US 214 (1944) a decision which Scalia J has put on a par with that in Dred Scott, thereby assigning it to the lowest circle in Hades.

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Sun, 25 May 2008

Consenting to Form Contracts, Randy E. Barnett

(2002) 71 Fordham Law Review 627

But the law does not, and should not, bar all assumptions of risk. Hard as this may be to believe, I know of people who attach waxed boards to their feet and propel themselves down slippery snow and tree covered mountains, an activity that kills or injures many people every year. Others for fun freely jump out of airplanes expecting their fall to be slowed by a large piece of fabric that they carry in a sack. (I am not making this up.)

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Sun, 20 Apr 2008

Letter to justice department regarding Graffiti Prevention Act 2007

 I can't say how disappointed I am with this ham-handed attempt to clamp down on graffiti in Melbourne. Particularly this nonsense about on the spot fines for carrying cans of aerosol paint where they are not held "in relation to, (my) employment, occupation, business, trade or profession."

 I frequently have cans of spraypaint or similar in my possession, and I am a systems analyst and law postgraduate, not a house painter. I use them to backfill canvases that I paint in my spare time. Am I a criminal now? Must I shop under the cover of darkness?

 I look forward to investigating and reporting on how the act interacts with the Victorian charter, particularly your attempt to criminalise my exercise of section 15, subsection 2d.

Good day,
 Bryn Davies.

*shakes fist*

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Sun, 06 Apr 2008

From Lord Reid in Home Office v Dorset Yacht, 1970

... I do not think that the argument for the Home Office can be put better than it was put by the Court of Appeals of New York in Williams v State of New York (1955) 127 NE 2d 545, 550:

"... public policy also requires that the State be not held liable. To hold otherwise would impose a heavy responsibility upon the State, or dissuade the wardens and principal keepers of our prison system from continued experimentation with "minimum security" work details - which provide a means for encouraging better-risk prisoners to exercise their sense of responsibility and honor and so prepare themselves for their eventual return to society. Since 1917, the legislature has expressly provided for out-of-prison work, Correction Law, ss 182, and it's intention should be respected without fostering the reluctance of prison officials to assign eligible men to minimum security work, lest they hereby give rise to costly claims against the State, or indeed inducing the State to terminate this "salutary procedure" looking towards rehabilitation."

It may be that public servants of the State of New York are so apprehensive, easily dissuaded from doing their duty and intent on preserving public funds from costly claims that they could be influenced in this way. But my experience leads me to believe that Her Majesty's servants are made of sterner stuff.

( Emphasis mine - zing! )

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