Quotulatiousness

March 11, 2011

Another oddity of British law

Filed under: Britain, Law, Liberty — Tags: , , , , — Nicholas @ 17:19

I was unaware, until today, that it is possible to get a legal injunction that effectively prevents anyone from knowing that the injunction has been issued: a “super injunction“:

The existence of the draconian injunction — so strict it prevents $PERSON being identified as a $OCCUPATION — was disclosed by John Hemming, a back-bench Liberal Democrat MP, in a question during a business debate at the House on Thursday morning. His comments are protected by parliamentary privilege.

He said: “In a secret hearing $PERSON has obtained a super-injunction preventing him being identified as a $OCCUPATION.

“Will the government have a debate or a statement on freedom of speech and whether there’s one rule for the rich like $PERSON and one rule for the poor?”

Leader of the House Sir George Young said a forthcoming Westminster Hall debate would explore freedom of speech, adding: “I will raise with the appropriate minister the issue he has just raised.”

The terms of the injunction are so strict that the Daily Telegraph cannot reveal the nature of the information that $PERSON is attempting to protect.

Because I am not rich, I’ve chosen to avoid including any information which may fall under the strict terms of the injunction . . . others are not being as careful, so you can find out who the rich wanker is and what occupation he wants to prevent the public from discovering by reading the whole thing.

March 10, 2011

“An opportunity to stop English libel law chilling free speech around the world”

Filed under: Britain, Law, Liberty, Science — Tags: , , — Nicholas @ 12:43

Simon Singh at the Guardian‘s “Comment is Free” site explains just how much the chilling effect of English libel law can obstruct free speech:

. . . it is important to remember that for every case of a scientist or journal who dares to face the ordeal of a libel trial, there are dozens of (or probably hundreds of) others who immediately apologise and retract after a libel threat, or who self-censor in order avoid any risk of libel, which is the so-called chilling effect of libel.

For example, I gave an interview to an Australian medical correspondent at the Melbourne Age about the lack of evidence surrounding homeopathy, but he was unable to quote me in detail because his in-house lawyer was frightened of being sued for libel in London. The only reason this came to light was because the journalist in question wrote a blog describing how tough it was to be a health journalist in Australia when the vulture of English libel law was always circling above.

More worryingly, I recently received an email from an American researcher (whose name I cannot mention) who had worked with a librarian (whose name I cannot mention) to write a paper on the subject of impact factors, the scoring system often used by librarians and others to assess the quality of a research journal. The anonymous researchers cited one journal (whose name I cannot mention) which may be using certain techniques to boost its own impact factor. Impact factors are an important issue, so the paper was sent to a respected British journal (which I shall not name in order to avoid embarrassment) with an international readership. The journal replied: “We regret that we are unable to publish after all because unfortunately it has potential legal implications under UK libel law.”

The anonymous researchers then sent the paper to an American journal (which I shall not name), which also had an international readership and which did agree to publish the paper. Initially, there seemed to be no problem, because the in-house lawyer agreed that the paper did not breach US libel law. However, the lawyer went on to demand that edits were necessary or there would be a serious risk of being sued in London according to English libel law.

The British government is to introduce a new bill to (one hopes) address some of these concerns soon. Let’s hope that they’re paying attention.

March 5, 2011

Expanding the already expansive interpretation of the “Commerce Clause”

Filed under: Government, Law, USA — Tags: , , , , — Nicholas @ 11:51

Rich Lowry explains why the recent court decision by Judge Gladys Kessler has such wide-reaching implications:

The easy-to-grasp distinction between an activity and inactivity is one of the most powerful legal arguments of ObamaCare’s opponents. But they hadn’t yet run up against a jurist as ingenious as Judge Kessler. She brushes aside the activity/inactivity distinction because not doing something is a choice and therefore “mental activity.”

Why hadn’t someone thought of this before? The sophists in Eric Holder’s Justice Department must be embarrassed that they didn’t themselves dredge up this killer rejoinder.

[. . .]

Kessler writes, “It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something.”

[. . .]

Under the Kessler principle, there’s no nonconduct that the federal government can’t reach. Every day, most Americans engage in nonactivities that affect interstate commerce. If you decide not to buy a house, not to buy a Chrysler or not to buy a Snuggie, you’ve impacted interstate conduct through affirmative mental actions. We’ve gone from the Constitution giving Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes,” to regulating on the basis of the mental activities of individuals deciding not to do something.

If this precedent stands, the Commerce clause has effectively swallowed the bill of rights: there will be no sphere of human activity that the US federal government can’t regulate.

H/T to David Harsanyi for the link.

Robert Fulford on feminism

Filed under: History, Law, Liberty, Politics — Tags: , , , — Nicholas @ 11:10

Coming up on the 100th observance of International Women’s Day, Robert Fulford takes a step back to view the feminist movement:

Some organized attempts to improve the lot of humanity claim limited victories; others do more harm than good. Only feminism can claim to have broadened, permanently, the lives of half the humans in the West. Its success, based on earnest arguments and improvised political strategies, is without parallel in the last century. Nothing since the Industrial Revolution has done so much to expand opportunity.

Feminism has altered a whole culture’s ideal version of sexual roles. It has changed the professions, most strikingly medicine and law. It has affected how children are raised, how the law deals with domestic life, how corporations and public institutions are staffed.

Like all revolutions, feminism is at war with itself. Many one-time feminists have quietly abandoned that term after watching former comrades flock behind every dubious new faction in the grievance culture. Radical feminists consider feminism a failure because it has not wiped out poverty, which should have been its goal. Events have so addled the radicals that they believe anyone who calls feminism a success is a covert enemy. Radicals believe we are living through a long dark night of conservatism and therefore have a right to be miserable, indefinitely. Celebrating anything, even the success of a movement they helped start, would rob them of their bitterness.

The world still needs the feminist spirit. It should shine a consistent light on the many millions of women who are caged by misogynistic religions and male-made dictatorships. Freeing them should become the central feminist project.

March 4, 2011

The complicated NFL labour situation

Filed under: Football, Government, Law — Tags: , , — Nicholas @ 13:16

Update: Twitter rumours are now that the CBA will be extended for another week to allow further negotiations. New deadline is Friday March 11 at 5pm Eastern time.

March 3, 2011

It’s down to the wire for NFL lockout

Filed under: Football, Law, Media — Tags: , , — Nicholas @ 09:42

Mark Craig summarizes the labour situation between the NFL and its players:

A moment incomprehensible to fans of North America’s most popular and profitable sports league is now, finally, upon us.

At a tick past 11 p.m. Thursday, the three-year standoff between billionaire owners and millionaire players could result in the NFL’s first work stoppage since 1987. Barring a new collective bargaining agreement or a temporary extension of the current one, all NFL business except next month’s draft is expected to cease as the owners lock out the players. Meanwhile, all concerns for the 2011 offseason, preseason, regular season and Super Bowl XLVI officially shift to threat level Orange.[. . .]

Owners claim the status quo is a recipe for financial destruction of the league but resist the players’ request to open the books and prove it. Owners possess franchises worth an average of $1.02 billion, charge fans in some cities up to five figures just for the license to buy season tickets, and oversee a thriving empire that drew a record 111 million TV viewers for last month’s Super Bowl.

The two major stumbling blocks since the owners opted out of the current CBA in 2008 are dividing revenue and extending the regular season from 16 to 18 games. The owners get $1 billion off the top before giving the players 59.5 percent of the remaining $8 billion. The owners now want another $1 billion off the top.

Yesterday’s news of the decision in David Doty’s court room may force the owners to negotiate with more urgency, as they were depending on having access to the billions in TV revenue even if no games were played.

Update: Rumour on Twitter is that the players and the owners have agreed to a 24-hour extension of the CBA. Hopefully this time will be used to make progress, not merely postures.

Happy 25th anniversary to independent Australia

Filed under: Australia, Britain, History, Law, Pacific — Tags: , — Nicholas @ 09:30

I had been labouring under the impression that Australia had been freed from the colonial yoke in 1931, but I was mistaken:

TWENTY-FIVE years ago today, Australia became independent.

You might think this statement absurd. Surely Australia has been independent for a lot longer than that? Let me provide a lawyer’s answer: yes and no. Yes, Australia as a nation became independent at some unknown date after 1931. By 1931 it had the power to exercise independence but chose not to do so for some time. Arguably, having the capacity to exercise independence is enough to be classified as independent, although the parents of 20-something children who show no inclination to leave home may beg to differ.

The Australian states, however, did not gain their independence from Britain at that time. Bizarrely, they remained colonial dependencies of the British crown, despite being constituent parts of an independent nation. This meant state governors were appointed by the Queen on the advice of British ministers and that it was the Queen of the United Kingdom (not the Queen of Australia) who gave royal assent to state bills. When an Australian governor-general once complained to the British government about this anomaly, the response of British diplomats was that it was better to “let sleeping anomalies lie”.

H/T to Roger Henry for the link.

March 2, 2011

NFL owners lose key legal battle with players’ union

Filed under: Football, Law, Media — Tags: , , — Nicholas @ 12:16

The looming lockout of NFL players may not be looming quite as large, due to a legal outcome in a Minnesota District Court:

In his ruling, Doty said the NFL breached its union contract by accepting below-established market contracts for their TV deals in 2011 that not only produced less revenue to share with players, but also protected the owners by guaranteeing the payment whether a lockout potentially canceled the season entirely.

In his 28-page opinion, Doty said the record showed the NFL entered contract negotiations with the TV networks with the expressed idea that, if there was no 2011 season, the owners would still get paid while the players would not, creating an imbalance used to “advance its own interests and harm the players.”

Doty overruled Burbank’s decision and ordered another hearing to determine if the owners are liable to paying damages to the NFLPA, which, given the current cost split, would give the players half of the $150 million each team would receive from the TV deal, or to block the owners from collecting any of the TV money without a product on the field. The NFLPA is asking Doty to issue an injunction to put the TV money in escrow until a new labor agreement is worked out.

This money might well have been a useful war-chest for the NFL owners to sit out a long work stoppage (whether a strike by the players’ union or a lockout), but thanks to the decision by David Doty they won’t have that money available until after some agreement is reached.

February 26, 2011

Arrested, beaten, tortured, and charged with treason . . . for watching viral videos

Filed under: Africa, Law, Liberty, Media — Tags: , , , , , — Nicholas @ 11:00

No matter how you say it, Zimbabwe is seriously screwed up:

Munyaradzi Gwisai, a lecturer at the University of Zimbabwe’s law school, was showing internet videos about the tumult sweeping across North Africa to students and activists last Saturday, when state security agents burst into his office.

The agents seized laptop computers, DVD discs and a video projector before arresting 45 people, including Gwisai, who runs the Labor Law Center at the University of Zimbabwe. All 45 have been charged with treason — which can carry a sentence of life imprisonment or death — for, in essence, watching viral videos.

Gwisai and five others were brutally tortured during the next 72 hours, he testified Thursday at an initial hearing.

There were “assaults all over the detainees’ bodies, under their feet and buttocks through the use of broomsticks, metal rods, pieces of timber, open palms and some blunt objects,” The Zimbabwean newspaper reports, in an account of the court proceedings.

Under dictator Robert Mugabe, watching internet videos in Zimbabwe can be a capital offense, it would seem. The videos included BBC World News and Al-Jazeera clips, which Gwisai had downloaded from Kubatana, a web-based activist group in Zimbabwe.

February 25, 2011

What the large print giveth, the small print taketh away

Filed under: Britain, Law, Technology — Tags: , , — Nicholas @ 09:03

Ever read the fine print of a contract to discover that the actual term of the contract contradicts the claims? Britain’s Office of Fair Trading is looking into this practice:

Companies whose small print changes the basis of consumer deals will face investigation by consumer regulator the Office of Fair Trading (OFT), it has said. According to the OFT, one in five consumers had experienced a contract problem in the last year.

The OFT has set out the criteria it will use to judge whether or not consumer contracts are unfair and should be investigated by it. The crucial factor determining the fairness of contracts will be the consumer’s understanding of what the contract means.

If the small print of terms and conditions alters the contract from what a consumer would understand it to mean from other claims made by a company, that is likely to be harmful and could be unlawful, the OFT said in a paper on unfair contracts.

“Our approach to identifying the potential for harm from a particular contract, before considering whether there is any breach of law, is to assess whether a contract term changes the deal from what consumers understand it to be,” said the OFT’s paper.

“One way in which a contract term can change the deal is where there are surprises buried in the small print,” it said. “Our research found that for 80 per cent of those who had experienced a problem with a consumer contract, the problem came as a surprise.”

February 24, 2011

The truth about software licenses

Filed under: Humour, Law, Media, Technology — Tags: — Nicholas @ 07:53

Dilbert.com

Wisconsin’s proposed labour laws not uncommon

Filed under: Bureaucracy, Government, Law, USA — Tags: , , — Nicholas @ 07:07

To read all the huffing and puffing, you might get the impression that if the proposed labour law changes be enacted, Wisconsin public workers would be uniquely disenfranchised. As Josh Barro points out, however, that’s not very accurate:

The truth, as laid out in a GAO report from 2002, is that there are already 12 states with no public employee collective bargaining law at all. In these states, state workers have no right to collective bargaining; local employees have collective bargaining only if local elected officials choose to grant it. (And in a few states, notably Virginia and North Carolina, state law forbids localities to allow collective bargaining.) Another 12 states grant collective bargaining rights only to certain classes of employees, such as only state workers or only teachers. Only 26 states have a collective bargaining law covering nearly all public workers.

So that means that the model from which Walker proposes to break, much to the horror and outrage of public worker unions and their backers, is a model only actually followed by 25 other states. And indeed, by retaining limited bargaining rights for most workers (and fuller rights for a few classes, including police and firefighters) Walker is going less far in restricting public-sector collective bargaining than a substantial number of states already do.

H/T to Walter Olson for the link.

February 23, 2011

Ontario actually considers liberalizing (some) liquor laws

Filed under: Bureaucracy, Cancon, Government, Law — Tags: , , — Nicholas @ 13:00

It’s a rare, rare thing for the Ontario government to consider any kind of liberalization, but especially one involving booze:

Could Ontario be saying good-bye to beer tents? The province’s government announced on Wednesday that it would be asking for public input on a series of possible liquor law changes.

Some of the changes considered would include relaxing the liquor laws at events and festivals, meaning drinkers would no longer be sequestered in beer tents, but could wander with a drink in hand.

It would also allow one-off event permit holders — weddings, parties and fundraisers, for example — to serve booze until 2 a.m., bringing their serving hours into line with bars. Current laws require special occasion permit holders stop serving alcohol at 1 a.m., with the exception of New Year’s Eve, when it’s 2 a.m.

Don’t hold your breath — this is still bluestockinged Ontario — but just the idea that they’re willing to discuss changes is heartening.

February 22, 2011

Former UK Home Secretary shocked to discover the internet awash in porn

Filed under: Britain, Government, Law, Liberty — Tags: , , , — Nicholas @ 07:52

The amusing thing is that she lead a major effort to suppress “extreme porn” while in office:

Former Home Secretary Jacqui Smith has professed herself “shocked” at the availability of porn on the internet after investigating the issue for a radio documentary.

Which raises the question of what exactly she thought she was cracking down on during her time in charge of law and order.

[. . .]

Smith told the Radio Times that during her research for the documentary, she had been “shocked” to discover how much hard-core material was washing around the net. And so much of it for absolutely no cost at all.

She admitted that after the pay-per-view smut scandal had broken, her son had said: “Dad, haven’t you heard of the internet?” Smith was also shocked by a visit to the Erotica exhibition, where confronted by the likes of the Monkey Spanker and artisan-built bondage furniture, “I felt completely innocent.

That Smith was ignorant of the amount of porn available on the internet seems incredible, given that during her time in government Labour cracked down hard on “extreme porn”. Smith’s Home Office also sought to clamp down on extremism on the internet, and to track all the UK’s browsing habits via a vast uber-database, the Interception Modernisation Programme. Surely some her staff might have noticed there’s lots of smut out there as well?

February 19, 2011

QotD: “Would Shakespeare Have Survived Today’s Copyright Laws?”

Filed under: Law, Media, Quotations — Tags: , , — Nicholas @ 00:05

Turow, along with Authors Guild executive director Paul Aiken and Authors Guild board member (and apparent Shakespeare expert) James Shapiro, have an op-ed piece in the NY Times that a whole bunch of you have been sending in, in which they assert that Shakespeare might not have been able to survive the web era, because of all of this “piracy.” The argument is quite a bit stretched, but see if you can follow me: because playwrights had physical scarcity, in that they could keep people out of the playhouses unless people paid to enter, it allowed playwrighting to flourish. They call this a “cultural paywall.” Then there’s some sort of bizarre leap about how copyright is really the same thing. It’s not. And, then it leaps to something about how stricter copyright laws are, ipso facto, better. The evidence for this? Shhhh, don’t bother the Authors Guild bosses with logic! And, of course, the inevitable punchline is the idea that Shakespeare wouldn’t have survived in this online era with all this piracy and stuff.

Of course, it’s difficult to think of a worse example than Shakespeare for this argument (and sort of bizarre that Shapiro would sign off on an op-ed that so thoroughly misrepresents Shakespeare). Of course, as most of you know, an awful lot of Shakespeare’s works are copies (sometimes directly) of earlier works. Sometimes they’re derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he’d be able to produce any of his classic works, since they’d all be tied up in lawsuits over copyright infringement.

Mike Masnick, “Would Shakespeare Have Survived Today’s Copyright Laws?”, Techdirt, 2011-02-18

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