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All 117 Posts in the Category: Law

19
Apr 14
Sat

Your credit limit is how high?

I just saw this query on one of the in-house counsel mailing lists I’m on:

Our B2B customer wants to put one of the milestone payments due to us (to the tune of $1,000,000!) on their credit card.  Incredulity aside, we want to avoid that as we would be hit with around $35,000 in fees, not to mention the transaction size would exceed our monthly limit.  Can we refuse this request if our contract is silent on the method of payment?  I know merchants are not required to accept credit cards, but where there already is a signed purchase contract and it is silent on the issue of how payment is to be made, can payment by credit card somehow be construed in the eyes of the law as acceptable, even though it would result in us incurring substantial fees?

Thank you in advance for your insight!

Without doing any research, I am pretty sure the answers are yes and no respectively… but all I can really think about when I read that question is how many frequent flier miles that could generate!

  3:06am  •  Law  •  Tweet This  •  Add a comment  • 
25
Sep 12
Tue

Getting a competitive advantage at work

I liked this observation in an article in today’s NY Times. Written by an ex-Cravath associate, it explains why he left the law to become a journalist:

After several years I felt it was time to consider my future. I had wonderful assignments and congenial and stimulating colleagues. Still, I could see the winnowing process firsthand. Of the 20 or so associates hired each year, one or two might be chosen to be a partner. Some years there were none. I waited each year with keen interest to see who was tapped for the equivalent of lifetime tenure. What did they have in common?

They weren’t necessarily the brightest. Everyone there had impressive test scores and academic credentials. They weren’t, as I had expected, the hardest-working. Everyone aspiring for partner worked long hours and gave the appearance of hard work. They weren’t the most personable. Cravath was refreshingly meritocratic, and gender, race, religion, sexual orientation, and social and academic pedigree all seemed irrelevant.

Finally it came to me: The one thing nearly all the partners had in common was they loved their work.

This came as a profound revelation. Of course they worked long hours, because it didn’t feel like work to them. They took great satisfaction in the services they rendered their clients.

You couldn’t fake this. The partners seemed to have some sixth sense. I enjoyed my work. But I had to admit I didn’t love it the way they did.

At times I found this mystifying. How could anyone tackle a complex tax problem with such enthusiasm? Or proofread a lengthy indenture agreement? Why couldn’t I love a prestigious, high-paying, secure job like they did?

At the same time, it was liberating. It was obvious to me that someone who loves his or her work, whatever that might be, has a huge competitive advantage, not to mention a satisfying and enjoyable life. Somehow people who love what they do seem to make a living. So I started pondering what I might love as much as some of my Cravath colleagues loved practicing law.

(Emphasis added.) It’s the same theme that Steve Jobs spoke about in his famous 2005 Stanford Commencement Speech – “you’ve got to find what you love”.

As much as a “tiger dad” as my dad was when it came to studies when I was back in High School, he never really pressured me to take one of those occupations that Asian parents typically want their kids to take (then again I can’t say he approved of my initial choice of degree). After a few decades of doing what he did as a career, he would say to me that one of the key take aways from the experience was that you have to be able to wake up in 10, 20 years and enjoy what you’re doing. The fact that I ended up in law anyway is somewhat ironic, but it’s a decision I came to make myself several years after high school. A decision you make yourself is a much more informed one than a decision that someone else has made for you.

  9:00pm  •  Law  •  Tweet This  •  Add a comment  • 
20
Aug 12
Mon

Australia gets a new High Court Justice

Stephen Gageler SC, Australia’s Solicitor-General, has been appointed to the High Court to replace Gummow J. As a junior solicitor I remember sitting in his chambers as my supervising partner at the time and the GC of our client instructed him on a matter, not too long before he was appointed as Sol-Gen. Super sharp guy (obviously). He will be able to spend up to 16 years on the court.

  9:54pm  •  Law  •  Tweet This  •  Add a comment  • 
16
Dec 11
Fri

King & Wood Mallesons

My old firm is merging with China’s largest law firm, King & Wood. It will be called King & Wood Mallesons. I am a little sad about the possibility that the firm will no longer be called “Mallies” as the name has lost top billing, but the merger is definitely an interesting one. The firms will share everything except financials, since Chinese law prohibits financial integration.

The Australian legal services industry is changing dramatically, and all the Big Six are jumping into bed with international tie-ups. Bound to happen, I guess – the Australian market is pretty tapped out (saturated) and has been for some time.

  12:21am  •  Law  •  Tweet This  •  Add a comment  • 
27
Oct 11
Thu

Richard Stallman’s info packet

I saw this on Kottke.  It’s Richard Stallman’s information packet – the one that he sends out to people who want to invite him to give a talk.  It’s long.

Back when I was in law school (2004, actually), I was involved in organizing a talk by Stallman. He sent us a similar information packet.   I just pulled it out of my email archives. It was long back then, but, I shit you not, the length has almost, literally doubled from about 5,400 words to 9,100 words in the intervening 7 years. As for the talk – I don’t remember much about the organizing process except for it being very… fiddly – but his anti-software patent message definitely stuck with me.

  1:05am  •  Law  •  Tweet This  •  Add a comment  • 

Patent Trolls: How Bad Is the Problem?

It’s bad. Popular Mechanics writes about the scourge of “non-practicing entities”, otherwise known less euphemistically as patent trolls:

Vague wording and flaws in the U.S. patent licensing rules helped to give rise to this breed of aggressively litigious patent-holding firms, according to James Bessen, a Boston University School of Law lecturer. These organizations have pressed hundreds of lawsuits against thousands of defendants over the past 20 years, and business is booming now more than ever. Bessen wanted to know just how big the problem was, and according to a recent study he co-authored, fighting these firms cost companies an estimated $500 billion from 1990 to 2010. How did things get this way? [emphasis added]

  12:42am  •  Law  •  Tweet This  •  Add a comment  • 
5
Oct 11
Wed

Why are lawyers so expensive?

Above the Law takes a look at some answers left on Quora. It’s a good post, and I think this passage rings true:

Honestly, how many people even want to be a big time, senior rainmaking partner at a large law firm? From a certain point of view, it’s a terrible job! You work insane hours (and you have worked insane hours for most of your adult life). Even if you are intellectually stimulated by the work, it’s not “fun.” It’s not playing centerfield for the Yankees or directing pornography. It’s not a barrel of laughs. And despite the fact that you are relatively rich and probably at or near the very top of your field, you have to spend all day talking to clients who disrespect you, make more money than you, and act like you’re the a$$hole in the room who is stealing their money.

Who the hell wants to do that all of their life? Well, you have to pay people a LOT of money to make them want to do that.

Why are lawyers so expensive? Because it’s a crappy job that most people don’t want to do! Sanitation workers get paid more than teachers because most people would rather deal with trashy children than old trash. …

And that’s the final answer: lawyers are so expensive because clients are really that stupid. If clients could overcome their fear, if they could learn the difference between important work and mundane paper-pushing, then they could make intelligent decisions about when to pay the high fees, and when to find a cheaper lawyer.

  9:05pm  •  Law  •  Tweet This  •  Add a comment  • 
24
Apr 11
Sun

F**k you. Pay me. Tips for small service providers and getting paid.

This is actually a pretty good presentation for small service providers and getting paid (among other things).

Turns out it’s about the importance of having a good contract (and a lawyer).

  3:34pm  •  Law  •  Tweet This  •  Add a comment  • 
10
Apr 11
Sun

German Justice Through the Eyes of a Somali Pirate

A fascinating Spiegel article which raises some very tough questions about criminal justice. Germany arrests 10 Somali pirates who hijacked a cargo ship, ships them off to Hamburg, and holds a trial for them. Some are under 18 and all have no idea what was going on. How can you, when you have never heard of a court?

For the last seven nights, he has had nightmares in which Judge Steinmetz stabs him in the stomach with a knife. Pohlen pats him on the shoulder, half comforting and half in amusement, and tells him that things won’t get that bad.

“I think he’s serious,” says the interpreter, who left Somalia more than 20 years ago. When Pohlen asks the boy what he means, it turns out that Abdiwali believes that the uniformed bailiffs are soldiers and the people in the visitors’ gallery are members of the secret police. He can’t tell the many people in black robes apart. He is convinced that the prosecutor, who has such a low opinion of him, will pronounce the verdict and that he will be tortured. He thinks that, in the end, the man in charge, who sits in the middle at the front of the room and asks so many questions, will be the one to enforce the sentence.

Abdiwali believes that Steinmetz is his executioner.

Dr. Bernd Steinmetz, 52, the presiding judge of the 3rd Criminal Division, is a somewhat short, friendly man with an alert gaze, gray hair and delicate facial features. He comes across as being cultivated, respectable and polite, almost excessively so. He treats everyone the same, whether it’s the public prosecutor, the frigate captain or the defendants, who sit in front of him wearing prison-issue jackets and trousers that are much too big for them.

Steinmetz has meticulously prepared himself for this trial, which is the biggest case of his career. The white bowtie worn by judges suits him. He looks like he could just as well be a violinist in a string quartet or a Latin teacher. Someone would have to come from a very different world indeed to imagine that he could be an executioner.

Pohlen is flabbergasted.

“But you must know by now that there is no death penalty in Germany?”

“I don’t know that.”

“No one can be executed in this country,” Pohlen explains. “Capital punishment was abolished 60 years ago. And torture is forbidden. So is cutting off hands.”

Abdiwali nods, but he doesn’t look very convinced. He was told that pirates are beheaded in Hamburg. “That was Störtebeker,” says Pohlen, referring to a legendary German pirate from the Middle Ages. “But that was 600 years ago. Now we live in a modern democracy based on the rule of law.”

“What is the rule of law? And what is the court?” Abdiwali asks. “Who is responsible? I don’t understand any of this. Can you explain it to me?”

  4:00pm  •  Law  •  Tweet This  •  Add a comment  • 
27
Mar 11
Sun

Color: a privacy analysis (Part 2)

This is part two of a two-part post about the launch of Color.  The first part talks about the business and is available here.

The privacy practices of Color

Several things struck me about Color after I had used it for a while.  The first is that Color gathers a lot of data.  This data is highly personal (a picture is worth a thousand words and all that).  If I see your photo stream, I can determine not only where you are at a given time, but figure out who your friends are, what places your frequent, and even your routines and habits over time.  The second is that Color automatically shares your photos with anyone, instantly.  Most of those people will be strangers.  Your next door neighbor can see what’s happening in the party you’re holding at your place. (“I really hate my neighbor right now because of all that noise.  Wait, is that a person doing blow in the corner?  Let’s call the cops.”)  This is different to media sharing tools like Facebook, Foursquare, YouTube or whatever, because they are either shared with people you actually know (or their acquaintances), or are shared on a very deliberate basis by the media owner.  Color is just a firehose of information… and it can contain information which is far more revealing than a Tweet.

The privacy issues are totally obvious.  If you take a sick day from work and you’re not actually sick, you better be careful about using Color, because if your boss uses it, he can probably automatically see your photostream.  If you’re snapping photos in an office building, you better make sure you don’t inadvertently snap anything that’s confidential, or your competitors three floors above you might get wind of it without you even knowing.

As a lawyer at a small tech company, I spend a lot of my time thinking and worrying about consumer privacy.  After reading all of that, it’s totally obvious that if you use the app, nothing is private and you have no control over where your photos go.  If you don’t like it, don’t use it.  Well, that’s all fine and good, but for an app that is completely invasive of privacy, it does what is, quite frankly, a bad job of informing the user about it.

Let me say here that there’s nothing wrong with an app that is completely invasive of privacy as long as people know exactly what they’re getting in to, and have some choice over the matter.  And as long as you comply with the law, which may be pretty difficult in some European countries which tend to rachet up compliance requirements the more invasive your privacy practices are.  Color is a U.S. company and will soon be registered under the U.S.-EU Safe Harbor Framework, but despite the Safe Harbor, some European countries’ privacy laws can impose additional obligations that have what is effectively extraterritorial reach (I’m looking at you, Spain).

As soon as you start the app for the first time, you are asked to snap a photo of yourself.  Before you know it, that photo is broadcast to everyone around you.  There is no warning.  You have to figure the last part out later, as you learn how to use the app.  (The app is pretty confusing as well – it uses icons I’m still trying to figure out the meaning of.)

I went looking for the privacy policy.  After literally 5 minutes of pressing everything in the app, I still couldn’t find it.  I checked on the app, and on the website.  In the end, Google came up with the goods.

Let’s do some analysis

The privacy policy is actually not bad.  I like the tone – it’s not only written in plain English, but it’s written colloquially.  This dispenses precision for comprehension and concision, which I think is appropriate in this context.  The formatting could use some work, however – it’s still a glob of text that you have to go hunting through to find out information you’re interested in.

A good privacy effectively communicates answers to three key questions: What info are you collecting from me?  How are you going to use that info?  Who are you going to give that info to?  However, I believe the most important question to be answered is: How are you going to handle my data in a way I’m not going to expect or know about unless you tell me?

There are a few other ancillary things as well: What control do I have over the info you collect- can I get it deleted or updated?  Are you going to tell me if you change your privacy policy?  How do I contact you?

Probably the best way to look at a privacy policy is to pick out all the bits and pieces of information being collected about users and seeing what happens to that information.  I’m looking at the March 21, 2011 version which covers both their app and their spartan website.

Contact details (name and email)

  • How Color uses it: In the second section of the policy, Color only says that it “stores” your data, but doesn’t mention at this point how else it uses the information.
  • Who Color shares it with: The second section also says they won’t disclose this information to anyone, except to courts.  However, this is contradicted later on in the third section, which says that they do share users’ names with other users (which is obvious in the app).  It’s also contradicted by the general disclosures section (the sixth one), where it turns out that they will disclose your name and email to others besides a court.  More on the general disclosures section below.
  • Notes: These are collected right at the start, when you register with the app.

Mobile device unique ID

  • How Color uses it: Color doesn’t mention for what purposes it uses this piece of info.
  • Who Color shares it with: We are told that this info is going to be given to certain unnamed others for “advertising purposes”.  This is ambiguous.  Is Color using it for its own advertising purposes, or are they giving it to third parties who can use it for their own purposes?  Is Color selling this information?  All we know is that marketers won’t contact us directly as a result of this disclosure.
  • Notes: After the privacy firestorm and lawsuit that Apple found itself in after the WSJ broke a report about mobile device identifiers being disclosed without users’ knowledge, companies are going to want to tell their users if they are getting their mobile device’s unique identifier.  However, Color doesn’t really do a good job of explaining what it’s doing with this identifier.

User-generated Content (pics, videos, comments, actions)

  • How Color uses it: Obviously to make the app work.  Color are silent on exactly how they use it in ways that aren’t readily visible – you have to go to the Content license grant in the Terms of Service for that (Color gets a perpetual, irrevocable, world-wide license to “use and reproduce any of your Content … for any reason or no reason, without notice” and “copy, analyze and use any of your Images and comments … for purposes of debugging, testing and/or providing support services”).  That stuff should really alos be in the privacy policy.
  • Who Color shares it with:  Pretty much to anyone.  It notes social networks in particular.  Can we say “viral”?
  • Notes: UGC is, of course, the meat of the app.  Color calls it “Content” so that’s how I’m going to refer to it here.  Traditionally, privacy policies have focused on personal information (variously referred to as “personally identifiable information” or “personal data” depending on which part of the world you’re from).  Personal information is basically any information which could reasonably be used to identify someone (including when used in combination with other information which has been collected).  The thing is, you don’t need a lot of information about someone to be able to identify them.  Netflix recently copped a lot of flak for wanting to release what they thought would be an anonymized data set about their customers (containing their genders, ages, zip codes and movie watching habits).   “Researchers have known for more than a decade that gender plus [5-digit] ZIP code plus birthdate uniquely identifies a significant percentage of Americans (87% according to Lant[y]ana Sweeney’s famous study).”  Lantanya Sweeney is known for her work with anonymization of data sets and her paper on k-Anonymity.
  • Related to this realization that anonymized data is not as anonymous as you’d think is a recent trend in privacy policies to take a more holistic view of what needs to be covered in them.  TRUSTe recently updated its privacy seal requirements to recognize this after the FTC released its report on consumer privacy: “Companies need to be transparent about all consumer data collected, not just those it considers personally identifiable or ‘PII.’”  Users don’t only care about personal information, but they care about all the other information that they give to a company.  Information that is not “private” in the privacy sense, but in the confidential sense.  For example, my photos of my attic (if I had one) are generally not personally identifiable, but I still could regard that information as private, especially if I have some weird stuff in there.  So, privacy policies should not confine themselves in scope to personal information (as legislative requirements generally do), but should cover all types of information gathered from users.  With Color, while not all Content is personally identifiable, it’s still information which people could regard as “private,” so it’s important for Color to mention how it handles this.
  • I wonder if they preserve metadata on Content?  Probably, yeah?  I’m too lazy to check right now.

Location information (some of which is attached to Content)

  • How Color uses it: To show you and others relevant Content.  The services uses your physical proximity to others to determine whose Content you can see.
  • Who Color shares it with:  Pretty much to anyone, just like user-generated content.
  • Notes: Geolocation information is pretty topical among the privacy crowd these days.

Audio recordings

  • I’ve read that the app takes recording of ambient noise, which is another way it tries to determine if you’re interacting in the same environment as those who are near you (people may be 50 feet away, but they may be in the building across the street).  This feature has led some people to make references to Echelon.  Interestingly, the privacy policy doesn’t make any mention of this.

Server log file information and cookies

  • As Color says, this is the “usual stuff”.  I’m not going to dwell on this much.  Color does mention that they don’t have a logon system for the website yet, but one may be introduced in the future.  This is in line with the CEO’s aim of keeping the website as sparse as possible – the focus is on the mobile app.

Mobile phone number

  • How Color uses it: Mainly for the user’s benefit.  If you lose your phone (or whatever mobile device you’re using), you can get Color to reassociate your account with your new phone so you don’t lose all your stuff.  Conversely, this allows Color to permanently ban any device or account they want.  But they won’t use your number to call you.
  • Who Color shares it with:  No one, apparently – subject to the general disclosure section (see below).
  • Notes: Strangely, Color tells us they collect our mobile numbers in the fifth section of the policy, which is kind of duplicative with the second section, where I think it should be.

Your mobile phone’s address book

  • How Color uses it:  Basically to show you relevant Content, and also to facilitate the use of SMS.  “We think you might be interested in seeing your friends’ Content,” Color writes.  Even if you’re not physically close to your friends, Color will still hook you up with them.
  • Who Color shares it with:  Not mentioned, but I hope it’s no one (subject to general disclosures).
  • Notes: This immediately reminded me of Google Buzz’s privacy woes.  If my photo stream is not only shared with those physically proximate, but also anyone in my address book… anyone from my boss to my grandmother could see my Content (as Color points out in its TOS).  For anyone who wants to keep their professional and personal lives separate – especially those who make it a rule not to friend colleagues on Facebook… this is not the app for you.  But I don’t think people are going to realize this.  Color calls the people with whom your Content is shared your “elastic network.”  And it’s super elastic.  There are no privacy controls on anything – it’s just one black box algorithm at work figuring out who to push your Content out to.  That said, iPhones do alert you from the get go that Color is trying to access your address book (scant protection).

General disclosure exceptions

  • The sixth section contradicts the second section (as I mentioned above) and contains pretty standard exceptions regarding disclosure of data.
  • If they get acquired, the acquirer will get your data.
  • If they are subpoenaed or are otherwise required by law, they may disclose your data.
  • If you engage in illegal activities, they can report you to the authorities.
  • Interestingly, they also permit themselves to disclose your information if they get alerted to “extremely offensive behavior”.  I wonder why they need to be able to do this when they have the illegal activities exception?  The interpretation of what is “extremely offensive” is pretty discretionary.  And why would they need to disclose your information?  To name and shame you?

Other issues

  • As Color continues to develop its product, you can bet this privacy policy is going to undergo multiple iterations (the policy itself alludes to them rolling out “more interesting options”).  Color is pretty ambiguous about how it will communicate changes to the privacy policy – “we’ll update you before our practices change” is all they say.  How will they do this?  (I doubt they will popup messaging in the app summarising what has changed, although that’s what they should be doing.)  How major a change to their privacy practices needs to occur before it triggers the notification requirement?
  • There’s not much information in the policy about deleting your account and whether Color retains your Content.  This is all contained in the TOS under the “Your Content is Public” section.

Terms of Service

  • I skimmed through the TOS and it’s written in the same style as the policy, which is unusual.  I’ve seen Virgin do it once on a credit card application form (which was pretty cool actually).  I was amused to see marketing statements thrown into what is essentially a contract.
  • Some gems: “We think this feature makes us different and exciting.”  “this is our sandbox”  “Unique users can view your Content … Anyone: from grandparents to bosses” (as I mentioned the issue is not so much that these people can view your Content, the issue is that they are among the people who are most likely to be pushed your Content).
  • There’s also this weird statement: “Don’t use our Service for commercial purposes.”  If I open up a restaurant, why wouldn’t I try and advertise it through Color?  This is a great way to alert workers and residents in the immediate area about your new shop.  I could also snap a picture of my sandwich board outside which says, “50% special on soup, today only!” and get it pushed out to everyone in the area.

So how does it all stack up?

The privacy policy isn’t bad.  It’s relatively easy to read, but it could contain more information (and more information means structuring the policy better and highlighting the important bits).  A lot of privacy information is actually contained in the TOS.  Like most people, I never read Terms or Privacy Policies top-to-bottom unless I’m getting paid for it (Color’s privacy policy is the exception).  I’m not concerned about most things: even if a company sells my email address, I get so much spam each month anyway that it doesn’t really matter.  However, I am interested in very specific things: if I sign up to a subscription service and it’s not clear how I can cancel my account, I will check the Terms.  On Facebook, I want to know if an app is going to post something to my wall without telling me first, and I will look up a privacy policy for that.  If you put privacy practices in the Terms, people who are just looking for privacy information aren’t going to find it.  This isn’t much practical help to consumers.

However, the only major issue I really have with Color is that there is pretty much zero notice of its privacy policy.  It’s damn hard to find.  There should at least be a privacy warning as soon as you open up the program.  Instead, the very first two things you get are iPhone notices telling you that Color wants to access your location and your address book.  Uh… what are you going to do with those two things?  We don’t know.  Notice given after the fact is not really notice.

The privacy policy contains a nice section at the end entitled “Respecting Privacy.”  It says: “A picture says a thousand words.  Before you use our App, consider whether you (or those whose image you capture) want the world to see the picture or video you took.  And have fun.”  This notice really should be up front and center, along with “we potentially share your photos with everyone – including your boss who’s sitting 20 feet away from you.”  And they could throw in an example for good measure: “your mother, who is in your address book, will see all your party pics.”  This is a visceral privacy notice (to use privacy lawyer Ryan Calo’s terminology).  It could also be presented a short-form privacy noticeJust put something prominent there.

When interviewed by the press, Color has been upfront that their app should not be used if you’re not willing to let the world see your Content.  But that upfrontness is distinctly missing from the app.

One other issue is that of inappropriate Content.  At the moment, social norms keep the Content in check – I have yet to see any inappropriate photos from the 100+ people whose photostreams I have access to.  However, just wait until the teenagers get a hold of this.  Despite this, I’m actually not very concerned about inappropriate content being snapped.  There is a distinct potential for misuse (snapping photos in restrooms or around schools, for example), but no more so than any other online service dealing with user-generated content.  It’s not a new issue.  The speed at which things could go viral is stepped up a notch, but this isn’t in itself a reason to get your knickers in a knot.  In today’s world, all publicity is good publicity, right? … Right?

 

  10:07pm  •  Internet  •  Law  •  Tweet This  •  Add a comment  • 

Color: an analysis (Part 1)

This is part one of a two-part post about the launch of Color.  Click here for the second part, which examines Color’s privacy practices.

Enter Color

Color isn’t the next Google.  But it could be the next Twitter.

A mobile app called Color launched this week.  It would have been an otherwise unremarkable launch had it not been accompanied by the news that the company, Color Labs, Inc., had received $41 million in funding from Sequoia Capital, the VC arm of Bain Capital, and Silicon Valley Bank.  Assuming Color’s founders still have control of the company, the most conservative estimate of Color’s implied valuation puts it at a little more than $80 million.  This investment appears to have been made on the basis of the strength of its reputedly star-studded ~30-person team (headed by Lala founder Bill Nguyen) and a working prototype, because when $41 million was plowed in, Color had no revenue, no users, and no live product.  Its most “tangible” asset was its U.S.-centric domain name, Color.com, which was reportedly acquired for $350,000.

Sequoia Capital partner Doug Leone was reported to have said, “Once or twice a decade a company emerges from Silicon Valley that can change everything. Color is one of those companies.”  Which is expected when you’ve handed over more money than Google received in its initial funding round.  It’s a big call to make.  If there’s only room for one or two a decade, I can only think of two tech companies founded within the last decade that have reached 11-figure valuations.  For a mobile app to reach these lofty heights, well… let’s just say the gut reaction is immediate.  Color is going to have to be an app that you use multiple times everyday: Email, Google, Facebook, and perhaps Twitter have achieved this.

At a basic level, Color lets you snap photos (and video) with your phone.  The photos get uploaded to Color, which then pushes them out to all Color devices in your physical vicinity (within a few hundred yards), as well as to your friends further afield.  You get to see what other people in your vicinity are seeing – some will be friends, some will be strangers.

Color’s algorithms also attempt to group together bunches of photos taken by different people based on location, lighting, past interaction with people, and even ambient noise (yes, the app apparently turns the microphone on).

That doesn’t sound like something that might be worth $10 billion one day.  But, the VCs backing Color are not mediocre people.  So I think it’s natural that we give Color the benefit of the doubt and assume that the initial app is just scratching the surface of what the team in downtown Palo Alto want to accomplish.  Let’s let our imaginations run wild and see how the premise of the current app could bloom in the future.

The possibilities

Interviews with CEO Bill Nguyen disclose that Color is not really about sharing photos.  It’s about a “new way to build spontaneous social networks – and collect massive amounts of data about what people are doing and where they’re doing it.”  Once we frame it in that light, we start to see a few use cases that may be possible in the future.

The most cited one is people attending the same event, for example a concert or a sports game, who will be able to see the event from different perspectives.  This then extends itself to news reporting, and for search and rescue in natural disaster zones.  Something happens in the world that breaks on Twitter (“massive hailstorm in Sydney happening now”), and you skip over to Color, zoom in on the affected area in Sydney, and then get instant access to photos of the event from different people who are there.

Another use case is to connect strangers who are physically close, but with whom you would otherwise have no reason to come into contact.  For example, apartment buildings or public transport.  I’m a little dubious about this, but as inhibitions regarding privacy drop, some people will definitely make use of this.  To put it bluntly, it’s entirely possible that someone has already gotten laid by someone who they met through Color.

At the moment, Color collects a lot of data.  A lot.  It is basically building up a repository of  media items which are geotagged, timestamped and associated with an individual.  Image recognition will enable people and objects to be automatically tagged, and other semantic meaning can be embedded into the media.

This all reminds me about a book co-written by Arthur C. Clarke and Stephen Baxter called The Light of Other Days.  (A similar premise was depicted in the movie Déjà Vu, featuring Denzel Washington.)  In the book, a technology exists which allows someone to open up a “read only” wormhole into any past point in the spacetime continuum.  In other words, you can pick a time and place and then watch what happened there.  This is one place where Color might be headed.  You can relive a night on the town, or a vacation with friends.  A high school class could explore future historical protests similar to the one in Tahrir Square, or journey through the bloodied streets of Benghazi in real time as seen through the eyes of those at ground zero.  This idea has already been explored in some ways – Microsoft’s Photosynth technology stitches together geotagged photos on Flickr and recreates 3D scenes from photos that were taken at the same location.

That is the promise, but Color has some work to do to get to that stage.  I installed the app when I was at work.  I immediately saw a group of about 30 users and their photostreams.  It was mainly headshots of people – people eating in restaurants, people in the street, people in offices.  But I was most amazed because there were 30 people in my vicinity that were already using Color, and every minute or so, another photo would pop up on my screen – it seemed like user adoption had blown up overnight.  Alas, I later found out that Color’s offices were literally a block away from ours, so I had inadvertently gotten to “know” half of Color’s staff.

The trouble was that I had no context for the photos.  I didn’t know these people, they didn’t know me, and I guess I could have started commenting on their photos, but that seems like a creepy thing to do… like hanging around a clique and trying to break in when you clearly don’t belong.

I tried it at home on a weeknight.  Within sniffing distance of downtown Menlo Park, no one was using it.

What’s that you say about a business model?

Color is apparently one of those businesses where the idea is so appealing that the business model is just a detail that can come later.  “Build it and they will come… we’ll monetize it later.”  The app is free and the company intends to make money via location-based advertising.  Color is going to be competing in a space which is going to be crowded: Foursquare has been working on this for a while, and Groupon is apparently trying to muscle in on it as well.

I have a feeling that Color has the potential to become an important part of the internet, but only in the same way that Twitter has.  Twitter has little revenue to show for its circa $5 billion valuation, and it has been “experimenting” with different business models for years.  Twitter received enough funding and revenue to get it through to profitability (maybe?), but at $5 billion you’d expect it to be earning profits somewhere in the low 9-figure range.  On the other hand, it’s now part of the plumbing of the net.  It’s vital infrastructure.  There is another infrastructure-style site that provides a valuable benefit – Wikipedia, which is a non-profit organization that runs on a budget of only $10-20 million a year.

I believe that Color was invested in at a very overvalued price, but there is a reason for this – the wisdom of which I have mixed feelings.  This trend seems to have been growing over the last year or so as investors clamor to get in to companies at the ground level.  I attended a Y Combinator Demo Day last year and the start-ups there were routinely raising angel funding at $5+ million valuations.

Perhaps it’s a side effect of what’s been happening with Facebook.  Even if you wanted to invest a lot of money in Facebook after you saw The Social Network, you couldn’t.  This seems to have pushed Facebook’s valuation way up.  Private stock is normally valued less than public stock (all other things being equal) because of the benefits that liquidity offers.  Perversely, the opposite seems to be true – it is because the demand for Facebook stock is so high, and the supply so tight, that the lack of liquidity is actually pushing prices up.

It still makes some kind of sense, though.  Let’s say, for the sake of argument, that Facebook is worth $20b and you had the opportunity to invest at a $30b valuation.  The 50% premium may still be attractive since you might not actually have the chance to buy it in the future.  By the time the private stock becomes available, or the company floats, the company’s “true” valuation may have grown to $100b.  You’ve still made money hand over fist because you managed to get in early.

It seems that angels and VCs have cottoned on to this a bit.  It’s a bit of FOMO.  Better to get in now at an overvalued rate, than get in later when the valuation has skyrocketed.  And it’s easier for a company to double $10m in revenue than $100m in revenue.  Of course, investing early at high valuations just pushes both sides of the risk/reward equation up.  (There’s nothing wrong with a bubble from a personal investment sense… just make sure you get out of it at the right time.  I have a friend from high school who made 100x on a sizeable punt on Rambus, having sold out shortly before its stock price crashed.)

But I’m going to move on now – many people have written more about the viability of Color in much more depth, and there are a lot of other interesting issues that they cover, such as the perils of choosing a generic word as a company name (it’s going to be challenging to trademark, not to mention issues with SEO), the app’s UI, who comprises Color’s team, and so on.  In the next part of the post, I want to talk about privacy, because Color raises a few fascinating privacy topics.

Continued in Part 2…

  9:55pm  •  Internet  •  Law  •  Tweet This  •  Add a comment  • 
16
Mar 11
Wed

Brief thoughts on privacy policies

I came to the conclusion a while ago that a privacy policy is not really a legal document. It’s a document that has legal ramifications, yes, but in the same way that anything a business says has legal ramifications. Perhaps I should rephrase my first statement: I don’t think the privacy policy should be perceived as a legal document.

The privacy policy, for the last decade or so, has been the easy way to comply with privacy laws and regulations. It’s one document which checks all the boxes for most privacy requirements out there. All privacy frameworks require some sort of notice to be given to users about privacy practices. Some are explicit that organizations need an actual privacy policy document, but not all of them. The US-EU Safe Harbor Framework, for instance, only says: “An organization must inform individuals about the purposes for which it collects and uses information about them … This notice must be provided in clear and conspicuous language when individuals are first asked to provide personal information to the organization or as soon thereafter as is practicable, but in any event before the organization uses such information for a purpose other than that for which it was originally collected or processed by the transferring organization or discloses it for the first time to a third party.” (The EC’s FAQ however does mention a privacy policy.)

In Australia, NPP 5 and the proposed replacement UPPs do require a discrete Privacy Policy – but this is in addition to a general notification requirements (NPP 1.3, UPP 3).

In the online world, all you really deal with is information, and so figuring out how personal information and other data flows can be an intricate task. It’s tricky enough for people working inside an organization to figure this out (imagine how the privacy people at Facebook feel when all the engineers are working on 101 new features at once and they are trying to keep up with where all the data is going). So, when it comes to communicating all of this to an outsider, you can imagine the difficulty this presents. This is why you end up with privacy policies many thousands of words long. They’re virtually useless in the real world.

For some time now, people have regarded that privacy is merely a matter of having a privacy policy and making sure that an organization sticks to it. No longer.

The world is gradually beginning to realize that privacy is actually about helping people to understand what is happening to their information. Not just in theory, but in practice. Just because the information there, but buried somewhere in that policy, doesn’t mean it’s going to be helping anybody understand anything.

No one reads a privacy policy from top to bottom (with the exception of, in my experience, lawyers, compliance officers, and Germans). But people do read privacy policies to find out specific things. Are you going to sell my data if I give it to you? Do I own my data? Will you still keep my profile if I decide to delete my account? Unfortunately, this information can be pretty hard to locate – you almost need an FAQ for the privacy policy.

So now we see the gradual introduction of condensed privacy policies, layered privacy policies, and more interestingly “just in time” privacy notices. For example, when you have an iPhone App that wants to grab your location, you get a popup asking if you want to disclose it. The thing is, people only care about certain things, and most of the time it’s obvious.

When I install a Facebook App, my most immediate concern is: is it going to post stuff on my wall without asking me first? And then, what profile information is it going to grab from me? Facebook’s JIT notice doesn’t do a very good job of answering these two questions.

If you use Foursquare, your main concern is: exactly who is going to have access to my location information and how can they use it? And then, if I decide to leave after I try your service for a day, will you delete all my data?

Of course, there’s a tension between what the business guys think will increase conversion rates, and what’s good privacy practice, but that’s another topic for another day.

Anyhow, that brings me back to the privacy policy. Obviously it’s not working, but yet it’s kind of necessary. If the way a business handles information is complicated, there’s no possible way you can explain it in a single screen. So, what to do?

You have to get away from the idea that the privacy policy is a legal document. It’s a help document. It should be accessible.

Why don’t more privacy policies have pictures? Videos? Interactivity? Why aren’t they structured in a way that makes it easy for people to zero in on what’s really important to them?

Instead of burying the important stuff, bury the boilerplate – the stuff everyone already expects (e.g., everyone tracks visitors using web bugs, this is not a surprise to most users). Answer the customer’s most burning questions clearly and you’ll implicitly be conveying that you acknowledge what the customer really cares about. That sounds trust-building to me. If your privacy practices, when disclosed upfront, turn a customer off – then imagine how they will feel if they sign up, use your service, and then find out about it later?

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22
Dec 10
Wed

London Review of Books on the topic of Bed Bugs

LROB writes about one of the hotter pop topics of 2010: bed bugs. I found this part to be somewhat amusing:

The landmark case this century has been Mathias v. Accor Economy Lodging Inc. The plaintiffs, Burl and Desiree Mathias, were bitten by bugs while staying at a Motel 6 in downtown Chicago. They claimed that in allowing guests to be attacked by bedbugs in rooms costing upwards of $100 a day, the defendant was guilty of wilful and wanton conduct. The jury awarded each plaintiff $5000 in compensatory damages and $186,000 in punitive damages. The defendant appealed, complaining primarily about the level of the punitive damages, but the appeal court judge, Richard Posner, dismissed the appeal. His decision was bold: a Supreme Court statement had been made not long before that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

The “lower than 10x” rule of thumb was laid out in State Farm.

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1
Dec 10
Wed

An incubator blacklists a law firm

TechCrunch reported that The Founder Institute blacklisted Gunderson Dettmer, a reputable VC-focused law firm for having:

caused problems for Founders around the country. In New York, Gunderson has told Founders that Class F stock hurts entrepreneurs and allegedly spread negative rumors about other law firms to secure clients from the program. In San Diego, associates at Gunderson billed Founders for cosmetic changes to template agreements that have been accepted “as is” by dozens of lawyers from other firms across the country. In the Bay Area, Gunderson billed multiple rounds of cosmetic changes to standard investment agreements that caused at least one Graduate financing to fall apart needlessly. The Institute has contacted various attorneys at Gunderson and had unsatisfactory responses.

I’ve never had any dealings with Gunderson (apart from hearing one of their partners present about the firm once), but I was still happy to see below the TC article a real flood of comments from clients and former clients expressing how much of a great experience they had with them. E.g:

In fact, GD single-handedly saved our Series B financing deal with a heroic, creative, out-of-the-box solution on a midnight “party line” call with 2 VC firms, 2 law firms, and 2 founders. Additionally, in a handful of other separate cases, GD has generously done me a number of favors (some gratis) that has helped minimize if not eliminate costs and friction.

I’m a bit surprised by the experiences depicted by FI as my take on GD is consistent with other founders’ experiences that I’ve heard and I’d be happy to share more with anyone who contacts me directly. My guess is that, much like any firm (i.e. VC, accounting, etc), what really matters are the people you work with and I can vouch for every attorney I’ve worked with at GD.

I guess the two things here are: when evaluating whether to pick a firm, solicit multiple opinions; and often it’s the particular partner you work with rather than the firm you work with (although the higher caliber the firm, the greater the chance that the partner you get, if picked at random, is going to be a gun).

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23
Nov 10
Tue

Legal industry notes

LawRiot’s notes from the 2010 National Asian Pacific American Bar Association Convention:

On Hiring, Reading Your Resume:
(1) Where you went to law school matters most
(2) Then they look to where you went for undergrad, any other grad degrees
(3) Then they look at your grades and activities (don’t bother writing Moot Court if you didn’t win any external competitions, it carries little weight without some standardized method of ranking)
(4) Then they look at experience, especially technical experience if patent-related position sought

It’s troublingly fascinating that the brand name of not only your law school, but also your undergrad school, appear to outrank how well you actually did at law school when lawyers consider who to hire.

Biglaw bonus season has started, and with Cravath having announced yesterday (and Skadden having matched today), it will be as anemic as last year. Which can only be an almighty kick in the face for those that billed in the high 2000s (or more), because profit per partner figures are expected to rise from the nadir of 2009 and bonus compensation at most biglaw firms is lock-step.

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22
Nov 10
Mon

Another TSA backscatter machine story

This story’s a good one. The TSA is making US citizens pass through the backscatter machine on re-entry into their own country. Obviously the TSA didn’t think this through thoroughly enough. You can’t deny a citizen re-entry into his or her own country, which means you can’t really deny them re-entry if they don’t step through the machine. Otherwise you’re looking at false imprisonment. The most the cops can do is arrest someone for walking through without going through the machine, but that would pre-suppose that there is a law which requires people to follow the TSA’s instructions on that – and for that law to be constitutional. This led to this scenario:

This new line led to a TSA security checkpoint. You see, it is official TSA policy that people (both citizens and non-citizens alike) from international flights are screened as they enter the airport, despite the fact that they have already flown. Even before the new controversial security measures were put in place, I found this practice annoying. But now, as I looked past the 25 people waiting to get into their own country, I saw it: the dreaded Backscatter imaging machine.

Now, I’ve read a fair amount about the controversy surrounding the new TSA policies. I certainly don’t enjoy being treated like a terrorist in my own country, but I’m also not a die-hard constitutional rights advocate. However, for some reason, I was irked. Maybe it was the video of the 3-year old getting molested, maybe it was the sexual assault victim having to cry her way through getting groped, maybe it was the father watching teenage TSA officers joke about his attractive daughter. Whatever it was, this issue didn’t sit right with me. We shouldn’t be required to do this simply to get into our own country.

So, since I had nobody waiting for me at home and no connecting flight to catch, I had some free time. I decided to test my rights.

  9:58pm  •  Law  •  Tweet This  •  Add a comment  • 
7
Nov 10
Sun

One very driven plaintiff

Here is a case brief for a case, Young v. Facebook, that has its origins in the following facts:

Plaintiff took offense to a certain Facebook page critical of Barack Obama and spoke out on Facebook in opposition. In response, many other Facebook users allegedly poked fun at plaintiff, sometimes using offensive Photoshopped versions of her profile picture. She felt harassed.

But maybe that harassment went both ways. Plaintiff eventually got kicked off of Facebook because she allegedly harassed other users, doing things like sending friend requests to people she did not know.

When Facebook refused to reactivate plaintiff’s account (even after she drove from her home in Maryland to Facebook’s California offices twice), she sued.

Twice. That’s over 15,000km of driving. If I had no other facts apart from the above, I would put money on the defendant winning. And of course, it did.

Most of the claims made by the plaintiff are pretty wild, but the case does have some interesting remarks which have implications for terms of use and especially those which purport to give service providers the right to terminate service for any reason (California law implies a duty of good faith and fair dealing into contracts).

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21
Oct 10
Thu

Anonymizing data by removing enough personal information

Rapleaf has an informative blog post about how to more effectively anonymize personal data.

Notice the new interest categories. Specifically, take a look at that bottom record: a 56+ year-old man who enjoys Twilight, knitting, and Motocross. In the dataset, there aren’t any other records that look like him. Furthermore, if we were given just that set of attributes, we’d be able to tie them back to that specific record. Even though each individual attribute is non-identifying, the dataset is no longer anonymous.

The goal of Anonymouse is to selectively exclude data from the cookies we drop so that our users are sufficiently indistinguishable. We define “sufficiently indistinguishable” using the notion of k-anonymity. A dataset is k-anonymous as long as every record in the set is identical to no fewer than k-1 other records. We can therefore think of a k-anonymous dataset as consisting of clusters of records, or equivalence classes, of size k or greater.

Furthermore, we wouldn’t just like to k-anonymize the dataset; we’d also like to maintain as much valuable data as possible.

  10:35pm  •  Computing  •  Law  •  Tweet This  •  Add a comment  • 
9
Oct 10
Sat

Embedded lawyering

Alexander Macgillivray, Twitter’s General Counsel, on the role of in-house counsel at a startup:

I think one of the biggest challenges any lawyer has in any situation is the horrible reputation that every other lawyer has created for us.

So what I think a lot about is how do you have the lawyers create value and be part of the company? And that’s everything from superficial things – like I throw a happy hour every 2 weeks where I buy the booze and invite the whole company to come, right? Just so that they have some interaction with lawyers that isn’t us telling them “no.” And similarly it’s being very open. We have open office hours and we do lots of meetings with teams.

Less superficially what it means is that the way I think about lawyers is that they ought to be embedded in teams as early in the process as possible and they ought to view their job as just like any other startup employee as contributing to the user benefit that we’re bringing. Which means that I expect my attorneys to actually contribute product ideas if they have them. To talk about things that are silly not because of legal issues, but because they are plain silly. And I find that that type of engagement with product means that you understand a whole lot better what the product is actually trying to accomplish, which means rather than being a sort of approved, disapproved, stamp on a plan, you can actually impact the plan itself, which is a much better position to be in. And, more than anything else, you may even be able to say to somebody, “Hey, the way you’re planning on implementing – not great from a legal perspective, but you could get even more user bang for the buck by doing this other thing that is also a lot less risky from a legal perspective.”

So to me—and I actually created a group at Google, Product Counsel, that’s now being implemented in some other companies, and that whole purpose of that group was to make sure that we were sort of embedded in the sort of press and wrap [unintelligible] with product teams, so that we were a part of those teams, and we could be more useful to those teams than just, you know, stamp “approve” or “not approve.” And I think that’s really important particularly around where the legal and ethical issues join, where you’re also often looked at in a startup environment, as a lawyer, as being part of the ethical backbone of the company. So making sure that you actually have a voice heard in the development process is extremely important.

Macgillivray manages the User Communications Team (4 people), the Trust and Safety Team (22 people), and the Government Relations and Legal Team (4 people) at Twitter. This is an excerpt from a talk he gave at Santa Clara University on October 6.

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4
Oct 10
Mon

Some questions arising from The Social Network

In The Social Network, Eduardo Saverin, Facebook’s slighted CFO gets his shareholdings diluted from about 35% all the way down to 0.03%, while the other shareholders maintain their holdings in proportion. I have a reasonable understanding about how VC investment works, but I didn’t understand how this was possible. Others have wondered the same thing.

In reality (if you believe what was reported by Gawker), Saverin appears to have been regarded by Zuckerberg to have been holding up the progress of the business. To reduce the influence on company affairs that came with a shareholding as substantial as Saverin’s, Zuckerberg incorporated a Delaware Corporation (as happened in the movie), which then acquired the outgoing Florida LLC. Saverin was simply given less shares in the new corporation. Litigation and Trial writes that if this was the case, it was a “blatant violation of fiduciary duty and a blatant act of minority shareholder oppression”. The problem can be kind of solved by a shareholder ratification of the action, but are we really to believe that Saverin would have just signed off on something like that? (It seems like he really did make $300k betting on futures, so he surely would’ve been able to get legal advice on the deal.)

Anyway, post-settlement, Saverin owns about 5% of the company, making him a billionaire.

Litigation and Trial also writes an interesting article about why Zuckerberg won’t sue for defamation.

And moving off the legal issues, Jezebel questions the unflattering portrayal of women in the movie.

Random trivia: apparently, where I sit at work now is about 5 metres away from where Zuckerberg used to sit (a couple years ago when Facebook was still in downtown PA).

  8:54pm  •  Law  •  Movies  •  Tweet This  •  Add a comment  • 
21
Sep 10
Tue

What happens if you refuse to answer an immigration official’s questions?

Paul Lukacs, a US citizen, flies back into the US and, exercising his Fifth Amendment rights, refuses to answer any of the immigration officer’s questions. He is detained for about 90 minutes and then released. He blogs about it. The blog post receives many comments after appearing on BoingBoing and other sites. He answers the comments en masse.

Why were you in China?” asked the passport control officer, a woman with the appearance and disposition of a prison matron.

“None of your business,” I said.

Her eyes widened in disbelief.

“Excuse me?” she asked.

A few observations from me.

1. A lot of people criticizing Lukacs point out that although he is within his rights to do this, it’s disrepectful to the customs officer (who’s just doing their job) and other passengers (who are delayed). These are all valid points, but I must admit it is heartening to know that the system works. It’s no good having a right if you can’t exercise it. The ability to exercise a right with pragmatic results is as important as having the right itself.

2. If you don’t know what you’re doing, you’re playing with fire. Sure, you have a right against self-incrimination, and you can’t be convicted for merely exercising that right. But there seem to be all these laws floating around these days which allow the government to detain people without charge for a short period of time (I think the US is maximum 24 hours? Sixth Amendment/habeus corpus etc.). One misstep and you could have caused yourself much more trouble than it was worth.

3. Don’t try this in other countries. I’ve heard Japan can detain for up to 23 days without charge, and without access to a lawyer or the proverbial phone call. (How scary is that?)

4. A country can’t prevent a citizen from re-entering his or her own country. Citizenship is regarded as a basic human right, and as part of this right, is the right to enter the territory of your country. Statelessness can leave someone in legal limbo, and there are more problems with this than you might initially think.

  9:24pm  •  Law  •  Tweet This  •  Add a comment  • 
13
Sep 10
Mon

No garage sales of software

The Ninth Circuit just ruled that, if a software license has the right clause, software is licensed rather than sold, even when you buy it in a box on physical media. This means you can’t onsell the product because you don’t actually own anything. (Unlike books, where the copyright first sale doctrine protects buyers against getting sued for selling their used book.) This might also mean that it’s illegal for companies like GameStop to run their used computer game selling business.

The case is Vernor v. Autodesk, and it involves Timothy Vernor, who bought four copies of Autodesk AutoCAD at a garage sale and then tried to resell them on eBay. Autodesk threatened to sue Vernor for copyright infringement. Vernor instead filed a suit asking the court to clarify his right to resell the software.

The EFF comments:

But the potential effects of this decision don’t stop there: it risks creating a situation in which violating contracts and end-user license agreements (EULAs) could result in a copyright infringement lawsuit (with the heavy club of statutory damages, attorneys fees and low standards for injunctions) rather than just a simple breach of contract claim.

We understand Mr. Vernor may seek en banc review of this decision, which means the entire court will hear the case and could reverse this dangerous ruling. We hope that the court agrees to review the case and treats it as an opportunity to put consumer rights and expectations ahead of the overreaching demands of software vendors.

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30
Aug 10
Mon

Email customs

Signs you’re dealing with an American lawyer: mixed punctuation (use of commas or colons in conjunction with salutations and commas with valedictions, letters in abbreviations separated by periods); use of “Best”, “Best regards”, “Sincerely”, “Yours truly” as valedictions.

Signs you’re dealing with a British/ANZ lawyer: open punctuation (no commas used after salutations and valedictions, abbreviations don’t have fullstops); use of “Regards”, “Kind regards”, and “Yours sincerely/faithfully” as valedictions.

However, the choice of valediction is more indicative than the punctuation style used.

  10:47pm  •  Law  •  Tweet This  •  Add a comment  • 

The patent system is broken

Larry Downes writes about Paul Allen’s recent patent suits in When a Patent Troll is an Enigma. He also has a great summary about what is so wrong and broken about the patent system.

The result has been the creation of a shadow patent examination process through litigation. The grant of a patent is no longer the final step, in other words. The de facto examination really takes place when the holder tries to enforce the patent against an alleged infringer, and the defendant claims invalidity of the patent as a defense. When such cases go to trial, which they rarely do, a jury of laymen are then tasked with doing the work avoided by the patent examiner.

In effect, the patent office has outsourced its job to the judiciary and in particular to a jury of non-experts. If nothing else, that is a feature of the modern system that absolutely no one is happy with, or in any event that no one can justify.

It also needs to be emphasized that patent infringement (as opposed to copyright infringement), need not and indeed rarely does include any suggestion of “theft” or other hint of immoral conduct. Most patent infringers do not copy the work of another inventor—they create their own innovation independently, often completely unaware of the existence of the relevant patents or pending applications. The broader the patents that are granted, of course, the more likely coincidental or seemingly “innocent” infringements are to occur. From a legal standpoint, however, ignorance of existing patents is no defense.

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29
Jul 10
Thu

Show me someone who wants to work long hours and I’ll show you…

FirmSpy excerpted a few parts from this year’s AFR (Law) Partnership Survey. The first one caught my eye:

Third year Maquarie University law student Tanja Maley says she hopes to become a partner in a top commercial firm, and everything else – family included – can follow. “I want a fast city life and I want the long hours”, she says. “I don’t think I’d be satisfied if I wasn’t challenged in that respect.”

Uh… “I want the long hours” and “I don’t think I’d be satisfied if I wasn’t challenged in that respect”? Do third year uni students really think that? Scary.

I dunno. These are the people that end up doing doc review for 80 hours a week. Whatever happened to being intellectually challenged but still striving to maintain some semblance of work/life balance? After all, that tax associate who leaves at 6 is getting paid more or less the same as the M&A dude who leaves at 6… am. If you really want to work those hours, then at least do it in a country which pays you more reasonably than Australia.

  7:05pm  •  Law  •  Tweet This  •  Comments (1)  • 
24
Jun 10
Thu

Dr. Lawyer, Esq.

Someone has started a Facebook group to try and get lawyers addressed as doctors (because a JD stands for Juris Doctor, in the same way MD stands for Medicinæ Doctor). Here’s a tip: if you’re a lawyer and you insist on people addressing you as “Dr.” even the dentists (who have been trying to get the same appellation for years) will think you’re a tosser… unless you actually have a “real” doctorate like 99% of German lawyers seem to have. If you use “esq.” people will also think you’re a tosser. So don’t.

Interestingly, the ABA is fine with this:

Less than a year later, however, the ethics committee reversed course in light of the newly adopted ABA Model Code of Professional Responsibility. Disciplinary Rule 2-102 permitted a J.D. or LL.M. (master of law[s]) recipient to use doctor with his or her name, the committee concluded in ABA Informal Opinion 1152 (1970).

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8
May 10
Sat

Facebook’s gradual relaxation of privacy, visualized

This is a great visual representation of how privacy settings have defaulted on Facebook over the last few years. If you set up your profile today, you have to curate your data a lot more.

And today:

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6
May 10
Thu

The US legal job market still sucks

The Wall Street Journal reports on just how shit the legal job market is for grads in the US. Still.

The situation is so bleak that some students and industry experts are rethinking the value of a law degree, long considered a ticket to financial security. If students performed well, particularly at top-tier law schools, they could count on jobs at corporate firms where annual pay starts as high as $160,000 …

Students take on average law-school debt of about $100,000 and, given the job market, many “have no foreseeable way to pay that back,” he said.

Thomas Reddy, a second-year student at Brooklyn Law School, hasn’t landed a summer internship yet after sending resumes to more than 50 law firms. He is taking on about $70,000 of debt each year of the three-year program to earn his degree, but said he may be fortunate to make $80,000 a year in a lawyer job after graduating. “That is less than what I was making before I went to law school,” he said.

Ouch. The market was terrible last year when I was in school, but it doesn’t seem to have improved this year. It turns out that getting a law degree in the US can be a terrible investment. If you don’t get a job, it’s not even something you can sell. JDs from schools in the lower tiers are comparable in cost to T-14 JDs, yet the probability of employment at graduation is substantially less. Is it really worth it?

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4
May 10
Tue

Transactional attorneys as coders

Alex Macgillivray, Twitter’s GC, has a post on what makes a transactional attorney’s job difficult. Glad I’m not the only one who has compared drafting contracts to writing code (people look at me funny when I draw that analogy). Law is, after all, codified in “codes”.

There is a lot of joy in making a deal work and thinking of creative solutions to disagreements but the job is also VERY tough. To put it in computer terms, imagine the contract as a computer program. In each the object is to be able to interpret the words and have that interpretation drive a result. Now imagine that there is no compiler for your program and that you can’t run any tests. All debugging must be done only theoretically and in your head. Imagine that you are coding with another person that is likely to be trying to develop a program that does something significantly different from what you want it to do. You and the other programmer may have different time constraints and, even though you are trying to do different things, you have to be on good terms with the other person because she could just as easily decide to stop working on your project. You and the other person take turns editing the code but without a common coding environment or standard tools to figure out whether the other person (or you) goofed it up. Then imagine that the code you are writing has a high probability of only ever being “run” through two different interpreters with significantly conflicting points of view about desirable outcomes and you likely won’t get to see the result of any of these “runs.” Or you may be asked to interpret the code in light of complete changes in context. Include a small chance that your code will be “run” by a relatively unbiased interpreter but the outcome of that one interpretation will be at extremely high stakes, often millions of dollars. Finally, know that you will likely get little credit for writing good code but will be crucified if the one time your code is run it doesn’t work flawlessly. Now you are beginning to understand how hard the job of a good transactional attorney is.

I can safely bet that those developers across the room from me don’t think of me as writing code when I’m hammering out a licensing contract…

Microsoft Word is my IDE. We have spell check, which is our rudimentary syntax checker, but no automatic semantic analysis tools, no way of test running it through an interpreter to pick up runtime errors. And no instant gratification from hitting the “run” button and watching it just work. (But it is pretty nice putting pen to paper and signing an agreement. Incidentally, we also call it “executing” an agreement… in much the same way that .exe files are compiled, executable files.)

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27
Apr 10
Tue

Conference

Just booked myself in for the E-Commerce Best Practices Conference at SLS. Looking very forward to it – should be very interesting! Most of the topics there are pretty much the areas of law that I deal with on a day-to-day basis at work. I might liveblog some of the talks, actually.

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26
Apr 10
Mon

Some comments on the Gizmodo search warrant

You probably heard about the lost iPhone 4G incident from a couple weeks ago. The phone was found by an anonymous person, and then apparently sold by that person to Gizmodo for $5k. There was speculation about whether Gizmodo was breaking the law by knowingly buying stolen goods – a criminal offense.

The debate was mostly academic until last Friday, when police obtained a search warrant, broke down Gizmodo editor Jason Chen’s door, and made off with several computers.

I don’t know much about the details of criminal law, and I know only a smattering of free speech law, but the warrant incident is an interesting one. It’s been particularly interesting reading the informed and not-so-informed comments on blogs over the last few days. From what I gather, there’s a journalist shield law which prevents search warrants from being issued to confiscate a journalist’s property. The rationale behind this law is for journalists to be able to protect the anonymity of their sources (an aspect of free speech). There is some question about whether the Gizmodo blogger is a journalist, but based on my general knowledge, I think that the answer is most likely that he is. Less clear is whether the warrant was issued validly if the police were investigating a felony. DF thinks that a journalist only loses their shield protection only if they are the target of the investigation. My common-sense check against this is to ask, if a murderer had sold the murder weapon to a journalist (gun, knife, whatever), would the shield law still protect the journalist from having to cough up the weapon? (I don’t know the answer to this, but it may affect your knee-jerk response to the question, and there have been a lot of knee-jerk responses in the blogosphere.)

My guess is that the DA will eventually drop the matter without laying charges. I think there is enough ambiguity over the issue, and too much of a spotlight for the DA to risk bringing a case it might lose – which only exacerbates public opinion which already hasn’tl looked too kindly on the very dramatic we-broke-down-your-door-and-searched-your-house-for-hours-while-you-were-out-at-dinner incident. But it would be interesting to see where this came out if it did go to trial.

Some other background points. My understanding is that this is a criminal investigation being undertaken by the police, who report to the district attorney (a government prosecutor) who then determines whether to charge someone with a crime.

As a criminal matter, Apple is not directly involved in this decision. While Apple may have referred the matter to the police, it is the DA who has the discretion whether or not to proceed with laying charges. Even if a crime may have been technically committed, police sometimes exercise discretion not to do anything about it (think about a waived speeding ticket). The DA will evaluate things like public policy (if this sort of behavior turns out to be illegal, bring charges against Gizmodo will send a message to people in similar circumstances of what they shouldn’t do), likelihood of success (the legal issue apparently isn’t cut and dried), etc.

If Apple wanted to sue for the original “theft”, they would probably do it under the tort of conversion as set out under California law. I had the requirements for conversion memorized less than 10 months ago, but I’ve totally forgotten them now.

Anyway, for a more informed opinion, this is what Jennifer Granick at the EFF had to say about it (she co-taught my Net Law class last year). It would be interesting if Chen turned around and sued the state (subject to any applicable immunity laws).

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Can you disappear in surveillance Britain?

The UK apparently ranks 3 in the world, behind Russia and China, for societal surveillance. David Bond tried to disappear off the grid for as long as he could and hired a couple of private investigators, armed with only his name and photo, to hunt him down. A sort of PG-rated version of The Running Man (the book, not the movie), and also reminiscent of Wired writer Evan Ratliff’s attempt to go dark. The aim for Bond was to produce material for a documentary, but the experience drove him a little bit nutty in the process.

Before going on the run, he made 80 formal requests to government and commercial organisations for the information they held on him. He piled the replies on his floor, appalled by the level of detail. The owners of the databases knew who his friends were, which websites he’d been looking at, and where he had driven his car. One commercial organisation was even able to inform him that, on a particular day in November 2006, he had “sounded angry”. It was more than he knew himself.

Incidentally, he was tracked down quicker than Ratliff, but only because he went to see his pregnant wife who needed to go to the hospital.

Stuff like Facebook is not so bad, actually, because you still have control over what you disclose and how to disclose it. However, it’s the stuff that’s collected about you that you don’t know that is scary. Incidentally, that includes Facebook, which tracks virtually every mouseclick and thing you do on their site (and now with Open Graph, things you do on others’ sites as well). Their privacy team must be mighty busy, but it’s gotta be really interesting work as well.

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25
Apr 10
Sun

A lawyer called Hotman

The NY Times has an article on the improbably named Hotman Paris Hutapea, a high profile Indonesian lawyer:

In a country where bribes play an integral part in the legal system, where attorneys and judges usually hide part of their wealth to deflect unwanted attention, Mr. Hutapea has never denied gaming the system. On the contrary, he has reveled in his success by wearing fat diamond rings and carrying, until laws changed a couple of years ago, a gun in a hip holster. His office buildings here are adorned with signs that scream in big, bold letters: HOTMAN PARIS.

He is a regular on television gossip shows that link him to one starlet or another. Colleagues may prudently choose to drive conservative cars, to court at least. But Mr. Hutapea hops into his new red Ferrari California — the first one sold in Indonesia, for $630,000 — and parks it right in front of court buildings. To his critics, the car and its owner are a prime symbol of the cancer infecting the legal system; to Mr. Hutapea, the Ferrari amounts to an honest acknowledgment of the system’s imperfections.

“If I say I’m a clean lawyer, I’ll be a hypocrite, that’s all I can say,” he said. “And if other lawyers say they are clean, they will go to jail, they’ll go to hell.”

You may remember that Hutapea was on the defense team for Schapelle Corby when she was busted for trafficking weed in Bali, 5 years ago.

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16
Apr 10
Fri

Mallies Summer Clerkship Video

As featured on ROF and Firmspy, this year’s batch of Mallesons summer clerks put together this for the annual clerk video:

Normally these videos are pretty decent, but this one is totally cringeworthy. So they obviously can’t rap. But they can’t proofread either: they misspelled the firm’s name at 0:37. They also seemed to have not-so-subtly ranked all the big Aussie firms into a Vault-style top 15 list. Hmmm…

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31
Mar 10
Wed

Imply nepotism, get sued

The New York Times has paid  S$160,000 to settle a suit after Lee Kwan Yew, Lee Hsien Loong, and Goh Chok Tong threatened to sue it.

Last month, The Herald Tribune, wholly owned by the Times Company, published a column by Philip Bowring that referred to “dynastic politics” and listed the leaders of many countries, including Lee Hsien Loong, the prime minister, and his father, Lee Kuan Yew, a former prime minister.

The implication of nepotism did not please the Lees, and they went down the familiar route of threatening to sue – for libel, I’m guessing.

There is a bit of history behind this matter, reaching back to a similar incident in in 1994. Above the Law has a good summary of the event.

The Singaporean government obviously hasn’t lost its touchiness about being criticised. Given how long Singapore has been a developed economy, I wouldn’t hold out for China changing its current stance on censorship and free speech in a hurry. There’s no guarantee that economic development will mean a shift towards western socio-political values.

Sidenote: The three elder statesmen were represented by Davinder Singh SC. The last time I was in Singapore, I was told that he is a barrister that people have nicknamed the “Nuclear Weapon”. Incidentally, Wikipedia mentions that Singh won the Jessup in 1992, and all his teammates are now judges and/or SCs.

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9
Mar 10
Tue

The William Rehnquist you didn’t know

The ABA journal has an interesting article about the late Chief Justice Rehnquist.  I’m not sure I could picture what a CJ’s weekend would look like, but in any event, this wasn’t it.

Bill’s loneliness after the death of his wife, Nan, in 1991 was apparent to anybody who saw him regularly. He did not try to hide it.

At our Sunday morning tennis games, I could tell that Saturday nights were the loneliest of the week for him. After routine greetings, he would almost always ask what my wife, Betty Nan, and I had done the previous evening. I would describe a typical suburban couple’s Saturday night (dinner with friends, neighborhood party, movies, a charity event, etc.). Bill would then sometimes tell me about a quasi-official party that sounded glamorous but that he found tedious. More often he would describe a dinner of hot dogs, canned vegetables and ice cream followed by an evening with the TV remote. (For more than a dozen years he prepared most of his own meals, but he always considered cooking a chore, rather than a creative pleasure.)

Quite sad, but very human. It turns out that the Chief Justice loved to bet, as well:

Betty Nan, Bill and I began betting on elections shortly after the death of Bill’s wife, Nan, in 1991. In the beginning, it was simple. We each bet $1 on one or two close races, shook hands and paid off the next time we had dinner together. But in a few years, without deliberate planning, the scope of our betting expanded. The money involved remained insignificant. The wagering terms, however, became complicated. On some Election Days we each wagered a dollar on two dozen or more individual races. To add complexity and variety to our game, we changed the terms regularly. Sometimes we simply chose a winner. More often we wagered on spread, voter percentage or by what percentage each party would win in a legislature.

After our election cards grew lengthy and complicated, it became necessary to record our bets in writing. Conversation on movie dates during October often focused on how we would organize our betting cards for an upcoming election. The arrangement by which we exchanged our picks was efficient and easy. Betty Nan and I faxed our selections to Bill’s secretary and, after receiving our choices, she faxed Bill’s to us. This allowed the bettors to keep their choices secret.

I had some reticence about using the chambers of the chief justice of the United States as a betting parlor. But when I questioned Bill about it, he brushed me aside. “Janet loves being part of all this,” he explained.

Full article is here.

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Like bumps on a log

A while ago I linked to a video of Obama slagging off the Supreme Court at the State of the Union address in front of several of the Court’s judges. Chief Justice Roberts, speaking at the University of Alabama, has just commented on it:

Responding to a University of Alabama law student’s question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions.

“So I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum.

“The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.” …

Roberts told the students he wonders whether justices should attend the speeches.

“I’m not sure why we’re there,” said Roberts, a Republican nominee who joined the court in 2005.

Justice Antonin Scalia once said he no longer goes to the annual speech because the justices “sit there like bumps on a log” in an otherwise highly partisan atmosphere. Six of the nine justices attended Obama’s address.

The full article is here.

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26
Feb 10
Fri

Philip Howard at TED on Four Ways to Fix a Broken Legal System

It’s not often you see a corporate lawyer getting a standing ovation, much less seeing one at TED getting a standing ovation. Philip Howard, a partner at Covington & Burling, gives a compelling speech about a 4-pronged approach to fixing a society paralyzed by CYA-syndrome.

However, as important as identifying the right course of action is, the trick is, as with so many things, in the execution. The legal system is something which is ingrained in the very culture and fabric of a society – consider that in the US, there is reportedly 1 lawyer per 250-350 people, but in Japan there is about 1 lawyer per about 8,200 people. It’s not because no one wants to be a lawyer in Japan (on the contrary, bengoshi are highly respected, and until recent years, bar passage rates were at the 2-3% mark), it’s because the Japanese handles disputes differently to Americans (and that’s what the legal system is – a dispute resolution mechanism of last resort). Now that I think of it, it might also be the reason why the Japanese can get away with things like this. Accordingly, widesweeping change to the legal system comes neither easily, nor quickly. It either happens gradually, or if it happens quickly it’s in response to a crisis. Still, nothing wrong with daring to dream.

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Copyright footers – what do all those words mean?

I was thinking about copyright footers the other day (…yes, I know). They’re the little notes you see at the bottom of webpages with the © sign. You may have already heard somewhere that the © sign doesn’t really mean anything – it denotes that something is copyrighted, but it doesn’t normally need to be there in order to copyright something.

This is because copyright automatically attaches to copyrightable material as soon as it is authored. Historically, some countries required the copyright symbol to be affixed to stuff before copyright would subsist in it, but countries which signed up to the Berne Convention (most of the world) abolished this requirement.

However, if you look around the web, you’ll see copyright footers are still ubiquitous and come in a variety of different forms, for example:

© 1996-2010, Amazon.com, Inc. or its affiliates

© 2010 Twitter

Facebook © 2010

© 2010 YouTube, LLC

©2010 [on Google.com]

Copyright © 1995-2010 eBay Inc. All Rights Reserved.

© 2010 Microsoft

Copyright © 2010 Apple Inc. All rights reserved.

Copyright © 2010 Yahoo! Inc. All rights reserved.

© 1996-2010 Morrison & Foerster LLP. All rights reserved.

©2003-2010 Fenwick & West LLP

You’ll notice that there are several variations. Some include “All rights reserved.” Some include the company’s common name (eg, Microsoft), and others the company’s full legal name (eg, Yahoo! Inc.). Some include the word “Copyright”, and they all include a year or a date range, although I have also seen notices without any date.

So, if all of this is unnecessary, why bother at all? The notices do serve one useful purpose: to give notice (duh).

Copyright notices alert viewers that they are looking at copyrighted material, which is owned by someone else. So if a viewer wants to do anything with the material which encroaches on the owner’s (intellectual) property, they should get permission first. The notices are there for the same broad reason supermarkets put up signs saying “Slippery floor” with a little picture of man in the process of stacking it – to inform passers-by. Also, to continue the analogy, the floor is wet without or without the sign – putting the sign up doesn’t make it so. The other reason is that it’s common practice. It’s almost like a social convention. We see that little circled C everywhere, so the web designer thinks it needs to be included and up it goes.

But what does all the other gunk mean?

The company name is useful in identifying who is asserting ownership the copyright. It lets people know who to approach to ask permission. A full legal name gives you the exact identity of the owning company. A “common name” may lead to a bit of uncertainty, especially in corporate groups, where there are a bunch of related subsidiaries (for example, does Microsoft mean Microsoft Corporation, or Microsoft Licensing, GP, or even some other Microsoft company in a totally different country?). If you’re Twitter Inc., however, and you only have one company, then there’s little possibility of incorrect identification if you just say Twitter. (Actually, I have no idea whether Twitter has any subsidiaries or holding companies.)

Spelling out “Copyright” appears to be completely superfluous. I imagine it’s there just by convention.

The date normally identifies when the copyrighted material was first published. Copyright has a shelf life. Normally it’s linked to the publication date on one end and the lifespan of the author, plus a period of years, on the other (so the author’s great-grandkids can keep collecting royalties long after great-grandma has kicked it). In the US, the copyright term keeps getting extended, mainly to protect Mickey Mouse. Corporate authors get a fixed term too.

I’m not sure why some companies use a range of dates, but it’s probably to indicate that the website contains a variety of material published on different dates. It also can be used as a subtle marketing tool to show roughly how long the company has been around (1995 for eBay, circa 1996 for Amazon).

The term “All rights reserved” has a bit of history behind it. Apparently, it was a product of the 1910 Buenos Aires Copyright Convention, which was a treaty between the US and various Latin American countries, containing a requirement that:

“The acknowledgement of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right, in all the other States, without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right”

The “statement that indicates the reservation of the property right” was standardized to “All rights reserved”. Adding those three words ensured that an angsty poet sitting in America, now owned copyright in not only the US, but also in a bunch of Latin American countries as well.

Today, all the Buenos Aires Convention members signed up for the Berne Convention, which deems that all rights are automatically reserved, unless a statement is made otherwise. This rendered the words “all rights reserved” irrelevant yet they are still everywhere. Like elevator door closing buttons.

You may notice that it’s phrased as “all rights” (plural). This is because copyright is actually a general term which encompasses a bundle of rights which can be split up and individually manipulated. This bundle differs depending on the medium of the material. For books, for example, there is a distribution right, a reproduction right, a right to publicly display the work, a right to publicly perform it, and so on. The exact bundle of rights also differs between different countries. Countries also differ in what they allow to be copyrighted (although the Berne Convention requires all its members to permit copyright for certain types of subject matter, like “literary works”… although countries quibble when they differ in their interpretation of what a “literary work” is).

You may also notice that some people play around with those three used-to-be-magic words. Creative Commons uses the phrase “some rights reserved”, which is an accurate characterization of the copyright status of material licensed under a CC license. People who wish to assert less than complete pwnage of their intellectual property also use the term “copyleft” as a descriptor.

Work released directly into the public domain (ie, where the author has relinquished their copyright) sometimes uses the tongue-in-cheek designation of “No rights reserved”.

The Berne Convention effectively abolished formalities (like adding a © symbol) as a condition for copyright protection. This position has annoyed certain companies and certain academics who argue that this blanket application of copyright, even for drivel, long lost forgotten works, and even Tweets*, is stifling the flow of information in society. Sometimes we can’t use copyrighted material because the author is uncontactable, or dead, or whatever, and the would-be user can’t get the requisite permissions. One proposed solution is to make people register certain works before they receive copyright in them – the registration process is a “formality”. But I am digressing now.

Finally, the word order in the notice doesn’t really matter, except for readability purposes. You could conceivably write: “All rights reserved. Your Mum (C) 1980, 1982-2010. Copyright.”

Ok. I think that’s my cue to end now.

* A recent blog post by Zeldman boldly declares that Tweets are not copyrightable. I personally disagree. As does Arment, who also makes a oft-argued (if flawed) point about people abusing the DMCA take down notice procedure rendering the issue of whether something is really copyrightable, moot – at least in the online environment. Bill Bonk has written another legal analysis on whether Tweets are copyrightable and I think his conclusion is spot on.

† Thanks to Daryl and Hugh for their input on this post.

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23
Feb 10
Tue

What does Victoria’s Secret have to do with financial information privacy?

The Gramm-Leach-Bliley Act contains provisions aimed at protecting the privacy of certain nonpublic personal financial information. EPIC explains how a Victoria’s Secret catalog was a catalyst for the enactment of federal financial privacy laws:

Critical support for the Markey Amendment [an amendment to the GLBA which added privacy protections] came from Representative Joe Barton (R-TX). Barton expressed concern that his credit union had sold his address to Victoria’s Secret. Representative Barton noted that he started receiving Victoria’s Secret catalogs at his Washington home. This was troubling—he didn’t want his wife thinking that he bought lingerie for women in Washington, or that he spent his time browsing through such material.

Barton explained that he maintained an account in Washington for incidental expenses, but used it very little. Neither he nor his wife had purchased anything from Victoria’s Secret at the Washington address. Barton smelled a skunk; he reasoned that since he spent so little money in Washington, his credit union was the only business with his address.

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9
Feb 10
Tue

The billion dollar bow

Akio Toyoda, the President of Toyota, recently bowed at a press conference to express an apology in relation to the troubles they have been having with their cars. Bowing is a meaning-filled action in Japan, and the Times wrote a short guide on it:

There is the momentarily-held 10-degrees (gosh, was that your toe I trod on?), the briefly-held 25-degrees (sorry, we’ve run out of tuna) the 2-second, 45 degrees (I know you’re the Best Man, but the flight is cancelled) the 5-second 45 degrees (I’ve just backed over your dog, boss), the 20-second 90 degrees (our widget blinds kids) and the “dogeza” kneel on the floor (evacuate your village, the plant is exploding).

So when Toyoda-san made a brief dip, people criticised him for not being sufficiently contrite. The LA Times suggested this explanation:

But Akio Toyoda, grandson of the founder of the Japanese automaker now battling to save its global image from the stain of safety problems, did not deliver the deeper, longer bow that some expected. Bend too low, hold the pose too long, and Toyoda might have found himself in sticky legal trouble, his ritual of apology construed as a sign that the company accepted its culpability in the mess over all those defects.

Imagine that… a few more degrees lower, a few more seconds longer, and blam!, you’re suddenly up for billions of yen in damages. You wouldn’t want to be drunk when you make that bow.

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3
Feb 10
Wed

iiNet wins piracy court case (Roadshow Films Pty Ltd v iiNet Ltd)

An important Australian case was decided today by the Federal Court. iiNet, Australia’s 3rd largest ISP behind Telstra and Optus, was sued by 34 parties – mostly movie industry companies. iiNet, like any ISP, had customers who were pirating movies (via BitTorrent). Australia’s Copyright Act has provisions which impose secondary liability on people who “authorise” the infringement of copyright. If iiNet was held to be guilty of authorising such infringement, they would be liable as if they had pirated the movies themselves. So, there was a lot on the line for iiNet. This was bet-the-company-level litigation (and, in some ways, bet-the-industry litigation).

In a typically lengthy 600+ paragraph judgment, the Court ruled in iiNet’s favour.  The SMH has a decent report on the case. I’m sure there are academics preparing blog posts which are far more erudite and analytical, but I have excerpted the main points from the summary of the judgment:

[The Issue] This proceeding raises the question whether an internet service provider or ISP authorises the infringement of copyright of its users or subscribers when they download cinematograph films in a manner which infringes copyright. In Australian copyright law, a person who authorises the infringement of copyright is treated as if they themselves infringed copyright directly.

[Reasoning] Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

Notably, even if iiNet was entitled to the safe harbour protections (because it had the “three strikes” scheme of notification/suspension/termination in place), iiNet did not even need to rely on it because it wasn’t guilty of authorising infringement in the first place.

Big win for ISPs – had the judgment gone against iiNet, not only would they all been exposed to a huge amount of liability, but the burdens on them to ensure that this sort of thing didn’t happen again would be weighty indeed.

Two other paragraphs of note are (emphasis added):

This proceeding has attracted widespread interest both here in Australia and abroad, and both within the legal community and the general public. So much so that I understand this is the first Australian trial to be twittered or tweeted. I granted approval for this to occur in view of the public interest in the proceeding, and it seems rather fitting for a copyright trial involving the internet.

That this trial should have attracted such attention is unsurprising, given the subject matter. As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment.

This is, of course, a trial judgment, and the applicants may appeal.

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21
Jan 10
Thu

The Economist reports on professional services industries

This Economist article opens with:

What do you say to a recent law-school graduate?

“A skinny double-shot latte to go, please.”

Ouch.

Though the best will gain at the expense of the rest throughout professional services, the legal profession seems likely to undergo the most profound structural changes. For the first time—long after IT and finance departments went through the same experience—the corporate legal departments that hire law firms are under great budgetary pressure, and are thus demanding much better value from them.

In a recent paper, “The Death of Big Law”, Larry Ribstein, a law professor at the University of Illinois, argued that after decades without changing, law firms are likely to have an outburst of experimentation with different business models: even the venerable and lucrative “billable hour” method of charging clients is in doubt. The experimentation may include more firms abandoning their traditional partnership model to go public, following in the footsteps of an Australian law firm, Slater & Gordon, which went public in 2007.

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9
Jun 09
Tue

BarBri blues

Studying for the California Bar Exam is a drag, to say the least (but I must say the lecturers are all well chosen… quirky, yes, but for the most part entertaining). Anyway, I just got this email which for some reason I found more amusing than I probably should. The workbook in question is well over 1000 pages.

Hi guys,

In case any of you were sick of carrying around the huge in-class workbook
but didn’t want to deal with tearing out the perforated pages one by one
(wasn’t tearing out the answer sheets bad enough?), I thought I’d share this
trick with you:

1. Microwave (yes, microwave) the book for about 2.5 minutes.
2. Pull the pages out one or two at a time. You can do this quickly by just
pinching a corner and tugging, then reaching under for the next page — no
need to move the top pages aside one at a time. The pages should come out
easily and cleanly, at least after the first few.
3. Every 30-50 pages or so, or when you start getting more resistance,
microwave for another 30 seconds.

The key is softening the glue in the binding. Instead of a microwave, you
could also apply an iron to the spine, but I’ve never tried that way, so I
have no further advice. It does save you from dealing with hot pages,
though.

If you are concerned about damaging the book or setting it on fire, I would
recommend experimenting first with the Multistate Primer or Multistate
Preview books.

P.S. This knowledge owes nothing to my science background and everything to
the domestic Japanese comics industry.

Setting your book on fire. Try explaining that one to the fire department. “Yeah, I was trying to microwave my book. I detested BarBri that much.”

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20
Apr 09
Mon

Liveblog: Legal issues for new computer game distribution models

1:53:55pm: That’s all folks. First time I’ve liveblogged anything… difficult to concentrate, and type at the same time without missing points, but easier than I thought if the talk’s interesting (which this one was).

1:53:06pm: User-generated Content. Spore as an example. Is it a service where people can create content? Or like Photoshop, a tool which allows people to create their own IP? Does EA retain any IP rights in content created by users using EA software and using EA-provided content as a base? [We had a whole seminar on this in our Internet Business Law class a few days ago when Lauren Gelman came in] How do you value UGC? He’s mentioning WoW accounts and selling accounts. Waiting for a case to say that users can’t be prohibited from selling accounts. [I think if there’s consumer demand to do it, then the game companies should get into the action instead of resisting it – if people want to trade accounts and there’s a market for it. Don’t push it underground, but provide a marketplace! And skim a commission for doing that…]

1:47:58pm: X-box live points – allow people to use them in EA games? Conversion rate, eg, between Sims points and X-box points? Arbitrage of virtual currency. Guilain next to me is laughing, but it’s real and happening today on virtual currency exchanges.

1:46:56pm: Virtual Currency. What’s the legal analogy for virtual currency. Is it like a stored value card (eg, Starbucks gift card)? If so, then you’re a bank under federal banking regulations. Payment facilitating. [Being a bank subjects you to lots of regulation] Not exactly EA’s core competency, but now they have someone on staff who is a banking law specialist. But not quite Starbucks since you can’t buy anything tangibly… [hmm not quite accurate?] Club Med beads analogy? Swap cash for beads, and use beads within the resort only. Circumvents banking laws by providing a service – the beads don’t store value. [similar to casino chips?] EA trying to pursue the latter model, expects to be challenged about it in the future.

1:43:25pm: Nintendo and Sony don’t permit their game developers to provide EULAs! They have proprietary platforms and don’t want a third party to affect the legal relationship between them and the end user.

1:42:00pm: IP Protection. One of the benefits of streaming games means content only resides on servers. [So a persistent world like WoW can’t be replicated, since you need to access their servers to play. Licensing can be controlled and CDkeys can be verified, etc. Some people have reverse engineered their own persistent worlds, even as far back as the days of Ultima Online, but it’s not the same thing]

First sale doctrine raises some uncertainties as well with streaming content. Another issue is efficacy of EULAs. What terms are enforceable?

1:38:50pm: Revenue recognition. Cash received != revenue recognized. If you sell a boxed game, the accounting is easy. But what if a game’s revenue stream is ongoing? Accrual accounting issues – eg, for money earned but services not yet provided. EA deferred recognition of revenues across entire period because they couldn’t figure out how much of a payment EA had provided products/services for. Eg, Sims 3 will let you buy Sim points for $. You can buy digital content with points. [Same as any other microtransaction business models out there – FB points, etc] How do you recognize revenue arising from these points? Misreporting revenue may result in a securities law violation – resulting in class action law suits which are hugely expensive and SEC investigations.

1:34:07pm: Existing licenses. The new context for distributing games makes the existing licenses majorly outdated. Licensing problems can sink a game – can be hard to remove IP from a completed game. Microtransactions (eg, digital content) has copyright owners thinking how they can get their cut. So these business models are still trying to be figured out.

Bundling arrangements are being considered. Pay EA a monthly fee and you can pay any of their sports games (like a cable channel package). But how do they pay licensees like the NFL, NBA, FIFA, etc.? How do you tell how much a licensee’s content is being used?

1:30:08pm: Talent. So you record voice actors, or short video clips. Talent agreements are relatively uniform to protect lesser known talent. The union acts as the talent’s representative. Agreements normally cover
only offline play. Once the game goes online, EA needs to pay for an “interactive buyout provision”. But these were intro’ed 10 years ago before streaming became a reality. Talent budgets may exceed a million bucks. Might be prohibitively expensive to stream under current licensing agreements, so need to look at different models going forward. But unions are very cautious. Still troubled by when the VCR came out.

1:27:10pm: Soundtracks. When you want to sync it with an A/V work, normally have to seek out two copyright owners – the performance right and the rights in the musical work [although in Europe the performance right isn’t considered a copyright]. But what if you stream it? And it’s not synced staticly with an A/V work in a computer game? Do traditional music licenses even have the capacity to accommodate for usage of the music in async ways? Need to approach collecting societies (for performances) which are scattered around the world raising jurisdictional issues. Dynamic soundtracks are pretty novel in terms of accommodating for them with legal documentation. Canada’s perf rights societies are getting “pretty aggressive” in terms of scoping the rights of their constituents.

1:22:51pm: There’s existing legal regimes for audio licensing and AV works. But games are a leading industry [kind of like the porn industry, right?] due to the non-linear, interactive aspect of things. They’re different to music and movies. No easy business model to fit what EA is trying to do [compared to iTunes I guess].

1:20:57pm: Analogy to internet radio. Legal streaming service for movies – he doesn’t know of any. But what about Hulu? Move to a subscription model. Also move to SaaS in commercial software (eg tax software), but not in the entertainment industry yet. Chris is asking why stream everything instead of distributing large amounts of data which reside on a user’s computer and streaming incremental content [WoW is distributed on several disks – a high latency but very high bandwidth way of transmitting info]. Steve says that streaming makes piracy more difficult.

1:16:01pm: “There’s nothing inherently good about physical media” and they want to get rid of them. Thus a move to online distribution [Valve’s Steam platform comes immediately to my mind]. As demonstrated by the technical issues earlier – it would have been easier to play off Youtube. Move towards online gaming and multiplayer gaming. Kind of obvious to gamers, but I’m not sure you’d find many here.

1:12:38pm: EA is publishing its last game available solely in a single-player, single-play format, on physical media in June (Harry Potter).

1:10:35pm: The DVD’s back on. He’s showing the asteroid field scene. “Never tell me the odds!”

1:08:24pm: False start, brief intro by Mamei, and then we’re off.

1:07:06pm: Technical problems but now he’s showing a scene from a Star Wars V DVD.

1:01:45pm: Waiting for the presentation to start. His laptop’s wallpaper is a picture of an Audi.

Intro: Steve Bené, EA’s General Counsel is here to talk about legal issues concerning distributing computer games via online streaming. Testing out a liveblogging function I made for this website some time ago.

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6
Apr 09
Mon

MPRE

It is possible to pass the MPRE by reading only the BarBri Conviser section once, and doing a few practice exams, a day before the exam. But I wouldn’t recommend it. Next stop, the notorious Cal Bar Exam.

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13
Feb 09
Fri

It’s brutal out there…

They’re calling it the Valentine’s Day Massacre. 828 employees from various law firms were laid off on Wednesday and Thursday this week. 95% of Above the Law’s posts lately have been lay-off reports. To say that I’m very worried is an understatement…

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29
Jan 09
Thu

Random observation

I was in a networking seminar earlier this week with maybe 50 or 60 other law students here and it turns out I was the only one there who blogged and twittered. Almost nobody had even heard of Twitter. I also seemed to be the only one that had heard of Google Alerts. I was very surprised. Even in the heart of the Valley, it seems that lawyers don’t have any particular affinity for technology.

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17
Jan 09
Sat

This week in the Valley

This week was a real treat. Pervez Musharraf came to talk yesterday about “Extremism and Terrorism”. His actual speech, imploring for a “holistic” approach to tackling terrorism by addressing the “root causes” which lead to extremism, was nothing special. The Q&A session that followed was a cracker though. The first audience member came out swinging: “Given that you seized power illegally, given that you suspended the constitution twice, given that you have engaged in gross human rights violations…” The moderator had to stop him and ask him whether he was there to ask a question. “Yes, this is a question,” he said before rattling off another list of accusations ending with, “why should we believe anything you had to say today?”

The audience applauded. But Musharraf is, of course, a seasoned hand. He has been in world politics for many years now and has fended off numerous assassination attempts. This was nothing. His reply shut his accuser down quickly and Musharraf in turn received applause. The questioners were disproportionately from the subcontinent (India, I’d wager) and predominantly confrontational, but for the most part things were civil.

One of the courses I’m taking this semester is Internet Business Law and Policy. The course syllabus was designed in partnership with Google’s Deputy General Counsel, and each week someone comes in to talk to us about a particular topic. Surprisingly, there are only about 12 people taking the class, so it’s a reasonably intimate environment. On Wednesday, Vint Cerf came to talk about trends in internet architecture development and related policy implications. I was stoked. Most people wouldn’t have heard of him, but he’s one of the designers of TCP/IP, the protocol on which the net runs, and is considered to be one of the net’s founding fathers. He won the Presidential Medal of Freedom for his efforts (our ex-PM John Howard just received one too).

Finally, I’m taking a course at the business school which teaches about starting up a start-up. Our team mentor is a venture capitalist and we had a meeting at his office which is located on the fabled Sand Hill Road in Menlo Park. There are only about three blocks of relatively non-descript buildings in which the who’s who of the venture capital industry are located (including Kleiner Perkins, Sequoia, and the VC firm that Bono is a partner of – yes, Bono from U2) as well as some private equity firms like KKR and TPG. It’s a highly concentrated area, and it’s somewhat peculiar that such a small zone comprises the core of the Valley’s VC powerhouse. The area is unique – 80% of America’s start-ups originate from the Valley – and there certainly isn’t anything even close to resembling it in Australia. There are expensive cars in the parking lot interspersed with Priuses, and financiers whose net worths are equivalent to the GDPs of small Pacific islands interspersed with hopeful entrepreneurs in their early twenties sitting in meeting rooms waiting to make their pitch…

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25
Sep 08
Thu

Mid-lecture break post

I’m currently in the middle of an IT Strategy for Tech Companies lecture where a couple partners from Weil and the GC of a large tech company are discussing negotiating IT agreements (including negotiating tactics when the other counsel is responsible for dragging discussions on interminably). It’s all very nice to listen to and all, but it’s all in the abstract if you haven’t done it before and I don’t think it’s of very much real, practical use. That and it’s giving me bad memories of a rather hairy deal I was involved in the closing months before I left work earlier this year.

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13
Aug 08
Wed

What I learned in class today I

Generally speaking, the losing party in a civil case does not have to pay the legal costs of the winning party. Also generally speaking, US judges are predominantly elected, rather than appointed.

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20
Jun 08
Fri

Americanized for your convenience

I’m going to California in August and I’m going to be a uni student again. Woot!

Earlier this year, I had some incredibly good fortune and was admitted to Stanford Law School. I’ll be doing Stanford’s Master of Laws (LLM) program which is a year long. Stanford’s in Palo Alto, a little bit outside of San Francisco. It should be heaps of fun.

I’ve always wanted to live overseas (at least for a little while), and what better way to do it than returning to the much missed lifestyle of a uni student? I’m scheduled to finish work in two weeks’ time. On the 4th of July, coincidentally! I then have two weeks to get everything ready and send off the girlfriend, who will be flying to New York, sitting the NY Bar and then starting a plum job in one of those Biglaw firms. Then I’m off for a short two week holiday in Singapore, catching up with my old flatmate (although Singapore might turn out to be quite boring since David just learned he’s going to be ferried off to the UK to deal with some potential oil spill near Libya or something bizarre like that and might not be back for a bit). A handful of days in Sydney, then it’s off to San Francisco, then the Valley and then the Farm! Not long to go.

Some miscellaneous things I am looking forward to:

  • Finding more time and opportunities to post on Hear Ye!
  • Free shipping from Amazon.
  • Bulk lollies (sorry, bulk candy).
  • Thongs (sorry, flip-flops) during business hours.
  • Two words: No tie.
  • The continuing fall of the Greenback against the Aussie.
  • Campus-wide WiFi.
  • The Valley! The land of entrepreneurialism and dot coms! I get to go back to my techie roots!

THE LLM APPLICATION PROCESS
Just in case anyone was thinking of applying for overseas LLM programs, I’m going to write about my experience with the whole process. Getting into Australian unis is an administrative cakewalk, in comparison. US and UK schools generally impose a long and somewhat painful process. Hopefully this post will be a useful resource if you’re a lawyer wondering if an LLM is a good idea.

The first step in the process is, of course, figuring out why you want to do an LLM in the first place. Speaking from the perspective of a commercial lawyer, I can unequivocally say that doing an LLM solely in order to progress your career is Not A Good Move. One year of practical work experience is in most cases going to be more beneficial. The opportunity cost of taking one year out for studies is considerable – there is the significant financial aspect, and there’s also the consideration that you will lose one year of seniority as compared with your cohort (which is important since law is quite structured in terms of promotions and progression -– you really have to “do the time”). Australian lawyers from certain local firms are well regarded in the main legal markets around the world and you absolutely do not need an LLM if you want to work in London, New York, Dubai or Hong Kong (although you will probably need language skills for the latter if you are fairly junior). You really only need an LLM if you are lawyer from a civil law jurisdiction (continental Europe, South America and many Asian countries) and want to practise in a common law jurisdiction.

I had several reasons for wanting to do a Masters overseas. The first was that I’ve always wanted to live overseas for a while, which would be a much more pleasant experience without all my time being occupied by soul-crushing 200-300 billable hour months. The second is that I wanted the international exposure. I figured I’d get more time to meet new and interesting people from around the world. I get the feeling that Masters programs overseas tend to be more diverse than what we get in Australia. The third was that I’ve always enjoyed studying -– when you learn at uni, it’s because you choose to learn, not because a client has asked you something –- everything you do is done on your own terms and you can spend extra time thinking or exploring certain issues which you can’t do when there’s a deal to be done. The fourth reason was that it would provide useful legal experience. Not as good as real work experience of course, but it does have its advantages. For example, some LLMs have very practically oriented courses, covering things that were never offered in my uni (contract drafting and commercial negotiation, for instance). I think that doing these practical courses with real world experience will allow me to get a lot more out of things than learning about them in the abstract and not being able to relate it back to practice. It will also hopefully give me the opportunity to experiment -– if you stuff something up, at least you haven’t compromised a real client’s position.

The second step is to figure out where you want to study. I have always wanted to experience what studying in a “world class” institution was like. It’s probably something that was ingrained into me by my parents expressing their aspirations for me as a kid rather than something I developed on my own. Still, I think life is about experiencing as much as you can, and this is certainly a unique experience. So my mindset was to shoot for the law schools at the top of the tree, find out who would take me and then figure out which one would fit me the best.

If you’re interested in a particular type of law though, you might want to be more focused in your search. If you’re interested in international law, for instance, some unis are better than others despite how they are ranked overall. One partner at work advised me that for finance law the UK was the place to be. East-coast America was perhaps better for M&A studies (the total market cap of the NYSE speaks for itself). You also have to adjust your expectations according to your level of experience. Without any work experience you can still get into an Australian LLM without many problems, but for some overseas unis it’s a tough ask. If your grades at uni weren’t great, you can make up for this with strong work experience.

I initially planned on applying for both UK and US unis, but I soon realised that I didn’t want to study in the UK. Not terribly enthused about the weather. Too many Aussies. So (to the chagrin of my parents) I ruled out Oxford, Cambridge and other reputables like LSE. Take this with a grain of salt, but I’ve been told by former LLMs that it’s typically easier and cheaper for Australians to study at Oxbridge than the “equivalent” unis in the US. I think a large part of this is that we share quite a bit of case law with the Poms, not having declared our colonial independence quite as zealously as the Yanks! Anecdotally, there are more people from my firm that have gone to those two UK unis than their counterparts across the Atlantic. It’s also easier to get financial assistance and scholarships for British unis. Apparently, a whopping 30% of the Cambridge LLM crowd is composed of Aussies and Kiwis. So this will be a factor to consider when deciding where to focus your efforts.

Having settled on the US, it was time to do a bit of research. It’s best to talk to people who have done an LLM to find out their experiences. For figuring out the lie of the land, the forums at www.llm-guide.com are undisputedly the best resource I came across.

The first thing I figured out is that the US seems big on “prestige”. I was taken aback by how much this was the case, especially coming from Australia where tall poppy syndrome is all too common. It’s a rather contentious factor that unfortunately tends to overshadow many online discussions about the relative merits of different law schools. Egos and bias rule the day and you really have to be careful about what you choose to believe. Things get really bad on the Autoadmit board (which has the tongue-in-cheek tagline of “the most prestigious college discussion board in the world”). But nonetheless, the “prestige factor” is a real and arguably significant factor when it comes to life after uni.

Prestige is of course driven a great deal by brand name recognition, hype and annual law school rankings. The most well known rankings seem to be the US News rankings. There is often a lot of controversy about whether these rankings actually reflect anything real or useful. Whether the ranking methodology works or not, they do tend to reflect and/or affect people’s perceptions of prestige. See here, here, here and here.

The US seems to love tiering things. They’ve nicknamed top tier organisations in each industry -– the US is the home of the “bulge bracket” i-banks, “White Shoe/Biglaw” law firms, “Big 4″ accounting firms and “MBB” management consultancies. (Not to say that this doesn’t happen elsewhere -– the UK has their “Magic Circle”, for instance.)

I think it’s interesting how different it is in Australia. “Top tier” only refers to the size of a firm, not necessarily its quality. There are plenty of top notch mid-tiers. We also haven’t given our top tiers a collective nickname.

The forums have developed their own vocabulary related to the obsession on tiering. “Prestige whores” are people who care only about how prestigious schools are to the exclusion of all other factors. These people tend to grossly generalise and I’d wager they’re unhealthily arrogant. The boards are full of people wondering whether they should give up a full scholarship in exchange for a place at a marginally higher ranked uni. “T-14″ stands for the top 14 law schools, which happen to be the only 14 schools that have ever placed in the top 10 of the US News rankings. There are about 200 ABA-approved law schools in the US and, as you’d expect, the quality varies significantly. The unofficial rule of thumb is that it’s far more difficult getting into a highly regarded commercial law firm if you went to a non-T-14 school. Again, grain of salt. “TTT” stands for Third Tier Toilet. It’s used as a derogatory term covering all the schools which US News ranks as third or fourth tier. Amusingly, the prestige whores will take it to mean “any school ranked lower than theirs”. There are many other factors to consider other than prestige.

If you’re interested in studying a specific area of law, you should research what unis are good in that area.

Another consideration is the area of the US you want to be in. It’s a diverse country. I’ve been told that the West Coast and East Coast are quite different in terms of culture, but even individual cities have their unique characteristics. For example, New York is like no other place in the world but it’s more expensive. Boston has some of the best unis in the world there, but it gets bitterly cold in winter. Palo Alto has great weather, but it’s out in the ‘burbs.

Some people also are interested in certain unis because of specific famous professors. I wouldn’t recommend dwelling too much on this. Each uni has its star academics. They don’t necessarily make good lecturers. They may be on leave. You might not get into their class if it’s full. A small class size with a competent lecturer will be more useful than taking a class with 100 other students taught by a prominent academic who’s only in the classroom because he or she has to be.

Personal factors may come into play too -– for example, if you are bringing your family, is the city family-friendly?

I have the following brief notes about some of the schools I looked into. Berkeley has the West Coast vibe and reportedly the best IP program in the country. It also has the third lowest acceptance rate out of all law schools. Chicago is an academic powerhouse and its law school is no different in that respect. Out of its JD program, it has an unusually high number of people who go on to clerk for Supreme Court judges. Columbia has a great location in New York and the ivy league halo. It takes about 200 people in and provides terrific job prospects if you’re looking to work in a Biglaw firm afterwards in corporate or finance. Harvard is of course the best known university in the world and its elite alumni base is unparalleled. Its brand name recognition is a big drawcard (“even people in third world countries who never completed primary school have heard of Harvard”, someone said to me once). It takes about 120 people in. NYU has an even better location in New York than Columbia (it’s more central) and a large, diverse class of about 400 LLMs. It has a highly regarded tax program. Although Yale Law School is generally regarded as the premier law school in America (it has a tiny, exclusive class size and an absurdly low acceptance rate which dips below 7%), the LLM program is open only to those interested in teaching, not private practice. It takes less than 30 people in its LLM class. As for Stanford, here are a few good forum posts on it: one, two, three.

Once you’ve made yourself a short list of places to apply, the third step is sitting down and putting together the applications. Generally you’ll be required to fill out an application form, write a personal statement, gather letters of recommendation (usually one academic and one professional), send in academic transcripts and submit a resume. I’ll write about each of these components in the context of the Stanford process. The process for other schools is for the most part the same.

Most applications are due near the end of the year, in early to mid November, for an August intake the following year.

Get started early, especially with hitting people up for letters of recommendation. You can control how quickly you get your stuff done, but with these letters you are at the mercy of each of your recommenders (who are likely to be very busy individuals). The Stanford LLM is a degree aimed at practising lawyers so virtually all of its admits are coming in from private practice or in-house positions. This makes figuring out who should write your professional recommendation easy – ask your supervising partner (I’ve seen it written that Stanford occasionally gets partners applying… I have no idea who a partner would ask to be a recommender… maybe a more senior partner?). Getting an academic recommendation is a trickier prospect, especially if you have been out of uni for a long time. One interesting piece of advice I took onboard from a friend was that US unis may not have a good understanding of other countries’ academic systems. In Australia, our academic ranks begin with Lecturers and progress up through the Senior Lecturer, Associate Professor and Professor titles. In the US, most academics are professors of some description – that is, our Lecturers are broadly equivalent to their “Assistant Professors”. I was told that to avoid any potential misunderstanding, I should get an academic recommendation from, at the least, an Associate Professor. Luckily I was able to cold email my former Restitution lecturer (who had been promoted to a professorial position in the time I had left uni!) and she was graciously willing to help me out.

Each uni has its own fiddly administrative requirements when it comes to submitting recommendations. Most of the time a hard copy letter, sealed in an envelope with the recommender’s signature signed across the seal is required (how anachronistic! Ahh, the conservativism of the legal field…). To make their lives easier, I wrote a briefing letter to my recommenders explaining why I was applying, what each university was looking for and the exact administrative process they had to follow (including due dates, which I pre-dated two weeks’ ahead of the real date in case of slippage). Then I sat down and talked them through it. I gave them about 3 months’ notice. Follow-up periodically -… last minute recommendations are incredibly stressful.

The next thing you should probably organize is sending your academic transcript. I submitted mine through the LSAC service, which is a bit of a ripoff, but it does save a lot of hassle. Normally you’ll need to instruct your old uni how to send the transcript to the US (if you’re using LSAC, that means the uni has to send the transcript directly to them in a sealed envelope – I recommend couriering it).

The application form and resume are pretty straight-forward.

You’ll spend the most time on your personal statement. Stanford is kind of annoying. It asks you to write about your background and asks two questions -– why an LLM and why Stanford. But, it sets out nothing about what sorts of traits it is looking for in its applicants other than at least 2 years’ work experience. I tried to infer things from profiles of its alumni. In doing so, I didn’t get much additional insight and almost psyched myself out of applying. Stanford runs two different specialist LLM streams, taking in about a dozen for each stream. I imagine it would be difficult to apply for both streams and have a credible shot at both, so essentially with only 10-15 spots available per stream, the numbers really don’t look very good. The alumni profiles, on the other hand, do look very good. Intimidatingly so.

From the forums I learned that the standard class profile is fairly senior -– most people are about 30 years old and are at about the early senior associate level in world class firms. Many have a Master’s degree already! At least three people I know of in my stream have PhDs. Given this, I am genuinely amazed that I got through. At the time I applied, I did not yet have 2 years’ legal work experience and I think I am the youngest person in my stream. I’m chalking it down to having a non-legal degree in a related field. Thank goodness for most Aussie unis making law a graduate degree. (In many other countries, including England, law can be studied by itself as an undergrad degree.)

The only advice I can really offer is to let your own voice and passion show through. Justify things with interesting examples and hard numbers where possible. Keep in mind that you’re writing for a US audience who may not be familiar with the connotations of your achievements, so spell it out for them. (The forums do mention that Stanford gets its LLM students to fill out surveys about their home countries that ask about the reputations of the local universities and law firms. If true, then the staff there at least will have a greater awareness of things when assessing applications. For example, I am pretty sure that practically no one outside of Asia and the UK has heard of my firm.)

After you’ve drafted and redrafted it, let other people read your statement and take on board their feedback. Get fresh eyes to proofread it. Here’s how I started off my statement – this gives a pretty good indication of how I positioned myself:

I have always had a passion for science and technology. I taught myself how to program in several computer languages in primary and high school. I currently maintain a weblog (www.hearye.org) which is almost ten years old and started an online magazine focused on current affairs.

There is also the TOEFL requirement, which is the test for English language proficiency. It won’t be an issue for Aussies and US unis will waive the requirement if you studied law at an English speaking uni or if it’s your native tongue. Somewhat ridiculously, Stanford demanded that I submit a “formal written request” for a waiver (complete with an attached published writing sample) before they would grant one. Despite the fact that I was born in Australia, clearly studied at Australian schools and have been practising law at an Australian firm!

There is one more bonus part to the Stanford application process that no other uni seems to have. It’s sneaky and unpleasant, especially if you’re unprepared for it. I don’t know of any other uni which interviews its LLM applicants, but I can confirm that Stanford does. There is absolutely no place on the website or in any official documentation which even hints at the fact that there will be an interview. Not the slightest indication. It’s only when you visit the forums that you start to get suspicious when you find a few scattered references about impromptu telephone interviews.

Stanford has an interview round and they conduct it by ambush. Their modus operandi is to call you, normally while you’re at work, out of the blue. One moment you’re focusing on drafting a licensing agreement and the next minute there’s an American voice on the other end of the line. And it’s not your client.

Despite being aware of this, I was still caught by surprise. There is pretty much zero communication from Stanford after they confirm receiving your application. They shortlist applicants, interview them, and accept/reject everyone at roughly the same time. Apparently about 50% progress beyond the interview stage. In early March, I began reading reports on the forums of people getting ambush calls (one interviewee happened to be in court at the time!). In hopeful anticipation, I brought an interview cheat sheet to work. Then the calls stopped going out for about a week. Naturally I thought that I had missed out and was expecting the rejection email to arrive imminently. Soon after, people started reporting acceptances, so that was the nail in the coffin in my mind.

Another week passed and then suddenly there was an American voice on the phone at 11.00am on a Friday. I was totally unprepared. The interview was short and, on my part, plain crap. One rambling answer I gave was followed by an awkward silence on the other end of the line followed by an, “O… kay… um… yeah. My next question is…” Mortifying. To my shock, I got the acceptance email half a week later.

I’m not sure if it’s proper to do this, but I have listed below some of the questions I was asked to give you an idea of what this “hidden bonus” involves:

  • What kind of work do you do at your firm?
  • What are some cases that you’ve worked on recently? What role did you take?
  • You wrote an article on X. Why did you do that?
  • Why do you want to take an LLM in your stream?
  • What do you want to do after you finish your LLM?
  • Do you have any questions for us?

There were minimal follow-up questions.

There is a silver lining to all this, but it’s only a theory: the telephone interview is conducted solely to figure out if you can actually speak English (and aren’t a raving lunatic, even though I may or may not have bordered upon that in my interview). Very few students come from countries in the Anglosphere and I am probably the only monolingual LLM student this year. There’s no warning about the call probably because they don’t want you preparing for it, but to be fair, it’s pretty much like a chat rather than a grilling.

In hindsight I think what they did was interview and accept the corporate stream before starting to process my stream. The application process was wrapped up by the time April arrived.

A little bit of trivia: The writer of the book, Legally Blonde (upon which the movie starring Reese Witherspoon was based), was writing about her experiences in Stanford Law School. It was switched to Harvard Law School in the movie because more people have heard of it -– a testament to the power of the Harvard brand.

That’s it. Any questions? Leave ‘em in the comments or email me.

22
May 08
Thu

Arrested for a racist blog post

A Chinese-Singaporean blogger going under the handle of “Fragrance Prince” was travelling on the MRT one day. Sitting on the floor of the train was a hobo, who apparently was suffering a particularly noticeable case of bromhidrosis. Feeling so offended by the man’s very presence, he snapped a photo. Based on that photo, Singaporean hobos look pretty presentable actually. Later that day, the Prince returned home and vented his feelings in a blog post entitled “Weirdo In 1st World Country”.

Unfortunately, the hobo turned out to be a Malay and the Prince’s rant on the hobo disintegrated instead into a racist rant aimed squarely at Malays. You can read the post here.

Pretty distasteful stuff. But then a few days later, someone knocked on his door and the day after that, the news reported that:

POLICE have arrested a 24-year-old man for posting contents in his blog that could “wound the racial feelings of another”, according to their statement.

The man was picked up at about 9.45 pm at his home in Paya Lebar Way. A computer was seized for investigations. …

Under the amendments made last September to the Penal Code, whoever, with intent to wound the religious or racial feelings of any person, causes any matter to be seen or heard by that person, shall be punished with a jail term of up to three years, or with a fine, or with both.

Ouch. That’s a pretty hardcore law, and that’s a pretty hardcore way of enforcing it. Then again, the Singaporeans aren’t exactly known for being soft. (Interestingly, it looks like judicial caning was actually introduced by the British to Singapore… probably a way to beat the natives into submission… but then when the Brits left, the Singaporeans decided they liked the idea and ran with it. Kind of ironic.)

Our racial vilification laws in NSW are quite a bit softer. It looks like making a racist blog post may only a criminal offence if it incites hatred towards, serious contempt for, or severe ridicule of, a person (or group of persons) on the ground of the race of the person, either because it threatens physical harm towards the person or their property, or incites others to cause that physical harm. And then the maximum penalty is only a fine and/or up to 6 months in the slammer. It looks like if Fragrance Prince was living in Sydney when he did that, he’d still be sitting pretty at home (though no doubt trying to fend off an online flame war).

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12
Sep 07
Wed

Whirlpool founder getting sued for $150k

Simon Wright, who runs the long-established Whirlpool forums, is getting sued in the Qld Supreme Court by 2Clix Australia in relation to comments criticising 2Clix’s software and postings encouraging other Whirlpool members to avoid purchasing its products. The cause of action is founded in the tort of injurious falsehood. I’m guessing that 2Clix can’t sue for defamation because it is too big a company (which means it’s not eligible to sue for defamation). Will be a very interesting case for many reasons. Statement of claim is here (the particulars show the allegedly injurious comments).

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27
Jul 07
Fri

Why you should always proofread your fee estimates

Might be some notion of truth behind that too, figuratively speaking.

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22
May 07
Tue

SGH

Slater & Gordon Limited listed on Monday – the first law firm to ever go public. Its shares have gone up 60% from its offer price of $1. That will teach me to be lazy getting my prospectus application form in :( ILH finally seems to have got over its regulatory problems and is listing in a few months, but it’s quite a different firm compared to Slaters (it’s a lot smaller, for one). Will definitely be interesting to see how shareholder interests interact with the lawyer’s paramount duty to the courts and also to clients…

  10:43pm (GMT +10.00)  •  Law  •  Tweet This  •  Comments (2)  • 
28
Feb 07
Wed

Cutting code and drafting contracts

I was reading an article that Ross Gittins wrote on job satisfaction and the concept of ‘flow’. One of the tasks at work which sometimes (not all the time) puts me in the flow is drafting contracts. You may find this a little peculiar, but I thought a bit about it, and if you’re a programmer, you will know what I mean.

I don’t know if anyone’s made this comparison before, but I find drafting contracts remarkably similar in a lot of aspects to writing good (programming) code. You have to figure out in pseudocode-type form what you want your code/contract to achieve, then you modularise it (in code modularity and reusability can be achieved by breaking things up into functions, objects, defining constants, etc and in contracts it’s master terms, schedules, statements of work, definitions, etc). Then you write in the actual code, or clauses – which have to be very precisely crafted otherwise you produce unintended effects, or the whole thing falls over. You even have termination/consequences of termination clauses which are akin to try-catch statements.

Optimising code and writing good code involve finding the most efficient ways to get things done, and expressing it in the clearest way possible (you can comment code, but often great code is so simple it speaks for itself). Similarly, the goal in drafting is to express what you want to say in the clearest, most concise way possible without leaving anything out (though you wouldn’t believe this if all you read were American-drafted contracts). Clause headings act like comments in code (they explain the clauses but aren’t operative – most contracts exclude headings from having any legal effect).

Objectives change as well. When your client’s requirements move, your code or contract has to move to follow it. When you amend the code or contract, you also have to make sure you don’t break any dependencies. When you get a sloppy coder making edits to the code, things may break or get confusing. A sloppy lawyer will cause the same effect.

In programming you have libraries of code which can be accessed via, for example, API calls. Some contracts work that way as well, like the ISDA Master Agreement which is used to facilitate derivatives transactions. That Agreement has various sets of definitions which can be incorporated by reference (think the “#include” directive in C) into a Confirmation document, depending on the type of transaction being contracted for. The definitions are then simply used (“called”) in the Confirmation without having to rewrite anything.

One substantial difference, however, is that when you successfully compile your program (akin to executing a contract) and run it (akin to performing a contract), the results of watching your program in action are a lot more satisfying (not to mention more immediate) that seeing your contract in action! And of course, you can’t really test run a contract – once’s it’s signed, it’s gone live!

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9
Oct 06
Mon

Admission ceremony

Admissions are held in the large, wood-panelled Banco Court of the NSW Supreme Court before three judges. Apparently two of the judges presiding rotate throughout the day, but the Chief Justice is a permanent fixture, duty bound to the tedious process of admitting new lawyers one-by-one. It’s a very old ceremony which hasn’t changed much since the days the Court was established.

Lawyer applicants are seated at the sides. “Movers” (lawyers who request, or “move”, the court to admit applicants) appear in front of the bench. Friends and family occupy the remaining seats. The process begins with movers moving their movees for admission. Most are solicitors, but a few of the movers are barristers, wigged and robed at the bar table. Movers say a stock standard phrase (which is sometimes embellished) to the bench and the Chief Justice responds in kind. An oath is then taken in groups. The Chief Justice gives a speech on duty, obligation and everything one would expect his Honour to say on such an occasion. And then the bench leaves. The final stage is signing the Roll of Local Lawyers, a huge tome filled with names, admission dates and signatures of all the lawyers admitted in NSW. When lawyers are “struck off the Roll” for misconduct, I wonder if someone rules a red line across their entry in the Roll?

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24
May 06
Wed

Overkill?

A courier came to deliver a package for me on Monday. Only, I wasn’t at home, I was at work, so he left a nice little red Australia Post card on it telling me they’d brought the package back to my local post office and I could collect it during the week. The only problem is that Australia Post only opens from 9-5 on weekdays, which is incredibly inconvenient since there’s no way I can get to Kingsford from work during that time. Normally, you can sign on the back of the red card to authorise an agent to go and pick it up for you (a task which then inevitably falls to my flatmate). However, the post office wasn’t allowing agents to pick it up in this case – only personal signatures, which left me in a bit of a dilemma.

So I did a bit of thinking and realised that a Power of Attorney could do the trick where agency could not. Normally a PoA is used to operate other people’s bank accounts or sign contracts on someone’s behalf and other significant things like that… it gives a lot of authority. All I wanted to do was to pick up my damn mail.

Luckily, the NSW Powers of Attorney Act provides a standard form PoA which I cut and pasted into a Word document. Ten minutes later, I had an instant PoA made out to Robin which had a lifespan of two days and only allowed him to sign for my mail. (I even got Robin to witness the thing, which most probably invalidates the whole instrument since I don’t think the attorney can witness the PoA.) But no matter, it worked and I got my mail in the end.

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28
Apr 06
Fri

Sutton v Hutchison

LORD JUSTICE WARD: The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The Judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is “to tease but not to satisfy”.

By about the end of 2002, or early in 2003, the appellant seems to have begun to tease the respondent. He, being a rich businessman, sought, no doubt, to enliven his lonely evenings in London by seeking entertainment at the Spearmint Rhino club in Tottenham Court Road where the appellant was then employed. Having been tempted, he managed to obtain her telephone number and invited her to dinner. It was not exactly the traditional boy meets girl, “Let’s have dinner, darling” kind of invitation. It was an invitation which she accepted, but entirely on the basis that she would be there as his escort and, as his escort, she would provide the services of companionship and amusement, but for a consideration. That consideration would amount, according to the judgment, to perhaps about £700 or £800 a night for the pleasure of her company at dinner. But the arrangement was made on a number of occasions and, as they went on, the relationship changed and at some time early in 2003 it is common ground that the services included sexual services, for which even more money was paid as a consideration. Whether or not rule 2 of the Spearmint Rhino club had been breached, requiring that you could get no satisfaction, we do not know and fortunately do not have to decide.

Any judgment that starts like that is worth a read.

24
Nov 05
Thu

Before the gallows

Nguyen Tuong Van is an Australian who will be hanged by Singaporean authorities on 2 December for trafficking almost 400 grams of heroin. It will be impossible for anyone in Australia to not have heard about his case, though a quick search on Google News reveals that media coverage outside this country is sparse. This is the latest in a series of Australians being caught overseas with drugs, but this is a wholly different story to the Shapelle Corby affair where what at question was the reliability of the Indonesian justice system.

In the past few weeks, desperate attempts have been made to save Nguyen’s life and the whole affair has become quite confusing in terms of what rationales people have been using to justify their respective opinions.

Most Australians believe that he doesn’t deserve to die for his crime, either because they think the death penalty has no place in a developed country, or that it is not a proportionate punishment to a crime such as drug trafficking (especially when Nguyen claims to only have trafficked in an attempt to bail his brother out from debt).

The result is the Australian public urging the Australian Government to do all it can to pressure Singapore into showing clemency and sparing Nguyen’s life. However, as Prime Minister Howard has pointed out, there is only so much diplomatic channels can do and it is unrealistic to expect the traditionally authoritarian Singaporean government to do an about-face now.

It is important that we should lobby as much as possible to save the life of this man who we do not believe should die for his crimes. However, it is wrong to resent or hold anger towards Singapore should our efforts fail and should the execution proceed. It is wrong to request trade sanctions be imposed upon Singapore, or to take recent events into consideration in the deal concerning Singapore Airline’s rights to fly the trans-Pacific route as Bruce Baird has said.

As they say, the law is the law and everyone entering Singapore knows – via the scary red words, written all in capitals, emblazoned on the immigration card saying “DEATH TO DRUG TRAFFICKERS” – the consequences of their actions. That was the law at the time when Nguyen was discovered at Changi Airport with enough heroin to make over 20,000 hits strapped to his back.

Despite the strictness of the Singaporean State, and various questionable legal instruments like the Internal Securities Act, academics have reported that Singapore has performed relatively well when it comes to adhering to the cornerstone concept of the Rule of Law. To all our appeals for clemency, Singapore has rightly said that if they were to go easy on Nguyen, that would breach that fundamental concept – why should Nguyen be treated differently from a local, or any other national? What would it say about their justice system then? After all, it’s not as though they enjoy sending people to the gallows, nor do it with haste and without due process. It is also a matter of respecting the laws of the country one visits. It is a pretty arrogant thing to expect foreign visitors to our country to follow our laws, but yet request that the same not happen for our citizens who travel abroad. We can all hope for clemency, but an illusory hope it is.

Of course, the major sticking point is that a “so-called civilised nation” like Singapore shouldn’t be using a death penalty in the first place. There is a great deal of literature in international jurisprudence which has more or less debunked the validity of using capital punishment. One of the most common views is that to take someone’s life is a brutal response and our society is “above that”. However, there are clearly more arguments to the point than this. First, there is the issue of the finality of killing someone in a system which is periodically prone to miscarriages of justice (for example in the US, a disturbing proportion of people on death row have subsequently been exonerated following the production of additional evidence, such as DNA evidence). Secondly, empirical studies have shown that the deterrent effect of capital punishment (especially in countries where executions are not carried out in public) is no more effective than a maximum punishment of life imprisonment without possibility of parole. Thirdly, there is a theory called the brutalisation theory that states that executing criminals actually promotes violent crimes because:

First, potential killers are stimulated during the period following an execution … Secondly, the drama accompanying executions arguably incites some to seek notoriety. Finally, some people already predisposed toward violence seek this fate as a substitute to suicide … Data analyzing the number of homicides committed ten weeks before and ten weeks after an execution reveal a significant increase in the number of overall homicides.1

Fourthly, the argument that capital punishment in murder cases satisfies the requirement for proportionality in punishment is invalid because it is rare in our system to “seek an eye for an eye” – for instance, we do not “rape rapists, assault assailants, or burgle the home of burglars”.2 Fifthly, as a pragmatic matter, the cost of a case culminating in capital punishment is said to exceed that of one where life imprisonment is levied. Sixthly, there are worrying signs about how capital punishment is unevenly distributed in racial terms. In the US, jurors with anti-capital punishment views are routinely challenged (that is, removed from the jury panel). A black defendant is also more likely to be sentenced to death when the victim is white. Finally, it goes against the principle of everyone having a right to life.

Of course, few of the above reasons are directly applicable to the case at hand, but the imposition of a death penalty on a drug offence – one that is “less” than murder – seeks to strengthen the case against such a penalty. The body of legal research on the matter is hugely in favour of abolition of capital punishment.

The problem is, however, as much as capital punishment is regarded as an outmoded form of punishment, it is still a valid law in that it was passed validly in a democratic system (we’ll leave international law issues aside for the moment). Australians are within their rights to lobby for the abolition of the death penalty, though it is a stretch to hope that such an abolition, if implemented at all, will be implemented retrospectively by the Singapore legislature.

What’s troubling to me though is this: where was the outrage before an Australian face appeared before the gallows? Why do we not stand up for the “basic human rights” of all prisoners currently on death row in Singapore? They are not merely basic Australian rights, but basic human ones.

People complain that this latest incident is more evidence that Singapore is too strict and authoritarian – repressive, even. But why then is the media devoid of comments from readers about how the United States should also abolish the death penalty? After all, of all the nations to retain the death penalty, the US stands with some unfamiliar company – countries such as Russia, China, Japan, Nigeria, India, Indonesia and Pakistan – countries which are not known for their sterling human rights records (and neither is the US, in recent times). Granted, the US does not execute for drug offences – but remember, we are not talking about letting the punishment fit the crime here – we are talking about how the death penalty is a breach of fundamental human rights.

It will be interesting to see if the lobbying for clemency for death row prisoners continues if Nguyen is executed. To some, this may be shutting the barn door after the horse has bolted, but why should it matter to us if it is an Australian or a Singaporean staring at the hangman’s noose? If capital punishment goes against fundamental human rights, why should nationality be the basis for such strong efforts as displayed by the Australian people? No wonder the Singaporeans accuse us of having double standards.

One view that holds more weight might be arguing that capital punishment is a disproportionate punishment to levy on a drug offence. Especially concerning an offence in which the mandatory minimum sentence is to end the life of the convicted – just look at the Weldon Angelos case in the US, where a drug dealer was sentenced to 55 years in gaol for three counts of possession of a firearm (as a result, the judge imposed only one day of imprisonment for the multiple counts of drug-related offences). Mandatory minimums do not allow for the consideration of possible mitigating factors – such as, it is claimed, that he entered a plea of guilty immediately (though it is hard to see how he could plead otherwise, being caught red-handed with the stuff strapped to his back), that he co-operated with police, and that he was only doing it for his brother. However, again this falls foul of the same problems as above – the Singapore government is within its rights to levy such a punishment as distasteful as it is to us.

I think that the only avenue of appeal that has a reasonable amount of legal validity behind it – besides trying to pull on the heart strings of the Singaporean government and getting a pardon – is international law. However, this is difficult because a ruling by the International Court of Justice is only really binding if both parties voluntarily submit to its jurisdiction (just look at how the US refuses to recognise the International Criminal Court where its nationals are concerned). And even then, Singapore must be found to have breached some international treaty or customary international law by having a death penalty in order for the court to order favourably for Nguyen.

Nonetheless, a stay of execution would offer comfort of some kind if Singapore were to agree to have the ICJ hear the case. Strangely, a decision adverse to Singapore also offers it a valid reason to repeal its law without being able to be criticised for having double standards – though this is at the expense of having acknowledged it violated international law in the first place. Further, only States can utilise the ICJ and a decision by the Australian government to pursue this in The Hague is no doubt hampered by diplomatic considerations given the low probability of success.

Sadly, things do not look up for Nguyen. But one can only hope that, should he die, people will continue in their efforts to get governments around the world to abolish capital punishment as an unacceptable form of punishment in today’s international community.

1. John Truskett, “The Death Penalty, International Law and Human Rights” (2004) 11 Tulsa Journal of Comparative and International Law 557, 588.
2. Claire Finkelstein, “An A Priori Argument Against the Death Penalty” (2002) 32.

26
Jun 05
Sun

PayPal Class Action

About a year ago, because I have a PayPal account, I received a letter from some law firm asking if I wanted to join in a class action law suit against PayPal. I don’t know what the litigation concerned, but I signed up anyway. I just received a cheque for US$7 because PayPal ended up settling the suit. The settlement worked out to be US$8 per class member, but $1 went to lawyers’ fees. The problem is I suspect that cashing an international cheque incurs bank fees which see me having to pay money to bank it. I’m sure a lot of people are in a similar position and can’t be bothered cashing in a small cheque and the consequence is that whatever PayPal ended up pledging in their settlement, they will only actually have to pay out a fraction of that.

I just realised that despite the cheque not having a country on the mailing label, and “NS” instead of “NSW”, the US postal service still managed to get it sent to me. Impressive.

19
May 05
Thu

Torture Note

I’m just going to add one thing to the torture debate. Reading through various arguments against Bagaric and Clarke’s views, I wonder if there’s a point that could be validly made about comparing the norms of “right to physical integrity” and “right to life” (the latter being made out to be a “peremptory” norm, to borrow a term from international law). It’s assumed that the latter right trumps the former:

In the hostage scenario, it is universally accepted that it is permissible to violate the right to life of the aggressor to save an innocent person. How can it be wrong to violate an even less important right (the right to physical integrity) by torturing the aggressor in order to save a life in the second scenario?

Why is death necessarily assumed to be a greater travesty than torture? I make this specific point because this assumed hierarchy of “bad things that can happen to a human being” is not so cut and dried. Let me use a hypothetical to illustrate: would you rather be sentenced to death by lethal injection, or sentenced to life imprisonment which includes daily torture regimes as an additional punitive measure? Even if you think this is a facetious hypothetical question, I also make this observation in light of the euthanasia debates. The reason there is such a debate is because (to greatly oversimplify things, but also sufficient to illustrate my point) on one side you have people who regard life as a paramount right, and on the other, you have people who recognise that people should be able to decide how much they value their own life vis-à-vis the suffering they endure.

  9:20pm (GMT +10.00)  •  Law  •  Tweet This  •  Add a comment  • 
30
Apr 05
Sat

Another Mooter’s Perspective

We mooted against Adarsh in our semi-finals (from HNLU, India and Best Oralist of the preliminary rounds). He left a comment below, so I visited his blog and he has an account of his mooting experience in Sydney. I found this particular “cultural observation” amusing:

I found a comment on Neil’s Blog asking for the ‘dirty details’ of our Australian odyssey. Well I being a very honorable and scrupulous youngster (as you all know) , I certainly wouldn’t have indulged in anything dishonorable! But then, there were two other youngsters with me qho were responsible for introducing me to all viles and vices!

Well first thing I (rather my teammates) noticed if that, there is new dressing trend among the ladies in Aus. They have these tops which leave one of your shoulders bare and then expose the strap of the innerwear! It was the first time I had seen so many real straps in my life. I was under the belief that these things usually came in sober colours like black or white, but here it was blue, yellow, magenta and what not!

Another thing which I guess is common in all western cultures is the display of cleavages! Boy! It takes a real great amount of self control to keep yourself from not staring!

Then there was this smooching and necking and kissing and what not in every street, every public place. (I caught a few in my camera!) Cannot even imagine that in India.

Adarsh has also written a lengthy and engrossing article about the preparation that went into the moot. We are very lucky being a Sydney university. Our mooting program is fully funded, we have a photocopy card for free photocopying and 24 hour access to the law library (although we spent hardly any time in there, thanks to the Internet and Westlaw). Many other teams however, had to raise the funds themselves to get over to Australia.

Adarsh also writes about the dramas that went into compiling their memorials and couriering them off. We thought we had dramas, but in comparison with Hidayatullah, our compilation task was easy – sure, when we were making our 10 copies of the memorials the photocopier ran out of paper, toner and jammed, but free help was nearby; sure we had trouble finding staples, but there was a commercial printery on campus which handled the job for us; sure we were pressured to get the thing done on time, but at least the DHL courier came to us to pick it up. We certainly didn’t have to take an overnight bus to the next town to prepare anything, and didn’t have lengthy power outages.

Well we all reached the friendly man’s printing shop at around 12:30 PM and then we spent another 2 hours on re-editing the memorial again. And then behold, the printing of the applicant memorial started. And now these Manfred Lachs people require 10 copies each of the applicant and respondent memorial. And we had to send another 5 copies of both to Bangalore. Anyways, the printing started and the applicant side was completed by around 4:50 PM. Now in Amravati there was to be loadshedding from 5:00 to 8:00 PM everyday! But then, our friendly man had arranged a house which got its power supply through an executive line which would not be cut. So at 5:00 we packed our bags and went to this house. And yeah, again the printing of the respondent memorial started and then at around 8:40 when the final copy is being printed the power goes in this executive line supplied house!! So we again pack our bags, thinking that power would be there in the printing shop, but as u guys would have guessed when we reached there, it was pitch dark with no supply!

Well hope is everything and we waited and hoped in front of the shop. And yeah went it was around 10 PM we felt that there is not much point in hoping further and so the friendly man lighted up a candle and we started binding the applicant memorials. We finished binding at around 1:00 AM and still the power had not come. Well the frinedly man had done all he could for us on a powerless Sunday night and we just could not impose oursleves on him any further.

Neil, another member of the Hidayatullah team also has a blog.

  6:59pm (GMT +10.00)  •  Law  •  Tweet This  •  Comments (5)  • 
17
Apr 05
Sun

Space Moot Report

The 2005 Asia-Pacific Regional round of the Manfred Lachs Space Law Moot Court Competition concluded yesterday. It’s been an extraordinarily memorable week for me, concluding months and months of work on a hypothetical problem by our team.

Day 0 – Tuesday (12 April 05)
The Lachs Space Moot is one of the international mooting competitions to be held annually, along with the Jessup, Vis, ELSA, Pictet and Stetson moots. The original problem was released last August, and out of the thirty competing teams, twenty were able to make it to Sydney for the final stage of the competition: the oral rounds.

April 12 finally rolled around and our team, composed of Fiona, Shan-Ree, me and our coach, Jo, arrived at the offices of Gadens at 5.00pm for a teams briefing session.

It was interesting to see, for the first time, the other teams from countries around Asia – Japan, China, India, Singapore, Malaysia, Indonesia and New Zealand – and putting faces to our competitors. I suppose it was because the regionals were being held in Sydney that the competition didn’t feel very “international” in the leadup to the orals. However, as the teams started to pour into the Gadens foyer, the mix of cultures and accents of all the teams really started to make me feel excited. Twenty teams of law students from different legal systems and countries, all coming together to argue about what may be the most peculiar space law problem so far – one about a busted up Space Elevator.

Unfortunately, competition rules required teams to be kept anonymous. We were told at the door that we were not to divulge to other teams what university we were from, and could only give our names and, rather unhelpfully, our team numbers. This made socialising somewhat problematic.

“Hi, where are you from?”
“Um… Sydney.”
“Oh really, which university?”
“Um, I don’t think we’re meant to be able to say.”
“Oh.”

It was a bit of a conversation killer.

The teams were highly multicultural. Being three Asians, our team was often amusingly mistaken for the Singaporean team. The Singaporean team, on the other hand, comprised one Chinese and two Indians, which apparently left the Indian teams confused. Basically, it was difficult to tell what country a team was from, let alone what university they came from, just by looking at them.

The way the oral rounds worked was that everyone would participate in the preliminary rounds. Each team would do four round robin moots before a panel of three judges. Two moots would be on the Applicant side, and two on the Respondent side. There were two speakers a side, with a total speaking time of 30 minutes per side freely allocated between the speakers. I had the first speaker Applicant role, Fee had the first speaker Respondent position, and Shan would be pulling double duty as second speaker for the Applicant and Respondent.

For each moot, teams had the opportunity to win up to 9 points. The team with the better written submissions (memorials) going in to the moot would be automatically awarded 3 points. Each judge then has an independent vote worth 2 points. At the end of the preliminaries, the points for all the teams would be tallied and the top 8 would progress through to a knockout phase, starting with the quarter-finals, using a tennis-style seeding system.

The preliminaries would be held over two days, in the boardrooms of three city law firms: Blake Dawson Waldron, Clayton Utz and Coudert Brothers.

After registering, we were given a pack with our mooting draw and the four memorials of the teams we were up against. We all tore into the pack, eager to see how other teams approached the problem and nervous to see if we had missed anything. Due to a late pull-out from one of the teams, the draw was such that four teams would have to do three moots on Wednesday and one on Thursday, instead of the usual two per day. Our team was one of these unfortunate teams. We were mooting at 11.00am, 3.00pm and 6.00pm on the Wednesday, and at 9.00am on the Thursday. We quickly left the briefing after the regional organiser, Ricky J. Lee, had finished his run down of the competition rules.

We made our way to a café and spent the evening trying to identify from the memorials which universities we would be up against the next day by analysing writing styles, the authorities cited, and even by smelling the paper! (“Yes, this one smells like Indian paper.”) We then stopped for a quick dinner at Oporto’s. I didn’t realise that it would be the last “decent” meal I would eat for the next four days.

Day 1 – Wednesday
The morning of Wednesday was incredibly nerve-wracking. We would be arguing on the Respondent side first, which meant Fee and Shan were the first behind the lectern. We turned up to the plush offices of Clayton Utz to meet our first opponents, only to find we had been directed to the wrong courtroom. After moving, we were then kept waiting as the judges turned up 40 minutes late.

Even though teams were supposed to be anonymous, it didn’t take long to figure out who everyone was. Our first opponents were Sydney University. The moot was before an interesting bench. One judge was entirely silent through the whole thing, one judge occasionally interjected, and the middle judge (the President) was very aggressive, though engaging, in her questioning. The thing with moots in the preliminary rounds is that no one is told who has the better memorials, nor who won the moot. We thought it went well.

The next moot was in the afternoon at Coudert Brothers as Applicants against Flinders University. We grabbed lunch in the Wintergarden underneath Clayton Utz, but I could only manage to eat half of my sandwich before my appetite deserted me. While my stomach was no longer functioning, my bladder was working overtime and it seemed like I was visiting the toilet in regular 15 minute intervals.

In the lobby of the Coudert building, we passed by the Uni of Queensland team and realised that one of their mooters was actually our timekeeper for our morning moot. This was a problem given that we would be mooting UQ the next day on the Respondent side. And one of their mooters had basically heard our entire oral argument. We alerted the organiser, but unfortunately there was nothing that could be done to remedy the situation. There’s always controversy at mooting competitions, and we resolved not to make it into a big deal. These stuff ups occur occasionally, and you just have to deal with it as it happens.

The second moot was very non-energetic. I don’t know what it was, but our judges were suffering from some sort of afternoon post-lunch lethargy because they weren’t even looking at us and didn’t seem to be following our arguments. Nonetheless we learnt that it was important to keep up our own energy in our delivery, even if the judges weren’t engaged.

The third moot was at Blakes as Respondents, where we met our first international team – an Indian team from one of the Calcutta universities. It was the first moot which our coach, Jo, had been able to turn up to, along with Sanjay, another lawyer who was of invaluable help to us in preparing for the competition. The moot room was in a small meeting room, and we were basically standing from across the table, perhaps two metres away from the judges. It was an enjoyable, tough moot. The judges asked really incisive, technical questions and were clearly following the arguments of both sides. The Indian team’s ability to think rapidly on their feet was amazing, although they ran into problems when their speed of speaking matched that of their thinking.

With my mooting duties over for the preliminaries, I got a bit of my appetite back and I think managed to finish off half a Pad Thai for dinner that night.

Day 2 – Thursday
Thursday morning was our showdown with UQ. We were intimidated. It wasn’t so much that one of their team members had heard us speak, but because their memorials were very strong. They also had developed a bit of a reputation. The moot was at Clayton Utz and Fee was feeling extremely nervous. So nervous, in fact, that when we got to the floor where the moot courts were, she ran straight for the bathroom and promptly threw up the watermelon juice she’d been drinking. It turned out that, unknown to the rest of us, she had thrown up before the previous day’s moot as well!

We each have our own ways of coping with the stress and nerves that build exponentially before a moot starts. Shan likes to walk around and anxiously look through textbooks right up until the last minute. I tune out and sit there with my head in my hands looking very stressed. Fee throws up and rocks a little in her chair looking very ill. What ever the pre-match ritual was, all the nerves disappear when we start talking. It’s really weird.

You always hear about people throwing up before big events, but here I was witnessing it first hand. Fee delivered an amazing performance and there was no sign of the fact that she had just heaved her breakfast into a toilet bowl. I think good performances inspire other team members, and Shan rose to the occasion and came out firing. Despite eventually finding out we lost that moot to the strong UQ team, that was the best moot I had heard Shan and Fee in so far (including the practice moots).


The UQ and UNSW teams; View from the Pepin Court

With our four moots out of the way, we had the rest of the day to wait until the top 8 teams were announced at the Opera Bar. Fee and Shan went home to grab some sleep Not having to moot that day, I fulfilled the team’s timekeeping duties and time kept for an interesting moot between UTS and an Indian university. More interesting given the fact that while the second Applicant was being questioned on something the first Applicant said, the first Applicant stood up to give the answer – which meant that both Applicant speakers were giving answers behind the lectern as the same time. That was pretty unprecedented as far as protocol goes.

I then retired to the Botanical Gardens and stretched out on one of the benches (yes, like a hobo) and went to sleep for about an hour.

That evening, the preliminary results were announced in reverse order. It was a nail-biter and we were shocked to find out that we had placed as high as second! The University of Auckland placed first, being undefeated throughout the prelims. The seeding saw us have another face off against Flinders University, who placed seventh. Having argued as Applicant the first time, we would be arguing as the Respondent this time around.

Day 3 – Friday
That morning, Fee threw up again before the moot. We took that as a good sign, and had a decent moot. It was perhaps spoiled when one of the judge’s mobile phones went off in the middle of the oral submissions of Joe (the first speaker for Flinders). Instead of just switching off the phone, she unbelievably left the room to answer it, violating just about every moot protocol in the book.

We emerged with a win at 1.00pm where we found out that Singapore, Auckland and Hidayatullah universities were the other three semi-finalists. At 3.00pm, Singapore and Auckland would be facing off, and we were against Hidayatullah. Not having mooted Hidayatullah before, the allocation of who would be arguing as the Applicant and who as the Respondent went to a coin toss. Being the higher seeded team, we called heads and lost the toss. Predictably, Hidayatullah opted for the Respondent side. It was generally acknowledged throughout the competition that the Respondent side had a stronger legal argument, and all teams who won their coin toss were selecting the Respondent side (as we would have).

The semi-finals were perhaps the most stressful round of them all. We had little more than an hour to prepare. Flicking through Hidayatullah’s memorials, I started getting very worried when some novel arguments concerning environmental law (the polluter pays principle and the precautionary principle) cropped up. I managed to eat a quarter of a sandwich that lunchtime. Meanwhile, Fee was happily tucking into a big juicy steak.

The moot that afternoon was fiercely competitive and incredibly stimulating. All three judges on the panel were exceptional, asking insightful questions of both sides, challenging us and clearly had legal knowledge (one was a Professor of International Law). Shan and I gave it our all. Hidayatullah had a marvellous first speaker and really engaged our legal arguments. In the end, we emerged with a victory. And then there were two. Us and the National University of Singapore. We again called the coin toss (heads) and again lost. Singapore elected to argue as Respondents.

It then dawned on us we had made the regional finals, progressing further than we had dreamed possible. The chance to go to Japan for the world finals was almost in reach. It was a surreal feeling. I was exhausted that evening. I passed out for an hour and woke up in a sweat. Shan and I went out to dinner (I ate about a quarter of a plate of fried rice) and pretty soon we were back into it, dissecting the Singaporean memorials and researching the heck out of counter-points, well aware they were doing the same.

Day 4 – Saturday
The day of the finals had arrived and the venue was the Banco Court of the Supreme Court of NSW. I was incredibly honoured and excited that I had been given the opportunity to moot in a real courtroom. At the same time, I was incredibly nervous.

Ironically, I’m quite an introverted person. I never made a good debater and acting scares me. Actually, anything that requires performing in public scares me. But I love mooting. The great thing about mooting is that you face away from the audience. All that matters is the three judges sitting in front of you, and the same holds true even for the impressive Banco Court.

I knew we were in trouble about three minutes into my submission. I had been talking about a strict liability regime for ultrahazardous activities at international law, and I was suddenly blindsided by a blatantly irrelevant question from the judge about whether the Space Elevator was built for “peaceful purposes”. I tried to point out the irrelevancy, but he seemed fixated on the issue. Shan similarly copped a grilling over self-defence issues.

It was then Singapore’s turn. They stood up and gave an outstanding performance. Slick, weighted with authority and seamless. It didn’t come as a surprise when the judges most deservedly awarded the moot to them. Congratulations to Singapore and good luck for the world finals!


The UNSW and NUS teams; Team UNSW!

The end of competition dinner that night was really special. So many teams from so many countries. Some teams turned up in national dress. It was the first real chance in the competition to socialise with everyone in a relaxed environment. Dinner table conversation at one point naturally turned to space law issues and as geeky as it sounds, it was a unique and truly remarkable thing to hear 10 law students earnestly (and voluntarily) engaging in an in-depth conversation about space law and international law.

The Outcome
Apart from being the Asia-Pacific runners up, our team, representing the University of NSW, placed second in the memorials competition (UQ beat us by 0.3 of a mark!). More importantly, Shan won the Best Oralist award, placing first among a group of very talented advocates. Congratulations Shan!

The week left me more mentally exhausted than I’ve ever been in my life, but the experience is one which I will remember with fond memories for decades to come. I learnt so much, not just in terms of international law, but general things such as adapting to being in a team where each team member has different working styles (for example Shan is a last-minute type of person who will be scribbling on his oral notes right up until the last minute, and Fee and I are people who will finalise our notes on the night before), seeing how we each deal with stress and how we support each other as a team. It was also fun to be involved in something international. I can’t really put the feeling in to words, but it sort of put things into context and made me realise how large the world really is in an age where the Internet gives the illusion that the world is a small place. It’s not. To interact with people in other countries on an academic level in a discipline that is normally confined to domestic practice was amazing. I thank Shan, Fee, Jo and Sanjay for allowing me the opportunity to be a part of all of this.

If you’re a law student and ever get a chance to be involved in an international mooting competition, I would wholeheartedly recommend it. Make no mistake that it’s a huge amount of work and to get the most out of it you will need to devote a lot of time to it and give it your all, but, barring being in a team with irreconcilable personality clashes, the experience will change you as a person for the better.

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21
Feb 05
Mon

Time Extension!

We’ve just been informed all teams have an extension on submitting moot memorials until next Monday. I don’t know whether to laugh or to cry.

15
Feb 05
Tue

Space Moot

Nine days until our written submissions are due. Okay, I don’t think I’ve explained what this space moot thing is that has occupied all my time since I finished work last week. It’s an international law mooting competition, based on space law. It’s an international comp, with the first round being a regional one. There are three regions – America, Europe and Asia-Pacific. The Asia-Pacific region is the largest, sporting 33 teams this year from Australia, New Zealand, Singapore, India, China, Japan, and several other countries. (The winner of each regional round progresses to the world finals, but those are a long way away.)

Two 12,000 word memorials need to be couriered down to Adelaide by Friday next week. This is followed by the actual round of oral submissions, which will see around 30 teams fly into Sydney to argue out the case. These start in mid-April and are held over four days. Each team competes in four moots, done in a round-robin format, and the top 8 go through to the quarter-finals and it turns into a knockout.

It’s a long, drawn out process and writing these memorials reminds me of writing a thesis all over again. We had to rewrite most of everything last week as well. It’s not all bad though. Our coach works at one of those big city law firms, so sometimes she manages to book a meeting room there for us to have group meetings in. They’re pretty cool actually, you get in and this waiter comes around and takes coffee orders(!). There’s also a little bar fridge in each room filled with drinks for the taking and a neverending supply of Kool Mints and Kool Fruits. In the last couple meetings, we’ve even managed to edit a document working off a projector which beats crowding around a computer screen. And the views:

I mean, if you’re going to be crammed up inside in a room doing work when you should be enjoying uni summer holidays instead, this at least eases the pain a little. Nothing like watching the sun set over the harbour.

It’s a challenge working on documents this big in a team – version control is an issue. Also, different working styles make things quite trying sometimes – some people like getting things done early (ie, me), some are last minute people and so on.

3
Feb 05
Thu

Old Library Books

You know the law book you’re reading is old when everytime you open it, the pages release dust or fumes or spores that instantly make you have a coughing fit. I think this book is actually killing me.

1
Jan 05
Sat

Questioning a Government’s Right to Give Foreign Aid

A research associate at the Ayn Rand Institute makes an argument in his article “US should not help tsunami victims” that, regardless of the moral altruism and propriety (albeit, supposedly superficial propriety) of giving foreign aid, the US has no right to give such money. His argument is simple. The government gets its money from taxation which is “extorted from American taxpayers”. He raises the hue and cry of “By what right do they take our hard-earned money and give it away?” It is not the State’s money to give. That is not what the American public pays taxes for. He goes on to write, “This is why Americans–the wealthiest people on earth–are expected to sacrifice (voluntarily or by force) the wealth they have earned to provide for the needs of those who did not earn it. It is Americans’ acceptance of altruism that renders them morally impotent to protest against the confiscation and distribution of their wealth.”

I suppose you could attempt to give the author the benefit of the doubt and try to interpret his argument as asserting that foreign aid should come entirely from the private sector, but this is still missing the point. I’m sure it is immediately apparently to most of you the flaws in the article’s argument.

The government has the authority to spend taxpayers’ money in the way they see fit. The reason for this is that the democratic process has given them a mandate to do such things. When a politician strays too far from the mandate given to them by the public, the democratic safeguard of an election kicks in. That’s the way the system works. Allocation of funds (ie, handling the budget) is the government’s prerogative. Just as creating taxation legislation, handling international trade relations and UN involvement all are the responsibility of the government. I mean, the US Constitution gives Congress the right to “regulate Commerce with foreign Nations”. Presumably, that includes the unilateral transfer of monetary or other aid.

The article assumes that people are discontent that the government is spending the money on foreign aid. Or, at least, assumes that people are blind – that the “morality of altruism” makes people pliable enough to allow their hard earned money to be spent in this way without much contestation. That’s a pretty cynical view.

Law aside, it’s also a very selfish argument. The US is a member of the United Nations. The preamble of the UN Charter, signed in San Francisco, pledges that member States are determined to “employ international machinery for the promotion of the economic and social advancement of all peoples”. In other words, there is a strong underlying theme of developed States helping developing States because it’s recognised it is the human thing to do. Foreign aid is just one aspect of this “international machinery”.

After branding altruism as “vicious morality” and saying it “demands that we sacrifice our values instead of holding on to them”, it really begs the questions: what exactly then are these values that America supposedly holds dear?

23
Dec 04
Thu

Man Sues Coke – Trial Judgment

Over a year ago I posted about a man who sued Coke after being shot while refilling a vending machine. As a fresh-faced first-year law student studying torts at the time, I was convinced there was no way Coke would lose and argued at length about it. The trial judgment outcome was reported in the news yesterday. The claimant, Mr Pareezer, was awarded $2.8 million by Justice Hulme. Coke’s going to appeal, of course. Trial judgment is here, will read it soon.

Update: The judgment has over a hundred paragraphs of facts, which shows that’s there’s a lot going on that newspapers don’t and can’t report. The relevant findings on breach of duty were (emphasis is added):

[173] I turn then to paragraph 13 of the Statement of Claim. I agree that the Defendant did owe the Plaintiff a duty “not to expose him to an unreasonable risk of injury” provided there is added the qualification “of which the Defendant was (or perhaps ought to have been) aware” – an expression similar to that in the paragraph (f) of the Plaintiff’s particulars of negligence. To take an example some distance removed from the facts here, had the Defendant received apparently reliable information that Mr Manna was, on 17 February 1997, lying in wait for the Plaintiff while the Plaintiff was engaged on his duties under the contract with the Defendant, it might fairly be said that the Defendant’s duty encompassed not exposing the Plaintiff to an unreasonable risk of injury and to have been breached not only by instructing him to service the relevant machine but also by not seeking to stop him doing so. The former situation would, of course, be encompassed by a duty which rather was not to impose on the Plaintiff an unreasonable risk of injury. However, it would seem to me that there would also exist a duty in the latter situation notwithstanding the usual rule that one person has no obligation to protect another from actions of third parties.

[174] The factors to which I have referred in concluding that there was some duty owed by the Defendant to the Plaintiff argue for the duty being at least as great as that which I have enunciated.

[175] I am also of the view that the duty so expressed was breached in circumstances constituting negligence on the part of the Defendant. Mr Ings memo of 10 August 1995 and that of Mr Orr of 21 November 1996 demonstrate knowledge on the part of the Defendant of the existence of a gang in the Penrith area (and which included the Werrington TAFE) operating during that period and at least up to 30 October 1996 and apparently prepared to resort to violence. While it must be accepted that the nature of the Plaintiff’s activities necessarily exposed him to some risks of robbery and violence, the further matters referred to in the memos to which I have referred take the risks to which he was subject out of the normal into what I would characterise as “unreasonable”. A fortiori is this so when regard is had, as I think one may, to the representations Mr Ings made to the Plaintiff.

[176] I do not ignore the fact that during the period the number of both attacks and incidents was but a very small proportion by comparison with the number of times vending machines in the Penrith area must have been attended to. However, that is not determinative of the matter and its significance pales once one recognises, as it seems to me one must, that the risks to persons servicing machines in the Penrith area are appreciably greater than what one might regard as the normal background of risk necessarily inherent in the activity of attending to the machines. Once there is a significant increase in risk over that normal background, it is appropriate to characterise the risk as unreasonable, certainly in the case of anyone who has been led to believe it does not exist.

This is saying pretty strongly, “stay away from Penrith”.

14
Nov 04
Sun

Worst. Exam. Ever.

Litigation was an absolute nightmare. Never before have I not even been able to spot the issues. For the non-lawyers out there, let’s just say this is a Very Bad Thing. No issues = no writing = no marks. So screwed. I guess I’m just not cut out to be a criminal litigator.

Gadling

Gadling is a pretty decent newsblog focused on travel. Run by the same bunch as Engadget. Gives me the travel bug. Now is a bad time to be getting that.

13
Nov 04
Sat

Litigation…

… is killing me. It’s not making any sense! Arrrgh!

6
Nov 04
Sat

Better than studying Geotechnical Engineering

I’m currently studying the Leases part of the Property 2 course. I’m a little bored so I was thinking about what the situation is in this apartment. Forget exam hypotheticals, real life problems are much more interesting. I’ll write up an answer when I’ve finished revising… (Yeah yeah I know you probably aren’t doing law and aren’t interested, I don’t care.)

Fact scenario: David is a tenant who has entered into an oral agreement for a lease. He is an international university student and is expected to complete his degree in 5 years. Rent is to be payable every four weeks in advance. He has been in residence and paying rent with the owner’s consent for 4 years. It is understood that the lease can be terminated with two month’s notice by either party. Questions: (1) What type of lease is it and what is the status of the lease? (2) What happens if David has been late in paying rent for the last three times they were due by about 5 days each time? (3) What happens to David if the owner (registered proprietor) of the apartment sells it to another bona fide third party purchaser for value who registers their interest?

Answer (CA refers to the Conveyancing Act 1919 (NSW); RPA refers to the Real Property Act 1900 (NSW)):
1. An oral agreement for a lease of duration 3 years or less (including any time that may be added through an option to renew) will create a legal interest (CA s 23D(2)). However, this lease is clearly more than 4 years. No requirements have been met to form a legal lease at this stage. An oral agreement cannot create an equitable lease either (s 54A(1)), unless there is part performance (Bunny Industries). A tenant going into actual possession (and also paying rent) constitutes part performance, as has occurred in this instance. The agreement is one that is presumably specifically enforceable as well, and thus a Walsh v Lonsdale-type equitable lease is formed. This equitable lease does not seem to have an agreement as to its overall duration, so it seems to be a periodic lease. [I don’t know if you can have equitable periodic tenancies?]

At common law, an implied periodic tenancy may arise as a result of the pattern of rent payments. If the rent is paid in aliquots or by reference to a year, and if it is based on an equitable lease that is longer than one year, then a yearly periodic tenancy will be implied (Dockrill v Cavanagh). In this case, the rent is being paid every four weeks. It might be argued that these payments may be somehow referable to the whole 5 years period (Moore v Dimond), but this is a weak argument given these facts and that the 5 year period was not a part of the oral agreement at all. Therefore, it seems like there is an implied 4-weekly periodic tenancy at common law.

2. The lease has a covenant implied by s 85(1)(a) of the CA that rent will be paid when it is due. There is no express term which replaces this implied term. By paying rent late, David has breached this covenant. What the landlord can do depends on the nature of the breach. A covenant to pay rent in advance is not, by itself, an essential condition (J & C Reid v Abau Holdings). Breach only gives rise to a right to sue for damages (payment of the rent due). If we assume that paying rent on time has been made an essential condition of the lease, then the breach of this may give rise to a right for the landlord to rescind the lease contract, or forfeit the lease (Progressive Mailing House v Tabali) and sue for damages.

Forfeiture brings the lease to an end. Before forfeiture can be enacted by an act of re-entry, notice must normally be served under s 129 of the CA. Section 129 notice does not have to be given where the breach is of the covenant to pay rent (s 129(8)). Instead, a formal demand for rent must be made (unless the rent is more than one month in arrears (s 85(1)(d), which it is not in this case). The landlord must allow a reasonable time for David to respond. Assuming David fails to pay, the landlord may then re-enter the premises and forfeit the lease – either by peaceable re-entry or serving a writ with an unequivocal demand for possession (Moore v Ullcoats Mining). Even after forfeiture, if David ends up paying, relief against forfeiture may be available at the court’s discretion (Hayes v Gunbola). The payments, although consistently late, may just reflect forgetfulness instead of an inability to pay (cf Greenwood Village). As no other breaches have been committed, it is likely a court would grant relief.

In the alternative, the landlord could rescind the contract, which does not require notice and entitles the landlord to loss of bargain damages.

3. Registration gives immediate indefeasibility (RPA s 42; Frazer v Walker), absent of fraud. Even if the third party purchaser in this case had notice of David’s legal lease, this notice doesn’t vitiate the registration as it is not fraud (RPA s 43). David’s lease does not seem to come under any other exception to the rule of immediate indefeasibility (s 42(1)(d) does not apply as the current lease is not one of that nature) and thus the new registered proprietor takes free of that interest and David can be evicted. This would be true even if David had lodged a caveat.

27
Oct 04
Wed

Annoyed Grad Law Student Mooters

A friend from law school recently was one of the judges for UNSW’s Beginners’ Mooting semi-finals. He was quite stunned by the controversy that moot generated. One side comprised two grad law students who were described as “more cocky than they should have been” (and one who kept mentioning that he worked at Waverley District Court). The case was a Torts one. Among some of the stunts they pulled, was leading off their case on the topic of causation. Which, “with the greatest respect”, is just ridiculous for a moot. Anyway, they ended up losing (by a massive points margin, which wasn’t disclosed to the mooters).

The losing team followed up their defeat with an indignant 4 page letter of complaint, which I found “leaked” here by next year’s Co-President of Lawsoc. It was a fairly impressive, albeit highly dubious and ultimately fruitless, attempt at disputing the validity of the judges’ conduct. (Despite the consistent misspelling of “Waverley” as “Waverly”… I thought they guy worked at that court and he can’t even spell its name?) The response which put a close to the matter was written by Ramona, but not before the mooters had the last word.

Incidentally, Eugene’s site is linked to a rich vein of other blawgs from uni. Hmm, Xanga theme going there. Hmm, goss…

22
Oct 04
Fri

Clerkship Decision Made

Well today’s been a pretty tough day. I literally spent 5 hours today sitting in my room, talking to people, thinking, reading stuff on the web, all trying to make up my mind about who to work for. In the end, I had to tell three really fantastic firms I wasn’t going to be clerking with them over summer, and the disappointment on both ends of the line was genuine. Making that call to my contact Partner at Blakes was the toughest. If only NSW was like the rest of Australia, and ran multiple month-long clerkships. Then at least I could try out more than one firm.

I’ve decided to go with Malleys, where I’ll be in the Intellectual Property and Technology practice group. Initially I was also going to be doing some work for the M&A group, but they were flexible enough to let me work 3 days a week due to space moot preparation commitments, and so, effectively being a part time clerk, it would be difficult to be involved with the two groups. Should be a terrific experience nonetheless.

I’ll also be in Beijing for two weeks in January doing a law course for uni on the Chinese Legal System. Interestingly, all firms were happy and flexible enough to give time off for this.

When I was going through the whole application process, I found scant “ground zero” information from what is normally the wellspring of info – the web. Apart from the usual corporate spiels on company websites, the only mention I found of the clerkship process from the perspective of a student were from two blogs. One in Melbourne, and the other being an ex-Perth clerk. And they were sparse on details. They didn’t even mention any firm names. Incidentally, by total coincidence I met the owner of the Perth blog at a pre-interview cocktail function of one of the firms (she moved to Sydney), and it was interesting to match up what she said there with the “anonymous” firms she mentioned on her blog.

In contrast, America has a lot of information on law firm recruitment (including the questions everyone are curious about but are otherwise unaskable – salary comparisons and so on). See, for example, the well known Greedy Associates message boards, and law.com. Even Singapore and Hong Kong have law firm goss at Icered. Australia has nothing, as far as I know.

I may write something substantial up about the clerkship application process, but in the meantime if someone stumbles across this post in the future and wants some info on the whole process, feel free to email me.

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21
Oct 04
Thu

Which Firm?

This post pretty much sums up how I’m feeling today.

20
Oct 04
Wed

Decisions, Decisions

Well, to my immense relief, joy and excitement, I went through the whole summer clerkship process and came out with four offers: MSJ, BDW, Freehills and AAR. I have had a really tough time deciding who to sign up with, and over the last week I’ve managed to narrow the list down to two firms. I really wish I could work with both, but of course can’t, so I will keep tossing and turning over the two choices until I’m forced to notify them of my final decision on Friday. It sort of comes down to a decision between people/culture and reputation. It’s not that any of the firms have a “bad” culture, but one firm particularly stood out for me in terms of its people. The other firm has good people, and also a reputation that particularly stands out. This doesn’t make matters easy. I don’t suppose anyone would have any suggestions?

Richard Stallman at UNSW

Stallman gave a two hour talk entitled, “The Dangers on Software Patents”. A more appropriate title would be “Software Patents are Evil and should be Eradicated”. Stallman’s a good speaker, and he makes an argument that most would agree with. Patenting of software ideas is not a good thing in general in terms of innovation, small businesses and so on. And it gets pretty ridiculous when something like Amazon’s “1-click” ordering can be patented. Of course, the illogic of the patenting system is the easy thing to point out. The far harder task is trying to phase out the system, and that’s a political process.

While the message was compelling, the messenger was, well, quite grating. During the Q&A session, Stallman would cut people off mid-question, yell out “No! No! No!” and do everything but give people a chance to have their say, no matter how wrong it may be. Also, branding patent lawyers as “parasites” is okay if you’re addressing a room full of computing science people, but not when half the audience are from the big law firms around. But hey, I know enough computing people to know that some of them can have quite quirky personalities. It’s just a pity that a lot of people were put off by Stallman’s “abrupt” personality.

10
Oct 04
Sun

Election Blues

There are a great number of people suffering from post-election depression. I must say I was quite taken aback when, about 90 minutes into the tallying, it became clear not only that Labor had lost, but had lost in a landslide. Or, at only 38.2% of the primary vote, you could call it an avalanche. However, most troubling is the Coalition’s control of the Senate means that bills can now move through the legislative process pretty much unimpeded. So much for the advantages of a bicameral legislature. (Think: deregulation of cross-media ownership laws and what that will do to the independence of media. Scary.) The general disappointment was put very well by a friend: “Australians are selfish, concerned with their own lifestyles, their bloody mortgages and generally nothing else. It’s pathetic and I hope they get what’s coming to them… It’s small mindedness at its worst and it’s exactly what Howard has cultivated.” And another, who wrote:

It is sad that it appears that the electorate has only cared about economics and nothing else. It doesn’t matter that we invaded a country based on a lie, it doesn’t matter that our PM lies, it doesn’t matter how our international reputation has been eroded. What only matters is the short term economic welfare of the populace. The result suggests to me that Australians are becoming increasingly complacent, big headed about their standing in the world and more selfish.

It also didn’t help that everyone appears to have been successfully spooked (and misled) about interest rates. Of course, when they rise in the next few months, it will be of little significance. Australians are setting themselves up for a crash landing. People have forgotten what a recession is like, and there could be one just around the corner.

Nonetheless, the people have spoken. At least, if the economy crashes for some reason in the next few years (and hopefully it doesn’t), the Libs won’t be able to pin the blame on anyone else.

As for the other parties, about the only eventuation that was predictable was the utter destruction of the Democrats. It’s a good thing for them that only half the Senate went to re-election. Greens and Family First preferences also had a large impact.

8
Oct 04
Fri

Interviews All Over

Today was thankfully the last day of summer clerkship interviews for all those commercial law firms. It’s such a long and tiring process. Now begins the one week of waiting and nailbiting to see if anyone wants to employ me during the holidays.

Was told an entertaining story by a Partner I spoke to today. Some firms hold a cocktail party after the second round of interviews and before the offers are extended. Apparently, back in the day when he was applying for a clerkship, this girl, another prospective clerk, got absolutely shattered at the cocktail evening of one esteemed Sydney firm (the waiters kept topping up her wine and she just kept drinking). Eventually, she passed out on the couch in the reception area, and was so paralytic that she had to be carried downstairs into a taxi by a lady from the HR department. Of course, someone that drunk shouldn’t be left to the tender mercies of a cabbie, so the HR lady hopped in the cab and followed her home. Half-way there, the girl vomitted all over the HR lady.

The amazing thing is, the girl still got a job offer with the firm understanding that “these things happen”. Unfortunately, the story got leaked and her colleagues weren’t so nice, and every time she walked into a room, someone would make retching noises. She resigned six months later.

I met Ian Oi today, one of the lawyers leading the team drafting the Australian version of the Creative Commons licence. Really affable guy. That was a pretty cool experience!

6
Sep 04
Mon

Stallman at UNSW

Our centre is organising for Richard Stallman (GNU and GPL creator) to come to speak at UNSW on the dangers of software patents. It’s being organised in conjunction with Compsoc, and it’s my guess there will be a lot more Comp Sci/Eng/Soft Eng people there than law people.

28
Jul 04
Wed

Shaping up for a Busy Semester

Uni has restarted and it’s looking busy again. I was intent on overloading by a subject this semester, but decided against it. The Great Law Clerkship Application Drive has started where all penultimate year law students in the state, like myself, crazily fill out masses of clerkship applications in the hope of willingly signing away their summer holidays for a piece of corporate law action. All the application paperwork is due in by next Friday. Interview offers will be extended during the rest of August for September, which is interview month. I’ve heard stories of people having to attend in excess of 20 clerkship interviews, so in any event, it’ll be busy for all.

I’m taking an elective called Space Law this semester. That’s space as in outer space. A lot of it is to do with international law (which is an aspect of law I’ve had zero exposure to so far, except for the briefest mention of treaties while looking at the External Affairs power in Constitutional Law). Who owns space? The moon? What’s the deal with putting satellites in orbit? The class size is small, which is excellent, and our lecturer is cool. Ok, I’ll admit, he had me as soon as he divided up the class into Vulcans and Klingons for ease of reference. I’m such a geek. He makes the subject seem quite interesting, which is a must given that the weekly lecture goes for 3.5 hours. His background is also fairly interesting. He worked as a lawyer for about 7 years, switched over to Investment Banking, got to work in just about every major commercial city in the world, and retired at the ripe old age of 41. He now teaches and researches international law as a hobby of sorts.

I started my internship at the Cyberspace Law and Policy Centre. Met up with the centre director for an hour, still don’t know what’s going on yet (we’re still waiting for the other intern, Ada, to get back from overseas), but the work they do looks interesting and quite exciting! One of the big events being arranged is an intellectual property conference in November looking at open source (like GNU licensing) and open content (such as the Creative Commons licence you see popping up on blogs everywhere). Have to keep a weekly reflective log of what I’ve done there, so I might as well post it on this site too, as the semester progresses.

The UNSW Law Journal is going to launch three issues by the end of the year. One issue’s ready to go, but it’s going to get hectic to get the remaining two out the door. Ok, enough law.

This Saturday looks like fun. You know The Amazing Race? The Co-op Charity Society at uni has organised a competition based on that idea, to run just within Sydney. They didn’t give many details about what to expect on the day, but there’s going to be over 30 teams of two running around Sydney trying to get challenges completed. There’s a public transport only restriction in place. There’s also a ban on walkie-talkies, but presumably mobile phones are allowed. If time permits, I’ll be sending updates here during the day via my mobile.

I have the opportunity to buy a new 40 gig iPod for under $500. It’s a bargain I think I’m going to have to take up…

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9
Jul 04
Fri

Winter Session Classes

At uni on a Saturday in the holidays doing Advanced Legal Research after a late night out yesterday… I’m dying here…

22
Jun 04
Tue

Criminal Procedure

Did you know… that police may demand your name and address only if they have reasonable grounds to believe that you can help them in investigating an offence because you were in the vicinity of the crime? The police also need to tell you why they want your name and address. Otherwise, you don’t have to say anything or answer any questions. That’s the theory. If you decide to try it out, you better make sure you get it right because if you don’t, you’ll be in spot of trouble.

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16
Jun 04
Wed

How not to Succeed in Law School

It’s official. Litigation 1 is the suckiest subject this session. I mean Legal Theory was a fair amount of philosophical wank, but at least it was interesting (once you cut through that “why use one word when fifty will do?” syndrome). Litigation is chock full of uninteresting rules and technicalities and little bits and pieces which always seem to gravitate towards the nebulous principle of “judge’s discretion” or “with the leave of the court” anyway. Exam for it is next Wednesday. Ugh.

Sucky

Anyway, time for some quirky legal humour. This journal article appears to have made it into Yale Law Journal: How not to Succeed in Law School. It’s bloody funny. Eg:

A law professor’s greatest aspiration is to be like Professor Kingsfield in the movie The Paper Chase. One professor who saw the movie decided (this is a true story) to act out one of the scenes from the film in his class. He called on a student, who replied that he was unprepared. The professor said, “Mr. Jones, come down here.” The student walked all the way down to the front of the class. The professor gave the student a dime, and said, “Take this dime. Call your mother. Tell her that there is very little chance of your ever becoming a lawyer.” Ashamed, the student turned and walked slowly toward the door. Suddenly, however, he had a flash of inspiration. He turned around, and in a loud voice, said, “NO, Clyde.” (He called the professor by his first name.) “I have a BETTER idea! YOU take this dime, and you go call ALL YOUR FRIENDS!” The class broke into pandemonium. The professor broke the student into little bitty pieces.

The judgment in Cordas v. Peerless Transport Co is incredible. I thought Lord Denning gave dainty descriptions of the facts, but Justice Carlin’s judgment is a unique, convoluted monstrosity. I couldn’t imitate that writing that if I tried. Not that I’d want to. Here’s a sample:

This case presents the ordinary man–that problem child of the law–in a most bizarre setting. As a lowly chauffeur in defendant’s employ he became in a trice the protagonist in a breach-bating drama with a denouement almost tragic. It appears that a man, whose identity it would be indelicate to divulge was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol. Laden with their loot, but not thereby impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street toward 2d Avenue, whither they were resorting ‘with expedition swift as thought’ for most obvious reasons. Somewhere on that thoroughfare of escape they indulged the stratagem of separation ostensibly to disconcert their pursuer and allay the ardor of his pursuit. He then centered on for capture the man with the pistol whom he saw board defendant’s taxicab, which quickly veered south toward 25th Street on 2d Avenue where he saw the chauffeur jump out while the cab, still in motion, continued toward 24th Street; after the chauffeur relieved himself of the cumbersome burden of his fare the latter also is said to have similarly departed from the cab before it reached 24th Street.

Dating in NYC

Gawker reports on a lawyer’s reaction to getting turned down after a date. He wants damages for breach of contract.

To: [X] Subject: Invoice 6/12/04 Date: Sat, 12 Jun 2004 17:15:59 EDT

Dear [WOMAN’S NAME]

On June 5, you agreed to accept dinner, paid for in full, by me, based on your stated offer that we would go out again. In that you have ignored all overtures to said follow up meeting, you are hereby considered in breach of contract.

To that end, you are being invoiced for 50% of the cost of the dinner, pursuant to the offer. For the record, the offer presented you with the option of not going out again and paying for half of the dinner, or going out again and not paying at all. You accepted these terms, choosing to go out again, as stated above, but have since failed to deliver your end of the agreement. In that this was merely a promise to meet, and not a promise to marry, the agreement is binding under New York law and does not require a written agreement (i.e. statute of frauds).

Furthermore, this is absolutely not a joke.

Your share is 50% of $74.51 which is a total of $37.25. Payment in full is expected within 30 days.

You may remit to:
[MAN’S NAME AND ADDRESS]

Issues about paying legal fees if this were to go to court aside, if you want to get technical (from the perspective of Aussie contract law), there’s the problem of whether there was any intention to create legal relationships. There’s a presumption against such an intention in social contexts (Todd v Nicol) and I don’t know what this guy’s idea of a social context is, but things don’t much more social than a date. Ok. Back to studying.

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13
Jun 04
Sun

One way to learn Latin

Quote from my property law lecturer (referring to constructive notice stemming from actual occupation): “So Justice Dixon said that you can’t rely on the ipse dixit of the vendor. Which is just another way of saying, don’t listen to the vendor’s bullshit.”

Its real definition is here, but I like the one above better.

13
Apr 04
Tue

Grrr

Ok, trying to finish off this damn annoying Legal Theory essay tonight. I just need to find a formalist judgment that is bad/anachronistic, and it’s frustrating me because I can’t find one. Then I have a Constitutional Law essay to do afterwards, but that will obviously have to wait for another day.

6
Apr 04
Tue

Uh Riiiight…

I would never have thought it, but I’m really enjoying Property & Equity Law this session. It’s a pretty analytical and technical subject with 1001 rules and technicalities, but it’s all practical. The history of the development of property law and land law is pretty interesting. Our lecturer is fantastic as well. (He co-wrote the textbook which is still waiting to go to press. We’ve had to download and print our readings from PDFs that Lexis has put up on their site. Which is less than ideal given that this comprises a couple hundred pages that we’re going to have to buy next month anyway.) Nonetheless I came across in the readings this week what has to be the most completely and utterly incomprehensible Statute I’ve ever read (granted it’s from the 16th Century):

Where any person or persons are, or shall be seised of any lands, tenements … or other hereditaments, to the use confidence or trust of any other person or persons or body politic these other person, persons or body politic that have the use, confidence or trust in fee simple, fee tail, for life or years, or for any estate in remainder or reverter, shall be seised of the like estate as they had in the use, confidence or trust, and the estate of the feoffees shall be in them that have the use for such estate as they formerly had in the use.

I could spend 10 minutes decrypting that mass of … whatever it is … but it’s just not worth it.

I think law textbooks should get with the times and start adding in diagrams to help visualise relationships between parties. Explaining complicated facts in one huge chunk of text just doesn’t cut it.

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4
Apr 04
Sun

w00t!

I just got appointed to the editorial board of the UNSW Law Journal! It’s a “normal” refereed academic legal journal but it has the peculiar trait of being entirely run by students.

Luck must balance out, because in other news, I lost 14 consecutive games of Big 2 against Kev last night. I also lost four straight games to Dave of the Three Corridors War3 scenario. Not happy!! In my defence I did win the two games of snooker I played a few days ago against him and Aaron.

18
Mar 04
Thu

Justice Kirby at UNSW

Justice Kirby came and gave a speech at uni last night. Opening with a statement that he sincerely believed our law school was “one of the two great law schools in this country” (thereby immediately winning over the audience), he gave a very cordial, clear and often humourous address about his time on the High Court, focusing on the role of dissent in the legal system. Justice Kirby, of course, is well-known for his high rates of dissent (around 30% in recent years). Compare this with recently retired Justice L’Heureux-Dubé of the Canadian Supreme Court. She was known as the “Great Dissenter” in Canada, despite a mere dissent rate of just under 8%. Kirby noted the growing importance of international law and academic sources as a force influencing judges. He also treated us to a poetry recitation from Tagore’s Gitanjali. Quite an extraordinary gentleman.

Actually, touching again on the topic of Canada, there is a high representation of women there. Three justices, including the Chief Justice of its Supreme Court are women. The Governor-General is not only a woman, but a Chinese Canadian, born in Hong Kong. Hard to see any of that happening in Australia, given the dominance of men in the judicial arena. I wonder why that’s the case here?

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7
Mar 04
Sun

Kazaa and the Anton Piller order

You may have heard how the Australian music industry, authorised by something called an “Anton Piller order”, recently raided 12 sites around Australia, seizing documents and data, in its pending lawsuit against Sharman Networks, makers of Kazaa. Sharman obviously didn’t like these Gestapo tactics and went to Court to challenge the legality of what the music industry did. A few days ago the judge came back with an answer, which was: tough luck, Sharman, grin and bear it.

This seems a little scary, that the music industry could bust down your door and raid your house for incriminating evidence. So what exactly are these Anton Piller orders, anyway? Surely a company can’t just demand one from the courts and go traipsing about other peoples’ homes and offices willy-nilly?

The Anton Piller order was first used in a UK case featuring a plaintiff called Anton Piller (Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). These guys were annoyed that some people (a bunch called “Manufacturing Processes”) they were doing business with were leaking their trade secrets out to competitors. Obviously they wanted to sue them, but they also needed to get evidence somehow without tipping the leakers off. If they were tipped off, they would mostly likely dispose of the evidence down a toilet or something like that. So the judge authorised Anton Piller to go to the leakers’ office and find what they need, without giving the leakers any prior notice of what was going on.

So that’s what an Anton Piller order is. It allows a plaintiff to get information from the premises of someone they want to sue, when that person is likely to destroy that information as soon as they get wind of a lawsuit coming their way. If you knew you were about to be sued for all those MP3s on your hard drive, wouldn’t the first thing you’d do is delete them all (or move them onto a portable hard drive) and then say, “What MP3s?” That’s why the order is given without notice.

Now it sounds a bit like a police search warrant – banging down front doors with maglites and German Shepherd dogs and all that – but technically it’s not. It’s actually a court order (specifically, an injunction) that orders a person/company to give permission to a plaintiff to find out what information they need for the lawsuit. They are not allowed to barge down doors or rappel down walls. The plaintiffs must bring their lawyers along, and also give the defendant a chance to contact their lawyers. And if the defendant tells them to get lost, they have to comply and tell the court what happened (which will result in the defendant being held in contempt of court). The defendant can also contest the order, which is what Kazaa did.

So although it sounds all dramatic, the “raids” were really a group of music executives and lawyers going door knocking. But it still is all extremely invasive and intrusive. (Of course, Sharman rightfully milked the media by making it sound like the music industry are a bunch of Nazis for doing what they did.) What Kazaa took offence to was that there was no evidence that they would have destroyed any evidence had they known they were going to be sued. They pointed to how nicely they’ve cooperated in the US lawsuit and the Dutch lawsuit as evidence of that. Justice Wilcox disagreed.

21
Feb 04
Sat

Copyright Extended

I missed this when news about the “Free” Trade agreement with the US started filtering through over a week ago. Caught up among the rest of the concessions is that Australia has agreed to extend its copyright period for an additional 20 years. That means, works that have fallen out of copyright within the last two decades will once again revert to copyright at the end of the year. Copyright, as this Age article explains, is more restrictive in the US because the corporate intellectual property holders there wield a tremendous amount of power, and now that power has bled over into Australia.

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15
Feb 04
Sun

US Electoral Processes

Both Australia and the USA are due for a federal election before this year is
out. In Australia, we already know either Labor or Liberal will gain a lower
house majority thereby making either Howard or Latham our Prime Minister. For us
Aussies, the US electoral system is somewhat more arcane. From what I can piece
together, this is what is currently going on. Let me know if I have got anything
wrong.

In Australia, we do not directly elect our Prime Minister. We elect our
preferred party by voting for that party’s representative at our local
electorate, and a Prime Minister is appointed from the ranks of that party. (The
Prime Minister must himself be elected in his local electorate.) By convention,
this is always the leader of that party, who is elected by the rest of that
party’s politicians. The public has no direct say in who should lead our
political parties, although it can indirectly influence things (such as Crean’s
removal after producing consistently low popularity results in the polls). In
America, the process is a bit more democratic than that. We know Dubya is
seeking his second four-year term in office for the Republicans. What we don’t
know is who will be running for President for the Democrats. Members of the
Democrat party must seek nomination for this, and run a campaign to get elected
by the voters. That is, ordinary citizens have a direct say in who should lead
the Democrats.

In order to be nominated to run for President, a candidate must win over a
majority of states. At a national convention, delegates represent states and
candidates. For a candidate to get successfully nominated, they must get 50
percent plus one delegate vote. In other words, they must win support from a
majority of state delegates. How do they "win a state", though? And exactly who
gets a say in these nomination processes?

Each state’s selection process is different, but there are two main mechanisms
by which this occurs: primaries and caucuses. Primaries are straight-forward
ballots: tick or number a box and whoever gets the majority of votes wins.
Pretty familiar stuff.

Caucuses are a strange but intriguing concept. Caucuses are essentially a series of "mass
meetings" where a group of people gather at a location – someone’s home, a
community hall, or wherever is handy. At these meetings, local supporters of the
various candidates (and I would imagine, sometimes the candidates themselves)
make speeches extolling the virtues of their candidate. After these speeches, a
vote is held, which may sometimes involve a physical division in the room where
one candidate’s supporters move to one side, and another candidate’s supporters
move to another. Any candidate which garners less than 15% support has "lost",
and his or her supporters must then pick another still-standing candidate to
support. This is where the supporters of other candidates attempt to persuade
these people to join their group. At the end of it all, one candidate will have
the majority of supporters, and this candidate gets to send a delegate
(representing him or her) to represent them at a higher-level caucus (or indeed,
the national convention). There are normally three or four levels or "tiers" of
caucuses, such as a local tier, county tier, district tier and statewide tier.
The statewide tier (at a state party convention) usually selects the statewide
delegates which then go to the national convention. Each district tier caucus
also selects district delegates to go to the national convention. Caucus
attendees tend to be older adults.

So now you sort of know what it means when you hear "Iowa caucus" and "New
Hampshire primary". It seems that the trend is moving towards states using
primaries rather than caucuses.

Apparently for the Democrats, delegate support at the national convention is
proportional. For example, if a candidate wins 40% of a state’s votes, they’ll
get 40% of that state’s delegation’s support at the convention.

Note that should, in the event of Bush getting his second term, both
Democrats and Republicans will have to hold candidate nominations for the 2008
elections as Bush cannot stand for a third term.

Primaries and caucuses can be open, closed, or "modified open", which affects
who is allowed to vote in them. In a closed system, only voters registered with
a particular party may vote. In an open system, anyone may have a vote,
including people not registered with any party. However, a Republican voting in
a Democrat primary/caucus, forfeits the right to vote in the Republican
primary/caucus (ie, you may only vote once).  In some circumstances, a
person participating in an opposing party’s primary/caucus will automatically be
re-registered under that other party, which makes them think twice about
tinkering with an opposing party’s voting. In a modified open system, registered
voters are restricted to voting in their own party’s primary/caucus.
Unaffiliated people may vote in either party’s nomination process. It seems
though that some sneaky provisions automatically register unaffiliated people
with the party whose process they decide to participate in.

All this means that candidates have to extensively campaign in each state (which
is both financially and physically taxing). In turn, a nation may get to know a
previously obscure candidate quite well. Howard Dean, once considered the
forerunner for the Democrats lost Iowa in one of the first caucuses held. His
popularity further declined after making a wildly emphatic speech where he
claimed he was going to "take back the Whitehouse" before sealing his place in
Internet techno remix history
with a deranged screech of "Yeeeeeaah!"

John "who the hell is he?" Kerry has since taken over as a more viable choice for nomination as a Presidential candidate and media coverage on the man has multiplied. The national convention should be held mid-year where the whole Democrat party will finally rally behind their nominated man who will fight against Dubya for the Presidency.

4
Feb 04
Wed

Law Degrees Around the World

Looks like getting an undergrad law degree in different parts of the world is slightly different from others. I did a bit of research…

In England
Available as an undergraduate course as a Bachelor of Laws, abbreviated to LLB (Legum Baccalaureus, where LL signifies the plural form). In Oxford and Cambridge, it appears a BA in Law is awarded instead.

Postgraduate courses are not required to practise law. The typical postgraduate law degree is the Master of Laws, abbreviated to LLM (Legum Magister). Oxford awards a BCL (Bachelor of Civil Law), which, despite its title, is a postgraduate degree and covers Common Law.

In the US
Law is a graduate course, meaning for US residents, a four-year undergraduate degree (typically a BA or BS) must be obtained before entrance into a three year law school is granted. While an LLB is occasionally awarded to law school graduates, the more common degree awarded by US universities is a Doctor of Law, abbreviated to JD (Juris Doctor). It is a professional “doctorate” which is similar to the MD that medical doctors use. Lawyers do not use “Doctor” as a title, of course, but “Esq” is sometimes used by the pretentious.

Foreigners holding a Bachelor’s degree from a common law jurisdiction are usually required to study for an LLM degree in the US before they can practise law there.

In Australia
Law, like the US, is also a graduate course, meaning that all law students must hold another degree first. The slight difference is that enrolment to law school can be granted as long as a student also enrols in another degree (such as a BSc, BCom, BE, etc.) simultaneously. This is called a Combined Law course. The first three years are spent completing the first degree (or four years, if honours is undertaken). Interspersed among those three or four years are the first year’s worth of law courses. Once the first degree is obtained, the student then goes on to complete the law degree over the next two years. In effect, a combined law degree compresses the two degrees and reduces the total time for completion by a year. Like the US, graduate entry is also available for those already holding an undergraduate degree.

Monash University in Victoria has started to offer US-style JD degrees.

[Update: The ANU does have a standalone LLB program that takes four years to complete – see comments for more details. UTS also has one, so it looks like the entry requirements are set on a per university basis.]

In Civil Law countries
A Bachelor of Civil Law (BCL) is given in civil law jurisdictions to university law graduates. It is a bachelor’s degree and it is not necessary for the candidate to have another degree before obtaining the BCL. This allows, with some extra training, someone to become a lawyer, or train to become a judge.

Law Doctorates
Normally either called a PhD (Doctorate of Philosophy) in Law, or an SJD (Doctor of Juridical Science).

1
Feb 04
Sun

Law Prize

Was woken up this morning by a call from Monika telling me to look at p 15 of today’s SMH… it seems I have won a uni prize for Torts. She took out both the Crim Law prizes which is amazing (incidentally, I know who to go to now if I find myself being clapped in irons and having my rights read to me).

An e-mail from Shish directed me to Column 8 where there’s someone mentioned with almost the same name as me.

10
Dec 03
Wed

Uni Results

Just got my uni results. Only 1 HD, and 3 Ds this session, yet my average is higher than first session! Now I can truly relax :)

8
Dec 03
Mon

Parliament and the Courts

Lots of political activity as of late. Naturally Latham’s ascendancy to the helm of Labor gives the ALP a fresh shot of life, but I doubt that it will be enough to prevent Howard grabbing yet another term as PM. The Democrats are in turmoil (again). The drunkard, Bartlett, is refusing to step down, and I wonder if there will be a huge voter backlash during the next election? Actually, I was at a dinner last weekend where a certain Professor remarked to the table that Bartlett and Latham’s antics are nothing too outrageous. He noted that former PM Bob Hawke used to proposition women fairly frequently, and upon being rejected would toddle away spitting, “F*cking prostitute!” The media then was not as prominent as it is today.

Actually, I’ve always wondered what would happen if the coalition had a majority in both houses of parliament. Scary thought.

There’ve been a few shots fired at Justice Kirby in the SMH lately, fervently denouncing his championing of judicial activism. The latest has been by Padraic McGuinness. For many law students, Kirby’s activist and policy oriented judgments seem quite comfortable amidst the stodgy statements of the more formalist judges on the bench. Nonetheless, just as judicial activism twists things to create law (or at least reinterpret the law), formalist judgments can twist things to make them conform with age old precedent. This means judgments produced from both approaches can sit uncomfortably in the mind. McGuinness makes a very valid point about how policy research is the domain of academia, and not the judiciary, and therefore judges using “policy arguments” are in fact only appealing to their “common sense” and their own moral beliefs – which naturally may be incorrect. (However, anyone who’s read a Kirby judgment will know, by the sheer length of his writings and the amount of journal articles and international cases he cites, that his judgments are virtually research projects within themselves.) More telling is McGuinness’ point about how activism destabilises the certainty in law. And I think this is quite a strong point. An activist court could potentially create quite a lot of uncertainty for litigants. I don’t know what effect this would have, but can you imagine a whole bench filled with activist judges? Precedent would appear to be devalued.

It’s an interesting debate. Activism has its place (an example of the effects can be seen most lately in this link) and I certainly do feel comforted, to a limited extent, that activist judges do exist, but I’m not so sure that all the judiciary should be converting to activism en masse, as Kirby seems to be encouraging.

26
Nov 03
Wed

Swift Justice

The judicial system moves fast in China. Despite the irony of being offed by the hitman you hired to kill/maim your husband’s mistress, what’s really scary is that the hitman was given the death sentence last Friday, and was executed yesterday. You can be sure that John Muhammad is going to spend more than 4 days on deathrow.

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14
Nov 03
Fri

Asylum Seekers in the High Court

“There’s this urgent human need to have food every so many hours.” -Justice Kirby

Read what happens when the judges start attacking each other instead of the barristers before them. I see it now, written in the judgment: Kirby J (dissent).

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10
Nov 03
Mon

The Three Stages of Consciousness

Too much work to get through. Oh well, there’s always time to make a post. Back in high school, I used to have a Sunday-morning tutor who would outrageously doze off while writing, mid-sentence. He’d be writing a word, then suddenly the pen would stop momentarily, then start sliding off in one direction, leaving a line across the page – which in many cases began looking like graph paper. Apart from the awkwardness of not knowing how to snap him out of his stupor, I could never fathom how someone could drop off while writing. Not until I got to uni, that is. I now present to you empirical evidence of my varying states of consciousness in the form of class notes:

Torts | State of Mind: Awake
Subject: Torts. State of consciousness: Awake.
The handwriting is legible, the notes are fairly detailed.

Crim Law | State of Mind: Tired
Subject: Criminal Law. State of consciousness: Quite Fatigued.
Lines not straight. Writing trickles to a scrawl at end of line. Barely legible.

Admin Law | State of Mind: Asleep
Subject: Adminstrative Law. State of consciousness: Dropping in and out of REM cycles.
Struggling to complete words. Blotches where fallen asleep. Attempts to correct illegible words upon awakening (eg, “consequences”). Notes non-sensical.

And there we have it. Time for bed.

7
Nov 03
Fri

Law School Website Facelift

UNSW Law School’s website has finally received a much needed facelift. I think LawSoc’s site will need a complete overhaul for next year.

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Failure of the System?

The Queensland Court of Appeal allowed Hanson and Ettridge’s appeals, and their convictions were quashed. Newspapers report that Hanson is proclaiming that “the system failed her”. Yet, by mere virtue of the fact that, through the appeals process, she was exonerated implies that the system ultimately has not.

Mr Ettridge said there was no jury in Queensland that would not have been prejudiced against them because of all the publicity they had received in the lead-up to the trial.

“It’s an attack on the democratic process and the rights of Australians,” he told Radio 4BC in Brisbane.

“In the same way that Lindy Chamberlain was judged by the public and the media before she ever got to a court, we were.”

Mr Ettridge said he wanted compensation for the time he and Ms Hanson spent in prison and for the disruption to their lives over the past two years.

“I’d like to see some compensation, but the Queensland government has protected themselves against recourse and of course they can do these things and you can’t sue them for it,” he said.

Some things to note about his inferences of trial by media. Firstly, he complains to the media about how the media prejudiced the jury against them. Secondly, he complains about how the Queensland government has protected themselves which allows them to “do these things”. What things? Hanson and himself were convicted by jury – the government had nothing to do with it. Something is gravely amiss with his conception of the separation of powers doctrine when he criticises the government. The main problem is the time he spent in jail, which was, it turned out to be, wrongful incarceration (but not illegal)… it is definitely regrettable, however, the criminal system has never purported to be perfect. Ettridge also said something that I thought was quite noteworthy:

Journalist: How would you some up your last eleven weeks in jail?

Ettridge: It’s been an interesting experience. I think I’m enriched as a result of having been in prison. I’ve seen another part of life that people talk about, but never experience. People who now want to give opinions on putting people in prison and how severe their sentences must be, have no idea of the effect that it has on a prisoner, their family , their friends, their assets their whole life. I’ve met people in here who are doing fourteen years, twenty years, fifteen years, it is incomprehensible to think what effect that has on a person.

An astute observation.

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5
Nov 03
Wed

When Justice Sleeps

Hahahaha!

A Toronto judge fell asleep in the middle of a criminal trial but woke up when a defence lawyer dropped a 2,136-page copy of the Criminal Code on the desk in front of him, a court was told yesterday. …

Unsure it was really happening, Schofield said she turned to check with her assistant, Cyndi Burns, who “agreed that it appeared His Honour had fallen asleep.”

Crown Attorney Jennifer Strasberg confirmed it as well, said Schofield, who, along with her colleague, came up with a plan.

“We decided that I would drop a copy of Tremeear’s Criminal Code … in order to wake His Honour,” she said in her affidavit. “I dropped the Code and His Honour was visibly stirred from his slumber.”

Not wanting to make an issue of it in front of the judge, Schofield said she and Strasberg carried on as if nothing had happened.

“I was not sure of what to do,” she said.

The judge’s conviction was overturned on appeal. Read article.

4
Nov 03
Tue

Valance’s Case

In case you missed it, here’s the 249 paragraph judgment of the Holly Valance case: Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors.

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30
Oct 03
Thu

Double Conviction is a World Record

A Russian has made it into the Guinness Book of World records after being convicted twice of the same crime. In a case of what sounds like double jeopardy, the second conviction came ten years after the first. What a strange legal system.

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24
Sep 03
Wed
18
Sep 03
Thu

LLRX

Excellent site on the legal systems of different countries around the world. Makes for interesting reading. Each country summary gives a brief historical rundown and a summary of how the country is governed.

10
Sep 03
Wed

An Appeal by Luck

Another amusing transcript from the High Court demonstrating why they don’t like self-representated parties (who won’t shut up).

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2
Sep 03
Tue

Man Sues Coke

SMH Article: Mr Pareezer gets shot five times while loading a coke vending machine. He is therefore sueing Coke for negligence, because Coke purportedly knew that there was a gang operating around the area that was targeting vending machines and keys. They must have been a very thirsty gang. The plaintiff’s son saw the shooting, and the wife arrived afterwards at the scene, and they are both suing for nervous shock.

This is a bit of shocker – you get shot doing your job, which is loading Coke cans into Coke machines, so… you sue your employer. Coke probably does owe a general duty of care to ensure the safety of its employees, but I would find it extremely difficult to see that Coke would have breached that duty of care. I mean, sure they knew of the risk of a gang attack, but what sort of preventative measures could they have reasonably implemented? There’s nothing practicable that I can see that can be done. And then would any of those measures have prevented the injury anyway (the issue of causation)? Even if you gave the guy an armed security detail, they wouldn’t have necessarily been able to stop bullets.

Is it really reasonable to give your employees bullet proof vests on the off chance some psycho gang member is going to shoot you while you’re loading a Coke machine? That would really be saying something about society, wouldn’t it? I mean, what if you happen to have a job in a part of town that is by reputation rough? Say you work the night shift at Maccas in Cabramatta. What is McDonald’s meant to do to shield an employee from being shot at by some cashless drugged out lunatic with a midnight craving for Big Macs?

Turning now to pure nervous shock. Assuming that McDonalds was negligent (which is unlikely), Pareezer’s son and wife would definitely have a case for nervous shock, if they sustained some recognisable psychiatric illness. They’re close relatives and appear to have experienced the sudden sensory shock necessary to sustain a case for pure nervous shock. The problem though, is the breach of duty issue, as above.

Update – I got this on the comments section:

Stuart, I think your characterisation of the measures Coke could have taken misses the point of the claim. Based on what you say about it, it looks like his claim is that they breached their duty to provide a safe system of work by requiring him to go into a dangerous area. And what’s more, they knew about the particular danger. they meet their duty by not requiring him to go into danger without adequate safeguards. And in this case, they can just not put the machine there, and not put their profits ahead of the safety of their employees.

Even if I’m wrong about that and, as you say, their duty might have been to provide armed guards, then I say that *would* have been a way to prevent the injury, because in the face of possible armed resistance from apparently trained security guards, the gang would probably not have attacked. That is, the measure you dismiss as a means of Coke meeting their duty would arguably have been effective. Sure, they cant stop bullets, but they might prevent them being fired in the first place, just by their presence.

You may have guessed that I dont think that this man’s claim is so far fetched as you seem to think it is. His lawyers must agree with him to some extent, since they are obliged to only pursue cases that have reasonable prospects of success. (See the idiotic amendments to the Legal Practitioners Act (or whatever it is called in NSW) put in by Carr last year). But Coke (or rather their insurers) cannot just give in, because it is too far outside the currently accepted norms for negligence: so they didn’t agree to settle when he made his demand.

Incidentally, Maccas have the same options as Coke. If it’s really dangerous, it’s appropiate that there be adequate security, to deter said cashless drugged out lunatic with a midnight craving for Big Macs. Once you’ve taken reasonable steps to prevent injury, then you are in the clear.

As for nervous shock, how have the Courts responded to post traumatic stress disorder, which is what doctors now say all nervous shock cases have? It’s a recognised pysch illness …

… and decided I might as well write up a fuller analysis of the situation:

True, I probably did approach the issue of breach a bit too impulsively. Actual knowledge of the particular danger is not really a requirement under tort law – if Coke knew or ought to have knew of the danger, then that is sufficient. In my limited knowledge of torts (you sound like you have legal education of some sort, so I’m keeping it in mind you may know more about this than me!), a more formal legal analysis would seek to analyse the standard of care required by Coke. It would look at what the plaintiff alleged what measures Coke should have implemented in order to meet its duty of care. The Courts would then have to look at what Coke actually did, and then also at whether the measures the plaintiff proposed Coke should have taken were reasonable. Three factors are used to evaluate what is a reasonable standard of care. The measures the plaintiff proposed that Coke should have taken are then assessed in relation to this standard of care to determine if a breach occurred. The factors are gravity of harm, the probability of such harm occurring, and the practicability of preventing the harm.

The gravity is obviously very high, but the probability of this harm occurring is quite low, though not negligible. There is a provisor in the above arguments in that this particular group of gang members was particularly targeting Coke machines, but whether this specific targeting by the gang significantly raises the probability of a Coke refiller getting shots at is debatable. It may be more probable that the Coke machine refillers may get robbed, but not getting shot at?

There are three main types of solutions you propose: (1) Not require the man to go there. (2) Not to put a machine there at all. (3) Not require the man to go there without adequate safeguards. [and (4) Warn the employee about the dangers.]

The first proposition implies that it is too dangerous to fill up the Coke machine, therefore employees shouldn’t do it. I would argue that this proposition is unrealistic and unreasonable on a few grounds. How would Coke fill up the machine? It would require a solution like a robot or similar, which is certainly not practicable. (Whereupon the argument would then progress to the second proposition.) The second ground is that employees are often sent into arguably more dangerous situations in order to do something that needs to be done. For example, it is conceivable that parking inspectors, due to their line of work are at an increased risk of physical assault (from irate motorists), or falling victim to a pedestrian-car accident. However, the job needs to be done, and it is not practicable to remove the human element from that job function.

The second proposition aims at removing the presence of Coke machines from “dangerous” areas. The practicability problems with this are obvious. What would be considered a reasonably dangerous area, such that it would justify the removal of a drink vending machine? If there are reports of gangs in the area? What about if the newspapers have reported a serial killer in the vicinity that has been terrorising the neighbourhood for a few weeks? It seems patently unreasonable to, especially in a country with a relatively low crime rate like ours, to impose a burden upon coroporations to make sure their drink vending machines are in gang-free areas. There is also a side-effect is depriving citizens of access to carbonated beverages, because the areas is perceived to be “too dangerous” for vending machines to be refilled in. I agree there are arguments both ways, but your argument seems in my opinion, more dubious.

The third proposition is much more contentious. It would not seem that Coke provided the man with any safeguards against being shot at. Prima facie, the probability of this happening, in the view of a reasonable person (ie, me :), would be so low as to be discountable, even if there is a gang known to be in the vicinity. I admit that this is not a terribly strong point, so in the alternative that the chance of being shot at is sufficiently probable as to warrant some sort of protective measure – what should that measure be? Bullet proof vests and security guards are options. With the latter, it seems excessive to assign a bodyguard to a guy who refills Coke machines. If this duty were to be imposed on Coke, imagine how many employees who conducted company business in public would require security personnel to accompany them! It is conceivable that the postman might get robbed. That the person on the night shift at a 7-11 store could get held up and shot. The costs would be prohibitive, and the fact that this is not the present case in society is a telling fact.

Regarding bulletproof vests. Again, it does not seem, on the face of the matter, that the probability of being shot at would warrant Coke purchasing for its vending machine refillers a bullet proof vest (by extension, many employees would then require bulletproof vests on the off chance that they are working in gangland). Then what about robbery with assault? A bulletproof vest is not going to stop a fist, or a well placed knife. And those types of assault are more likely than one with a gun.

Even if Coke did buy a bulletproof vest, there are causation issues. It cannot be said “but for” the bulletproof vest, the plaintiff would not have been shot and injured.

The fourth proposition that Kraz brought up in the comments section is that Coke should have warned the plaintiff. Setting aside the fact, as Bonhomme mentioned, that the plaintiff knew the area was dangerous, it probably can be said that Coke breached its duty in failing to warn the plaintiff. Breach of duty does not necessarily lead to negligence. In this case, a warning to the plaintiff to “be careful” would not have prevented him from being shot (because on the facts, the plaintiff was aware of the danger and was shot). Therefore, causation fails.

It would seem that the other measures above impose too great a burden on corporations, even though they may make obscene profits. What if a company is losing money and couldn’t afford to give their staff bulletproof vests? Just because a corporation makes more money, should it be obliged to meet a higher standard of care? Clearly not – it is the nature of the risk that determines the standard of care, not the financial capabilities of the organisation.

[In response to Bonhomme: The fact that Coke told the employee something along the lines of “tough luck about the assault, go back there” makes no difference. If it was another new employee that went on that refilling run, the same principles as above would apply. The fact that he was assaulted there five years earlier is evidence that Coke was aware of the danger of the area (although five years is a long time! Statistically, there are many places around city streets that have had assaults happen in over the last five years – but that doesn’t mean that the probability of assault recurring there is significantly higher.) The fact that Coke was aware of the danger changes nothing (actual knowledge is not a requisite to be liable for negligence). There was nothing special about this plaintiff that differentiated him from any other Coke employee that would have been in the same situation had they had the plaintiff’s delivery run.]

BTW, I agree with you in that there is virtually always a case for both sides in law. It just seems to me that one side is particularly stronger (though not all the arguments above are strong ones), and that’s what I’m arguing based on this opinion.

Regarding nervous shock, I believe that Courts use the DSM-IV to determine what is an acknowledged psychological illness.

25
Aug 03
Mon

Provocation

Every once in a while, I’ll make a post which interests almost nobody. This is almost certainly one of them, so just ignore. Despite being half-asleep through most of it, we had an interesting Crim Law class today on the defence of provocation. That is, if someone swears at you and you kill them, will you be able to claim that you were provoked and thus mitigate your murder charge to a manslaughter sentence? It was a little confusing, so I needed to put some notes down on paper (well, digital paper, at least) after class to get my thoughts in order, and that’s what’s appearing on this page, for no particular reason other than it’s my own musings and I don’t have anywhere better to put them.

Australian law currently imposes a two-step test for whether a person was legally provoked into killing someone. In Stingel, the whole court determined that the first stage is a subjective test where it must be proven (by the prosecution beyond reasonable doubt) that the accused actually did lose self-control, given the particular circumstances and particular disposition of the accused. The second stage was an objective test where it must be proven that in those same circumstances, an “ordinary person” (not “reasonable person”, as loss of self-control implies a loss of rational reasoning ability) would have lost self-control to the extent of killing. That is, a subjective test.

The first test is logical. Let’s say that someone has an inordinate amount of composure, more so than the ordinary person (we’ll get to the peculiarities of that term in a moment) such that on certain provoking circumstances this hypothetical ordinary person would kill, but this super tolerant person would not. Without this subjective loss of self-control test, the latter person would be able to kill the person provoking, while claiming it was justified (or excused – this distinction in terminology is unimportant) because an ordinary person would have done the same thing. Clearly this is illogical, given that provocation is all about loss of self-control. If the person did not lose self-control and formed an intent to commit murder, then that is murder, regardless of what the ordinary person would have done. Naturally, this line of argument is rare, as the defence will try to make out the defendant to be as unstable as possible.

The second test is far more problematic. It basically accepts and consequently excuses the fact that human beings sometimes do lose control when provoked, and as a result, absolves them of some fault with regards to the commission of homicide. This test accepts that beyond a certain level of provocation, a person will snap such that they no longer have a choice in how they react. Where, though, should the law set this bar and hence decree where a person can no longer determine their reactions to an onslaught of verbal abuse/gestures, or sexual promiscuity from an ex-lover, or prolonged abuse from an oppressive spouse?

One solution is to say that everyone is different, and the test should thus be subjective. The fact that someone lost control is a relative thing, and we all have different tolerance levels. In effect, it ditches the second test altogether. Naturally, this is highly problematic given that it is hard evidentially to determine if someone actually lost self-control if they say they did.

It is also more realistic to ascribe some sort of minimum standard which people should adhere to. The fact that someone is unusually prone to fits of violent anger should not mean they receive greater leniency from the law. Hence, this is where the “ordinary person” standard enters: the jury has to imagine the situation as if they were a hypothetical ordinary person. What is an ordinary person? How can a single point of reference cover the wide variety of defendants that appear before the courts? Stingel provided for the ordinary person standard to be take into account the defendant’s age, since age determined maturity and incidentally a teenager would react differently from a middle-aged adult. The idea of attributing different standards to different ages is also found in the notion of doli incapax (eg: Whitty).

If the notion of age being the only factor differentiating between different standards of ordinary people seems somewhat restrictive, you wouldn’t be alone. McHugh J’s dissenting judgment in Masciantonio argued that “the ethnic and cultural background of the accused can be taken into account in determining whether an ordinary person would have lost his or her self-control as the result of the deceased’s provocation”. In England, the House of Lords has actually progressed down this path by holding that other factors apart from age and gender should be considered when assessing the ordinary person: R v Smith [1999] UKHL 49.

This notion is also not without significant difficulties. What other factors should be also taken into account? Physiological differences? Ethnical differences? Religious beliefs? And to what extent should they play a mitigating role in assessing provocation? If Masciantonio’s rage at his son-in-law was partially influenced by his Greek ethnicity and culture, and he was to be provoked because of that, would that mean that all Greeks would be allowed to do the same act and successfully claim provocation? Would there be any consistency in jury verdicts at all, due to differing individual opinions about how a potential myriad of characteristics should be weighed up against each other?

In Green, the members of the Court themselves highlighted this problem. Green, a 22 year old man, claimed provocation after responding to sexual advances and groping from a male friend by punching him a couple dozen times, stabbing him several times with a pair of scissors and then bashing his head into a wall. Apparently Green’s onslaught was partially elicited by images of his father who used to molest his sisters when he was younger. The trial judge directed the jury that they should ignore Green’s family history in considering what the “ordinary man” would do. The Criminal Court of Appeal held that this was an error, and the jury should have been allowed to consider Green’s family history, but still held that Green’s conduct was less than that expected of the “ordinary man”. The High Court applied Stingel with regards to the second step test, but each judge came to differing conclusions. The majority of the High Court disagreed with the Court of Appeal, saying that it was a question of fact whether Green reacted in the way an ordinary man would react that should be left to a jury, where it was possible they could decide either way.

Gummow and Kirby JJ, in dissent, argued that there was no way that a reasonable jury would find that the defendant acted as an ordinary man would in those circumstances. Kirby J, thinking that the killing was elicited by the fact that it was a man cracking on to the defendant, asserted that not responding with homicide to homosexual advances was part of the ordinary man standard. He further asserted that even though this was a homosexual advance, it was something that should not be taken into account for the first step test (I think?). (One can but speculate that Kirby J’s motives behind his judgment were influenced by his personal orientation and views, which of course is the reality for many judgments.)

The other alternative is to abolish the defence of provocation altogether, dispensing with what may be considered as an anachronism dating back from the time a man could kill another man who was having an affair with his wife due to his honour being stained. However, there are still cases in which conceivably people may be so provoked, that there is some justification or excuse for their actions, eg, Battered Wife Syndrome. If overridden by statute, provisions for provocation may initiate a category based approach to provocation, which is not too desirable given the wide variety of circumstances that surround individual cases.

My opinion is that provocation should be retained, along with the ordinary man test. The ordinary man test, if given too many qualifying attributes, would become extremely convoluted. Yet, to have age as the sole attribute seems overly restrictive and unfair. It would seem that Lord Steyn’s dissenting judgment in Luc Thiet Thuan makes the most sense to me: “it may prove difficult to say where the line should be drawn. We ought not to shrink for this reason from recognising a rational and just development. The traditional common law answer is apposite: any difficult borderline cases will be considered if and when they occur.” Taking things on a case by case basis seems fairer, although it still has issues with consistency of justice, due to different cases accounting for different attributes of the accused. Australian law as it stands, however, is still with the tests in Stingel.

30
Jul 03
Wed

Some Modchips Illegal Again

Last year, Eddy Stevens was sued by Sony for selling modchips which, among other things, allowed Playstations to play burnt games. Yesterday, the Full Court of the Federal Court unanimously reversed the decision of the trial judge (Sackville J). The SMH reports that this decision has led to an X-Box modchip manufacturer to suspend its sales.

A cursory skim of French J’s judgment in the case (Kabushiki Kaisha Sony Computer Entertainment v Stevens) reveals that the primary issue was whether or not Sony’s copy protection measures constituted a “technological prevention measure” under s 10(1) of the Copyright Act 1968. Under s 116A(5) of the Act, a person selling devices aimed at circumventing such prevention measures can be sued. Playstation games are copyrighted by having an encrypted code written into a part of the disc which can’t be burnt onto by normal burners. The Boot ROM then checks discs for this code. Together, the code and the Boot ROM was purported by Sony to be a “technological prevention measure” (TPM). The trial judge held that:

the focus of the definition of “technological protection measure” was on a technological device or product designed to bring about a specified result, namely preventing or inhibiting the infringement of copyright in a work, by a particular means. His Honour did not think the definition was concerned with devices or products that did not, by their operations, prevent or curtail specific acts infringing or facilitating the infringement of copyright in a work, but which merely had a general deterrent or discouraging effect on those who might be contemplating infringing copyright in a class of works, for example, by making unlawful copies of a CD-ROM. (at para 13)

In other words, Sony’s copy protection was not a TPM because it merely served to deter or discourage game copying. The Full Court disagreed, and after engaging in a bout of statutory interpretation, preferred a purposive approach to interpreting the term: paragraphs 16-20. This broader definition meant that Sony’s codes and Boot ROM did form a TPM, and so Stevens lost the case. He still has the option of appealing to the High Court.

As much as I hate how exorbitant console games are (partially the reason why I don’t a console), I would agree with the Full Bench’s interpretation in this case. It is fairly clear that the intention of the Copyright Act would be to encompass copy protection measures such as that implemented by Sony. It’s obvious to any computer gamer that what Sony has done to prevent copying their games constitutes a TPM. Nonetheless, this reminds me of how they brought out that CD copy protection technology a while ago that could be bypassed by scribbling around the CD’s outer rim with a texta or permanent marker. The Courts wouldn’t outlaw the sale of textas (I’d imagine that this would be because their predominant use is not for copyright circumvention), but it does raise interesting questions about what might be considered a circumvention device. What if the mod chip’s main purpose is to bypass the DVD region locking (I think that’s still legal)?

(Thanks Shish for passing on the news.)

Update: ACCC condemns Fed Court’s decision

17
Jul 03
Thu

The ‘DVD Player’ Kid

People are up in arms over the recent High Court decision which ruled in favour of a mother who gave birth to a son after a botched hysterectomy. The Court held that the sterilising obstetrician was negligent and that he had to pay for the costs of raising the child until he was 18. The ramifications are obvious – the risks to doctors performing hysterectomies or vasectomies may far outweigh the benefits for doing them at all. This is on top of the crisis over medical indemnity that occurred last year when UMP collapsed.

It is a strange situation. No doubt the doctor was negligent. However, the situation with compensation is unlike that of negligence which causes, for example, injury. Something like that has no benefits. By association, many would see that compensation for having children would be akin to comparing children to maladies, which would be clearly offensive to most. Nonetheless, an unplanned child can reduce quality of life for the parents (that is not to devalue the life of children, but a comment on the circumstances of the parents) – look at unwanted teenage pregnancies. However, even children born at untimely moments may have “benefits”… it’s not all bad. The problem is, how do you determine what the true cost of having unwanted children is? This is the issue that the three dissenting judges strongly raised.

This case ultimately is the result of the increasingly litigious nature of society (that’s becoming a catchphrase now isn’t it?). It seems like everyday, Australia is becoming more and more similar to America.

But Mrs Melchior – who refused to talk to the Herald because, her lawyer’s spokeswoman said, she had an agreement with the Seven Network – told Today Tonight that if she had not wanted Jordan, she “would have terminated the pregnancy”.

She had sued because “I’m sick and tired of people getting away with murder … I’m tired of the underdog being mistreated … we’re Aussies, we’ve got to stand up and be counted for.” (SMH)

“Getting away with murder.” Yes, a nice choice of words by Mrs Melchior.

Acting PM John Anderson has attacked the High Court’s decision, but it is parliament that can do something about it. They should introduce legislation to give doctors more protection. Why should a profession already fraught with stress and high emotional strain have to cope with the additional and ever-increasing burden of having to worry about litigation?

[Heydon J:] The sum awarded for child-rearing expenses which is in controversy in this appeal is approximately equivalent to that which might be recovered for a moderately severe personal injury having long term detriments, like a badly broken leg, or for the destruction of a very expensive uninsured car in a motor accident, or for serious damage to a dwelling caused by a negligently driven runaway truck, or for some substantial interruption to the profitability of a business. Each of these events is in some way, if not a catastrophe, at least a calamity for the victim. Many judges and other lawyers across the common law world have opposed recovery of a sum for child-rearing expenses because they have an instinctive revulsion against seeing the birth of a healthy child as comparable in any way with a badly broken leg, the destruction of a very expensive car, serious damage to a building, or some substantial injury to a business. Others, like Ognall J, point out that “those who are afflicted with a handicapped child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency with a measure of astonishment”. Yet others, like Weir, see it as “a grotesque waste of public funds” that “hospitals, strapped for funds for curing the sick”, should be “paying out loads of money in respect of perfectly healthy children and adolescents … to parents who were in no way obliged to spend it on them”. But it has been one thing to reach a conclusion after experiencing revulsion or feeling astonishment or observing a grotesque result. It has been another thing to formulate legal reasoning to support the conclusion reached. [emphasis added] (Cattanach v Melchior)

It should be the leadership of our politicians doing something about stemming the tide of medical litigation. The legislative system can be proactive, whereas the judicial system is reactive and arguably constrained by legal reasoning.

1
Jul 03
Tue

Strip searched for a parking fine

Better be careful when you pay those parking fines eh? The Victorian police might strip search you. Sounds like damages she awarded was quite a packet. I mean, it’s more than this woman is currently claiming. I’d much rather be strip searched than undergo abdominal surgery without anaesthetic. The judgment: De Reus & Ors v Gray [2003] VSCA 84.

  7:39pm (GMT +10.00)  •  Law  •  Tweet This  •  Add a comment  • 
2
Apr 03
Wed

The Latest from the High Court of Australia

In Rout, An application by C4/2002 (14 March 2003), the appellant sought for the High Court to give him leave to proceed with an electoral petition. Kirby J: “The Chief Justice dismissed the document you tendered for that purpose as unintelligible and everything you have said to date seems to me to confirm what his Honour said.”

Which is reasonable given that Rout’s argument was um… something along the lines of: “And the law is their set of dividing and multiplying by zero. As long as they maintain their incorrect dividing and multiplying by zero, then they enable me to cause things to cease to exist, and that is why I have the power to do so. These people must move to the correct dividing and multiplying by zero and install it in their computers and that is the money which, the copyright dollars, et cetera, is to fund this major fusion project in this country, which the public are denied to know.” … WTF?

Read the court transcript. It’s worth it. Remember – this case somehow made it all the way up to the High Court. This hilarious gem courtesy of Vic.

3
Mar 03
Mon

Uni

Uni for this year commenced on Monday for me. Law’s a lot different from what I’ve been used to for the last four years. The grad students are all put into one of two grad streams, and our timetable is set for the whole year. As a result, there are about 30 of us that’ll be in the same “class” until the end of this year. There aren’t any lectures, just two hour tutes. It’s almost got a high school feel to it, with compulsory attendance and the highly interactive nature of the academic staff teaching (they keep lobbing questions). I guess the main difference is that the students are all from different backgrounds and of disparate ages.

The course looks interesting, challenging and stimulating, but there’s an absolute shitload of reading to do, and not much of it is very exciting stuff. I’m staring at $700 worth of books bought by the end of this week, and they keep updating new editions for them, so not only have I not been able to get any second-hand books, but there may be a problem offloading these books at session or year’s end. Subjects are Contracts 1, Crim Law 1, LL&S (ethics), Foundations of Law (legal systems) and Public Law. Oh well, we’ll see how it goes! It’s going to be a busy session…



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