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The effusiveness surrounding the death of Prince, the pop music star otherwise known as Prince Rogers Nelson and the hieroglyph formerly known as Love Symbol #2, has included some asides about his litigiousness. In protecting his intellectual property, he was at least as aggressive as the Disney Corporation, and complained bitterly that his contract with Warner Music was a form of indentured servitude – making his case partly by performing with the word Slave inscribed on his cheek and by changing his name to that hieroglyph. The damage to Warner remains debatable, while the tactics forced thousands of innocent parties, including Prince’s admirers, to utter the mouthful “the artist formerly known as Prince” every time they wanted to “reference” the musician. But Prince’s most significant legal legacy could well be a lawsuit launched not by him, but by a small-town mom, against Prince’s efforts to protect his copyright.
In early 2007, Stephanie Lenz posted a 29-second video of her young children dancing in her kitchen in Gallitzin, Pennsylvania, to a recording of Prince’s “Let’s Go Crazy.” The sound is terrible, the song hardly audible. However, Universal Music Corporation, the gatekeeper of the day for Prince’s published music, sent YouTube a “takedown notification,” a communication which apparently does not presage a physical attack but is a term of art these days for a demand that the purportedly offending posting be removed.
Lenz countered that the video was fair use, YouTube put it back up, and, backed by the Electronic Frontier Foundation,* Lenz sued Universal under that part of the U.S. Code comprising the Digital Millennium Copyright Act – specifically, the section which provides that, if you falsely allege copyright infringement (the section says “knowingly or materially misrepresents … that material or activity is infringing”), you are “liable for any damages.” She argued that the video’s use of Prince’s song was so minimal or incidental as to be “non-infringing,” as intellectual property law puts it.
Late last year, the U.S. Court of Appeals for the Ninth Circuit ruled that Lenz’s claim should proceed to trial, dismissing Universal’s motion to scrap it as being without substance. The court reaffirmed that, under U.S. law, “fair use” of copyrighted material means authorized use; it is not an exemption for an otherwise infringing use.
More significantly, the court added that, before so much as sending a takedown notice, let alone instigating more drastic measures such as suing for infringement, copyright holders are obliged to consider whether the use is fair at law. In Lenz’s case, that is, Universal should not have sent the takedown notification reflexively, without trying to work out, in good faith, whether her video made fair use of “Let’s Go Crazy.” Universal contends that its protocols for copyright oversight ensure such good faith enforcement.
So now a trial court must decide if that is the case with the “dancing baby video.” As the appeals court puts it, Lenz’s
claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA [(the digital copyright legislation)] by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
*A big thank you to my savvy friend and loyal blog follower Donna Jez for asking, “Who’s financing her case?”
The Supreme Court of Canada has given the Liberal government until June 6 to amend the Criminal Code so that “physician-assisted death” is legal in specified circumstances. Yet some Senate members have threatened to delay the amendment’s passage. While this looks like a potential contempt of court, some of the senators might argue that it is the House of Commons, or at least those MPs who seek to pass the existing bill into law, acting contemptuously toward the high court’s order.
Given that the government has promised a free vote on the bill, no Liberal “whipping” is possible. Whipping wouldn’t help in any event. When the Liberals sat in opposition, leader Justin Trudeau extravagantly (if fecklessly) cocked a snook at the Senate as a poor man’s House of Lords (packed by successive governments with their toadies and bagpersons) by transubstantiating Liberal senators into Independents outside his control. In any event, the so-called Liberal leader in the upper chamber, James Cowan, told the Globe and Mail that Bill C-14 does not reflect the Supreme Court’s criteria – that the procedure could be granted to “a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The bill requires that applicants for such procedures be 18, that their death be “reasonably foreseeable,” and that their request for assistance be in writing. Two medical practitioners must certify that the medical condition meets the bill’s criteria.
Senator Cowan believes the bill is overly restrictive, particularly because it excludes too many possible applicants, and because “reasonably foreseeable” is imprecise. (He served on the parliamentary committee appointed by the government to advise on how the bill should be drafted. The recommendations suggested that people in the early, “competent” stages of mental impairment be permitted to request medically-induced death should they decline to a certain point, and that in certain instances of extreme suffering such assistance should be available to minors.) While he told the Globe’s Laura Stone that “it’s not the end of the world if the bill doesn’t pass” by June 6, he could argue that, insofar as it does not substantially track the court’s ruling (in his view), it would be the Commons in breach of the deadline order.
It is of course a grave matter, fundamentally unconstitutional and a threat to the rule of law, for Parliament to snub the nation’s highest court. Should the delay be caused by unelected senators frustrating the will of legislators chosen by the electorate, the insult is yet graver. But if the deadline passes without legislation in place, no matter which house might be said to commit the contempt, the problem is sanction. The high court possesses inherent power to punish for such offences (by sundry means, including fines and imprisonment), but in this case, to punish whom? The parliamentarians who actively delay the bill? The entire Senate or Commons? Both houses? How?
Lawmakers are not above the law, and the court already has extended the deadline for them once (by six months, after a change in government). Directors and officers are liable for contempts by their corporations, as are union leaders where the contempts are organized. Arguably, house leaders, including cabinet ministers and prime ministers, could be liable for contempts if disobedience of court orders is party policy, more or less. (Where the contempt is clearly by individual choice, the courts do not act against the collective.) If Parliament misses this second deadline, we probably won’t see Cowan or the PM dining on Her Majesty’s jailhouse bologna until they “purge their contempt.” But what message would this delinquency send about the rule of law – among those meant to give it life and husband it?
What’s surprising about the documents exposing tax shelters in Panama is that so many people seem surprised. Tax shelters as Satan’s bank account are a staple of popular culture – in novels by Scott Turow and John Grisham, for example, the films based on them, and Sarah Caudwell’s The Sirens Sang of Murder, about tax havens in the Channel Islands. The latter comic mystery novel is particularly apt in that it mentions the lawsuit that makes these shenanigans legal in many instances, The Duke of Westminster’s Case. There, the Judicial Committee of the House of Lords distinguishes tax avoidance – which is legal and euphemized as “tax planning” – from tax evasion, which is illegal but in certain circles rationalized as … tax planning. As Lord Tomlin puts it:
Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts [(legislation)] is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Commissioners of Inland Revenue or his fellow tax-payers may be of his ingenuity, he cannot be compelled to pay an increased tax.
Such “ordering” is avoidance. It is true, of course, that if you’re setting up corporations, and in many cases, corporations within corporations, to “shelter” your wealth offshore, hiding the principal shareholder (often, the lawyer who creates the company will be identified as its director), there’s a better than even chance that you are slinking into the far territory of evasion. What the news media miss about this is that, where we can identify the tax-evading owners (or owners who are using the corporations to launder funds or hide money obtained illegally), we have a legal remedy: we can “pierce the corporate veil” and pursue the owners personally, for civil as well as criminal remedies.
True enough, Panama (or Liechtenstein or Jersey or the Caymans…) is a bit of a schlep just to avoid a few hundred bucks in tax. Even if the sheltering corporation is perfectly lawful, a really solid citizen would not engage in what has become known as “aggressive avoidance” of this sort. Aggressive avoiders are probably not paying their way at home, never mind that they “order their affairs” lawfully (more or less) to remit less tax. Thus do we suddenly hear politicians – the same politicians who take money from high rollers for lobbying opportunities at “dinners” (see also) – say that they are thinking about making such “aggression” a species of (unlawful) evasion. Don’t hold your breath. People who pay lawyers and accountants big money so as to avoid tax enjoy the means to keep on keepin’ on avoidin’, never mind – and often because of – political machinations. Thus Warren Buffett’s purported bafflement about having a lower tax rate than his secretary. The tax lawyer’s motto might as well be, When a loophole closes, a crack opens.
What we’re really looking at here – what really has the news media and public fulminating, though mostly the outrage is more reflexive than thoughtful – is the gap between law and justice. That is, tax avoidance might be lawful, but to the extent that it places a disproportionate burden on other taxpayers, it’s unjust. Consider “How a couple with a net worth of $10 million and annual income of $215,000 can pay $0 in income tax,” while middle-class taxpayers in Canada can be “tithed” for as much as 33 per cent of their income.
Even some lawyers forget that, in Nazi Germany, the United States as late as the 1960s, and apartheid-era South Africa, homicidal racism was lawful. Tax avoidance might be legal, but where it verges on evasion, particularly evasion of social responsibility, it is at least unethical and anti-social, and can be immoral. Justice melds morality and ethics onto law, demanding that the individual contribute to the community according to that individual’s abilities. Ordinary taxpayers understand that paying their fair share includes taking advantage of legitimate deductions and shelters, such as tax-free savings plans and, to assist national economic development, lower taxation rates on certain investment income such as dividends and capital gains. What angers them is their neighbours cadging a free ride when they can afford the fare.
The last antecedent rule of comma use. The name alone could put you to sleep before you learn what it is, like it did in grade eight. But go get a coffee: ignorance in this case is not somnolent bliss. Consider: which would you confess – I love eating children and books, or I love eating, children, and books? And are you talking TO children in the second case, or saying you like them? At law, construing commas can prove costly – most recently that Avondale Lockhart goes to prison for at least ten years.
That’s what the U.S. Supreme Court said, six judges to two, on March 1. Before them was a section of the U.S. Code increasing prison sentences for sex offenders with prior convictions “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Lockhart had pleaded guilty to possessing illegal pornography. He had a previous conviction for first-degree sexual abuse of his 53-year-old girlfriend, but said he was not subject to the increased prison term because the earlier conviction did not involve a minor or ward. He argued that the last phrase of the section, “or abusive sexual conduct involving a minor or ward,” applied to the everything in the section – that it was triggered only if you had previous convictions involving the young or the incompetent. And the series qualifier rule of grammar supports this: the final phrase in a series with commas refers back to everything before it.
The court disagreed, ruling that, by virtue of the last antecedent rule, the last comma before the last clause means that clause stands apart from the others: “minor or ward” applies only to that bit after the second comma, such that Lockhart’s prior conviction, for abusing an adult, triggers the “enhanced” term of imprisonment.
On first reading the majority opinion, you wonder if the spirit of Justice Scalia lives on, bending grammar and syntax to a foregone conclusion. But it is written by Sonia Sotomayor, of the court’s left wing, concurred in by the demonstrably liberal Ruth Bader-Ginsburg, and on second and third thought, it seems that their reading is as strong as Lockhart’s – but not that he should serve the extra time.
There is law in Canada that supports the majority view. Most notorious is the “million-dollar comma case,” in which the Canadian Radio and Telecommunications Commission considered on what terms Rogers Communications could use Bell Aliant’s utility poles. Their agreement said it was “effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.” Wanting to charge more money as soon as possible, Bell argued that the last phrase meant it could terminate the agreement at any time, on a year’s notice. Rogers said that the series qualifier rule applied (the last phrase modified everything), such that Bell could terminate only after five years. The CRTC ruled in Rogers’ favour. On appeal, however, it relied on the French version of the provision, which had no comma before the “unless and until terminated” bit, meaning that the termination clause applied only after five years. The last antecedent rule won the day, at last, but – and this is important – only after the second comma was dropped.
A couple of years later, the Alberta Court of Queen’s Bench considered a contingency fee agreement between a lawyer and client, who happened to be the lawyer’s assistant and who handled these sorts of agreements constantly. Alberta court rule 616 said that all such agreements (whereby lawyers get a percentage of damages in successful lawsuits) must specify the lawyer’s “maximum fee payable, or the maximum rate calculated, after deducting disbursements.” Yep, two commas again. The province’s law society interpreted the rule to mean that, no matter whether the client opted for the maximum fee or the maximum rate payable, disbursements (office expenses and other costs that aren’t legal work per se) were to be deducted before the fee was calculated. That is, “after deducting disbursements” applied to the whole series of clauses.
But the court interpreted the rule as though there were no second comma: the client was responsible to pay the lawyer 35% of his maximum fee, including disbursements. While it was arguable that the series qualifier rule applied, Justice Mason said, the client-protection policy behind the rule, the agreement, and the client’s understanding of it suggested different, such that the ambiguity was to be construed in her favour. Justice Mason noted, “Had Rule 616 been phrased: ‘… a contingency fee agreement must contain a statement about the fee payable after deducting disbursements or the maximum rate calculated after deducting disbursements,’ this case would likely not be before me.”
This is more or less what the dissent holds (reasonably) in the Lockhart – given that either the series qualifier or last antecedent rule might apply, the clause is too ambiguous to be interpreted against the offender.
In each of these cases, more careful drafting would have prevented undue expense, lost court time, and perhaps an unreasonably harsh prison sentence. If Congress had in fact wanted to impose a mandatory minimum sentence for any repeat sexual assault, on any person, it could have said so clearly: “The enhanced sentence applies where the offender has been convicted of a crime relating to sexual abuse or aggravated sexual abuse on any person.” No comma necessary.
Marie Henein is well known to Toronto lawyers for her surgical skill at cross-examination on criminal defence files. Now, R. v. Ghomeshi has made her notorious for that ability across the country, and maybe internationally. Lawyers find themselves putting up a bulldog defence for Henein herself at dinner parties: “What do you mean, she abused the complainants? That’s condescending. This is the era of equality rights. We take sexual assault seriously, but we also accept that educated young women can handle hard questions, particularly when they have counsel, as these women do. Why isn’t their evidence to be tested like everybody else’s? In thousands of emails ignoring warnings that communicating about the trial was improper, a couple of the witnesses revealed a determination to “get” Ghomeshi. Are we to convict him on their complaints and his Facebook page alone? Changes to the Criminal Code and common law regulate cross-examination in these cases, promoting fairness to complainants. Part of Crown counsel’s job is to assure that defence cross-examination is proper.”
This “Henein defence” is premised, of course, on everyone’s right to be presumed innocent, a first principle of constitutional law in civilized countries. The presumption founds the right to make full answer and defence. But in sexual assault cases, public indignation regularly overcomes reason as in a lynch mob, and we hear this clamour to tip the balance of interests towards the prosecution. As others have noted, the Ghomeshi verdict doesn’t say “he didn’t do it,” it says the complaints weren’t proved beyond a reasonable doubt. The tumult over this recalls my experience with John Mortimer’s “Rumpole and the Honourable Member.”
I used to teach the story, which appears in the first collection of Rumpole’s fictional memoirs (“Rumpole of the Bailey,” 1978), at law schools, in my law and literature course. The story’s main focus is an allegation of rape by a young party worker in the office of the middle-aged accused, a married Labour MP. The evidence is equivocal and Rumpole’s theory is that there was no assault: the complainant wants to “get” the candidate for jilting her as a lover. My course syllabus included the story so that we could discuss Rumpole as an instance of the archetype of the lawyer as ironic champion, as well as his role in law as theatre, but also to promote a lively discussion of evidence law and the tensions it navigates.
Unfortunately, outrage overwhelmed reason. Several students were angered, like the fiancée of Rumpole’s son in the story, because of the way that Rumpole cross-examines the complainant. I was frustrated because I thought upper-year law students should understand, or come to see, that if we are truly equal before the law, the complainant’s evidence needed to be tested just like anyone else’s, occasionally these complaints are made vengefully, etc. (see paragraph one).
The story should have been pedagogically useful in that way. It puts forward, with wry intelligence and verve, the “Henein defence” in each of its details. The House of Lords of the day (and the law in Canada then) said that the accused in rape cases was not guilty if he had an “honest belief” the complainant consented, no matter how moronic or self-serving that belief was. Rumpole is appropriately disgusted by this, remarking, “There are very few women among the judges of the House of Lords.” But when his future daughter-in-law attacks his cross-examination as archaic (in the precise terms that Henein has been attacked), he asks, “Is it archaic to believe in some sort of equality of the sexes. … Give you equal pay, certainly. Let you be all-in wrestlers and Lord Chancellor. By all means! … But you’re asking women witnesses to be more equal than any other witnesses!”
This should not be as provocative as it has come to sound. On the other hand, the most effective part of Rumpole’s cross-examination is indefensible, and likely would not be permitted under Canadian law as it has existed for the last 24 years. With debatable relevance, he questions the complainant on her sexual history, and, certainly irrelevantly, on an abortion years in the past.
In class I had hoped to point out how and why we no longer permit this, but I have stopped teaching the story. Where I had meant to suggest how law evolves with the wider culture, and how it must maintain a balance of interests as it progresses (how Rumpole is both right and wrong, as we all are individually and communally, and how the law’s progress reflects that), indignation blocked thought and conversation. Youthful prejudgment and popular prejudice stood blind to centuries of cultural development.
Does it really need saying that law students, particularly, and civil society generally should confront these issues from all perspectives, to consider not just how the system operates, but also how the law evolves and how it might still improve? Are today’s young adults – our law students, soon to be guiding others through life’s most challenging moments – too sensitive to moot discomfiting issues, too already-knowing to have their preconceptions challenged and perhaps reconsidered? Has our notion of critical thinking become so cramped with anxiety that universities and post-graduate professional schools are no longer venues for the airing of complex problems? Are they all trade schools, now, or do they remain socializing institutions, guiding youth into thoughtful adulthood, when we act not on impulse and popular prejudice, but on all the evidence?
Among the civilized and sober, justice is not a matter of reflexive self-assertion, of taking a side on presumption and planting a flag there in righteous indignation. Justice tests the evidence with a steady gaze.
At heart, legal history is the biography of the Seven Deadly Sins. It’s all about blasphemy, thieving, adultery, coveting, murder – the assertion of the personal id over the communal superego. But generally you wouldn’t know this from the bloodless analytics of historians. It takes the popular arts to remind us that law is integral to human culture, to the flesh and blood of society as a collective of individual life experience – another ritualized belief system in a world of sex, thugs, and rocky shoals.
Consider the hundreds of murder, poacher, drunkard, and “bedtrick” (rapist disguised as lover) ballads, the more modern paeans to Bonnie and Clyde and “Hurricane” Carter, the novels of Dickens, Walter Scott, and Sarah Caudwell, historically sensitive TV dramas such as “Kavanagh, Q.C.,” “Rumpole of the Bailey” … and, sure enough, “Downton Abbey.” Actually, especially “Downton Abbey,” the globally popular, twenty-first century iteration of “Upstairs, Downstairs,” set this time between the sinking of the Titanic in 1912 and British property law reforms of 1925.
Nothing has made the general public more aware of the increasingly sclerotic history of Anglo-American feudalism, particularly in its modern, classist vestiges. Almost miraculously, the show has caused the law of fee tail, a persistent and now obscure holdover of medieval property law, to feature on Twitter and pop culture blogs. Even a proposed law has been named after the show, following the bill’s introduction in the House of Lords in 2013. Ralph Palmer, 12th Baron Lucas, proposed the Equality Titles Bill, nicknamed the “Downton Abbey law” given that it would have permitted female descendants to inherit peerages. This addressed the core issue early in the TV series – that because Lord Grantham had three daughters but no son, a third cousin he’d never met, and not one of his own children or grandchildren, stood to inherit his title and associated entail (his property rights connected with Downton). Mind you, while the bill was accorded two readings and royal assent, it died in committee.
Coincidentally with the bill’s death, and during “Downton’s” fourth season, in “real life” the three daughters of the Earl of Northesk saw their father’s title go to their eighth cousin, a man they and their father had never met. The heir is 14 years older than the earl would have been (he died at 55) and has no direct descendant, while, when title passed, the earl’s daughters were 23, 26, and 30.
Probably many “Downton” acolytes normally would scoff at the law as an incomprehensible tool of plutocracy. Now they sit enthralled over plot-lines driven by the obscurities of primogeniture and other legal challenges for women and their families in the first quarter of the twentieth century, when abortion and homosexuality were serious crimes (whether you were upstairs – as with Lady Edith – or downstairs, as with Thomas the footman), “illegitimacy” was not only scandalous but socially and financially ruinous, racism against blacks and Jews was du rigueur and mostly legal, mental illness was hidden away in shame (as with Mrs. Hughes’s sister), and you could be hanged for murder – a particular problem if you were wrongfully accused, as with Bates the valet.
Most of this mirrors problems in North America at the time, less entrenched, perhaps, but exacerbated by the legacy of slavery. Wider public appreciation of that awaits a new series, “Upton Mansion,” let’s call it. “Upton” could chronicle the life and times of a John D. Rockefeller sort, John D.’s life having spanned the Civil War through Prohibition to the rise of Adolph Hitler. There are at least six seasons in the saga, John D.’s father having been a bigamist and adulterer, and his grandson Nelson, the business kingpin, vice-president under Gerald Ford, and New York governor, having died at 71 in flagrante delicto (credible rumour has it) with his 25-year-old assistant, when adultery was still a matter of “fault” under matrimonial law. Seize the day, Hollywood, and rescue legal history from the historians!
Conservative judges like to say that they’re not activists; they defer to the legislator. Their interest is legal, political, and social conservation: preserving the will of the people. Yet the career of Antonin Scalia, who died on February 13, demonstrates that the most conservative judges are spectacularly more disruptive, to use the modern jargon, than any “social engineer” from the judicial left.
Consider Scalia’s most notorious judgment, District of Columbia v. Heller . His biographer, Bruce Allen Murphy, tells us that Scalia J. considered this opinion, for a five-to-four majority, his “judicial magnum opus.” To stem rampant gun crime, the district had amended its Firearms Control Regulation Act to ban handguns from its jurisdiction. D.C. resident Dick Heller objected, tasking the U.S. Supreme Court with interpreting the Second Amendment to the U.S. constitution: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Any reasonable, grammatical reading of this provision takes the second clause as dependent on the first. A middle school student of average intelligence would read the amendment to say that, to protect their democratic interests, Americans have a constitutional right to an armed militia.
Scalia J., however, was an ardent gun enthusiast and hunter, and his trademark “original meaning” approach to jurisprudence worked – in its literally conservative way – backwards. You choose the result you want, then scour dictionaries, legislation, and law treatises of the legislation’s era to cobble together bits and bobs that support your reading, on the bizarre pretext that this demonstrates how voters would understand the statute. Here, Scalia J. said the business about the militia was simply a “prefatory” clause, and the subsequent “operative clause” did not depend on it. The militia was just one reason Americans could keep and bear arms. The right was unqualified, never mind how reckless that would have seemed in 1791, when the amendment took effect, let alone how lunatic it is in an age of Kalashnikovs and rocket-launchers.
This is not to say that looking to the original understanding of legislation – and particularly of a constitution – is unhelpful. Such an approach is an important tool in statutory interpretation, and when used dispassionately, without an agenda, it really can help curb judicial ADHD amid the fruit of the living constitutional tree. Conservative activism such as Scalia’s, however, can be at least as pernicious: it tends to stunt the tree in a sort of zombie state, a living death.
Musicology provides an interesting case study of this. In their 1991 essay “Law, Music and Other Performing Arts,” J. M. Balkin and Sanford Levinson do not mention Scalia J., and refer only in passing to “originalist” jurisprudence, but they use Beethoven’s first piano concerto to illustrate similarities between interpreting law and interpreting music. The pianist Charles Rosen, they explain, has argued that a particular note in the concerto should be an F-sharp, even though Beethoven has written it as an F-natural. The piano was evolving in Beethoven’s time, but when he composed the piece there was no higher note on the keyboard than the F-natural. “To be sure,” the authors write,
Beethoven might have written “aspirationally” and composed what, though impossible under current [i.e., existing] conditions, could nonetheless be aspired to under some future imagined state. Thus Rosen writes of a piano sonata in which Beethoven “asks for a successive crescendo and diminuendo on a single sustained note,” even though “the instrument that can realize this has not yet been invented.” But at least this suggests that Beethoven was capable of envisioning the possibility of radical transformation regarding piano design and wanted to signify an intention should those possibilities ever be realized. What, then, does the performer do with the F-natural, where Beethoven appears instead to have acquiesced to the limits of the instrument?
…[T]he expansion of the keyboard happened only shortly after the composition of the first concerto; high F-sharps soon were available to both composers and performers, as exemplified by Beethoven’s own use of this note in a number of subsequent compositions, including … a cadenza meant to be performed as part of the first concerto. He did not, however, return to the initial composition and physically change the notation of the earlier F-natural, in spite of an announced intention, in Rosen’s words, “of revising his early works in order to make use of the extended range.” What, then, is a performer to do when she comes to the measure in question? Should she feel bound by the “plain meaning” of the written score, which displays the F-natural, or ignore it and play what Rosen, a gifted pianist, calls the “obviously” preferable F-sharp?
A true originalist would say that if the performer is interested in an “authentic” performance, the answer is clear. Once the expanded keyboard was available, Beethoven wrote music using the F-sharp, including a cadenza for the concerto in question. He likely added the note to older works, but not to this concerto. Therefore, a performer acting “legally” should play the F-natural, not what sounds “better” to her modern ear. While the higher note might “do justice” to the piece and its modern audience, such justice ultimately is the domain of the larger public – the commonwealth of serious scholars, musicians, and listeners, not the individual interpreter. This is true originalism, as contrasted with dictatorial political activism disguised as conservative respect for democratic principles, twisting interpretation to a desired end. Aspirational justice is a matter of evolution for the legislator and the people, building consensus, working with the constitution as a living document, singing with the times.
(Parts of this essay originally appeared in my column in The Lawyers Weekly)
Colloquialisms in a legal context can give the translator at least as much trouble as legalese. In 2001 I was called upon to translate some material dealing with trademark infringement and the famous remark by Justice Foster of the English Court of Chancery: “Only a moron in a hurry would be misled” so as to confuse a tabloid called the Daily Star – featuring lurid sex scandals, murders, and topless crumpets on page three – with the Morning Star published by the plaintiff.(1) The Morning Star was a communist political tract and had recently changed its name from the more notorious Daily Worker. As the translation involved a general discussion of this unattractive arriviste among legal fictions, I was obliged to render not only “a moron in a hurry” into credible legal French, but also “a moron in a hurry in a dimly-lighted room,” in homage to our dim-witted hero’s later appearance in a forgery prosecution. When the defence there said that only a moron in a hurry would have been fooled by the forgery, the Crown asked, “Yes, but what about a moron in a hurry in a dimly-lighted room?”
How to proceed as translator? Well, you review the French you know for “moron.” You don’t want the clinical sense, because what Justice Foster means is not really “moron,” psychometrically, or “idiot,” or even “fool,” but something more like “numbskull,” “scatterbrain.” I had a Frenchism in mind which I particularly like, but I looked in my dictionaries to make sure. I got another technical term: crétin.
I tried an old translation program I once bought on a lark, and that’s really all it’s good for. It gave me idiot for “moron,” and for his sojourn in the finster, “Un idiot à la hâte dans une [dimly-lighted] salle.” This wasn’t bad really, but it just couldn’t handle “dimly-lighted.” In fact, the much-more modern Altavista translation utility on the Internet did worse: un moron dans une hâte dans faible–allumée une salle. Never mind the word choice, even the word order and grammar were wrong. And when I asked it to translate back un moron dans une hâte it gave me “a moron in a haste.”
The Web’s WorldLingo (note that this was 2001) at least got the word order: un moron dans une hâte dans une salle faible-allumée. But I turned back to my own translation, confident that no machine could come close to replacing subtle little me. And I went with my first choice: “un con pressé” en sortant à la hâte d’une salle faiblement illuminée.
The machines had missed the point that “moron in a hurry” needed quotation marks to show the irony. They had missed the idea that he was rushing through (en sortant de) the room, and that the room wasn’t made weak with light but lighted dimly (not faible, the adjective, but faiblement, the adverb). But it must be said that, at least on the evidence of this small test, Google Translate has advanced machine translation. When, in mid-2013 I fed it our moron in the finster, it immediately regurgitated, “un crétin pressé dans une pièce faiblement éclairée.” While this human translator believes that crétin remains inexact (in a sense, too colloquial and slangy), the adverb problem was solved, and arguably éclairée is better than illuminée, although mal éclairée might be better French than either.
Best of all, I got to use the colloquial con, a term francophones reserve for real twits – someone who, according to my British-French dictionary (which I use partly because it makes life even more interesting), is really “bloody stupid,” sort of like machine translations. Yet I remained concerned that, like bloody to some British minds, con might have retained its historic baseness, having derived, according to Le Petit Robert, from Latin cunnus, with the primary meaning, “the female sexual organs” – more precisely translated c-nt. But Robert adds that, “familiarly,” the word has meant “imbecile, idiot,” in the non-clinical, insulting sense, since at least 1790. Then, too, around the time I was struggling with this translation, a friend who had a master’s degree in French literature jokingly labelled something I’d said as con. She was a prim homemaker, and the third party in the conversation was a very intelligent if plain-spoken French teacher from Paris. I was hurt, but also the only one present who flinched. No one seemed to be calling me “the c word.” But the logomachy did not end there.
When I wrote about this private, possibly con, struggle in my column in The Lawyers Weekly, a reader assured me that, indeed, only “the vulgar” used con to indicate a stupid or idiotic individual. In a very nice note, it must be said, he explained that he had bachelor’s degrees from Lycée Mignet in Aix-en-Provence and Cambridge (in French), and a master’s degree in comparative literature. He had lived in France for two years, but admitted he hadn’t been there for twenty. Still, “I know for sure that con… means literally c-nt, and, I think, would not be used outside of a locker room by anyone of education, certainly not a judge in a court.” Which, as I say, was fair enough, and is a good indication that according to their sensibilities, age, geography, and experience, reasonable translators will differ.
Indeed, three years earlier, the salient word – meaning “nitwit,” “nerd” in this case – was even featured in one of the year’s most popular films worldwide: Le dîner des cons (“The Dinner Game”). It was perhaps no answer to my anxious reader that the delightful (if nerdy) M. Pignon was the polar opposite of a c-nt, and that Georges Brassens (by then deceased) had been publicly performing what became the movie’s title song from about 1960, including this in the chorus(2):
Le temps ne fait rien à l’affaire. Time has nothing to do with it all.
Quand on est con, on est con! When you’re a con, you’re a con.
Qu’on ait 20 ans, qu’on soit grand-père Whether you’re twenty or an old grandpa,
Quand on est con, on est con! When you’re a con, you’re a con.
Entre vous plus de controverses, Enough of arguing again and again,
Cons caduques ou cons débutants. Clapped-out cons or rookie cons
Petits cons de la dernière averse Little cons of the latest rain,
Vieux cons des neiges d’antan. Old cons from the snows of yesteryear.
Not counting the repetition of the chorus, the word con occurs thirteen times in the song. Notice that, while I’ve tried to preserve the chorus’s rhyme scheme (more or less), I’ve left con untranslated, a choice I made given that I already have explained at length the various ambiguities at work. Again, it’s a matter of context, and, you, reader, now have sufficient information to make up your own mind about what Brassens means to say.
As a complete defence, at last, I rely absolutely on what M. A. Screech writes in his “A Note on the Translation” of his breathtaking rendering of Gargantua and Pantagruel (2006). As to “c-nt and con: conneries (“c-nteries”) is a word accepted in elegant French parliamentary debates or in a polished broadcast.”(3)
(1) Morning Star Co-Operative Society Ltd. v. Express Newspapers Ltd.,  F.S.R. 113. For a fuller discussion of this case, see my Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life (Toronto: ECW Press, 2003). My working title for this book was, in fact, The Moron in a Hurry, but my publisher plumped (wisely, I now think) for a subheading in the manuscript, referring to trademark litigation by the Anheuser-Busch brewery, makers of Budweiser beer, over the slogan, “Where there’s life, there’s Bud.”
(2) From “Les trompettes de la renomée,” 1961.
(3) Rabelais, Gargantua and Pantagruel, trans. M.A. Screech (London: Penguin, 2006), xlv.
The recent death of Harper Lee propels me to share some thoughts about her famous fictional lawyer, Atticus Finch, in the context of that insistent legal fiction, the reasonable person of the law reports.
Notoriously and deliberately, the RP is “an excellent if odious creature.” Setting the standard we must strive for to avoid negligence or other unlawfulness, he is of our world if woodenly complacent, imperfect but somehow always doing the right thing. While a classic standard-bearer, he is no Archimedes, so deep in ingenious mathematical reverie that he fails to notice that he is about to be slaughtered by the Romans as they take Syracuse. Rather, he “invariably looks where he is going … [and] neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock.” He is the man on the Clapham omnibus (where he prudently pays the exact fare with all available discounts), but never boards it while it “is in motion,” and even “will inform himself of the history and habits of a dog before administering a caress.”(2)
As standards of reasonableness go, this is a dated and in some ways sorry compromise – cautious, even fearful, but not genuinely excellent.(3) What is legally reasonable does not reflect the relative level of technological and material advancement in the “developed” world, nor the cultural diversity of modern western societies. While more people than ever might be able to read and type, signs of cultural literacy and progress toward comprehensive justice seem commensurately depressed. (Consider the Donald Trump and gun culture phenomena of today’s United States. To paraphrase the novelist Peter DeVries, the fact that so many people can read and write seems the major cause of mass illiteracy.) The really reasonable person, in other words, is arguably an old granola who walks as lightly as possible across the earth singing “Give Peace a Chance” – a new and improved throwback who looks both hindwards and ahead, a nostalgic paradox. Rather than ride the Clapham omnibus to the office (as the old legal characterization has it), or even an electric “smart car,” she probably commutes on a recycled comfort bike and brings her own vegan sandwiches on multi-grain bread, with an organic apple for dessert. She is, in other words, Eve-like, empathetic (if not all that more sympathetic than her law report iteration) but no luddite (Google and LinkedIn are her friends), deliberate and caring like the Eve we see in Paradise Lost, an inquisitive, conscientious neighbour, a phrase I deliberately adopt from the neighbour principle of negligence law, whereby the reasonable person is commanded to follow the community-minded principles of Mosaic law, and more particularly the compassionate behaviour of the Jesus’s Samaritan on the road to Jericho.(4) Were it not for the religious connotation, she would be a tzadik, a word deriving from the Hebrew tzedek for “justice,” to describe those who are righteous and reflexively charitable (“charity,” tzedaka, recall, itself derives from tzedek). The pastoral meets advanced civilization, each complementing the other.
If we can fly to the moon and Mars, not to mention to France in three hours, eradicate polio, and invent smartphones, the old Clapham-omnibus standard insults our potential, asking too little of us in our social life and our personhood. It never transcends the material. In civil law we have moved far beyond mere property interests, with a growing concentration on individual interests, and in the arena of constitutional law, we are impelled into pluralism. A new legal fiction, with more demanding standards of duty and reasonableness, seems necessary, a new, improved reasonable person as our empathic, engaged inspiration and standard-bearer for perfected justice. Like the reasonable man or “good mother of the family,” she still “takes the magazines” and newspapers “at home” (or at least reads them on-line, and “in the evenings pushes the lawnmower in [her] shirtsleeves”(5), but she also reads the books and blog postings, and occasionally listens to public radio – while admitting that for large swaths of parkland a petroleum-powered mower is more reasonable than human-powered, albeit bio-fuelled groundskeeping would be best.
There is precedent for such evolution, after all; until the reasonable man became a person, “at Common Law a reasonable woman [did] not exist.”(6)
Though this might sound facetious, it is about as serious as we can get. More fundamentalist and demanding yet simultaneously more liberal than the reasonable person of the law reports, the really reasonable person is a practical idealist with a keen but not overweening sense of social duty, the neighbour who never, or at least very rarely, says never. While she inculcates the highest achievements of our civilization, she is no magnate or political leader, but, rather, she is that imperfect, ordinary person of sound judgment and sense whom we seek to emulate. (She is too sensible to be a captain of industry or prime minister.) Obliviously, she seeks to bridge the gap between law and justice. While she perhaps does not ride a bike everywhere and perhaps finds organic too dear (except when it’s on special), she resists, or even breaks, an unjust law.
In an interview about halfway through his second term, Barak Obama sounded very like such a conscientious neighbor:
I have strengths and I have weaknesses, like every president, like every person. I do think one of my strengths is temperament. I am comfortable with complexity, and I think I’m pretty good at keeping my moral compass while recognizing that I am a product of original sin.(7) And every morning and every night I’m taking measure of my actions against the options and possibilities available to me, understanding that there are going to be mistakes that I make and my team makes and that America makes; understanding that there are going to be limits to the good we can do and the bad that we can prevent, and that there’s going to be tragedy out there and, by occupying this office, I am part of that tragedy occasionally, but that if I am doing my very best and basing my decisions on the core values and ideals that I was brought up with and that I think are pretty consistent with those of most Americans, that at the end of the day things will be better rather than worse. …
And we’re on this planet a pretty short time, so that we cannot remake the world entirely during this little stretch we have. But I think our decisions matter. … [A]t the end of the day we’re part of a long-running story. We just try to get our paragraph right.(8)
Were Obama not the president of the United States, by this description he would make an excellent objective correlative for our new legal fiction, perhaps in tandem with his wife, Michelle, to complete the yin and yang of the business – Barack and Michele a few years after law school, say.
What does Atticus Finch, the compassionate lawyer of To Kill a Mockingbird, have to do with this? At first blush I imagined that he could serve as the modern exemplar of this new reasonable person, a fictional compassionate man as improved legal fiction. And while I think that it is simplistic, and perhaps grievance mongering, to use Harper Lee’s death as an occasion to complain that Finch’s popularity is another imposition of a “white viewpoint” on racism, Finch is a conscientious neighbour of his time and town (an evolving, reasonable sensibility, which is precisely the point of Mockingbird), not the conscientious neighbour of the 2016 global village. If we mean to be modern as we jet around the planet, we need to be at least as interested in empathy as we are in technology, sport, and entertainment. If we mean to be civilized, our enthusiasm for evolved justice must outstrip our enthusiasm for the material.
(1) These ideas grow out of my work on justice as nostalgia – see the Justice page
(2) A.P. Herbert, “Fardel v. Potts,” Uncommon Law (London: Methuen, 1935) 1 at 3.
(3) Jeffrey Miller, The Structures of Law and Literature (Monreal: McGill-Queen’s U. Press, 2013) at 165-72 and passim, where the typology and standard are discussed in greater length.
(4) Ibid. at 65-114.
(5) Stansbie v. Troman  L.J.N.C.C.R., 137.
(6) Robert Megarry, Miscellany-at-Law (London: Stevens & Sons, 1955), at 261.
(7) As Obama is demonstratively Christian, we cannot assume that he means this metaphorically, but for our purposes we shall.
(8) The New Yorker, Jan. 27, 2014, 40-61 at 61. The interviewer is the magazine’s editor-in-chief, David Remnick.