Old College’s new library plans are bittersweet

Old College, The University of Edinburgh

It is exciting to see the University of Edinburgh finally renovating Old College – home of the School of Law. Being a traditionalist, it is sad to see the old staircase walked by students and professors since the 1790s retired and the library moved from the second and third floors to the first floor.

If I had the money, I’d donate to renovate the Old College with research space on the second floor, as it gets pretty depressing in winter without much sunlight. I’d also push for more Georgian décor and elegance.

The author graduating from Edinburgh's
Law School, which is in Old College.

The new interior will be lots of glass and the thin, shiny desks popular in Scandinavian design. Perhaps the result will be a chiaroscuro of Old World façade and Modern European interior. The Old Library and Lecture Theatres had a certain homey feel, which will be fondly missed, as the more modern design looks quite institutionalized.

Studying in the Law Library. circa 2010.

I wish the law student library could be as grand as the Playfair, Trinity College Library, Bodleian Library or the Schwarzman NYC library on the interior.

My fear is that the Scandinavian Modern design will be out of vogue in a decade or so and that even if not, there is a high likelihood it will not stand up well to the wear and tear of student and academic use.

Staircase to library. The steps
are worn from 225 years of
students climbing to the library.

As far as funding goes, I am surprised Edinburgh did not seek the help of a billionaire underwriter, someone like a Stephen Schwarzman, who founded Schwarzman Scholars and donated to have the NYC Mid-Manhattan library restored to its full glory.

I’m pleased to send in my small donation, but it seems the leadership of the University has not fully tapped the big money floating in the private sector.

When the work is completed I look forward to visiting my alma mater and seeing Old College.

The quadrangle project was fantastic, so perhaps, the library, faculty offices, and lecture theatres will be the same.

____________
M. Soper, Letters: Old College’s new library plans are bittersweet. Edinburgh Evening News (Edinburgh, Scotland) 3 July 2014.  http://www.edinburghnews.scotsman.com/news/opinion/letters/letters-old-college-s-new-library-plans-are-bittersweet-1-3463708 accessed 4 July 2014.

Limits on the right to marry?

New England Patriot's Tight End Aaron Hernandez and fiancé Shayanna Jenkins

In a year filled with debates about marriage and the Constitution, should Aaron Hernandez (pro football player charged with murdering Odin Lloyd) be allowed to marry his long-time girlfriend and alleged fiancée, Shayanna Jenkins?

Under MA rules of evidence, 'spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.'

If Hernandez is allowed to marry Jenkins it could bar the prosecution from compelling Jenkins to testify against Hernandez. Authorities from Bristol County say they will not allow nuptials to be exchanged so long as Hernandez is being held on remand.

Is this bar to marriage legal under a Constitutional right to marry theory? Could Hernandez pursue an interlocutory appeal on the basis of the right to marry?

Soper receives LLM from UNH

Matthew Soper was presented an LL.M. in intellectual property law from University of New Hampshire School of Law in a May ceremony.

Boies, Soper, and Olson

Noted attorneys Ted Olson and David Boies, who just argued the same-sex marriage case before the U.S. Supreme Court, addressed the graduating class.

While at UNH School of Law, Soper participated in the Intellectual Property and Transaction Clinic and the Teen Court Program.

Of his experience at UNH School of Law he says, "I polished my legal skills and gained invaluable practical experience which I will be able to bring back to Colorado. Additionally, I made many new friends from around the world. It was great fun being in New Hampshire during a presidential election and meeting who's who in U.S. politics."

Matt Soper, LLM

Soper stepped down from his position as Orchard City trustee to attend the University of New Hampshire School of Law. This degree qualifies him to sit for the bar exam, something he was unable to do without an American law degree.

A 2003 graduate of Delta High School, Soper earned his LL.M. in public international law, with a focus on maritime piracy law, and LL.B. in law at the University of Edinburgh in Scotland, Great Britain, in 2009 and 2011 respectively.

Soper earned a bachelor's degree in political science and marketing from Mesa State College in 2007. He is the son of Betty and Charles Soper of Delta.

______________

'Soper receives degree from UNH'. Delta County Independent. 29 May 2013 <http://deltacountyindependent.com/index.php/neighbors/milestones/people-in-the-news/36-milestones/people-in-the-news/6151-soper-receives-degree-from-unh>

Legal implications: Did J.K. Rowling misrepresent her nationality to U.S. Copyright Office?

Dame J.K. Rowling accepts an award from The University of Edinburgh
Chancellor, HRH The Princess Royal

Harry Potter author J.K. Rowling misrepresented her nationality and/or domicile status when she registered her book, Harry Potter and the sorceror’s stone (Reg. No. TX0004879549, Sup. TX0005164406), with the U.S. Copyright Office on 1 October 1998. Ms. Rowling indicated that her nationality or domicile status was the United States. The Business Insider (quoting The Times) quotes J.K. Rowling as saying:

 “I chose to remain a domiciled taxpayer for a couple of reasons. The main one was that I wanted my children to grow up where I grew up, to have proper roots in a culture as old and magnificent as Britain’s; to be citizens, with everything that implies, of a real country, not free-floating ex-pats, living in the limbo of some tax haven and associating only with the children of similarly greedy tax exiles.
 A second reason, however, was that I am indebted to the British welfare state; the very one that Mr Cameron would like to replace with charity handouts. (sic) When my life hit rock bottom, that safety net, threadbare though it had become under John Major’s Government, was there to break the fall. I cannot help feeling, therefore, that it would have been contemptible to scarper for the West Indies at the first sniff of a seven-figure royalty cheque. This, if you like, is my notion of patriotism.”

A simple Google search also gives prima facie evidence that Ms. Rowling has not been granted American citizenship, nor was she domiciled in the United States in 1998. It seems bizarre that Ms. Rowling, a former French-English teacher would commit fraud on her copyright registration form. Any reasons, ranging from intent to negligence, would be merely speculative.

What is the legal effect of an error on a copyright registration? More specifically, how would such an error, whether intentional or not, impact an action for copyright infringement in the U.S. federal courts?

The general rule is found in § 411(a) of the U.S. Copyright Act (1976), which took effect on 1 January 1978:

 “[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.”

An “immaterial, inadvertent errors in an application for copyright registration do not jeopardize the validity of the registration.” Data General Corporation v. Grumman Systems Support Corporation, 36 F.3d 1147, 1161 (1st Cir.1994); see Automated Solutions Corp. v. Paragon Data Systems, Inc., No. 1:05 CV 1519, 2008 WL 2404972 (N.D.Ohio June 11, 2008).

U.S. federal courts have exclusive original jurisdiction over actions arising under the federal copyright laws. 28 U.S.C. § 1338(a). An action “arises under” copyright laws, “if the complaint is for a remedy expressly granted by the [U.S. Copyright] Act [(1976)], . . . or asserts a claim requiring construction of the Act . . . or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim.” T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435(1965).

JK Rowland's US Copyright registration which indicates

 her citizenship is: USA. (click picture to enlarge)

For example, “[m]istakes such as an incorrect date of creation or failure to list all co-authors easily qualify as immaterial because the Copyright Office's decision to issue a certificate would not be affected by them.” Torres–Negron v. J & N Records, LLC, 504 F.3d 151, 158 (1st Cir.2007) (citing Data Gen. Corp., 36 F.3d at 1163). “[W]here a plaintiff's registration was procured through fraud . . . the registration becomes invalid and the courts lack jurisdiction over the case.” Id. at 162.

This means that registration, involving material errors, fraud, or an incomplete application, nullifies the U.S. federal court's subject matter jurisdiction. 17 U.S.C.A. § 411(a).

Does the fact that Ms. Rowling’s copyright registration contains an error as to her nationality affect her ability to claim remedies expressly granted by the U.S. Copyright Act? The answer is no, as that is an error in the application which did not affect the Copyright Office’s decision to issue a certificate of copyright. A material error would be fraud, in which J.K. Rowling had asserted ownership over a work in which she was not the author, owner, agent, or exclusive licensee. This was certainly not the case with Harry Potter and the sorceror’s stone. Copyright registration is a presumption of ownership. A presumption is subject to rebuttal. The main premise of the formality of registration is the presumption of ownership.

Whilst Ms. Rowling’s nationality and/or domicile is factually inaccurate on the copyright registration, that error does not affect the presumption for which copyright registration is sought.  

Trustee Soper's resignation letter

Dear Mayor and Board of Trustees:

This letter is to intimate my resignation from the Board of Trustees, effective upon the swearing-in of a lawful replacement. This past July complications with the New York Court of Appeals arose regarding my qualifications to be called to the bar under newly enacted regulations. These regulations were in response to the financial crisis and were designed to protected American legal jobs for American lawyers. Unfortunately for my situation, I studied outside the United States, which means I fall under these new regulations. Prior to this summer, the regulations allowed anyone who had studied at least three years of law within a common law jurisdiction to pay the fee and sit for the New York Bar Exam. Providing a candidate passed the bar and an ethics check, and then they would be admitted to practice law.

After being informed of the situation, I launched an appeal, based on legitimate expectations and the grandfathering clause. My appeal ultimately failed and I am required to complete an LL.M. (master of laws) degree at an American Bar Association (ABA) law school. The program must be taught in-person and certain course work completed before admittance to sit the bar will be granted. I applied to the University ofNew Hampshire, School of Law and was accepted. They have a continual admission process right up until classes commence. Once I have completed this degree, I will then sit for the bar exam in July 2013.

The entire affair has come as a surprise and it is with great sadness that I must step down from my seat on the Orchard City Board of Trustees. Since I will no longer physically be in the jurisdiction of the town, I will not be able to be an effective representative for my constituents. I have been honoured to represent my fellow citizens for the past six months and it has been a privilege to hold this position of esteem trust. I believe the good people of Orchard City will understand that since I already have a substantial educational investment in becoming an attorney, I cannot afford to do anything but comply with the new regulations.

In these past six months I have learned much about municipal government - especially in relation to water. As the author of the mosquito resolution, concerning the EPA's and Agenda 21 's attack on aerial spraying, I was pleased to see our board send a strong message to our congressional leaders. Helping repeal the water conveyance rule, which took water away from farmers in good years only to sell it back to them in drought years, was an accomplishment

which helped loosen the regulatory barriers imposed by local government. Voting for our hydropower- unit and voicing concern over our engineering firm was about due diligence and looking out for town's future. Most importantly, I proud to have played a role in the Centennial celebration of my town- in the town play I portrayed the Cory postmaster (ironically, a position my cousin held for many years).

I have one request to make of the board. I'd recommend the Board of Trustees fill my vacancy with an individual with similar characteristics as me. The electorate voted for certain values and characteristics, which I brought to the Board of Trustees and it is only fair to the people to maintain these elements. In other words, I am recommending against making my vacancy the subject of spoils and patronage.

Orchard City is a great town and a place where I plan on raising my family, practicing law, and retiring someday. Being an advocate for my neighbours and representing them has truly been rewarding. Orchard City's Board could teach representatives in Washington, DC a lot about governing, namely how to do more with less and balancing a budget. I am pleased to say that in this half-year together we have upheld the public trust and managed the best interests of the town to such a degree that our founders would be proud.

Thank you and God bless,
            /s/
Matthew Soper,
BA, LLM, LLB
Trustee, Town of Orchard City,
State of Colorado

UK Academic Tour: Edinburgh, Cambridge, Oxford & Stratford-Upon-Avon

Today I just got back from an academic tour of southern England with my friend and LL.B. colleague, Jonathan Price. Prior to leaving for England on Monday, 13 June, I met up with my former Third Grade teacher, Carol (Beck) Martinson, and her husband, Lee Martinson, in Edinburgh. They were on a cruise ship tour of the North Sea countries and one port of call was Rosyth, which is about 30 minutes from the city centre of Edinburgh. It was pretty cool showing them around Edinburgh and catching up over a traditional Scottish pub lunch.

After leaving the Martinsons at Waverly Train Station I walked up the Royal Mile and noticed a plethora of classic Bentleys. One Bentley from the 1920s was displaying a Colorado and Swiss flag and I had to inquire about the owner. The man was half-English and Swiss, but lived in Colorado. His attire and demeanour seem very much reminiscent of someone from the autocracy and I didn’t suppose collecting classic Bentleys and having multiple residences around the world were characteristics of an average middle aged man. He was very kind and allowed me to photograph him with his prize car, which carried a top speed of 120 mph (193 km/h).

I was delighted to receive a text from a friend, Nayha Sethi, whom I studied with during the LL.M. programme that another friend, Myggan Hagenfeldt, was going to be in town. I met with the two of them plus all of the others who were in the LL.M. together and are still hanging about in Edinburgh at the Advocate pub. It was great to also meet Myggan’s fiancé.

At 22h00 I arrived at the bus station to take the night bus down to London, where I would rendezvous with Jonathan. To my surprise, another friend and colleague, Pippa Robertson, from the LL.B. programme was also riding the same bus to London. Even more surprising we were going to be in Oxford on the same day and taking the same bus back to Edinburgh on Thursday (16 June) night. For the majority of the ride we talked about our travels around the world, the LL.B. and post degree plans and dreams. I discovered the two of us could not be more opposite, yet we have always gotten along – perhaps a tribute to a diplomatic personality my characteristics inherited from my grandpa Howard of not knowing a stranger.

From London, Jonathan and I rode the train to Cambridge. Once in Cambridge, we checked into our hostel, which was inexpensive, but not very nice, and headed for the university buildings. Cambridge and Oxford are both colligate institutions, meaning they are a collection of colleges, each with their own student living space, dining halls, libraries, chapels, quadrangles and cloisters. Wealthier colleges would also have sports halls, gardens, deer parks, orchards, docks for punts, and such amenities as lawn for tennis, croquet, and bowling. Each college looks after their own students; however the university’s function is to regulate the curriculum, examinations, lecture and tutorial time tables and facilities. Each college will have students from a variety of backgrounds, each reading varying topics. For example, we met up with a friend of mine, Liz Campbell, who is doing her LL.B. at Cambridge and she explained that only five students in her college are reading law, out of two or three hundred students in total. There are 31 colleges in Cambridge and 42 (9 of which are private) at Oxford.

The colligate structure seems to extract the greatest learning potential out of students, however the inequality of the colleges and the elitist attitude of the entire university mean that there is aura of self confidence and entitlement to being the leaders in their career fields, which is both commendable and irritating if you are not from the Ivy League / OxBridge.

Jonathan and I engaged in the traditional Cambridge activity of punting on the River Cam and drinking Pimms and Lemonade. After punting we joined my friend Liz for the opening night of Cambridge Footlight’s Edinburgh Fringe 2011 comedy show. Footlights is the British comedy club of Cambridge University, founding in 1883 and has amongst its alumni the likes of John Cleese, Stephen Fry, Hugh Laurie, and Douglas Adams to name a few. After the performance we took a drink at the Cambridge Union.

The next day we rode the three hour bus to from Cambridge to Oxford and joined two of Jonathan’s friends for lunch a Oriel College, Oxford, which is the fifth oldest (founded 1326) amongst the colleges of Oxford and was funded by a foundation charter from the monarch, King Edward II. Oriel would be equivalent to King’s College, Cambridge, since it was originally funded by the Crown. Because of this, Oriel’s dining hall features the largest portrait of HM Queen Elizabeth II.

We toured several Oxford colleges, including Christ Church, Trinity, Lincoln, Jesus, Magdalen, Merton, Pembroke, University College. At Jesus College we watch students douse a fellow student who had just completed her final exam. Apparently this is a fairly old Oxford tradition. I did not realize before visiting Oxford, that student wear academic dress to each and every exam and must also carry (but never wear) their mortar board hat. Only upon commencement and award of degree is the student permitted to don the hat. Also at graduation, a academic hood is worn to denote the degree and college. A few years ago Cambridge voted to get rid of the tradition of wearing the academic robs to exams and in response Oxford liberalized the tradition by permitting student to wear cotton, in addition to silk socks, to exams.

During the evening we attended Choral Evensong at Christ Church College Cathedral, which is the seat of the Oxford Archbishop. The music of the choir was Heavenly and it was very nice to be able to partake in such a vivid and living tradition of the university. After Evensong we had a traditional pub dinner at the Eagle and Child pub, which was a famous hang out of C.S. Lewis and J.R.R. Tolkien and their literary friends known as the Inklings. On the way back to our hostel we pasted by Black Friars, which my friend and former flatmate, Kyle Bixenmann, from the U.S. studied. The next day we had breakfast at Oriel College and then caught the train for William Shakespeare’s birthplace, Stratford-Upon-Avon.

Stratford-Upon-Avon is a town which survives solely on William Shakespeare’s legacy and has been a tourist destination for over three hundred years. Some of the first entries in the visitor registry of the birthplace house were Thomas Jefferson and John Adams, both of whom went on to serve as presidents of the American Republic. The home Shakespeare actually built no long exists, however the adjacent home and the home of his daughter, who married a wealthy medical doctor, are preserved as museums for the nation and public. Had we had more time it would have been great fun to attend a performance of the Royal Shakespeare Company (RSC), which operates in Stratford-Upon-Avon, London, and New York City. The town is very Elizabethan, with the iconic black and white framed homes with the thatched roofs. A few building have been built to match the vintage ones, but a careful eye will note that the ancient buildings lean and sag from the weight and passage of time. It was a pilgrimage to finally see where William Shakespeare was born and lived and to have the connection with one of the world’s most well known playwrights.

From Stratford-Upon-Avon, Jonathan and I rode the bus to London where we met Pippa at Victoria Train Station for a cuppa tea and a recap of our exciting week. From Victoria, London, we headed back for Scottish Capitol of Edinburgh. I am always amazed and impressed that I have had the opportunity to study and live in Great Britain and be able to see sights which I had previously only read about, I am truly a blessed individual. 

Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

The Offside Goals Rule

The offside goal rule (doctrine of notice) deals with the consequences of fraud and applies to corporeal and incorporeal property which is capable of possessing a real right. The case law in this area stretches back to the 16^th Century (Stirling and White v Drummond [1582] Mor 1689), though attention was not drawn to this rule in law until Rodger (Builders) Ltd v Fawdry 1950 SC 483;Wallace v Simmers 1960 SC 255 and Trade Development Bank v Warriner and Mason 1980 SC 74 along with Optical Express (Gyle) Limited v Marks & Spencer plc 2000 SLT 644; The Advice Centre for Mortgages v McNicoll 2006 SLT 591 and most recently Gibson v Royal Bank of Scotland[2009] CSOH 14.

There is much academic debate as to whether or not the rule is good or bad law; if the former, then should be in the corpus of property and conveying law, or contract law, as the circumstances which give rise to such a rule are usually rooted in the contract. The rule has been given fundamental principal status in Burnett’s Tr v Grainger 2004 SC (HL) 19,^[1]in which Lord Rodger of Earlsferry referred to the offside goals rule in his opening paragraph.

“[T]he offside goals rule provides that a transfer or grant of a real right by A to C will be voidable if (i) A had already undertaken to transfer or grant a right in the same property to B (ii) that prior right was "capable of being made real" (iii) the grant to C was in breach of the prior obligation to B and (iv) C knew of that prior obligation or acquired gratuitously or at a material undervalue.”^[2]

If a party is to dispute another’s title, then they must demonstrate that the acquisition was defective on account of the transferee being in bad faith. “On this basis, the “offside goals” rule allows the reduction of a perfected transfer on proof of bad faith in the form of knowledge, actual or imputed, of the prior entitlement of another party.”^[3]

“If the owner of land agrees to grant a lease, but then sells the land before the tenant has gained a real right, the tenant may seek to invoke the offside goals rule if the new owner knew about the grant of the lease.”^[4]

“One difficulty with the offside goals rule is that a race to the register can only ever be a blind man’s race: one in which neither party knows who else might be running; the race is one against a ghost: the spectre of a trustee in sequestration. But, as I have indicated, as a result of the reforms that followed the Sharp v Thomson and Burnett’s Tr v Grainger saga, providing agents can get their act together within 28 days [(Bankruptcy (Scotland) Act 1985, s 31(1A) and (1B))] of delivery of a disposition from a natural person or other transferor that may be sequestrated, such a race can but rarely arise”, writes Dr Ross Anderson in his 9 June 2010 address to the Royal Faculty of Procurators 2010 Conveyancing Conference in Glasgow, Scotland.^[5]

University of Edinburgh lecturer, Scott Wortley, explains the offside goals rule has been given “detailed consideration by Professor Reid, The law of property in Scotland (1996) paras 695 - 700; Professor Carey Miller and David Irvine, Corporeal Moveables in Scots law (2nd edn, 2005) para 8.31, Ross Anderson in a valuable article "Offside goals before Rodger Builders" 2005 JR 277 (and an updated version in his Assignation (2008) paras 11-04 - 11-31, as well as my own discussion in 2002 JR 291 and in Professor McDonald's Conveyancing Manual (7th edn, 2004) paras 32-51- 32-62.”^[6]

It should be noted in football (soccer) an offside goal is void, whereas in conveyancing and property law an offside goal is voidable.

---

_____________________________

^[1]2004 SC (HL) 19 at para 67

^[2]P Webster, ‘Options for the offside goals rule’ [2009] 13 Edin L Rev 524

^[3]DC Miller, ‘Title to moveables: Mr Sharp's Porsche’ [2003] 7 Edin L Rev 221

^[4]GL Gretton & AJM Steven, Property, Trusts and Succession (Tottel Publishing, West Sussex 2009) 263

^[5]R Anderson, ‘The offside goals rule in practice’ Royal Faculty of Procurators 2010 Conveyancing Conference 9 June 2010

^[6]S Wortley, ‘Offside traps - Gibson v Royal Bank of Scotland [2009] CSOH 14’Edinburgh Centre for Commercial law blog <http://www.law.ed.ac.uk/ecclblog/blogentry.aspx?blogentryref=7681> 9 Feb 2009 accessed 26 Apr 2011

Lord Hope of UK Supreme Court addresses the notion of hearing Scottish cases in London

Over two-hundred law students, trainees, solicitors and advocates attended the inaugural annual lecture of the Scottish Young Lawyers’ Association. The keynote speaker was The Right Honourable Baron Hope of Craighead, KT, PC, QC, FRSE. Lord Hope is the Deputy President of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland along with being Chancellor of the University of Strathclyde in Glasgow. Lord Hope is arguably considered the 21th Century most eminent scholars of jurisprudence and is one of only ten individuals to have served on the final session of the Appellate Committee of the House of Lords and the inaugural session of the Supreme Court.

The lords of appeal in ordinary or Law Lords were physically moved from the chambers and halls the Parliament Building at Westminster to the newly created bench at Middlesex Guildhall, which is located between Westminster Abby and the HM Treasury Building. The House of Lords, which is the upper house of the UK’s legislative branch of government, served as the highest court of appeal from 1399 to 2009. The Law Lords used to hear appeals each day in the chamber of the House of Lords. During the Second World War the House of Commons was bombed and the Law Lords moved their hearings to a nearby committee room to escape the noise of the building repairs, constituting themselves as an Appellate Committee for the purpose. In fact, this temporary arrangement proved so successful that it became permanent, and continued until it was abolished and replaced by the Supreme Court on 1st October 2009.

Lord Hope’s speech was called, “Scots law seen from south of the border”, and focused on a comparison between the world when he began law school at the University of Edinburgh in nearly 50 years ago. He emphasised how much has changed, but said to long to go backwards is not the way forward and stressed how much better off students are today with a refined and long educational tenure to join the profession of law.

Lord Hope also mentioned how much technology has changed and how much more of a demand is on the profession for accuracy, efficiency and minimizing errors. His reflection of his career also included a bit of rye humour, as he said, “It was, of course, a different world in 1962. It was not quite the world of silent motion pictures, although many of the films were still in black and white. Sex had not yet been discovered. That did not happen until 1963, according to the poet Philip Larkin. Nor indeed had drugs. For the most part we did what we were told. As students we all wore jackets and ties and, unlike those who followed soon afterwards, we all had short hair cuts, unlike a few years later when Gordon Brown, the former Prime Minister, had hair down to his shoulders.”

The speech went on to address how the Supreme Court dealt with Scottish cases being appealed from Inner House of the Court of Session (unlike England, the Inner House has a right of appeal to the Supreme Court). Lord Hope spoke of the Scottish case, “Sharp v Thomson[1], which was followed a few years later by Burnett’s Tr v Grainger[2]. It was a case about personal insolvency. There the question was whether the house was part of the ‘whole estate’ of the debtor so as to be part of the estate which vested in his trustee in bankruptcy. The House of Lords distinguished Sharp and held that it did: the trustee does indeed take both the house and the money. Centuries of case law made clear which meaning was to be given to phrase ‘the whole estate of the debtor’ used in the Bankruptcy Act. It was made clear that there was no intermediate right between a personal and a real right, and that delivery of the disposition did not give rise to a trust, either actual or constructive, in favour of the buyer. By now the personnel in the House of Lords had changed. I was one of the two Scottish judges on that case, along with Lord Rodger. Lords Hoffmann, Bingham and Hobhouse made up the rest of the panel. Anyone who reads the opinions of Lords Hoffmann and Hobhouse will see that they felt strongly that the case should have been decided the other way. But they did not dissent. Lord Bingham, however, felt strongly that on an issue such as this – where there was genuinely a distinctive point of principle of Scots law – that if the Scottish judges reached a particular decision, it was not for him – unfamiliar with the system – to interfere.”

The final points Lord Hope made concerned the Cadder Case[3], in which the Supreme Court upheld the ECHR against the Scottish procedural rule of being able to interrogate a detainee for up to six hours without legal representation. He could not make too many comments, as there are five cases on appeal to the Supreme Court, which concern clarifying Cadder.

Lord Hope concluded by saying as long as the Scottish courts sent business down to London, then the Constitutional Convention of having two of the twelve justices on the Supreme Court coming down from Scotland and one from Northern Ireland would continue to be upheld. He did mention that if Scotland were to make the Court of Session the highest court in the land, then there would be no need for the convention to be sustained.

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[1] 1997 S.C. (H.L.) 66; 1997 S.L.T. 636; 1997 S.C.L.R. 328; [1998] B.C.C. 115; [1997] 1 B.C.L.C. 603; 1997 G.W.D. 9-364

[2] [2004] UKHL 8; 2004 S.C. (H.L.) 19; 2004 S.L.T. 513; 2004 S.C.L.R. 433; [2004] 11 E.G. 139 (C.S.)

[3] [2010] UKSC 43; [2010] 1 W.L.R. 2601; 2010 S.L.T. 1125; 2010 S.C.L. 1265; 2010 S.C.C.R. 951; [2010] U.K.H.R.R. 1171; (2010) 107(43) L.S.G. 21; (2010) 154(41) S.J.L.B. 30

End of an era - final law school lecture

Lord Advocate v Royal Bank of Scotland 1977 SC 155

Facts: Imperial Hotel (Aberdeen) Ltd barrowed a sum and granted a floating charge to the lender. Financial difficulties struck along with taxes due. The Inland Revenue (The Gov’t), who were owed £4,850 arrested Imperial Hotel’s bank accounts on 23 May 1974. As the financial position worsened, the lender appointed a receiver (Frank Mycroft) on 17 July 1974. Once the company went into receivership, the floating charge attached to all of Imperial Hotel’s assets, including the bank account.

Question for the Court: Who had priority to the bank account? Inland Revenue, who had arrested the accounts two months prior, or the receiver, Mr Mycroft? Did the floating charge trump the arrestment, vís-a-vís?

Held, the Companies (Floating Charges and Receivers)(Scotland) Act 1972 provided a ranking mechanism for priority as being that the receiver prevailed over the creditors unless they had “effectually executed diligence”. Arrestment is a form of diligence, however the court held it was only “effectually executed” if the arrestment had been followed by a furthcoming, prior to the floating charge attaching. Since this had not occurred, the First Division held the receiver prevailed over the arrester.

Analysis: This case is almost universally condemned by academic commentators. The reason why this case is criticize is illustrated by the following example: (i) a company’s bank account is arrested; (ii) the assignation of the company’s bank account to a third party is intimated to the bank; (iii) a receiver is called in and the floating charge granted by the company attaches to the assets; and (iv) the arresting creditor (arrester) seeks furthcoming. The order of ranking in this case is irresolvable, as the arrester takes priority over the third party. The third party takes priority over the receiver. As a result of Lord Advocate v Royal Bank of Scotland 1977, the receiver takes priority over the arrester. The arrester takes priority over the third party who takes priority over the receiver. This conundrum is referred to as a ‘circle of priorities’. The Bankruptcy and Diligence etc (Scotland) Act 2007, which amends the Debtors (Scotland) Act 1987 by adding s 73J, which provides that arrested funds can be released on certain conditions without an action of furthcoming. No judicial consideration has been rendered on this point yet.

If all law is a product of ‘society’, can we nevertheless imagine a society that does not produce any law?

It is strange, if not downright hard to imagine a society without law, as the idea of legalism – the notion of there being a virtue in regulating societal behaviour through a system of expressly structured rules is a hallmark of Western civilization. German sociologist and philosopher, Max Weber (1864-1920), expressed an interest in informal methods of social control and stated, “Judicial formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions”.[1] Weber was ambivalent about the importance of legal-rationality, as he suggested it could easily trap us in an ‘iron cage’ of meaninglessness, as administration categories with highly developed bureaucracies tend to drown-out creativity and fashion a society which is completely uniform and sterile.[2] What could be ‘strength in diversity’ becomes lost in the ‘iron cage’. The outcome of disputes are more often than not under-determined by the law, thus the appearance of predictability becomes merely a façade.

A world without strangers would seem conducive to a ‘society that does not produce any law’. This reasoning rejects rather than welcomes a rule of law. As the rule of law creates artificial bonds of legal rights between strangers in a society where inter-human relations are opaque and values are constantly subjugated to conflict and dispute. In this reasoning it does not seem out of question to consider whether law might be dispensable. During the early days of the Christian Church, believers were admonished about resolving disputes among fellow followers in pagan courts.[3] This scepticism of the rule of law is found in the theories of Karl Marx (1818-1883), which promulgate the elimination of law as a vehicle to class oppression. Marx argued in his early writings, The Critique of the Gotha Programme, under communism, law will ‘wither away’ following the proletarian revolution, in which the bourgeois state would be swept away and replaced by a classless society, without a need for law.[4]

Marx (i) saw law as an ideological cover for capitalism; along with (ii) being a tool of the capitalistic class to constantly suppress the working class. As (iii) a reflection on the economic base, modern Anglo-American law is highly capitalistic; the concept of juristic legal personality and limited liability in company law encourages risk and domination by business. Marx (iv) sees the law as a site of struggle between the classes. A French philosopher once said, ‘the rich and the poor are forbidden from sleeping on the banks of the river Seine’. The problem here is that telling a wealthy person not to sleep on the river banks is quite different from telling a poor person. For Marx, law is an iron fist in a velvet glove and indeed to many of us, the law tends to appear as such from time to time.

A view which seems to move from a codified or dictatorial system of law to more a convention and administrative system, was espoused by Soviet Jurist, Evgeny Pashukanis (1891-1937), who advocated a view of law as a contractual relationship, whereby all law could be explained by this contractual commodity exchange. Pashukanis wrote about law disappearing to administration; however this view was seen as too extreme a theory and Stalin had Pashukanis killed.

The weakness I tend to find in considering a society without law is more or less a practical or logistical one – such as road and traffic laws or laws which are focused on protecting the citizenry from one another. In a perfect world no laws would be necessary, nor would class, culture and race, along with religion, politics and ethnicity divide people. Two barriers would seem to be geographic land mass distances and the sheer number of people whom are scattered around the globe. Barriers seem to rise from a dearth of human mobility, but are broken down by the sharing and diffusion of knowledge. A society without law would seem more suited for a small population, whereby an organic bond of friendship and community ties the members, who share a similar set of values and morals.

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[1] G Roth and C Wittich (eds) M Weber, Economy & Society (Bedminster Press, NYC 1968) 811
[2] L Green, ‘Review: Legality and Community’ (1985) 5 OJLS 463
[3] I Corinthians 6:6-7
[4] S Moore (tr) K Marx and F Engels, ‘Manifesto of the Communist Party’ in Collected Works (vol 6, Lawrence and Wishart, London 1976)

The law concerning polygamy

Today while I was reading and annotating a few in preparations for my International Private Law tutorial I was reminded about an original aim of the Grand Old Party. In the mid-1800s there was wide-spread public hostility towards the practice of polygamy, meaning being married to more than one person concurrently. Joseph Smith, the founder and prophet of the Church of Jesus Christ of Latter Day Saints (Mormons), had a revelation in 1843 in which he called for men to marry more than one woman. Nine years later the Mormon Church officially announced polygamy was religiously superior to monogamy. Public outcry led to religious leaders, journalists and politicians denouncing the practice. The Republican Party, organized in Jackson, Michigan on 6 July 1854, had as their first national platform a denouncement of polygamy and slavery as “those twin relics of barbarism.”

The seminal case of polygamy came in England with Hyde v Hyde [1866] 1 LR-P & D, in which the Court declared marriage as being between one man and one woman. The leading American case is that of Reynolds v U.S. (1878) 98 US 145, in which the Supreme Court upheld the conviction of a Mormon leader for polygamy by rejecting the appellant’s claim to religious liberty as protected under the First Amendment of the US Constitution. In the UK most legal rights and privileges concerning married and cohabitating couples have been extended to same-sex couples by virtue of the Civil Partnership Act 2004. The concept of only two parties being privileged to a marriage or partnership was preserved. The common law in the UK has made special allowances for bigamy on a case by case basis.

The concept of bigamy (having two spouses) at common law was and is no different than that of polygamy. The U.S. Model Penal Code, s 230(1) classifies polygamy as a third-degree felony and the offence subsists until all cohabitation with and claim of marriage to more than one spouse terminates. Aliens from other jurisdictions visiting the US or the UK will not be any violation of criminal laws, so long as polygamy is lawful in the alien’s nation of origin.

Is it more important to ask whether one should obey an unjust law than whether it is a law?

Theories of law which place just and unjust law at its centre tend to be in the arena known as ‘natural law’ and are promulgated by such early scholars as St Thomas Aquinas, Thomas Hobbs and John Locke, along with Jean-Jacques Rousseau, Edmund Burke and Thomas Paine. They took the view that there is a natural order to life, whether divine or innate, and as such we should structure our society accordingly. Reason was deemed to be one of the natural elements which distinctively make us human. The modern reincarnation of natural law theory is exhibited in John Rawls. The basic premise of the theory is how we might consent to be part of a political society. The reasoned answer was that there needed to be a bound by a social contract. This contract would serve to move the natural world into a civilized world, whereby some rights are delegated to the state and others are reserved to the people. The goal of this transformation was to overcome the state of nature, which was viewed by Hobbs as being “The war of all against all” and a life that is “solitary, poor, nasty, brutish and short.” Locke and Rousseau tended to have a more optimistic view of the natural state by seeking to preserve and protect what is significantly good. Today natural law is viewed from three major perspectives: (i) the John Finnis approach which says that certain features of our natural world should be reflected in the substantive law, (ii) the Lon Fuller approach which incorporates nature into the form and procedure of law and (iii) Ronald Dworkin who places natural theory into the interpretation of Law.

An unjust law, meaning a law which is contrary to the natural order, should not be regarded as a valid law. To quote Lon Fuller, “Law is the enterprise of subjecting human conduct to the governance of rule.” Somehow we have to ordinate our conduct to these rules, as our everyday human behaviour is subjected to the governance of rules. For Fuller, to escape the shadow of totalitarianism, then law has to achieve an “inner morality”. This still does not answer the question as to whether one should obey an unjust law. Fuller takes the grudge informer cases from Nazi Germany and reasons that while they may have been unjust, that is not the question one should be asking, instead, Fuller looks to see if it is valid law in the first place. In order to see if a law is law, Fuller designed an eight-standard-approach which involves seeing if the law is general, promulgated, non-retroactive, clear, non-contradictory, followable, consistent, and applies equally to all stratus of society, including government officials. A law does not need to comply with all eight elements to be law, but it should generally be regarded as having achieved the flavour and substance of the “Desiderata” or eight-standard-approach.

This reasoning makes sense, as a society cannot be allowed to follow some law and ignore others on a whim, though an entire law or legal structure is also capable of not being regarded as law, in which case the law is void, as it never was valid to begin with. None the less, a weakness of this reasoning is that minority right could potentially be trampled by the majority in society, especially in less sophisticated democratic societies.

Pres. Obama's choice in Kagan extremely disappointing

President Obama’s nomination of Elena Kagan to replace retiring US Supreme Court Justice John Paul Stevens is extremely disappointing. Kagan – a Manhattan, New York native – has many positive attributes, such as having been educated at Princeton, Oxford, and Harvard Universities, serving as a clerk to former Justice Thurgood Marshall, and working in the Executive Office of the President during the Clinton Administration, before serving as dean of Harvard Law School, along with serving on the advisory council for Goldman Sachs (firm which accepted $12.9 billion in taxpayer funded bailout dollars). Kagan is currently Solicitor General, a position in which President Obama appointed her at the beginning of his administration.

If Kagan is confirmed by the US Senate, then all the justices on the Supreme Court will either be Harvard or Yale Law alumni, either Catholic or Jewish (retiring Justice Stevens is currently the only Protestant on the bench), and all nine justices would be from either the greater New York City area or central California; with the lone exception being Clarence Thomas, who is the only African American on the Court and the only member from the South.

President Obama missed a golden opportunity to appoint someone from the American West or Mid-West to serve on the high court. Sandra Day O’Connor, who retired from the Court in January 2006, was the last justice from the American West. The Supreme Court should be diverse and representative of the nation as a whole, however only considering individuals who are either from New York or California, a Harvard or Yale law graduate, a Catholic or Jewish is not diverse, nor is it representative. Justice Stevens may have come from an elite Chicago family, but he served with pride in the US Navy and then earned his J.D. from Illinois’ Northwestern University School of Law. O’Connor and Stevens, neither of whom were Ivy League Scholars, were Protestants from between the Atlantic and Pacific seaboards and have been regarded as two of the most tremendous legal minds of our generation.

Kagan, who holds that her personal opinions and personal life will not affect her judgement, is a far cry from Stevens, who many have regard as being on the liberal side of the Court. While White House aides assure the media that Kagan is not a lesbian, former Harvard Law students, the Gay and Lesbian Fund, and others claim her nomination as a victory for lesbians around the world. Kagan, who has been adamantly against the War of Terror (including operations in Afghanistan and Iraq), banned the military recruiters from the Harvard campus. Later, she claimed this was a reprisal for the military’s “Don’t Ask, Don’t Tell” policy toward homosexuals in uniform – a policy which was implemented in the early days of the Clinton Administration and has recently seen opposition from former Vice President Dick Cheney and current Defence Secretary Robert Gates. Kagan has been an active voice for the gay and lesbian community. Using Kagan as a ‘Trojan horse’ to push a lesbian onto the Supreme Court seems intellectually dishonest and the American people deserve open and frank answers about who it is that will serve them on the highest court in the land.

There are many well qualified candidates who would have maintained an ideology similar to the president and not have been from the Ivy League, the East Coast, or a liberal Jewish heritage. The American people, of whom the majority are protestant, deserve at least one-out-of-nine justices who represent their perspective. The Mid-West, West, and South have very tremendous jurists who fit the demographic missing from the Supreme Court. Kagan’s anti-military, anti-Christian, and pro-gay, along with politically liberal ideology makes her a very scary choice for the Supreme Court. If confirmed, Kagan would be the youngest justice at age 50 and if she serves as long as 90 year old Justice Stevens, then America is heading towards a very progressive era of liberal judge made law with little or no respect for the text of the Constitution.

See: Grand Junction Daily Sentinel

Damnum iniuria datum: actio directa v. actio utilis (actio in factum)

The distinction between the actio directa and actio utilis seems quite complicated, however as far as non-doctoral studies are concerned, actio in factum was referred to by the jurists as actio utilis and vis-à-vis.

In regards to actio factum and actio utilis, I am quoting Zimmermann for the answer, “What was the difference between these two types of actions, and why did one sometimes turn to the one and sometimes to the other? Originally, actions in factum and actions utilis appear to have been two separate techniques by means of which the praetors were able to supplement, to correct and to adapt the ius civile. As far as the lex Aquilia is concerned, the actio in factum was competent where the factual circumstances of a specific case did not fit in with the statutory verbs (occidere, urere frangere rumpere); an actio utilis, on the other hand, was the opposite remedy to extend the right to sue to persons other than the owner” (emphasis added). – Law of Obligations, pp 995

The final codification of the praetorian edict was by Iulianus, circa A.D. 130, which resulted in praetorian activity and innovation coming to an end and the ius honorarium losing its flexibility, along with the administration for justice shifted to the imperial courts and chancellery and the rise of the new cognitio procedure. These changes resulted in the differences being less and less practical relevance and thus no longer interested the jurists. -- Borkowski & du Plessis 2005.

Don’t forget, the act (as prescribed under the ex delictu of damnum iniuria datum and regulated by Chapt. 3 of the lex Aquilia), meaning the wrongful damage, could be direct (actio directa) or indirect (actio utilis, as noted earlier, this action was also referred to as an actio in factum), could be either a ‘positive undertaking’ or an ‘omission’ (to penalize omissions is to impose a duty to act – a positive duty – and it is arguable, in absence of a contract, the policy of the law should be to impose only negative duties), and must have been caused by the defender (defendant). Causation is a problematic area of law, in even the most sophisticated and developed legal systems. The question which must be answered, was the defender’s act the substantive and operative cause of the damage?

The Romans attempted to provide solutions to each individual problem without sustained resort to overriding principle. Example – If a midwife gave a slave-woman a drug from which she died, this was admitted (by interpretatio) to be ‘killing’ (via actio directa), however, if the midwife did not administer the drug with her own hands, but instead gave it to the slave-woman to take for herself, then this was ‘providing of a cause of death’, and therefore actionable by actio utilis. -- Nicholas, Into to Roman Law 2008.

If the defendant’s conduct caused damage that may not have occurred in other property of the same type, the defendant was never-the-less liable. He (the defender) had to take his victim as he found him – a principle known as the ‘Thin Skull’ Rule in Common law systems. Meaning, “if someone gives a light blow to a sickly slave and the slave dies from it, Labeo rightly says that the person who gave the ‘light blow’ is liable under the lex Acuilia” D.9.2.7.5.