Tyranny of the majority: Is secession a justified response?

From Colorado counties proposing secession to Crimea voting to break-away from Ukraine; and from Venice adopting unofficial independence status to Scotland wanting to dissolve the 307 year-old marriage with England – Who’d have thought we are living in an age of social contract renewal?

Over the past four months – majorities in 5 out of 11 counties voted to become the 51st US State; an

unbelievable 96% of Crimeans voted to join Russia; 89% of Venetians voted to create independent city-state within Italy; and in September Scottish voters will take to the polls to decide whether to become a free and independent country.

Opponents of these secessionist movements have quickly taken to the bully pulpit to point out the unconstitutionality of these votes. What if it’s illegal to vote for smaller regions, such as a county, to secede from lager entities, such as states or nations? Does a law make separatists feelings “go-away”?

Secessionist ideas do not begin at the ballot box or in a parliamentary chamber. The ideas of dissolving the bands that tie one region to another begin with disaccord and minority dissatisfaction – tyranny of the majority. Where one political party dominates and punishes the opposition or one geo-cultural group forces its views onto another.

Under the US Constitution, no mention is made of an acceptable dissolution of the union. The Civil War and the Supreme Court’s decision in Texas v. White (1869) arguably established the Constitution ordained a perpetual and indissoluble union.

In 1776, when the founders declared independence from the United Kingdom, that act was in violation of the British Constitution’s supremacy of parliament. If there had been any doubt of Parliament’s authority, The Declaratory Act of 1766, which asserted the right of Parliament to legislate for the colonies "in all cases whatsoever," would have settled the question.

To consider our founders revolutionaries seems abhorrent. The situation was an impasse, Parliament told the colonists to ‘go pound sand’ and the colonists responded by crafting a legal justification based on social contract theory, tyranny of the majority, and natural law.

Colorado counties which proposed secession; orange is where measure passed. 

As for the Colorado counties wanting to follow the West Virginia Model, that dream ended when the 69^th Colorado General Assembly adjourned on May 7^th.

Under Article 4 §3 of the US Constitution, no new state can be created from within an existing state without the consent of both the state’s general assembly and Congress.

Without the Colorado legislature taking action, our state will remain intact. Remaining united is not to say the dissatisfaction with the Democrats who control the governor’s office and legislature has gone away.

Similar to Colorado, the Crimea and Venice referendums were a protest to majority tyrannizing the minority. Unlike Colorado, Crimea’s vote was unconstitutional. Venice’s ballot was unofficial.

The Ukrainian Constitution specifically states in Article 73: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”

Many have argued the Crimea referendum was illegal according to Public International Law.

Firstly, under the Montevideo Convention on the Rights and Duties of States (1933), four requires must be satisfied to be considered an independent nation: permanent population, a defined territory, a government, and the capacity to enter into diplomatic relations.

Secondly, a country must be recognised by another country.

Crimea, a peninsula region in the Black Sea. 

The Crimean referendum asked voters whether they wanted to join Russia as a federal subject or restore the 1992 Crimean Constitution which granted greater authority to the regional parliament. With 83% voter turn-out, 96% voted in-favor of joining Russia. This act was certainly illegal under the Ukrainian Constitution, but as for International law, the jury is still out.

The Venice ballot asked voter whether they wanted to secede from Italy and become and independent city-state. With 65% of the region voting, a whopping 89% or 2.1 million people voted in-favor of breaking away from Rome! The Italian Government had no fear of Venice actually breaking away, as the referendum had been unofficial.

Much like rural Colorado having difficult with Denver listening; Crimea has a Kiev problem; Venice a Rome problem; and Scotland, an English problem.

On September 18^th, Scots will take to the polls to decide their fate. Legally, Scotland has the same problem the American Colonists had with the British Constitution, namely the supremacy of parliament.

The UK Parliament in London has the ability to enact or resend any legislation, including the grant of independence. The Edinburgh Agreement, merely a gentleman’s handshake, is where the UK Parliament has pre-agreed to acquiesce to the outcome of the referendum.

While the votes remain to be cast, one thing is certain, laws banning secession don’t make secessionist ideas go away. Revolution and civil war should be avoided. Elections, whether official or unofficial; lawful or unlawful should be a wake-up call to majority-leaders who are unwilling to respect the ideologies, customs, or traditions of minority constituencies.

Re: The U.K. faces a bad breakup

Lord George Robertson’s Jan. 6th opinion editorial in The Washington Post completely ignored Scotland’s legitimate right to be free of English tyranny. During my 3 1/2 years of study at the University of Edinburgh, I supported the Free Scotland Movement and participated in the rally featured in the column’s photo.

In 1783 the America seceded from England after winning a bloody Revolution, so why then can’t Scotland

peaceably secede in 2014?

Eight hundred years ago at the Battle of Bannockburn, Scotland won her first major victory against the English. In a modern era, nations should be free to peaceably dissolve the bands that chain one to another. A democratic vote is not re-Balkanizing Europe; the Romans struggled to reign in the feudal estates.

The 670-page Blueprint for Scotland, carefully crafted by academics and policy makers, is the most comprehensive guide to independence ever written. The “Better Together” proponents, such as Lord Robertson, have merely mocked the Blueprint.

The problem is that London dictates how Scots should live their lives. The Scots are overly taxed, overly regulated, and the English openly discriminate against the Scottish people. That is why Scotland deserves to join the United States in be free of English rule.

A people should be free to determine their own destiny.

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. 

It's time to simplify the tax code & reduce governmental spending

With over 30,000 pages in the UK tax statutes it is time for parliament to tackle the ever burgeoning and convoluted mechanism for growing the governmental Leviathan and redistributing wealth. What modern social states like Britain and France and even the United States fail to grasp is that one must create wealth before you can re-distribute it.

Some argue that since paying taxes, by sheer definition, is inherently unfair, then the net should be cast wide to speed the pain equally. In other words, taxing or creating fees, surcharges, tariffs or levies for everything from income to interest earned from a bank account or building society; from tobacco and alcohol to bread and cheese; and from corporation tax to inheritance (death) tax.

The UK saw its highest tax rate in 1966, when the Labour government of Harold Wilson ushered in a 134.25% tax rate. This outraged George Harrison of The Beatles, who was affected the 95% super-income tax bracket, that he composed the music and lyrics for the ‘Taxman’, as a form of revolt. The Beatles band recorded the song in April and it was released in the album, ‘Revolver’ in August 1966.

 Tolly's UK Yellow Tax Handbook 2010 being burnt in protest

Many criticise the Thatcher-Major era as being ‘soft’ on taxing the rich and giving away government assets to private industry. The critics fail to acknowledge the quantitative data. The highest income tax bracket was 98%. Stated differently, for every £1 a person earned, 98p was going to the government. Today, the highest income tax bracket is 50%, which took effect in assessment year 2010 and catches individuals earning over £150,000 per annum. Under the New Labour government of Tony Blair, much of the neoliberalist economic policies of the Thatcher-Major governments were continued. This led Labour MP, Peter Mandelson to coin the term “Neo-Thatcherism” to describe the economic policies of New Labour.

Neoliberalism is a school of modern political theory which stresses market-driven approaches to economic and social policy, based on neoclassical theories of economics, which advocates efficiency of private enterprise, liberalization of free trade and open markets, and encouraging consumer free choice, individual thinking, and private enterprise. The tenets have frequently been a topic of conversation at Bohemian Grove. The ‘Washington Consensus’ is considered the theory’s definitive statement. International organizations such as the International Monetary Fund (IMF), World Bank, and World Trade Organization, along with regional trade associations such as the North American Free Trade Agreement (NAFTA), Association of Southeast Asian Nations (ASEAN), the Southern Common Market (MERCOSUR), and the European Union (EU) have endorsed the general principles of the theory.

National tax policy should encourage innovation and efficiency. Jobs must be created, at the core is build and maintain a strong and vibrant middle class, which broadens the tax base and brings stability to volatile global markets. The UK tax statutes are so complicated that while everyone in society gets caught by the tax ‘net’ burden, the lofty weight of a growing public sector places high demands to grow the public coffers. Government must learn to do more with less. A focus should be on prioritization of national policy objectives and efficiency placed at the heart of society’s vision and mission. An athlete performs best when he/she is in lean and well trained. Likewise, a government who learns to operate on less is able to understand the benefit of competition and getting quality.

One of the most efficient governmental organizations is the EU, which operates on a relatively small budget and meagre staff, yet the data they produce is unprecedented when comparing to national governments. An example is a student who is living on a shoe string budget is able to do far more than a professional paid a monthly salary. Why? The student understands the value of every pound-sterling and looks for the cheapest option (eg- riding the bus as opposed to the train, sleeping in a hostel compared to a 5-star hotel, et cetera et cetera). If governments operated in the same manner, more money would be in the hands of the private sector to grow the economy and allow citizens more options with how to live their lives.

In protest of the UK’s and US's confusing and convoluted tax policy, I took part in a tax act protest, where students burned their tax statutes in protest. Please join me in supporting a simplification of the tax statutes - the first step towards creating a more just British or American society.

The Royal Wedding

Yesterday I was amongst the well wishers gathered outside Westminster Abbey and along the parade route from Buckingham Palace to celebrate the marriage of HRH Prince William and Miss Catherine Middleton. Soper rode the train from Edinburgh, Scotland to London, England with a friend and former classmate of William and Kate from St Andrews University, which is where the couple met.

The Royal Family on the balcony of Buckingham Palace

I opted to stand in front of the Palace, as opposed to the Abbey, as that vantage point provided more views of the Royal Family along with witnessing the pinnacle moment when Will leaned over to kiss Kate – twice! When the balcony doors opened and Prince William and Kate emerged, waving at the gathered crowd, all I could think was wow, this is surreal! It very much felt like being part of something special, a celebration of the best of humanity. What is there not to like about a wedding, is it not the Aquinian pursuit of what is good in life – knowledge, procreation, society, reasonable conduct and celebration of life and peace itself?

Keith Drake, a family friend of mine who has since passed away last year, reminisced about standing outside Westminster during the Coronation of HM Queen Elizabeth II on a sunny Thursday, 2 June 1953. Drake was in the military, stationed in Germany and had been granted leave to attend the historic event. Mr. Drake always said that if I was in Great Britain for a coronation or a royal wedding that I shouldn’t miss the opportunity to witness the fanfare and historical traditions. Those words came to mind when considering whether or not I should attend the Royal Wedding.

Big Ben

Before the ceremony begun, HM The Queen had given the couple their first wedding gift by bestowing on HRH Prince William of Wales the English title of Duke of Cambridge, with the result being that once the Archbishop of Canterbury pronounced the couple man and wife, Miss Middleton became HRH The Duchess of Cambridge. Other gifts from the Monarch to the couple include the Scottish titles of Earl and Countess of Strathearn and the Northern Irish titles of Baron and Baroness of Carrickfergus.

At 05h00 GMT, I was walking through Hyde Park towards Buckingham Palace in the hopes of finding a good location to stand. I found a great spot in-between the palace and the international media reporting booths. Right after witnessing the balcony moment, I was interviewed by a journalist from People magazine – which was pretty crazy – as I was asked my impressions of Kate’s dress, the kiss and Prince William. I recall telling the People jounalist the first kiss was a bit rubbish and barely counted as a peck on the lips, but the second one was more appropriate.

HM The Queen

Kate is a beautiful girl and the style of dress was a good choice, as it had elements of moderness blended with a regal tradition. Prince William, who looked brilliant in his Colonel of the Irish Guards uniform, is someone to look up to as a role model. He has his head screwed on right and has worked hard as a student, military officer and patron of numerous charities.

Everyone was in a celebratory mood

Over two billion people watched the wedding via Internet, radio, and television broadcasts, making this the single most watched news event in world history. Inside Westminster Abbey, some 1,900 guests observed the exchange of vows, however, only a couple hundred guests had a direct view of the nave, where the nuptials were exchanged. More than 1 million people gathered either along the parade route or at viewing sites in Hyde Park and Trafalgar Square, where jumbotrons had been erected for well wishers to view the wedding. Throughout the parade route, a speaker system had been set-up to allow the crowd to hear the service from Westminster. When the Abbey Choir began to sing there was all of a sudden an eerie silence which fell over London as the masses listened to the Heavenly music.

This man embodied the meaning of British

The future king kissing his princess in adoration of admiring subjects and observers from around the world was a perfect capstone moment to the day which felt a bit like a fairy tale. It was an awesome day one which had a spirit lifting sensation, which is something not seen lately as wars, economic woes, and terrorism continue to plague the world. I wish the future king and queen all the best as they begin a life together.



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Gwinn, L.J., ‘Delta High School Graduate in London for wedding’, Mountain Valley News, 4 May 2011, p. 1 <http://www.mountainvalleynews.net/home/17-front-page/1778-delta-high-school-graduate-in-london-for-wedding-5411.html> accessed 4 May 2011

‘Austin man among well wishers at royal wedding’, Delta County Independent, 4 May 2011, Neighbours <http://www.deltacountyindependent.com/neighbors/people-in-the-news/21117-austin-man-among-well-wishers-at-royal-wedding.html> accessed 5 May 2011

‘A witness to history’, Grand Junction Free Press, 6 May 2011, Community Snapshots, p. 10 <http://grandjunctionfreepress.co.newsmemory.com/loadPage.php?token=1sbG0dLL69fEtKvQ4MjX08zfxsrW4ZComZJxcpaimJTPl6CEksrU0aOZlnB4k6KTlp2XnISSk5uRpZk%253D> accessed 6 May 2011

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.

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^[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

Soper in London for Royal Wedding

On  Friday, 29 April 2011, I will be amongst the well wishers gathered outside Westminster Abbey in London to celebrate the wedding of HRH Prince William of Wales and Miss Kate Middleton. I will be travelling from Edinburgh to London with a former classmate of Prince William’s from St. Andrew’s University and staying with another good friend of mine in London! It should be very exciting to be part of such a monumental event!

Keith Drake, a family friend who has since passed away, reminisced about standing outside Westminster during the Coronation of HM Queen Elizabeth II on a sunny Thursday, 2 June 1953. Drake was in the military, stationed in Germany and had been granted leave to attend the historic event. Mr. Drake always said that if I was in Great Britain for a Coronation or a Royal wedding to not miss the opportunity to witness the fanfare, as it is a historical occasion and an overall exciting celebratory event.

It is expected up to 600,000 well wishers will be gathered along the route from Buckingham Palace to Westminster Abbey and an estimated two billion people will be viewing the wedding live via Internet, radio, or television broadcasts. The Royal wedding is slated to be the most-watched event in television history, topping the 1963 funeral of President John F. Kennedy, the Apollo 11 Moon landing in 1969, and the marriage of HRH Prince Charles and Lady Diana Spencer in 1981, along with the funeral of Princess Diana in 1997, the 2006 World Cup finals between Italy and France, and the opening of the 2008 summer Olympic Games in Beijing.

There will be 2,000 guests inside the Westminster Abbey, with only a couple hundred having a direct view of the nave, where the nuptials are to be exchanged. As the marriage is likely to produce an heir to the Throne, delegates from the 54 Commonwealth Countries who recognize the Monarch will be in attendance. Legally, according to §2 of the Union with England Act 1707, only heirs of Princess Sophia Electoress, who are protestant, may succeed to the Throne, thus the marriage is very appropriate in being a public event and witnessed by many.

England and Scotland have shared the same monarch since the Union of the Crowns in 1603, when King James VI of Scotland inherited the English Throne from his cousin Queen Elizabeth I, who produced no heir. Thus King James VI of Scotland became known as King James I of the United Kingdom. Politically the governments of England and Scotland did not merge until 1707, when the two parliaments dissolved and re-emerged as the Parliament of Great Britain.[1]
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[1] Mayfield, J. 'Former local to attend Royal Wedding' Colorado Radio 25 April 2011 <http://coloradoradio.com/2011/04/25/former-local-to-attend-royal-wedding/> accessed 25 April 2011

Lugar: Libyan "Conflict" lacks exit strategy, clear purpose, & US Senate approval to engage in war

US Sen Lugar (R-IN) has criticized Obama for deploying U.S. forces without a clear exit strategy, repeatedly called the conflict a “war” (a term the White House rejects), and said the president violated the Constitution in intervening without a formal authorization from Congress.[1]

Barack Obama left the Senate after two years there for a presidential run, making few close friends in the chamber because of his short tenure. But before he left, Obama cultivated an unlikely bond with a Republican US Senator 29 years his senior: Richard G. Lugar. Lugar was the former Chair of the Senate Foreign Relations Committee and negotiated the START Treaty. Many Democrats have floated Lugar's name as a possible Sec of State replace to Sec Clinton - not now, not after his remarks about Libya. Talk has shifted to Sen John Kerry.[2]

“The president still has not clearly stated what our goals are or what would constitute success. He has not stated whether the United States would accept a stalemate in the civil war, nor has he put forward a plan for ending Gaddafi’s rule,” Lugar said.[3]

The intervention in Libya is to oust an enemy of the US, create a new market for American energy companies (currently Libya has been dominated by Italian, British, French and Turkish Energy companies, which is anti-competition), use blow-up missiles so the US can purchase new ones (which helps the American Military Industry), and support the US allies in the NATO and the Arab League. Oh yes, and justify the war (my bad, “conflict”) with a UNSC resolution and calling the action one of humanitarianism. The US should be a pro at these things, they practiced in Iraq.

The senator’s criticisms of Obama’s Libya policy are similar to those of other members of both parties. Lugar is obviously one of those old anti-war, pro-rule of law, anti-humanitarian and anti-capitalistic Republicans. He should be ashamed of not seeing the potential economic benefits of Libya and the potential of killing an enemy of the US - Muammar Muhammad al-Gaddafi.[4]
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[1] Landler & Shanker. "Gates and Clinton Unite to Defend Libya Intervention, and Say It May Last Awhile" The New York Times 28 March 2011 p A9
[2] "US public, Congress remain skeptical of Libyan mission" DEUTSCHE WELLE 1 April 2011 accessed 3 April 2011
[3] Bacon, P. "On Libya, former ally takes on Obama" The Washington Post 2 April 2011 accessed 3 April 2011 [4] Shanker & Cooper. "Doctrine for Libya: Not Carved in Stone" The New York Times 30 March 2011 accessed 3 April 2011

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.

Beyond the Crash: an evening with Gordon Brown

Tonight, a friend of mine, Magda, and I listened to a speech followed by a question and answer session with the former UK Prime Minister Gordon Brown. Since Labour losing the parliamentary election of 6 May 2010 to a Conservative and Liberal-Democrat coalition government, Gordon Brown has stepped down as his party’s leader and taken his ranks among the back benchers. The former prime minster, an alumnus of the University of Edinburgh and Scottish native, has been making the case for a global response to national problems.

The beginning of Mr Brown’s speech focused around memorable highlights of his 28 year career in the House of Commons – which included ten years as Chancellor of the Exchequer and the previous four as Prime Minister of Her Majesty’s Government. The speech was hosted by the University of Edinburgh and Blackwell’s bookshop in the George Square lecture theatre and featured a sold-out crowd of well over 300 people, many of whom were from the academic community of Edinburgh. Magda and I sat front and centre with only an agent of the Metropolitan Police’s Specialist Protection separating us from the former head of government. Brown looked at the crowd and immediately told the story of his first campaign for parliament, back in 1983, in which only three people attended the meet and greet, including him. Brown said that his journey through politics could be summed up by the custodian at the university telling him, “Mr Brown, I’m sure glad you remembered your roots on the way up and then again on the way down.” Mr Brown studied history and politics at the University of Edinburgh, earning a BA (Hon), MA and PhD while serving a three year stint as Rector of the University.[1]

Brown talked about how 300 years ago the first Scottish banking crisis resulted in a nationalized bail-out and the merger of the Scottish and English houses of parliament. He described this as a national solution to a local problem. In 2008, when news broke that Northern Rock, followed by Bradford & Bingley and the Royal Bank of Scotland were to be nationalized, along with the forced merger (shotgun wedding) of Lloyds TSB and Halifax-Bank of Scotland to stabilized the British economy[2] it became apparent that while these banks were headquartered in the UK, much of the risky investments, such as the purchasing of debt bundles from American sub-prime mortgages, were outwith the purview of British regulators at the Financial Services Authority (FSA).

“In every forum, my theme was that the financial crisis reflected a global problem that could not be resolved by one nation alone but needed a global solution”, Gordon Brown emphasised numerous times during the evening.[3] Brown called for addressing the problems posed by 2007-2009 crises in public international law, creating an international banking tax scheme, along with national regulations creating higher reserves and criminal laws for bad faith and undue-diligence. The former prime minister also called for the shutting down of international tax havens, calling them loopholes for circumventing national revenue tax collectors. This was a point I disagreed with, as the UK is in a good position to compete head-to-head with these so called tax havens, by lowering business taxes and creating a more favourable investing climate to stimulate the private sector to keep assets within the British Isles.

Mr Brown said he accepted full responsibility for what happened, as he was the Chancellor of the Exchequer the decade prior to the financial crisis. He went on to explain that what was known was limited and his office was preparing for an inflation crisis and had no warnings that an even greater threat existed, which was the concept of many banks failing at once due to poor liquidity and the purchasing of foreign toxic debt and speculations which were tantamount to gaming with Briton’s savings and investments. He averred that the problem requires global solutions, especially went banks are linked internationally. Mr Brown’s solution is a global banking tax to create a reserve fund for such an event as a global financial windfall.

“The American dream is one of the most powerful and enduring stories of hope that continues to inspire the world,” writes the former UK Prime Minister, Gordon Brown, in the opening sentence of chapter six of his new book, Beyond the Crash.[4] Before a joint-session of the US Congress, Brown said, “[E]arly in my life I came to understand that America is not just the indispensible nation, it is the irrepressible nation.”[5] Brown warns, the American dream is under new and unique pressures with consequences not just for the US but for the world, “The manifestations of this are high unemployment, falling middle-class incomes, and concern about educational opportunities and upward mobility amid rising competitive pressures from Asia.”[6] Brown explained the crunch on the middle class is an area of the economy to watch out for, as they are the ones who have been the biggest contributors to fuelling economic growth and providing a standard for morals.

Mr Brown concluded the evening by saying he was optimistic about the future, as new markets emerging in Asia would create demand for western made goods and services allowing for increased economic growth in both the service and manufacturing sectors. He said to stay abreast of the east, the US and EU must invest in higher education to train the specialists of the next decade, look for ways to create jobs – as to prevent another lost decade as he saw in Britain during the 1980s, and fund science and technology.

After the speech and question time I approached Mr Brown, shook his hand as he was taking off his microphone and he said to me, "...there, now I can talk to you." I asked if I could have a photo taken with him and he agreed, telling me how much he admired America and was happy to see the exchange and diffusion of knowledge across the pond. He then signed my copy of Beyond the Crash and shook my hand saying, “thank you.”

Magda and I walk out of the lecture theatre chatting about his talk, debating the pros and cons of his averments and observations along with chuckling about the number of times he said “global solutions” in the course of an hour. All in all I was very impressed with his address and am very proud to of had the honour of meeting a British prime minister.

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[1] “Gordon Brown as Rector”, http://www.archives.lib.ed.ac.uk/gallery/brown.shtml (accessed:17 February 2011)
[2] UK House of Commons, Finance Report Re the Banking Crisis of 2008, http://www.publications.parliament.uk/pa/cm200809/cmselect/cmtreasy/956/956.pdf (assessed: 17 February 2010)
[3] G Brown, Beyond the Crash: overcoming the first crisis of globalisation (Simon & Schuster, London 2010) 45
[4] G Brown, Beyond the Crash, 143
[5] Since the 1st US Congress in 1789, only 105 foreign heads of state, government or diplomats have addressed a Joint-Session of Congress.
[6] G Brown, Beyond the Crash, 143

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.

India, Pakistan & American foreign intrests

At times I become frustrated by American foreign policy, as it is like a violinist who picks up the interment with his right hand, but plays with his left. During the Cold War, Pakistan was a loyal allied of the United States, though in the 21st Century we have elected to ease friendship ties in support of Pakistan’s arch rival, India. Securing more trade with India, a nation previously supported by the Soviet Union and on the verge of becoming one of the most populous nations on Earth, is brilliant in terms of opening more markets and advancing American commercial interests. The frustration comes from the US not doing more to strengthen security efforts with Pakistan. The Surge, which occurred back in July saw a massive influx of NATO military forces, but led to a tsunami of anti-western dissidents fleeing into the mountainous regions of Pakistan. The evacuation of Afghanistan by the majority of al-Qaeda and the Taliban to Pakistan has led to a de-stabilization in parts of that nation.

Peshawar, Pakistan is the home of one of my good friends. I was with her the day she learned her aunt had been killed by a suicide-bomb in one of the market places. Her brother-in-law is a professor of terrorism studies at the university and I learned a lot from them about life on the ground as it were. Abandonment in Pakistan and a focus solely on Indian trade and economic policy is a risky move for Pakistan. From a US perspective, the shift in support and trade advantages to counter that of China and secure vast markets for goods, services, labour and capital did not come soon enough. Pakistan is quite insignificant in an economic sphere of influence. Those who are strong Indian supporters argue that Pakistan is one of the most corrupt States in the world and that constantly having military leaders is an indication of the weakness of the democracy. These assertions whether true or not are probably closer to fact, than fiction.

What can be done about Pakistan? The US has a reputation for failing to think about unintended consequences and I am proposing using history as a means for not repeating cyclical errors. Pakistan is ripe for further destabilization and angering the population by using statements, such as “militant”, which are tantamount to asserting the Pakistani State is recklessly out of control and in the realm of what a previous American president would have called “evil”. Pakistani officials realized that President Obama had to talk tough in order to win the support of India and secure trade advantages in the Far East. Proposing a UN Security Council permanent seat for India is a step towards diluting the voting power of China and Russia along with France and the United Kingdom on some issues. Pakistan is too small a political power to ever be seriously considered for an expansion seat. If any American foreign policy team can persuade the UNGA and the UNSC to amend the charter to add India to the ranks of the permanent five, then it will be President Obama and Secretary of State Clinton, both of whom the world seems to view in more divine terms, as opposed to political actors on a world stage.

Considering history, the US always abandons good ideas long before the relevance becomes empirical. The US should begin transfer funding to Pakistan’s educational system to ensure al-Qaeda and the Taliban do not brainwash weakening allies into becoming our enemies. NATO and Pakistan should work on creating a joint security plan for alleviating the major security risks. In light of changing policies, the UK and US should retract proposed plans to restrict Pakistanis travelling to their respective sovereignties. Continuing a culture exchange to break down looming societal barriers will serve the west well in years to come.

The weaknesses of my argument concern the lack of political will, a shift in policy from Pakistani based to Indian based, and being a bit idealistic in proposing aiding Pakistan’s educational system and calling for a NATO security arrangement.

Indian trade security and the potential for new markets for goods, services, labour and capital is a major advantage in the east, especially as China is beginning to flex its economic muscle. Fear of China moving off of the dollar as it’s hedging currency could further devalue the US dollar. India is not without its flaws, as it has a rich heritage of class divide, corruption, domestic crime, and governmental and omissions human rights abuse. Pakistan is a nation in peril, as it went from a relatively save country at the beginning of the War in Afghanistan to being a very dangerous State today. Strong support for Pakistan’s neighbour and calling the state “militant”, and not making a distinction between radical Islam and the Religion of Islam are good methods for losing the allegiance of a now questioning Pakistani society. The situation is summed up best by saying, “That's Maciavelli”.

Papal Visit of Pope Benedict XVI to Scotland

Today I possessed a front row seat to history being created, as Pope Benedict XVI became the first Head of State of the Holy See to visit the United Kingdom. In 1982, Pope John Paul II visited Great Britain in his role as Holy Father of the Catholic Church and thus did not meet with any members of Her Majesty’s Government or The Royal Family. At 10:30 AM the papal jet landed at Edinburgh International Airport and Benedict XVI was greeted on the tarmac by His Royal Highness The Duke of Edinburgh and the Royal Scots Guard. I first saw the Pope in the popemobile, as he travelled in a motorcade towards the Palace of Holyroodhouse, Her Majesty The Queen’s Royal Residence in Scotland.

At 11:00 AM the Pope was being given a State Welcome at the palace with all the members of the Order of the Thistle; the Deputy Prime Minister, Nick Clegg; senior members of the Royal Family and prominent member of British Society, along with the Lord Provost of Edinburgh. Pope Benedict XVI was then granted an audience with Her Majesty Queen Elizabeth II. During the State Reception for the Papal Delegation, I travelled by train from Edinburgh to Glasgow with the University of Edinburgh Catholic Student Union to attend the open-air Mass in the presence of the Holy Father at Glasgow’s Bellahouston Park. It should be noted that Bellahouston was the location where Pope John Paul II held the first ever Papal Mass in Great Britain back in 1982 to a crowd of well over 100,000 worshipers.

As the popemobile began a procession through the streets of Edinburgh at around 12:30 PM I was just entering the park with the Catholic Student Union and watched aerial scenes of the historic journey on the jumbotron. My presence at the Mass is directly attributed to the help of my friend Chiara, from near Milano, whom I studied with during my LL.M. and her friend, Brett, whom graciously looked after me during the pilgrimage and patiently answered my numerous questions regarding traditions, fundamental beliefs and history of the Catholic Church.

While the Pope and his official motorcade made their way from Edinburgh to Glasgow, the crowd was entertained by Susan Boyle, a native Scotswoman who rose to fame a couple years ago during the television show, Britain’s Got Talent, for her amazing vocal abilities.

At 16:45, Pope Benedict had arrived at Bellahouston Park and made his way to the pulpit where he prepared for the Holy Mass. It was at this point in time that I was less than five feet away from His Holiness Pope Benedict XVI as he made his way towards the steps. As the Entrance Procession made their way past the music of “Grace to you and Peace” and “Be thou my vision” played. It was a moment before this, when the Holy Father was vesting and the Strathclyde Police Bagpipe Band were playing “Amazing Grace” with a 1,000 member choir singing the classic lines that the magnitude of the event hit me and something inside acknowledged that I was observing something very special, which words would be feudal to describe.

A liturgy of the Word (an excerpt of The Bible), Romans 12:3-13, Psalm 22 and Luke 10:1-9 were read and in the Scottish tradition, a Celtic Invocation given. The Archbishop of Glasgow then gave the Pope an ancient book, written by St Ninian from the 4th Century. A prayer was said over the gift and a salute to the Feast of Saint Ninian, the Apostle of Scotland, born a Briton, but travelled to Rome and then back to faraway isle to spread the light of faith in Jesus. A Eucharistic prayer was read in Latin by the Holy Father and then the sermon was delivered. Since this was a Papal State occasion, the message was targeted to a much larger audience than the 60,000 gathered in Bellahouston Park. He said the future of Christianity is with the youth a point which I highly agree, though the latter portion of his talk focused on the negative effects of privatizing religion and the removal of the church from society – a premises which I find archaic and treading on dangerous consequences of religion becoming a tool of state power, rather than as a guide for the faithful.

The Mass ended and I celebrated the very special occasion with the Glasgow and Edinburgh University Catholic Student Unions in the tradition manner of wine, cheese and bread. It was rewarding for me to be party to such a monumentous and historic occasion and to have been witness to the first ever State Visit by the Pontiff of the Holy See to Great Britain and then to have been within an arm’s length of the Pope twice in a single day – once while he was wearing a tartan shawl to show his support for the Scottish people and the second time as he was fully vested for Mass. To those who read this account, peace be with you.

Paris: Le premier vingt-quatre heure

22 Mai 2010
9.00 AM – Breakfast w/ Stepan at Edinburgh Waverly Train station
10.00 AM - Boarded train for Paris
6.00 PM – travelled through the rain tunnel underneath the English Channel for the first time
7.45 PM – receive text from Quentin (good friend in Edinburgh, at whose sister’s flat I was suppose to stay while in Paris) informing me his sister, Carolina and he had not communicated completely on the weekends and that she would be out of town and thus I would need to find a contingency plan.
8.00 PM – arrive in Paris at Gare de Nord
8.15 PM – use Blackberry and iPhone Internet services to try and locate a hotel, hostel, B & B, or guest house – no luck
9.00 PM – start wondering the streets of Paris, in the area near Gare de Nord and try and locate a place to stay with vacancy.
Mid-night – finally located a place with vacancy – decide to check-in, though something seems odd as the price per room is half as much if I pay by cash, but it has a bed, bath, and wireless Internet.
12.30 AM – eat at McDonalds – Big Mac and fries with a coke – first thing to eat since breakfast.
1.30 AM – in bed, but hear the sounds of love making in the rooms on either side and above and below – I guess Paris is the city of love, though the exchange of footsteps throughout the night makes me wonder if this might be more than just a cheap hotel.
23 Mai 2010
9.00 AM – wake-up
10.30 AM – leave hotel with a mission of finding another hotel for that night.
PM – having had no luck of finding another place to stay decide to bite-the-bullet and stay at the same place, while I am bummed, I figure it is for only one night. The next three nights I booked a hostel to say in Montmartre.
1.45 PM – arrive at Jardin du Luxemburg
2.00 PM – have the most amazing glace du crème