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Monthly Archives: February 2007

Like a first meeting with an estranged uncle, my introduction to American law has been a timid process. There is a certain sense of familiarity; they use English concepts, are a common law country at heart and use the jargon of law, even if they missed the rash of modernization in language that is all the vogue in reforming English law (the left the United Kingdom 250 years too early to benefit). At the same time certain parts of it are inexplicably alien, and some so estranged that this law student finds himself amazed that intelligent judges behave in such a manner.My first real brush with American law was Lawrence v. Texas 539 U.S. 558 (2003), a high profile case at the time that was cited in before the Hong Kong High Court in Leung TC William Roy v. The Secretary of Justice HCAL 160/2004. That case, which had considerable play in the media, and which I was fortunate to watch the arguments in, was about a provision of the Crimes Ordinance which made it illegal for a male under 21 years old to engage in homosexual intercourse with another male, but a heterosexual male or lesbian older then 16 was not restricted by the provisions in the same manner. Naturally this was held to be unjustified discrimination in contravention of the Basic Law and the Bill of Rights.

The facts in Lawrence v. Texas are of a similar enough mould with a Texas statute that prohibited intercourse between two males in private regardless of age. The question specifically dealt with was whether this provision violated the due process clause of the American constitution which prevents any state from enacting any laws that violate the rights given to individuals under the Federal Constitution.

Now it wasn’t the nature of the acts being protected that had me in a tizzy as much as the language of the Court and the tone of its judges. This was the Supreme Court, the single most important court in the continental Unites States and perhaps the court that was most significant in developing the power of constitutional documents to entrench and protect the fundamental rights of people. This was a court that had boasted the likes of Oliver Wendell Holmes Jr. as its Chief Justice as well as men like Howard Taft, notable for being the only person to be a judge, then the President of the United States, and then the Chief Justice of the Supreme Court. I expected erudite scholarship that was nuanced and accessible designed to unveil the law making process and show the rightness of the decision reached.

What I got was an opinion designed to be obscure, pedantic, technical and difficult from the majority [Judge Kennedy delivered the opinion of the court]; an opinion that was broad based, reasoned, internationalist and comprehendible from Sandra Day O Connor; and what can only be considered a bitter and angry rant from Anton Scalia that actually didn’t say a word about the case at all, but was viciously targeted at arguing the case must be an analogy with Roe v. Wade 410 US 113, and if this case was decided in favor of the majority, then Roe had to be reversed as well. What’s more he seemed to take it as a personal insult that O Connor had the nerve, the impudent audacity, to dare cite cases from foreign jurisdictions in the Supreme Court as evidence of what the common practice of most of the western world was when interpreting provisions of fundamental human rights and applying them to personal and sexual morality.

It was amazing to read. In the House of Lords (The UK’s top court) it would be unthinkable for a judge to actually criticize the opinion of a colleague so openly. If there was disagreement it would be noted, perhaps in a very English way, by a sentence. Commonwealth cases are cited often and increasingly there is a desire to look at the case law of the other common law jurisdictions, especially Canada and Australia (which was considered to be especially useful as they had a separate Court of Equity until the 1970s). The difference in tone was striking, none of the polite and reasoned formalism of English law, but an open argument of the essentially political dynamics that underlie law in the United States and the essential public policy concerns that are approached only in a circuitous manner in the UK.

Discussions with Kirk, one of the people I was working with at the time and a graduate of the law school at the University of Texas, revealed to me that this was actually the norm in decisions of the USSC. They always wrote obscurely, fought like tigers, and bickered like children, while deciding the most important cases in a country vast and significant.

More recently I’ve started to study Competition Law (known as Antitrust in the USA) in the hope that Hong Kong will soon enough see such a law of its own to break up the cartels that control our notionally free economy. As an area of law created in the United States, dedicated to protecting the American ideal of vigorous competition as being beneficial to the humble consumer and capable of promoting the growth of a state of the art modern economy, it has become necessary to read a lot of American case law to get to grips with the way the law has evolved.

From this I learned that this tendency to vagueness, over-complication, love of incessant jargon and constant personal bickering is something that existed in the Justices of the court since at least the inception of the Sherman Act in 1915 and seemed entrenched and expected in decisions of the Supreme Court. These faults, which is what I perceive them to be, in their opinions seemed to flow from an early date, and perhaps have conditioned the expectation of American lawyers. It has contributed significantly to the esoteric nature of legal practice in the USA, of that I have no doubt.

I’ve also started slowly investigating for myself the creation/evolution debates (deserving a post of its own later) and as part of that I read the recent case of Kitzmiller v. Dover 400 F.Supp.2d 707 (M.D. Pa. 2005) which held that teaching Intelligent Design in public school biology classes violates the Establishment Clause of the First Amendment to the Constitution of the United States because intelligent design is not science and “cannot uncouple itself from its creationist, and thus religious, antecedents.” It was a judgment that I found many interesting aspects in. These were more in the approach of the court to the delivering an opinion and in the style with which the opinion was written rather then with its actual decision. From my limited experience of American judges Judge John E. Jones III is far more erudite then his peers and capable of writing with clarity and precision.

What struck me as odd were the fact that he used footnotes. Judges in the UK derivative legal world just don’t do that. Their judgments are comprehensive from within. All the relevant information is packed into the main text. Subsidiary points are decided in the main text as the narrative move along. Almost everything that is moved by Judge Jones, and I presume his contemporaries as well into its own section below the end of page line is instead something that is considered to be part of the main decision and an important step in reading the essential financial decision. Authorities are cited in the main text, the arguments of the parties are dealt with in the main text and the effect of previous lower court decisions is also discussed in the main body.

The second odd thing that I found was the tendency for the judge to extensively refer to the testimony of witnesses and to footnote and indicate where exactly in documents he was lifting quotations from. These might be in witness statements, complaints, defenses, the affidavits of expert witnesses and so on. They were all meticulously cited and facts were always referred to their source.

An English court does nothing of the sort. It never quotes individuals. When it does, it prefers to quote the Barristers arguing the case who are usually identified by the law report. References to the exact words of other participants are exceedingly rare. When the judge speaks himself, he speaks with all the authority of his office, his status and his position as an esteemed servant of the Crown and as a personal embodiment of Justice herself. His word is literally the law, and considered to be absolutely true. A judge who adduces a statistic into his judgment does not reference it, does not tell you the source or why it was mentioned at trial (unless relevant to the point he’s trying to make). It is presumed self evidently true because a robed and bewigged incumbent of the Bench has stamped upon it his authority.

It’s strange to encounter American law, because it feels so familiar and so inexplicably different at the same time, a taste of sweet and sour. It is our most famous notion of justice, spread wide by Hollywood and Television. Most people know of the laws of the USA, even when they are absolutely ignorant of their own because they’ve watched Ally McBeal, The Practice or CSI. It pervades most constitutional law, is a dominant force in Human Rights law and Commercial/Financial Law. For all that though, there is a distinct exotic flavor to it that makes it sit not just right in my mind. It looks, acts, tastes and smells like law, but it doesn’t intuitively feel like what law should feel like. Its participants don’t behave like lawyers or judges. Yet they clearly are lawyers and judges, in perhaps one of the most mainstream legal traditions in the world. It’s been an interesting introduction but as a student, I’m glad I grew up in the UK’s legal tradition.

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I have received numerous complaints about the vagueness of my last few posts, and I tender a most heartfelt apology to my reader. They have been evasive, rambling and have much else in default besides. I offer no excuses. I learned long ago not to offer excuses.

I offer an explanation. Distinguish excuses and explanations by the fact that one is an attempt at justification – which I do not offer for my actions; and explanation – which merely make you aware of the full circumstances before you pass inevitable judgment. An excuse is an attempt to plead for clemency –for bad writing there can be none.

My explanation is two fold. Firstly these posts are generated in a specific context and are in response to that context. I cannot explain that context on a blog. I do not wish the world to know what is causing such vagueness in my writing. Instead it is shared in frank conversations, snatched moments, and brief updates, with those who I want specifically to know.

At the same time I cannot contain these thoughts. I have breached the third wall of my mind, and much now comes addressed outwards. I feel compelled to push these thoughts on to paper and to fasten them into some permanence. I compromise, and make a deal with the devil. In exchange for peace in my soul, I deliver you into a blinding fog that will hinder your understanding and hide my meaning. I wish there was another way.

I see these posts and can see through the smoke and mirrors as I read and reread them. They still talk to me. I know what it contains and what it veils. Its precise intentions, implication and effect hit me poignantly. Their context and subtext lend vivid colour to them in my eyes.

In the final reckoning this is why I have a blog. My words speak to me; and if they speak to you I am delighted. But they are written for me. For my own selfish reasons. To explain me to myself. And sometimes the price of that is to write for only one reader.

I hope you understand.

Those who advise me tell me that the world is an unplanned and spontaneous place, where event can overtake their cause, ends flow into beginnings with infinite variability and possessing the virtue of predictability only in the cryptic assurance that they are predictably unpredictable. That the ebb and flow of events can be such that we must sometimes, if we are to keep our head above the crest of events, commit ourselves instinctively, in the full course of events to causes and end products that we might not understand, appreciate, or desire.

They counsel this to make it clear that what I cannot have is one of the things I want most, for the world to be knowable and understandable. For me to always make conscious choices, not forced by the press of events and the tumult of time, but careful, slow, considered and yet capable of creating an ending that is both desired and appropriate. To have a measure, some control over pace, to find life not a slide, forced around twists at increasing speed, loops coming faster and the background blurred in the mist – this is not for me. I am and always have been a slow and rather patient person, a person who believes more in evolution then revolution, that steps are always taken slowly and firmly in a direction rather then randomly and exuberantly stepping over rubicons and into the unknown. The unknown is an anathema, something to be explored slowly methodically mindfully. Not to be charged down into recklessly and boldly, pretending that bravery can substitute for skill.

I understand though now that this preference, this predicament, leaves me vulnerable to those, who understanding my psyche, wish to pressure me. All it requires is to control the flow of events, to make me feel the pinch of the invincible hand of time, to know that I can only take two alternatives: either to yield or to abdicate my decision. I will either give in, coerced by the power wielded against me or I will exercise my right to not play the game. Perhaps this amounts to some sort of strange yield or flight response to stress, not the famous fight or flight, but then perhaps I have been tempered in environments sufficiently different from the primeval to develop a different range of responses.

I have to live in the modern world, of bewildering complexity and infinite variety, where the options and choices of a minute can change the possibilities of a lifetime, where the sheer variety of people can make choices unknown to me, that may through Adam Smith’s hand make choices for me, and where the fluidity of the human condition might make hundreds of choices equally possible or impossible. In this world, I who desires certainty perhaps over many other things, who values stability and fully accepts the role of the dynamic at the same time, who will espouse the mantra that “the only thing that doesn’t change is change” and not accept it except intellectually have to fashion out a niche and to find a way to thrive.

Somehow I survive, perhaps underestimating my own ability to react to forced circumstances, or because of my one single victory – to understand the game of life is a game – with rules, winners and losers but that the rule set does not define the possibilities. That there are options outside the box that I can have recourse to and that the ability to be dictated to is created by the game, and the game can be stopped at any time. Small nuggets of hope perhaps, in this catalogue of despair.

The clock strikes midnight, and although no bells now echo with Westminster chimes, I don’t need them to let me feel the lateness of the hour. The tiredness of being beyond my routine weighs me down, though I do have the compensation of not being required to play squash and I already anticipate sleeping just a little while longer. It suffices as consolation, as does the reason I wait.

I’m awake at the ringing in of the witching hour because I made a promise to a friend that I would be online on skype to pick up our conversation where it was interrupted. I’ve had good occasion to understand the value of frank conversation and how wonderful an experience it can be. Being naturally careful and cautious in my friendships, it takes exceptional trust and faith in the other person on my part to talk openly.

I admire, can only admire not imitate, the likes of James and Gareth who talk so openly and frankly even to total strangers, and I see the beautiful benefits that their frankness brings them: people respond to them in the most amazing ways – and in hindsight I realize that I responded to them for the same reasons. It was their patience and perseverance through my initial defensiveness that found friendship’s rich pastures on the other side. Other friendships of mine have followed similar patterns, and I can only admire the certainty of my friends in persevering where I would have given up.

I recently drew up for a list of those I felt like I could talk frankly too, and the list was surprising and revealing- I hadn’t put the thought into that topic in a long time. I don’t intend to reproduce that list here, to do so would be to reveal too much of my secrets to my reader, and my timid defensiveness is reasserting itself . Interestingly enough, if you want to know you can always ask the question, but the only way you’ll get the same response is if you’re on the list as well. A bit of a Catch-22.

I want to talk about these people collectively. About the magic inherent in merely talking to them.

Conversation is refreshing in a way conversation with others isn’t. I don’t feel boundaries, I don’t feel limits. I don’t feel any pressure to conform, no pressure to censor the inappropriate parts of me. I don’t need to come up with topics. I don’t need to drive the conversation. Part of the charm is the loving mockery that I pointed out not so long ago, but only as an aspect, an aside. The conversation can span such territory; can go from the sublime to the heights of philosophy and theory to the depths of the worst humour that would never be repeatable in even the least polite society and then ascend to be silly and ridiculous – sublime again in its own way.

But that is the shell, the orange peel, the bark of the experience. The real feeling, that strong feeling that endures, that triumphs, and whose recollection will keep you alive in many dark nights and days, just by its recollection, is that feeling of connection. I lose the feeling of being alone. I can’t stress how amazing that is.

Perhaps you think I exaggerate, so I will expand with a simple example. I will use Hunaid, because our bond is well known. There are many days that I draw strength from the knowledge, just the simple knowledge, that Hunaid is out there. I don’t have to talk to him, I don’t need to see him, just the knowledge that on this world, he’s there too, has become a support. That is a bond I can feel, that I can depend on, that I do depend on, thorugh just the strength of friendship and franknes that binds us together. This is just one example from one of the people.

I want to expand this, to justify, to explain. To plead my insanity through its full course as if words would suffice to transcode what I want to say into something sensible. I understand now that they won’t suffice. All I count on then is that you, my estranged reader, understand. That you feel what I feel or have, at least once, felt. If you do, I am explained.

What a topsy turvy week it has been. I am a man of simple prejudices and even simpler notions. One such basic idea that I harbour can be summed up as days are for doing things and nights are for sleeping. A simple notion, an elegant if rather prosaic division of the day into two parts and a formula that would be rather easy for even an idiot like me to adhere to. So you would imagine.

If there has been a week in which that notion failed profoundly this has been it.On Monday with the start of the new school term, I journeyed off to HKU for my first class in a series of eleven on Securities Regulation in the HKSAR. Similar travels occupied my Tuesday (International Trade Law) and Wednesday (Competition Law) as is the case when you are required, by your desire to graduate this year, to do three classes in a semester. Thursday saw me out and about again in the evening, first to Soho, that trendy paradise of the fashionista before wandering from one end of Hong Kong to its midpoint and then back again to the end. My feet have the blisters to testify how unused I am to walking such epic distances. Friday night saw me fulfill my duties to both parents and God, first of to the markaz to watch movies I’ve already seen, although I did occupy myself by playing games on my phone, which was probably some sort of sacrilege before venturing into the unknowable despair of Kowloon. And finally came today evening, off bowling and then eating with friends once again, bringing this set of days to a close. The only consolation is that tomorrow I don’t have anything planned as far as I know. A small concession to my principles.

Now in contrast if I were to list the way I filled my days, I could not compile a longer list of the dire and desperate than that account, and for that very reason I will refrain from doing so. Suffice it to say that my main accomplishment of the week was to send 3 emails in sequence which may have the end result of getting my dissertation up to speed and finally more concrete than shadowy it its likelihood of becoming a writeable document. I suppose it’s not a trivial accomplishment, but really it’s not a lot of work to be proud of to sum my achievements in a week.

My upturned timetable, my wrong sided life, to me still does not appeal. Others have advocated the seductive world view that the day is for work and the night is for nightlife, but I cannot find in me the commitment of intellect, energy and will to take this suggestion up to be the truth, for I find that I cannot indulge in both and give both the quality and the clarity that I know they deserve from me to maximize their value. I don’t suggest that I can do one or the other, but rather that it takes too long a day for me to triumph over.

I still have as a ground rule the notion that things are done in the day and it is one of the ideas that I am most keen to hang on to. I see it as a way of structuring my day so as to take advantage of the time that I now I’m most capable of doing my best work which is the mornings. I am that rare bird termed a morning person, who prefers to start the day at the earliest instance viable when there is sufficient reason to do so, and to then declare my day at a close around 6 pm regardless of the circumstances. I can begin things before that time and then keep going with them until they are finished, but I do not permit myself to begin new projects once this hour has passed.

And I mean all things in this – and in my ideal world I would include social events in this category. I would love to not have to begin anything social after that time, but it really does seem for the majority of the worlds this is a most unreasonable and unendurable position, and so out of a notion of flexibility and my basic nature as a political animal. It seems that I am discovering the difficulty of being a day person in a world of the night, and it will take some mental strength that I find difficult to dredge up to resolve this.

It is the strangest of motives that drive me now to write. I have nothing to say, no thesis to argue no path to suggest no words, perfectly crafted in my mind, that compel me to put them to paper and develop some sort of rationalization or organization. Yet I cannot avoid the compulsion to put words to paper, to meander across the page looking for solace in the comfort of words.

I don’t normally do this, stream of conscious, meandering, writing, and even now I hesitate to commit my unedited splurge to the world and perhaps I shall have to review this before I do, but I could of course take the first bold step of doing without. My first inclination as usual is to cover my ass rather then commit anything inept to posterity, and as the wise before us have said you don’t regret the things you didn’t say. This actually might not be true because, sometimes, you do regret the things you don’t say because the right word at the right time in the right moment might have made all the difference. I’ve reached a decision by the by, to edit only for clarity and I will not in substance remove any content that I now expel into the ether, finding solace in the nature of these words.

I’ve just re-read Manc Sean’s comment to my last post, the one on Leaving FMGamer, and I’m taking a bit of solace in the mutability of things at the moment, finding strength in the idea that this too shall pass, but at the same time finding the reassurance of prospective mutability, that the sun shall set and rise again, to know that things will not stay the way they are as neither solace nor comfort but rather a cryptic harbinger of doom and an implacable enemy to my desire to understand. At my core I am a person who seeks to understand intellectually the world that I pass through. While I can intellectually appreciate the role of emotion, irrationality and intuition in the action of people, I find it when I have to deal with sudden bursts of these without any clear understanding or knowledge of where these things are coming from or where they are heading. A maelstrom of action surrounds me, me who’s nature is not of action.

Naturally I feel the response to action, however caused, is action, yet I cannot find within me the motivation to respond with action. I feel a strange listless exhaustion, as if life has overwhelmed and conquered, my ship is run ashore and now I wait for wind and tide to turn before again setting out into the maelstrom. It is abundantly clear that at the current moment to sail out again would be perilous, I lack the will to see the right course and the right action will be maintained. Partially my mental state is to blame but I’m also aware that I was awoken rather early today by the recovery of my niece to better health as well as the strange twinges in my leg that I seem to have damaged playing squash yesterday which gives of the sensation almost that if I were to lean too hard on my leg it would buckle under me and I would collapse, and at any rate I have no desire to press my leg into service to find out how faithful it would be in the circumstances. But the lack of a will to force iron into action is perhaps a greater disability then anything physical could ever be.

I don’t feel satisfied with the meager words that have been placed here, and perhaps now I understand even with the slightest, and then only empathetic, participation, why James does not write. These words seem inadequate and incomplete, vague and illusive, transient and concealing yet too revealing and inept. They are partial yet complete and disturbing while neither aiding me nor hindering my thoughts. They are like the shroud that covers the mysteries in the Ancient Temple of the Jews – barrier and substance and immaterial all at the same time. What a strange simile my mind has darted to; what a difficult one to grasp as well for those uninitiated in the odd habits of the Judaic Temple that once was of Solomon.

I think I shall stop here, I have produced words but they have provided precious little solace and perhaps too much complication and too little opacity for any real purpose, they are words though, and perhaps as I advocated long ago just placing a few of them in order might help to clarify. Just not now.