Clash Of The Writers: The Bad Book Review Lawsuit

Can one sue over a bad book review? This is the question being asked by Harvard historian, and popular writer, Niall Ferguson as he ponders launching a lawsuit against Pankaj Mishra, who reviewed his most recent book in the London Review of Books. The disagreement is an ugly affair, which, unfortunately, may just  boil down to a political disagreement with Mishra viewing Ferguson`s book, Civilization: The West and the Rest as perpetuating "white people's histories". Even the clarification penned by Mishra was not enough to efface the allegation of libel and defamation. Mishra, however, is no stranger to the bad book review genre as he clashed earlier this year with Patrick French, again on a post-imperialist basis.

Of course, such literary squabbles are not uncommon in the literary world. Paul Theroux and V.S. Naipaul only recently purged their dispute, while William Faulkner and Ernest Hemingway never did become chums. But at least they only used profanity to describe one another as opposed to Norman Mailer and Gore Vidal, who famously used fists instead of the pen. Watch this great clip of the two on the Dick Cavett show. Often literary warriors do prefer the pen and slug it out in the media with duelling book reviews as in the case of Salman Rushdie and John Updike.

The problem is, however, when literary spats move into the bete noir and the threatened lawsuit becomes a criminal trial. Earlier this year, Joseph Weiler, a law professor at New York University, was tried in a French court for criminal defamation relating to an unfavourable review of a book on the International Criminal Court written by Karin Calvo-Goller. The Court did not miss the irony of the situation, as it declined jurisdiction on the matter and ordered Calvo-Goller to pay costs for the lawsuit, which was found to be an abuse of process.

The above situations may not help us determine when a book review turns rogue and attracts legal attention but it is a healthy reminder that writers too can be stranger than fiction.

In 2012, Let's Innovate!

Typically, on January 1 of each new year, we consider what the new year will bring us. Often, we have help with our predictions in the form of a list of trends for the new year. Tech trends tend to be the most popular to feed our compulsive drive toward possessing the best and brightest tech toy in our social circle. There are other lifestyle trends: colour, clothing, hair, and even food. Sometimes, these trends are pre-determined well in advance with fashion houses now creating for 2013 and beyond.

There are, of course, legal trends such as e-discovery, social networking in the workplace and courts, virtual law offices in the clouds, and the ubiquitous wikis. Ironically, there are re-occurring trends such as legal outsourcing seems to have been on the list for years.

Trends, however, do not necessarily translate into innovation. Trending is, well, trendy; as in what is popular, not always what is different or unique. Innovation, on the other hand, speaks to new ideas, new pathways, and new connections.

We can actually learn from the past in order to innovate in the future. John Cage's experimental music and his prepared instruments have been around since the '50s but is still a good lesson in innovation. To think outside of the box and embrace an expanded definition of music, or anything really, can lead to an idea, which is new, different, and exciting.

Legal inspiration can be found in what is already available too. Just read a case decision for a reason completely unconnected to a research query to find a new idea or a new connection. This new idea can then be used in a slightly different scenario and you have instant innovation. Sometimes just connecting hitherto unconnected themes can provide fertile ground for an innovative argument.

The Charter is another area rife with new possibilities and fresh arguments. Indeed, it is these new arguments which make the Charter so robust and relevant. The Charter, as a reflective document, mirrors our societal values and so the legal profession too must be intuitively aware of the changes to those values in order to fashion cutting-edge arguments. Thus, from trends, we innovate.

So, in 2012, let us innovate in all we do and create a 2012 trend, not just be part of one. Happy New Year!

Shakespeare's Courts And The Promise To Marry

Today let's travel back some three hundred years from Dickens to Shakespeare. Shakespeare would undoubtedly be familiar with the Prerogative Court and the Consistory Court of the 1500s. Prerogative Court was a Church Court in which the powers and privileges of the sovereign were exercised. The Prerogative Court of Canterbury handled the probate of Wills for the south of England and Wales. This court was eventually subsumed into the Court of Probate in 1858. You can find some of these Wills at the National Archive website such as Jane Austen’s Will from 1817.

The Consistory Court of London was another Church Court involved in marital issues including disagreements over estates. In "The Lodger Shakespeare" by Charles Nicholl, Shakespeare's life is illuminated not through his plays but through his personal relationships while he lived in London. Nicholl examines those around Shakespeare: his landlord and landlady as well as those he interacted with on a daily basis. Nicholl describes Shakespeare witnessing or actually presiding over his landlady's daughter's plight ceremony or betrothing. According to Nicholl, such a ceremony was a recognized form of marriage occurring before the religious ceremony. This betrothing had the force and effect of a signed contract and an aggrieved party could sue on the basis of a breach of this plight troth.

These contracts were the precursor to the common law marriages recognized by the courts even today. Nicholl discussed the difference between the de futuro marriage (a future agreement) contract and the de praesenti (a present marriage contract). The de futuro contract is only binding upon consummation of the marriage, while the de praesenti is binding immediately. Indeed, Shakespeare’s play Measure for Measure revolves around such a ceremony and contract with a delightful “play” on the sexual requirements to make such a contract enforceable.

In Canada there is no right to sue on a breach of a promise to marry. However, there may be an action to return an engagement ring if an engagement is broken. In D’Andrea v. Schmidt, a 2005 Saskatchewan Court of Queen’s Bench case, the defendant Kim Schmidt, who was the wearer of the ring, argued that such a lawsuit was based on an “anachronistic law” which discriminated against women and perpetuated stereotypes contrary to s.15 of the Charter. Such a cause of action, she argued, treated women like chattels and was not within the spirit of societal values. Needless to say, this argument did not have the “ring” of truth as the Court found a lawsuit for the return of gifts given in promise of marriage could be brought by either sex.

In McManus v. McCarthy there was a valid marriage but the husband wanted the return of the engagement ring after the marital breakdown. Madame Justice Kenny ordered the return of the ring as it was found to be a conditional gift only. No surprise as this marriage lasted 9 days and occurred after 4 prior engagements!

Betrothals do matter, however, when it comes to immigration. Refugee applications in Canada can be based upon the coercive effects of arranged marriages in foreign countries such as Ghana. See this link for a case on point. Such “marriages” can start at a very early age with a betrothal and thus an expectation of marriage at a much later date. This situation is a contract de futuro where the woman, when old enough to appreciate the situation, does not consent. It appears these claimants are not typically granted refugee status.

Shakespeare was therefore very much aware of the necessity for the rule of law as in his famous line from Henry VI suggests:"The first thing we do, let's kill all the lawyers." This line was not written to incite against the law or rail against lawyers, but was written to underscore the need society has for the rule of law, without which, anarchy reigns.

Bleak House And The Court of Chancery

My legally minded book choice to re-read this holiday break is Bleak House by Charles Dickens. In Bleak House, the courts are more than a backdrop to the story but the elemental building blocks of the story’s structure. The opening chapter tells all as the Court of Chancery obscures characters in its process and procedure. The Court is thus cast as the arch-nemesis of all.

Dickens published Bleak House in installments in 1852 to 1853. The novel reflects the English Court of Chancery as it was in the 1800s. This was a Court of Equity, originally the court of redress for those who could not find legal remedies in the common law system. An English equivalent to the American Judge Judy. The Lord High Chancellor created the court in the 1500s after years of serving as the King’s delegate in deciding citizens’ petitions to the King. See the English National Archives website for a review of ancient petitions from the time of Henry III to James I. Shakespeare’s Will is also available on this website. Also peruse Chancery decisions online from 1606.

The rule of law in Chancery was that of equity and fairness, not of the rule of law. As depicted in the novel, by the time of Bleak House the Chancery Court was awash in deadlock (a pun on Bleak House) and inequities. Cases before that court took many years to come to fruition and, as in Bleak House, more often than naught would come to an ignominious end as lawyers’ fees dissipated whatever ‘equity’ remained in the case.

Presently, the Court of Chancery is part of the English High Court of Justice. There are still Chancery courts found in some jurisdictions of the United States, such as Delaware. So too Canada had a Court of Chancery, which merged with common law courts in 1881.

A prime example of an English Chancery Court decision can be found in Fletcher v. Fletcher from 1844. Jacob Fletcher filed the lawsuit as the “natural” or illegitimate son of the testator, Ellis Fletcher, for the large sum of 60,000 pounds. Ellis died ten years earlier but the document establishing this claim was not uncovered until much later. Indeed, the claim was found wrapped up in a “brown paper parcel” and in the personal papers of the deceased. The defendants in the suit are the “infant children” of the deceased and supposedly legitimate. The Vice-Chancellor, however, finds in favour of Jacob.

Although the case does not have the drama of Jarndyce vs. Jarndyce, it does have the elements of intrigue and heartbreak. Every lawsuit is a story and a narrative of the past. From law to literature as a reported decision comes to life in the pages of Bleak House!

Another alternative is to watch the outstanding rendition of Bleak House as presented by PBS on Masterpiece Theatre. Canadian actress, Gillian Anderson, is sublime in her role as Lady Dedlock. The direction and cinematography is uniquely modern, yet holds true to the period piece genre.

Let's Talk About: The Word "Crime"

What's in a name? A name is a label or a representation of an object, which through usage and custom, is accepted by society and then becomes identified with the object. The name gives us a familiar reference point which we can then use in discussing the object with others. A name becomes the short form of the object. Instead of describing and re-describing in detail the properties of an object when refering to it in conversation, we simply provide the given name and we have instant recognition and understanding.

Etymology is the study of the history of names: from where the word came and at what period in our history the use of the word began. This history of a word is intriguing. Much like a puzzle, the history of a word can reveal a secret past, which may provide an unexpected connection. Thus, the original intent of the name, which may have transformed through time and usage, is retrieved to provide knowledge to those who desire it.

The word "crime" is defined as "an act punishable by law, usually considered an evil act." In a later posting, we will look at differing definitions, when we discuss what is a crime in the context of law generally and criminal law specifically. But for our purposes today, the definition given is the one we will accept. The first known usage of the word "crime" was in the High Middle Ages around 1250. Within this time, the Medieval period, or "Age of Faith," was drawing to an end as Marco Polo explored and returned laden with spices and stories. The Renaissance was not too far behind.

The etymology of "crime" is from the Old French crimne, which came from the Latin crimen meaning accusation and the Latin root cerno meaning "I decide. I give judgment." However, Rabbi Ernest Klein, a Romanian-born Canadian linguist, in his Comprehensive Etymological Dictionary of the English Language, suggests that crimen is actually derived from the phrase, "cry of distress." The Latin was derived from the Ancient Greek word krima, which means a judicial sentence or condemnation.

The history of the word does reveal shades of today`s meaning but embues the word with much more colour than the dictionary meaning we used at the beginning of this posting. Crime also now speaks to the concept of accusation, which in turn speaks to the presumption of innocence as the accused has yet to be found guilty. Or the idea of justice or judgment as in the Latin and Greek root of the word. Finally, crime speaks of a cry of distress, an individual who has lost his or her way in life and looks to society to not condemn or judge but to lend guidance.

In this historical word play, crime has taken on different shades of meaning and caused us to think of the word in different way.