But there’s one thing I’d forgotten about: the obligatory query as to where my Powerpoint slides can be downloaded from the web. What Powerpoint slides? Long term readers of the blog know that I have problems with Powerpoint from way back.

“Powerpoint is against my religion”, I told my class with some asperity. (My religion is a very odd one. Things which are against my religion include: group work, Powerpoint slides and clowns. Thou shalt keep me away from these things if thou dost wish me to be happy. This list does not purport to be comprehensive, and may be added to at will.)

If my religion is anti-Powerpoint, I think Edward Tufte can be regarded as the prophet of that particular aspect of my beliefs. He’s written a piece on how Powerpoint led to the Spaceshuttle Colombia disaster. Now that I am a salaried lecturer rather than a sessional staff member, I might even buy his whole essay.

Anyway, a friend on Facebook directed me to this particular beauty by Mark Goetz:

(larger version here)

I’ve printed it out, and I’m going to put it on my office wall.

Eye-candy du jour, for the inner science geek.

This is the extraordinary place where we all live – the Universe.

The picture is the first full-sky image from Europe’s Planck telescope which was sent into space last year to survey the “oldest light” in the cosmos.

It took the 600m-euro observatory just over six months to assemble the map.

It shows what is visible beyond the Earth to instruments that are sensitive to light at very long wavelengths – much longer than what we can sense with our eyes.

- BBC News

The first time I became aware of this phenomenon was in 1998 when the (conservative) Howard government appointed barrister Ian Callinan to the High Court of Australia. Callinan was the first Judge on the Australian High Court to be appointed to the role without serving as was criticised because he had not been a judge in a lower court. In addition, his appointment garnered controversy because of criticism of his behaviour in a Federal Court case released shortly after his appointment: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. Goldberg J made adverse findings about the decision to pursue a weak Trade Practices Act claim. His judgment was critical of both Callinan’s instructing solicitors (who were the defendants to the proceeding) and Callinan (who was not).

Appointments to judicial office are also controversial when the appointee is not a barrister. There was apparently shock in the Victorian legal community when Bernard Teague became the first solicitor to be appointed to the bench of the Supreme Court of Victoria in 1987. This was despite the fact that Teague was an experienced litigator. It was generally conceded afterwards that the fears were unfounded, and Teague was an excellent judge. He has retired from the bench, but now heads up the Royal Commission on the Black Saturday Bushfires. Andrew Greenwood, a Federal Court judge from Queensland, is another solicitor appointee who has acquitted himself admirably on the bench.

Likewise, in 2006, there was controversy when legal academic Marcia Neave was appointed to the Court of Appeal of the Supreme Court of Victoria. Neave JA has a long and distinguished record as a legal academic and as the foundation Chair of the Victorian Law Reform Commission. As Justice Ruth McColl outlines in this speech, Neave JA’s appointment was attacked as feminist “tokenism” by conservative commentators such as Andrew Bolt and some male barristers and QCs. I must confess that when Neave JA was appointed, there was a small guilty part of me which said, “She hasn’t actually practiced law.” But, mindful of the unwarranted furore which had engulfed Teague J some decades earlier, I suspended any judgment until I had seen how Neave JA performed. From what I’ve seen so far, Neave JA’s performance has been excellent.

Why am I discussing all these cases? Well, Barack Obama has just nominated Solicitor-General Elena Kagan as the next US Supreme Court Justice. Kagan will be controversial because she has not served as a judge on any court, although this is not without precedent in the US Supreme Court. The most recent appointment to fall in this category was former Supreme Court Justice and Chief Justice William Rehnquist (a Republican appointee). In fact, there have been 40 US Supreme Court judges who did not serve as judges before their appointment to the bench.

For those unacquainted with the US system, the President is empowered to appoint Supreme Court Justices according to Article Two of the United States Constitution but the appointment must also be with “the Advice and Consent of the Senate”. Thus the senate must vote on the appointment after a confirmation hearing. There is a strong history of partisan appointment in the US, and confirmation hearings are often very political. One of the most divisive confirmation hearings in recent times was that of Clarence Thomas, a conservative African-American judge nominated by George Bush Snr in 1991. Some of those opposing Thomas’ nomination professed a desire to “bork” him (i.e discredit him in the mass media in a way reminiscent of the campaign against Regan Supreme Court nominee Robert Bork).  Later, during the confirmation hearing, allegations of sexual harassment were made against Thomas by a former colleague, Anita Hill. Things got very ugly, with Thomas saying to the Senate Committee:

This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.

Thomas was confirmed by the Senate with a 52 to 48 vote, the narrowest margin for approval in more than a century.

Obama’s first nomination to the Supreme Court was not without controversy, either. As I have discussed here, Sonia Sotomayor had expressed views in a speech that as a Latina woman, she made better judgments than white men which led Republicans to suggest she was an inappropriate candidate. My own opinion is not that her judgment is necessarily better - it is different. But difference and diversity on the judicial bench is a good thing: we don’t want a cabal of judges who represent only one particular group in society.

Nonetheless, despite the benefits of diversity, one of the criticisms of appointing someone who hasn’t sat on the bench before is that it’s hard to know where they stand on various issues, although WSJ law blog has had a go at compiling a brief profile of Kagan, taken from the Senators’ questions before she was confirmed as Solicitor-General last year. She seems generally to be regarded as moderate. Of course there’s comments to the post speculating about her single status, just as there were similar comments about Sotomayor (gee I hate that, there’s a whole raft of revolting presumptions there).

Is it a problem that Kagan’s employment history is mainly academic? As I confessed above with regard to Neave JA, it does worry me slightly when someone does not have much history in practice. My own point of view about the law has been greatly influenced by my time in practice. On the other hand, perhaps it’s good to have someone who doesn’t carry all that baggage. As an aside, I can’t see how a person could be a successful trial judge without having a solid background in litigation (whether as a barrister or as a solicitor) but for appeals I don’t think it’s as important, as long as the appointee is accustomed to weighing up conflicting arguments and reading huge volumes of material.

My account of the Australian judges above shows that we lawyers have to be careful to assume that a legal academic or a solicitor can’t do a good job as a  judge. Kagan is an academic, but she may well be a good judge. We’ll just have to wait and see.

Still, I do wish there was a way of appointing judges which was less partisan. That would lessen the feeling of unease for me. I want our judges to try to be as objective and fair as possible, and not to slavishly follow a particular party line.

Update: Pete Black at Freedom to Differ has more on the speculation about Kagan’s sexuality.

Update II: More from Pete.

“Book-love, I say again, lasts throughout life, it never flags or fails, but, like Beauty itself, is a joy forever.”

(Holbrook Jackson, The Anatomy of Bibliomania)

How can one judge how much one loves a book when one also loves the author? This question has been raised by the recent debacle in which an anonymous reviewer on Amazon who praised author Orlando Figes and was scathing about books by rival authors was revealed to be none other than Figes’ wife, Dr Stephanie Palmer, a senior law lecturer at Cambridge University and human rights barrister.

It all began when Cambridge-based academic, Dr Rachel Polonsky was looking at the reviews on Amazon of her book on Russian culture, Molotov’s Magic Lantern. She noticed there was one review which stood out among the many favourable reviews. The reviewer, “Historian” described her book as “dense”, “pretentious” and “the sort of book that makes you wonder why it was ever published”.

Polonsky looked at all the other books “Historian” had reviewed, and noticed that “Historian” was scathing about most books, but had a soft spot for Figes’ work. “Historian” also had a secondary nickname “Orlando-Birkbeck”. In addition, there had been a history of tension between Polonsky and Figes because Polonsky had given an unfavourable review of Figes’ book Natasha’s Dance in 2002. Polonsky’s review said that the book excelled in a particular “genre of pastiche writing” and she found “problems of accuracy as well as scholarly practice” in it. Figes was apparently considering legal action in relation to the review.

Polonsky also noticed that “Historian” was scathing of books by two other authors. One was The Suspicions of Mr Whicher by Kate Summerscale, which won the Samuel Johnson 2008 prize for non fiction. Figes had also been shortlisted for the prize. The review by “Historian” began: “Oh dear, what on earth were the judges thinking when they gave this book the Samuel Johnson Prize?”

The other author whom “Historian” criticised was Professor Robert Service, author of biographies of Lenin, Stalin and Hitler. “Historian” said that Service’s biography of Stalin was “curiously dull” and recommended readers instead buy Figes’ book, The Whisperers, which she said showed “superb storytelling skills”.

Polonsky alerted Service to the reviews, and Service sent a furious e-mail to other prominent authors and academics complaining about the reviews. Service also sent a copy of the email to Figes, and signed it, “Cheers from under the mud”. Figes replied to everyone in Service’s e-mail denying any role in the reviews, which he said could have been written by “virtually anybody”. Polonsky threatened to take legal action to discover who the author was. It was after this that Figes’ lawyer issued a statement:

“My client’s wife wrote the reviews. My client has only just found out about this, this evening. Both he and his wife are taking steps to make the position clear.”

Wow. It would be interesting to hear how that conversation between husband and wife went. The whole thing has turned out to be hideously embarrassing for Figes.

I wonder what the fallout from this debacle will be? I suspect the spouses and friends of writers will be more careful about posting anonymous scathing reviews (or at least they will be more careful about covering their tracks!) Perhaps it’s also a lesson to take reviews on Amazon with a grain of salt – they may be genuine, but then again, they may not!

[UPDATE by SL: Well well well, I learn via David Jackmanson in the comments that Figes wrote the nasty reviews himself, and that his wife was the fall guy. This is on a whole other level].

In 2007 a student working his way through college was found guilty of racial harassment for reading a book in public. Some of his co-workers had been offended by the book’s cover, which included pictures of men in white robes and peaked hoods along with the tome’s title, Notre Dame vs. the Klan. The student desperately explained that it was an ordinary history book, not a racist tract, and that it in fact celebrated the defeat of the Klan in a 1924 street fight. Nonetheless, the school, without even bothering to hold a hearing, found the student guilty of “openly reading [a] book related to a historically and racially abhorrent subject.”

The thesis of the author is that political correctness on university campuses is still alive and well, despite the fact that campus speech codes have been defeated in every legal challenge brought against them between 1989 and 1995.

Apparently some US universities have “free speech zones” where students can freely speak their minds. Other universities have codes which prevent speech which is hurtful, embarrassing or disrespectful.

Students who support gun use have been prevented from speaking at some universities. Now, I do not support gun use or concealed carry or anything of the like. Emphatically not. However, I would not prevent a person from speaking who did support these matters. The fact of the matter is that there are usually positives and negatives to every position (yes, it’s that pesky lawyer looking at both sides of the story again). For my part, I tend to think the negatives of allowing unrestrained gun use outweigh the positives by far, but that doesn’t entitle me to stop others from expressing an opposing view.

Complaining about “political correctness” is typically seen as a right-wing past time, but Lukianoff cautions against this stereotyping:

Because America’s universities tend to tilt left, and because many targets of P.C. censorship are socially conservative, campus censorship has too often come to be understood as a niche issue for the conservative media and blogosphere. This is a bizarre development, not only because free speech was once a central liberal cause but because liberals are by no means immune from campus censorship. Hindley, the Brandeis professor who was punished for his instructional use of wetback, is a liberal. Sampson, the student who read a book about the Klan, is an Obama voter, and some of the most vocal students opposing the Delaware residence program were liberals. This strange pigeonholing may explain why cases like that of Elizabeth Ito, who lost her job at Forsyth Technical Community College in North Carolina after criticizing the war in Iraq, or the students at the University of Texas who last year were threatened with expulsion for having an Obama poster in their window, struggled to find a receptive audience in the media.

The perception that free speech on campus is primarily a conservative issue ultimately enables campus censors. Free speech zones, for example, are often tiny, out-of-the-way areas where some campuses quarantine protest activities. Obtaining permission to use even these limited spaces often involves waiting periods and registration requirements. In my experience the zones disproportionately affect left-wing protests. In November, for example, three professors were banned from campus at Southwestern College in California after they supported students whose protest against budget cuts took place outside—I am not making this up—the “free speech patio.” Nevertheless, the conservative website CampusReform.org has listed a free speech zone as a “leftist” campus abuse. While the site commendably wants to bring attention to these speech cages, such labeling helps campus bureaucrats brush off criticism as the hobbyhorse of a disfavored political minority, rather than an expression of concern over policies that affect all students.

The reason for P.C. censorship often has nothing to do with left or right. Sensitivity is often a cynical excuse to squelch speech that administrators don’t like for purely self-interested reasons. In late 2002, for example, the administration at Harvard Business School threatened a student newspaper editor because he ran a cartoon mocking the I.T. department for the failure of its computer system during interview week. The dean claimed the cartoon violated “community standards” because it was not “respectful discourse,” but ultimately the rationale was one that FIRE frequently sees from campus administrators: I believe in free speech and all, but I draw the line at making fun of me.

Hayden Barnes was expelled from Valdosta State University in Georgia in 2007 for posting a collage on Facebook that critiqued a planned parking garage because of its effect on the environment. The school’s rationale? Barnes, a decorated paramedic, posed a “clear and present danger” because the collage was labeled the “Zaccari Memorial Parking Garage.” Ronald Zaccari was the president of the college; the collage’s title was a joking reference to the president’s assertion that the garage would be part of his “legacy.” The school clearly did not seriously believe that Barnes was the next Virginia Tech gunman, as the expulsion note was simply slipped under his door along with a copy of the collage.

Bans on free speech are not just a beat up by “right-wingers” or a “leftist conspiracy” against people who don’t agree with them.

Personally, I don’t like to discuss issues in ways that might hurt or offend people. But sometimes, it’s unavoidable. Sometimes people are particularly thin-skinned, or take your point in the wrong way. Sometimes you have to raise unpalatable truths to discuss an issue fully.  Sometimes you have to challenge the way people think by shocking them.

Sometimes you just can’t help offending people by the very nature of your opinion. For example, if an atheist tells a very religious person very forcefully that he does not believe in God and tries to say exactly why he does not believe, the very religious person may get upset. Conversely, if the very religious person starts to try and convert the atheist and tries to say exactly why she does believe, the atheist may get upset. Mind you, I’ve had interesting discussions with people with all kinds of beliefs where they haven’t been offended by my views nor I by theirs, but I can see situations where people could be offended.

As I’ve just discussed in my recent post on law and regulating society, sometimes it’s hard to work out how to make people behave properly. If a student racially abuses another student, I can see why one would want to prevent such conduct from occurring if possible. I can understand the impulse to regulate against it, but as I also discussed in the post in regulation, I think that sometimes regulation can backfire. The law is a blunt instrument, and it’s difficult to specify exactly what conduct you want to prevent without going too far. Your original aim might be to stop racists or gun lobbyists or whoever, but you also give the regulator the capacity to silence a whole range of other people because of the vague and broad way these codes are written. You might even silence yourself.

For example, the code at one university mentioned in the article tries to regulate and prevent students from making “[e]mbarrassing, degrading or damaging information, assumptions, implications, remarks.” What is an embarrassing remark? Does it cover telling someone they have a piece of spinach between their teeth? (Seriously, does it?) What if someone assumes you’ve said something degrading but you certainly didn’t mean to?

The law isn’t the best instrument for regulating embarrassing or derogatory comments, anyway. Simple manners would do it. I wrote a post a year and a half ago about the decline of manners in society. As I said then, I think the important aspect of “good manners” are those informal rules which involve respecting other people as human beings. By being polite, you are essentially saying, “Yes, your personhood, comfort and needs are important to me, and I respect them. I recognise that you are a person of equal worth to myself.” Manners are also about not being selfish and purely wrapped up in one’s own needs. A polite person would try not to say something rude or derogatory, or if she was told she did say something which hurt someone’s feelings, she’d apologise. But good manners are something which are more appropriately inculcated into us by our parents than by the law.

Ultimately, it’s important that students have the freedom to question the status quo. It’s important that students be able to read a book about the Ku Klux Klan without being accused of being racist. Unfortunately, I don’t think it is possible to regulate away offence, either.

But it is possible to have polite and respectful discourse and still disagree with one another. Indeed, I hope that this blog is an exemplar in that regard. It is this attitude that should be promoted in universities.

Update:

Sometimes I’m amazed at my capacity to capture the zeitgeist (if I do say so myself). Via The Australian, I learn that the Brumby government in my home State of Victoria is instituting a “respect agenda” (borrowed wholesale from Tony Blair’s policies).

Read my lips: you can’t force people to respect one another.

Such an initiative is a typical instance of a government instituting a policy just so it can be seen to be doing something. I suspect this is in part a response to the recent deplorable incidents of violence against Indian students, but “respect ambassadors” aren’t going to stop the violence happening, particularly in the short term. Greater police presence on the street, and doing something about the thugs who perpetrate the violence might help, on the other hand.

Pryor is exploring a number of questions: what drives young people to want to become lawyers? Why do many lawyers decide it is not worthwhile once they get there? Why do others stay in corporate law jobs even though they hate it? She also looks at bankers and management consultants.

I felt that this book was spread a little thin. Pryor explores some really fascinating questions, but just when I’d think, “Oh that’s really interesting, I’d like to see more analysis of that,” she’d move on to the next issue. By the end of the book, I was also intensely irritated by some of Pryor’s conclusions, which I thought were naive and simplistic.

I’m going to cherry pick a few of the issues.

First, one of the most interesting sections of the book for me was the section on high achieving high school students. Yes, I was one of those, I confess it. Pryor talks of people desperately trying to get into law because it is a “prestige” subject, and because students don’t want to “waste their marks”. I’m sure this resonates with any person who has studied law in the last 20 years. Some students in particular seem to build their whole existence around making a “well-rounded” CV. They have sporting activities, musical activities, charities, drama and so forth. But one wonders how much time they have to just, well…live life. Just to relax and think and be normal.

I read somewhere a few years ago that one of the reasons why so many people are unhappy despite unparalleled resources and opportunities is that, in the first world, at least, most of us are affluent enough that we have moved beyond “survival mode”. We therefore have the “luxury” to aspire to be the best (rather than just survive). We feel that we have to achieve academically and we have to be the best in the highly competitive workforce. We compare ourselves with others all the time, and find ourselves wanting. That’s particularly the case in a selective school, or in a selective course like law. And Pryor makes the observation that parents seem to heap expectations upon their children.

Actually, I didn’t do law because I got the marks. I did law because I genuinely enjoy an argument, I love language and I love thinking about how to solve problems. I am very grateful to be a lawyer, and there are times when I find it to be very empowering. I am also glad that I actually practiced for some time, and I advise all my students to at least give it at try. Nonetheless, I don’t know that I’d advise a young woman to do law (particularly one who was wanting to have children). I think it is a particularly difficult career from the point of view of juggling family and work. I have managed to juggle it only by opting out of commercial practice.

That brings me on to another point raised by Pryor: the deep unhappiness of many who are in the law. It’s no secret that rates of depression in the legal profession are many times higher than in the average population, and it’s something I’ve blogged on many times before. Pryor’s argument in part is that these intelligent, ambitious young students are sold a pup – they are told that they will be doing glamorous exciting work, and instead they get stuck in the bowels of a firm doing discovery work or something equally mind-numbing. She looks at the ways in which firms try to sell themselves to young graduates, and the ways in which the rhetoric does not live up to reality.

Here, I think that if people are disappointed to be doing mind-numbing stuff from the outset, then they are simply naive. Every job I’ve ever worked in involves tedious and mind-numbing aspects. Sometimes, also, the boring tasks are annoyingly important. Try working in a factory putting together diaries (as I did once). And then imagine that this is all you have for the rest of your life…

On the other hand, after a few years in practice, I did start to feel a bit like a sausage factory. Here’s another file, ker-plunk! Contact the defendant. If defendant cannot be served, get substituted service. Does the defendant file an appearance? A defence? If no, proceed to summary judgment. If defendant files a defence then there’s usually three options to take. And so on, and so on. But the important thing for someone in my position to remember is that on the other side of all these files is a real person (generally a person who is very stressed out and stands to lose their biggest asset – their house). In addition, most jobs have moments like that, whether one is a teacher, a bus driver, a scientist, a manager, a parking attendant or whatever. It’s not something special to law. We all have the feeling that we’re going through the motions by rote sometimes, I’m pretty sure.

I do wonder if modern culture has something to do with the dissatisfaction of the modern graduate. We’re told we need to make education fun and interesting. We have to make the learning experience transformational. Newsflash! Work is not always fun and interesting. Nor do you always change the world through your actions. But that doesn’t make your actions worthless.

One thing I agree with Pryor is a significant disadvantage of large law firms, banking firms and other firms is the workaholic culture. I’m sure people get depressed because it’s not just 9 to 5 – you have to give your life to the firm. And as a junior lawyer, in particular, you don’t have much control over what you do, and you are at the whim of the partners. Which is fine if you have a partner who knows how to manage people and how to manage projects…but if you do, it’s in large part up to luck.

Of course, I think that much of the bad culture of law firms is created by timed billing (always a bug bear of mine). In addition, I think that there are some really stupid cultural practices. Like Pryor, I’ve heard of departments where employees stay past 7pm even though they don’t have any work because they want to appear busy. It’s this stupid peer pressure thing. Employees who leave early get looked down upon. There is nothing worse than sitting around work with nothing to do, in my opinion. It’s not like you can do something fun instead – you have to sit there and sham being busy. And there’s only so many webpages one can surf before one wants to smash one’s head against the wall. I was once in a department which was short of work for junior lawyers, and I have to say, I found that far more depressing than being overworked. I was begging for work.

Certainly I think workaholic practices and crazy hours contribute to disillusionment of young idealistic graduates. But as Pryor says, such practices are just a carry on for people who were workaholic overachievers who found time to do everything at high school and university.

Another thing mentioned by Pryor is the pressure on young graduates to dress appropriately – if you’re not wearing designer suits in a big firm, well apparently, you’re just no good. I must have missed that particular aspect of practice. The only time anyone ever mentioned my clothing when I was at a big firm was when another articled clerk came up to me and said, “Who designed your suit?” in a sneering voice. I said mildly, “Actually, it’s interesting you ask. This suit is one-of-a-kind. I designed it myself and had it made up to my specifications when I was in Vietnam.” End of conversation, snooty girl left speechless.

One of the really interesting factoids Pryor mentions in her book is the amazingly high number of Rhodes scholars who go on to work for management consulting firms. I would have loved to have more information on this. I wonder what the exact proportions are? I must confess to confusion as to what exactly management consultants do (apart from wrapping up ways of downsizing businesses in bullshit bingo type words).

Another really interesting observation by Pryor was the tendency for women who have children to be parked in “dead-end” areas of the firm if they aren’t prepared to work insane hours. Firms trumpet their “flexible” workplace policies, failing to mention that mothers returning from maternity leave often get parked in the precedent section. I remember being shocked at seeing this happen to a friend of mine after the birth of her first child. She then talks about the rise of the “yummy mummy” phenomenon at page 182:

No wonder there is talk about successful women opting out of the rat race altogether. If you are a woman, becoming a yummy mummy is one escape route. The kinds of women big firms employ are ideally poised for such an opt-out. As we have already established, they are often upper middle class. They have studied in rarefied environments surrounded by other upwardly mobile high achievers with whom they can partner. … So when they find their job is less satisfying than they imagined, becoming a lady of leisure starts to look very attractive. It may not be what they hoped for but they can hide their disappointment by taking the moral high ground and insisting that family should always come before career. Energies thrown into sealing deals can be thrown into running with an iron fist the women’s auxiliary at the children’s school. Or these women might start their own small business in which they can use their finer, extracurricular skills, like designing stylish wedding invitations.

I don’t think it’s fair to characterise women who decide to stay home with their children as “hiding their disappointment” by “taking the moral high ground.” I think that many high achieving women (myself included) are amazed by the change that occurs when they have children. I just do not have the same career ambition which I had before I had children. I positively want to stay home with my children because I want to have the joy (and the frustration, at times) of mothering them. I don’t know for sure, but I’m guessing from the tone of the paragraph above that Pryor hasn’t had kids yet (or hadn’t at the time of writing the book).

Still, I’d definitely agree with her that some of the mothers who hothouse little Phineas are putting all the energy that they used to put into perfecting deals into their poor child.

The part of the book which really irritated me was the part where Pryor draws conclusions from her observations. She says at pages 224 to 225:

When the big firm recruit’s work and values are in conflict, becoming depressed is one option. Another would be to find a way to ignore, if not reconcile, the contradictions between a right-on past and a sellout present by flying the ideological flag of convenience. Masters of expediency just mould their belief systems to fit the prevailing ideology of their environment. At university, where the cool kids hang out on protest marches, burning effigies of politicians and visiting refugees in detention, it makes sense to adopt views which are left wing – radical, even. Flying this ideological flag is the easiest way to acceptance and eventual triumph within the social hierarchy of university culture.

A few years later, a new flag is necessary to achieve the same aim. By the recruit’s late twenties, power and influence are to be found in scaling the heights of the corporate world. The cool kids are taking holidays abroad yachts off Croatia, perusing degustation menus and closing big deals. A new ideological flag of convenience is needed at this point. Lofty ideals are shrugged off as the amusing musings of the young and naive. Sure, the sellout might retain some ideals but now sees more practical ways to achieve those ideals. They may embrace a ‘third way’ of looking at politics, which is neither left wing or right wing. Equality is all well and good but it is best achieved by third-world countries opening their borders to free trade. The tendency of the general population to condemn the high salaries of CEOs and the high fees of banks is dismissed as populist nonsense. The class system they once railed against starts to seem so much fairer when you have before you the likely prospect of becoming part of the ruling class. From the top, society does not look too unfair at all.

Thus, the process of selling out is entirely logical and consistent. And entirely depressing and self-interested.

Pryor argues that people who are good at arguing either side of the debate are excellent at “selling out” because they can always convince themselves that there are two sides to the story, and they do not determine what is “true and right”. She criticises intelligent people for having such a great facility for seeing two sides of the story.

First, it struck me that there was a massive generalisation here. When I think of my law school colleagues, I think of a number of them who have gone on to work for community legal centres, government, for legal aid and jobs like that. They may have done articles at a Big Firm, but they decided that life was not for them, and stayed true to the principles they expressed at university. Not everyone is having the degustation menu (I know I’m not).

Secondly, I profoundly disagree with Pryor’s argument that seeing two sides of the story means that you sell out. It strikes me as naive and immature. I understand from the book that on completing her law degree, Pryor never practiced and went on to become a journalist. It’s no wonder she didn’t go on to become a lawyer if she doesn’t like seeing two sides of the story, because that’s what being a lawyer is all about.

To me, it seems that there are always two sides to the story. Coming to that realisation is part of reaching maturity. When I was about 18 or 19, I had this feeling that I knew everything, and I knew what had to happen for all the injustices in the world to be fixed. Yes, I was a lot more stereotypically “left wing” than I am now. But my law degree and my history major taught me to look at things from different sides, and to think about the implications of the actions you take. What good is it smashing the class system if everyone (rich and poor) starves as a result? What good is it introducing a rule to stop inequity and inequality if it is not enforced and no one follows it? I used to be an idealist, but this blog has taught me that I’m a pragmatist, and a utilitarian in some senses. You can parade around spouting high principle all you like, but if it doesn’t actually help or make a difference, then you may as well throw breadcrumbs into a black hole.

When I worked as a banking litigator, and I repossessed houses, I did justify my job to myself. I used to think that if I was going to have to do a job like that, I may as well do it in a way that left me feeling whole as a person. I tried to be polite and professional, even when debtors abused me or the other side’s lawyers screamed at me. I tried to maintain my compassion for people who were caught up in legal proceedings, and not to get jaded, even when I came across people who deliberately tried to rip off the bank or to dupe me (and there were a few). Sometimes debtors cried, saying that I was the first person to treat them decently. Once a defendant came into the office simply to shake my hand because he said he wanted to see this person who had been so good about the whole business. (That made me cry – although I was heavily pregnant at the time, so very hormonal). I also used to justify it to myself by thinking that if the bank didn’t take action on those loans, then there was no way that the bank could afford to give me my car loan.

That’s the thing. Someone has to repossess the houses so that the banks can keep giving out loans, and I reasoned to myself that it may as well be someone like me who tried to be as decent as possible. Better me than a real hard arse who advises the bank to throw the 9 months pregnant lady out on to the street. (Yes, I did advise the bank strongly to give her another two weeks, and yes, she did raise the money to pay her arrears, thank goodness, so she and her husband were not out on their ears).

Pryor’s book assumes to an extent that people going into law or banking or whatever are not worthwhile. Now, it does annoy me that careers like law are seen as prestigious, when careers like teaching which are incredibly important do not have the same cachet. My husband is someone who chose not to do law although he had the marks. He chose to do science, and I think he made the right choice. He would have hated law, and he is a fantastic scientist. Nonetheless, he earns substantially less than he would as a lawyer at the same point. I would say that the problem is that we do not value careers such as teaching, science and nursing enough. I see people lamenting the lack of maths graduates, but then I think cynically – well, wouldn’t many people go to Accenture or Macquarie Bank if they could get quadruple the salary? The answer is not to belabour the person who responds to that incentive, but for society to change the incentives if they want things to be different. Maybe we need to rethink the ways we organise education and the ways we reward certain careers.

Still, I would refute the implication that lawyers are not worthwhile. As I have said before, private law keeps the wheels of society oiled. I believe this very firmly. There’s a place for lawyers as there is a place for everything else. But I do wonder if we need as many lawyers as we’re churning out…

Apparently breach of confidence was a relative latecomer into the equitable stable of actions, and arose from common law copyright cases and cases involving family medicines and cures.

However, UK breach of confidence law is changing from its historical origins because of the European Convention on Human Rights (ECHR). The British Parliament enacted a statute in 1998 which brought the ECHR into English law. Relevantly, Article 8 of the ECHR states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This must be balanced against the terms of Article 10, which state:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the recent case of Mosely v News Group Newspapers Limited [2008] EWHC 1777 (QB), Eady J confirmed (as per Campbell v MGN Ltd [2004] 2 AC 457) that courts applying UK breach of confidence law must take into account these values when making decisions about disputes between individuals, or between an individual and a non-governmental body such as a newspaper.

The UK test for breach of confidence is thus a two-stage test:

1. Did the plaintiff have a reasonable expectation of privacy, and thus is Article 8 of the ECHR engaged?
2. Is there a countervailing right of freedom of communication under Article 10 of the ECHR?

At [10] in Mosely, Eady J explained:

In the present context, for example, it has to be accepted that any rights of free expression…must no longer be regarded as simply “trumping” any privacy rights that may be established on the part of the Claimant. Language of that kind is no longer used. Nor can it be said, without qualification, that there is a “public interest that the truth should out”: cf. Fraser v Evans [1969] 1 QB 349, 360F-G, per Lord Denning MR.

Eady J continued at [14]:

This “ultimate balancing test” has been recognised as turning to a large extent upon proportionality… . The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.

However, the lineaments of “old” breach of confidence law still emerge from behind the “new” extended breach of confidence law, as the courts have indicated that they look at the wider context in which the confidential information was disclosed.

It seems in any case that UK breach of confidence law is edging into the territory of breach of privacy law. However, because of its origins in breach of confidence law, there must be a disclosure of information to trigger the action. Another kind of breach of privacy (such as a neighbour filming you over the fence) cannot be dealt with by breach of privacy law. One of the speakers who had been involved with the NSWLRC report on Privacy Law said that the phenomenon of one neighbour allegedly filming another neighbour without authorisation was amazingly prevalent.

Technically speaking, however, the “new” UK breach of confidence law has only been found to extend to private information, but apparently this might change with a recent European Court of Justice decision which extends the reach of Article 8 of the ECHR.

Australian law may also be edging into a situation where breach of confidence law can act as a de facto breach of privacy law in some circumstances. The case of Giller v Procopets was discussed at the seminar. (I’ve already outlined this case in a post here. I’ve also briefly discussed the ALRC report on Privacy Law too.) In Giller v Procopets, the Victorian Court of Appeal accepted UK case law at least insofar as it concerned the extension of breach of confidence to emotional distress. The High Court of Australia apparently recently refused special leave.

We also heard about some interesting US cases involving breach of confidence and medical records. Breach of confidence has a shorter history in the US, but it seems from these cases that it is relatively robust. Interestingly, there has been no consideration of how the doctrine of breach of confidence interacts with the First Amendment yet.

(Special thanks to Megan Richardson, Michael Bryan, Tanya Aplin, Nicole Moreham, Michael Rivette, Michael Tilbury and Brian Murchison for sharing their insights).

Exam marking is a gruelling process. For one thing, I need to be able to decipher 100 different sets of handwriting. I have had a few exams which literally take me over an hour to mark because I have decipher each word. I really do not know how some people read their own handwriting. Then there’s the frustration of seeing students make the same mistake over and over. It’s particularly disheartening when you’ve told your students not to do a particular thing and they do it nonetheless. You start to wonder sadly whether anyone listened to anything you said. At least I’m not lecturing this year so I haven’t had to suffer that feeling. When I get a good exam paper, I’m so pleased and excited. I put ticks all over it and and write Excellent repeatedly. And occasionally I come across some corking statements (intentionally or unintentionally funny? – sometimes it’s hard to tell).

Anyway, Dave sent me this interesting post from PrawfsBlawg about whether law exam marking is best approached as a marathon or a sprint. The author of the post marks exams as quickly as possible. Personally, I can’t do the sprint. If I do too many papers in a row, I find that I get really jaded and can’t concentrate. So I have to take a break every 4 – 5 papers.

Luckily my two tiny tots force me to take a break. Eaglet No. 2 is walking around now, and has taken to dropping things into the toilet bowl if I’m not careful. Nothing will break your concentration quite like Eaglet No. 1 calling out in horror, “MUMMY! He’s dropped his dummy into the toilet!”

Oxford University is hoping to welcome its first Aboriginal Australian students next year, it has been announced.

From next month, applications for two scholarship places are being accepted.

The university said although it had a significant number of students from Australia, an indigenous Australian had never studied there.

The scholarships will pay for tuition fees, air fares and living expenses over a three-year period.

The scheme has been set up by the Charlie Perkins Trust for Children and Students and is funded by the British and Australian governments and mining firm Rio Tinto.

‘Unattainable dream’

Sue Cunningham, director of development at Oxford University, said: “We are delighted that a year after we announced the Perkins’ scholarships, we now have the funding to officially launch them.”

I didn’t realise that there has never been an Australian Aborigine study at Oxford. Significantly, the scholars will have to meet Oxford’s own entry requirements as well as their scholarship requirements (I’ve gone through this dual process myself; it’s challenging to say the least), which means that the people who take up these awards will be very talented individuals indeed. 

I’ve long been impressed by the likes of Noel Pearson, who is one of the most consistently interesting intellectuals in Australia. I have no doubt there are more out there like him. This is just the right way to find them.

More on the Perkins Trust is available here.

Background: I thought lawyers had it tough when it comes to teaching students and newly minted clerks that just because he writes like an angel, Lord Denning is not God (or a member of the sainted multitude). The admissions requirements for law, however, are pretty demanding. Law students and young lawyers are at least literate. This is apparently not the case for history and history students. Professor Anders Henrikkson of Shepherd College has compiled for us a delectable selection of his students’ greatest furphies, lovingly collated over more than a decade.

We encounter, for example, a Martin Luther who nailed 95 theocrats to the church door in Wittenberg, monks who ‘went right on seeing themselves as worms’ and Calvinism as convenience. We learn that ‘the plague also helped the emergance of the English language as the national language of England, France and Italy.’ We discover that Russian nobles ‘wore clothes only to humour Peter the Great’ (clearly an early instance of climate change there) and that ‘Orthodox priests became government antennae.’ History, we are informed, started in 1815 (arise Prince Metternich, those who come after salute you!) while ‘President Wilson arrived with 14 pointers.’

The pièce de résistance? The following, surely the academic equivalent of Lord Nelson putting his telescope to his blind eye and saying, ‘I see no ships’:

Germany was displaced after WWI. This gave rise to Hitler. Germany was morbidly overexcited and unbalanced. Berlin became the decadent capital, where all forms of sexual deprivations were practised. A huge anti- semantic movement arose. Attractive slogans like ”death to all Jews” were used by governmental groups. Hitler remilitarized the Rineland over a squirmish between Germany and France. The appeasers were blinded by the great red of the Soviets. Moosealini rested his foundations on eight million bayonets and invaded Hi Lee Salasy. Germany invaded Poland, France invaded Belgium, and Russia invaded everybody. War screeched to an end when a nukuleer explosion was dropped on Heroshima. A whole generation had been wipe out in two world wars, and their forlorne families were left to pick up the peaces.

As they say, read the whole thing.