Ronald Dworkin, Legal Philosopher, Passes Away: Morality Symbiotically Tied to “The Law” versus Legal Positivism and Utilitarianism

Ronald Dworkin, Professor of Law at New York University (NYU), a law intellectual who (some say tentatively) traced his father’s origins to Lithuania, and who established himself as one of the nation’s foremost legal philosophers, passed away on February 14, 2013.

Dworkin was the second most-cited legal scholar of his era.

His main contribution to modern-day legal philosophy was to challenge the formerly prevailing legal theories of legal positivism (e.g H.L.A. Hart) and legal utilitarianism (e.g. Judge Learned Hand) and to set against these constructs a more timeless model — and one more difficult to apply — of “abstract morality” as a guiding force, symbiotically tied to “The Law”.

As an example of his facility to examine legal theories and issues at their very core, when confronted with dogmatic “originalist” Constitutional doctrine, he asked the penultimate precedential question of whether the nation’s Founders “originally” intended the U.S. Constitution to be interpreted in that way.

There are many obituaries published online:

See e.g.:

Posted in Legal Philosophy, Uncategorized. Comments Off on Ronald Dworkin, Legal Philosopher, Passes Away: Morality Symbiotically Tied to “The Law” versus Legal Positivism and Utilitarianism

The Legal History of the Ph.D “Doctor” and Other Academic Masters and Doctorates: Quo Vadis Theses Dissertations?

A recent article at the Economist, Doctoral degrees: The disposable academic, alerts us to the fact that:

“PhD students are cheap, highly motivated and disposable labour.”

That knowledge was confirmed already 10 years ago by Chris M. Golde and Timothy M. Dore in At Cross Purposes: What the experiences of today’s doctoral students reveal about doctoral education.

There is no doubt: the value of PhD programs and dissertations is questionable and greatly in need of reform.

What has happened to the academic doctorate in our day in age, and is “doctoral research” largely a waste of time?

After all, the more progressive professional doctorates dispensed with the need for research dissertations years ago. Is there any supportable value in terms of academic efficiency to superfluous doctorates copiously and subserviently footnoted to alleged authorities or are they merely drone theses that ultimately simply wind up in the archives, read only by exam referees? As James Frank Dobie (1888–1964) wrote:

“The average Ph.D. thesis is nothing but a transference of bones from one graveyard to another.”

One of the problems is that the historical development of “academic” university degrees is understood by few, and surely not by many Ph.Ds, some of whom ignorantly even tout the superiority of research doctorates to law degrees, showing that human stupidity may be infinite, ala Einstein, who quipped:

“Two things are infinite: the universe and human stupidity; and I’m not sure about the the universe.”

We might as an academic “refreshment” consider that the word “doctor” is rooted historically in the Latin docere, meaning “to teach”.

Indeed, doctorates as university degrees all started with the law:

“In Europe the first academic degrees were law degrees, and the law degrees were doctorates. The foundations of the first universities were the glossators of the 11th century, which were schools of law [in a specific sense]. The first university, that of Bologna, was founded as a school of law by four famous legal scholars in the 12th century who were students of the glossator school in that city [The Four Doctors of Bologna: Bulgarus, Martinus Gosia, Jacobus de Boragine and Hugo de Porta Ravennate — see also Glossators, with a connection to ecclesiatical usages, such as Canon Law, the law of the Church].

Furthermore, as things progressed:

“The naming of degrees eventually became linked with the subjects studied. Scholars in the faculties of arts or grammar became known as “master”, but those in theology, medicine, and law were known as “doctor”. As study in the arts or in grammar was a necessary prerequisite to study in subjects such as theology, medicine and law, the degree of doctor assumed a higher status than the master degree. This led to the modern hierarchy in which the Doctor of Philosophy (Ph.D.), which in its present form as a degree based on research and dissertation is a development from 18th and 19th Century German universities, is a more advanced degree than the Master of Arts (M.A.). The practice of using the term doctor for Ph.Ds developed within German universities and spread across the academic world.”

Law led, the rest followed. Nothing has changed.

The Socratic Method and Thinking Like a Lawyer: A Model for Other Academic Disciplines

At the New York Times discussion of “The Case Against Law School”, former dean and former provost, Professor Geoffrey R. Stone of the University of Chicago in Learning to Think Like a Lawyer lists five “experiences [that] legal education can offer that are invaluable for future lawyers“.

In our opinion, the first of these is by far the most important. As Stone writes:

“First, and most important, it can teach students to “think like a lawyer.” As any lawyer will tell you, this is critical. The practice of law demands a rigorous, self-critical (and critical), creative and empathic (how will my opponent and the judge see this issue?) mind-set. In general, legal education does this brilliantly. This is at the very core of a legal education.”

There is a very good reason that people trained in the law have historically dominated and still do dominate leadership positions in society. “Thinking like a lawyer” is one of the principal causes.

Indeed, one problem with modern multinational corporations is that lawyers are being named CEOs less and less, and are being replaced by business “tradesmen”, who know their trade but do not know how to ask the right questions. The current world economy shows it — as it is suffering badly.

People who study the law are not like those who study the humanities or other professions, where the essence of learning is the learning of a trade. You can teach a seal to balance a ball, but not how to successfully resolve human conflict.

The only real way to measure the effectiveness of legal education is by the SUBSEQUENT societal effectiveness of those who were subjected to that education. Law-trained effectiveness puts many other professions in the shadows in terms of measurable performance. There is a reason why so many lawyers earn millions of dollars a year and many other professions earn far less. It is not chance.

Indeed, outside of the law schools and outside of business courses using “the case method”, your average university graduate earns his degree in other academic disciplines sort of like a an apprentice in a handicraft. He or she is taught “what the truth is” in that profession. Critical thinking is rare on the average classroom agenda. University exams test knowledge of facts, not the ability to think on one’s feet.

Outside of law school education, students learn to regurgitate the accepted state of knowledge in a given field. The better they do it, the higher they rise on the career ladder. They learn to quote the leading authorities of their day according to whatever school of thought happens to prevail at the time in their field, and, after graduation, they don their professional caps and pass on the system they have learned to the next generation. Errors in knowledge are thus subject to the domino effect. I face this ignorance continuously in my studies on the history of civilization, where the historical disciplines involved (Archaeology, Linguistics, Egyptology, Biblical Studies, Assyriology) are dreadfully marked by stong deficits in the capacity for critical thinking. People there tend to be interested in TELLING YOU what the history was, rather than trying to find out what really happened.

In my view, all this discussion about the sense of law school education is therefore superfluous. The real problems are elsewhere.

Law school education and especially the Socratic method of dialogue — whatever their defects — are for the most part breathtakingly effective in producing agile minds prepared for the stressful intellectual demands of the modern world. Perhaps law school education can be improved – everything can – but it is far ahead of the game when compared to other academic disciplines.

Where legal education in my opinion should INSTEAD start to become active is by offering special Socratic dialogue-type courses at law schools for ALL the OTHER professions, thus giving college graduates other than lawyers a chance to come out of their universities with some capacity for independent critical thought rather than being robots that repeat like parrots whatever their professors, parents, role models, celebrity idols, or other supposed “authorities” have taught them.

Twenty bishops swearing on a Bible do not make a fact true, if it is false. Children of Republicans become Republicans, usually. Children of Democrats become Democrats, usually. This has nothing to do with the viability of their political dogmas. Rather, political views are largely “inherited”. “Critical thinking” about politics has nothing to do with it.

The same is true for religious beliefs, where it is a rare man or woman who has a religious belief system that diverges significantly from what mama and papa taught them. Children for the most part are not taught critical thinking by their parents — quite the contrary — they are taught obedience. Families are seldom democracies. Christians become Christians. Jews become Jews. Muslims become Muslims. I have, by the way, great respect for some modern Buddhists I know in the West because they at least CHOSE their religion during their lifetime, and focus thereby on doing GOOD WORKS, rather than on proselytizing and burdening their fellows with THEIR BELIEF system. A belief is the absence of proof. If we had evidence for religious dogmas, belief would be unnecessary. And yet, all sorts of economic “beliefs” guide most of the discussions one hears or reads about political and economic problems. People are merely just repeating what they have heard and what they agree with. That does not make it “true”.

For example, many people have “opinions” about taxes and the economy, especially methods of government financing — even though most people almost always know far less about those subjects than they do about their favorite college or professional athletic teams or players. This does not however keep from them mixing into the discussion and even basing their political voting decisions on insufficient knowledge.

Unfortunately, there are also a good many people in Congress who know not much more than what has been ladled into them by people not knowing much more than the Congressmen/women do about the subjects in question. One could have a great time asking Congressional representatives to explain modern institutions to us, e.g. the Federal Reserve System or the International Monetary Fund. Just ask your Senator: explain that to me please. The classic example here is the late Arizona Senator Ted Stevens who hilariously but seriously — and totally erroneously — described the Internet as “a series of tubes“. It was too funny for words, except that Stevens, the longest-serving Republican Senator in history, held Congressional seniority positions putting him in charge of Internet regulation. When a country like the USA is in the economic difficulty in which it currently finds itself, it is not without reason. You can not have the blind leading the blind.

Indeed, many people spend some of their leisure time — we erroneously call this “entertainment” — listening to and applauding people who have no other real talent other than that they think and/or utter opinions like their audience. NOT TOO CRITICAL, that kind of thinking, or living. A man of intellectual power, by contrast, constantly himself challenges what he knows, “knowing” full well that such a critical path is the only path of true human progress. “Yes men” are a dime a dozen, but that is the way most of the world operates. Nodding is approved.

Try this experiment the next time YOU listen to someone in Congress. Take what they say sentence by sentence and ask: how does he or she know that what they are saying is true? where did they get it? what is the evidence? where is the proof? how has it been checked? who did the checking? what empirical data supports it? who says????? do that with ALL the political parties, not just YOUR favorite. Blind tests with sports fans show that fans as referees call close plays in favor of “their favorite team” 2 to 1 on both sides of the same play. Where e.g. a Husker Big Red fan will see an Oklahoma Sooner personal foul, the Sooner fan will see a Husker foul — on the same play! It is the same in Congressional partisanship, also in lawmaking, you better believe it. That is why we have a U.S. Supreme Court — to keep everybody honest.

Someone who has properly assimilated a legal education asks the tough and self-critical questions — but that may not even be a majority of law school graduates, judging by what we see among JDs in politics. Much of the rest of world BELIEVES what it wants to believe, regardless. Unfortunately, that is no solution for concrete problems.

That is why critical thinkers ultimately always run the show. They are the only ones RATIONALLY examining contemporary issues as problems to be solved, not as battles of political dogma. To obtain that skill status, a legal education via the Socratic Method is a great help.

Selecting Justices : Elena Kagan and her Law School Grades : What Could Be More Irrelevant?

At the New York Times in Kagan Struggled in First Term at Harvard Law Charlie Savage and Lisa Faye Petak discuss Kagan’s law school grades. How irrelevant is that?

I recall well Professor Jack Harlan Friedenthal telling us the anecdote in my law school days that “ ‘A’ students become professors, ‘B’ students go into government, and ‘C’ students make all the money.” There are variants of this anecdote that can be found everywhere in academia, but the core idea is that grades are only one indicator of understanding, comprehension and ability. There is a good argument to be made that someone who gets only A’s is overly conforming and easily subjected by compulsion. “Success” in the real world has many more components than just “graded” intelligence.

I myself got my worst grade in college in a course in which I got among the highest grades on the mid-term and final exams, based on a comparison of exam grades with my fellow students, but the professor, who I hated for his boring and outdated lectures, gave me the lower grade for lack of class participation because I refused to attend his lectures as the semester wore on — after all, I was the one paying my tuition — and I told him so. That is not a lack of “EQ”, but I am simply someone who will not knowingly waste time, especially if I paid for something – else. The “grade” I received had nothing to do with my understanding of the subject matter.

That same principle applies to many college and law school learning situations. Grades are not always an accurate indicator of what a student is understanding as concerns the subject matter of any given course of study. Often, a grade reflects expectations — and views on a given topic — of the grading authority. I know someone here in Germany who submitted his Ph.D. thesis in Economics and got an ‘A’ from one referee and an ‘F’ from another referee so that a third referee had to be called in to settle the matter. From that, one knows that the topic of that Ph.D. thesis was controversial, but the grades hardly reflected subject matter “competence”.

Many Nobel Prize Laureates, e.g. hated the compulsion of school and learned only what they wanted to learn, not all of what they were told to learn. Some did outstandingly well only in fields that interested them.

Albert Einstein wrote:

“In [physics], however, I soon learned to scent out that which was able to lead to fundamentals and to turn aside from everything else, from the multitude of things which clutter up the mind and divert it from the essential. The hitch in this was, of course, the fact that one had to cram all this stuff into one’s mind for the examinations, whether one liked it or not. This coercion had such a deterring effect [upon me] that, after I had passed the final examination, I found the consideration of any scientific problems distasteful to me for an entire year. In justice I must add, moreover, that in Switzerland we had to suffer far less under such coercion, which smothers every truly scientific impulse, than is the case in many another locality….

It is, in fact, nothing short of a miracle that the modern methods of instruction have not yet entirely strangled the holy curiosity of inquiry; for this delicate little plant, aside from stimulation, stands mainly in need of freedom; without this it goes to wreck and ruin without fail. It is a very grave mistake to think that the enjoyment of seeing and searching can be promoted by means of coercion and a sense of duty. To the contrary, I believe it would be possible to rob even a healthy beast of prey of its voraciousness, if it were possible, with the aid of a whip, to force the beast to devour continuously, even when not hungry, especially if the food, handed out under such coercion, were to be selected accordingly.”

– “Autobiographical Notes,” Albert Einstein: Philosopher-Scientist, Paul Schilpp, ed. (1951), pp. 17-19 © 1951 by the Library of Living Philosophers, Inc

That Kagan got a ‘B-‘ in Torts can be understood. Torts is a mess as a matter of law and many of its rules and precedents are contrary to logic and reason. The only way to get an ‘A’ in Torts is to learn and apply by rote learning a mass of confused law-making and contradictory court posturing to hypothetical cases governed by laws and opinions that one regards to be in error anyway. I refer here to one of my postings on punitive damages for a discussion of one aspect of torts that is — in my opinion — in need of a great deal of reform:

US Supreme Court Vacates Absurd Punitive Damages Award in Oregon Tobacco Case : What American Law Should Learn from European Law

Stanley Fish at the New York Times reviews The Living Constitution, a new book by David A. Strauss : What Does the Constitution Mean?

In Why Bother With the Constitution, Stanley Fish reviews The Living Constitution, a new book by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School. The book by Strauss presents what is at first glance a somewhat startling hypothesis, as Fish relates Strauss’s core conception:

“[T]he Constitution does not play a central role in constitutional interpretation.

In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.”

Fish agrees to some extent with this hypothesis, writing:

“At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.”

However, on the whole, Fish disagrees and adopts an originalist viewpoint in his critique:

“The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?”

Well, yes, and no.

We do not think either question — as framed above — is fully wrong or fully right. Perhaps the truth is somewhere in between?

We ourselves suggest a view of the U.S. Constitution which more closely approaches the interpretation of a work of art.

For example, the painted canvas of an oil painting can be seen as being comparable to the text of the Constitution. It forms the basis for appreciation. It constitutes the original form which is subject to interpretation — yes — but that physical “form” is not the original “meaning”.

As Pablo Picasso said about his famed painting Guernica, which depicts the tragedy of war, but which nevertheless has been subject to widely diverging interpretations:

“…this bull is a bull and this horse is a horse… If you give a meaning to certain things in my paintings it may be very true, but it is not my idea to give this meaning. What ideas and conclusions you have got I obtained too, but instinctively, unconsciously. I make the painting for the painting. I paint the objects for what they are.”

In a similar manner, when the Constitution of the United States contains the text “freedom of speech”, then this text describes “that object for what it is” in the same manner that Picasso painted a bull or a horse, for what they are. The number of interpretations to such a painted object, on the other hand, can be as varied in meaning as the number of people viewing it. Still, the bull remains a bull and the horse a horse.

And so it is also with “freedom of speech” and similar texts in the Constitution.

Just as the actual “meaning” of a painting does not inhere either in the mind of the painter or in the mind of the viewer, the actual “meaning” of any text of the Constitution did not inhere in the entire subset of the minds of the Founders any more than that “meaning” inheres in the minds of anyone who today views the original text. The text depicts “objects for what they are”, but their “meaning” resides outside of their physical presence.

Hence, by consequence, when we select Justices to the Supreme Court, we seek to obtain individuals who do not merely see “a bull or a horse” in a painting,  i.e. by analogy a particular textual clause of the Constitution, but rather we look to find gifted persons who are capable of giving the depicted objects a fundamental understanding within the context of the entire “scene” of a painting viz. the “full text” of the entire document, always — and unavoidably — interpreting those objects from the perspective of the present, with due deference to the past, and with an eye to the future.

Crossposted from and to LawPundit.

The Life of the Law Takes a New Path : Power and the Nature and Development of Human Laws and Institutions

Dear Readers,

As of this posting, our blawg, the newly formed The Life of the Law at, will take a different path than its predecessor, LawPundit, which we are continuing as a regularly updated blog on law focused primarily on current legal developments and issues.

The Life of the Law, on the other hand, will focus on the broader historical and philosophical aspects of law in an interdisciplinary context. As a blog The Life of the Law takes its name from a famous paragraph at the outset of a book on the common law by Oliver Wendell Holmes, Jr. which reads as follows:

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” – THE COMMON LAW, Oliver Wendell Holmes, Jr., p. 1 (1881) [emphasis added]

The name of this blog at its origin had nothing to do with a book by Laura Nader titled The life of the law: anthropological projects which we found later online, and which is given the following overview at Google Books:

“Laura Nader, an instrumental figure in the development of the field of legal anthropology, investigates an issue of vital importance for our time: the role of the law in the struggle for social and economic justice. In this book she gives an overview of the history of legal anthropology and at the same time urges anthropologists, lawyers, and activists to recognize the centrality of law in social change. Nader traces the evolution of the plaintiff’s role in the United States in the second half of the twentieth century and passionately argues that the atrophy of the plaintiff’s power during this period represents a profound challenge to justice and democracy.”

We have sympathy for Nader’s interdisciplinary approach, but we have problems with her view of what she calls the anthropology of law.

We look to the historical nature and development of human laws and institutions, which — by their very nature — have always favored those in power and always will. The laws of nature favor the strong over the weak and the laws of man do no less, if only because laws themselves are made by those in power, regardless of their political or otherwise affiliation and regardless of the proclaimed objectives. Those in power always exert their power to actively promulgate THEIR views and THEIR desires, whatever they may be. Such actions can of course benefit third parties and  be of a benevolent nature – but their motivation is always self-interest on the part of the holder of power.

We see this particularly in the realm of religion, where preservation and furtherance of the ruling dogma always has a higher priority than the achievement of any concrete human benefit.

A case in point is the accountability of the Roman Catholic clergy to temporal laws of the State for serious crimes. Scandals involving criminal activities by the clergy fill current news, and this reflects an ancient — even today not fully resolved — battle between the powers of the Church and the State.

More than 800 years ago, there was a monumental battle between King Henry II of England and Thomas Beckett, Archbishop of Canterbury, on just this point, as Henry II insisted that clergymen guilty of serious crimes be tried by State courts and receive just punishments, whereas Beckett insisted that ecclesiastical servants remain under ecclesiastical jurisdiction, where penalties were often minimal – as they still are today, if the Church is allowed “to try their own”. These battles take place over “power” and are not battles over “justice”, even if the churches claim that their organizations serve “benevolent” human interests. So too does government serve the interests of the public, from its point of view. There is in fact no such thing as “benevolent power”. Rather, as in the American system of political and governmental checks and balances among the legislative, judicial and executive branches, the only reality is that “power  corrupts” and “absolute power corrupts absolutely”, so that effective checks and balances are ESSENTIAL to any modern nation-state or its political equivalent.

The worst case here is represented by the religions that merge Religion with the State. This merging of Church and State always marks the end of the rule of law in its civilized sense and invariably presages barbaric inhuman rule by religious bodies — unchecked by modern concepts of legal rights, where the primary legal justification is that the “religious end” — whatever its objective — allegedly excuses — indeed, justifies — any means employed to reach that objective, regardless of the terrible inhuman harms inflicted.

That kind of alleged religion is actually the “absence” of religion in the sense of a belief which is beneficial to humanity. That objective is perverted by the idol of the dogma: It is simple idolatry of an invisible, purportedly existing idol, an idol whose existence can not be proven.

This idolatry – when collectivized – manifests human power in society in its worst form, leading to the total dehumanization of social and family systems, and leading to a society where members of such a society are viewed as no more than fungible tools of the ruling elite and the ruling dogma.

Religion is not the only such worship of  idols. This idolatry is also visible in such atheistic systems as North Korea, where not the Religion merges into the State, but where the State merges into and supplants Religion, making the State theory the system of belief.

A similar development can be seen in the rule of Cuba, where “time” – in the sense of social progress – virtually stopped with the Cuban Revolution and became the servant of the Communist dogma of the ruling oligarchy, who adopted Marxism-Leninism more as a protest against capitalist imperialism than as an embracement of Marxist-Leninist ideals.

Communistic Marxism-Leninism has ultimately collapsed nearly everywhere — and its days are also counted in countries like North Korea or Cuba. This false idol failed and is now rightly gone in Russia and Eastern Europe. Indeed, the fate of this idol is sealed because the preservation and furtherance of the prevailing dogma — i.e. the anthropological idol – becomes the leading motivation of political existence, and as such, disregards economic realities and runs contrary to human benefit, technological progress and social improvement.

Even in capitalism, we see the same phenomenon in action in opposing the introduction of national health reform in the United States, which has been opposed by its opponents primarily on dogmatic, pseudo-libertarian and capitalistic grounds, rather than on the question of what is best for the health of all American citizens in the long run.

As regards existing power systems in politics in general, it is foolish to expect such power structures to admit wrongs and to see the error of their ways. Rather, a principle also applicable to science raises its head, as written by Max Planck, Wissenschaftliche Selbstbiographie, 5. Auflage bei Johann Ambrosius Barth, Leipzig 1970, (1.Auflage 1948), l.c.p.16,1:

“Eine neue wissenschaftliche Wahrheit pflegt sich nicht in der Weise durchzusetzen, daß ihre Gegner überzeugt werden und sich als belehrt erklären, sondern vielmehr dadurch, daß die Gegner allmählich aussterben und daß die heranwachsende Generation von vornherein mit der Wahrheit vertraut gemacht ist. ” (A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.) – The English translation is from The Structure of Scientific Revolutions, Thomas Kuhn (1962), p. 151)

Law too is affected in much the same manner as above in resisting sensible change at every crossroads. In law — which is by nature conservative — this is done by applying the principle of stare decisis and in following previous precedents. What has been done before is usually determinative for what is done now and what is to be done in the future. This makes any kind of substantial legal reform very difficult because existing laws or precedential court decisions do not simply die out. Rather, for real legal progress to occur, laws must be actively changed and precedents must be overturned, which occurs very seldom, and then often at great cost.

At any time in this process, the established opponents are always present in great numbers and resist change at every opportunity. That is why the process of change and resistance to change mark every step of human development on this planet.

Please change your records for LawPundit. The LawPundit blog is now running at at the following address and has the following RSS feed

Please change your records for LawPundit.
The LawPundit blog is now running at at the following address
and has the following RSS feed

Since we do not trust Google’s “Blogger team”, who already deleted our mirror of LawPundit, we are keeping our pre–transfer archive of LawPundit at “The Life of the Law” at WordPress, but that blog will develop a life of its own in coming postings. That archive covers only postings made prior to the forced migration of the LawPundit blog due to Google Blogger’s abandonment of FTP blog publishing. We can at this time make no guarantee that LawPundit will continue at

Please note: Upon transfer of LawPundit to the now deleted (deleted by Blogger), the Google Blogger team erroneously put up 30-second time-delayed redirects on each archive page at, so that after viewing a archive posting, there is an automatic redirect to a now non-existent We can no nothing about this immediately since we have no quick FTP way of changing the HTML code of each of more than 1500 individual postings.

Law Translators and Professional Language Translation : A Call to Resist Discount Rates

Legal or other language translation is by nature a competitively rough business where competent translators are very poorly paid to begin with, so that the following posting is of value to professional translators in the field:

Are you a professional translator? If so, do NOT lower your translation rates! « Marcela Jenney’s Blog

“Clients are asking for discounts, and translators are honoring their requests more and more every day. When you provide a discount on your services, you are giving permission to others to think your services are not worth much. And, unfortunately, this trend is adversely affecting the entire translation and localization industry.”

Read the full story here.

Today is the Birthday of Former U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., Born on March 8, 1841 in Boston

Via the Britannica Facebook feed for today March, 8, 2010, we are informed that the great judge Oliver Wendell Holmes, Jr., also known as “The Great Dissenter” was:

“born March 8, 1841, Boston died March 6, 1935, Washington, D.C.

Oliver Wendell Holmes, Jr. [Credit: Encyclopædia Britannica, Inc.] Justice of the United States Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He stated the concept of “clear and present danger” as the only basis for limiting free speech.”

Read the rest at the Britannica Online


The Wikipedia has some paragraphs which contain some of the better known of Holmes’ famous quotes:

“According to Holmes, ‘men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite….’

As a justice of US Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the judicial process.

According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics.

He writes: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics….”

Holmes, also insisted on the separation of ‘ought’ and ‘is’ which are obstacles in understanding the realities of the law. As an ethical sceptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of ‘bad man’ who cares only from material consequences of the courts’ decisions, and not from the point of view of good man, who find his reasons for conduct “in the vaguer sanctions of his conscience”….

EDGE: "Europe, Where the Idea of Competition in the Internet Space Appears to Focus on Litigation, Legislation, Regulation, and Criminalization"

Does Europe especially need to reconsider their approach to the Internet? EDGE would say yes:

Edge: TIME TO START TAKING THE INTERNET SERIOUSLY By David Gelernter: “Introduction: Our Algorithmic Culture” by John Brockman:

“Edge was in Munich in January for DLD 2010 and an Edge/DLD event entitled ‘Informavore’ — a discussion featuring Frank Schirrmacher, Editor of the Feuilleton and Co-Publisher of Frankfurter Allgemeine Zeitung, Andrian Kreye, Feuilleton Editor of Sueddeutsche Zeitung, Munich; and Yale computer science visionary David Gelernter, who, in his 1991 book Mirror Worlds presented what’s now called ‘cloud computing.’

The intent of the panel was to discuss — for the benefit of a German audience — the import of the recent Frank Schirrmacher interview on Edge entitled ‘The Age of the Informavore.’ David Gelernter, who predicted the Web, and who first presented the idea of ‘the cloud’, was the scientist on the panel along with Schirrmacher and Kreye, Feuilleton editors of the two leading German national newspapers, both distinguished intellectuals….

Take a look at the photos from the recent Edge annual dinner and you will find the people who are re-writing global culture, and also changing your business, and, your head. What do Evan Williams (Twitter), Larry Page (Google), Tim Berners-Lee (World Wide Web Consortium), Sergey Brin (Google), Bill Joy (Sun), Salar Kamangar (Google), Keith Coleman (Google Gmail), Marissa Mayer (Google), Lori Park (Google), W. Daniel Hillis (Applied Minds), Nathan Myhrvold (Intellectual Ventures), Dave Morin (formerly Facebook), Michael Tchao (Apple iPad), Tony Fadell (Apple/iPod), Jeff Skoll (formerly eBay), Chad Hurley (YouTube), Bill Gates (Microsoft), Jeff Bezos (Amazon) have in common? All are software engineers or scientists.

So what’s the point? It’s a culture. Call it the algorithmic culture. To get it, you need to be part of it, you need to come out of it. Otherwise, you spend the rest of your life dancing to the tune of other people’s code. Just look at Europe where the idea of competition in the Internet space appears to focus on litigation, legislation, regulation, and criminalization. [emphasis added]

Read the whole thing here.

Hat tip to the Encyclopaedia Britannica at Facebook.

Mobile Patent Lawsuits Increasing Dramatically

Nick Bilton at the New York Times Bits Blog discusses the Explosion of Mobile Patent Lawsuits in the last year, writing inter alia:

“On Tuesday when I spoke with Eric Von Hippel, a professor of technological innovation at M.I.T.’s Sloan School of Management. He pointed out that patent lawsuits had turned particularly unpleasant lately as a result of companies that only buy and sell patents.”

Read the whole thing here.

Hat tip to TechDirt.

This was all foreseeable years ago and we wrote about it. Now, you have a gigantic – then avoidable – problem at your doorstep which is no longer avoidable.

Paranoid on Privacy: Legitimate Law Enforcement Data Retention in the European Union Dealt an Extreme Blow by Germany’s Constitutional Court


The European Union EU Data Retention Directive, Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC requires telecommunications data storage by EU Member States for law enforcement and anti-terrorism purposes. Each EU Member State is required by the Directive to enact legislation in accordance with the Directive. Article 4 on Access to Data provides in addition that privacy safeguards are to be adopted:

“Member States shall adopt measures to ensure that data retained in accordance with this Directive are provided only to the competent national authorities in specific cases and in accordance with national law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained data in accordance with necessity and proportionality requirements shall be defined by each Member State in its national law, subject to the relevant provisions of European Union law or public international law, and in particular the ECHR as interpreted by the European Court of Human Rights.”

Germany implemented that Directive in the “Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG“, effective January 1, 2008.

On March 2, 2010, the Federal Constitutional Court of Germany ruled that German law unconstitutional, essentially on the grounds of “vagueness” and ordered the destruction of all data thus far retained – an extreme decision without seeming practical necessity.

A nice summary of the court decision is found at the Privacy and Information Security Law Blog by Hunton and Williams LLP.

The Spiegel Online International in Defending Privacy: German High Court Limits Phone and E-Mail Data Storage writes (March 3, 2010):

Germany’s highest court has rejected a controversial law requiring data on telephone calls and e-mail traffic to be stored for six months for possible use by law enforcement. Data stored so far must be deleted immediately, and strict controls must be put in place before the law can come into force again.”

Lance Whitney at CNET’s Politics and Law in German court rules against data retention policy writes:

“The German court found that the law, as implemented, went beyond the intent of the original directive and has ordered all customer data to be removed immediately. The new ruling suspends the directive but doesn’t knock it down permanently. The German court indicated that tighter controls would be needed to ensure the security of the data as well as a clear intention and control over what the data would be used for.”

The German Federal Constitutional Court decision follows a similar line of provincial thinking found in the article German Minister Warns Against the Power of Internet Giants, as written by Spiegel Online International:

“German Consumer Protection Minister Ilse Aigner has launched an attack on the Internet economy, warning that the likes of Google, Microsoft and Apple store vast amounts of personal information on Web users that can be used for financial gain, and can hurt people’s chances of getting jobs or bank loans.”

In a comparably paranoid vein, there is also pressure in Germany and in the EU on Google’s Street View. As reported in CNET’s Does Google Street View see a future in Europe:

“Faced with European Union demands that Google reduce the time it stores its Street View images from 12 months to 6 months, Google Chief Technology Advocate Michael Jones said this week that the company may choose not to map any new photos in Europe unless an agreement on data retention can be reached. Jones, who is also Google’s former chief technologist of Google Maps, Google Earth, and Local Search, made his comments in an interview with Bloomberg News at the Cebit Technology Fair in Germany.”

People’s aversion to Google’s Street View must be one of the most puzzling developments ever, as we find Street View to be one of the greatest features in geographic mapping ever devised, adding a new cartographic dimension to our planet of incalculable value.

The conception that data storage of valid cartographic material GENERALLY violates rights of privacy is simply absurd in all but the most exceptional cases (we leave room open for such a possibility since exceptions always – validly – surface.)

Someone will ALWAYS have this data stored somewhere, but if the data controllers limit it, YOU and I won’t have it, be sure of that, and only someone ELSE will have it. I am not sure how putting cartographic data into the power of unknown data controllers increases my privacy, whereas I do know for sure that limits on Street View greatly limit my world.

Maybe I want to be able to see and show to others – online – the street where I grew up without having to fly there half-way around the world. Or maybe I want to be able to examine thoroughly a future vacation locale or a possible real estate purchase, like a home, without finding that a hotel is next to an oil refinery, or that the home is directly on a highway. Or maybe I want to check out local amenities and circumstances, like schools, shopping, dining, sports, recreation, etc., for a future change of residence or for a visit. There are many, many legitimate uses to Google Street View. I am at a loss to understand how the privacy of anyone is wrongfully infringed by showing the world as that world actually is – in its entirety – presuming of course that what is shown can be seen from public property and shows nothing that a normal passer-by could not see. That is why people who want greater privacy than is normal build hedges around their houses. Well, let them. But do not deny Street View to those of us who want to have it and who find it a welcome addition to the “real world”.

German Nationals Forming a UK Company

German Nationals Forming a UK Company

Forming a private limited company in the UK is a simple process and has a low set up cost. If you are intending to trade in the UK, it appears to your customers and suppliers as though they are dealing with a UK based entity.

As the shareholder and/or director of the company you can remain ordinarily resident in Germany. There are no residency requirements for the first subscribers, subsequent shareholders or directors of an English private limited company and directors and secretaries of private limited companies are not required to have any particular qualifications.

A private limited company can be formed with one director (who must be at least 16 years old) and one shareholder and there is no minimum or maximum share capital requirement (public companies do have capital requirements).

UK companies are required to have a registered office in the UK to act as a contact point for the people that the company deals with and to which official notifications can be sent. However, it is relatively cheap and painless to engage a registered office service provider to give you a UK address and to forward post to you. You can even use this address as the service address for directors and the residential address of the directors can remain private.

There are certain minimum maintenance requirements for a UK private company. It must file an annual return to Companies House setting out the current directors, secretary (if it has one) and its current capital and shareholder position, although this is a fairly simple task. The company will have to keep accounts based on requirements prescribed by UK legislation and to file these with Companies House (although the extent of the filing is relaxed for small companies). The company has to keep certain registers such as directors, secretary, shareholders and charges. These registers must be available for inspection at its registered office.

Finally it is possible for the company to be incorporated and registered in the UK but to be resident for tax purposes in Germany under the relevant double tax treaty. You should seek specific advice on this from a tax adviser if this is your aim.

You may need an apostille certificate if you need to present the company’s UK documents in Germany or other country that recognises the Hague Convention. This will usually avoid a German authority questioning the authenticity of the UK documents. Again this can be arranged at fairly minimal cost if you find it necessary.

In summary, forming a company in the UK is a painless, low cost process. There are also no residence requirements for the officers or shareholders of the company, and there is no minimum share capital requirement.

Jamie Hunt, Legal Clarity Ltd

The information provided in this article is intended as a general guide only. It is not exhaustive or tailored to your individual circumstances.

So Where’s Your Originalism Now, Justice Scalia? – Law Blog – WSJ

Car and Driver and Professor Bainbridge write that The Problem is the Driver, not the Pedal

Professor Bainbridge writes that The Problem is the Driver, not the Pedal and quotes Car and Driver:

“Every man, woman, and child in the U.S. has approximately a one-in-8000 chance of perishing in a car accident every year. Over a decade, that’s about one in 800. “

If the driver is the problem and that will mostly be the case, perhaps it is time that everyone, including car manufacturers pay increasing attention to safety rather than to speed and acceleration in their design of the world’s motor vehicles.