In the Courtroom: Expert Witnesses on Feces + Dictionary on "Shit"

I've blogged previously about expert witnesses testimony - especially the views of some Irish judges about economists as experts - and came across this really funny post about a recent Iowa Court of Appeals decision about the need for expert testimony to establish whether something is feces. The case concerned an attack on a correctional officer by a prison inmate with a brown substance followed by him yelling, "I got you with shit." The inmate challenged his conviction claiming that the state had not adduced expert evidence to substantiate the charge of assault with feces.

The court did "not believe the identification of feces falls solely within the domain of expert testimony." According to the judge, "[i]f it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces."
The judgment is also noteworthy for its use of the dictionary for a definition of the word "shit." The judge elucidates on the "versaitility of the word 'shit'" with some humour (see footnote on page 7, internal citations omitted):
"Shit" is defined as excrement. Webster‟s Third New Int‟l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise. For examples, see State v. Vance,  ("He is going to find the shit . . . ."); Estate of Harris v. Papa John’s Pizza,  ("[S]hould be on his „shit list‟ . . . ."); Civil Service Commission of Coralville v. Johnson,   ("You ain‟t going to be shit."); Wilson v. IBP, Inc.,  ("[T]his guy‟s full of shit."); Marks v. Estate of Hartgerink,  ("It takes a lot of guts and shit . . . ."); State v. Anderson,  ("[W]hat‟s this not guilty shit."); Knox v. Municipal Court of City of Des Moines,  ("You are still a Fascist and your swastika (indicating) Heil Harrison, Heil Harrison and all that shit."); Graves v. O’Hara,  ("We have f**king shit to haul . . . ."); State v. Shortridge, ("Holy shit, let‟s get out of here . . . ."); Peck v. Employment Appeal Board,  ("[A]sking what „shit jobs‟ were available."); State v. Findling,  ("I mean this is really big shit here."); Wiysel v. William Penn College, ("[H]is words were so much „sanctimonious shit.‟"); and Blong v. Snyder,  ("[They] told him the pieces he had run were all „shit.‟"). The remarkable versatility of the word "shit" is also demonstrated in George Carlin‟s "Filthy Words," a verbatim transcript of which is set forth in full in the appendix to the United States Supreme Court‟s opinion F.C.C. v. Pacifica Foundation.

My previous posts on dictionaries in the court are here and here. Paul MacMahon's views on dictionaries here.

More on Dictionaries in the Supreme Court

Following on from Paul McMahon's post on the use of dictionaries, I thought I'd add a few more citations of interest. Paul observes that Irish judges are more "sensible" in their use of dictionaries than U.S. Supreme Court judges. While he may have a point, part of the explanation might be the difference in citation culture between the two systems. As a general matter, American lawyers/academics/judges tend to cite more thoroughly than others, and while other judges may be consulting dictionaries just as extensively as their American counterparts, perhaps they are not citing them as much? Perhaps Irish legislation is worded more clearly? It would be interesting to get an Irish judge's views on the issue.
Anyway, here are few more interesting references:

•  ""Felon-setter"and "Helped jail republicans in England" were not words in respect of which one has to have recourse to a dictionary to know what they meant to an Irishman; they were equivalent to calling him a traitor."  (Berry v. Irish Times (S.C. 1973))
• "To "download" a computer meant to "transfer (data) from one storage device or system to another" in accordance with the definition contained in The Concise Oxford Dictionary of Current English." (Regina v. City of London Magistrates' Court and Another, Ex parte Green (Q.B. 1997).
• "I do not think that any useful guidance can be derived from dictionary definitions as to what is meant by the expression "primary education". Its meaning, in the vast majority of cases, is clear. It denotes the stage of a child's education lasting from ages six to twelve and does not extend to the kind of training and human development that takes place from birth to age four. (Sinnott v. Minister for Education (S.C. 2001).

Dictionaries in the Irish Supreme Court

Apropos a recent article in the New York Times about the increasing citation to dictionaries by the U.S. Supreme Court, I did a quick search on Justis for the use of dictionaries in judgments issued by the Supreme Court of Ireland. There were 200 results (by way of comparison, the US Supreme Court "used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000") and the court used the dictionary to interpret the meaning of words ranging from "amicus curiae" to "cattle" to "advance" to "instalment" to "sum" to "produce." In addition to frequent citation to the Oxford English Dictionary, the Irish Supreme Court also referred to Murray's New English Dictionary, Stroud's Judicial Dictionary, and Tomlins-Jacobs Law Dictionary. I also observed that Justice Fennelly - who is one of the more frequent users of the dictionary - shows fine taste in favouring the OED!

Among the gems:

• "The word, “ouncil” or “ouncel” is obscure. It does not appear in any dictionary even in the longest version of the Oxford Dictionary. Perhaps it is unique to Kilkenny. From context, it clearly means a weighing machine." (Justice Fennelly in Simmonds v Kilkenny County Borough & ors (2011)
• "a slot machine is defined in the Oxford dictionary as a machine which is operated by the insertion of a coin in a slot" (Director of Public Prosecutions v. Cafolla (1994))
• ...[crunch] has a very clear and specific meaning, whether we take it in its modern spelling of"crunch," a spelling which has been known for over a hundred years, or its older spelling, "craunch" which has a history of some 250 years. Whatever be the origin of the word, whether it be as suggested by some persons an onomatopoeic amalgamation of the words "crush" and"munch," or whether, as suggested by one learned lexicographer, it is an echoistic modification of the word "crush,"nevertheless, as the word "crunch," it is established in modern English usage with a clear, specific meaning, and the strongest evidence of that fact is the spontaneous exclamation of the workman on testing the result of the boiling, which he described as a "great crunch." (Fry-Cadbury (Ir.) Ltd. v. Synnott (1935)).

H.M. Department of Tweet Control

The Guardian reports that "Twitter feeds are expected to brought under the regulation of the Press Complaints Commission later this year ... The PCC believes that some postings on Twitter are, in effect part of a "newspaper's editorial product", writings that its code of practice would otherwise cover if the same text appeared in print or on a newspaper website."

Existing legal avenues suffice to protect individuals in the kinds of situations trotted out for new regulation. This is just more proof that one cannot expect the nanny state to waste any opportunity to meddle in our daily lives.

Recovering excess payments from pensioners: What about the lawyers?

I had blogged previously (see exhibit no. 2 in that post) about an article in the Independent about two lawyers for the state refusing to return money paid to them in error. The state agency did not try too hard to get the money (eur. 1 million) back. Now comes news in the same paper about the state trying to recover money paid in error to pensioners.

While there cannot be any argument about the desirability of recouping over-payments, is there a double standard at work here? In the pensioners' case the individual sums are likely to be very small whereas in the lawyers' case it was significant, still the state is willing to chase after the pensioners after making very little effort to go after the lawyers. Moreover, the two lawyers had been paid over eur. 8.5 million each for their work on that matter. I hesitate to draw adverse conclusions but it does not look pretty.

Ash Crisis? Iceland"s revenge?

If there is a God above, s/he must be an Icelander! After receiving plenty of abuse from the Brits about refusals to repay their debts, Icelanders must be chuckling quietly now that the British economy has been hammered by the so called "ash crisis." And they can use language very familiar to British creditors - "act of God" - to escape all blame!

I am stranded in Rome - just another victim of the mess. If EU transport authorities get their act together I might return home at some point. I am not counting on the Irish authorities to do anything useful. At least there is plenty of gelato to ease the pain.

Article on UK Labour Party's Manifesto

Labour's election manifesto contains 66 references to the word 'future.' Just two mentions of "achievements" and 4 references to the government's 'record.' This from a party in power for three consecutive terms? Just two achievements and only four items on the record to be proud of? Clearly, this is a party seeking to run from its past by trying to sell a rosy future. Somewhat like a snake oil salesman. And, like snake oil, there is very little original or appealing in this manifesto.

Read more here.

Google's Pull-out from China

Google's cessation of censorship in China is an attempt to return to its "Do No Evil" days. Redirecting users to its Hong Kong service and announcing the termination of its Faustian bargain with the Chinese regime has very little to do with the search business. This is more an attempt to reclaim the company's moral high ground and make strong allies for fights looming in the distance.

Remember Google voluntarily agreed to censor content in China. When it launched google.cn in 2006, the company agreed to self-censor with three important caveats: one, that it would disclose to users whenever search results were altered; two, that no services involving personal data would be offered in China; and three, that the unfiltered google.com service would not be terminated.

Read more here.

US House Approves Healthcare Reform

In a major victory for President Obama and Speaker Nancy Pelosi, after weeks of what seemed like interminable opposition, the US House of Representatives finally passed healthcare reform yesterday. This is a defining moment in Obama's presidency, and indeed in US history. Here's what the NYT has to say:
With the 219-to-212 vote, the House gave final approval to legislation passed by the Senate on Christmas Eve. Thirty-four Democrats joined Republicans in voting against the bill. The vote sent the measure to President Obama, whose yearlong push for the legislation has been the centerpiece of his agenda and a test of his political power.
On a sun-splashed day outside the Capitol, protesters, urged on by House Republicans, chanted “Kill the bill” and waved yellow flags declaring “Don’t Tread on Me.” They carried signs saying “Doctors, Not Dictators.”

Inside, Democrats hailed the votes as a historic advance in social justice, comparable to the establishment of Medicare and Social Security. They said the bill would also put pressure on rising health care costs and rein in federal budget deficits.

Mr. Obama celebrated the House action in remarks at the White House.

“We pushed back on the undue influence of special interests,” Mr. Obama said. “We didn’t give in to mistrust or to cynicism or to fear. Instead, we proved that we are still a people capable of doing big things.”
“This isn’t radical reform,” he added, “but it is major reform.”

After a year of combat and weeks of legislative brinksmanship, House Democrats and the White House clinched their victory only hours before the voting started on Sunday. They agreed to a deal with opponents of abortion rights within their party to reiterate in an executive order that federal money provided by the bill could not be used for abortions, securing for Democrats the final handful of votes they needed to assure passage.
Winding up the debate, Speaker Nancy Pelosi said: “After a year of debate and hearing the calls of millions of Americans, we have come to this historic moment. Today we have the opportunity to complete the great unfinished business of our society and pass health insurance reform for all Americans that is a right and not a privilege.”
The health care bill would require most Americans to have health insurance, would add 16 million people to the Medicaid rolls and would subsidize private coverage for low- and middle-income people, at a cost to the government of $938 billion over 10 years, the Congressional Budget Office said.

The bill would require many employers to offer coverage to employees or pay a penalty. Each state would set up a marketplace, or exchange, where consumers without such coverage could shop for insurance meeting federal standards.

The budget office estimates that the bill would provide coverage to 32 million uninsured people, but still leave 23 million uninsured in 2019. One-third of those remaining uninsured would be illegal immigrants.

Lady Gaga Strikes Back Against Fusari

Lady Gaga is no slouch when it comes to defending herself. Following on from my previous post about a $30 million lawsuit against her on Wednesday, news  is that Lady Gaga returned fire in the Supreme Court of New York against Fusari seeking declaratory relief. She asks the court to declare that her agreement with him is "void and unenforceable" and order the defendants to repay the moneys already paid to them.

Her suit is based on the New Jersey Employment Agency Act, the New York General Business Law (section 170) and the New York Arts and Cultural Affairs Law. These statutes, she claims, protect "employees (including inexperienced performing artists) from predatory and financially abusive practices by employment agencies in securing employment opportunities for employees."

Gaga claims that Fusari induced her to enter into an unlawful agreement to pay him 20% of her earnings from her first 4 albums. She was also required to use and pay Fusari to be her producer. Fusari was to be paid royalties whether or not recordings produced by him were on her albums.

If the court were to hold that the agreement is valid, she asks it to rule that Fusari is not entitled to any further sums.

This should get interesting if it actually gets to trial. I suspect that the case will be settled, much to the loss of contract law professors! Stay tuned for more!

Bad Romance: Lady Gaga Sued for $30.5 million

Readers of this blog are no strangers to Lady Gaga. The weird one has just been sued in New York by a jilted lover who is apparently seeking to cash in on her fame. Via the NY Post:
Now that's a bad romance -- Lady Gaga's ex-boyfriend says she's cheated him out of millions of dollars since he dumped her, a sensational new lawsuit charges.

Songwriter and producer Rob Fusari says in a $30 million lawsuit that he helped develop "guidette" Stefani Germanotta into the superstar she is today -- and even came up with her world-famous stage name -- but she is now reneging on a business deal that made him 20 percent owner of her company.
Fusari's lawyer, Robert Meloni, who filed suit yesterday in Manhattan Supreme Court, said: "He discovered her. It was his songs and productions and connections that got her her first deal."
But the pair worked together seven days a week and co-wrote her later hits "Beautiful, Dirty, Rich" and "Paparazzi."

Fusari said he played the Queen song "Radio Ga Ga" whenever she arrived at his studio, and "one day when Fusari addressed a cellphone text to Germanotta under the moniker 'Radio Ga Ga' his cellphone's spell check converted 'Radio' to 'Lady.' Germanotta loved it and 'Lady Gaga' was born."
Their relationship reached a "romantic level," the suit says, and they formed a company with Lady Gaga's dad that Fusari owns 20 percent of, the filing says.

There is a cottage industry in such suits by ex-lovers and the chap doesn't seem to have much of a case, but at a minimum, the brouhaha will give plenty of fodder to the paparazzi.

Paddywhackery

You can read my piece in the WSJ about Paddywhackery and what EU states can learn from Ireland here.

Article on Operation Moshtarak

Below is an article published by The Huffington Post on Operation Moshtarak in Afghanistan. Please feel free to leave comments at this link.

Another Opportunity in Afghanistan

Contrary to popular opinion, Mullah Baradar's capture by the CIA acting in concert with the Pakistanis is not a game-changer. At best, it presents the Taliban with a minor inconvenience. Baradar was the deputy defence minister during Taliban rule in Afghanistan and was quoted as claiming just a few months ago that "in every nook and corner of the country a spirit for jihad is raging." He will be replaced by others unless Afghanistan is fixed.

The Marja offensive launched last week is a new opportunity to learn from past mistakes. Air strikes are the easy part -- we've been here before in other theatres of war, only to find that the bus has been driven into the ditch soon after.

It would be folly to celebrate reports about the Taliban fleeing Marja; they are past masters at this peculiarly Afghan game of cat and mouse. Operation Moshtarak will be a war of attrition.

Gallup Poll on Global Perceptions about US Leadership

Gallup had an interesting poll recently showing a marked increase in approval for US leadership under President Obama. The poll found that there was a 51% median approval for US leadership under the current administration. This contrasted with 34% median approval under President Bush.

Obama's Budget: More Money for Afghanistan/Airport Security

Via the White House:
The President has ordered his military commanders to send an additional 30,000 troops to Afghanistan, which will bring the total number of U.S. forces in Afghanistan to almost 100,000 by 2011.To address the costs of increasing military and intelligence operations in Afghanistan and Pakistan and drawing down in Iraq and leaving Iraq’s security forces with the minimum essential capabilities to operate after U.S. forces depart, the Administration is requesting $33.0 billion in 2010 supplemental funding on top of the $129.6 billion already provided, and a total of $159.3 billion for its 2011 overseas contingency operations (OCO) activities.

Some of the money will also go to fund more drones and enhance electronic/cyber warfare capabilities.
The failed Detroit terrorist incident has prompted enhancements in airport security:
The Budget provides $734 million to support the deployment of up to 1,000 new Advanced Imaging Technology (AIT) screening machines at airport checkpoints and new explosive detection equipment for baggage screening in 2011. AIT machines allow security officers to detect both metallic and non-metallic anomalies, such as weapons and explosives on persons entering an airport’s sterile area. Additional funding
is also included for the Federal Air Marshal Service (FAMS).

Financial constraints seem to have ended NASA's man on the moon program:
NASA’s Constellation program—based largely on existing technologies—was begun to realize a vision of returning astronauts back to the Moon by 2020. However, the program was over budget, behind schedule, and lacking in innovation due to a failure to invest in critical new technologies. ... The President’s Budget cancels Constellation...
Other highlights:
... freeze non-security discretionary funding for 3 years.
... eliminates the Bush tax cuts for those making more than $250,000 a year
... fee on the largest and most indebted financial firms to ensure that taxpayers are fully compensated for the extraordinary support they provided, while providing a deterrent to the risky practices that contributed to this crisis. This is expected to net $90 billion.
... $100 billion for new jobs.
Read the full budget here.

Lady Gaga's Lessons for Legal Academia?

You never thought you'd read about Lady Gaga on these pages, did you? The WSJ has a nice article on Lady Gaga's lessons for success containing themes that transcend the music business. Here are some snippets:
Underneath Gaga's haystack wigs is a case study of what it takes to succeed in the music business today. Gaga, 23 years old, has made shrewd use of new digital platforms, while still leveraging the clout of a major label, an institution deemed obsolete by many proponents of DIY culture. She is a product of a new kind of recording contract which goes beyond just selling records to encompass everything from touring, merchandise–even her make-up deal.

And here's a message for many traditionalists (particularly in Europe) on the importance of open access to material:
In fact, much of Gaga's audience got her music for free, and legally. They have listened to free streams—by the hundreds of millions—on YouTube and the other online services that Gaga currently leads, according to research firm BigChampagne. On MySpace, Gaga has had 321.5 million plays. By contrast, singer Susan Boyle tallied only 133,000 plays, despite scoring the No. 2 selling album of 2009.

This is particularly salient for law publishers. Legal journals in Europe continue with their outdated policies of preventing electronic access to articles without payment. They and their authors are the true losers because most of the really good stuff is available electronically for free on databases like SSRN, and scholars will ignore material that is not easily accessible when there are superior alternatives. Sensible authors are more interested in being read (and cited) and rarely submit to journals with closed access and contractual terms preventing them from uploading articles to free databases like SSRN. This battle was lost by US law journals many years ago, but I was shocked to find out recently that it continues in the UK. Given the low rankings that UK law journals hold, they do not have the ability to move the market, and must move with the times.

Back to Lady Gaga, on the changing music business:
The business needs more Gagas. The upheaval of the last decade has forced the major record companies to cut their work force by 60%, according to a recent report by the Recording Industry Association of America. Within the last week, dozens of Universal Music Group employees were laid off.

On the need to cater to a global audience:
RedOne, Gaga's primary producer, hails from Morocco and has an outsider's take on American music. "The songs have to be lyrically simple and easy to sing along to, even for people in the world who don't speak English," he says. Studio pros like Grammy-winning mixing engineer Manny Marroquin are being hired to replicate her chopping synths and densely-layered sound. "Everybody's saying, 'Make it like Gaga,' " he says.
Read the full article! 

Obama's State of the Union

President Obama delivered his first State of the Union address yesterday. The full text of the speech is available here. Here are some remarks I found interesting (emphasis mine):

... change has not come fast enough. Some are frustrated; some are angry. They don't understand why it seems like bad behavior on Wall Street is rewarded, but hard work on Main Street isn't; or why Washington has been unable or unwilling to solve any of our problems. They're tired of the partisanship and the shouting and the pettiness. They know we can't afford it. Not now.
...
Our most urgent task upon taking office was to shore up the same banks that helped cause this crisis. It was not easy to do. And if there's one thing that has unified Democrats and Republicans, and everybody in between, it's that we all hated the bank bailout. I hated it -- (applause.) I hated it. You hated it. It was about as popular as a root canal. (Laughter.)

My NY Times/IHT Op-Ed on French Burqa Ban

The NY Times & the International Herald Tribune published my op-ed on the French burqa ban today. Here's an excerpt:
Why the French obsession with the burqa? After all, as the French government itself has conceded, only about 1,900 women wear the full-body covering. So why are over half of the respondents in recent public opinion polls in favor of a ban on it?
The answer is simple. This is not about a fashion faux pas or women’s rights, but about sending a message to Muslims. Concerned with increasingly visible numbers of Muslims openly practicing their way of life while enjoying the privileges of life in the West, French citizens and politicians alike feel that they need to restore “Frenchness” to their streets.

You can read the full article by clicking on this link.

French Veil Ban

The French Parliamentary committee proposed a partial veil ban yesterday. The Commission’s report claims that "The wearing of the full veil is a challenge to our republic. This is unacceptable. We must condemn this excess."
The proposal is to ban burqas in hospitals, schools, government offices and on public transport. Women defying the ban are to be denied public services.
The ban’s proponents claim to be acting in the cause of equality: they pronounce that the burqa is “the symbol of the repression of women” and “is a denial of the equality between men and women and a rejection of co-existence side-by-side.”

The irony of fighting repression with a ban seems to have escaped notice. I will have more to say on this topic later.

Apologies

Conference related travel and poor health have prevented me from blogging for the last week. Normal service will resume in the next few days.