Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google et al)).  The antonym is proprialization (White House, Grand Canyon et al).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor et al but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

In happier times: Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

Also not having much luck with a matter taken on appeal is former New South Wales (NSW, Australia) Premier Gladys Berejiklian, compelled in 2021 to resign after being found to have committed an act of Billigung, her crucial phrase in a secretly recorded conversation being "I don't need to know about that bit" when her then (secret) lover began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of Mr Maguire.

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Nazi Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.  Had he then told the truth, he'd have been hanged.

The words used by Ms Berejiklian: "I don't need to know about that bit" are best understood in modern use as an attempt to manufacture "plausible deniability" and may be compared with how Herr Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.  There's obviously quite some difference between knowledge of the Holocaust and the dodgy dealings of a politician but the Billigung principle is the same. However, the former premier may have been comforted that unlike the IMT at Nuremberg, the ICAC wasn't vested with capital jurisdiction so there was that.

Enjoying their pipes: Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.     

On 1 October 2021, the NSW ICAC (Independent Commission against Corruption) announced an investigation into the former premier's conduct in office, later handing down a finding she had committed “serious corrupt conduct”.  Interestingly,  despite that, the ICAC made no recommendation criminal charges be pursued because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.

Ms Berejiklian challenged the findings and validity of the ICAC’s findings, her appeal heard by the NSW Court of Appeal, the state’s highest appellate court.  Her grounds for the appeal were claims (1) the ICAC made errors of law and (2) their report may have been delivered outside its legal authority due the expiration of the term of one of the ICAC’s assistant commissioners prior to the report being delivered.  In a split (2-1) decision handed down in July 2024, the court dismissed the appeal (with costs), the dissenting judge finding that because one assistant commissioner was engaged as a consultant after her term had expired (a role which included assisting in drafting the final report and writing assessments of the credibility of witnesses including Ms Berejiklian) what they did was act outside the limits of the authority conferred on a consultant.  The majority disagreed, finding the appointment as a consultant was in all ways “valid and effective” and also rejected the other grounds cited in the appeal.

So the ICAC’s finding of “serious corrupt conduct” stands.  Responding to the court’s decision, Ms Berejiklian didn’t mention that “c-word”) but thanked the court for its consideration given “...the limited nature of a challenge that can be made to ICAC findings by any citizen.  As the court noted, the ICAC Act does not permit a ‘merits’ review of the findings of ICAC.”  She also noted the split decision and concluded “Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.” 

Appellate courts, the hair police and black letter law

Appellate courts are best known for their rulings in cases of great public interest or legal significance; in the former category these typically are those involving celebrities, sex or anything especially gruesome and in the latter, constitutional matters.  There are exceptions (and some appellate courts do also function in certain specialized matters as courts of first instance) and the US Supreme Court (USSC) has agreed to hear parking-ticket and other minor matters if the law under which a conviction was obtained happened in a jurisdiction where the offence was deemed one of absolute liability and an appeal not permitted.  In those matters, the court held that in the US, a legal principle existed that the state could not convict a citizen of something without granting a means of appealing the decision.  Courts of appeal also hear the quirky and bizarre and in 2022 an appeal was lodged in the Supreme Court of Japan, a young woman in Osaka Prefecture seeking to overturn a ruling from the Osaka High Court that her former high school’s rules and guidance forcing her to dye her brown hair black were lawful.

The young lady had in 2015 enrolled in a high school (operated by the prefectural government) and in the original case (decided by the Osaka District Court) she alleged teachers had at least weekly told her to dye her hair black, instructions which continued despite her explanation she was born with brown hair and it was her natural color.  In September 2016, she began refusing to go to school, her suit against the prefectural government alleging she had suffered mental stress.  In 2021, the district court ordered the prefectural government to pay ¥330,000 (US$3,100) to the former student for certain actions (such as such as removing her name from school rosters after she stopped attending) but ruled also the school’s enforcement of the hair-related regulation exceed the discretionary authority it had been granted.  The plaintiff took the case to Osaka High Court (the first appellate layer) which held that, on the basis: “a wide range of discretion must be permitted for school education in order to allow diversified educational guidance in line with individual and collective conditions”, the ruling of the district court was upheld.  The case was well publicized and attracted much public interest (and comment) and, presumably nudged, the Osaka’s Prefectural Board of Education undertook a survey of rules at high schools under their control but concluded the “compulsory black hair” rule was “necessary”, issuing a statement saying “We will meticulously explain the necessity in order to gain understanding from students’ parents”.  That didn’t please the by now bolshie (former) schoolgirl and in her appeal to the Supreme Court (the next appellate layer) claimed banning brown hair was “unconstitutional”, citing Article 13 of Japan’s Constitution, which stipulates people’s right to pursue happiness.

The case attracted the interest of Doshisha University’s Professor Kayoko Oshima (b 1959) who explained the substantive matter was more the repeated demands the girl “dye her hair black rather than the rule itself”, his point being that the purpose of the rule was to prevent the dying of hair to ensure lurid greens or blues (or, God forbid, blondes) weren’t seen and in the case of someone with natural brown hair, the ruling shouldn’t be enforced.  In other words, for these purposes there should be the legal fiction that “brown is black”, something like the “honorary white” status the Apartheid-era South African government would sometimes grant to visiting PoCs (persons of color; typically athletes or politicians).  The rule, according to the professor, was thus rational but, in certain circumstances, its enforcement was not; an example of the “unintended consequences” which sometimes occur in the application of “black letter law”.

While the matter proceed through Japan's not especially rapid civil system, news organizations began reporting other interesting rules school impose on their female students including mandating white underwear and banning pony-tails on the basis that were the nape of the neck so scandalously to be exposed, it would risk “sexually exciting” male students.  Hair color, length and pony-tails are subject obviously to visual inspection but it's not clear if the underwear dictates are enforced by the same method.  The wide publication of these rules drew much derision and in response, early in 2022, the Tokyo prefecture announced those with natural hair other than black would no longer be required to dye to conform and that underwear need no longer exclusively be white.  The Tokyo authorities took an omnibus approach to reform, announcing also that a wider range of hairstyles would be permitted including the “two-block” (short on the sides and back while long on top) which was interesting because like the also permitted bob, the risk of napes being flaunted was obviously there.  Legal observers commented it was an example of a typically Japanese attempt to be flexible yet not be seen over-turning long defended-rules.  Thus the pony-tail proscription stands even though its rationale was undermined by the new permissiveness extending to the bob; again, black letter law.  Collectively, the “draconian rules” are known in Japan asブラック校則 (buraku kosoku) (black rules) and they have existed since the 1970s when it was noted “foreign influences” were beginning to intrude, resulting in previously unknown "behavioral issues".  As well as hair color and seductive pony tails, the most rigorously policed seems to have been skirt length, particular attention devoted to detecting the devious trick of “skirt-folding”, the standard workaround for those seeking the “above-knee look”.  Knees, it would seem, are thought as potentially provocative as the naked nape of the neck.

Ai Nishida San (b 1992) as she is (left) and as her school decided history would remember her (left).

Interestingly, high-tech Japanese school administrators have proved that even if the day comes when they can no longer make black hair compulsorily, with a little judicious digital editing, retrospectively they can make it seem as if uniformity is maintained.  In 2021, one student circulated a “before & after” pair of images, one her school photograph in untouched form (left), the other as it appeared in her school’s yearbook (right), the latter with hair in an acceptably shiny black.  Commenting on the editing, the former student said the message conveyed by the practice was it “…enforces the idea that black straight hair, a stereotypically Japanese look, is right”, the obvious implication being anything else is wrong and thus un-Japanese.  Her school had actually been accommodating, telling her that because it was her natural color, she was exempt the attention of the hair police and she thought little more about it until she received her 2007 yearbook when she realized she had been rendered “more Japanese”.  Ai Nishida San called the school’s actions “racist” and while, in the narrow technical sense, it might be more correct to suggest the motives were “racialist”, it’s certainly either and hardly in the spirit of the submission Japan’s delegation to the Paris Peace Conference (1919-1920) made, arguing for racial equality to be recognized as one of the core concepts underpinning international relations in the post-war (which turned out to be the inter-war) era.

Grand

Grand (pronounced grand)

(1) Impressive in size, appearance, or general effect.

(2) Stately, majestic, or dignified.

(3) Highly ambitious or idealistic.

(4) Magnificent or splendid.

(5) Noble or revered.

(6) Highest, or very high, in rank or official dignity.

(7) Main or principal; chief; the most superior.

(8) Of great importance, distinction, or pretension.

(9) Complete or comprehensive (usually as the “grand total”).

(10) Pretending to grandeur, as a result of minor success, good fortune, etc; conceited & haughty (often with a modifier such as “rather grand”, awfully grand” or “insufferably grand”).

(11) First-rate; very good; splendid.

(12) In musical composition, written on a large scale or for a large ensemble (grand fugue, grand opera etc) and technically meaning originally “containing all the parts proper to a given form of composition”.

(13) In music, the slang for the concert grand piano (sometimes as “concert grand”).

(14) In informal use, an amount equal to a thousand pounds or dollars.

(15) In genealogy, a combining (prefix) form used to denote “one generation more remote” (grandfather, grand uncle etc).

1350–1400: From the Middle English graund, grond, grand, graunt & grant, from the Anglo-Norman graunt, from the Old French grant & grand (large, tall; grown-up; great, powerful, important; strict, severe; extensive; numerous), from the Latin grandis (big, great; full, abundant; full-grown (and figuratively “strong, powerful, weighty, severe”, of unknown origin.  Words conveying a similar sense (depending on context includes ambitious, awe-inspiring, dignified, glorious, grandiose, imposing, large, lofty, luxurious, magnificent, marvelous, monumental, noble, princely, regal, royal, exalted, palatial; brilliant, superb opulent, palatial, splendid, stately, sumptuous, main, large, big & august.  Grand is a noun & adjective, grander & grandest are adjectives, grandness is a noun and grandly an adverb; the noun plural is grands.

In Vulgar Latin it supplanted magnus (although the phrase magnum opus (one’s great work) endured) and continued in the Romanic languages.  The connotations of "noble, sublime, lofty, dignified etc” existed in Latin and later were picked up in English where it gained also the special sense of “imposing”.  The meaning “principal, chief, most important” (especially in the hierarchy of titles) dates from the 1560s while the idea of “something of very high or noble quality” " is from the early eighteenth century.  As a general term of admiration (in the sense of “magnificent or splendid” it’s documented since 1816 but as a modifier to imply perhaps that but definitely size, it had been in use for centuries: The Grand Jury was an invention of the late fifteenth century, the grand tour was understood as “an expedition around the important places in continental Europe undertaken as part of the education of aristocratic young Englishmen) as early as the 1660s and the grand piano was name in 1797.  In technical use it was adapted for use in medicine as the grand mal (convulsive epilepsy with loss of consciousness), borrowed by English medicine from the French grand mal (literally “great sickness”) as a point of clinical distinction from the petit mal (literally “small sickness”) (an epileptic event where consciousness was not lost).

The use of the prefix grand- in genealogical compounds is a special case.  The original meaning was “a generation older than” and the earliest known reference is from the early thirteenth century in the Anglo-French graund dame (grandmother) & (later) grandsire (grandfather), etymologists considering the latter possibly modeled on the avunculus magnus (great uncle).  The English grandmother & grandfather formally entered the language in the fifteenth century and the extension of the concept from “a generation older than” to “a generation younger than” was adopted in the Elizabethan era (1558-1603) thus grandson, granddaughter et al.  Grand as a modifier clearly had appeal because in the US, the “Big Canyon” was in 1869 re-named the Grand Canyon and the meaning "a thousand dollars" dates from 1915 and was originally US underworld slang.  In the modern era grand has been appended whenever there’s a need economically to convey the idea of a “bigger or more significant” version of something thus such constructions as grand prix, grand slam, grand larceny, grand theft auto, grand unification theory, grand master (a favorite both of chess players and the Freemasons) etc.

The Grand Jury

Donald Trump in Manhattan Criminal Court, April 2022.

The Manhattan grand jury which recently indicted Donald Trump (b 1946; US president 2017-2021) on 34 felony counts of falsification of business records in the first degree is an example of an institution with origins in twelfth century England although it didn’t generally become known as the “grand jury” until the mid-1400s.  At least some of the charges against Mr Trump relate to the accounting associated with “hush-money” payment made in some way to Stormy Daniels (b 1979; the stage name of Stephanie Gregory although Mr Trump prefers “horseface” which seems both ungracious and unfair) but if reports are accurate, he’ll have to face more grand juries to answer more serious matters.

A grand jury is a group of citizens (usually between 16-23) who review evidence presented by a prosecutor to determine whether the case made seems sufficiently compelling to bring criminal charges.  A grand jury operates in secret and its proceedings are not open to the public, unlike a trial before a jury (a smaller assembly and classically a dozen although the numbers now vary and once it was sometimes called a petit jury).  It is this smaller jury which ultimately will pronounce whether a defendant is guilty or not; all a grand jury does is determine whether a matter proceeds to trial in which case it will issue an indictment, which at law is a formal accusation.  The origins of the grand jury in medieval England, where it was used as a means of investigating and accusing individuals of crimes was to prevent abuses of power by the king and his appointed officers of state although it was very much designed to protect the gentry and aristocracy from the king rather than any attempt to extend legal rights to most of the population.

The grand jury has been retained in the legal systems of only two countries: the US and Liberia.  Many jurisdictions now use a single judge or magistrate in a lower court to conduct a preliminary hearing but the principle is the same: what has to be decided is whether, on the basis of the evidence presented, there’s a reasonable prospect a properly instructed (petit) jury would convict.  In the US, the grand jury has survived because the institution was enshrined in the Fifth Amendment to the Constitution: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”  The grand jury was thought a vital protection against arbitrary prosecutions by the government, and it was included in the Bill of Rights (1689) to ensure individuals would not be subject to unjustified criminal charges.  There is an argument that, by virtue of England’s wondrously flexible unwritten constitution, the grand jury hasn't been abolished but they're merely no longer summoned.  It's an interesting theory but few support the notion, the Criminal Justice Act (2003) explicitly transferring the functions to the Crown Prosecution Service (CPS) and the model of the office of Director of Public Prosecutions (DPP) has been emulated elsewhere in the English-speaking world.  Presumably, a resuscitation would require the DPP to convene a grand jury and (if challenged on grounds of validity) the would courts have to concur but as late as 1955 an English court was prepared to hold a court which had not sat for centuries was still extant so the arguments would be interesting.

The “Grand Mercedes”: The Grosser tradition

Der Grossers: 1935 Mercedes-Benz 770 K (W07) of Emperor Shōwa (Hirohita, 1901–1989, emperor of Japan 1926-1989 (left)), Duce & Führer in 1939 Mercedes-Benz 770 K (W150) leading a phalanx of Grossers, Munich, 1940 (centre) and Comrade Marshal Josip Broz Tito (1892–1980) in 1966 Mercedes-Benz 600 Landaulet (W100), Belgrade, 1967 (right).

Produced in three series (770 K (W07 1930–1938 & W150 1939-1945) & 600 (W100 1963-1981)) the usual translation in English of “Grosser Mercedes” is “Grand Mercedes” and that is close to the German understanding which is something between “great”, “big” and “top-of-the-line”.  In German & Austrian navies (off & one) between 1901-1945, a Großadmiral was the equivalent to the (five star) Admiral of the Fleet (UK) or Fleet Admiral (US); it was disestablished in 1945.  When the 600 (driven to extinction by two oil crises and an array of regulations never envisaged when it was designed) reached the end of the line in 1981, it wasn’t replaced and the factory didn’t return to the idea until a prototype was displayed at the 1997 Tokyo Motor Show.  The specification and engineering was intoxicating but the appearance was underwhelming, a feeling reinforced when the production version (2002-2013) emerged not as an imposing Grosser Mercedes but a Maybach, a curious choice which proved the MBAs who came up with the idea should have stuck to washing powder campaigns.  The Maybach, which looked something like a big Hyundai, lingered for a decade before an unlamented death.

Grand, Grand Prix & Grand Luxe

1967 Jaguar 420 G (left), 1969 Pontiac Grand Prix J (centre) and 1982 Ford XE Falcon GL 5.8 (351) of the NSW (New South Wales) Highway Patrol (right).

Car manufacturers were attracted to the word because of the connotations (bigger, better, more expensive etc).  When in 1966 Jaguar updated their slow-selling Mark X, it was integrated into what proved a short-lived naming convention, based on the engine displacement.  Under the system, with a capacity of 4.2 litres (258 cubic inch) the thing had to be called 420 but there was a smaller saloon in the range so-named so the bigger Mark X was renamed 420 G.  Interestingly, when the 420 G was released, any journalist who asked was told “G” stood for “Grand” which is why that appeared in the early reports although the factory seems never officially to have used the word, the text in the brochures reading either 420 G or 420 “G”.  The renaming did little to encourage sales although the 420 G lingered on the catalogue until 1970 by which time production had dwindled to a trickle.  The tale of the Mark X & 420 G is emblematic of the missed opportunities and mismanagement which would afflict the British industry during the 1970s & 1980s.  In 1961, the advanced specification of the Mark X (independent rear suspension, four-wheel disk brakes) made it an outstanding platform and had Jaguar fitted an enlarged version of the Superb V8 they had gained with their purchase of Daimler, it would have been an ideal niche competitor in mid-upper reaches of the lucrative US market.  Except for the engine, it needed little change except the development of a good air-conditioning system, then already perfected by Detroit.  Although the Daimler V8 and Borg-Warner gearbox couldn't have matched the ultimate refinement of what were by then the finest engine-transmission combinations in the world, the English pair certainly had their charms and would have seduced many.    

Pontiac’s memorable 1969 Grand Prix also might have gained ("Grand Prix" most associated with top-level motorsport although it originally was borrowed from Grand Prix de Paris (Big Prize of Paris), a race for thoroughbred horses staged at the Longchamps track) the allure of high performance, something attached to the range upon its introduction as a 1962 model (although by 1967 it had morphed into something grand more in size than dynamic qualities).  The 1969-1970 cars remain the most highly regarded, the relative handful of SJ models built with the 428 cubic inch (7.0 litre) HO (High Output) V8 a collectable, those equipped with the four-speed manual gearbox the most sought-after.  It was downhill from the early 1970s and by the next decade, there was little about the by then dreary Grand Prix which seemed at all grand.

During the interwar years (1919-1939) “deluxe” was a popular borrowing borrowed from the fashion word, found to be a good label to apply to a car with bling added; a concept which proved so profitable it remains practiced to this day.  Deluxe (sometimes as De luxe) was a commercial adaptation of the French de luxe (of luxury), from the Latin luxus (excess), from the primitive Indo-European lewg- (bend, twist) and it begat “Grand Luxe” which was wholly an industry invention.  Deluxe and Grand Luxe eventually fell from favour as model names for blinged-up creations became more inventive but the initializations L, DL & GL were adopted by some, the latter surviving longest by which time it was understood to signify just something better equipped and thus more expensive; it’s doubtful many may a literal connection to “Grand Luxe”.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

Ersatz

Ersatz (pronounced er-zahts or er-sahts)

(1) Serving as a substitute; synthetic; artificial (adjective).

(2) An artificial substance or article used to replace something natural or genuine; a substitute (noun).

1875: From the German ersatz (units of the army reserve (literally "compensation, replacement, substitute"), a back-formation from ersetzen (to replace; substitute good) from the Old High German irsezzen, the construct being ir- (an unaccented variant of ur; in German, the prefix signifying a notion of getting something (either by conscious effort or (rarely) producing the effect of coming to have it unintentionally) by specific means) + setzen, from the Middle High German setzen, from the Old High German sezzen, from the Proto-Germanic satjaną, from the primitive Indo-European sodéyeti; from the primitive Indo-European root sed- (to sit); it was cognate with the Hunsrik setze, the English set and the Dutch zetten.  Historically an adjective, use of ersatz as a noun was first noted in 1892.

Technically, although ersatz has many synonyms (synthetic, phony, imitation, fake, sham, substitute, counterfeit, bogus, manufactured, pretended, simulated, spurious, copied, false et al), because of its association with inferior quality goods (such as chocolate and, most famously, the notoriously unpleasant ersatz coffee, made typically from acorns), produced in Germany during the world wars to compensate for the shortage of genuine products, Ersatz tends to be used in that context while the preferred terms in modern English use are fake & faux, the latter with the particular sense of something imitative yet deliberately not deceptively so.  Indeed, faux can have positive connotations (faux fur, leather etc) and, among vegans, such things may be obligatory. 

Originally, the German military jargon was Ersatz Corps which described reserve, substitute or replacement troops, the word later adopted by the Kaiserliche Marine (the Imperial Navy) as part of the secrecy protocol which didn’t reveal the names of vessels until launch (and, in war-time, even during sea-trials), ships thus appearing in the naval lists with names like "Ersatz Yorck class".  During the two world wars, it was most famously applied to over ten-thousand substitute products, both industrial and consumer goods, created because of shortages.  The word entered Russian and English and came to describe any product thought not as good as the original.

Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Agreeing with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey wrote in his ruling.  Lindsay Lohan’s lawyers did not seek leave to appeal.

Schematic of Ersatz Yorck's armor deployment.

Ersatz Yorck was one of the project names for a planned build of three battlecruisers ordered in 1916 by the German navy.  After the first keel had been laid down, influenced by the tendency, noted since the launching a decade earlier of the Royal Navy's HMS Dreadnought, towards bigger guns, the design was revised to become was significantly heavier than the Mackensen class which had been the original template.  The name Ersatz Yorck was derived from the ship being the replacement (ie ersatz in the original German sense of the word) for the Roon class armored cruiser SMS Yorck, sunk in home waters in 1914 after striking a (German) mine.  The other two ships in the programme were Ersatz Gneisenau & Ersatz Scarnhorst, both slated as replacements for namesakes lost during the Battle of the Falkland Islands (1914).

The three ships were never completed because it had become apparent augmenting the surface fleet was reinforcing failure and that U-boat (submarine) construction was a better use of available resources.  Thus the partially built Ersatz Yorck, years from completion, was broken up on the slipway and cannibalized to support U-boat production.  However, the navy retained the blueprints and it was these plans which in the 1930s provided the basis for what became the Scarnhorst class battleships although, in the Second World War, the illusion a surface fleet would be a more effective instrument of war at sea than the U-Boats proved again a chimera and one which meant that even in the early days of the conflict, the British never quite lost control of the Atlantic.  Had Germany entered the war with the 300 operational submarines advocated by the navy's U-Boat branch rather than the two-dozen odd available in 1939, the battle in the Atlantic would have have assumed a different character.   

Molyneux

Molyneux (pronounced mol-un-ewe)

(1) A habitational surname of Norman origin, almost certainly from the town of Moulineaux-sur-Seine, in Normandy.

(2) A variant of the Old French Molineaux (an occupational surname for a miller).

(3) An Anglicized form of the Irish Ó Maol an Mhuaidh (descendant of the follower of the noble).

(4) In law in the state of New York, as the “Molineux Rule”, an evidentiary rule which defines the extent to which a prosecutor may introduce evidence of a defendant’s prior bad acts or crimes, not to show criminal propensity, but to “establish motive, opportunity, intent, common scheme or plan, knowledge, identity or absence of mistake or accident.”

(5) In philosophy, as the “Molyneux Problem”, a thought experiment which asks:”If someone born blind, who has learned to distinguish between a sphere and a cube by touch alone, upon suddenly gaining the power of sight, would they be able to distinguish those objects by sight alone, based on memory of tactile experience?”

Pre 900: The French surname Molyneux was from the Old French and is thought to have been a variant of De Molines or De Moulins, both linked to "Mill" (Molineaux the occupational surname for a miller) although the name is believed to have been habitation and form an unidentified place in France although some genealogists have concluded the de Moulins came from Moulineaux-sur-Seine, near Rouen, Normandy.  Despite the continental origin, the name is also much associated with various branches of the family in England and Ireland, the earliest known references pre-dating the Norman Conquest (1066).  The alternative spelling is Molineux.

The "Molyneux Problem" is named after Irish scientist and politician William Molyneux (1656–1698) who in 1688 sent a letter to the English physician & philosopher John Locke (1632–1704), asking: Could someone who was born blind, and able to distinguish a globe and a cube by touch, be able to immediately distinguish and name these shapes by sight if given the ability to see?  Obviously difficult to test experimentally, the problem prompted one memorable dialogue between Locke and Bishop George Berkeley (1685–1753 (who lent his name, pronounced phonetically to the US university) but it has long intrigued those from many disciplines, notably neurology and psychology, because sight is such a special attribute, the eyes being an outgrowth of the brain; the experience of an adult brain suddenly being required to interpret visual input would be profound and certainly impossible to imagine.  Philosophers since Locke have also pondered the problem because it raises issues such as the relationship between vision and touch and the extent to which some of the most basic components of knowledge (such as shape) can exist at birth or need entirely to be learned or experienced.

The Molineux Rule in the the adversarial system 

The Molineux Rule comes from a decision handed down by the Court of Appeals of New York in the case of People v Molineux (168 NY 264 (1901)).  Molineux had at first instance been convicted of murder in a trial which included evidence relating to his past conduct.  On appeal. the verdict was overturned on the basis that as a general principle: “…in both civil and criminal proceedings, that when evidence of other crimes, wrongs or acts committed by a person is offered for the purpose of raising an inference that the person is likely to have committed the crime charged or the act in issue, the evidence is inadmissible.”  The rationale for that is it creates a constitutional safeguard which acts to protect a defendant from members of a jury forming an assumption the accused had committed the offence with which they were charged because of past conduct which might have included being accused of similar crimes.  Modified sometimes by other precedent or statutes, similar rules of evidentiary exclusion operate in many common law jurisdictions.  It was the Molineux Rule lawyers for former film producer Harvey Weinstein (b 1952) used to have overturned his 2020 conviction for third degree rape.  In a 4:3 ruling, the court held the trial judge made fundamental errors in having “…erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose.” and therefore the only “...remedy for these egregious errors is a new trial.”

Harvey Weinstein and others.

Reaction to the decision of the appellate judges was of course swift and the opinion of the “black letter” lawyers was the court was correct because “…we don't want a court system convicting people based on testimony about allegations with which they’ve not been charged.”, added to which such evidence might induce a defendant not to submit to the cross-examination they’d have been prepared to undergo if only matters directly relevant to the charge(s) had been mentioned in court.  Although the Molineux Rule has been operative for well over a century, some did thing it surprising the trial judge was prepare to afford the prosecution such a generous latitude in its interpretation but it should be noted the Court of Appeal divided 4:3 so there was substantial support from the bench that what was admitted as evidence did fall within what are known as the “Molineux exceptions” which permit certain classes of testimony in what is known as “character evidence”.  That relies on the discretion of the judge who must weigh the value of the testimony versus the prejudicial effect it will have on the defendant.  In the majority judgment, the Court of Appeal made clear that in the common law system (so much of which is based on legal precedent), if the trial judge’s decision on admissibility was allowed to stand, there could (and likely would) be far-reaching consequences and their ruling was based on upholding the foundations of our criminal justice system in the opening paragraphs: "Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality. It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict."

The strict operation of the Molineux Rule (which this ruling will ensure is observed more carefully) does encapsulate much of the core objection to the way courts operate in common law jurisdictions.  The common law first evolved into something recognizable as such in England & Wales after the thirteenth century and it spread around the world as the British Empire grew and that included the American colonies which, after achieving independence in the late eighteenth century as the United States of America, retained the legal inheritance.  The common law courts operate on what is known as the “adversarial system” as opposed to the “inquisitorial system” of the civil system based on the Code Napoléon, introduced in 1804 by Napoleon Bonaparte (1769–1821; leader of the French Republic 1799-1804 & Emperor of the French from 1804-1814 & 1815) and widely used in Europe and the countries of the old French Empire.  The criticism of the adversarial system is that the rules are based on the same principle as many adversarial contests such as football matches where the point of the rules is to ensure the game is decided on the pitch and neither team has any advantage beyond their own skill and application.

That’s admirable in sport but many do criticize court cases being conducted thus, the result at least sometimes being decided by the skill of the advocate and their ability to persuade.  Unlike the inquisitorial system where the object is supposed to be the determination of the truth, in the adversarial system, the truth can be something of an abstraction, the point being to win the case.  In that vein, many find the Molineux Rule strange, based on experience in just about every other aspect of life.  Someone choosing a new car, a bar of chocolate or a box of laundry detergent is likely to base their decision from their knowledge of other products from the same manufacturer, either from personal experience or the result of their research.  Most consumer organizations strongly would advise doing exactly that yet when the same person is sitting on a jury and being asked to decide if an accused is guilty of murder, rape or some other heinous offence, the rules don’t allow them to be told the accused has a history of doing exactly that.  All the jury is allowed to hear is evidence relating only to the matter to be adjudicated.  Under the Molineux Rule there are exceptions which allow “evidence of character” to be introduced but as a general principle, the past is hidden and that does suit the legal industry which is about winning cases.  The legal theorists are of course correct that the restrictions do ensure an accused can’t unfairly be judged by past conduct but for many, rules which seem to put a premium on the contest rather than the truth must seem strange.