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 etc)).  The antonym is proprialization (White House, Grand Canyon etc).  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 etc 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.  Judge Fahey's words recalled those of Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) when in Jacobellis v Ohio (378 U.S. 184 (1964) he wrote: “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”  Judge Fahey knew a basic white girl when he saw one; he just couldn't name her.  Lindsay 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 made to the Paris Peace Conference (1919-1920), 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.

Ordinary

Ordinary (pronounced awr-din-rhe (U) or awr-dn-er-ee (non-U))

(1) Of no special quality or interest; commonplace; unexceptional.

(2) Plain or undistinguished.

(3) Somewhat inferior or below average; mediocre (often when describing sporting competitions or in other contexts where expectations of exceptional performance are high).

(4) Customary; usual; normal; the usual course of things; normal condition or health; a standard way of behavior or action (use now most prevalent in Ireland & Scotland).

(5) In slang (mostly US, south of the Mason-Dixon Line), common, vulgar, or disreputable.

(6) In the definition of jurisdictional limits, immediate, as contrasted with something that is delegated.

(7) In some places, of officials of the agencies of the state, belonging to the regular staff or the fully recognized class.

(8) In ecclesiastical use, an order or form for divine service, especially that used for Mass (the prescribed form of divine service, ie those parts of the Mass that do not vary from day to day and (by extension) in secular use, a book of rules or other document setting out ordinary or regular conduct.

(9) In the rituals of the Roman Catholic Church, the service of the Mass exclusive of the canon.

(10) A member of the clergy appointed to prepare condemned prisoners for death, the use derived from the role of the chaplain of Newgate prison who prepared prisoners for the gallows (obsolete).

(11) In English ecclesiastical law, a bishop, archbishop, or other ecclesiastic (or their deputy or other nominee), in their capacity as an ex officio ecclesiastical authority (typically, a bishop holding an office to which certain jurisdictional powers are attached).

(12) In some US states, a judge of a court of probate.

(13) In a restaurant or inn, a complete meal in which all courses are included at one fixed price per head (as opposed to à la carte service) (both UK use, now rare).

(14) An arrangement whereby an individual hosts others to a meal in a restaurant, latter billing the guests a pre-agreed amount.

(15) A late-nineteenth century term for the penny-farthing bicycle (distinguishing them from the newer “safety bicycles”), still used (along with "hi-wheel" and variants) by hobbyists.

(16) In heraldry, any of the simplest and commonest charges (the “conventional”), such as the bend, fesse & cross, usually in geometric form with straight or broadly curved edges and commonly charged upon shields

(17) In mathematics, (of a differential equation) containing two variables only and derivatives of one of the variables with respect to the other

(18) As All Ordinaries (“all ords” in the market vernacular) index, a share index calculated using the last traded price of 500 of the largest publically listed companies on the Australian Securities Exchange (ASX).

(19) A courier; someone delivering mail or post (used between the sixteenth & nineteenth centuries by those in the service of the Royal Mail).

1250–1300: From the Middle English noun & adjective ordinarie (regular, customary, belonging to the usual order or course, conformed to a regulated sequence or arrangement), from the Anglo-Norman ordenarie, & ordenaire, from the Medieval Latin, noun use of the Classical Latin ordinārius (orderly, regular, of the usual order), the construct being ordin- (stem of ordō (row, rank, series, regular arrangement) (genitive ordinis) + -ārius (the adjectival suffix).  The alternative spelling ordinarie is long obsolete.  Ordinary is a noun & adjective, ordinariness is a noun, ordinarily, extraordinarily & superextraordinarily are adverb and extraordinary (also as extra-ordinary) is an adjective; the noun plural is ordinaries.

In English, the adjective was derived from the noun in the sixteenth century in the sense of “common in occurrence, not distinguished in any way” and this endured in English, the O-Level (once the lowest of the three levels of the General Certificate of Education in the UK secondary school system (dating from 1947 as a contraction of “ordinary level”) remaining available in some overseas systems).  Generally though, the various noun uses adopted between the fourteenth and sixteenth centuries faded for use except in the phrase “out of the ordinary” (someone of something beyond that regularly encountered, expected or customary) although in fields as diverse as steel fabrication and financial market trading, there were such uses from the mid-twentieth century.  The adjective ornery was a dialectal contraction of ordinary (which most sources list as class-based rather than a regionalism) in US English and first documented in 1816 (the history in oral use unknown).  It was used to convey the sense of “poor quality, coarse, ugly” and by the 1860s the meaning ad evolved to the more specific “mean, cantankerous and bad-tempered (orneriness the noun).  That coining hints at the strange history of the word which, following the practice in Latin, began as something neutral meaning “normal, in the expected place, of the expected appearance etc” yet came to be used (as a comparative) also in the negative (somewhat inferior, below average, plain & unexceptional (even rather mediocre).  By contrast, the extra- in extraordinary is used not as an intensifier but to create an antonym; something extraordinary is that which is exceptionally good.  Politicians are most inclined to speak of us as “ordinary people” which presumably implies that even if only sub-consciously, they think of themselves (and others in the political class) as extraordinary and the rest of us as ordinary indeed.

Lord Dawson of Penn (1864–1945; Physician-in-ordinary to the King, 1910-1937).

So calling something ordinary can mean either it’s commonplace (nothing special or unusual) and thus entirely average or its’ below average or of poor quality.  An “ordinary day” might be one pleasingly free of problems or one which has disappointed because nothing especially good happened.  To say someone is ordinary can be a compliment if one is distinguishing them from the surrounding madmen, nutcases and psychos and is essentially the same as calling them “normal” yet it can also mean “dull” or “not that attractive” and just as the politicians know we’re ordinary and they’re not, in the social media age “celebrities” and “ordinary people” really are two separate populations; ‘twas ever thus of course but now it’s an industry.  In ecclesiastical and secular law the old technical meaning persisted.  The title of physician in ordinary to the King (or Queen) is no longer in use but it meant simply the sovereign’s personal doctor and additional doctors who might be summoned were styled either physicians extraordinary or extra physicians.  They needed to be multi-skilled, at least one documented as having euthanized a dying king to ensure the death could be announced in the respectable morning broadsheets rather than the disreputable afternoon tabloids.  Interestingly, years later, Lord Dawson would speak in the House of Lords against the idea of euthanasia being provided for in legislation, maintaining that it was something best left to the judgment of the doctor in the room which will for some confirm the wisdom of Evelyn Waugh’s (1903-1966) observation that the greatest risk to one is hospital is “being murdered by the doctors”.  Although physicians-in-ordinary are no longer described as such, in the Medical Household (attached to the Royal Household in England), the positions of Apothecaries to the King & Occultist to the King have never been disestablished.

In canon law, the term is used still to describe someone having immediate jurisdiction in a given case of ecclesiastical law (typically a bishop within a diocese).  That use dates from the fourteenth century and was picked up in the 1800s in secular judicial administration to refer to a judge vested with the right to handle cases on the basis of ex-officio authority, rather than by delegation.  In other words, that authority was the ordinary, normal authority held by a judge within their jurisdictional competence.  In the UK, the best-known use was in the title Lords of Appeal in Ordinary (the Law Lords in casual use).  These were the judges appointed under the Appellate Jurisdiction Act (1876) to exercise the judicial functions of the House of Lords which was the highest appellate for most cases decided by the UK’s lower courts (apart from a handful of institutions from which cases on appeal proceeded to the Judicial Committee of the Privy Council).  Because the lords of appeal in ordinary technically were appointed as barons in the peerage of England, they thus had the right to sit in the Lords and vote on legislation and this meant ultimately they might be called to decide upon cases dealing with the very laws they’d been part of creating.  In practice this was rarely controversial but it came to bother academic political scientists and other theorists who noted the importance of the doctrine of the separation of powers in a democratic system.  What made it worse (at least on paper) was the lord chancellor (1) sat in and presided over the House of Lords, (2) was ex officio, a judge in the Court of Appeal and the president of the Chancery Division (an inheritance from the days prior to the Judicature Acts (1876) when the lord chancellor headed the old Court of Chancery) and (3) was a member of cabinet.  The office therefore straddled the executive, legislative and judicial functions of government so the fingers were uniquely were in three pies.  It was something which had been discussed for decades before the New Labour government, anxious to do things which would please the various European Union (EU) critics, reformed the arrangements, taking advantage of the prevailing mood to axe from the Lords as many of the hereditary peers as could be managed.  In 2009, New Labour created the Supreme Court of the United Kingdom and the House of Lords ceased to be vested with judicial functions, the lords of appeal in ordinary then in office concurrently appointed as Supreme Court judges and excluded from the Lords until their retirement from the bench.

Lindsay Lohan at the Dorchester Hotel restaurant China Tang, London, June 2017.

Sibyl, Lady Colefax (1874–1950) was an English socialite and interior decorator who in the 1930s & 1940s followed the tradition of hosting “Ordinaries” at London’s Dorchester Hotel, small lunch parties with a set menu, after which she would invoice the guests for their meal.  In the restaurant trade, an “ordinary” was a lunch or dinner in which all courses were included at the one fixed price per head (as opposed to à la carte service).  Because Lady Colefax essentially “bought in bulk” and the menu was what would now be understood as a “chef’s choice”, the prices were good and her address book was the envy of London society so the company was always amusing and occasionally illustrious.  In his infamously indiscrete diaries, Henry "Chips" Channon (1897–1958) would sometimes refer to her as “Old Coalbox” but most of the entries about her were affectionate and sympathetic.

Sanction

Sanction (pronounced sangk-shuhn)

(1) Authoritative permission or approval, as for an action.

(2) Something that serves to support an action, condition, etc.

(3) Something that gives binding force, as to an oath, rule of conduct, etc.

(4) In (usually contract) law, a provision of a law enacting a penalty for disobedience or a reward for obedience.

(5)  A penalty or reward.

(6) In international law, action by one or more states (or a multi-national institution) toward another state, institution or individual(s), calculated to force it compliance with certain obligations.

(7) To authorize, approve, or allow; to ratify or confirm.

1555–1565: From the Latin sānctiōn- (stem of sānctiō (the establishment of an inviolable decree)), genitive sānctiōnis, the construct being sānct(us) (past participle of sancīre (to prescribe by law; to make law by decree) + -iōn (from the Latin suffix -iō (genitive -iōnis), appended to a perfect passive participle to form a noun of action).  The Middle English borrowing came directly from the French sanction and the usual early form in English meant "confirmation or enactment of a law" and was sometimes used interchangeably with the Latin sanctionem (nominative sanctio) (“act of decreeing or ordaining” or “decree, ordinance" the noun of action from the past-participle stem of sancire (to decree, confirm, ratify, make sacred)) which was used especially of ecclesiastical decrees.  The verb form in the sense “confirm by sanction, make valid or binding” dates from 1778 and by 1797 it meant also “authoritatively to permit”, both derived from the noun.  The seemingly contradictory meaning "impose a penalty on" was first used in 1956 but is rooted in an old legalistic sense of the noun and, when deconstructed, the ambiguity dissolves, this use in international diplomacy first documented in 1900 as a plural of the noun sanction in the sense of "part or clause of a law which spells out the penalty for breaking it", a meaning which can be traced back to the 1650s.  From the Latin, influenced by the spread of Roman civil law, derivatives appear in many languages including Catalan (sanció), French (sanction), Galician (sanction), Italian (sanzione), Piedmontese (sansion), Portuguese (sanção), Russian (санкция (sankcija)) and Spanish (sanction).  Sanction & sanctioner are nouns, sanctioned & sanctioning are verbs and sanctionable, sanctionless & sanctionative are adjectives; the noun plural is sanctions.

Sanction busting

Although in some ways a simple language to learn, English has some quirks, notably a massive vocabulary in which one word can have many meanings and multiple words can mean the same thing.  There are also cases where a word can seem simultaneously to sustain two diametrically opposite meanings and these are called auto-antonyms (or contronym or Janus words), the technical term for the phenomenon being enantiosemy ((from the Ancient Greek ἐναντίος (enantíos) (opposite)).  Sanction can convey opposite meanings, depending on context, the Janus-faced nature more evident when used as a noun.  The noun historically referred to the "action of ordaining as inviolable under a penalty" but, in a manner not unfamiliar in English, it evolved in opposite directions, one relating to legal or ethical rules, the other to the penalties imposed for violating these rules.  From the eighteenth to the mid-twentieth century, the verb tended to the positive, the negative meaning "penalize" in general use until the 1950s.  Sanction in this sense is most commonly used in official (though not exclusively governmental) contexts, most often when one government imposes economic measures on another to try to force it to comply with laws or expectations.  The linguistic evolution wasn’t deliberate because that’s not how English usually works; instead it was an adoption of the verbal shorthand of the world of diplomacy.

The Kim Dynasty's new (used) cars

Like his grandfather Kim Il-sung (Kim I, 1912–1994; Great Leader of DPRK (North Korea) 1948-1994), and father Kim Jong-il (Kim II, 1941-2011; Dear Leader of DPRK (North Korea) 1994-2011), Kim Jong-un (Kim III, b 1982; Supreme Leader of DPRK (North Korea) since 2011), is a great admirer of big Mercedes and the regime is believed still to be the only outfit on earth owning a brace of long-roofed (presidential in collector slang) Mercedes-Benz 600s (W100, 1963-1981) Pullman Landaulets (only twelve of which were built).  The Supreme Leader however must have decided to update and it appears that in 2018, several "special" Mercedes-Benz were shipped from the Dutch Port of Rotterdam, via China and five other countries, to the DPRK.  The cars appear to be from the factory's "Guard" programme and there’s an unconfirmed rumor a toilet is installed in at least one for the Great Leader’s convenience.

The Great Leader's motorcade on the way to meet with Vladimir Putin (b 1952; president or prime minister of Russia since 1999), Mercedes Maybach S600 Pullman Guard in front, Mercedes Maybach S62 following, Vladivostok, Russia, April 2019. 

The “Guard” range of vehicles are produced on a special post-production assembly line to meet the demand from heads of state, royalty, oligarchs and leading figures in organized crime for a vehicle which retains the traditional aura of a limousine while affording the levels of protection associated with the smaller armored personnel carriers (APC) & troop carriers used by the military.  The most expensive in the range is based on the opulent Mercedes-Maybachs and meet VR10 protection standards (defined under Directive BRV 2009 v2.0, only some of the specifications of which publicly are disclosed) but it’s known additional steel-alloy & composite panels are installed between the unibody and outer body panels, overlapped at key points to provide what’s described as “comprehensive ballistic protection”, a similar approach applied to the floor to deflect the blast from explosives (conforming to the ERV 2010 protocol).  The windows are thicker and coated with polycarbonate to prevent splintering with the panes permanently fixed (that approach may have been thought not suitable if the rumors of the toilet are true and the Great Leader's car is the previous version with an opening window).  Although the Guard has a wheelbase eight inches (200 mm) longer than the Standard Mercedes-Maybach platform and weights (presumably much) more, the factory lists the power-train as identical to the base vehicle, the 5.5 litre (365 cubic inch) twin-turbocharged V-12 rated at 523 horsepower and 612 lb-ft of torque.

Because sanctions imposed by the United Nations as punishment for Pyongyang's nuclear weapons development are supposed to bar companies and individuals from selling luxury goods to North Korea, technically, The Supreme Leader shouldn’t have be able to buy them.  It’s however estimated that since 2015, some US$440 million in luxury goods have been imported by the DPRK, sourced from some ninety countries, almost all in violation of UN sanctions.  In response to questions, Daimler, which manufactures Mercedes-Benz, a spokesperson said they had "...no indication on how the mentioned vehicles were delivered and where they come from", later issuing a statement:

"For Daimler, the correct export of products in conformance with the law is a fundamental principle of responsible entrepreneurial activity.  Our company has had no business connections with North Korea for far more than 15 years now and strictly complies with EU and US embargoes.  To prevent deliveries to North Korea and to any of its embassies worldwide, Daimler has implemented a comprehensive export control process. Sales of vehicles by third parties, especially of used vehicles, are beyond our control and responsibility."

Although Daimler seemed to imply The Supreme Leader was now reduced to buying used cars (something never suggested of The Great Leader or The Dear Leader), neither Berlin nor Pyongyang commented on the diplomatic slight.

In the matter of Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018), New York’s highest appellate court dismissed Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V and 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.  Take-Two Interactive Software had requested sanctions be imposed, claiming “Lindsay Lohan complains that her image and persona have been wrongfully used by Take-Two in the video game Grand Theft Auto V, but her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes” and was thus an abuse of process.  Both the trial and appellate judges declined to impose sanctions.

In civil legal proceedings, it's possible in some jurisdictions for a party to request a judge to “sanction” the opposing side by imposing a penalty or punishment for some form of misconduct or violation of the rules of the court.  Typically, sanctions are sought when one party believes the other has engaged in improper behavior, such as failing to comply with discovery obligations, disobeying court orders, or engaging in frivolous or abusive litigation tactics including using the administrative processes of the court to "string out" the length of the hearing, usually in the hope of exhausting an opponent's financial resources, compelling them to discontinue the action.  In most jurisdictions this technically doesn’t extend to “vexatious litigation” (the determination of which remains the preserve of the court) but counsel may raise essentially the same issue as “an abuse of process”.  The mechanism of the sanction is to promote equity of access, fairness of procedure, ensure compliance with court rules, and deter inappropriate conduct during proceedings. The specific sanctions available depend on the jurisdiction and the rules of the court.  Some common types of sanctions include:

(1) Fines may be imposed (payable to the court) or compensation to the other party might be ordered.

(2) Orders may be issued restricting or limiting a party's ability to present certain evidence or arguments related to the issues in the case.  This sanction is invoked where attempts are made to introduce material which is irrelevant, repetitive or in excessive volume.  Pleadings or statements of claim may also be excluded.

(3) In extreme cases of willful or deliberate misconduct, a judge may find the party in contempt of court and this may result in the imposition of fines or even terms of imprisonment. 

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 etc), 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.  Judge Fahey's words recalled those of Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) when in Jacobellis v Ohio (378 U.S. 184 (1964) he wrote: “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”  Judge Fahey knew a basic white girl when he saw one; he just couldn't name her.  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.