Simulacrum

Simulacrum (pronounced sim-yuh-ley-kruhm)

(1) A slight, unreal, or superficial likeness or semblance; a physical image or representation of a deity, person, or thing.

(2) An effigy, image, or representation; a thing which has the appearance or form of another thing, but not its true qualities; a thing which simulates another thing; an imitation, a semblance; a thing which has a similarity to the appearance or form of another thing, but not its true qualities

(3) Used loosely, any representational image of something (a nod to the Latin source).

1590–1600: A learned borrowing of the Latin simulācrum (likeness, image) and a dissimilation of simulaclom, the construct being simulā(re) (to pretend, to imitate), + -crum (the instrumental suffix which was a variant of -culum, from the primitive Indo-European –tlom (a suffix forming instrument nouns).  The Latin simulāre was the present active infinitive of simulō (to represent, simulate) from similis (similar to; alike), ultimately from the primitive Indo-European sem- (one; together).  In English, the idea was always of “something having the mere appearance of another”, hence the conveyed notion of a “a specious imitation”, the predominant sense early in the nineteenth century while later it would be applied to works or art (most notably in portraiture) judged, “blatant flattery”.  In English, simulacrum replaced the late fourteenth century semulacre which had come from the Old French simulacre.  As well as the English simulacrum, the descendents from the Latin simulācrum include the French simulacre, the Spanish simulacro and the Polish symulakrum.  Simulacrum is a noun and simulacral is an adjective; the noun plural is simulacrums or simulacra (a learned borrowing from Latin simulācra).  Although neither is listed, by lexicographers, in the world of art criticism, simulacrally would be a tempting adverb and simulacrumism an obvious noun.  The comparative is more simulacral, the suplerative most simulacral.

Simulacrum had an untroubled etymology didn’t cause a problem until French post-structuralists found a way to add layers of complication.  The sociologist & philosopher Jean Baudrillard (1929-2007) wrote a typically dense paper (The Precession of Simulacra (1981)) explaining simulacra were “…something that replaces reality with its representation… Simulation is no longer that of a territory, a referential being, or a substance. It is the generation by models of a real without origin or reality: a hyperreal.... It is no longer a question of imitation, nor duplication, nor even parody. It is a question of substituting the signs of the real for the real.” and his examples ranged from Disneyland to the Watergate scandal.  One can see his point but it seems only to state the obvious and wicked types like Karl Marx (1818-1883) and Joseph Goebbels (1897-1975; Nazi propaganda minister 1933-1945) said it in fewer words.  To be fair, Baudrillard’s point was more about the consequences of simulacra than the process of their creation and the social, political and economic implication of states or (more to the point) corporations attaining the means to “replace” reality with a constructed representation were profound.  The idea has become more relevant (and certainly more discussed) in the post-fake news world in which clear distinctions between that which is real and its imitations have become blurred and there’s an understanding that through many channels of distribution, increasingly, audiences are coming to assume nothing is real.

Advertising copy for the 1961 Pontiac Bonneville Sports Coupe (left) with graphical art by Art Fitzpatrick (1919–2015) & Van Kaufman (1918-1995) and a (real) 1961 Pontiac Bonneville Sports Coupe (right) fitted with Pontiac's much admired 8-lug wheels, their exposed centres actually the brake drum.

The work of Fitzpatrick & Kaufman is the best remembered of the 1960s advertising by the US auto industry and their finest creations were those for General Motors’ (GM) Pontiac Motor Division (PMD).  The pair rendered memorable images but certainly took some artistic licence and created what were even then admired as simulacrums rather than taken too literally.  While PMD’s “Year of the Wide-Track” (introduced in 1959) is remembered as a slogan, it wasn’t just advertising shtick, the decision taken to increase the track of Pontiacs by 5 inches (125 mm) because the 1958 frames were used for the much wider 1959 bodies, rushed into production because the sleek new Chryslers had rendered the old look frumpy and suddenly old-fashioned.  It certainly improved the look but the engineering was sound, the wider stance also genuinely enhanced handling.  Just to make sure people got the message about the “wide” in the “Wide Track” theme, their artwork deliberately exaggerated the width of the cars they depicted and while it was the era of “longer, lower, wider” (and PMD certainly did their bit in that), things never got quite that wide.  Had they been, the experience of driving would have felt something like steering an aircraft carrier's flight deck.

Fitzpatrick & Kaufman’s graphic art for the 1967 Pontiac Catalina Convertible advertising campaign.  One irony in the pair being contracted by PMD is that for most of the 1960s, Pontiacs were distinguished by some of the industry’s more imaginative and dramatic styling ventures and needed the artists' simulacral tricks less than some other manufacturers (and the Chryslers of the era come to mind, the solid basic engineering below cloaked sometimes in truly bizarre or just dull  bodywork).

This advertisement from 1961 hints also at something often not understood about what was later acknowledged as the golden era for both the US auto industry and their advertising agencies.  Although the big V8 cars of the post-war years are now remembered mostly for the collectable, high-powered, high value survivors with large displacement and induction systems using sometimes two four-barrel or three two-barrel carburetors, such things were a tiny fraction of total production and most V8 engines were tuned for a compromise between power (actually, more to the point for most: torque) and economy, a modest single two barrel sitting atop most and after the brief but sharp recession of 1958, even the Lincoln Continental, aimed at the upper income demographic, was reconfigured thus in a bid to reduce the prodigious thirst of the 430 cubic inch (7.0 litre) MEL (Mercury-Edsel-Lincoln) V8.  Happily for country and oil industry, the good times returned and by 1963 the big Lincolns were again guzzling gas four barrels at a time (the MEL in 1966 even enlarged to a 462 (7.6)) although there was the courtesy of the engineering trick of off-centering slightly the carburetor’s location so the primary two throats (the other two activated only under heavy throttle load) sat directly in the centre for optimal smoothness of operation.  Despite today’s historical focus on the displacement, horsepower and burning rubber of the era, there was then much advertising copy about (claimed) fuel economy, though while then as now, YMMV (your mileage may vary), the advertising standards of the day didn’t demand such a disclaimer.

Portrait of Oliver Cromwell (1650), oil on canvas by Samuel Cooper (1609-1672).

Even if it’s something ephemeral, politicians are often sensitive about representations of their image but concerns are heightened when it’s a portrait which, often somewhere hung on public view, will long outlive them.  Although in the modern age the proliferation and accessibility of the of the photographic record has meant portraits no longer enjoy an exclusivity in the depiction of history, there’s still something about a portrait which conveys, however misleadingly, a certain authority.  That’s not to suggest the classic representational portraits have always been wholly authentic, a good many of those of the good and great acknowledged to have been painted by “sympathetic” artists known for their subtleties in rendering their subjects variously more slender, youthful or hirsute as the raw material required.  Probably few were like Oliver Cromwell (1599–1658; Lord Protector of the Commonwealth 1653-1658) who told Samuel Cooper to paint him “warts and all”.  The artist obliged.

Randolph Churchill (1932), oil on canvas by Philip de László (left) and Randolph Churchill’s official campaign photograph (1935, right).

There have been artists for whom a certain fork of the simulacrum has provided a long a lucrative career.  Philip Philip Alexius László de Lombos (1869–1937 and known professionally as Philip de László) was a UK-based Hungarian painter who was renowned for his sympathetic portraiture of royalty, the aristocracy and anyone else able to afford his fee (which for a time-consuming large, full-length works could be as much as 3000 guineas).  His reputation as a painter suffered after his death because he was dismissed by some as a “shameless flatterer” but in more recent years he’s been re-evaluated and there’s now much admiration for his eye and technical prowess, indeed, some have noted he deserves to be regarded more highly than many of those who sat for him.  His portrait of Randolph Churchill (1911-1968) (1932, left) has, rather waspishly, been described by some authors as something of an idealized simulacrum and the reaction of the journalist Alan Brien (1925-2008) was typical.  He met Churchill only in when his dissolute habits had inflicted their ravages and remarked that the contrast was startling, “…as if Dorian Gray had changed places with his picture for one day of the year.”  Although infamously obnoxious, on this occasion Churchill responded with good humor, replying “Yes, it is hard to believe that was me, isn’t it?  I was a joli garçon (pretty boy) in those days.”  That may have been true for as his official photograph for the 1935 Wavertree by-election (where he stood as an “Independent Conservative” on a platform of rearmament and opposition to Indian Home Rule) suggests, the artist may have been true to his subject.  Neither portrait now photograph seems to have helped politically and his loss at Wavertree was one of several he would suffer in his attempts to be elected to the House of Commons.

Portrait of Gina Rinehart (née Hancock, b 1954) by Western Aranda artist Vincent Namatjira (b 1983), National Gallery of Australia (NGA) (left) and photograph of Gina Rinehart (right).

While some simulacrums can flatter to deceive, others are simply unflattering.  That was what Gina Rinehard (described habitually as “Australia’s richest woman”) felt about two (definitely unauthorized) portraits of which are on exhibition at the NGA.  Accordingly, she asked they be removed from view and “permanently disposed of”, presumably with the same fiery finality with which bonfires consumed portraits of Theodore Roosevelt (TR, 1858–1919; US president 1901-1909) and Winston Churchill (1875-1965; UK prime-minister 1940-1945 & 1951-1955), both works despised by their subjects.  Unfortunately for Ms Reinhart, her attempted to save the nation from having to look at what she clearly considered bad art created only what is in law known as the “Streisand effect”, named after an attempt in 2003 by the singer Barbra Streisand (b 1942) to suppress publication of a photograph showing her cliff-top residence in Malibu, taken originally to document erosion of the California coast.  All that did was generate a sudden interest in the previously obscure photograph and ensure it went viral, overnight reaching an audience of millions as it spread around the web.  Ms Reinhart’s attempt had a similar consequence: while relatively few had attended Mr Namatjira’s solo Australia in Colour exhibition at the NGA and publicity had been minimal, the interest generated by the story saw the “offending image” printed in newspapers, appear on television news bulletins (they’re still a thing with a big audience) and of course on many websites.  The “Streisand effect” is regarded as an example “reverse psychology”, the attempt to conceal something making it seem sought by those who would otherwise not have been interested or bothered to look.  People should be careful in what they wish for.

Variations on a theme of simulacra: Four AI (artificial intelligence) generated images of Lindsay Lohan by Stable Diffusion.  The car depicted (centre right) is a Mercedes-Benz SL (R107, 1971-1989), identifiable as a post-1973 North American model because of the disfiguring bumper bar. 

So a simulacrum is a likeness of something which is recognizably of the subject (maybe with the odd hint) and not of necessity “good” or “bad”; just not exactly realistic.  Of course with techniques of lighting or angles, even an unaltered photograph can similarly mislead but the word is used usually of art or behavior such as “a simulacrum or pleasure” or “a ghastly simulacrum of a smile”.  In film and biography of course, the simulacrum is almost obligatory and the more controversial the subject, the more simulacral things are likely to be: anyone reading AJP Taylor’s study (1972) of the life of Lord Beaverbrook (Maxwell Aitken, 1879-1964) would be forgiven for wondering how anyone could have said a bad word about the old chap.  All that means there’s no useful antonym of simulacrum because one really isn’t needed (there's replica, duplicate etc but the sense is different) while the synonyms are many, the choice of which should be dictated by the meaning one wishes to denote and they include: dissimilarity, unlikeness, archetype, clone, counterfeit, effigy, ersatz, facsimile, forgery, image, impersonation, impression, imprint, likeness, portrait, representation, similarity, simulation, emulation, fake, faux & study.  Simulacrum remains a little unusual in that while technically it’s a neutral descriptor, it’s almost always used with a sense of the negative or positive.

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.

Frivol

Frivol (pronounced friv-uhl)

(1) An unserious person.

(2) An idle diversion or pastime; a frivolity.

(3) To behave frivolously; to trifle; to squander time; to waste on frivolous pursuits (historically followed by away).

(4) To spend money frivolously (historically followed by away).

1865–1870: A back formation from frivolous, from the French frivole, from the Latin frīvolus (trifling, worthless).  The word exists in Romanian where it’s used in the same sense as in English but in German there’s been a meaning shift and it’s now an adjective meaning saucy; sleazy; ribald (sexual in a frivolous way), the comparative being frivoler and the superlative am frivolsten (in the matter of frivolous sex, the Germans have grades).  The adjective frivolous emerged in the mid-fifteenth century, from the Latin frivolus (silly, empty, trifling, worthless), a diminutive of frivos (broken, crumbled), from friare (break, rub away, crumble).  In courts of law, frivolous was in use by the mid- 1730s to describe arguments (or entire cases) as “so clearly insufficient as to need no argument to show its weakness”.  The related forms were the adverb frivolously and the nouns frivolousness & frivolity.  Dating from the 1790s, frivolity was from the French frivolité, from the Old French frivole (frivolous), from the Latin frivolus.  Frivol is a noun & verb, frivoler (also frivoller) is a noun, frivoled (also frivolled) & frivoling (also frivolled) are verbs; the noun plural is frivols.  Frivol is all contexts is now rare (some sources suggest it is extinct) which is interesting because in English there’s usually a tendency for a short form to prevail over the long; for whatever reason frivolous & frivolity flourished and frivol floundered.

Of the frivolous and the vexatious

In legal proceedings, “frivolous” & “vexatious” are terms used to describe certain classes of argument or even an entire case.  An action or claim is labeled frivolous when it self-evidently lacks any merit or basis in law and has no reasonable prospect of success.  An action or a litigant is labeled as vexatious when they engage in persistent, repetitive, or burdensome litigation, often with the primary goal of annoying, harassing, or frustrating the opposing party.  Like the frivolous, a vexatious action is often one with little prospect of success but is characterized by a pattern of behavior rather than the lack of merit in a specific claim and the phrase “abuse of process” is often used in conjunction with “vexatious”.  If a litigant is found repeatedly to commence such actions, courts sometimes declare them a “vexatious litigant” and intervene to prevent them filing new suits without the permission of the court.  The terms “serial litigant” is also sometime used in this context but the courts will not move against a party simply on the basis of the frequency with which actions are brought; provided a actions are on sound legal grounds and have a reasonable prospect of success, as a general principle, there is no limit on their number.

Courts do act more harshly against the vexatious than the frivolous because the former (often involving the legal system in repetitive and burdensome litigation) are being used as a weapon, sometimes as devices to harass or annoy and sometimes as a way of attempting to cause the other party to have to spend so much in legal fees that they will discontinue the case.  Each matter is dealt with on its merits but courts can impose sanctions on both litigants and counsel; it’s not unusual for litigants declared vexatious to be self-represented because no lawyer will agree to run the action.  Although there can be nuances, a case is frivolous if it has no reasonable chance of succeeding, and is vexatious if the court finds it would be unreasonable to ask the other party to defend the matter.  Lindsay Lohan went through a “serial litigant” phase and the makers of GTA were not the only plaintiffs to suggest she was running frivolous cases, the accusation usually that the legal proceedings were being commenced only to seek publicity:

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.

Lindsay Lohan v E-Trade Securities LLC, New York State Supreme Court, Nassau County, No. 004579/2010

In 2010, one of Lindsay Lohan’s more unusual forays into litigation was settled prior to reaching trial.  In the Supreme Court of New York, Ms Lohan had filed suit for US$100 million against online investment site E-Trade, in connection with their Super Bowl ad featuring a "milkaholic" baby girl named Lindsay.  The claim was based on the allegation the commercial was mocking her on the basis of some drug and alcohol related matters which had involved the police, saying the work additionally improperly invoked her “likeness, name, characterization, and personality” without permission, violating her right of privacy.  In the statement of claim, the actress sought US$50 million in compensatory damages and US$50 million in exemplary damages as well as demanding E-Trade cease and desist running the commercial and turn over all copies to her.  One interesting technical legal point raised was that Ms Lohan enjoyed the same “single-name” recognition as celebrities such as talk-show host Oprah (Winfrey) or the singer Madonna (Ciccone).

The E-Trade commercial had been broadcast during the Super Bowl on 7 February 2010 as part of a series built around the theme “babies who play the markets”, and attracted an audience of around 106 ½ million viewers in the US market, then a record number.  E-Trade filed a statement of defense in which it said the claims were “without merit”, and that Lindsay Lohan wasn’t the world's only Lindsay, noting Lindsay was in 2008 the 380th most popular name for new-born American girls, down somewhat from 241th in 2004 when Mean Girls was released.  Grey Group, the advertising agency which produced the commercial later added the “milkaholic Lindsay” was named after a member of its account team although this apparently wasn’t added to the statement of defense.  The plaintiffs did raise the matter of dismissal as frivolous but the judge said the matters raised were "potentially legally substantive" and allowed the case to proceed.  After some months, a settlement was reached between the parties, both sides bound by a non-disclosure agreement (NDA).

Pitbull (Armando Christian Pérez, b 1981).

Another of Lindsay Lohan's forays into litigation did however give a judge the opportunity to discuss the parameters a court works with when deciding whether an argument can be ruled "frivolous".  In 2011 she sued hip hop artist Pitbull over the lyrics in his song Give Me Everything, which included the line: So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.  Ms Lohan cited the lyric as a violation of her publicity and publicity rights which caused her emotional distress, claiming the lyrics “includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to her physical and mental character.”  The judge dismissed on technical grounds the claim made under New York Civil Rights law, adding that the First Amendment anyway affords full protection.  What was more interesting was the discussion of the argument the song was commercial rather than expressive in nature, the judge ruling that even if the work was created for the purpose of “making a profit”, that does not mean her name was “used for advertising or purposes of trade within the meaning of the New York law“ and that, on the facts of this case, even if that were proved, the “isolated nature of the use of her name” (just one line in the song) would “prove fatal” to the claims.  Putbull’s counsel indicated they wished to have the court sanction Ms Lohan for filing a frivolous lawsuit (an abuse of process) but the judge, noting the paucity of case law in this field, said the lack of precedent meant there was no clear indication the case would be doomed and the claim was therefore not so frivolous as to warrant the imposition of a sanction.  Lindsay Lohan thus remained free to litigate, which she did.

Coriaceous

Coriaceous (pronounced kawr-ee-ey-shuhs, kohr-ee-ey-shuhs or kor-ee-ey-shuhs)

(1) Of or resembling leather.

(2) In botany, a surface (usually a leaf) distinguished having the visual characteristics of leather.

1665-1675: from Late Latin coriāceus (resembling leather in texture, toughness etc), the construct being corium (skin, hide, leather (and also used casually to refer to belts, whips and other leather items, and upper layers (ie analogous with a skin or hide) in general such as crusts, coatings, peels or shells)), from the Proto-Italic korjom, from the primitive Indo-European sker & ker- + -aceous.  The suffix –aceous was from the New Latin, from the Classical Latin -aceus (of a certain kind) and related to the Latin adjectival suffixes –ac & -ax.  It was used (1) to create words meaning “of, relating to, resembling or containing the thing suffixed” and (2) in scientific classification, to indicate membership of a taxonomic family or other group.  The comparative is more coriaceous and the superlative most coriaceous.  Coriaceous & subcoriaceous are adjectives and coriaceousness is a noun.

Botanists classify coriaceous leaves by degree.  The common greenbrier (Smilax rotundifolia) (left) is listed as subcoriaceous (ie somewhat or almost coriaceous) while the Shining Fetterbush (Lyonia lucida) is distinguished by glossy coriaceous leaves with a prominent vein along margins (right).

In late 1967, as a prelude to the next year’s introduction of the XJ6, Jaguar rationalized its saloon car line-up, pruning the long-running Mark II range from three to two, dropping the 3.8 litre model and re-designating the smaller-engined pair (the 2.4 becoming the 240, the 3.4 the 340), thus bringing the nomenclature into line with the recently released 420.  The standardization exercise extended to the big Mark X which became the 420G but curiously the S-Type’s name wasn’t changed and it became the only Jaguar in which the 3.8 litre engine remained available as a regular production option, the E-Type (XKE) having earlier adopted the 4.2.  So the 240, 340, S-Type (3.4 & 3.8) and 420 (all based on the 1959 Mark 2 (itself a update of the 1955 2.4)) all remained in production, along with the Daimler 250 (the re-named 2.5 fitted with Daimler’s 2.5 litre V8) and to add a further quirk, a dozen 340s were built to special order with the 3.8 liter engine.  Production of all ceased in 1968 with the coming of the XJ6 except the big 420G (which lasted until 1970 although sales had for some time slowed to a trickle), the 240 (available until 1969 because Jaguar wasn’t until then able to offer the 2.8 liter option in the XJ6) and the Daimler 250 (which also ran until 1969 until the Daimler Sovereign (an XJ6 with a Daimler badge) entered the showrooms).

1967 Jaguar Mark 2 3.8 with leather trim (left) and a "de-contented" 1968 Jaguar 240 with the "slimline" bumpers, Ambla trim and optional  rimbellishers (right).

Given the new revised naming convention wasn’t carried over the XJ6 (rendering the 420G an alpha-numeric orphan for the last year of its existence), there’s since been speculation about whether the Jaguar management had a change of mind about how the XJ6 was to be labeled or the changes were just an attempt to stimulate interest in the rather dated Mark 2 and its derivatives.  That certainly worked though perhaps not quite as Jaguar intended because Mark 2 sales spiked in 1968 and the oldest models (240 & 340) handsomely outsold both the newer 420 and the by then moribund S-Type.  Probably the change in name had little to do with this and more significant was the price cutting which made the 240 & 340 suddenly seem like bargains, the 240 especially.  Dated they might have looked in the year the NSU Ro80 debuted, but they still had their charm and the new price drew in buyers whereas the 420 suffered because it was known the XJ6 would soon be available and expectations were high.

The renewed interest in the 240 was at least partly because Jaguar had finally devoted some attention to the breathing of its smallest engine, straight-port heads and revised SU carburetors increasing the power to the point where a genuine 100 mph (160 km/h) could be attained, something not possible since the lighter 2.4 (retrospectively known as the Mark 1) ended production in 1959.  The 100 mph thing was something the factory was quite sensitive about because in the 1950s (when it was still quite an achievement) it had been a selling point and for most of the Mark 2’s life, Jaguar were reluctant to make 2.4s available for testing.  The 240’s new performance solved that problem and it was the biggest seller of the revised range (4446 240s vs 2800 340s) although those who read the small print might have been disappointed to note the fuel consumption; both models weighed about the same but the small engine had to work much harder, the 340 barely more thirsty.

1962 Jaguar Mark 2 3.8 with leather trim (left) and 1968 Jaguar 240 with Ambla trim.  It was only when the optional leather trim was specified that the fold-down "picnic tables" were fitted in the front seat-backs. 

The real thing: Lindsay Lohan in leather (albeit with faux fur sleeves).

Still, with the 240 selling in 1968 for only £20 more than the what a 2.4 had cost in 1955, it was soon tagged “the best Jaguar bargain of all time” but that had been achieved with some cost-cutting, some of the trademark interior wood trim deleted, the fog and spot lamps replaced by a pair of chromed grilles, the hubcap design simplified and “slimline” bumpers fitted in place of the substantial units in place since 1959, this not only saving weight but a remarkable amount of the cost of production.  The revised cars were not as generously equipped as before (although some of the “de-contenting” had been introduced late in Mark 2 production) but a long option list remained and on it were some items once fitted as standard, the list including a choice of five radio installations with or without rear parcel shelf-mounted speaker, a laminated windscreen, chromium-plated wheel rimbellishers for steel wheels, Ace Turbo wheel trims for steel wheels, a tow bar, a locking petrol filler cap, front seat belts, the choice of radial, town and country, or whitewall tyres, automatic transmission, overdrive (for the manual transmission), wire wheels, fast ratio steering box, a fire extinguisher, Powr-Lok differential, rear window demister, heavy-duty anti-roll bar, close-ratio gearbox, tinted glass, a driver’s wing mirror, childproof rear door locks, an integrated ignition & starter switch (steering column), reclining front seats, power-assisted steering & leather upholstery.

It was the moving of the leather trim to the option list which is said to have made the greatest contribution to the price cuts.  The replacement fabric was Ambla, one of a class of coriaceous materials which have come variously to be referred to as faux leather, pleather, vegan leather, Naugahyde, synthetic leather, artificial leather, fake leather & ersatz leather.  First manufactured in the US, most production now is done in China as well as upholstery, the fabric is use for just about anything which has ever been made in leather including clothing, footwear, gloves, hats, belts, watch bands, cases, handbags, sports items, firearm holsters, luggage and a myriad besides.  It does appear that as early as the fifteenth century, the Chinese were experimenting with ways synthetic leather could be manufactured but it doesn’t appear anything was ever produced at scale and it was only when petroleum-based plastics became available in the US in the late nineteenth century that it became viable to mass produce a viable alternative to leather.  Historically, most of the products were petroleum-based but vegetable-based alternatives are now attracting much interest as attention has focused on the environmental impact of the traditional petro-chemical based approach.

1967 Mercedes-Benz 250 SE with MB-Tex trim (left) and 1971 Mercedes-Benz 300 SEL 6.3 with leather trim.

One of the best known coriaceous materials in the 1960s and 1970s was MB-Tex, a vinyl used by Mercedes-Benz which by far was the synthetic which most closely resembled genuine leather.  That was something made easier by the Germans using a process which resulted in slightly thicker tanned hide than those from Italy, Spain or England and this meant that replicating the appearance was more easily attained.  What most distinguished MB-Tex however was the durability and longevity.  Unlike leather which demanded some care and attention to avoid wear and cracking, it wasn’t uncommon for 20 or 30 year old MB-Tex to look essentially as it did when new and many who sat in them for years may have assumed it really was leather.  It certainly took an expert eye to tell the difference although in a showroom, moving from one to another, although the visual perception might be much the same, the olfactory senses would quickly know which was which because nothing compares with the fragrance of a leather-trimmed interior.  For some, that seduction was enough to persuade although those who understood the attraction of the close to indestructible MB-Tex, there were aerosol cans of “leather smell”, each application said to last several weeks.

For the incomparable aroma of leather.

The factory continued to develop MB-Tex, another of its attractions being that unlike leather, it could be produced in just about any color although, now colors (except black, white and shades of grey) have more or less disappeared from interior schemes, that functionality is not the advantage it once was.  As a fabric though, it reached the point where Mercedes-Benz dropped the other choices and eventually offered only leather or a variety of flavors of MB-Tex.  That disappointed some who remembered the velour and corduroy fittings especially popular in the colder parts of Europe but the factory insisted MB-Tex was superior in every way.  Also lamented were the exquisite (though rarely ordered) mohair interiors available for the 600 Grosser (W100, 1963-1981).  Apparently, the factory would trim a 600 in MB-Tex upon request but nobody ever was that post modern and most buyers preferred the leather, however coriaceous might have been the alternative.