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.

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).  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's Commentaries on the Laws of England (1765–1769).

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.  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 in London sundered for commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts.

Usually, it’s the more serious cases which proceed to the highest courts of appeal but the US Supreme Court 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.

Grand

Grand (pronounced grand)

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

(2) Stately, majestic, or dignified.

(3) Highly ambitious or idealistic.

(4) Magnificent or splendid.

(5) Noble or revered.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Grand Jury

Donald Trump in Manhattan Criminal Court, April 2022.

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

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

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

The “Grand Mercedes”: The Grosser tradition

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

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

Grand, Grand Prix & Grand Luxe

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

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

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

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

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

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

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

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

Ersatz

Ersatz (pronounced er-zahts or er-sahts)

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

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

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

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

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

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

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

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

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

Schematic of Ersatz Yorck's armor deployment.

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

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

Molyneux

Molyneux (pronounced mol-un-ewe)

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

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

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

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

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

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

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

The Molineux Rule in the the adversarial system 

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

Harvey Weinstein and others.

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

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

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

Leverage

Leverage (pronounced lev-rij, lev-er-ij or lee-ver-ij)

(1) The action of a lever, a rigid bar that pivots about one point and that is used to move an object at a second point by a force applied at a third.

(2) The mechanical advantage or power gained by using a lever.  A force compounded by means of a lever rotating around a pivot.

(3) The power or ability to act or to influence people, events, decisions etc, based on position, personality, reputation etc (an applied to both institutions & individuals); sway.

(4) In finance, the use of a small initial investment, credit, or borrowed funds to gain a very high return in relation to one's investment, to control a much larger investment, or to reduce one's own liability for any loss (in some places known also as “gearing” and often used to express the “debt to equity” ratio).

(5) To use (a quality or advantage) to obtain a desired effect or result:

(6) To provide with leverage.

(7) To invest or arrange (invested funds) using leverage.

(8) To exert power or influence on:

1724: The construct was lever + -age.  Lever (a rigid piece which is capable of turning about one point, or axis (the fulcrum), and in which are two or more other points where forces are applied (used for transmitting and modifying force and motion)) was from the Middle English lever, levore & levour, from the Old French leveor & leveur (a lifter, lever (also Old French and French levier)), from the Latin levātor (a lifter), from levō (to raise).  The suffix -age was from the Middle English -age, from the Old French -age, from the Latin -āticum.  Cognates include the French -age, the Italian -aggio, the Portuguese -agem, the Spanish -aje & Romanian -aj.  It was used to form nouns (1) with the sense of collection or appurtenance, (2) indicating a process, action, or a result, (3) of a state or relationship, (4) indicating a place, (5) indicating a charge, toll, or fee, (6) indicating a rate & (7) of a unit of measure.  Leverage is a noun & verb, leverage is a noun, leveraged & leveraging are verbs and leverageable is an adjective; the noun plural is leverages.

The original meaning was to describe the action of a lever, the meaning “the power or force of a lever” emerging in 1827 while the figurative sense of an “advantage for accomplishing a purpose” dates from 1858.  The use in financial matters seems first to have appeared in writing in 1933 and was a creation of US English, in use as a verb by at least 1956.  The synonyms and related terms when describing the physics of the mechanical effect include mechanical advantage, strength, multiplier effect & force multiplier; in the figurative sense the usual alternatives are clout, influence & pull.  In the world of limited liability companies, leveraged financial arrangements (such as the “leveraged buyout”) are so common that when the mechanism is not used, the adjectives non-leveraged & unleveraged often appear.  The word is so embedded in the slang of those in business where leveraged transactions are common that as a transitive verb, it’s commonly used generally to suggest “to use; to exploit; to manipulate in order to take full advantage of someone or something.  The word has also entered the language of international relations (though used more often by commentators than diplomats) to describe what is known casually as “hostage diplomacy”.  The taking of hostages for ransom or some other purpose is not new and has probably been practiced since human societies first interacted and many cases over the centuries have been documented but historically, the tactic was once blatantly admitted, the gangsterism unconcealed.  Now, states which use hostages for leverage usually gloss things with the pretence of legality, the hostage convicted of something and given a sentence disproportionately long and while none seem yet to have been sufficiently cynical to have used a charge of "unspecified offences" that may yet happen.  The leverage sought tends to be political (the release of prisoners held by the hostage’s country of origin or some other concession) and the expert practitioners are the usual suspects: the DPRK (Democratic People’s Republic of Korea (North Korea)), the PRC (People’s Republic of China) and the Russian Federation.

Lever porn: 1972 Mercedes-Benz Unimog w1416.  The multiple levers were required because of the many drive and gearing combinations available.  In vehicles of this type, this may be close to peak-lever because it's become common to use electronic controls for activation but the attraction of mechanical levers is their robust reliability.  For those who remember the way things used to be done, the tactility is also compelling.

The surname Lever is English and of Norman origin; it was a nickname for a fleet-footed or timid person, from the Old French levre (hare), from the Latin lepus (genitive leporis) although it’s not impossible that at least in some instances, it was a metonymic occupational name for a hunter or trapper of hares.  In some regions it may also have been a topographic name for someone who lived in a place thickly grown with rushes, the link the Old English lǣfer (rush, reed, iris).  Great & Little Lever in Greater Manchester are (collectively) named with this word and if there was a habitational origin to any names it would have come from such placed.  Although rare in Germany, where Lever exists it is a descendent of the medieval personal names Lever (a variant of Liever and Levert, a variant of Lievert.  In Slovenia, it’s an altered form of Levar.

Leverage began its life meaning “to use a lever or some similar tool to gain a mechanical advantage, typically in the context of lifting or moving heavy objects”, the idea generally thus one of “effective force multiplication”.  From here it came variously to be used figuratively, notably sine the 1930s in structured financial transactions.  Financial Leverage is the use of various financial instruments or borrowed capital to increase the potential return of an investment, the attraction the magnification of profit; the risk in increase in potential losses.  Social leverage is not new but it’s assumed a new significance in the age of social media because the proliferation of access afforded by the platforms has removed the “gatekeeper” role the legacy media once fulfilled and a presence, once established in one context can be leveraged into a position in other, lucrative fields.  Fame itself seemed to be enough: Lindsay Lohan’s forays into music and fashion might seem related to her career in film but wouldn’t appear obviously to be linked with her more recent activities promoting cryptocurrency.  That doesn’t matter because notoriety (for better or worse) is enough; her choice of a certain dress to wear to one of her many court appearances saw the garment sell-out within hours.  Nor is this multi-directional leverage a creature only of pop culture, a number of Nobel laureates wryly observing that having won the prize for their accomplishments is a certain branch of science, they end up on the “commentator lists” of media organizations and are asked for their thoughts on things hardly related to their field.

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)

It’s of course routine for leverage to be weaponized but sometimes, there’s the suggestion the leverage of others can be appropriated and misused, the essence of many an ambush marketing campaign.  Lindsay Lohan in 2014 sued a software house, alleging one of the characters in the game Grand Theft Auto V (GTA5) was based on a likeness of her and thus an invasion of her privacy: “an attempt to leverage her public profile to boost sales of the latest instalment of the series”.  The game’s producers responded, labelling the suit a “publicity stunt” and in private discussions they may also have called it a cunning one.  It took an unremarkable four years from filing for the case to reach New York’s highest appellate court where it was dismissed, six judges of the Court of Appeals finding the “actress/singer” in GTA5 merely resembled a “generic young woman” rather than anyone specific.  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” the judgment read.  Ms Lohan’s lawyers did not seek leave to appeal.

Arch

Arch (pronounced ahrch)

(1) In architecture, a curved masonry construction for spanning an opening, consisting of a number of wedge-like stones, bricks, or the like, set with the narrower side toward the opening in such a way that forces on the arch are transmitted as vertical or oblique stresses on either side of the opening.

(2) In architecture, an upwardly curved construction, as of steel or timber functioning in the manner of a masonry arch.

(3) A doorway, gateway etc, having a curved head; an archway or the curved head of an opening, as a doorway.

(4) Any overhead curvature resembling an arch.

(5) Something bowed or curved; any bowlike part.

(6) In anatomy, any of various parts or structures of the body having a curved or arch-like outline, such as the transverse portion of the aorta (arch of the aorta) or the raised bony vault formed by the tarsal and metatarsal bones (arch of the foot),

(7) In cobbling, a device inserted in or built into shoes for supporting the arch of the foot.

(8) A dam construction having the form of a barrel vault running vertically with its convex face toward the impounded water.

(9) In glassmaking, a chamber or opening in a glassmaking furnace.

(10) Cunning, crafty or sly.

(11) Playfully roguish or mischievous.

(12) A preeminent person, a chief (largely obsolete except for technical use in ecclesiastical or other hierarchies, (Archdeacon, Archbishop, Archangel, Archduke, monarch, matriarch et al).

(13) One of the basic patterns of the human fingerprint, formed by several curved ridges one above the other.

1250-1300: From the Middle English arch, from the Old English arce, ærce & erce, from the Old French arche, from the Vulgar Latin arca, feminine variant of Latin arcus (arc, a bow), from the Classical Latin atchi, from the Ancient Greek arkhi (to rule).  From the Latin, other European languages similarly borrowed including the Old Norse erki, the Dutch aarts, the Middle Low German erse, the Middle High German & German erz and the Gothic ark.  Archangel was universally borrowed unchanged from the Greek.  Arch was added to many words borrowed from Latin and Greek in the Old English period; it subsequently became a productive form added to nouns of any origin, which thus denote individuals or institutions directing or having authority over others of their class (archbishop; archdiocese; archpriest, archdeacon). More recently, arch, has developed the senses “principal” (archenemy; archrival) or “prototypical” and thus exemplary or extreme (archconservative); nouns so formed are almost always pejorative (archvillain).

Some variations of the arch.

The original meaning, used in architecture of building, bridges and other structures, was by the early fifteenth century applied to eyebrows and anything having this form.  The sense of "chief, principal" used first in the twelfth century as archangel became extended to so many derogatory uses that by mid-seventeenth century, it acquired a meaning of "roguish, mischievous" although over time that softened, by the nineteenth century generally understood to mean something like "saucy".  The verb arch emerged in the early fourteenth century in the sense of "to form an arch" (which had be implied in the earlier arched) and within a hundred years there was the transitive sense "furnish with an arch".  Arch is a noun, verb & adjective, arched is an adjective, arching is a verb, noun & adjective and archly is an adverb; the noun plural is arches.

The Court of Arches

Church of St Mary-le-Bow (bow the archaic name for arch), London, a Church of England parish church in the City of London.

Churches have existed on the site since 1080, the present building designed by Sir Christopher Wren (1632-1723) and built over a decade, finally completed in 1680.  The tower has for centuries been noted for its bells which are the source of the legend of Dick Whittington calling him in 1392 back to London where he would sit as lord mayor.  In London tradition, to be thought a true Cockney, one had to be born within earshot of the bells so the demographics of that race were interrupted for two decades, the damage inflicted in 1941 by the Luftwaffe so severe it would not be until 1961 the bells again rang.

A record from the Court of Arches Act books, first session of Trinity Term, 22 May 1665 (Arches A 4, f.115v)

The Court of Arches is the provincial court for Canterbury.  Having both appellate and original jurisdiction, it is presided over by the Dean of the Arches, who is styled "The Right Honourable and Right Worshipful the Official Principal and Dean of the Arches".  The dean must be a barrister of ten years' High Court standing or the holder or former holder of high judicial office, the appointment made jointly by the Archbishops of Canterbury and York.  Although it has sat in other places, the court’s permanent seat is the Church of St Mary-le-Bow, the arches of which lend the court its name.  Technically, the proper jurisdiction of the court is limited to the thirteen parishes belonging to the archbishop in London but, as the office of Dean is united with that of Principal Official, the dean receives and determines appeals from the sentences of all lesser ecclesiastical courts within the province.  Many original suits are also heard, where lesser courts waive jurisdiction by letters of request.  The original jurisdiction formerly exercised by a separate provincial court, known as the Court of Audience, was long ago abolished.

Lindsay Lohan under a colonnade arch, Miami, Florida, 2013.

The official principal of the Arches court is now the only ecclesiastical judge empowered to pass a sentence of deprivation against a clerk in holy orders.  The appeals from the decisions of the Arches court were once made directly to the sovereign but are now heard by the judicial committee of the Privy Council except on matters of doctrine, ritual or ceremony, which go to the Court for Ecclesiastical Causes Reserved.  Charmingly, the Ecclesiastical Jurisdiction Act 1532, dating from the reign of Henry VIII (1491–1547; King of England 1509-1547) remains one of the statutes empowering the court’s original jurisdiction though since the Matrimonial Causes Act 1857, it no longer hears appeals from the consistory courts of the bishops in all testamentary and matrimonial causes.

Mandamus

Mandamus (pronounced man-dey-muhs)

At common law, an order of a superior court or officer commanding (an inferior tribunal, public official, or organ of the state) a specific thing be done.  Formerly a writ, now issued as an order.

1530-1535:  From Middle English, a borrowing from the late fourteenth century Anglo-French, from the Latin mandāmus (we order (which were printed as the opening words of a writ of mandamus), first person plural present indicative of mandāre (to order).

Some writs

A mandamus was a writ compelling a court or government official correctly to perform that which the law required; for technical reasons it’s now issued as an order rather than a writ.  It’s one of a number of procedures called the prerogative writs, an evolutionary fork of the common law which ensured courts could compel governments to adhere to the law.  These devices constitute the means by which the rule of law is maintained and, because of the intent, a mandamus must follow black-letter law.  If a law says a minister must review something, the court can force only the review and cannot instruct what the finding should be.  The use is now generally limited to cases of complaint someone having an interest in the performance of a public duty, when effectual relief against its neglect cannot be had in the course of an ordinary action.

There are other mechanisms in this class.  The subpoena duces tecum (order for production of evidence) is a summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.  It’s similar to the subpoena ad testificandum (summoning a witness orally to testify) but differs in that it requires the production of physical evidence.  The literal translation was "under threat of punishment, you will bring it with you", the construct being sub (under) + poena (penalty) + duces (you will bring) + te (you) + cum (with).  Habeas corpus in the Medieval Latin meant literally "that you have the body".  It provides recourse in law by which a person can report an unlawful detention to a court and request the court order those holding the person to bring the prisoner before a court so it might decide whether the imprisonment is lawful; it is best understood in modern use as "bring us the body".  The quo warranto, which in Medieval Latin was literally "by what warrant?" required a person to show the court by what authority they have for exercising some right, power, or franchise they claim to hold.  A prohibito (literally "prohibited") directed the stopping of something the law prohibits.  A procedendo, from Medieval Latin in the sense of the meanings “proceed; prosecute”, was a writ sending a case from an appellate court to a lower court with an order to proceed to judgment and was also the writ by which the suspended commission of a justice of the peace was revived.  A writ of certiorari was a request for judicial review of the findings or conduct of an inferior court, tribunal, or other public authority ands in its pure form it existed by right, not by leave of the court.  The Medieval Latin was certiorārī (volumus), a literal “we wish to be informed".  Certiorari is the present passive infinitive of the Latin verbs certioro, certiorare (to inform, apprise, show).

William Marbury (left) & James Madison (right).  Marbury's former house in Georgetown, Washington DC is now the Ukrainian Embassy to the United States.

Marbury v Madison (5 U.S. (1 Cranch) 137 (1803)) was the US Supreme Court case which established the principle of judicial review in the United States, the consequence being US courts have the power to strike down laws they find to violate the US Constitution; it’s thus regarded as the single most important decision in US constitutional law, establishing that the constitution, although a foundation political document, is also actual law and thus the country’s basic law.  It was this decision which made possible the enforcement of the separation of powers between the federal government’s executive and judicial branches.

The case had an unlikely origin in a political squabble which sounds remarkably modern.  John Adams (1735–1826; US president 1797-1801) had lost the election of 1800 to Thomas Jefferson (1743–1826; US president 1801-1809) and in March 1801, two days before his term ended, Adams appointed several dozen Federalist Party supporters to judicial offices, intending to sabotage the Democratic-Republican Party’s incoming administration.  A compliant Senate confirmed the appointments with a haste which would seem now extraordinary but the outgoing Secretary of State John Marshall (1755–1835; US secretary of state 1800-1801 & chief justice 1801-1835) did not deliver all of the papers of commission before Jefferson's inauguration, thus encouraging the new president to declare them void.  One undelivered commission was that of William Marbury (1762–1835) and in late 1801, after Madison had more than once declined to deliver his commission, Marbury filed suit in the Supreme Court requesting the issue of a writ of mandamus, requiring Madison to deliver the papers.

The court’s judgement was handed down by John Marshall, now the chief justice.  The court held that (1) the president’s refusal to deliver the commission was illegal and (2) in those circumstances a competent court would order the official in question to deliver the commission.  However, despite the facts of Marbury v Madison, no writ of mandamus was issue, the rationale being that upon examining the law with which Congress had granted the Supreme Court jurisdiction in such matters, the legislature had expanded the definition of its jurisdiction beyond that which was specified in the constitution.  The Court then struck down that section of the law, announcing that American courts have the power to invalidate laws they find violate the Constitution.  The finding in Marbury v Madison was the origin of judicial review in the US.

Forrest-Marbury House, 3350 M Street NW, Georgetown, Washington DC, once the home of William Marbury.  It was in this house on 29 March 1791 that George Washington (1732–1799; president of the US 1789-1797) negotiated the real-estate deal for the land that would become Washington DC.  Since 1992, it has been the chancery of the Embassy of Ukraine.