Privity

Privity (pronounced priv-i-tee)

(1) Private or secret knowledge.

(2) Participation in the knowledge of something private or secret, especially as implying concurrence or consent.

(3) Privacy or secrecy (obsolete).

(4) In medieval theology, a divine mystery; something known only to God, or revealed only in the Holy Scriptures (obsolete).

(5) The genitals (archaic, and only in the plural).

(6) In law, a relationship between parties seen as being a result of their mutual interest or participation in a given transaction, usually in contract.

(7) The fact of being privy to something; knowledge, compliance (now rare).

1175–1225: From the Anglo-Norman priveté & privitee and the Middle English privete & private, from the Old French priveté, privité & priveté (privacy; a secret, private matter), the construct being privé (from the Late Latin privus (set apart, belonging to oneself)) + -té (from the Middle French -té, from the Old French -té, from the Latin -itātem or -tātem, accusative singular of -tās, ultimately from the primitive Indo-European -tehts; the suffix was used to form nouns, often denoting a quality or a property).  The ultimate source was the Classical Latin privātus (perfect passive participle of prīvō (I bereave, deprive; I free, release).  Privity is a noun; the noun plural is privities.

Between the twelfth & sixteenth centuries a privity was “a divine mystery; something known only to God, or revealed only in the Holy Scriptures and by the late 1200s this meaning had leaked into a general sense of “privacy; secrecy”, used between the fourteenth & seventeenth centuries to refer to “a private matter, a secret”.  The use to describe the genitals (presumably influenced in some way by “private parts” or “the private”) as “the privities” is attested from the late fourteen century and didn’t wholly fade from use until the early nineteenth although use had by then long declined to a northern English, Irish & Scottish regionalism.  The word was used from the 1520s as a technical term in the laws regulating feudal land tenure and other fields of law picked it up in the general sense of “a relationship between parties seen as being a result of their mutual interest or participation in a given transaction”; it was in contract law this would assume it’s important meaning as “privity of contract” (describing the special status of the parties to a contract (as legally defined), something which would for centuries be of critical importance and still in use today.  Less precise was the sixteenth century sense of “the fact of being privy to something; knowledge, compliance” and while there are better ways of saying it, such use is not yet extinct.

Privity of contract, Donoghue v Stevenson and the snail.

The classic case (drummed for almost a century into law students) in the demolition of the sense of the absolute in privity of contract was Donoghue v Stevenson ([1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139), finally decided before the House of Lords.  It was the case which more than any other established the foundation of the doctrine of product liability, refined the concept of negligence (transforming tort law) and remains a core part of the framework for the principles of “duty of care” which substantially it expanded.

The extraordinary case began with events which transpired in the modest settings of the Wellmeadow Café in Paisle, Scotland, Mrs Donoghue’s friend on 26 August 1928 buying her a ginger-beer, served in a bottle made from a dark, opaque glass.  After she’d consumed about half, the remainder was poured into a tumbler at which point the partially decomposed remains of a snail floated out, inducing an alleged shock and severe gastro-enteritis.  Because Mrs Stevenson was not a party to the contractual purchase of the ginger beer, she was unable to claim through breach of warranty of a contract: she was not party to any contract because, at law, she received the drink as a gift.  Accordingly, she issued proceedings against Stevenson (the manufacturer) and, after some four years in the lower courts, the matter ended up before the House of Lords, then the UK’s highest appellate court.

All were aware it was an important case.  The lower courts, bound by precedent, had been compelled to find the absence of privity of contract doomed the suit but the issue of product liability in the modern era of consumers interacting usually not directly with the producer of goods but their agents or retailers had for some time been discussed as an area of law in which reform was required.  What the Law Lords had to decide was whether the manufacturer owed Mrs Donoghue a duty of care in the absence of contractual relations contrary to established case law.  The important point was not if she was owed compensation for damages suffered but if a cause of action existed.

Previously, as a general principle, manufacturers owed no duty of care to consumers except if (1) the product was inherently dangerous and no warning of this sate was provided and (2) the manufacturer was aware that the product was dangerous because of a defect and this had been concealed from the consumer.  The Lords found for Mrs Donoghue although in a cautious judgement which could be read as offering little scope for others except the specific matter of ginger beer in opaque bottles containing the decomposed remains of a dead snail when sold to a Scottish widow.  However, the mood for reform was in the legal air and the judgment established (1) negligence is distinct and separate in tort, (2) there need not be privity of contract for a duty of care to be established and (3) manufacturers owe a duty to the consumers who they intend to use their products.

In the leading judgment, Lord Atkin (James Richard Atkin, 1867–1944; lord of appeal in ordinary 1928-1944) wrote, inter alia, what was at that time the widest definition of the “neighbour principle”: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”  On this basis, if no other, the Lords held Mrs Donoghue’s action had succeeded and she had a cause of action in law, the culmination of a growing appreciation by the courts that the law needed to evolve to reflect the patterns of modern commerce.  Some years before Donoghue v Stevenson had been decided, another judge had observed “…it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether from contract, there exists a relationship of duty as between the maker and the consumer…”

Once, if someone bought two bottles of ginger beer and gave one to a friend, were both to be injured by decomposing snails within, only the consumer who handed over the cash could have recovered damages because they alone enjoyed a privity of contract.  Since Donoghue v Stevenson, both can in court seek remedy in tort on the basis of “product liability”, a manufacturer’s duty of care held to extend to all consumers of their products.

Being the common law, what was effectively a new doctrine (and one, as the term “neighbour principle” suggests, rooted in Christian morality) it was also a general principle and thus a foundation on which the building blocks of subsequent judgments would sit; it could not be treated, in the words of Lord Reid (James Scott Cumberland Reid, 1890–1975, lord of appeal in ordinary 1948-1975): “…as if it were a statutory definition. It will require qualification in new circumstances.”  The courts in the years after 1932 had ample opportunity to refine things and this included the development of the modern tests in tort for the “foreseeability of damage” and “proximity” to which was later appended the surprisingly recent “fairness”, something which came to be regarded as within the rubric of public policy, all able to work in conjunction and as one judge noted, the distinctions between them were “…somewhat porous but they are probably none the worse for that.”  From Donoghue v Stevenson has evolved the modern notion of product liability and it would now to many seem strange there was in living memory a time when a manufacturer could escape liability for selling defective goods simply on the basis the injured party wasn’t the purchaser.  One curious quirk of Donoghue v Stevenson remains that the facts were not tested so it will never be known if the most important character in the case (the decomposing snail) ever existed.

Palliate

Palliate (pronounced pal-ee-yet)

(1) To relieve or lessen (pain, disease etc) without curing or removing; to mitigate; to alleviate.

(2) To attempt to mitigate or conceal the gravity of (conduct (especially as of offenses)) by excuses, reasons, apologies etc; to extenuate.

(3) To cause an offence to seem less serious; some act of concealment.

1490s: From the Late Latin palliāre (to cover up), from palliātus (cloaked, covered), (in Late Latin the past participle of palliare (to cover with a cloak)), from palliāre (to cover up) or pallium (cloak).  Palliate is a verb & adjective, palliation, palliator & pallium are nouns, palliative is a noun & adjective, unpalliated is an adjective, palliated & palliating are verbs and palliatively is an adverb; the common noun plural is palliatives.

Palliate is one of those words in English which has become mostly overwhelmed by the associative meaning of a derived form. Palliative medicine (or palliative care) is a branch of medicine which focuses on those terminally ill (usually with months, at the most, to live) by providing pain relief and attempting to allowing the dying to enjoy the best possible quality of life.  The alternative industry is that of voluntary euthanasia (the so-called right-to-die movement) which is now permitted and regulated by legislation in many jurisdictions.  Palliative medicine gained the name from the idea of the use of “palliatives”, drugs which provide pain relief for those for whom there is no possibility of a cure.  In that sense, the treatment regime “cloaks rather than cures” and expectations are limited to concealment of the consequences of the condition.  Although such practices (along with euthanasia, voluntary and not) had been part of medical practice for centuries, it was in the 1960s it came to be recognized as a discipline and a structural part of (or adjunct to depending on the jurisdiction) the hospital industry, and there are both academic courses in the subject and peer-reviewed journals such as the European Association for Palliative Care’s (EAPC) Palliative Medicine, published since 1987.  Although On Death and Dying (1969) by Swiss-American psychiatrist Elisabeth Kübler-Ross (1926–2004) is sometimes cited as the intellectual impetus for emergence, it happened really because of the mid-century advances in hygiene, nutrition, pharmaceuticals & surgical techniques and the extension of medical services in the welfare states which extended life-spans but not necessarily wellness, thus the increasing population of those terminally ill and in need of care.  The ability to prolong life (sometimes for decades) of someone in a debilitated condition, combined with the social changes which had seen the decline in numbers of extended family living arrangements, meant a substantially public-funded industry needed to evolve.

Cloaked for the occasion: Lindsay Lohan in appropriate Grim Reaper mode, fulfilling a court-mandated community service order at LA County Morgue, October 2011.

That has meant the word has faded from some of its historic uses.  In law, it used to be part of the language of courtrooms, defense counsel attempting to palliate the conduct of their client in the hop the just or jury would view the alleged act less harshly and deliver a verdict less severe.  That sense came into use in seventeenth century England and in courtrooms it described attempts to cover or disguise the seriousness of an offence by reasons (fanciful & not), excuses (plausible & not) or apologies (sincere & not).  In legal use, palliate has been replace by mitigation (a plea assembling reasons why conduct should be regarded more favourably than it may appear and be thus awarded with a lesser sentence), from the Middle French mitigation, from the Latin mitigation from mītigātus (softened, pacified).  The companion term is exculpation which etymologically and legally is unrelated both to palliate & mitigate.  Exculpate was from the Medieval Latin exculpātus, the perfect passive participle of exculpō, from the Latin ex culpa, the construct being ex- (out, from) + culpa (fault; blame (and familiar in Modern English as “culpability”)).  Whereas a plea of palliation or in mitigation was entered in the context of asking certain matters be considered so a guilty party may receive a lesser punishment, an successful exculpation exonerates the accused.  The lawyers in the 1630s picked-up and adapted palliate’s earlier meaning.  In the fifteenth century, true to the Latin origin derived from “a cloak”, it was used to mean “to relieve the symptoms of; to ameliorate” the sense (concealing the symptoms) to which palliative medicine would in the 1960s return.  This use was extended by the mid-1500s to become a general way to “conceal, hide or disguise” and was used widely in fields such as tailoring, architecture, landscaping, interior decorating and anywhere else where techniques of illusion were valued.

Many of the artistic depictions of scenes from Antiquity are probably at least misleading (no epoch has ever been so idealized) but one aspect of the fashions seems usually faithfully to have reflected what really was: the garb of the physicians, philosophers and teachers which was a woollen cloak, draped over the left shoulder and wrapped around the body; the Romans called it a pallium and it was the stage garment also of the hetaerae (plural of hetaera (in Ancient Greece, a high-price escort of some beauty & culture who entertained upper-class men with company, conversation and other services; they're sometimes referred to as courtesans but this can be misleading and a more accurate modern comparison is probably with the business model of the “sugar-babe”)).

Appreciative audience: Phryne revealed before the Areopagus (1861), oil on canvas by Jean-Léon Gérôme (1824-1904), Hamburger Kunsthalle, Hamburg.

The painting depicts Phryne (circa 371-320 BC), a legendarily beautiful hetaera of Ancient Greece, on trial before the Areopagus (from the Ancient Greek Ἄρειος Πάγος (Áreios Págos (literally “Rock of Ares”)) which during some periods in classical times functioned as the final appellate court (both civil & criminal matters) in Athens.  As a deliberative body, the Areopagus (it picked up the name from the location where the sittings were conducted) may also at times have been a legislative (or at least an advisory) assembly something like a senate.  The comparison with the UK's House of Lords in its historic role as both the (upper) house of review is sometimes made because of the dual function as both a legislative body and a final court of appeal but the history of the role of the Aeropagus in law-making is sketchy and as a judicial organ it seems also to have sat as a whole, never restricting (as the Lords eventually did) the judicial hearings to committees of those with appropriate legal experience.

Defended (and by dubious legend not very well) by the speech-writer Hypereides (circa 390–322 BC), she was arraigned before the Areopagus on a charge of Asebeia (a criminal indictment alleging impiety, something like blasphemy towards the divine objects and perhaps an occupation risk in her profession and the charge appears to have been brought by a jilted and vengeful ex) and the most told tale of the trial is that acquittal was secured when she bared her breasts to those assembled to judge.  Depending on which imaginative medieval scribe was writing, either her counsel pulled the pallium from her body or she disrobed herself although all agree the unusual legal tactic was resorted to because the defence was going not well.  The famous legal critique of the Roman writer Marcus Fabius Quintilianus (circa 35-circa 100), the verdict was secured “non Hyperidis actione... sed conspectus corporis” (not by Hypereides' pleading, but by the sight of her body") and as a gesture it wasn’t unknown in Athenian culture.  Although the trial and acquittal (by a majority vote) are uncontested history, whether the “boobs offered in mitigation” ever happened is at least suspect but if true, it’s not surprising the venerable gentlemen judging her were impressed because she also modelled her nude form for the sculptor Praxiteles who based his Aphrodite of Knidos on those sessions.  In the late eighteen century, something of a Phryne cult formed among European artists although what is history and what myth in the stories of her illustrious career is mostly uncertain although there’s no doubt she’d often have worn a pallium.

Life Roots Palliate Cream 30ml Twin Pack.

Containing bilberry, witch hazel, mangosteen, sage, rosemary, calendula, rose flower, sea buckthorn, lemon grass, grapefruit, nettle & Iceland moss, Life Roots' Palliate Cream is advertized as an agent to (1) moisturize, (2) reduce inflammation & (3) protect against dryness.  This would suggest the product is thought something which genuinely improves the state of the skin, rather than just “papering over the cracks” (as some skin-care products unashamedly are).  The phrase “to paper over the cracks” is a particular sense of palliation meaning “to use a temporary expedient; to create the semblance of order or agreement; temporarily to conceal problems”.  The phrase (in English translation) is attributed to the Prussian statesman Otto von Bismarck (1815-1989; Chancellor of the German Empire 1871-1890) who used the equivalent German expression in a letter dated 14 August 1865 during the negotiations of the Convention of Gastein (1865), a treaty between Austria and Prussia which temporarily would postpone the onset of the Austro-Prussian War (1866) and can thus be thought a prelude to the wars and the subsequent system of intricately interlocked treaties which would be the framework of the Bismarckian form of Reichism: “We are working eagerly to preserve the peace and to cover the cracks in the building.”  Under Bismarck, the stresses inherent in the structure were contained but in the hands of hiss less able successors, the forces became unleashed and consumed the continent ending the rule of four dynastic empires.  Still, “papering over the cracks” remains often the way politics is done, usually the way coalitions are formed and of late, a new flavor of the technique has emerged: Benjamin Netanyahu (b 1949; Israeli prime minister 1996-1999, 2009-2021 and since 2022) doesn’t care if people see the cracks through the paper.

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.

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.

Concur

Concur (pronounced kuhn-kur)

(1) To accord in opinion; to agree.

(2) To cooperate; work together; combine; be associated.

(3) To coincide; occur at the same time.

(4) To run or come together; converge (obsolete).

1375–1425: From the late Middle English concur (collide, clash in hostility), from the Latin concurrere (to run together, assemble hurriedly; clash, fight), in transferred use “to happen at the same time", the construct being con (the Latin prefix variation of cum (with; together)) + currere (to run).  The early meaning in English was "collide, clash in hostility," the sense of "to happen at the same time" didn’t emerge until the 1590s; that of "to agree in opinion" a decade earlier.  Ultimate root was the Proto-Italic korzō, derived from the primitive Indo-European ḱers (to run).  Related forms are the adverb concurringly and the adjectives concurring and concurrent.  Despite the rarity, the verbs preconcur, preconcurred & preconcurring, and the adjectives unconcurred & unconcurring are said to exist, at least to the extent no dictionary appears yet to have declared them obsolete or archaic.  The adjective concurrent is noted from the late fourteenth century though concurring is said (surprisingly) not to have been in use until the 1630s.  The first concurring opinion was recorded in 1720.  The sense "to coincide, happen at the same time" is from 1590s; that of "to agree in opinion" dates in English from the 1580s

In praise of the Privy Council

Concurrent is probably the most common adjectival form in general use.  Noted since the late 1300s, in the sense of “acting in conjunction, contributing to the same effect or event", it was from the Old French concurrent or directly from Latin concurrentem (nominative concurrens), present participle of concurrere.  The meaning "combined, joint" is from 1530s and in law, concurrent jurisdiction (that possessed equally by two courts and if exercised by one not usually assumed by the other) is recorded from 1767.

Lindsay Lohan and her lawyer in court, Los Angeles, December 2011.

Concur is one of many synonyms for “agree” and the one most favoured by judges on appellant courts to indicate they agree with (or at least acquiesce to) a judgment written by another.  That’s good because it means there’s less to have to read.  However, some judges prefer to pen their own judgments, helpful perhaps if they wish to explore some aspect of the case not elsewhere mentioned but otherwise a duplication of effort unless their prose serves to render readable what can be turgid stuff.  Then there are the dissenting judgments, of interest to academic lawyers and historians and sometimes a source of hope to those entertaining thoughts of an appeal.  That notwithstanding, those wishing just to know the state of law with certainty might long for a system in which appellate courts of appeal issued only the majority judgment with the dissenters encouraged to submit essays or letters to the editors of legal journals.

Etching of a sitting of a Judicial Committee of the Privy Council (1846).

That only one judgment was issued was the most appealing procedural aspect of the Privy Council, until 1968 and 1986 respectively, the highest court of appeal for Australian state and Commonwealth jurisdictions.  Properly styled The Judicial Committee of the Privy Council (JCPC), the Privy Council remains the ultimate court of appeal for some British Overseas Territories and Commonwealth countries.  Although the Privy Council’s decisions are mostly not binding on the UK’s domestic courts, the rulings are held to be extremely persuasive as other respected tribunals (US Supreme Court, Supreme Court of Canada et al) are regarded.  One quirk of the Australian Constitution is that, the 1986 Australia Acts notwithstanding, the High Court can issue a certificate referring certain cases to the council but none has been granted for a century and the court has long made clear there’ll be no more.  As a bit of a relic of English constitutional history and the established church, in the United Kingdom, the Privy Council retains appellant jurisdiction some domestic matters:

(1) Appeals from the Arches Court of Canterbury and the Chancery Court of York in non-doctrinal faculty causes.

(2) Appeals from the High Court of Chivalry.

(3) Appeals from the Court of Admiralty of the Cinque Ports and Admiralty prize courts.

(4) Appeals from the Disciplinary Committee of the Royal College of Veterinary Surgeons.

(5) Disputes under the House of Commons Disqualification Act, a role essentially similar to that the High Court of Australia (HCA) discharges as the Commonwealth’s Court of Disputed Returns.

Historically, the Privy Council dealt with cases thus referred without any known demand for multiple judgments or dissenting opinions; a fine example of judicial clarity and efficiency and one which judges in other courts never to admire, much less emulate.  Despite its exalted place in the legal hierarchy, the council has been a surprisingly flexible and informal court.  In 1949, it found, on technical grounds, the Commonwealth of Australia’s appeal in the bank nationalization case (Commonwealth of Australia v Bank of NSW [1949] UKPC 37, [1950] AC 235; [1949] UKPCHCA 1, (1949) 79 CLR 497 (26 October 1949)) couldn’t proceed but, because so many people had travelled over ten-thousand miles (17,000 km) to London (no small thing in 1949), it anyway heard the case and issued what would have been the substantive judgment.  If ever it’d been prepared to set the example of providing advisory opinions, the Privy Council would have been the best appellant court ever.  Unfortunately, In recent years, dissenting opinions have started to be issued.

Sitting of the Judicial Committee of the Privy Council, 18 June 1946.

M.R Jayaker, Lord Du Parcq, Lord Goddard (Lord Chief Justice), Lord Simonds, Lord Macmillan, Lord Simon, The Lord Chancellor (Lord Jowitt), Lord Thankerton, Lord Porter, Lord Uthwatt, Sir Madhavan Nair, and Sir John Beaumont.

Versus

Versus (pronounced vur-suhs or vur-suhz)

(1) Against, used especially to indicate an action brought by one party against another in a court of law, or to denote competing teams or players in a sporting contest.

(2) As compared to or as one of two (or more) choices; as alternative to; in contrast with.

1400–1450: From the Late Middle English, from the Latin versus (facing; literally “towards” ie “turned so as to face (something), opposite, over against) and originally the past participle of vertere (to turn, change, overthrow, destroy), from the primitive Indo-European wert- (to turn, wind) from the root *wer (to turn, bend).  Versus is a preposition, the accepted abbreviations are “v” & “vs”.  The Latin vertere being a word of conflict, it’s been predictably productive in English.  In psychology, ambivert & ambiversion were coined in 1927 to describe a "person exhibiting features of an extrovert and an introvert.  Advert was an adaptation of the mid-fifteenth century averten (to turn (something) aside) from the twelfth century Old French avertir (later advertir) (to turn, direct; turn aside; make aware, inform) from the Latin advertere (turn toward, turn to).  English restored the -d- in the sixteenth century.  Versus is a preposition.

Averse was a mid-fifteenth century form meaning "turned away in mind or feeling, disliking, unwilling", from the Old French avers (hostile, antagonistic) and directly from the Latin aversus (turned away, turned back), past participle of avertere (to direct one's attention to; give heed, literally "to turn toward”).  Averse in English is used almost exclusively in the mental sense, while averted is applied to physical acts.  Advertise was from the early fifteenth century advertisen (to take notice of (a sense now obsolete)), from the Old French advertiss-, present-participle stem of the twelfth century advertir (the earlier form was avertir) (make aware, call attention, remark; turn, turn to), again from the Latin advertere.  The mid-fifteenth century transitive sense of "give notice to others, inform, warn; make clear or manifest" was by influence of advertisement; the specific commercial meaning "call attention to goods for sale, rewards, etc" not in use until the late eighteenth century.  The idea of the adversary (unfriendly opponent, enemy) emerged originally in religious writing as a descriptor of Satan as the enemy of man.  It was from the mid-fourteenth century aduersere (hostile opponent, enemy), from the thirteenth century Anglo-French adverser and the twelfth century Old French adversarie (which in Modern French is adversaire), from the Latin adversarius (an opponent, rival, enemy) the noun use of the adjective meaning "opposite, hostile, contrary.  The Classical Latin was glossed in Old English by wiðerbroca.

The verso (reverse, back, or other side of some object," especially a printed page or book) dates from 1839 and was from the Latin verso (folio), ablative singular neuter of versus, past participle of vertere (to turn).  Retroversion was first noted in the 1580s in the sense of a “tilting or turning backward" noun of action or state from the Latin retroversus (turned or bent backwards).  The late fourteenth century controversy (disputation, debate, prolonged agitation of contrary opinions) was from the from Old French controversie (quarrel, disagreement" from the Latin controversia (a turning against; contention, quarrel, dispute), from controversus (turned in an opposite direction, disputed, turned against), the construct being contra "against" + versus (turned toward or against), past participle of vertere.  Vice versa (the order being changed) dates from circa 1600, the construct being vice, ablative of vicis (a change, alternation, alternate order) + versa, feminine ablative singular of versus, past participle of vertere.  The Century Dictionary notes the phrase has the “complete force of a proposition”, meaning “a transposition of antecedents, the consequents also transposed".

Sinister, the idea being the left being opposite the right is also involved.  When, in 1856, botanists needed a word to describe the direction of spiral structures in nature, they coined the adjective sinistrorse, from the Latin sinistrorsus (toward the left side), the construct being sinister (left) + versus (turned), past participle of vertere.  It was paired with dextrorse but, in the pre-internet age, communication between scientists in different places was slow or limited and confusion arose about what was the proper point of view to reckon leftward or rightward spiraling, both interpretations used and documented as sinistrorse.  It limited the utility of the word.  Universe dates from the 1580s in the sense of "the whole world, cosmos, the totality of existing things", from the twelfth century Old French univers, from the Latin universum "all things, everybody, all people, the whole world," noun use of the neuter of the adjective universus (all together, all in one, whole, entire, relating to all, literally "turned into one), from unus (one (from the primitive Indo-European root oi-& no- (one, unique)) + versus, past participle of vertere.

The word verse came from late Old English, replacing the earlier Old English fers which was an early West Germanic borrowing directly from Latin and meant "line or section of a psalm or canticle" which by the fourteenth century had extended to "line of poetry", from the Anglo-French and Old French vers (line of verse; rhyme, song), from the Latin versus (a line, row, line of verse, line of writing), again from the primitive Indo-European wer-.  The metaphor is of plowing, of "turning" from one line to another, in the sense of vertere (to turn) as the plowman does at the end of each furrow.  The New Testament in English translation was first divided fully into verses in the 1550s Geneva version.  The metrical composition dates from circa 1300 but, perhaps surprisingly, as the non-repeating part of a modern song (ie the text which exists between repetitions of the chorus), verse wasn’t used until 1918.  That was noted in the book Negro Folk-Songs (1918) by US ethno-musicologist Natalie Curtis Burlin (1875-1921) which documented the traditions and forms of what used to be called “negro spirituals”.  Seemingly for the first time, the structure was defined as consisting of "chorus and verses, the chorus being a melodic refrain sung by all which opens the song; then follows a verse sung as a solo, in free recitative; the chorus then repeated; then another verse, the chorus again and so on until the chorus, sung for the last time, ends the song.”

In law reporting, versus, and, & against

Carbolic Smoke Ball Company’s offer to the whole world.

In the English speaking world, in the reporting of legal actions which reach the stage of being filed by a court register (or equivalent), the convention is that the first party named is the plaintiff (appellant) and the second the defendant (respondent).  So, in the famous case in English contract law of Carlill v Carbolic Smoke Ball Company (1892, EWCA Civ 1) before the Court of Appeal, Mrs Carlill was the appellant and the Carbolic Smoke Ball Company the respondent.  The carbolic smoke ball case remains interesting because it established in English law the principle that advertisements offering something can constitute a binding contract even if the person claiming to have entered the contact hasn’t advised the author of the offer of their intent to perform the acts required in the terms of the offer.

Doubling down: The Carbolic Smoke Ball Company wasn't discouraged by the loss in the Court of Appeal, subsequently increasing both the reward to £200 and the small print to discourage claims.

During the deadly influenza pandemic in the northern winter of 1889-1890, the Carbolic Smoke Ball Company it would pay £100 (equivalent to some £12,000 in 2021) to anyone who became ill with influenza after using their smoke ball in accordance with the instructions enclosed with the product.  Mrs Carlill was concerned enough by the flu to buy a ball which, following the instructions, she used thrice daily for some weeks but nevertheless, caught the flu.  Unable to persuade the company to pay her £100, Mrs Carlill brought an action, in court claiming a contract existed which the company denied.  At first instance, despite being represented by a future prime-minister, the Carbolic Smoke Ball Company lost, a verdict upheld unanimously by the Court of Appeal.  It was a landmark in the development of contract law, refining the long-established principles of (1) offer, (2) acceptance, (3) certainty of terms and (4) payment although, it would be decades before the implications would begin comprehensively to be realized in legislation.  Not only did Mrs Carlill secure her £100 but she survived the pandemic, living to the age of ninety-six.  On 10 March 1942, she died after catching influenza.

In the UK and most of the Commonwealth, civil cases are reported in the form of Carlill v Carbolic Smoke Ball Company but in oral use spoken as Carlill and Carbolic Smoke Ball Company (although for notorious cases like this, an informal shorthand such as “carbolic” or “carbolic smoke” usually emerges).  Where a proceeding does not have formally designated adverse parties, the construct becomes “In the matter of”, spoken and written usually as “In re” or, more commonly “Re”.  In the US, the written form is the same for civil and criminal proceedings but when spoken, the “v” or “vs” is pronounced “vee” or “versus”.  Neither system appears helpful and it would be an improvement if both could agree to use “and” and “against” as required and write them in that form too.  It will never happen.

Criminal matters are written using the same convention but the “v” is spoken as “against”.  In Fagan v Commissioner of Police for the Metropolis (969 1 QB 439) a defendant’s conviction, for refusing to move his car after having inadvertently reversed over a policeman’s foot, was upheld.  Absurd as the facts of the case turned out to be, it was a useful illustration of the relevant legal principles.  In criminal law, there’s the requirement that both actus reus (act) and mens rea (intention) be present for a crime to take place.  Fagan argued that when he made the actus reus, because it was an accident, he had no men’s rea, but when he obtained mens rea, there was no corresponding actus reus.  There have been philosophers who would have found the logic of that compelling but the judges proved earthier, ruling that while omission cannot establish an assault, the actus reus of driving onto the foot and deciding to remain there constituted a continuing criminal act which was present when the mens rea occurred.  Mr Fagan’s conviction thus stood.

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.