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.

Epiphenomenon

Epiphenomenon (pronounced ep-uh-fuh-nom-uh-non or ep-uh-fuh-nom-uh-nuhn)

(1) In medicine, unexpected or atypical symptom or complication arising during the course of a disease (ie something historically or literally not connected to the disease).

(2) An activity, process, or state that is the result of another; a by-product, a consequence.

(3) In philosophy and psychology, a mental process or state that is an incidental by-product of physiological events in the brain or nervous system.

1706: The construct was epi- + phenomenon.  The epi- prefix was from the Ancient Greek ἐπί (epí) (on top of; in addition to (in a special use in chemistry, it denotes an epimeric form)).  Phenomenon was from the Late Latin phaenomenon (appearance), from the Latin phaenomenon (attested only in the plural form phaenomena), from the Ancient Greek φαινόμενον (phainómenon) (that which appears in one’s view; appearance; phenomenon), a noun use of the neuter singular form of φαινόμενος (phainómenos), the present middle or passive participle of φαίνω (phaínō) (to cause to appear; to reveal, show, uncover; to expound), from the primitive Indo-European beh- (to glow with light, to shine).  The alternative forms are epiphaenomenon (rare and apparently used only by some pathology journals and epiphænomenon (extinct except when cited in historic texts).  Epiphenomenon, epiphenomenalist & epiphenomenalism are nouns, epiphenomenalize is a verb, epiphenomenal, epiphenomenological & epiphenomenalistic are adjectives, and epiphenomenally & epiphenomenalistically are adverbs; the noun plural is epiphenomena or epiphenomenons.  A need to coin the nouns epiphenomenalization & epiphenomenalizationism seems not to have arisen but there’s still time.

In psychology an epiphenomenon is defined as a mere by-product of a process that has no effect on the process itself and within the discipline is most often used to refer to mental events considered as products of brain processes, the idea explored being the matter of an event secondary or incidental to another primary phenomenon (ie something that occurs as a byproduct or consequence of something else, without having any causal influence on the primary phenomenon).  In the abstract, consciousness or subjective experience is seen as an epiphenomenon of the brain's activity, meaning that it does not play an active role in influencing or causing physical events.  In both the clinical sciences and philosophy, the concept is often applied to a construct of pain, the argument being that the subjective experience of pain is an epiphenomenon of neural processes that are primarily responsible for generating behavioral responses to potential threats or injuries; the conscious experience of pain not directly contributing to behavior but instead accompanying it.  That doesn’t imply mental events are not real, just that they are not real in the sense of biological states and events.

In medicine, the word is used to describe symptoms or complications not directly causative of the relevant disease but occurring as a result of the underlying condition.  For example a patient suffering a chronic autoimmune disease may for a number of reasons be afflicted with inflammation in the joints and the casual relationship between the two is direct.  However, were the patient to react to the inflammation by lapsing into depression, this would be regarded as epiphenomenal because the symptoms are not the primary cause of the disease but arising as a consequence of the physiological and psychological impacts of living with a chronic illness.

Historians and social scientists use the word in the tradition of behaviorism.  In his controversial best-seller Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (1996), then Harvard academic Daniel Jonah Goldhagen (b 1959) argued the “eliminationist antisemitism” which characterized the Nazi state (1933-1945) and culminated in the genocide of the Holocaust was not a product merely of the particular circumstances of the Third Reich but instead of a centuries-old virulent form of antisemitism which was uniquely and specifically German.  His point too was it was something almost endemic among non-Jewish Germans which necessitated him constructing a framework to explain the bulk of what criticism by Germans there was of the persecution of Jews.  This he did by suggesting the criticism… “was overwhelmingly directed at but certain aspects of the persecution [and] was epiphenomenal… in the sense that the criticism did not emanate from (and therefore does not signify) Germans’ departure from the two fundamental bedrock features relevant to the fate of the Jews at the hands of the Germans during the Nazi period, namely eliminationist antisemitism and its practical consequences”.  Goldhagen’s internal logic was of course perfect but it’s easy to see why the work was so controversial.  A best seller, it was well reviewed although there were professional historians who found fault with the scholarship and identified a number of technical issues but the author wasn’t discouraged and has in the years since published extensively in the same vein.

The word is not part of the Western legal vocabulary but it is related to the concepts of causation and foreseeability, both essential elements in determining liability in matters of negligence, their interaction a relatively recent development in common law.  For liability to be found, there must be (1) a causal relationship between the negligence and the injury suffered and (2) it must have been reasonably foreseeable that the negligent act might cause the injury suffered.  There’s no mathematical test to determine these things and each case is decided on the basis of the facts presented and even then a judge might find one way, their decision might be reversed 2-1 on appeal and then decided finally 4-3 by the highest appellate court.  So the scorecard of eleven eminent legal minds working with the same facts, in the same tradition can be 6-5 but that’s how the common law evolves.

Known as "The Twisted Tower", the the 28-storey PwC building in Midland, Johannesburg, South Africa, was designed by LYT Architecture.

Of late, causation, reasonable foreseeability and the epiphenomenological have been on the minds of some conspiracy theorists pondering revelations one of the arms of PricewaterhouseCoopers (PwC, one of the “Big Four” accounting companies (the others KPMG, EY & Deloitte) while acting as consultants to the Australian government in the development of legislation designed to ensure certain multi-national corporations would no longer be able to avoid paying tax on revenue generated within Australia, passed the relevant information to the PwC arm which was consulting with those very companies to design the legal and accounting mechanisms to avoid paying tax.  For PwC, this synergy (vertical integration taken to its logical conclusion) was an extraordinary example of efficiency and apparently a type of high-dollar insider trading which, depending on the chain of events, could disclose all sorts of potential wrongdoing, the obvious conflict of interest perhaps the least serious if it can be proven any involved personally gained from improper conduct.  That will play out, perhaps over years, but what intrigues the conspiracy theorists is whether it was reasonable foreseeable that if one hires the company working for the corporations one wishes to prevent avoiding tax and asks them to help develop a tax code to ensure that tax is paid, that the consultants might be tempted to exchange facts.  In other words, given that such a thing would appear to be reasonably foreseeable, what were the motives of the politicians in putting temptation in the way of PwC?  Theories have included (1) an ideological commitment to support global capitalism in ensuring big corporations pay as little tax as possible while appear to make every attempt to pursue them and (2) it being an example of crony-capitalism whereby politicians ensure big corporations aren’t too troubled by taxes in exchange for a nice sinecure upon retirement from the tiresome business of politics.  The cover of course would be the construct that the ongoing ability of multi-nationals to avoid tax would be something epiphenomenological rather than the reasonably foreseeable consequence of hiring the same accountancy firm as that hired by the multi-nationals.  There has been much muttering about Dracula & the blood-bank but after all, Dracula will do what Dracula does and the more interesting matter is the thoughts of those who thought it a good idea to hand him the keys.

Watched approvingly by comrade Joseph Stalin (1878-1953; Soviet leader 1924-1953) and Joachim von Ribbentrop (1893–1946; Nazi foreign minister 1938-1945), comrade Vyacheslav Molotov (1890–1986; Soviet foreign minister 1939-1949 & 1953-1956) signs the Nazi-Soviet Pact with its secret protocol, Moscow, August 1939 (left) and Dr HV Evatt (1894–1965; Australian attorney-general & foreign minister 1941-1949, and leader of opposition 1951-1960) with Winston Churchill (1975-1965; UK prime-minister 1940-1945 & 1951-1955), Downing Street, London, May 1942 (right).

Perhaps also of interest is that PwC has dozens of contracts with the Australian Department of Defence, generating in excess of Aus$200 million in revenue for the company.  There may be reasons that situation should anyway be reviewed but following recent revelations, the fact that PwC operates in the People's Republic of China (PRC) adds a layer of concern.  As the sharing of confidential information about tax matters indicates, whatever claims PwC make about the robustness of their "Chinese walls", it is clear that in at least some cases, once data is in the hands of PwC, there's no guarantee it will be kept confidential.  Whether PwC has contracts with the Chinese military might be an interesting question to ask but even if it does not, few would doubt that were the Chinese Communist Party (CCP) to ask PwC to obtain what they could, cooperation would be forthcoming.  PwC make much of their operation being a collection of "independent" entities but given the company is often as opaque as the CCP, people should make of that what they will.  Still, when asked during Senate Estimates (a process whereby senators can ask questions of ministers and senior public servants) if he still had sufficient confidence in PwC for them to remain as his department's internal auditors (ie advising him, inter-alia, on matters of governance), the head of the Treasury indicated he was on the basis that PwC auditors has assured him of their integrity.  It recalled the moment in October 1955 when Dr HV Evatt, then leader of the opposition, informed the house all members could be assured a certain Russian document about spying was a forgery because he'd written to the Soviet foreign minister to ask and comrade Molotov had replied confirming it was.  Those reporting the exchange were either too polite to draw the comparison or, as seems the case with journalists these days, lacked knowledge of anything which happened more than ten years ago.

Sanction

Sanction (pronounced sangk-shuhn)

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

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

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

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

(5)  A penalty or reward.

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

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

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

Sanction busting

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

The Kim Dynasty's new (used) cars

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

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

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

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

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

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

In the matter of Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018), New York’s highest appellate court dismissed Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V and rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.  Take-Two Interactive Software had requested sanctions be imposed, claiming “Lindsay Lohan complains that her image and persona have been wrongfully used by Take-Two in the video game Grand Theft Auto V, but her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes” and was thus an abuse of process.  Both the trial and appellate judges declined to impose sanctions.

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

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

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

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

Ordinary

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

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

(2) Plain or undistinguished.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.