Brand

Brand (pronounced brand)

(1) The kind, grade, or make of a product or service, as indicated by a stamp, trademark, or such.

(2) A mark made by burning or otherwise, to indicate kind, grade, make, ownership (of both objects and certain animals) etc.

(3) A mark formerly put upon slaves or criminals, made on the skin with a hot iron.

(4) Any mark of disgrace; stigma.

(5) A kind or variety of something distinguished by some distinctive characteristic.

(6) A set of distinctive characteristics that establish a recognizable image or identity for a person or thing.

(7) A conflagration; a flame.  A burning or partly burned piece of wood (now rare except regionally although the idea of brand as “a flaming torch” still exists as a poetic device).  In the north of England & Scotland, a brand is a torch used for signalling. 

(8) A sword (archaic except as a literary or poetic device).

(9) In botany, a fungal disease of garden plants characterized by brown spots on the leaves, caused by the rust fungus Puccinia arenariae

(10) A male given name (the feminine name Brenda was of Scottish origin and was from the Old Norse brandr (literally “sword” or “torch”).

(11) To label or mark with or as if with a brand.

(12) To mark with disgrace or infamy; to stigmatize.

(13) Indelibly to impress (usually in the form “branded upon one’s mind”)

(14) To give a brand name to (in commerce including the recent “personal brand).

Pre 950: From the Middle English, from the Old English brond & brand (fire, flame, destruction by fire; firebrand, piece of burning wood, torch (and poetically “sword”, “long blade”) from the Old High German brant, the ultimate source the primitive Indo-European bhrenu- (to bubble forth; brew; spew forth; burn).  It was cognate with the Scots brand, the Dutch & German Brand, the Old Norse brandr, the Swedish brand (blaze, fire), the Icelandic brandur and the French brand of Germanic origin.  The Proto-Slavic gorěti (to burn) was a distant relation.  Brand is a noun & verb, brander is a noun, brandless is an adjective, branded is a verb and branding is a noun & verb; the noun plural is brands.  Forms (hyphenated and not) like de-brand, non-brand, mis-brand & re-brand are created as required and unusually for English, the form brander seems never to have been accompanied by the expected companion “brandee”.

Some work tirelessly on their “personal brand”, a term which has proliferated since social media gained critical mass.  Lindsay Lohan’s existence at some point probably transcended the notion of a personal brand and became an institution; the details no longer matter.

The verb brand dates from the turn of the fifteenth century in the sense of “to impress or burn a mark upon with a hot iron, cauterize; stigmatize” and originally described the marks imposed on criminal or cauterized wounds, the used developed from the noun.  The figurative use (often derogatory) of “fix a character of infamy upon” emerged in the mid-fifteenth century, based on the notion of the association with criminality.  The use to refer to a physical branding as a mark of ownership or quality dates from the 1580s and from this developed the familiar modern commercial (including “personal brands”) sense of “brand identity”, “brand recognition”, “brand-name” etc.  Property rights can also attach to brands, the idea of “brand-equity”.

Although it’s unknown just when the term “branding iron” (the (almost always) iron instrument which when heated burned brands into timber, animal hides etc) was first used (it was an ancient device), the earliest known citation dates only from 1828.  The “mark made by a hot iron” was older and in use since at least the 1550s, noted especially of casks and barrels”, the marks indicating variously the maker, the type of contents, the date (of laying down etc) or the claimed quality..  By the early-mid nineteenth century the meaning had broadened to emphasise “a particular make of goods”, divorced from a particular single item and the term “brand-name” appears first to have been used in 1889, something significant in the development of the valuable commodity of “brand-loyalty” although that seems not to have been an acknowledged concept in marketing until 1961.  The idea of “brand new” is based on the (not always accurate) notion a brand was the last thing to be applied to a product before it left the factory.

BMC ADO16 brands, clockwise from top left: Wolseley 1300, Riley Kestrel 1300, MG 1300, Austin 1300 GT, Morris 1100 and Vanden Plas Princess 1300.

The British Motor Corporation's (BMC) ADO16 (Austin Drawing Office design 16) was produced between 1962-1974 and was a great success domestically and in many export markets, more than two million sold in 1.1 & 1.3 litre form.  The Austin & Morris brands made up the bulk of the production but versions by Wolseley, Riley, MG & Vanden Plas versions were at various times available.  All were almost identically mechanically with the brand differentiation restricted to the interior trim and the frontal panels.  This was the high (or low) point of the UK industry's “badge engineering”.  The abbreviation ADO is still sometimes said to stand for “Amalgamated Drawing Office”, a reference to the 1952 creation of BMC when the Austin & Morris design & engineering resources were pooled.  Like many such events subsequently, the amalgamation was more a “takeover” than a “merger” and the adoption of “Austin Drawing Office” reflected the priorities and loyalties of Leonard Lord (later Lord Lambury, 1896–1967), the former chairman of Austin who was appointed to head the conglomerate.  The appearance of “Amalgamated Drawing Office” appears to be a creation of the internet age, the mistake still circulating.

US market 1964 MG Princess 1100 brochure.  The advertising theme may have been ambitious but BMC also described MG's other US market ADO16 (a LHD (left-hand-drive) version of the home market MG 1100) as a "sports sedan" which, although legally "mere puffery", seems at least misleading.

BMC's six-brand spread for ADO16 is well-known and often used as a case-study for the way the approach should and should not be pursued.  A neglected footnote however also existed: the MG Princess 1100, sold in the US between 1964-1966.  The MG Princess was the by then familiar Vanden Plas 1100 (all with a manual transmission, no automatic ever offered) modified to the extent of being adorned with an MG badge on the boot (trunk) lid and hubcaps although it must have been though that wasn't getting the message across because in mid-1964 the octagonal symbol was added also to the Vanden Plas grill.  The rationale behind this curious hybrid was the perception the US market would respond well to a “luxury version” of the basic vehicle (and how the US industry would handle that notion in the next two decades proved the idea was sound) but the “Vanden Plas” name was essentially unknown in the US whereas MG had strong “brand recognition” because of the post-war success of first the updated pre-war “square riggers” (the TC, TD & TF (1945-1955)) and the later MGA (1955-1962) & MGB (1962-1980) sports cars.  Thus the MG Princess 1100 was introduced in February 1964 at the New York Motor Show but while the MGB and smaller MG Midget (1961-1979) enjoyed strong demand, BMC shifted a paltry 156 of the MG Princess and in 1966 the model was withdrawn from the US market.

Since the beginnings of mass-production made possible by powered industrial processes and the ability to distribute manufactured stuff world-wide, brand-names have become (1) more prevalent and (2) not of necessity as distinctive as once they were.  Historically, in commerce, a brand was an indication of something unique but as corporations became conglomerates they tended to accumulate brands (sometimes with no other purpose than ceasing production in order to eliminate competition) and over time, it was often tempting to reduce costs by ceasing separate development and simply applying a brand to an existing line, hoping the brand loyalty would be sufficient to overlook the cynicism.  The British car manufactures in the 1950s use the idea to maintain brand presence without the expense of developing unique products and while originally some brand identity was maintained with the use of unique mechanical components or coachwork while using a common platform, by the late 1960s the system had descended to what came to be called “badge engineering”, essentially identical products sold under various brand-names, the differences restricted to minor variations in trim and, of course, the badge.

Grounds of the Mercedes-Benz factory decorated in honor of a visit to Stuttgart by Adolf Hitler (1889-1945; Führer (leader) and German head of government 1933-1945 & head of state 1934-1945), the display visible from his aircraft (1936, top left), a Mercedes-Benz showroom in Munich, Lenbachplaz (1935, top right) and 1938 Mercedes-Benz W125 Rekordwagen (bottom).  Although, tucked away in a corner of the corporate website there is a single page which contains a rather perfunctory acknowledgement of company’s complicity in some of the crimes against humanity committed by the Nazi regime between 1933-1939 there’s little attempt to discuss the matter, an understandable reticence and quite a gap in the otherwise extensively documented history which dates back to 1886 with the debut of what is claimed to be the world’s “first automobile”.  Brand-management can be as much about what is left unsaid or hidden as what is projected. 

When used in events other straight-line speed record attempts (ie where corners needed to be negotiated) the streamlined version of the W125 Formel-Rennwagen (race car built in accord with defined rules) didn’t use the spats (fender-skirts) covering the wheels.  It was used thus on Berlin’s high-speed Avusrennen with its two, uniquely long straights and differed from the conventional W125 in that it was powered by V12 engine rather than the usual big-bore straight-eight, the lower hood (bonnet) line further reducing drag.  Fitted with the spats, W125 Rekordwagen (record car) was used in 1938 to achieve a speed of 432.7 km/h (269 mph) over the flying kilometre, then the fastest timed speed achieved on a public road and a record which stood until 2017.  It’s now on display in the Mercedes-Benz Museum in Stuttgart, although, the swastika with which it was once adorned has been removed from the aluminum skin (displays of the swastika banned in Germany except as authorized).

Australia Day vs Invasion Day: The case for a re-brand

Although it came to be known as “Australia’s national day” and in some form or other had been celebrated or at last marked since the early nineteenth century, as a large-scale celebration (with much flag waving) it has been a thing only since the 1988 bi-centennial of white settlement.  What the day commemorated was the arrival in 1788 in what is now Sydney of the so-called “First Fleet” of British settlers, the raising of the Union Flag the first event of legal significance in what ultimately became the claiming of the continental land-mass by the British crown.  Had that land been uninhabited, things good and bad would anyway have happened but in 1788, what became the Commonwealth of Australia was home to the descendants of peoples who had been in continuous occupation sine first arriving up to 50,000 years earlier (claims the history extends a further 10,000 remain unsupported by archaeological evidence); conflict was inevitable and conflict there was, the colonial project a violent and bloody business, something the contemporary records make clear was well understood at the time but which really entered modern consciousness only in recent decades.

What the colonial authorities did was invoke the legal principle of terra nullius (from the Latin terra nūllīus (literally “nobody's land”)) which does not mean “land inhabited by nobody” but “land not owned by anyone”.  The rational for that was the view the local population had no concept of land “ownership” and certainly no “records” or “title deeds” as they would be understood in English law.  Given that, not only did the various tribes not own the land but they had no system under which they could own land; thus the place could be declared terra nullis.  Of late, some have devoted much energy to justifying all that on the basis of “prevailing standards” and “accepted law” but even at the time there were those in London who were appalled at what was clearly theft on a grand scale, understanding that even if the indigenous population didn’t understand their connection to the land and seas as “ownership” as the concept was understood in the West, what was undeniable by the 1830s when the doctrine of terra nullius was formally interpolated into colonial law was that those tribes understood what “belonged” to them and what “belonged” to other tribes.  That’s not to suggest it was a wholly peaceful culture, just that borders existed and were understood, even if sometimes transgressed.  Thus the notion that 26 January should better be understood as “Invasion Day” and what is more appropriate than a celebration of a blood-soaked expropriation of a continent is there should be a treaty between the colonial power (and few doubt that is now the Australian government) and the descendants of the conquered tribes, now classified as “first nations”.  Although the High Court of Australia in 1992 overturned the doctrine of terra nullius when it was recognized that in certain circumstances the indigenous peoples could enjoy concurrent property rights to land with which they could demonstrate a continuing connection, this did not dilute national sovereignty nor in any way construct the legal framework for a treaty (or treaties).

The recognition that white settlement was an inherently racist project based on theft is said by some to be a recent revelation but there are documents of the colonial era (in Australia and elsewhere in the European colonial empires) which suggest there were many who operated on a “we stole it fair and square” basis and many at the time probably would not have demurred from the view 26 January 1788 was “Invasion Day” and that while it took a long time, ultimately that invasion succeeded.  Of course, elsewhere in the British Empire, other invasions also proved (militarily) successful but usually these conflicts culminated in a treaty, however imperfect may have the process and certainly the consequences.  In Australia, it does seem there is now a recognition that wrong was done and a treaty is the way to offer redress.  That of course is a challenging path because, (1) as the term “first nations” implies, there may need to be dozens (or even hundreds according to the count of some anthropologists) of treaties and (2) the result will need to preserve the indivisible sovereignty of the Commonwealth of Australia, something which will be unpalatable to the most uncompromising of the activists because it means that whatever the outcome, it will still be mapped onto the colonial model.

As the recent, decisive defeat of a referendum (which would have created an constitutionally entrenched Indigenous advisory body) confirmed, anything involving these matters is contentious and while there are a number of model frameworks which could be the basis for negotiating treaties, the negotiating positions which will emerge as “the problems” are those of the most extreme 1% (or some small number) of activists whose political positions (and often incomes) necessitate an uncompromising stance.  Indeed, whatever the outcome, it’s probably illusory to imagine anything can be solved because there are careers which depend on there being no solution and it’s hard to envisage any government will be prepared to stake scare political capital on a venture which threatens much punishment and promises little reward.  More likely is a strategy of kicking the can down the road while pretending to be making progress; many committees and boards of enquiry are likely to be in our future and, this being a colonial problem, the most likely diversion on that road will be a colonial fix.

One obvious colonial fix would be a double re-branding exercise.  The New Year’s Day public holiday could be shifted from 1 January to December 31 and re-branded “New Year’s Eve Holiday”, about the only practical change being that instead of the drinking starting in the evening it can begin early in the day (which for many it doubtless anyway does).  Australia Day could then be marked on 1 January and could be re-branded to “Constitution Day” although given the history that too might be found objectionable.  Still, the date is appropriate because it was on 1 January 1901 the country and constitution came into existence as a consequence of an act of the Imperial Parliament, subsequently validated by the parliament of the Commonwealth of Australia (an institution created by the London statute).  It’s the obvious date to choose because that was the point of origin of the sovereign state although in the narrow technical sense, true sovereignty was attained only in steps (such as the Statute of Westminster (1931)), the process not complete until simultaneously both parliaments passed their respective Australia Acts (1986).  The second re-branding would be to call 26 January “Treaty Day” although the actual date is less important than the symbolism of the name and Treaty Day could be nominated as the day on which a treaty between the First Nations and the Commonwealth could be signed.  The trick would be only to name 26 January as the date of the signing, the year a function of whenever the treaty negotiations are complete.  The charm of this approach is the can can be kicked down the road for the foreseeable future.  Any colonial administrator under the Raj would have recognized this fix.

Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google et al)).  The antonym is proprialization (White House, Grand Canyon et al).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor et al but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

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

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

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

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Judge Fahey's words recalled those of Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) when in Jacobellis v Ohio (378 U.S. 184 (1964) he wrote: “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”  Judge Fahey knew a basic white girl when he saw one; he just couldn't name her.  Lindsay Lohan's lawyers did not seek leave to appeal.

In happier times: Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

Also not having much luck with a matter taken on appeal is former New South Wales (NSW, Australia) Premier Gladys Berejiklian, compelled in 2021 to resign after being found to have committed an act of Billigung, her crucial phrase in a secretly recorded conversation being "I don't need to know about that bit" when her then (secret) lover began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of Mr Maguire.

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Nazi Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.  Had he then told the truth, he'd have been hanged.

The words used by Ms Berejiklian: "I don't need to know about that bit" are best understood in modern use as an attempt to manufacture "plausible deniability" and may be compared with how Herr Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.  There's obviously quite some difference between knowledge of the Holocaust and the dodgy dealings of a politician but the Billigung principle is the same. However, the former premier may have been comforted that unlike the IMT at Nuremberg, the ICAC wasn't vested with capital jurisdiction so there was that.

Enjoying their pipes: Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.     

On 1 October 2021, the NSW ICAC (Independent Commission against Corruption) announced an investigation into the former premier's conduct in office, later handing down a finding she had committed “serious corrupt conduct”.  Interestingly,  despite that, the ICAC made no recommendation criminal charges be pursued because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.

Ms Berejiklian challenged the findings and validity of the ICAC’s findings, her appeal heard by the NSW Court of Appeal, the state’s highest appellate court.  Her grounds for the appeal were claims (1) the ICAC made errors of law and (2) their report may have been delivered outside its legal authority due the expiration of the term of one of the ICAC’s assistant commissioners prior to the report being delivered.  In a split (2-1) decision handed down in July 2024, the court dismissed the appeal (with costs), the dissenting judge finding that because one assistant commissioner was engaged as a consultant after her term had expired (a role which included assisting in drafting the final report and writing assessments of the credibility of witnesses including Ms Berejiklian) what they did was act outside the limits of the authority conferred on a consultant.  The majority disagreed, finding the appointment as a consultant was in all ways “valid and effective” and also rejected the other grounds cited in the appeal.

So the ICAC’s finding of “serious corrupt conduct” stands.  Responding to the court’s decision, Ms Berejiklian didn’t mention that “c-word”) but thanked the court for its consideration given “...the limited nature of a challenge that can be made to ICAC findings by any citizen.  As the court noted, the ICAC Act does not permit a ‘merits’ review of the findings of ICAC.”  She also noted the split decision and concluded “Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.” 

Appellate courts, the hair police and black letter law

Appellate courts are best known for their rulings in cases of great public interest or legal significance; in the former category these typically are those involving celebrities, sex or anything especially gruesome and in the latter, constitutional matters.  There are exceptions (and some appellate courts do also function in certain specialized matters as courts of first instance) and the US Supreme Court (USSC) has agreed to hear parking-ticket and other minor matters if the law under which a conviction was obtained happened in a jurisdiction where the offence was deemed one of absolute liability and an appeal not permitted.  In those matters, the court held that in the US, a legal principle existed that the state could not convict a citizen of something without granting a means of appealing the decision.  Courts of appeal also hear the quirky and bizarre and in 2022 an appeal was lodged in the Supreme Court of Japan, a young woman in Osaka Prefecture seeking to overturn a ruling from the Osaka High Court that her former high school’s rules and guidance forcing her to dye her brown hair black were lawful.

The young lady had in 2015 enrolled in a high school (operated by the prefectural government) and in the original case (decided by the Osaka District Court) she alleged teachers had at least weekly told her to dye her hair black, instructions which continued despite her explanation she was born with brown hair and it was her natural color.  In September 2016, she began refusing to go to school, her suit against the prefectural government alleging she had suffered mental stress.  In 2021, the district court ordered the prefectural government to pay ¥330,000 (US$3,100) to the former student for certain actions (such as such as removing her name from school rosters after she stopped attending) but ruled also the school’s enforcement of the hair-related regulation exceed the discretionary authority it had been granted.  The plaintiff took the case to Osaka High Court (the first appellate layer) which held that, on the basis: “a wide range of discretion must be permitted for school education in order to allow diversified educational guidance in line with individual and collective conditions”, the ruling of the district court was upheld.  The case was well publicized and attracted much public interest (and comment) and, presumably nudged, the Osaka’s Prefectural Board of Education undertook a survey of rules at high schools under their control but concluded the “compulsory black hair” rule was “necessary”, issuing a statement saying “We will meticulously explain the necessity in order to gain understanding from students’ parents”.  That didn’t please the by now bolshie (former) schoolgirl and in her appeal to the Supreme Court (the next appellate layer) claimed banning brown hair was “unconstitutional”, citing Article 13 of Japan’s Constitution, which stipulates people’s right to pursue happiness.

The case attracted the interest of Doshisha University’s Professor Kayoko Oshima (b 1959) who explained the substantive matter was more the repeated demands the girl “dye her hair black rather than the rule itself”, his point being that the purpose of the rule was to prevent the dying of hair to ensure lurid greens or blues (or, God forbid, blondes) weren’t seen and in the case of someone with natural brown hair, the ruling shouldn’t be enforced.  In other words, for these purposes there should be the legal fiction that “brown is black”, something like the “honorary white” status the Apartheid-era South African government would sometimes grant to visiting PoCs (persons of color; typically athletes or politicians).  The rule, according to the professor, was thus rational but, in certain circumstances, its enforcement was not; an example of the “unintended consequences” which sometimes occur in the application of “black letter law”.

While the matter proceed through Japan's not especially rapid civil system, news organizations began reporting other interesting rules school impose on their female students including mandating white underwear and banning pony-tails on the basis that were the nape of the neck so scandalously to be exposed, it would risk “sexually exciting” male students.  Hair color, length and pony-tails are subject obviously to visual inspection but it's not clear if the underwear dictates are enforced by the same method.  The wide publication of these rules drew much derision and in response, early in 2022, the Tokyo prefecture announced those with natural hair other than black would no longer be required to dye to conform and that underwear need no longer exclusively be white.  The Tokyo authorities took an omnibus approach to reform, announcing also that a wider range of hairstyles would be permitted including the “two-block” (short on the sides and back while long on top) which was interesting because like the also permitted bob, the risk of napes being flaunted was obviously there.  Legal observers commented it was an example of a typically Japanese attempt to be flexible yet not be seen over-turning long defended-rules.  Thus the pony-tail proscription stands even though its rationale was undermined by the new permissiveness extending to the bob; again, black letter law.  Collectively, the “draconian rules” are known in Japan asブラック校則 (buraku kosoku) (black rules) and they have existed since the 1970s when it was noted “foreign influences” were beginning to intrude, resulting in previously unknown "behavioral issues".  As well as hair color and seductive pony tails, the most rigorously policed seems to have been skirt length, particular attention devoted to detecting the devious trick of “skirt-folding”, the standard workaround for those seeking the “above-knee look”.  Knees, it would seem, are thought as potentially provocative as the naked nape of the neck.

Ai Nishida San (b 1992) as she is (left) and as her school decided history would remember her (left).

Interestingly, high-tech Japanese school administrators have proved that even if the day comes when they can no longer make black hair compulsorily, with a little judicious digital editing, retrospectively they can make it seem as if uniformity is maintained.  In 2021, one student circulated a “before & after” pair of images, one her school photograph in untouched form (left), the other as it appeared in her school’s yearbook (right), the latter with hair in an acceptably shiny black.  Commenting on the editing, the former student said the message conveyed by the practice was it “…enforces the idea that black straight hair, a stereotypically Japanese look, is right”, the obvious implication being anything else is wrong and thus un-Japanese.  Her school had actually been accommodating, telling her that because it was her natural color, she was exempt the attention of the hair police and she thought little more about it until she received her 2007 yearbook when she realized she had been rendered “more Japanese”.  Ai Nishida San called the school’s actions “racist” and while, in the narrow technical sense, it might be more correct to suggest the motives were “racialist”, it’s certainly either and hardly in the spirit of the submission Japan’s delegation made to the Paris Peace Conference (1919-1920), arguing for racial equality to be recognized as one of the core concepts underpinning international relations in the post-war (which turned out to be the inter-war) era.

Ranga

Ranga (pronounced rang-ah)

In Australian slang, a person with red (ginger, auburn etc) hair.

1990s: Based on the name orangutan (pronounced aw-rang-oo-tan, oh-rang-oo-tan or uh-rang-oo-tan), any of three endangered species of long-armed, arboreal anthropoid great ape, the only extant members of the subfamily Ponginae, inhabiting Borneo (Pongo pygmaeus) and Sumatra (P. abelii).  The three species are Bornean orangutan (Pongo pygmaeus), Sumatran orangutan (Pongo abelii) and Tapanuli orangutan (Pongo tapanuliensis).  Ranga is a noun; the noun plural is rangas.  Australians tend to be linguistic reductionists and one is deemed either a ranga or not but presumably there can be "gray areas" (there may, in this context, be a better way of putting that) so adjectives such as rangaish or rangaesque could be coined as required.

A ketchup of gingers?  Roodharigendag in the Netherlands.

Since 2005 (except in 2020 when the COVID-19 pandemic put a stop to the fun), the Netherlands has hosted what is described as the "world's largest gathering of redheads".  Were the three-day festival (which attracts participants from over eighty nations) staged in certain other countries it might have gained a playful, fanciful name but the practical Dutch unadventurously used Roodharigendag (Redhead Day) which does have the virtue of being unambiguous.  There are a variety of events including lectures and pub-crawls; presumably, coffee shops are visited and perhaps the proprietors offer special blends of red-themed weed for the event.  If not, presumably "Fanta Orange" (€13 per gram in mid 2024) sales spike.

An Orangutan in the Sumatran jungle.  International Orangutan Day is 19 August.

Despite the first element of orangutan (orang) appearing to be a clipping of “orange” (a reasonable assumption given the creature’s vaguely orange-hued coat although zoologists describe it usually as “reddish-brown”), the term has nothing to do with coloration and is not derived from English sources.  Orangutan describes any of the three species of arboreal anthropoid ape, which comprise the genus Pongo, native to Borneo and Sumatra and as late as 1996 were listed as a single species in the taxonomic, based on the first scientific classification (as Homo Sylvestris) in 1758 by Swedish zoologist & physician Carl Linnaeus (1707–1778 and styled as Carl von Linné after 1761).  After being divided in 1996, the third species definitively was identified in 2017.  Even in English there are a dozen-odd alternative spellings and unmodified and variant forms appear in many languages.  The construct of orang-utan was from the Malay: orang (person, man) + hutan (forest) thus literally “forest man”.

Because, of the origin, to call someone a ranga is to compare them to a sub-human primate, so it might have been thought offensive but it remains widely used and is one of the additions to English which has spread from Australia.  Possibly the fact the world's redheads are almost exclusively white meant the comparisons with the orangutan weren't historically or culturally "loaded" so it never became more than a minor micro-aggression.  It certainly can be offensive and is often (though apparently mostly by children) used that way but it can also be a neutral descriptor or a form of self-identification by the red-headed.  It may be that many of those who deploy ranga (for whatever purpose) are unaware of the connection with sub-human primate and treat it as just another word; in that sense it’s actually less explicit than some of the many alternatives with a longer linguistic lineage including "ginger minge", "fire crotch", "carrot top", Fanta (not always capitalized) pants", "rusty crotch" and "blood nuts".  Whether ranga is more or less offensive than any of those (none of which reference apes) is something on which not all redheads may agree but in 2017 (some months on from ranga being added to the Australian Macquarie Dictionary), presumably so there was a forum to discuss such matters, RANGA (the Red And Nearly Ginger Association) was formed, finding its natural home on social media where it operates to provide social support rather than being a pressure group.  

There was also the Australian moniker “blue” (and, being Australia, the inevitable “bluey”) to describe redheads and most dictionaries of slang suggest the origin was in the tradition of “lofty” or “stretch” sometimes being applied to the notably short (ie the stark contrast between “red” and “blue”).  There is the suggestion it may have been an allusion to the propensity of “hot-headed” redheads to “start a blue” (ie start a fight, that use another of the nation’s many re-purposings of the word) but there’s no documentary evidence.  However, there is an established connection between “orange” & “blue”, a number of orange-flavored liqueurs dyed blue, Blue Curaçao the best-known.  According to historians of the industry, the blue dye came to be used just for the visual novelty, blue uncommon in natural foods or drinks and the striking colour was a point of differentiation with the many other orange-colored beverages.  Curaçao liqueur originated on the Caribbean island of Curaçao and was made using the dried peel of the laraha (a bitter orange).  Originally distilled as a clear or amber fluid, various vivid artificial colors (blue, green, orange, red) were added just to create different brands and Blue Curaçao became the most popular becoming almost synonymous with the striking blue cocktails (Blue Lagoon, Blue Hawaiian et al) of which it is an ingredient.  Because the blue dye (typically Brilliant Blue FCF, aka E133) has no taste, the orange flavour remains unaffected.

Ginger, copper, auburn & chestnut are variations on the theme of red-headedness: Lindsay Lohan demonstrates the possibilities.  Red hair is the result of a mutation in the melanocortin 1 receptor (MC1R) gene responsible for producing the MC1R protein which plays a crucial role also in determining skin-tone. When the MC1R gene is functioning normally, it helps produce eumelanin, a type of melanin that gives hair a dark color.  However, a certain mutation in the MC1R gene leads to the production of pheomelanin which results in red hair.  Individuals with two copies of the mutated MC1R gene (one from each parent) typically have red hair, fair skin, and a higher sensitivity to ultraviolet (UV) light, a genetic variation found most often in those of northern & western European descent.

Just as blonde women have long been objectified and derided as of limited intelligence (ie the "dumb" blonde), redheads have been stereotyped as sexually promiscuous (women) or having fiery tempers (men & women) but there is no evidence supporting any relationship between hair color, personality type or temperament.  The sample sizes are inherently small (redheads less than 2% of the global population) but there are populations in which the predominance is higher, so further research would be interesting but such questions are of course now unfashionable.  Most style guides list "red-haired”, “redhead” & “redheaded” as acceptable descriptors but the modern practice is wherever possible to avoid references which apply to physical characteristics, much as the suggestion now is not to invoke any term related to race or ethnic origin.  That way nothing can go wrong.  If it’s a purely technical matter, such as hair products, then descriptors are unavoidable (part-numbers not as helpful at the retail level) and there’s quite an array, ranging from light ginger at the lighter end to chestnuts and and auburns at the darker and there was a time when auburn was used as something of a class-identifier.

Jessica Gagen, Miss England, 2023.

Winner of Miss England (2022) (the first redhead claim the crown), Miss World Europe (2023) & Miss United Kingdom (2024), Jessica Gagen (b 1996) holds a bachelor's degree in aerospace engineering from the University of Liverpool, and is an advocate for women and girls in STEM (science, technology, engineering and math).  Having been subject to bullying as a child, Ms Gagen used her platform to spread a positive message to those who have also suffered cruel taunts about being red-headed.  After leaving school, Ms Gagen discovered one advantage of her hair color was it attracted modeling agencies and, as a multi-tasker, pursued a lucrative international career in conjunction with her studies.  Her interest in encouraging women to enter STEM fields came while at university when the paucity of female participation in her engineering course was obvious in male-dominated lecture and tutorial.

Peak Jessica: Jessica Gagen pictured cooling off during one of England's increasingly frequent heat-waves when temperatures reached a record 42^o C (108^o F), something long thought impossible because of the interplay of the movement of seawater and sea currents around the British Isles.  It's an urban myth that redheads (being "hot-headed" in the popular imagination) need to "cool down" more than most in some conditions. 

Interestingly, Ms Gagen says her participation in beauty contests changed her perception of them as sexist displays, regarding that view as archaic, noting the women involved all seemed to have their own motives, usually involving raising awareness about something of great personal interest.  Being part of the cohort likely to do well in beauty contests is of course just a form of comparative advantage in the way some have a genetic mix which makes them suitable to play basketball.  The beauty contest is thus an economic opportunity and choosing to participate in one can be a rational choice in that one's allocation of time and resources can yield greater returns than the alternatives.  Another notable thing about Jessica Gagen is that being born in 1996, she is part of that sub-set of the population called “peak Jessica”, the cohort which reflected the extraordinary popularity of the name between 1981-1997, overlapping slightly with “peak Jennifer” which occurred between 1970-1984.

Bliss

Bliss (pronounced blis)

(1) Perfect happiness; supreme joy or contentment.

(2) In theology, the ecstatic joy of heaven.

(3) A cause of great joy or happiness (archaic).

(4) A name used for a wide variety of locational, commercial and artistic purposes.

Pre-1000: From the Middle English blys, blice, blisce, blise, blesse & blisse, from the Old English bliss (bliss, merriment, happiness, grace, favor), from a variant of earlier blīds, blīþs & blīths (joy, gladness), from the Proto-West Germanic blithsjo & blīþisi (joy, goodness, kindness), the construct being blīthe (blithe) + -s, source also of the Old Saxon blizza & blīdsea (bliss), the construct being blithiz (gentle, kind) + -tjo (the noun suffix).  The early use was concerned almost exclusively with earthly happiness but, because of the fondness scholars in the Medieval Church felt for the word, in later Old English it came increasingly to describe spiritual ecstasy, perfect felicity and (especially), the joy of heaven.  In that sense as a verb it remains in common use in evangelical churches (especially in the southern US) to suggest the “attaining and existing in a state of perfect felicity”.  The adjective blissful was from the late twelfth century blisfulle (glad, happy, joyous; full of the glory of heaven).  Synonyms in a general sense include euphoria, happiness & joy while in a theological context there’s paradise, beatitude, blessedness, elicity, gladness, heaven & rapture; there is no better antonym than misery.  Bliss & blissfulness are nouns, blissy, blissed & blissless are adjectives, blissful is a noun & adjective and blissfully is an adverb; the noun plural is blisses.

The unrelated verb bless was from the Middle English blessen, from the Old English bletsian & bledsian and the Northumbrian bloedsian (to consecrate by a religious rite, make holy, give thanks), from the Proto-Germanic blodison (hallow with blood, mark with blood), from blotham (blood) and originally it meant the sprinkling of blood on pagan altars.  The pagan origins didn’t deter the early English scribes who chose the word for Old English bibles, translating the Latin benedicere and the Greek eulogein, both of which have a ground sense of "to speak well of, to praise," but were used in Scripture to translate Hebrew brk (to bend (the knee), worship, praise, invoke blessings).  In late Old English, the meaning shifted towards "pronounce or make happy, prosperous, or fortunate" under the influence of the etymologically unrelated bliss, (the resemblance obviously a factor in this) and by the early fourteenth century it was being used in religious services to mean "invoke or pronounce God's blessing upon" and is unusual in that there are no cognates in other languages.

State of bliss.  Lindsay Lohan embraces her inner Zen, Phuket, Thailand, 2017.

In idiomatic use, a "bliss ninny" is (1) one unrealistically optimistic (a Pollyanna, which, in Marxist theory, can align with the concept of "false consciousness), (2) one who prefers to ignore or retreat from difficult situations rather dealing with the problem (sometimes expressed as a "state of blissful ignorance") or (3) a student of theology intoxicated with the spiritual aspects of the teachings, but ignorant of the underlying scholarship.  A "bliss out" is the experience of great pleasure, often analogous with a "love rush" and the state in which one can be said to be "blissed up".  In economics, a "bliss point" is quantity of consumption where any further increase would make the consumer less satisfied (as opposed to the law of diminishing returns where increases deliver pleasure in decreasing increments; a classic example is alcohol.  It's used also in cooking as the measure of certain critical ingredients (fat, salt, sugar etc) at which point palatability is optimized.  To follow one's bliss is a notion from pop-psychology and the new age which advocates using one's awareness of what causes one to experience rapture as a guide for determining what constitutes authentic and proper living.

Charles O'Rear's original 1996 photograph, licenced in 2000 by Microsoft which used it as the desktop wallpaper for the Windows XP operating system.  Much time was spent in Microsoft's compatibility labs working out what would be the most "blissful" opening music (the "startup chime") to accompany the images' appearance upon boot-up. 

There are claims that Bliss, the default desktop wallpaper used in Microsoft’s Windows XP operating system, is the most viewed photograph of all time.  It was taken in 1996 by Charles O'Rear (b 1941) at Sonoma County, a viticultural region in California, using a Mamiya RZ67 film camera and as used by Microsoft, was barely changed, just cropped to better suit the shape of computer screens, the green hues slightly more saturated to render the image more “wallpaper-like”.

Quite how often bliss has been viewed isn’t known.  Economists and others use a variety of mathematical models and equations to calculate numbers where exact or even indicative records either don’t exist or can’t be relied upon, a famous example of which is the “piano tuner” problem posed by Italian-American nuclear physicist Enrico Fermi (1901–1954) for his students to ponder.  The challenge for the students was to create a formula to estimate the number of piano tuners in Chicago, based only on the known population of the city.  It would thus be a task of extrapolation, using one constant and a number of assumptions.  Fermi deconstructed his equation thus:

(1) Chicago has a population of 3 million.

(2) Assume an average family contains four members so that the number of families in Chicago must be about 750,000.

(3) Assume one in five families owns a piano, meaning there will be 150,000 pianos in Chicago.

(4) Assume the average piano tuner services four pianos a day and works a for five day week, taking an annual two week vacation.

(5) Therefore, in his (50 week) working year, a tuner would tune 1,000 pianos. The formula is thus 150,000 divided by (4 x 5 x 50) = 150.  There must be around 150 piano tuners in Chicago.

The method obviously doesn’t guarantee an exactly correct result but it does provide an indicative number might be off by no more than a factor of 2-3 and almost certainly within a factor of 10-12 so it’s reasonable to conclude there will be neither 15 nor 1,500 piano tuners.  A number with a factor error of even 2-3 in most cases is probably not a great deal of help (except to cosmologists for whom a factor of 10 error remains “within cosmological accuracy” but the piano tuner problem does illustrate how the concept can work and the more (useful) constants which are known, the more accurate the result is likely to be achieved.

Bliss, a little greener and cropped to fit on computer monitors.

Even so, it’s probably impossible to estimate how often bliss has been viewed, even were one to assemble as many constants and assumptions as are available such as:

(1) Number of copies of Windows XP sold.

(2) Number of copies of Windows XP in use in each year since it was introduced.

(3) Number of users per copy of Windows XP.

(4) Number of instances which retained bliss as wallpaper.

(5) Number of times per day each user saw bliss.

However, even with those and as many more assumptions as can be imagined, it’s doubtful if a vaguely accurate number could be derived, simply because data such as the number of users who changed their wallpaper (or have such a change imposed on them by corporate policies) isn’t available and there’s no rational basis on which to base an assumption.  However, although any estimate will almost certainly be out by millions or even billions, the bliss viewing number will be a big number and it being the world’s most viewed photograph is not implausible.

One of the reasons for the big number was the unexpected longevity of Windows XP which proved more enduring than two of its intended successors, the somewhat misunderstood Windows Vista and the truly awful Windows 8, the ongoing popularity of the thing meaning Microsoft repeatedly extended the end-date for support.  Introduced later in 2001, with a final substantive update made in 2008, support for Windows XP was intended to end in 2012 but such was the response that this was shifted in one form or another to 2014 for the mainstream products while for specialist installations (such as embedded devices), it lingered on until 2019.  That extension appealed to the nerd after-market which quickly provided hacks (with titles like “XP Update Extender”) to allow users to make XP on their desktop or laptop appear to Microsoft’s update services as one on the devices still supported.  Microsoft could have stopped this at any time but never did which was a nice courtesy.

More productive but less blissful: the scene in Sonoma County, 2006 after the land was given over to a vineyard. 

Another aspect of XP where “bliss point” could be used was that the users interface proved for many something of an ideal, combining the basic design of the model introduced when the object-oriented GUI (graphical user interface) was offered on Windows 95 (and subsequently bolted to Windows NT4) along with a few colorful embellishments.  So compelling was this that when, inexplicably, Microsoft introduced something less usable for Windows 8, the nerd after-market quickly mobilized and many “classic menus” appeared, the best of which remains “Open-Shell” (previously called “Classic Shell” & “Classic Start”) and there are those still so nostalgic for the ways of XP that some add it to their Windows 10/11 systems, even though the menu structures of those are a genuine improvement.  How many also add the bliss wallpaper (which remains widely available) isn’t known but Microsoft certainly haven’t attempted to suppress the memory, the Office 365 team including it in 2021 in a set of historical images for use with their Teams communication platform.

Microsoft Windows XP: The startup chime.