À Bout de Souffle (1959) Directed by Jean-Luc Godard

Nick:
Definition of a sacred cow when used as a noun:
"an individual, organization, institution, etc., considered to be exempt from criticism or questioning." 

I think it's fair to say that the cinema of Godard and especially À Bout de Souffle (aka Breathless) have both passed into the realms of being beyond criticism.  I'm a huge fan of some Godard movies, Pierrot La Fou,  Le Mépris, Week End and Une Femme est une femme' especially. But like a lot of Godard's films À Bout de Souffle falls into the category of overrated for me. 

There has been a lot of focus on the picture this year as it celebrates 50 years, and its influence on modern cinema is without doubt. The first 20 minutes which captures Jean-Paul Belmondo's petty hood Michel raging against the world in a fast car are as good as any movies get. After that, a very boring film opens up, as Michel delays his escape from the police to bed his American girlfriend, the stunning Patricia (Jean Seberg).

All the themes that would obsess Godard in the 60's are here, as are the cinema references that litter his later films. His fellow New Wave compatriot François Truffaut delivered the script, and it's here that the picture loses some of its initial appeal. Belmondo is good value as always. The film looks great and has an effortless cool.

As a gateway into Godard's later movies, À Bout de Souffle is essential, the original grain and spark of so many good movies that follow this is here. It's just when ever I watch the film I always feel disappointed. 

Astrid:
OK, I'm back and so are the romantic comedies, candles, roses, kitchen cloths and vacuum cleaners – romance in life more over. I am a late-bloomer in appreciating the beauty of men. As I have mentioned before, I used to be oblivious to beautiful men. Blind. But my eyes have opened and I can see. Jean-Paul Belmondo.

Breathless appears to be an exercise of many aspects, which Godard becomes a master at later in his career. The dream-like narrative turns, fantastical reality, cultural in-jokes, style; everything is here but still budding instead of blooming. I love Anna Karina and she is not here. I love color and this film is still black and white.

Yet, Breathless more than other Godard's movies starring Belmondo, is a loveletter to his youthful, symmetrical, arrogant and playful masculinity (the kind that was becoming dubious and questionable in the 1960s). It is a lesson to wearing suits, putting on shirts, lighting cigarettes, hiding behind shades. It is a celebration of the boy that remains in a man. The power and domination which may be unfair and threatening in reality appear endearing in this film.

Belmondo is not about to grab my ass in real life. And would I really mind if he did?

Religion and the law once more: recognising Druidry

Written for Halsbury's Law Exchange and published here

On 2 October the BBC reported that Druidry is to be recognised as an official religion by the Charities’ Commission. This status has legal implications, in particular for tax purposes. Not all have been happy with the news. In the Daily Mail the conservative commentator Melanie Phillips wrote:

Elevating them to the same status as Christianity is but the latest example of how the bedrock creed of this country is being undermined. More than that, it is an attack upon the very concept of religion itself.

Whether one agrees or not, the report raises once more the issue of religion in public life, unquestionably one of the more intractable problems destined to remain a feature of public debate in this country.

Previously, of course, Christianity ruled the roost as the state religion, as Ms Phillips infers, although as a Jew she might be more cautious about wishing for a return to the past. Mediaeval Christian England severely oppressed Jews before expelling them altogether in 1290 under Edward I by an edict not overturned until 1656. The right to naturalise was not given to Jews until the early 19th century and they were not eligible to sit in the House of Commons until 1859. Ms Phillips has also previously written that the Judeo-Christian theology was responsible for modern ethics and the methods of scientific inquiry, although both claims might have come as a surprise to the ancient Greeks.

Back to the present day, where despite the continuing presence of an established church, the state has attempted to be inclusive of all religions and to recognise them at law accordingly. Two problems exist with that approach: first, how to define “religion”, and secondly, how to reconcile beliefs incompatible with each other and, more importantly, incompatible with the law.

Manifestations of those problems have formed many a headline story, from the dramatic in the form of the Satanic Verses controversy of the late 1980s or the more recent Danish cartoon furore, to the alleged wishes of a schoolgirl to wear a particular item of clothing, employees wishing to be exempt from certain duties, and business owners wishing to exclude their services from certain sections of the public.

Liberal philosophers have long had the following answer: there is no way of the state satisfactorily defining a “religion” (witness the somewhat tortuous efforts of Burton J to do so in Nicholson v Grainger plc [2009] All ER (D) 59 (Nov)). Instead the state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples.

Such an approach should not worry any religious believer; quite the opposite. The United States has a constitutional separation of church and state, as well as freedom of speech, and yet has a higher level of religious observance than the United Kingdom. By contrast, certain theocratic states elsewhere in the world protect only one religion, and not much in the way of freedom of speech or other human rights either.

The Fabric Flea Market, 2010 edition

I’m embroiled in the thick of organizing this … again … for the 16th time, actually.  Which is the partial explanation for why not much sewing is getting done chez The Sewing Lawyer.  Too much phoning, e-mailing, and keeping of The Lists – of vendors, of buyers, of hundreds of e-mail addresses of the FFM Fans who must be notified.

So what exactly is this event?  Why, it’s a sale of fabric, patterns, yarn, notions, books and anything else you might imagine that could be sewn, knitted, crocheted or otherwise stuck with a needle.  Our slogan?  “You Never Know What You Will Find!”

The proceeds come from the door (where we charge $2 to get in); the vendors (who pay us 15% of what they sell, or a minimum of $25); and from selling donations of fabric, patterns etc.  We give the proceeds to a local public school whose student population is largely from new Canadian families.  Their families don’t have much extra money or time to devote to fundraising for the little extras (extracurricular activities, school outings, breakfast program, etc.) that the boards won’t pay for any more. 

The vendors are a combination of:

• Sewists and knitters who have reached or are worried about reaching SABLE (that’s Stash Accumulation Beyond Life Expectancy for the uninitiated) and need to unload some (perhaps so they can buy more);
• Vintage textile specialists:  who knows where they find what they sell – always fascinating!  Last year, one vendor was selling feathers gleaned from the estate of a milliner;
• Notion specialists:  one of our vendors sells extremely fancy dog leashes out of the most amazingly beautiful braids - she brings the braid itself to the Fabric Flea Market; another deals exclusively in vintage buttons;
• People who are selling donated stuff to raise money for their own charities:  one vendor always brings a huge team to raise money for the Humane Society; we’ve also had people raising money for churches and an orchestra; and
• People who have cottage sewing or other businesses who are either selling off ends or closing up shop.

Every year we ask ourselves the same questions.  Can we get the word out?  Will we get donations?  Will we be able to sign up vendors to fill the hall?  Will everyone show up to sell?  Will anyone show up to buy?  Will we raise as much as last year?  Can we do it – one – more – time for the kids?

For anyone in Ottawa, come to the Glebe Community Centre for 10AM on Saturday October 16.  It’ll be an intense four hours!

A picture (or several) tell the story best.  Here’s  a sampling from last year’s sale.

BBC v The Stig again

Published on Halsbury's Law Exchange here.


Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.

As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.

Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.

In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.

As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.

Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.

Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.

Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.

Update: the UK Human Rights Blog has responded to this post here.

Platoon (1986) Directed by Oliver Stone

Nick:
I have not watched a movie for over a week. I needed a break. Other things on my mind. But then, I had this completely random thought about Willem Dafoe. It was about his cock. Has a Hollywood actor been so exposed on the popular screen? Hang in there on this one, I'm maybe trying to justify another men on a mission film on this blog! Dafoe's dignity was not spared in the overly serious The Last Temptation of Christ, his libido was overworked in the dire Body Of Evidence and his nether regions were brutalized in the sadistic Antichrist.  He's the guy that goes the extra yard, he's not afraid to bare his all, emotionally and literally. Dafoe has retained credibility despite being in a Mr Bean movie or a bunch of straight to video fair, the roll call of great to good films is impressive:  Light Sleeper, Wild At Heart, Mississippi Burning, The English Patient, Affliction, Auto Focus,The Life Aquatic with Steve Zissou. The random cock thoughts gave me license to go back to Platoon, the film that established Dafoe as such a unique and risk taking actor.

Dafoe plays the Christ like Sgt Elias, the good soldier who pits his wits against the evil macho of Tom Berenger's Sgt Barnes. This conflict plays against the backdrop of Oliver Stone's autobiographical Vietnam story. Of course, this being Stone nothing is subtle, heavy symbolism is to the fore. There's also very little originality here, the film owes a lot to The Deer Hunter and mostly to the king of Hollywood Vietnam pictures, Apocalypse Now. As if to acknowledge Platoon's debt, stone casts Charlie Sheen (son of  Apocalypse Now's Martin) as his on screen alter ego Chris, who, in Apocalypse Now fashion, supplies the voice over for this violent writes of passage picture.

I'm not saying Platoon is bad, re-visiting it after many years the films' own power stands up with an ability to be disturbing and moving. Stone injects his won political view on the futility of this war, depicting the casual unjustified genocide of an enemy we never really see. The use of Samuel Barber's Adagio For Strings, although now a classical cliche, does work in this context, adding extra pathos to many scenes. There's also a heavy suggestion that Elias and Chris are lovers. This homoerotic aspect of the picture could have been explored further. If Platoon has a fault it's that it descends to easily into revenge picture in the final third, so Platoon loses a bit of it's focus.

As well as bringing Dafoe and Sheen into the spotlight, Platoon established Stone as a directorial heavyweight, winning Oscars and becoming hugely successful. Stone also introduced a bunch of young actors to the screen in this picture, Johnny Depp, Keith David,  Forest Whitaker, Kevin Dillon and the creepy John C McGinley. But Dafoe casts a spell over this picture, his Elias is a fine creation. What a face, what sexual energy. Man Love.

Cases that Changed Our Lives again

A note on the book (which is available for purchase here) from a US perspective.

Cases that Changed Our Lives is a new publication by LexisNexis. It consists of 24 essays on great cases in the common law, from the United Kingdom, the United States and Australia, together with a preface by leading counsel for LexisNexis International and a foreword by Lord Neuberger MR, one of the United Kingdom’s most senior judges.

All lawyers have an inbuilt need to revisit the past. After all, that is the basis upon which common law is founded. The purpose behind this book is to revisit some of the great cases of the common law’s history, and to cast a fresh eye on the reasoning behind those cases and the legacy each has left on the common law. In this way it forms part of LexisNexis’ commitment to supporting the rule of law, one fundamental aspect of which is open and robust debate about the rules which govern our lives. The book is being launched at the International Bar Association Conference in Vancouver in October 2010.

As well as the questions of high legal principle, the book also reflects on some of the human stories behind the litigation. Sometimes great cases have involved great statesmen. Equally often, however, momentous legal rulings have arisen from the dealings of people whose lives were otherwise lived in complete obscurity. Others may have been famous once but have long since vanished from the public imagination.

The book was compiled in the UK, and the majority of the essays are English cases. Two cases are included from the United States. Kenneth R Thompson II, Global Chief Legal Officer for LexisNexis, has written on the constitutional milestone of Marbury v Madison. Henry Z Horbaczewski, General Counsel of Reed Elsevier, has written about the notorious Plessy v Ferguson, a case well known for the famous dissent of Justice Harlan and equally well known for the infamous decision of the majority.

The relevance of the book to American lawyers, academics and indeed anyone interested in political affairs goes well beyond those two cases, however, for two primary reasons.

First, several of the English cases had a great influence on the development of American law. Dr Bonham’s case in 1610, the subject of the first essay, was decided by Sir Edward Coke, a jurist widely read and respected amongst American lawyers of the day. The decision continued to be cited in American courts years after independence. Ironically, Coke’s central holding in the case – concerning the ability of the courts to strike down legislation – was clearly echoed in the United States in Marbury v Madison (and often cited in its antecedents), even though it came to be disowned by Coke’s successors on the English bench. And the second case in the book, the trial of Dr Sacheverell, gave rise to the “Riot Act” which was replicated on numerous occasions in the United States in the years after (as well as being a common expression in popular culture to the present day).

Secondly, and perhaps more importantly, the discussion of the cases shows legal reasoning in action, something of universal interest to lawyers from the common law tradition. Each case reveals an attempt to resolve some of the most difficult moral issues. For example, the legendary case of cannibalism on the high seas, R v Dudley & Stephens, where shipwrecked sailors resorted to killing and eating the innocent cabin boy (only to find themselves rescued and charged with murder), was the inspiration for a famous essay by the great American legal scholar Lon Fuller (“The Case of the Speluncean Explorers”, Harvard Law Review, Vol. 62, No. 4, February 1949, p 616). It remains good law to this day in England and Wales for the proposition that necessity is no defence to murder, but the moral dilemma it raised is just as acute today as in the very different world of Victorian England.

The equally tragic and much more recent cases of Diane Pretty and Debbie Purdie concerned the issue of whether assisted suicide should be legalised, thus granting each of the women (both of whom had contracted terminal illnesses) the right to die in circumstances of their own choosing. The magnitude of the moral issues needs no elaboration.

In chapter VI we consider the United Kingdom’s response to terrorism in the twenty-first century – which was of course initially in response to the appalling act of terrorism on United States’ soil in September 2001. The classic fundamentals of freedom under law – the right to habeas corpus, to know the case against oneself, to proceedings in open court – have all come under scrutiny and indeed some strain as the state has tried to deal with the evasive threat of terrorism. In particular, how does society apply apparently fundamental rights to someone strongly suspected of being a potential mass murderer, but who hasn’t in fact yet committed any crime? Is it really better, as the old legal saying goes, for ten guilty men to go free than one innocent to be wrongly imprisoned, if one or more of the ten guilty men then proceeds to engineer a terrorist attack on thousands?

With respect to each case readers will no doubt contrast the British decisions with those of leading United States’ courts. They might find particular interest in the fortunes of the supermodel Naomi Campbell, who fought to silence what she considered an invasion of her privacy by a tabloid newspaper. The newspaper, spoiling for a fight, quickly fashioned itself as the champion of press freedom. The subsequent legal battles as set out in the essay bring to mind the differing fortunes of the late Rev Jerry Falwell in the United States during his legal clash with the publishers of Hustler magazine.

Other issues covered, including property rights as between married and unmarried couples, the right of children to consent to medical treatment, land law, freezing injunctions, liability in tort and the duty of the state to protect the lives of those in custody, will all resonate with American readers.

American constitutional lawyers might also read with interest the influence of the European Union, begun as an economic arrangement but steadily (and inexorably?) marching in the direction of a federation, on English law. And they will need no introduction to the subject matter of the two Australian cases – indigenous rights and constitutional freedom of speech.

It was inevitable that whatever list of cases we devised would be controversial. Equally, some will object that there were more logical groupings for the chapters. We expect – and welcome the fact – that they will do so. Our response to such anticipated criticism is threefold. First, no-one is ever going to agree on the final list, not for a book of manageable proportions anyway.

Secondly, there is always volume II! (and possibly III, IV, and beyond ...).

Finally, if by making the “wrong” choices we have at least managed to provoke debate about the relative importance of famous cases and therefore the workings of the law, then we will have achieved what we set out to do.

Statute of Limitatons to Recover Stolen Culture Lengthened in California

Governor Arnold Schwarzenegger signed into law California Assembly Bill 2765. This law allows an owner of a stolen or fraudulently taken cultural object to file a lawsuit to recover the piece within six years of finding the object. This new law is significant for three reasons.

First, it doubles the time an aggrieved party can recover an object of "historical, interpretive,scientific, cultural, or artistic significance" that has been stolen or taken by fraud or duress

Second, the law enacts the "actual discovery" rule. That means that the six year clock only starts to run once the original owner actually discovers the wherabouts of the cultural object.

Third, the law is retrospective. The legislature specifically stated that the law "shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not
expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute." There is no doubt then that the new law may impact Marei Von Saher's effort to move forward on her claim to recover Lucas Cranach the Elder's diptych "Adam and Eve" from the Norton Simon Museum, originally looted by the Nazis.

Read the law at http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2751-2800/ab_2765_bill_20100930_chaptered.html