Winter is coming: the future of First Amendment analysis, and the prospects for New York Times v Sullivan, after NYSR&PA v Bruen

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| 1A, Defamation, Defamation, Freedom of Expression, Freedom of Expression, US Supreme Court

Winter is Coming (element)Cold winds now blow in the US Supreme Court around the stability of a century’s worth of First Amendment doctrine; even New York Times Co v Sullivan 376 US 254 (1964), the most stable of that Court’s speech precedents, now seems in danger of being blown away in the storm, thanks to the recent decision in New York State Rifle and Pistol Association v Bruen 597 US __ (2022) (Opinion pdf | Cornell | Justia | SCOTUSblog). In an earlier post on this blog, I considered the potential impact on the First Amendment of Thomas J’s originalist reasoning in the Second Amendment case of New York State Rifle and Pistol Association v Bruen, and found some distinctly chilly zephyrs. Thomas J for the majority (Roberts CJ, and Alito, Gorsuch, Kavanaugh, and Barrett JJ concurring) held that a restriction on carrying arms in public for self-defense reasons was inconsistent with the Nation’s historical tradition of firearms regulation and was thus unconstitutional. Thomas J explicitly eschewed any standard of review such as strict or intermediate scrutiny, and it was with this that the minority (Breyer J; Sotomayor and Kagan JJ concurring) took most issue. This is nuts. Worse, in Bruen, Thomas J asserted some similarities in analysis between the Second Amendment and the First.…

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Couple mistakenly paid Aus$10.5m by Crypto.com claim they thought they had won a contest

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| Mistaken payments, Restitution

Manivel & Singh via 9news.com.auA little while ago on this blog, I noted the mistaken payment case of Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022). It has been a recurring theme of my notes on these kinds of cases that the recipients of mistaken payments not only must make restitution of those payments, but also that they run the risk of criminal prosecution. Now comes the unsurprising news that the key recipients of the money at issue in Foris v Manivel have indeed been charged with theft:

Couple mistakenly given $10.5m from Crypto.com thought they had won contest, court hears

Money from crypto exchange was allegedly used to buy four houses worth $4m, vehicles, art and furniture, police officer tells court

A Victorian woman accused of theft over a $10.5m mistaken cryptocurrency refund has been released on bail as she awaits trial, despite claims she allegedly tried to flee the country. Thevamanogari Manivel and her partner, Jatinder Singh, appeared by video link from prison in Melbourne magistrates court on Tuesday when they were committed to stand trial on theft and other charges. …

The Crypto.com account was in Singh’s name but the transfer may have been sent to Manivel’s account as he used her bank card to buy cryptocurrency, the court heard.

…

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Blooming Lawyers: from Sadgrove v Hole, via Palles CB and Ulysses, to Facebook

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| Christopher Palles, Defamation, Defamation, Defamation Act 2009, James Joyce

Palles and Joyce (images via Wikipedia, edited)I was reminded (plug alert) of my piece “The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation”, chapter 12 in Oonagh B Breen & Noel McGrath (eds) Palles. The Legal Legacy of the last Lord Chief Baron (Four Courts Press, 2022) (noted here), when I had the pleasure of reading the recent re-publication of Brian McMahon’s article (first published: Law Society Gazette, October 2004, 12), focusing on Dublin’s legal fraternity in Ulysses by James Joyce (pictured left, on the right).

To celebrate the 100th anniversary this year of the publication of Ulysses by Syliva Beach in Paris, this month’s Law Society Gazette (October 2022 (pdf), 41) has reproduced McMahon’s excellent and entertaining article.

Here are some extracts from it about three minor elements of the book that raise interesting issues of a legal nature:

James Joyce’s Ulysses is set in Dublin on 16 June 1904, and its two principal characters are Leopold Bloom and Stephen Dedalus. Bloom is the novel’s hero, and his journey around Dublin echoes Odysseus’ journey in Homer’s Odyssey. …

… Martin Cunningham tells … Bloom, how Reuben J’s son tried to commit suicide by jumping into the Liffey, but was saved by a workman who was rewarded with a florin.

…

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Women in plain sight in the law: Síofra O’Leary, Catherine McGuinness, Frances Kyle & Averil Deverell

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| judges

Judge O'Leary, President ECHRSíofra O’Leary (pictured right) has been elected President of the European Court of Human Rights (press release), and will take up office on 1 November 2022. She has been a judge of the Court since 2 July 2015, a President of a Section since 1 January 2020, and Vice-President of the Court since 2 January 2022. She will be the first female President of the Court. Congratulations, Judge O’Leary!

On this blog, I’ve already noted female-majority panels in the Irish Supreme Court. Since then – and as well as from Judge O’Leary’s elevation – there have been three interesting similar developments.

First, the Court of Appeal has made history as the first court in the Republic to have a majority of female judges: it now has has nine women and eight men. [Update (29 September 2023)]: The appointment of Jayne Jagot as a Justice of the High Court of Australia; and, like the Court of Appeal, it means that a majority of the justices of the High Court of Australia will be women [End update]. More generally, women comprise 42 per cent of the Irish judiciary.

Second, a portrait by Miseon Lee, of former Supreme Court judge Catherine McGuinness, has been unveiled at the National Gallery of Ireland.…

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Restitution of mistaken payments, again: Chase quickly recovers $50billion; while Citibank eventually recovers (a mere) $500million, defeating defences of “discharge for value”

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| Mistaken payments, Restitution, Restitution, Subrogation

RepaymentIn my previous post, I looked at Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022), in which cryptocurrency trading platform Crypto.com accidentally transferred Aus$10.5m [€7.35m; US$7m; St£6.3m] to an Australian customer when processing an Aus$100 [€70; US$67; St£60] refund, by mistakenly entering her account number into the “payment amount” field. Elliott J held that part of the proceeds could be traced into a property gifted by the customer to her sister, who held the property on trust for the payor.

In this post, I want to look at two other computer-enhanced mistakes. The first is almost unbelievable:

Dad becomes 25th richest man in world after €45 billion lands in account after bank error

A family were made multi billionaires when a banking mishap saw [US$50 billion] €45 billion deposited into one lucky dad’s account, momentarily making him the 25th richest man in the world. … [He] was alerted to the huge sum by his staggered wife, …

The dad-of-two, from Louisiana in the US, … admitted to what had happened and arranged for the money to go back to its rightful owner. … When he alerted [his bank] Chase, they immediately began work to get the funds back, but never said where the money came from, or how the error came about.

…

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Fortune favours the brave, but not the foolhardy – recipients of mistaken payments must make restitution, or face the consequences

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| Mistaken payments, Restitution

Oops key on keyboard, via Flickr (modified))To err is human, but to really foul things up requires a computer, so we are told. And it gets really dreadful indeed when computer buzzwords like “crypto” get included. And so it is with cryptocurrency trading platform, Crypto.com. In May 2021, it accidentally transferred Aus$10.5m [€7.35m; US$7m; St£6.3m] to an Australian woman, Thevamanogari Manivel, when processing an Aus$100 [€70; US$67; St£60] refund. Although computers were involved, the problem was plain old human error: Manivel’s account number had been accidentally entered into the “payment amount” field. Worse, they failed to notice the error until the following December, seven months later, by which time much of the money had already been given away to six other family members or spent on various luxury purchases, including an Aus$1.35m [€945,000; US$900,000; St£810,000] home in Craigieburn, Melbourne, for her sister, Thilagavathy Gangadory. [Update: Crypto has company – a Texas bank made the same mistake to deposit US$37m in a customer’s account; but, unlike here, the Texas customer alerted the bank and returned the money].

Gangadory Craigieburn propertyThis sounds like a classic exam question, but it is in fact the scenario faced by Elliott J in the Supreme Court of Victoria, Australia, in Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022).…

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Of Schrödinger’s contract and ambiguous terms: when a website mistakenly lists designer trainers for €10, do their ambiguous terms and conditions apply?

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| Contract, Mistaken offers

Schrodinger's Cat, via FlickrIn the famous thought experiment proposed by Erwin Schrödinger, a hypothetical cat in a box may be considered simultaneously to be both alive and dead as a result of its fate being linked to a random subatomic event that may or may not have occurred. For reasons that will become obvious a little later in this post, I was reminded of this as I pondered an article by Conor Pope in the Irish Times last week, in which he reported that the upmarket Irish retail store Brown Thomas [BTs] cancelled online orders after it had mis-priced designer trainers at €10 instead of the usual €150. This is a common scenario. To take only two examples, in 2010, Arnotts, which is now part of the BT group, offered an online deal for €98 televisions which also turned out to be too good to be true; and, earlier this year, Morrison’s supermarket website mistakenly listed premium whisky for £2.50. In any event, this is how BTs responded on twitter to their mistaken overpricing:

…

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Some of #RushdiesWords on free speech from Joseph Anton

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| Censorship, Censorship, Freedom of Expression, Freedom of Expression

Salman Rushdie Joseph Anton coverJoseph Anton. A Memoir (London, 2012) (cover left) is a memoir by Salman Rushdie.

On Valentine’s Day, 14 February 1989, Ayatollah Ruhollah Khomeini, the Supreme Leader of Iran, issued a legal edict (a fatwa) against Rushdie on the grounds that his novel The Satanic Verses (London, 1988) blasphemed against the Prophet Muhammad. Rushdie spent several years in hiding, using the pseudonym Joseph Anton (a name he chose to honour the writers Joseph Conrad and Anton Chekhov). Joseph Anton. A Memoir is his account of his life in hiding; but it is described as a memoir rather than autobiography because it is written in the third (rather than the first) person.

In the Autumn of 1989, he was invited by the Institute of Contemporary Arts (ICA) in London to deliver the 1990 Herbert Reade Memorial Lecture. Joseph Anton takes up the story:

He knew at once that he wanted to write about iconoclasm, to say that in an open society no ideas or beliefs could be ring-fenced or given immunity from challenges of all sorts, philosophical, satirical, profound, superficial, gleeful, irreverent or smart. All liberty required was that the space for discourse itself be protected.

…

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