Via Geeks Are Sexy and 9gag.

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Some stuff I’ve come across online recently has reminded me of the New York indie rock band, Vampire Weekend, not only the high-profile controversy over the “frustrating” lawsuit against them by a model who claims that they did not have her permission to use an image of her on their “Contra” album cover, but also the lyrics of their 2008 single “Oxford Comma” (pictured left; see background | lyrics | music | YouTube). The Oxford comma is an optional comma before the word ‘and’ at the end of a list; in the song, it’s a metaphor for unnecessary pretention in interpersonal relationships; and in its grammatical meaning it has recently been the focus of discussion by pedants, geeks, and drafters.

Pedants
The Oxford comma (aka the Harvard comma or the Serial comma) is the comma in a list that goes before the “and” or “or” that precedes the last item in the list. In the title to this post, it’s the comma between “geeks” and “and”. In such a straightforward setting, using it or not is more a matter of individual preference than grammatical necessity; and there are many people whose preference is to use it. However, there are times when it is absolutely crucial:

… the important thing about it, though, regardless of its name, is that it looks like any ordinary comma, and, for the most part, acts like any ordinary comma, except that this comma, plain as it is, does something extraordinary–it guards against the ridiculous. … what if a young lady places an ad in the ‘Personals’ to tell us that she enjoys dining out, long hikes in the woods, holding hands and playing the guitar. I play the guitar, and let me assure you, it is difficult to hold hands and play the guitar.

In this example, the absence of the Oxford comma leads to an ambiguity which its presence would avoid. Where items in a list are equal, they sould be treated equally, and thus separated by a comma. The comma may reflect the cadences of the spoken word; it may be necessary in computer programming; it is often simply more natural to use it. For all these reasons – as the title to the post implies – I prefer to use it. It will rarely be ambiguous, and it will usually be more accurate.

Geeks
In using it, I suspect I am like many other lawyers. For example, David Post, blogging at Volokh (picked up by Legal Blog Watch | ProfessorBainbridge | Something About The Law ), bemoaned its increasing absence, and argued [with added links]:

… use of the serial comma expands the possibilities for communicating nuance of meaning, and is therefore an unmitigated Good Thing. The classic illustration is this:

(a) “The woods are lovely, dark and deep”
versus
(b) “The woods are lovely, dark, and deep”

In the first edition of Frost’s Collected Poems, that line (from “Stopping by Woods on a Snowy Evening”) was printed as in (a), but it was corrected in subsequent editions. The point is that the two lines have different meanings — in the first, the woods are lovely; “dark and deep” then becomes a descriptor or illustration of that loveliness. In the second, the woods have three separate characteristics: they’re lovely, they’re dark, and they’re deep. …

In this way, it becomes clear that insistence upon the Oxford comma is not a matter of pretention or pedantry, but of accuracy and necessity.

Drafters
Though the absence of the comma is often comic, it can equally well have serious consequences. Accuracy matters. Roger Casement is said to have been hanged on a comma in the Treason Act. A current case against Chrysler in the US, for US$16,000 in damages and US$124,894.02 in legal fees, turns on the presence of a comma. More than Can$2m were at stake in a dispute between Rogers Communications Inc and Aliant Inc before the Canadian Radio-television and Telecommunications Commission. The contract was signed in English and French; its English draft provided it that

shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.

The CRTC originally held that, based on the rules of punctuation, the comma in question allows for the termination of the contract at any time, without cause, upon one-year’s written notice. However, having compared the French draft, which provided that the contract “demeure en vigueur pour une période de cinq ans, à partir de la date de la signature et il est subséquemment renouvelé pour des périodes successives de cinq années, à moins d’un préavis écrit de résiliation à l’autre partie un an avant l’expiration du contrat” (emphasis added), it then held that termination can only occur upon notice one year prior to the end of the initial five-year term or one year prior to the end of a renewed five-year term.

Since this accuracy with commas matters, care should be taken in the drafting of statutes, contracts, and the like. Ken Adams advises that

… the question for the contract drafter is not how to make sense of a dispute but how to avoid dispute in the first place.

The simplest approach would be always to use the serial comma in a simple list of three or more items. It’s very unlikely that you’d find yourself in a situation where a serial comma creates ambiguity rather than resolves it.

Even if Vampire Weekend don’t care about the Oxford Comma, lawyers – whether pedants, geeks, or drafters – most definitely should.

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As prefigured here a little while ago, there is a new peer-reviewed Irish legal journal, the Irish Journal of Legal Studies. The publication of Volume 1, Issue 1, 2010 has just been announced on the journal’s homepage, and the contents of the first issue are as follows:

Sexual Violence: Witnesses and Suspects, a Debating Document by Mr Justice Peter Charleton and Stephen Byrne. From the abstract:

This article explores the rules of evidence and criminal procedure as they apply in sexual offence cases, in the context of recent empirical accounts of attrition rates in sexual offences, and having regard to the rights of the accused and the need to maintain a fair balance that limits the potential for injustice.

The Constitution and the Protestant Schools cuts Controversy: Seeing the Wood for the Trees by Eoin Daly. From the abstract:

This article argues that special financial arrangements for Protestant secondary schools, recently controversially withdrawan, constituted a species of constitutionally permissible, if not constitutionally required, accommodation of religion. This controversy also serves as a prism through which to view the broader limitations of the constitutional framework for the guarantee of religious freedom in the education context.

Managerialism in Irish Universities by Professor Steve Hedley. From the abstract:

This article considers the controversial concept of “managerialism” in modern Irish university law and practice.

.

Antipsychotic Use in Nursing Homes: Human Rights and the Elderly by Dr Frances Matthews. From the abstract:

This paper describes challenging behaviour in older adults; possible responses to that behaviour, including medication; the nature and use of antipsychotics; the rights threatened by the administration of such drugs; and possible solutions.

Book Review: Alison Mawhinney Freedom of Religion and Schools: The Case of Ireland (Saarbrücken, VDM Verlag, 2009 | Amazon) reviewed by Dr Conor O’Mahony. From the pdf:

The curious nature of the Irish primary school system, where schools are titled “National Schools” and funded by the State, but are exclusively owned and managed by private bodies, has been the object of some comment and litigation over the years. Dr Mawhinney’s work has made the picture a little clearer for all concerned.

The Irish Journal of Legal Studies is run by members of the Law Faculty, University College Cork, and is generously supported by a grant from the National Academy for Integration of Research, Teaching and Learning. This is a superb development. Well done to all concerned!

Congratulations, and welcome. Comhghairdeachas, agus fáilte.

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Faustian bargains are at the heart of Shrek Forever After, the final chapter in the Shrek franchise, and those bargains raise interesting questions for the law of contract (even as the marketing of the film has raised others).

Like Australia (and in many ways even more than the obvious Paper Chase) Shrek Forever After is really A Movie About Contract Law!

Warning: plot spoilers When the movie begins, our hero, Shrek, is suffering a classic mid-life crisis; he is dissatisfied with married life, and pining for the old days, when he was a terrifying ogre rather than a domesticated tourist attraction. Rumpelstiltskin, the evil and manipulative magic deal-maker, offers Shrek the opportunity to spend a day as a real ogre again, in return for another day from Shrek’s childhood. The YouTube clip at the top left is the scene in which Rumpelstiltskin cajoles Shrek into agreeing. Having signed on the dotted line, Shrek is transported into an alternate reality. At first, he enjoys being fearsome one again. But the catch – and there’s always a catch – is that the day Rumpelstiltskin takes is the day of Shrek’s birth. This means that Shrek was not there to rescue Princess Fiona in the first movie; and her desperate parents, King Harold and Queen Lillian, turned to Rumpelstiltskin, and signed over the kingdom of Far Far Away to him in return for having all of their problems disappear. They disappeared, and the kingdom is now subject to Rumpelstiltskin’s tyrannical rule. It is a world where ogres are hunted criminals and Fiona leads the resistance; and when Shrek’s day as a frightening ogre is over, it will all be as if he had never existed. However, Donkey reveals to Shrek a sneakily-hidden exit clause in his contract with Rumpelstiltskin: if Shrek receives “True Love’s First Kiss”, the contract will be rendered null and void. So, the third act of the movie turns on Shrek’s efforts to get Fiona to fall in love with him and kiss him before the morning.

Just with the contracts at the heart of The Merchant of Venice or Peter Greenaway’s wonderful The Draughtsman’s Contract, the plot of this movie also turns on cultural assumptions about the binding nature and literal enforcement of written contracts – even dubious contracts. Read the rest of this entry »

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From one of my favourite fun blogs, Being Five, a cartoon strip called The Artist:

Being Five is a comic strip about a kid named Georgie who blogs using voice recognition software (since he can’t read or write yet). In the first panel, his friend Vince is visiting, and Georgie introduces introduces him as the best artist in kindergarten.
In the second panel, Vince says that he wants to be called Picasso in future.
In the third panel, Georgie says: “Ok, here’s a picture by the Artist formerly known as Vince”.

The notoriously litigious artist now once again known as Prince has of late been on the receiving end of an action for breach of contract in Ireland. Read the rest of this entry »

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Putting blogging into perspective, via Alex:

Clive disappeared for a week to think about life. When he got back, Alex told him that his colleagues were worried.
Clive exclaimed: “But it was all on my blog. You mean you didn’t read it?”.
Alex replied: “No, of course not .. No one does .. Why would we?”.

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I’m sorry not to have been able to acknowledge the celebration of AFAF’s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani’s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.

Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Read the rest of this entry »

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From xkcd:

Hint: to get the full effect, mouse over the image.

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