Saturday, 18 September 2010

For the lawyers, or for the people?

One of the kneejerk reactions of English liberals to America is horror at their Court system. The willingness of the stereotypical American to rush off to a courtroom and sue you for the slightest infringement is regarded as abhorrent. The system whereby no award of legal costs is made to the winner creates scare stories of big corporations putting the frighteners on little people.

There is another side, though. If people know that you can run to the court, then they must respect your rights. If you know that you cannot be threatened with an order for the exorbitant costs of their hotshot city lawyers, then you know that you are free to stand up and defend your rights.

So here's an example. Watch the video, and tell me, which do you think is a better system?

One that says "If the Government passes a law that is unfair and stops you doing your job, sue them and get it struck down"?

Or ours - "If the Government passes a law that is unfair and stops you doing your job, then just give up your job, start a new political party, campaign all the hours of your waking existence, and hope that one day you will reach a position of power and influence in which you can repeal the legislation, allowing you to do the job that you had to stop doing 15 years earlier".


  1. (With Patently's permission) Measured, I have replied to your question to me on the Papal Visit under "benign neglect"

    Blessed John Henry Newman pray for us

    Viva il Papa!

  2. We like to think of Britain as a democracy, but looking at the United States, I think they are a far greater democracy. Their individual states have a large measure of independence (far more in fact than Britain has from the E.U.), most States have facilities for the public to demand the equivalent of a referendum (a "question" on the ballot paper). And of course, most high level police posts are elected and thus are more responsive to public demand. Even their politicians seem to pay far more attention to the needs of their electors and their particular state and refuse to blindly toe the party line. You only have to look at the emergence of the "Tea Party"; I just wish something like that could happen here.
    I have grave doubts whether Britain can truly be described as a democracy these days; and we have the audacity to tell third world countries how to conduct their affairs - one could argue that their politicians are behaving just like ours.

  3. Quite right EP - Britain is not a democracy. Try objecting to something, and you quickly find that the only way to do so effectively is to form a mob. Did I say "mob"? I meant a pressure group.

    More seriously, when was the last time you were asked about a policy? General elections don't count; there is too much riding on them for them to be a meaningful consultation on anything but the most high-level issues. The last one, for instance, boiled down to "Do you think it is OK for Gordon to forever spend money we haven't got on stuff only a minority of people want, or not? Or do you Agree With Nick?". How does that inform politicians as to our views on local policing strategies?

    We laugh at the US for their perpetual election cycle for Congress, the Senate, the President, the Governor, the State legislature, the Sheriff, the Mayor, the District Attorney, the District Attorney's dog, and so on. We laugh at the pork-barrel policies brought in by Congressmen eager to protect their little bit of America. We laugh at their obsession with bringing Court challenges to any bit of legislation that their politicians eventually get around to passing.

    But they have politicians who are actually interested in what their voters have to say. They have a chance to vote on specific issues from time to time. And they have a basic set of core principles that define and protect their way of life and which politicians cannot change on a whim or in response to an editorial.

    I'm not for a moment saying that their system is perfect. Far from it. But I wouldn't hold up ours as being better.

  4. This post raised loads of issues, but I will concentrate on two unfair ones:

    1. Policy creep. For example, regulation of taxi drivers started to prevent others from encroaching on another's patch, ensure standards and improved the safety of passengers. It was popular. It benefited both drivers and passengers. Then the authorities realised that regulation could generate revenue. They also realised that the same regime could be applied to other areas. Quids in, or rather dollars in.

    This is what has applied here and to such an extent that it is threatening the freedom of speech. A brilliant example of over-enthusiastic regulation. However, the view of the guides may change if others want to enter their market.

    2. Legal advice. Lawyers are always the winners in these circumstances. Discuss. ;-)

    It is commendable that there are more elections in the US and it appears easier to sue, but we should strive to remove the barriers of entry into markets. We should also open up the market for the provision of legal advice by ensuring people feel empowered, as well as ensuring that the information people seek is readily accessible. Providing leaflets containing practical legal advice might do this, but those that are allowed to write such literature, understandably, have no interest in doing so.

  5. Thanks for the video, and also for providing some useful legal background about the difference between the way things are done here and in the USA.

    One thing puzzled me about the video. It spoke a lot about "freedom of speech." But my understanding was that anyone could stand there and speak to tourists about the various sites as long as they were not making money by doing so. Otherwise parents could be arrested for pointing out sites of interest to their children.

    Now I know that the authorities could use the system to close down tour guides who were saying things that they didn't like - but this (it seems to me) isn't really about freedom of speech as such - it is about freedom to earn a living without unnecessary red tape.

  6. YMB - the Americans regard "freedom of speech" as a much wider concept than we do. To us, it is a personal right, that I can stand up in the street and voice my opinion. To them, it is much wider and includes commercial activities that are connected with voicing my opinion, expressing my artistic creativity, and so on.

    In short, the fact that they are being paid to speak is irrelevant. I can see their point; what is the value in being able to create a painting that expresses my creativity if I cannot sell it or charge to see it, and therefore cannot afford to create it in the first place?

    In a sense, this is the same "creep" effect that measured points out; the ambit of the freedom of speech right has expanded over the years. Of course, if there has been policy creep by Government, why should there not be a corresponding policy creep in the rights of individuals to resist and contain Government?

    M - I suspect that your example is the other way round. Taxis were regulated to ensure that taxi drivers knew where the destination lay and how to get there, and to lay down a set of rules that protected passengers. Hence the proposal met with acceptance. Once in place, it creeps into a system that creates a barrier to entry and protects patches (and hence ensures that taxi drivers want to keep it) and generates revenue (and hence ensure that the authorities want to keep it). The only loser is the passenger, who has to pay a higher fare and has fewer taxis to call on - the passenger being the one that the regulations were introduced to protect!

    As for lawyers... if you want to hear real vitriol about opening up the legal profession, just ask an IP solicitor about the Patents County Court (which gave rights of conduct and audience to "mere" patent attorneys such as yours truly).

  7. When can I come and listen to your advocacy? ::[muffled laughter]::

    In truth it is easier than it looks. Always start on providing the background of the case/application rather than on why you can't understand why you have had to make the effort to appear.

  8. When can I come and listen to your advocacy? ::[muffled laughter]::

    Munich, usually. Quite common for patent attorneys, in fact.

    I wouldn't suggest coming to listen, though. We get really technical, and it might be a bit hard to follow. ;-)

  9. What is about 'when' that is difficult to understand?

    Let me assure you that if I can't follow it, I will not be alone. There aren't that many in Court either. ;-)