The Empty City - a law and polity blog

(Some mild spoilers,caveat emptor.) There are many good films and plays about the law. Many of these are about criminal law - and the criminal legal process readily lends itself to drama. There are some good films and plays about the civil law, usually about tort cases - negligence or defamation. But there are few good films and plays about commercial law: the buying and selling of goods and services. It is often a dull subject, and dull subjects are hard to make into good drama.

There have been two interesting examples of litigation settlements in the United States being used for wider political goals. In respect of one example, the liberal minded may go Boo! In respect of the other example, the liberal minded may go Hurrah! This post sets out why one should go Boo! to both. * The first example is President Trump’s supposed settlement of his claim against his own government.

Any commentator on human affairs has to reckon with two things: that certain things do not change, and that certain things do. The job is to work out the difference. In one way - perhaps the X-axis - there is nothing new under the sun. And in another way - the Y-axis - there is always something new. Pundits will also have preferences: some prefer the old and will disparage the new, and some will prefer the new and disparage the old.

This post is not about the alleged wrongs of the late Jason Arday, as the facts are not fully available; and this post is not about the circumstances of his death, again because the facts are not fully available. No opinion is expressed on either point, as I do not know enough to express an opinion. This post is instead about a specific issue: what would be the appropriate means of addressing the concerns that many have about the circumstances of his death.

Perhaps the greatest problem with our prisons policy is that of addiction: the addiction of those in politics and the media to demanding lengthy sentences of imprisonment. Those in politics and the media cannot help themselves: every relevant news event means they have to shout louder for “tougher” punishments and shout down those who say or act otherwise. But there are at least two further problems which flow from this problem.

There is enough time left, just about, to fix parts of our constitutional arrangements before the next general election. This is important, as there is a non-trivial possibility of a radical illiberal majority at that general election. Of course, given our (largely Victorian) doctrine of parliamentary supremacy, and given the general deference our courts give to the executive, there is little which could be ultimately done to prevent the damage which a radical illiberal majority could do.

The Empty City - a law and polity blog is a reader-supported publication. To support the independent legal and constituional commentary on this blog, please become a paid subscriber. From time to time, and from cabinet reshuffle to cabinet reshuffle, some politician is appointed to the combined role of Justice Secretary and Lord Chancellor who is not a lawyer. It happened again yesterday.

Regular readers of this blog will recall that there is nothing unusual and indeed nothing wrong with our political system’s capacity to eject Prime Ministers from office. As set out in a previous post, it is that we keep appointing poor Prime Ministers that is the problem, not that we are deft at getting rid of them: an input issue not an output issue. In essence - our body politic retains an admirably efficient discharge system for getting rid of poor PMs, it is the diet which is at fault.

Yesterday this blog published a post, but it had a borked link to the judgment mentioned. Although this was quickly corrected online, it meant those who only read emails would not have the link. That judgment of the ages is here - and you really should read it in full. And my Weekly Constitutional article at Prospect on the case is here. I should be publishing a fuller post on here on the case soon.

There has never been a case like this one. That is not just the view of some passing legal blogger, but of the judge herself. As Judge Kathleen M. Williams said in her latest, highly significant order: “But perhaps the most startling misstatement advanced by Plaintiffs is their characterization of this case as “ordinary.” […] There is nothing “ordinary” about this case; it is the very definition of sui generis.” “Sui generis” is a legal phrase, meaning a thing is unique.