Category: United States Law and Policy

“Happily Ever After” – Disney and the Rule Against Perpetuities

30th March 2023

Sometimes there are odd things trending on social media.

A few days ago it was “Catford and Catford Bridge” – and this morning it was “the rule against perpetuities”.

This rule is the law student’s equivalent to the history student’s Schleswig-Holstein question, in that few feel certain they really understand it.

But in essence, it is the means by which the courts can prevent certain property arrangements from having effect too far into the future.

The main encyclopedia of English law describes the rule as follows:

“the rule against perpetuities […] which prevents the creation of interests in property which are to vest at too remote a time”.

And, looking it for the purpose of this post, I learn perpetuity in England is now set at 125 years.

In Florida, however, there seems to have been no such legislative intervention – and this brings us to today’s trending news.

In essence, the lawyers here have adopted an eye-catching variation of the living-person-plus-21-years formulation which some lawyers have used as a way around the rule against perpetuities.

The formulation provides the means of reckoning an end-date by reference to someone now alive.

Given the most recently born of King Charles’s descendants is Princess Lilibet, who was born in 2021, then if she lives to seventy-five the term of the declaration would be at least a hundred years.

I am not a Florida lawyer, but looking at the thread as a whole it would appear that the Reedy Creek Improvement District Board’s lawyers realised there was the possibility of any “in perpetuity” provision being challenged and so they prudently provided the reference to King Charles’s descendants as the fallback position if that challenge is successful.

And presumably those lawyers selected the descendants of King Charles now living because (a) their birthdates are matters of public knowledge and (b) the most recent birth of a descendant now living was 2021.

It would have made less sense if a similar provision had been adopted in say 2012, before the birth of Prince George, as the most recent descendant would then have been Prince Harry in 1984.

I have no idea if such a specific fallback provision is common in legal instruments in America or elsewhere, but contracts providing for what happens if a particular provision is unenforceable is a commonplace in many contracts.

And any sensible lawyer knowing that the rule against perpetuities would be invoked would insert a fallback position.

It is only the eye-catching example which makes this one seem that different.

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The irony here is that this is not the first time Disney have been playful with terms of years for property rights.

Disney has form.

You may recall the Mickey Mouse Protection Act.

One promoter of the legislation, Mary Bono said:

“Actually, Sonny [Bono] wanted the term of copyright protection to last forever.

“I am informed by staff that such a change would violate the Constitution. […]

“As you know, there is also Jack Valenti’s proposal for term to last forever less one day.”

Alas, Disney did not get their way that time.

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Perhaps no lawyer has ever legally defined “happily ever after”.

But from Disney’s perspective, “happily ever after” can be now be defined as twenty-one years after the death of the last survivor of the currently living descendants of the King of England, or even “forever less one day”.

And that is the magic of the law of property.

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Ten thousand greased piglets

20th March 2023

This may be quite the moment for the interplay of politics and process.

We have this week the former prime minister Boris Johnson facing detailed questions before the privileges committee.

We also have the deputy prime minister and lord chancellor Dominic Raab facing the outcome of an inquiry conducted by a senior barrister.

We have rumours that former president Donald Trump is about to be arrested.

And last week we even had an arrest warrant for Vladimir Putin.

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These are not equally momentous, but they do have two things in common.

First, each of these are examples of politicians being held to account but not in any usual way: each is unusual.

The nearest to a normal political process is Johnson being examined by fellow members of parliament before a parliamentary committee: but he may have to evidence on oath, and the story of this inquiry is already packed with legal and media attacks and manoeuvring.

The inquiry into Raab is also not formally legalistic – but it is lawyer- and evidence-driven.

While Trump and Putin may face formal judicial proceedings.

Second, each of these processes features a mode of evidence-based questioning or inquiry that is structured so that the probing is difficult to evade or ignore.

And this is because politicians are adept at evading or ignoring questions.

In other words: politicians are good at not being accountable – that is, literally, at not giving an account of what they have done.

Normal political processes of accountability have in each of the examples failed – or in the case of Putin, never really existed.

And so resort is being made to forms of questioning and inquiry that are harder to evade or ignore.

Some may think that a law and policy blogger would applaud this: for at last there will be hard examinations that cannot easily be deflected.

But, no.

And this is because legal and political processes should be distinct and separate.

Instead of this being a triumph of the forensic method, it is a failure of the political method.

This is not a good thing.

Every lurch towards extreme parliamentary processes (Johnson), non-parliamentary processes (Raab), and judicial processes (Trump, Putin) is an implicit admission of the failure of political processes to check and balance those with political power.

Yes, some of these events may end up with striking political theatre.

And it may well be that such formal processes are the only way to deal with politicians who share the famous description of Johnson as a “greased piglet”.

But this shift is not a good thing on scale.

For soon we may go from a handful of greased piglets to hundreds if not thousands, with normal forms of accountability finally being accepted as redundant.

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When William Rees-Mogg and James Goldsmith asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty – this week’s Substack essay

2nd March 2023

Over at Substack, the essay for paying subscribers is on the 1993 case brought by William Rees-Mogg and James Goldsmith against the Maastricht Treaty.

You can read it here.

For the reasons set out in the essay, it is fair to see the case as one of the origins of Brexit.

The essay begins as follows:

The case was described by the party who brought it as “the most important constitutional case for 300 years”.

This was the application for judicial review brought by the life peer William Rees-Mogg in July 1993, where he sought a High Court declaration that the legislation giving effect to the Maastricht Treaty was unlawful. Lord Rees-Mogg wanted the courts to tell parliament that a Bill, which was then about to become an Act of Parliament, was invalid. It was to be a strike at the very principle of parliamentary sovereignty.

His lead barrister for this ambitious claim was a recently appointed QC called David Pannick, and the high costs of the claim was financed by James Goldsmith (a year before he founded the Referendum Party).

The legal claim so concerned the John Major government that, in addition to instructing the then Treasury Devil (the government’s usual barrister for such cases) it also instructed one of the most brilliant barristers of the day (and still, happily, our day), Sydney Kentridge.

The stated grounds for the application also so alarmed the then Speaker of the House of Commons Betty Boothroyd to take it upon herself to warn from the speaker’s chair of the House of Commons “that the Bill of Rights will be required to be fully respected by all those appearing before the Court”.

The timing of the case was significant. When the claim was brought the Bill giving domestic effect to the Maastricht treaty was still before parliament, though it received royal assent before the hearing could take place.

The Maastricht Treaty had been signed in February 1992, but there was a sense that it was not inevitable that it would actually take effect.

The Danes had rejected the treaty by referendum in June 1992, before approving it in a further referendum in May 1993, and the French referendum of September 1992 had approved the treaty with only a narrow 51% majority. Also in September 1992 the United Kingdom’s currency had been ejected from the exchange rate mechanism on “Black Wednesday”. The European Union project was not seen by its opponents as inescapable. Not only was the Maastricht treaty contested, it was seen as capable of defeat.

Domestically the government had had problems getting the Bill through the House of Lords (including defeating Lord Blake’s amendment for a referendum) and had suffered a number of rebellions in the House of Commons.

And when the Bill received royal assent on 20 July 1993 but there was still what then Prime Minister John Major called a “ticking time bomb” of a later vote on the Social Protocol which would mean the treaty could not be regarded as ratified. Major was to win that vote only by making it a vote of confidence.

This was all very exciting at the time, and a great deal of the above – spirited public law claims led by Pannick, judges being brought into political matters, calls for referendums, close commons votes – seems rather familiar at our own time of Brexit. The case is well worth looking back on thirty years later.

And so this is the story of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg.

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Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one.  The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money on PayPal to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” saying when you donated below, with your email address.  (It is important that nobody pays twice for my drivel.)

If you are a regular reader of this blog and are currently not able to afford a paying subscription, also leave a comment below marked “Private” saying so, with your email address, and I will consider providing a short-term complimentary subscription.

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Last week’s essay was on how the courts improvised legal solutions in the hard case of George Blake.

The week before the essay was on the lore of Lady Justice, here.

And the week before that it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

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From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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New post at Substack: 2021 and 2022 were the years constitutionalism was tested

31st December 2022

Over at Substack, for paying subscribers, I have posted a 2000 word essay (with even some multi-sentence paragraphs!) reviewing 2021 and 2022 from a constitutionalist perspective.

I will be doing such an essay at Substack every week on Friday for paying subscribers.

(These essays will also be cross-posted on Patreon – and I will also email copies to anyone who has made a PayPal contribution in the last year – just make a “Private” comment below asking for this.)

Normal daily, free-to-read blogging on law and policy will resume here on Monday.

Thank you for reading and supporting this blog.

I wish you a happy and constitutionally dull new year.

The magical thinking of Donald Trump

22nd September 2022

A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.

For example:

But the comparison is only made as a-kind-of-analogy.

I never thought that when writing about law in modern times I would come across actual magical thinking.

I was wrong.

Consider this:

Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.

The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.

This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.

And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.

Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.

It would be an extraordinary thing – even supernatural and paranormal.

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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.

There is no actual evidence of de-classification, then his explanation needs to deal with that absence.

There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.

It is all very odd.

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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.

If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.

The only difference here is whether the law applies to Trump as it applies to others.

Or is there a legal privilege for Trump?

This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?

Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?

Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.

For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.

 

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The new Prime Minister of the United Kingdom – a constitutionalist perspective

6th September 2022

We have today a new Prime Minister.

You may have Very Strong Opinions about them as a person and as a politician.

But let us put those Very Strong Opinions to one side, and let us look at the appointment from a constitutionalist perspective.

Constitutions are about, among other things, parameters of political action – constitutions provide what certain political and other actors can and cannot do, and when.

So the first point to make is that the new Prime Minister only has a short period so as to make any political impression before the next general election.

It is now September 2022 – and the next general election has to be called by December 2024, in just over two years’ time.

The last possible date for an election, once called, is January 2025.

This means that any controversial legislation – especially if it outside the scope of the Conservatives’ 2019 manifesto – is unlikely to get through the House of Lords in time.

And the new Prime Minister may even want to call a general election sooner, which they can do because the Fixed-term Parliaments Act is now repealed.

The second point to make is how weak the new Prime Minister is, despite the governing party’s majority in the House of Commons.

Only 50 of the new Prime Minister’s colleagues supported them on the first vote, out of 358.

The new Prime Minister did not even have a majority support of their parliamentary party at the final round before it went to the party membership vote.

This means that there seems to be little positive support in the Conservative parliamentary party for the new Prime Minister.

Indeed, both the departing Prime Minister and the defeated leadership contender will probably have as much substantial support in the parliamentary party as the new Prime Minister.

The new Prime Minister, in their first appointments, seems to be rewarding their supporters rather than building a party-wide coalition.

As any Prime Minister only has so much autonomous power, the lack of a natural and positive parliamentary majority will be a problem.

The governing party is currently prone to rebellion and revolt, and there is nothing about the appointment of the new Prime Minister and their first cabinet appointments that looks as if this propensity to rebellion and revolt will change.

So, not only is there a looming general election and the practical inability to force contentious measures through the upper chamber, there is the possibility that the new Prime Minister may not even be able to get legislation through the lower chamber.

Within the United Kingdom more widely, the matter of the Northern Irish Protocol is no nearer resolution, and the Scottish government is pressing for a further referendum.

Serious questions about the future of the Union are being posed at a time where the new Prime Minister is not in a strong position.

And all this – all of this – is in addition to the pressing political problems of the cost-of-living crisis and the escalating energy crisis, as well as war in Europe.

Any one of these would be a challenge to a Prime Minister in a strong position.

It is difficult to see how the new Prime Minister, who is in a weak position, is going to be able to address, let alone resolve, these issues.

As this blog has said before: do not underestimate any politician who clambers to the top of what Benjamin Disraeli called the “the greasy pole”.

And this blog will give the new Prime Minister a clean slate.

But.

Given the circumstances of the appointment, the outlook for the new Prime Minister Elizabeth Truss is not looking good.

It is difficult to be optimistic – even if one supports her politically.

Brace, brace, as they say.

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Never underestimate archivists and librarians – as Donald Trump is discovering

31st August 2022

Here is a lovely story about libraries and public policy.

The year is 1983.

The library is the British Library, formerly hosted in the reading room at the British Museum and other sites.

Nicolas Barker, then the library’s head of conservation, and Lord Dainton, then the chair of the British Library Board, had a problem.

Public finances were under pressure, and spending cuts were everywhere.

But.

They needed to work out a way to convince the then Prime Minister Margaret Thatcher about the urgent need for the move of the library to a new purpose-built building.

They decided to keep the issue simple: no lengthy paragraphs in a wordy report, still less charts or tables.

And certainly no waffly arguments.

They instead took her half a dozen books, as well as a novel by one of her favourite authors, which were falling apart, regardless of the care being taken to conserve them.

They placed the books on the table in front of Thatcher.

Silence.

She looked with horror at the state of the books.

Silence.

And then they then said:

‘Mrs Thatcher, we need a new building because all our books will fall to pieces if they stay where they are.’

So horrified was the Prime Minister at the potential fate of the national collection that they got the go-ahead for the new building.

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There are perhaps two morals to this tale (which I have told before here and is recorded in this obituary).

One is that sometimes exhibits are more persuasive than words.

The other is never to underestimate archivists and librarians.

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That there seems a real prospect of legal jeopardy for former President Donald Trump because of a breach of American archival law.

For many watching this is evocative of Al Capone being nailed on tax evasion charges.

Archival offences seem to Trump’s supporters a convenient pretext for legal action, rather than a substantive wrong.

But.

It is a substantive wrong.

For keeping documents and other information safe both for now and for posterity is a central function of the state.

It is how the government (and legislature and judiciary) of one day speaks to those charged with power in the future.

It is how those with power can be confident that certain information does not go to those who would use that information to cause damage and injury.

Like the integrity of the currency and protecting the realm, preservation of certain information is a core duty of those entrusted with power.

And like the damaged books put in Thatcher, visual evidence can be telling:

(Source.)

Of course, few of us know the facts.

It may well be that this legal exercise comes to nothing, and Trump escapes personal legal liability again.

And Trump is entitled to due process, like you and me.

But the wrongful removal of information from a government is not a trivial thing.

For without properly documented information, modern governments could not function.

That is why laws and policies about document management and retention are so important.

And there would be a wonderful irony if laws and policies about ensuring the integrity of written information were used to check the arch-abuser of political language and post-truth politics.

POSTSCRIPT

The historian Dr Adam Chapman has provided us with this similar story – click through to read more:

 

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Cheney and Constitutionalism – why there needs to be conservative constitutionalists as well as liberal constitutionalists

17th August 2022

Now, there’s a title.

As Vice President, Richard Cheney was a supporter of the notion of “executive privilege” – the notion that the executive can do things which it otherwise would not be allowed to do because they have the constitutional privilege to do so.

This is not a view a liberal constitutionalist blog such as this one supports.

But this blogpost is not about Vice President Cheney, but about Representative Elizabeth Cheney.

She is the Republican congresswoman who, notwithstanding party pressures, has taken a lead in condemning the unconstitutional behaviour of President Donald Trump.

And she has now paid for that politically, losing the primary for her party’s nomination in her state.

But, we may not have heard the last of her politically, because today brought this news:

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Constitutionalism is the idea that there are certain fundamental political rules and principles that should be complied with, regardless of any personal or partisan benefit.

This is my own defintion, formed over thirty years of being fascinated with constitutional issues.

(There are other definitions – and, if you have one which is better than mine, then tell me and I shall adopt it instead.)

Cheney and a handful of other Republicans have placed constitutional rules and principles ahead of their own personal and partisan advantages.

Those conservative constitutionalists must be commended for doing so.

Perhaps if Cheney is elected President, she may be as great an advocate of executive privilege as her father, the former Vice President.

(It is easy to be liberal when you do not have executive power.)

But even her father was a constitutionalist, though a conservative one.

And constitutionalism and liberalism are not the same thing.

Conservative constitutionalism exists, and it is crucial.

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That Cheney keeps on going in the face of hostility if not hatred from Trump supporters in her own party shows there is hope for constitutionalism in the United States.

Because for constitutionalism to be viable, there has to be both conservative constitutionalists and liberal constitutionalists.

For if constitutionalism is seen as the preserve of only liberals – an entirely liberal project – then it cannot claim to be a thing that is regardless of partisan advantage.

So while there are still conservative constitutionalists there is the possibility of constitutionalism being reasserted in American politics.

But.

If all the political careers of the surviving non-Trumpite Republicans end in failure, then constitutionalism itself becomes partisan.

And as constitutionalism cannot be partisan, it will – like Douglas Adams’ God –  promptly vanish in a puff of logic.So let us hope the political careers of American conservative constitutionalists have not come to an end.

Else: brace, brace.

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Hillary Clinton’s emails vs Donald Trump’s boxes of files – and the dangers of hyper-partisanship

 

You will remember the issue of Hillary Clinton’s emails.

She used a private email server during her time as Secretary of State.

You may also be one of those who formed the impression that a later statement by the director of the FBI on the issue led to Clinton losing the presidential election to Donald Trump.

You may also recall the chants of “lock her up” by Trump supporters in response to mentions of this email issue.

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Those in executive office, it would seem, should be careful about how they store information – else they could be breaching federal law.

Framed in those general terms, this description of what Clinton did wrong can cover what appears to be what Trump may have done wrong.

For today there was a search at Trump’s Florida residence by the FBI.

And the search was not for emails, but for classified documents, wrongly taken from the Whitehouse.

Hard copy equivalents of the electronic documents of Clinton.

But instead of clapping and cheering, as they did with FBI announcements about Clinton, Trump supporters are against this development.

So here was Trump-supporting Congressman Kevin McCarthy on Clinton’s emails:

And here is the very same politician on the search at Trump’s property:

There is no intellectually honest way that these two stances can be reconciled.

The only explanation for the two stances is hyper-partisanship.

And like many hyper-partisans, he has invoked constitutional arguments of first principle when it suits his cause, but does not apply them the same way against his cause.

It is this hyper-partisanship which is worrying.

Either the FBI should be free to look at Clinton’s emails or Trump’s boxes or they should not.

But to say one is good and the other bad signifies a partisanship that picks and chooses which basic principles should be complied with.

And as this blog has said before, constitutionalism is the notion that there are certain fundamental rules and principles that should govern political behaviour regardless of personal or partisan advantage.

The FBI should be left to get on with their investigation and to follow where the evidence takes them, without fear or favour.

McCarthy is right that there is an intolerable state of weaponised politicisation.

But it is coming from Trump supporters, and it does not bode well.

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