Category: United States Law and Policy

Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism

24th August 2023

One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.

An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.

This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.

A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.

From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.

There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.

Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.

Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.

But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.

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In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.

Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.

This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.

But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.

What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.

And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.

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It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.

Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.

The battle is not about constitutionalism against anti-constitutionalism.

It is between two contrasting and irreconcilable views of constitutions and what can be done with them.

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Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process

15th August 2023

 

There is an old Hebrew proverb which can be roughly translated as:

What is the difference between a wise person and a clever person?

A clever person can get themselves out of situations a wise person would not have got into.

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There are many points of similarity (as well as of contrast) between Boris Johnson and Donald Trump.

One common feature is their manoeuvrability.

They can perhaps be seen to get themselves out of situations which more prudent politicians would not have got into.

The impression conveyed is a constant short-term living-on-ones-wits, with a deft dodge here and will-to-power there, which would exhaust most other mortals.

But.

Each improvisation comes with a potential cost, for what deals well with one situation may not be helpful in another situation.

And this is the difference between tactics and strategy.

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To put this in more concrete terms: Johnson and his lawyers appear to have hit on a good defence to possible criminal liability over the Downing Street parties.

A previous blogpost sets out how useful this line – about the need to show leadership in a work situation – was in dealing with the police and any potential fines or prosecution.

But that defence came with costs.

One cost was that it provided no defence to his own birthday party: and so that was the one for which he was fined.

And another cost was that it offered no relief in respect of the House of Commons investigation: what was a good defence in one context had no traction in another.

Johnson’s attempts to “lawyer-up” for the committee fell flat, his legalistic and supposedly “devastating” submissions got him nowhere – nowhere, that is, other than outside of the House of Commons.

His tactics worked regarding the potential criminal liability, but his strategic approach to holding power was so inept that he went from being an incoming Prime Minister with a sizeable majority to not even being a member of parliament in less than a single parliamentary term.

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A similar thing can perhaps be seen now in the United States.

Trump somehow headed off not one but two impeachment exercises: he may have been impeached twice, but he was not convicted for either.

The latter impeachment was, of course, for the events of 6 January.

And so he avoided the punishment set out in the constitution for political misconduct.

But where the impeachments have failed, it appears that indictments have taken up the political slack.

It is maybe difficult to imagine that any of the current indictments against Trump – even the document retention ones – would now exist had Trump been convicted on impeachment.

(Logically, of course, the events of 6 January would have been different had the earlier impeachment ended with a conviction.)

Had Trump been convicted on impeachment – even if he had then received a Ford-Nixon type pardon – and thereby formally dismissed from office and unable to return, then it is possible that it would have seen that he had been punished enough.

An exercise of political misconduct – his role in the events of 6 January – would have then been dealt through the constitutional mechanism of impeachment – and so would have had a political solution.

Instead that political misconduct has been converted into criminal charges.

This is not to say that the criminal charges are not sound and evidenced – some of the cases look very strong and Trump’s position looks correspondingly very weak. Trump is in serious legal jeopardy.

The point is that these indictments (with the possible exception of the document retention charges) are really doing the job that should have been with the second impeachment, had Trump and his Senate allies not manoeuvred for an acquittal.

That tactical success, however, offers no defence to the criminal charges he now faces.

And instead of disgrace and permanent removal from office, he now faces criminal liability and even prison time.

The Georgia charges look especially bad for him, as there seems no pardon would be available – either from a president or the governor of the state.

In essence: it would seem that the impeachment process failed in the very circumstances such a political and constitutional remedy should have succeeded.

And, if you will pardon the pun, that is quite an indictment of the US constitution.

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A note of caution for those clapping and cheering at the latest indictment of Donald Trump

8th August 2023

 

(Picture credit.)

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The former president of the United States is facing serious legal trouble, with a serious criminal indictment which takes seriously his role in the 6 January insurrection, and – what is more – he also faces a serious judge taking her job seriously.

No matter how many times one types “serious” it is hard to overemphasise how serious this is for Trump and, by extension, for the United States generally and for the liberal constitutionalist notion that nobody, not even Donald Trump, is above the law.

But.

Taking this seriously also should also mean that those looking on should not give way to elation and celebration.

And this is because, as with all contested litigation, there is the possibility that this case can be lost as well as won.

It is too early to be clapping and cheering.

Imagine the following scenario: the prosecution throw everything they can at Trump. Each charge is evidenced and each witness comes up to proof.

Imagine that the case against Trump could not be framed better and could not be put before the court better.

Imagine a dream prosecution, one where everything goes right.

Imagine all that and then imagine, for this is litigation and all contested litigation is ultimately uncertain, that Trump is found not guilty.

This is not actually a fanciful point: the laws being relied upon by the prosecution are not commonly prosecuted and there is doubt as to the reach of those laws.

And Trump will be fighting for his political life – and whichever lawyers he manages to employ the duration of the trial will also be seeking the best possible presentation of the defense.

There is a non-trivial possibility that Trump may be found not guilty.

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What this would mean – or at least what Trump and his supporters will take it to mean – is not that Trump has escaped condemnation and conviction.

It would instead be taken to mean complete and absolute vindication of Trump both in respect of the incidents of 6 January and of his framing of the prosecution as a “witch trial”.

The consequences of such a vindication will be profound and lasting.

Of course, this possibility does not mean that the prosecution should not go ahead.

Nothing in this post should be taken to mean that the prosecution should be aborted.

The point of this post is not about prosecution practice and discretion: indeed, as far as one can tell, the prosecution is doing a good, impressive job.

The point of this post is to counter the jubilation at the indictment.

This is high-stakes litigation, in a case which may (as they say) make law.

Perhaps the prosecution wins and, after exhausting all and any appeals, Trump is held to be criminally liable for his role. If so, those opposed to Trump can then clap and cheer.

But we are not yet near that outcome, and the implications of the prosecution not succeeding need to be taken seriously too.

A great deal rides on this case, and the outcome is not certain.

Brace, brace.

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Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

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The overlooked obstacle to the United Kingdom withdrawing from the ECHR

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From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

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That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

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The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

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When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

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Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

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And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

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Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

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This post is partly drawn from this earlier blogpost.

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Why the dropping of the REUL sunset clause may be very bad news for Rejoiners

11th May 2023

There is a glorious, telling passage in the new book from Anthony Seldon about Boris Johnson.

It is the day of the Brexit referendum result:

“Boris Johnson had expected Remain to win: ‘Holy s**t, f**k, what have we done?’ he uttered under his breath on hearing the result. […]

“‘Oh s**t, we’ve got no plan. We haven’t thought about it. I didn’t think it would happen. Holy crap, what will we do?”

What will we do, indeed.

As a Canadian diplomat remarked at the time: the Brexiters were the dog that had caught up with the car.

And that has pretty much been the general position since: what do we actually do with the possibility of divergence from EU law and policy?

Because there have been few answers to that question, there have been a succession of simplistic, gesture-ridden proposals.

For example, the Johnson government promoted a Bill that would mean that all retained EU law would be repealed automatically on a given date: a so-called “sunset clause”.

As Brexiter ministers could not think of anything specific to repeal, they decided to repeal everything, all at once.

This was silly.

The unintended consequences of sudden removals of forty-five years worth of technical legislation would have been horrific.

And this sudden removal ignored the fact that much of that legislation had been crafted and shaped by United Kingdom ministers and officials in our interests and to meet our needs.

The proposed legislation was a reckless exercise in superficial politics.

The government, now recovering some of its wits under the new Prime Minister Rishi Sunak, has now announced that the sunset clause will be ditched.

This is a sensible and welcome move.

Some who want the United Kingdom to rejoin the European Union may want to gloat at the government’s reversal.

But.

Rejoiners should perhaps be worried instead.

For this shift – like the Windsor framework – is a signal that Brexit silly season may be coming to an end.

And that long-term, fundamental divergence is about to begin.

The government is now getting real – and realistic – about Brexit.

The clowning legislation of Jacob Rees-Mogg is being dumped.

Of course: some Brexiters are upset at this symbolic sunset being itself sunsetted.

For them the politics of Brexit is just about symbols and gestures.

And so they too are quite unaware that the real Brexit is now beginning.

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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The Indictment of Donald Trump and the Art of the Process

31st March 2023

Another “-ment’.

Following his two impeach-ments, former President Donald Trump now has an indict-ment.

(There is a pleasing parallel to this, as impeachment was the quasi-judicial process which our ancestors provided for dealing with errant politicians instead of having trials on an indictment.)

But just as a cover is not the book, an indictment is not a conviction.

It is instead the start of another process – and Trump has spent a good part of his life gaming and otherwise manipulating processes, both formal and informal.

This is the essence of the book ghost-written in his name, The Art of the Deal.

In that book, the title’s artfulness is about how negotiation processes can be exploited, how leverages can be gained, how opportunities and advantages are created and taken.

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It is almost as if all his career Trump has merely been preparing for dealing with an indictment in the state of New York.

But.

Some sports are more dangerous than others, and some sports are very dangerous indeed.

And so are some processes, and if Trump puts a foot wrong in his engagement with this process then he faces a criminal record and incarceration.

Of course: Trump may, in turn, game and exploit that eventuality, and appeal to his constituency as a victim and so will emerge somehow as a winner from all this.

The criminal process will take place within a wider political-social-media game which Trump will seek to play.

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I am not an American lawyer, and the actual charges for Trump are not yet clear, but it seems that they will be in respect of false accounting.

If so, the offence will not be the payment of any hush money directly, but how that payment was accounted for in the books.

And if this offence requires proof of intent, as well as the facts of the misleading or incorrect accounts, then it may not be straightforward to prove.

Absent a confession or a blatantly false statement, it is often difficult to prove fraud in respect of record-keeping.

Trump will know this, and so will his lawyers – and so will the prosecutors.

For just as Trump will be careful not to put a foot wrong, so will the prosecutors.

And as this is a criminal matter, due process and fundamental rights are on the side of Trump.

(If only all criminal defendants could be as lawyered-up and protected.)

So, yes, the indictment is novel and significant – but so were the two impeachments.

The result of this process is therefore not a foregone conclusion – for either Trump or the prosecutors.

And so both sides now will face their hardest tests.

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“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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