Update: I inadvertently left out what is no doubt the most significant detail of my visit to Cadbury World. Warwick Davis was there with his family, right next to me at times, though I was too timid to actually say anything to him.

24 July 2005

To the Lady Who Thinks Edinburgh Castle Should Accept U.S. Currency:

You are in Edinburgh. That is in Scotland. Which is in the United Kingdom. Which is in excess of three THOUSAND miles away from the closest part of the United States. The United Kingdom is NOT a colony of the United States; they need not accept U.S. currency.

You should not to give a mean look to the nice lady in the gift shop when she tells you that they do not accept U.S. currency. You also should not then complain to your husband, telling him you can't believe they don't take your money.

You are a prime example of why I am ashamed to be an American overseas. You deserve to have a miserable trip, which you apparently believe you are. You should be ashamed of yourself; I am most certainly ashamed of you.

Earnestly yours,

DAG

So I went to the Scottish Parliament yesterday. I took the guided tour and, as it turned out, was the first American my tour guide ever had in a tour. Funny, I thought that this would have been one of the highlights of Edinburgh for all international tourists, but the tour was basically all Scots there to see the striking, fancy (and controversial) new building and take their kids for an educational excursion. The new legislature was authorized in 1998, and began in 1999, giving Scotland its first independent legislature since 1707, when it was subsumed into the British Parliament.

So how do you start a new legislature, for a subset of a sovereign's constituents, so that it has real authority, yet doesn't conflict with the primary legislature? The Scottish Parliament has authority over a very limited set of issues, all specifically enumerated, known as devolved powers. The body can look into other matters, the reserved powers of the British Parliament, but have no authority, rather can only give unsolicited advice.

The Ninth Amendment of the U.S. Constitution serves precisely the opposite purpose as Scotland's devolved powers. Although the Scottish Parliament functions similarly to U.S. state legislatures, it is significantly different in that its authority is dependent on the willingness of the British Parliament to allow it to exist. So what difference does it make?

In a modern, administrative state, probably very little - the matters handled by the Scottish Parliament are largely the same as a U.S. state legislature handles. And, in this case, it does make for significantly greater local autonomy; some is better than none. But Scotland is somewhat powerless. U.S. states, according to the Constitution, have some leverage over Congress because of the Ninth Amendment, which formalizes the presumption of authority in any matter. In this manner, states are not subordinate to the federal legislature in the way that Scotland is. On one hand, you avoid a lot of conflicts, such as Raich, Kelo, and other challenges to state actions and state reactions to federal law. On the other hand, you avoid precisely such conflicts - maybe not as good as it sounds.

Long post full of spoilers. Click "show" to... well, show.

Watching the BBC news early this morning, the financial correspondent mentioned a firm and said that that firm "deals in drugs." Oops. Red-faced, he promptly refined his comment to say that they actually manufacture and sell pharmaceuticals.

I'm in Glasgow now, for a few days of sightseeing before heading off to Gloucester to talk about Harry Potter (and law, of course) at this law and literature conference.

Stay tuned for some discussion of Harry, Dumbledore, Snape, horcruxes, and all that good stuff. (And, who knows, maybe something substantive to boot.)

A Canadian court issued a John Doe order to enjoin individuals that obtained copies of the Half-Blood Prince (from a retailer that jumped the gun) from reading their copies. From IPKat:

Author JK Rowling’s literary agent said

“Copyright holders are entitled to protect their work. If the content of the book is confidential until July 16, which it is, why shouldn’t someone who has the physical book be prevented from reading it and thereby obtaining the confidential information? How they came to have access to the book is immaterial.”

It’s at times like this that the IPKat wishes that he wasn’t such a blackletter lawyer. While strictly the contents of the book may constitute confidential information, the idea of injuncting innocent purchasers in the interests of having a showy launch leave the IPKat frankly horrified.

It seems that it is actually very material how they came to have access to the books. They purchased from an authorized retailer; they are (although not a copyright term) holders in due course, or a bona fide purchaser, as it were. Rowling has a beef, that's for sure, but it ought to be with the Canadian publisher and store, who allowed it to happen.

Let's twist this around a bit and think of what would happen if a similar rule were applied to broadcast regulation, a related legal regime. Would it make sense that you could be allowed to keep a TiVo'd copy of Janet Jackson's wardrobe malfunction, yet be enjoined from watching it ("time-shifting")? Of course not, that's absurd.

Finally, I'm embarrassingly unfamiliar with Canadian copyright law, but I suspect that this next little bit is substantially the same there. Copyright law (at least in the U.S.) isn't about protecting confidential information from disclosure in the first place, it's about retaining control over subsequent use and dissemination. Again, Rowling, etc. have definitely been done wrong, but not by the readers. Enjoining your fans from reading your book can't be such a good idea.

So says Tokyo's governor. "No", replied the 21 people suing him for that comment.

As if town v. gown relations aren't already tenuous at campuses around the country, this Chronicle of Higher Education article (subscription required) shows where Kelo is taking us to:

Although eminent-domain laws vary from state to state, many allow government agencies to condemn and take property from unwilling sellers on behalf of private developers -- including private colleges -- provided that such a land transfer is viewed as likely to promote the public interest by, for example, spurring economic development and creating jobs.

...

More recently, Columbia University has explored the possibility of using eminent domain in its bid to try to expand into an adjacent Manhattan neighborhood. Documents obtained by the university's student newspaper, the Columbia Spectator, show that Columbia offered to pay the legal costs of a state development group if it used the right of eminent domain on the behalf of the university.

Some reasonableness, at least, in the article:

Experts say the decision seems unlikely to lead major private colleges to pursue eminent domain.

Jerold S. Kayden, a lawyer and professor of urban planning at Harvard University's design school, says private colleges face an uphill task in persuading local governments to seize property because the general public typically believes that local governments should not use this method to help colleges to secure their growth.

A lot of people have suggested that the new Supreme Court justice ought to be a woman. Apparently (via How Appealing), this will be voiced on USA Today's op-ed page Wednesday (by Tony Mauro).

I'm somewhat ambivalent as to whether or not sex should really be a factor one way or the other. That said, it seems that the many of the best candidates (whether on the speculative short-lists or not) are women. Professor Todd Zywicki identifies two outstanding choices: Fifth Circuit Judge Edith Jones and Sixth Circuit Judge Alice Batchelder. Both are impeccably qualified, for the reasons Zywicki discusses.

And I'm a little surprised at so much Gonzales speculation. After all, mightn't Gonzales be "Spanish for Souter", even if "Al Gonzales is a great friend of [Bush]."

Professor Ann Althouse has a fabulous one-liner towards the end of this post:

I have a feminist critique for anyone who wants to see a special women's version of the law.

Fabulous line. And a fabulous rebuttal to Dahlia Lithwick's criticism Justice O'Connor:

Justice O'Connor is a huge mystery to most women of my generation. How could someone who blew open doors for generations of women after her show so little empathy to female victims of violence... or to teenagers facing the death penalty... ?