This is the first I’ve heard of this idea, and it’s got me well stumped.

Enjoy.

Well done, Pommy, you’ve sent the blog stats into overdrive… I even took a screenshot of the WordPress home page for keepsies. Classic stuff… not sure how it happened, but our most popular post yet. BTW, you can watch (and download) Fitna here.

UPDATE: I should probably also mention that I’ve blogged this over at Catallaxy, in part because I have Dutch relatives and find the whole issue interesting from their perspective.

And is it enough to save Howard’s bacon come election-time?

Until someone like John H or Jason gets into the nitty-gritty, a penny for your thoughts, Aussie Libertarians and friends.

ADMIN UPDATE 8/5/07: The Budget can be read in full at www.budget.gov.au, or you can read the overview or check the media coverage (Australian, SMH).

Couldn’t happen to a nicer bloke:

In what is believed to be a world first, David Jones begins a legal case tomorrow in which it is suing the left-leaning think tank the Australia Institute and its executive director, Clive Hamilton, over claims the giant retailer’s advertising eroticised and sexually exploited children

The case, in the Federal Court in Sydney, is thought to be the first time a court will consider the sexualisation of children in advertising.

The retailer is suing under the Trade Practices Act, claiming the institute engaged in misleading and deceptive conduct. The avenue of suing for defamation was closed to big companies after the introduction of uniform defamation laws in January 2006.

The case stems from a media release in October titled “Corporate paedophilia – sexualising children by advertising and marketing”, which announced the launching of a discussion paper. The release named retail chains such as David Jones and Myer as having “jumped on the bandwagon” in eroticising children in the interests of the bottom line.

It’s about time we had this conversation. A forensic analysis of just what advertising can and can’t do is sorely needed, and if ever a case is destined to be a ‘battle of the experts’, it’s this one. Oliver James, Clive Hamilton and others like them have made large claims about the capacity of advertising to achieve non-sales outcomes (and, by extension, negative consequences). However, various small studies seem to indicate that advertising is good at raising product profile and sales, but doesn’t actually do much else. Cultural studies theorist Greg Dening had this to say about one particularly well known advertising campaign:

Some years ago, the Commonwealth Government tried to educate the Australian public to the dangers of AIDS by creating some theatre in a television clip. Death, the Grim Reaper, was shown as a figure playing ten-pin bowling. The bowling pins were men, women and children. They bounced and clattered away randomly as death scored. There was some alarm expressed at the time at the brutal starkness of the advertisement. Many felt it was too shocking. It was overkill, some said. Then we learned in the weeks that followed that the chief effect of the advertisement was a sharp drop in the membership of ten-pin bowling clubs. It is a depressing story for anyone who thinks that writing history is theatre. How does one produce the effects one wants in one’s stories? Presumably, if one knew that, one could rule the world or at least sell a lot of something. Maybe the answer is that one can never be sure of producing the effects one wants.

Interestingly, David Jones have wheeled out section 52. This is the classic ‘misleading and deceptive conduct’ provision, and is more typically deployed by weaker parties against those in stronger bargaining positions. It has come to operate as a stand-in for contractual misrepresentation at common law, mainly because the remedies available for breach (under sections 80, 82 and 87 of the act) are more wide-ranging and better able to be tailored to individual litigants’ requirements. It is a major part of Australia’s consumer protection law, and has been effective in a Hayekian jurisprudential sense because it mimics the abstract, end-independent qualities of the common law.

Of course, the usual lawyerly caveats about ‘giving them oxygen’ apply. If the Australia Institute report in question was well known before the suit, it is exceptionally well-known now. However, as someone with a long-term interest in the capacity – first articulated in Plato – of visual stimuli to shape peoples’ minds (and particularly those of children) more generally, I know that much of the debate around censorship turns on a detailed understanding of just what things like advertisements can do.

Now all parties are put to the proof. It should be interesting.

I’m not an economist – as Mr Tex pointed out in his debut post, I too just have a pretty fair idea of what works – but I’m willing to learn. This post is a call to all you economists out there (and there are a lot of them on this blog) to educate this libertarian lawyer.

What the Hell is Mises on about?

Equity is that body of rules developed by the Court of Chancery before the Judicature Acts and since then in courts exercising equitable jurisdiction. It first emerged from under the common law due to inadequacies in the latter. By the late Middle Ages, the common law had become rigid, particularly in its procedure. Justice was not available to a petitioner whose grievance fell outside the established system of writs, or who sought to bring a claim against a locally powerful defendant. Importantly, in a time when common law judges supposedly ‘declared’ the law, equity openly admitted its judges made law. At least initially, it was unencumbered by precedent and decided cases according to ‘rules of equity and good conscience’, leading to Seldon’s jest that ‘equity is a roguish thing […] they should make the standard for its measure the chancellor’s foot’.

Even once its governing precepts became more settled, equity retained characteristics (apart from its autonomous court) distinguishing it from the common law. Most notable was the discretionary nature of equitable remedies. Common law damages — expressed solely in financial terms — were awarded ‘as of right’; to win the case was to win the remedy. Equity, by contrast, engaged in a complex balancing act to determine whether providing a remedy — usually non-monetary — was appropriate.

Many jurists — including Maitland — saw Equity as a ‘gloss’ on the common law, called in aid where the latter fell short by virtue of its universality:

The Cause why there is a Chancery is, for that Mens Actions are so divers and infinite, That it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some Circumstances.

Owing to this supplementary nature, equity is not a complete system of law. Only when the common law proved harsh or maladapted did equity assume a role. Maitland also raised a further distinction between the two jurisdictions: absent the common law, and equity would be insufficient to govern any sort of civil society. Abolish equity, by contrast, and the common law would have limped along all right; less fairly perhaps, but ultimately successfully. ‘At every point,’ Maitland notes, ‘equity presupposed the existence of common law’.

Whether all general law rights and remedies could have evolved through a single system of courts is a moot point. Wesley Newcomb Hohfeld discusses the peculiar circumstance of Pennsylvania, which between the years 1679 and 1836 administered justice without a ‘grant’ of chancery powers. At that time, Pennsylvania was populated largely by thrifty, commercially minded Quakers and developed rapidly. Hohfeld notes that — in time — the Pennsylvanian common law courts began to develop what look suspiciously like equitable principles.

However, it’s important not to view common law and equity as ‘two rival systems’. Only rarely have the jurisdictions been in active conflict, and this (to take the best known example) because James I sought to undermine the powers of parliament and the common law courts. The King wished to preserve the Crown’s prerogative powers, and his use of a popular and skilled Lord Chancellor to this end ensured that where rules of the common law and equity conflicted, equity prevailed. Nonetheless, such a close link between equity and the crown was not always pronounced, and cannot be presumed. In 1535, Henry VIII sought to abolish the whole law of trusts because people were using them to defraud the revenue.

Jurists have long drawn a distinction between equity and common law, a divergence that — as I have shown — is due to equity’s historical evolution. This does not mean that equity fails to be ‘law’ as traditionally defined. Hohfeld saw equity as a necessary part of law ‘in the broad sense’. It was needed, he argued, to make that law characteristic of western English speaking democracies a complete system.

Although early positivists like Jeremy Bentham were suspicious of the incremental nature of much law in common law countries, John Austin later accepted that judges had a genuine, if limited legislative role derived from the sovereign, be it parliament or the crown. H L A Hart’s sophisticated positivism accorded equity a special role historically in hard cases, where the law ‘ran out’. Even Ronald Dworkin — who denies judicial discretion — could argue that equity’s ‘weighty’ principles are essential in helping judges reach ‘right’ decisions. Sir Anthony Mason notes that equity’s broadly drafted maxims encompass a wider range of human behaviour than common law rules, underpinning equity’s capacity to ‘fit’ modern liberal democratic society.

If equity’s status as ‘law’ is not in dispute, the argument that it and the common law are now so similar that retaining a distinction between them is not useful has led to calls — both judicially and extra-judicially — for jurisdictional fusion. This latter form of fusion is contrasted with the administrative fusion effected by the Judicature Acts. By contrast, equity specialists like Patricia Loughlan argue that both jurisdictions are still developing substantive law; mix them at all and one engages in ‘fusion fallacy’.

Sir Anthony Mason — although not advocating jurisdictional fusion — points out that the Judicature Acts have allowed equity to influence the common law productively. Arguably, the latter is becoming more flexible even as equity solidifies and sets. When considering the relationship between equitable compensation and common law damages, for example, there are strong similarities now emerging between the two, and it can be difficult to draw meaningful distinctions between them.

Andrew Burrows calls on all lawyers ‘to take fusion seriously’, asserting that the historical distinction remains useful in only some areas of the law. In other areas (like Mason, he discusses the issue of damages and compensation) the distinction is unhelpful and the jurisdictions should be fused — legislatively, if necessary. Judges have also fuelled the debate; in Seager v Copydex Lord Denning treats the remedies available in both jurisdictions as a buffet, to be chosen from at will.

As a matter of evolutionary gradualism, fusion does seem to be occurring in some areas, especially in the ‘concurrent’ jurisdiction. A substantive doctrine of estoppel has evolved in Australian law. Mason points out that we have progressed a long way towards ‘recognition of an over-arching unity embracing the various classes of estoppel’. In a Hayekian sense, any fusion that does occur is best left to the incremental processes of the courts.

I’m not as sanguine about the War on Terror as John Humphreys, but after this little exercise I’m starting to think that some people – the suppliers of food and beverages at cricket matches, for example - have a vested interest in making things look worse than they are. They can then rip the punters off with impunity.

And if people weren’t told about the $5 locker room/leave your bags at the door charge before hand, I suspect the Trade Practices Act may come into play.

What gives?