Will judge Leveson become one of history’s heroes not for debugging and democratising the British press but his own profession — law and the courts?

This conclusion of a communityaustralia.org.au report http://www.communitylawaustralia.org.au/wp-content/uploads/2012/07/CLA_Report_Final.pdf in 2012 is actually true everywhere in the English-speaking world -- image modified by postgutenberg@gmail.com

The conclusion of a 2012 Community Law Australia report is actually true everywhere in the English-speaking world
— image modified by postgutenberg@gmail.com

[ This is a long post — ‘Many cups of coffee!’ as Manne, a Finnish friend, once warned us in a preface to a letter. ]

We have been surprised to notice that an important but cautiously worded public lecture in London last November by the British judge so far referred to in this spot as Lord Justice Leveson has attracted almost no media attention. Our regular readers will remember that Leveson LJ — now correctly called Sir Brian Leveson, or LevesonP in legal shorthand, after a promotion (see footnote**) — led a government-ordered inquiry into the workings and ethics of the British press nearly five years ago.

Remarks at the start of this exercise by the Lord Chief Justice who appointed Leveson LJ to his inquisitorial post led some of us to hope that, at the inquiry’s end, the judge’s most famous prescription for improving Fourth Estate ethics and objectivity would be to open up journalism to wider public participation. In other words, that he would push for a democratisation of the press as radical as the mass dissemination of knowledge and learning that Johannes Gutenberg’s printing press permitted — not overnight or even in 50 years, but eventually, a point made in our last post.

Exactly why the inquiry failed to yield any such recommendation in spite of the strong nudge from the Lord Chief Justice is unclear. The most interesting possibility is the threat by enraged senior editors and journalists, as well as newspaper proprietors, to turn the tables and demand an equally alarming and humiliating investigation of lawyers and the legal establishment. In the lingering press anger about the judicial probe in 2013, one columnist, (Sir**) Simon Jenkins — a former editor of The Times and The Economistbarked that ‘Lawyers should stick to the law.’ One year earlier, as the Leveson hearings were in full, addictive sway, he noted that ‘Judges consider themselves institutionally beyond correction,’ adding delectably, ‘As for the fee-fiddling, court-delaying, job-sharing, ambulance-chasing antics of the legal profession, you will wait for Doomsday for a judge-led inquiry into that.’

Well, LevesonP might yet rise to the Jenkins challenge. On 12 November, speaking about the early stages of ‘substantial reform’ to ‘secure an efficient and effective justice system … fit for the 21st century,’ Sir Brian said that ‘Information technology is likely to provide the means by which we can do so.’ He spoke of a future with more frequent resolutions of legal disputes ‘other than by trial’; of ‘the development of an online court’; and of an ‘IT dependant system through which the courts can manage disputes so that they can be resolved appropriately.’

Ah. Appropriately. A careful, neutral word chosen by a supremely cautious justice, a signal understatement of the death blows that digitisation and sweeping procedural changes could deal the anciently entrenched customs and culture of lawyers and the legal system. The effects of these transformations, not just in Britain, will fall mainly into two wide, linked categories:

LAWYER-FREE LITIGATION

The richest countries in the English-speaking world have in common the lamentation encapsulated in Australia with the graphic above highlighting the dismaying fact recorded by Community Law Australia that ‘Repeated government and Parliamentary inquiries over the past decade have recognised that the legal system is out of reach for many Australians.’ That is stunning in a country whose people rank as the world’s wealthiest, or nearly so; a country famous for its militantly egalitarian ‘tall poppy syndrome’ culture, and surpassed only by the US in the availability of lawyers (357 vs. 391 per 100,00 people in the late ‘00s, according to a 2010 Harvard Law School study).

As for the US, in a joint contribution to The New York Times in 2010 titled ‘A Nation of Do-It-Yourself Lawyers,’ the chief justices of California — the US state with the world’s largest court system — and New Hampshire invited ‘members of the legal profession to join with us [in] making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them.’

The legal profession’s incandescent reaction — across the globe — to all such proposals has been put bluntly by an antipodean judge at the highest tier, Deputy Chief Justice Faulks of the Family Court of Australia, who does not consider it a response to be condoned or indulged:

Most judges tend to couple the word self-represented litigant (SRL) with an expletive. It is customary to regard them as difficult, time-consuming, unreasonable, and ignorant of processes of the law. … [C]ourts should regard self-representation by litigants as a challenge rather than as a problem. … Self-representation has reached a level in many courts where it is common for at least one of the parties to be unrepresented for one half of the time. This means that courts are no longer dealing with a minority aberration but are being obliged to contend with change which may require altering the way in which courts operate.

TRANSPARENCY: LETTING THE PUBLIC SEE WHAT REALLY HAPPENS IN LITIGATION

Idealistic and naïve non-lawyers, litigation virgins who have always thought of trials and court procedures as instruments for uncovering the truth in any legal battle, are in for a rude shock when they get enmeshed in an actual case. Honest judges will explain that a trial is not a quest for truth. Why is this a fact of which even highly educated people are mostly ignorant? Most litigation, especially civil litigation — which has no celebrity murderers or Scott Turow thrillers about corrupt judges to supply education-by-entertainment — happens in the dark, out of public view. No stranger to the process has any conception of the brutal details of how legal action commonly amounts to the licensed bullying of those with less money by those with more — or is capable of grasping the near-universal truth of what Chief Justice Faulks has said, with a symbolic illustration from Australian court procedure:

The legal profession is one which guards its turf jealously. To an SRL, being in a court room feels somewhat like being in an old-boys’ club where members of the club are speaking to each other in a strange language known only to them, where the members know each other quite well and are disparaging and discouraging of interlopers. … Most judges prefer to have a triangle of dialogue that involves a judge and two lawyers, preferably counsel, at the Bar table. In my opinion this is a perpetuation of the “old boys club”-like environment associated with litigation. … [I]f courts remind themselves that access to justice requires that it should be to all “without fear or favour, affection or ill-will” then it follows that we should place all of our processes, language, practices and assistance under the microscope of that access to justice

Simon Jenkins’ counterattack on lawyers and judges in the UK arose from fears about the endangerment — implicit in the inquiry’s remit — of the independence of the Fourth Estate; of its special privileges; and of its ability to restrict membership. In his Guardian column two months ago about technology forcing all professions to kneel before the transformation of their work by the internet — mostly, by demystifying their expertise and supplying open access to their tools and knowledge — he quoted Bernard Shaw’s trenchant take on the professions as ‘conspiracies against the laity’.

Doctors and lawyers were the chief focus of his commentary, which strangely made no mention of the need for traditional journalism to adapt to the arrival of ‘citizen journalists’ or ‘citizen bloggers’. Whether the recommendations of the Leveson Inquiry have had or will in the future have any significant role at all in reshaping press practices is impossible to tell from our perch seven thousand miles away. The scant coverage of this subject by the British press is contradictory with, for instance, the Daily Mail implying last month that proceeding with the second stage of what was set as a two-part investigation would be an even bigger waste of resources, whereas the Independent drew attention to the new press watchdog to which the Inquiry gave birth, and said that it ‘has started to show its teeth’.

A LevesonP who sets an example with a more vigorous mucking-out of his own profession — which happens to be the one most successfully insulated from change — will be a judge for the ages. He certainly seems to have grasped the unfairness of a profession least affected, so far, by the digital juggernaut, imposing more revolutionary change on one so battered by internet publishing’s destruction of its economic viability that the most representative image of its state would be a stage strewn with corpses from which just a survivor or two limps away, in the final act of a tragedy.

Richard Susskind, the British judiciary’s principal adviser on digitisation for nearly 18 years, has been pegged by the American Bar Association as ‘far and away the best analyst and predictor of the evolution of the legal marketplace.’ His slender book, Tomorrow’s Lawyers, a model of concision, is gripping essential reading with a well-earned conclusion:

[T]he law is no more there to provide a living for lawyers than ill health exists to offer a livelihood for doctors. … [T]here is an opportunity to be involved in shaping the next generation of legal services. You will find most senior lawyers to be of little guidance in this quest. Your elders will tend to be cautious, protective, and conservative, if not reactionary. They will resist change … In truth, you are on your own. I urge you to forge new paths for the law, our most important social institution.

**In an exception to our usual practice of ignoring titles awarded in Britain’s honours system — in a blog written outside any national boundaries — we refer to him in this post as Sir Brian Leveson, though it was as Lord Justice Leveson that he supervised the hauling over the coals of some newspaper proprietors and editors who were undoubtedly burning him in effigy, out of sight, in revenge. We used that title in our posts about the Leveson Inquiry because it was not a so-called gong or decoration, but part of his job description. Though peers (‘Lord’) rank higher than knights (‘Sir’) in the hierarchy of honours, Sir Brian has not been demoted, since then: he was a Lord Justice simply because that is what judges of the Court of Appeal are called.

Explaining the reasons for that would call for an even lengthier exposition than if we were to try to explain why, since his elevation from that position to his new job as president of the Queen’s Bench Division of the High Court of Justice, or Britain’s third most senior judge, he wears a black gown with a ‘short wig’ to hear criminal cases, but a ‘full wig’ on ceremonial occasions — when justices at the very top of the top, in the UK Supreme Court created just ten years ago, do not usually appear in gowns or wigs, but on ceremonial occasions, wear gowns but no wigs. (Impossible! you say? See the Wikipedia entries for Judiciary of England and Wales and Judiciaries of the United Kingdom.)

We are following law reporting practice when we refer to LevesonP, for shorthand.

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Britain’s government ‘moderates’ The Guardian as a commenter on its surveillance policies, and The New York Times hides ex-General James Cartwright

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After the horror of thought police, the most terrifying aspect of the society George Orwell anticipates so brilliantly in 1984 is that almost nothing about its regulations or the behaviour of the people running it makes any sense.

Why was The Guardian so unembarrassed by the inconsistency of making such a fuss about being forbidden by Government Communications Headquarters (GCHQ) to publish any more revelations about the extent of UK and US government spying on the public – when this newspaper also shuts down disclosures about and discussion of matters it considers sensitive?

For instance – what? For instance, reader commentary on the Leveson Inquiry into press ethics and conduct. As more than one commenter pointed out, on the same web page as the newspaper’s unconvincing attempt to justify its censorship, Lord Justice Leveson himself had been permitting far more revealing accusations and evidence to be aired at his hearings. guardian notice Complaint by Guardian editor Alan Rusbridger:

The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: “You’ve had your fun. Now we want the stuff back.” There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. “You’ve had your debate. There’s no need to write any more.”

As a reader identified as ‘Dr. Gabriel Mayer’ on the site of The New York Times pointed out, about the tunnel vision in condemnations of surveillance focused exclusively on the National Security Agency:

What really surprises me is this universal alarm regarding the NSA and a possible sinister utilization of data should something unpredictable and Orwellian take place.

If …… and when …

But right now this comment is being monitored by Google and Apple (I am on one of their products) for sure, and probably a few other bloodthirsty corporate entities.

Where are the op-eds about this reality?

Well, Dr. Mayer, how can the newspapers be expected to attack round-the-clock commercial surveillance when they themselves plant spy cookies on our devices every time we read articles on their sites? Looking for a ray of light in this chilling scene, we were pleased, at first, to read a paragraph in David Carr’s Media Equation column in The New York Times last week. He deftly summarised recent leaks by whistle-blowers and other disseminators of vital information outside mainstream journalism:

Because of the leaks and the stories they generated, we have learned that in the name of tracking terrorists, the N.S.A. has been logging phone calls and e-mails for years, recorded the metadata of correspondence between Americans, and in some instances, dived right into the content of e-mails. The WikiLeaks documents revealed that the United States turned a blind eye on the use of torture by our Iraqi allies, and that an airstrike was ordered to cover up the execution of civilians. WikiLeaks also published a video showing a United States Army helicopter opening fire on a group of civilians, including two Reuters journalists.

But then his characterisation of the leakers being punished conveyed an impression of raffish, marginal and faintly unreliable figures:

Perhaps they got what’s coming to them. They knew, or should have known, the risks of revealing information entrusted to them, and decided to proceed. Like almost all whistle-blowers, they are difficult people with complicated motives.

So, too, are the journalists who aid them. It’s not surprising that Julian Assange, the founder of WikiLeaks, who brokered the publishing of Private Manning’s documents, and Glenn Greenwald, the columnist for The Guardian who has led the Snowden revelations, have also come under intense criticism.

But why was there no mention at all, in his column, of possibly the most distinguished leaker of all – a retired four-star general who was vice-chairman of the U.S. Joint Chiefs of Staff? He is generally believed to have been the chief source for the story last year about an American cyber-attack on Iranian nuclear facilities, a report that appeared in … well, The New York Times. A blogger explained:

In the flood of news surrounding Edward Snowden’s revelations about the surveillance operations of the National Security Agency, another equally consequential development in the crisis of the security state has gone largely unnoticed. This is the news that retired general James Cartwright, former vice chair of the Joint Chiefs of Staff, is under investigation by the Justice Department in relation to the leaking of secret information about the 2010 Stuxnet virus attack on Iranian nuclear facilities.

To understand the significance of this, it’s important to observe that, as with the revelations of Edward Snowden and Bradley Manning, this alleged “leak” did not reveal anything that was not known to the enemies of the United States. In all these cases, the leaks only confirmed what any member of the general public who had bothered to follow the story could reasonably infer.

A New York Times article from June 2012, which allegedly relied on leaks from Cartwright, revealed that Stuxnet was part of a U.S. program initiated by the Bush administration and carried on under Obama.

How did Orwell know? How did he see so far ahead, with 20/20 vision?

How Lord Justice #Leveson let down everyone who cares about the practice of journalism ‘without fear or favour’

Partisan press = blinkered view + distorted facts photograph: postgutenberg@gmail.com

Partisan press = blinkered vision + distorted facts
Reichenau Island, 2011, by postgutenberg@gmail.com

A few days ago, The New York Times columnist David Brooks, arguing from first principles, made the case against a partisan press incontrovertibly. Like all the best essayists, he did this by also constructing the best possible case for the opposing side, listing all the disadvantages of detachment.

That was not long after a Leeds scholar, Paul Wragg – speaking at a workshop of Oxford’s Foundation for Law, Justice and Society on the 12th of April –  expressed his dismay at Lord Justice Leveson’s failure, in his report, to explain or justify adequately his support of press partisanship. This, said Wragg, was inconsistent with the judge’s own repeated reminders of his mission — to find ways to stop the  ‘real harm caused to real people’ resulting from the ‘cultural indifference to individual privacy and dignity’ on the part of the British press.

This blog’s worst fears for the Leveson Inquiry into press ethics and behaviour were expressed in a headline last May:

Will Leveson end blessing press partisanship and slamming the brakes on the rise of new media and the 5th estate?

We had not quite given up hope before our earlier blog entry on the same subject, in February, when we had begun to sense — but not believe — the drift of the judge’s sentiments on partisanship, from his remarks during the hearings:

Leveson hearings: can a “blind and unreasoning” or partisan press censoring citizen-journalists be good for democracy?

We are dismayed by the proof that our pessimism was so fully justified. At the Inquiry’s inception, a speech by the Lord Chief Justice – who selected Leveson LJ for the job – had given us every reason to hope for a diametrically opposite outcome:

Why is The Guardian censoring debate about press reform and ignoring the Lord Chief Justice’s endorsement of citizen journalism?

Everyone should have a chance to weigh what David Brooks said about the virtues of detachment – of non-partisan journalism:

… The detached writer also starts with a worldview. If you don’t have a philosophic worldview, your essays won’t even rise to the status of being wrong. They won’t be anything.

But the detached writer wants to be a few steps away from the partisans. She is progressive but not Democratic, conservative but not Republican. She fears the team mentality will blinker her views. She wants to remain mentally independent because she sees politics as a competition between partial truths, and she wants the liberty to find the proper balance between them, issue by issue.

The detached writer believes that writing is more like teaching than activism. Her essays are generally not about winning short-term influence. (Realistically, how many times can an outside writer shape the short-term strategies of the insider politicians?) She would rather have an impact upstream, shaping people’s perceptions of underlying reality and hoping that she can provide a context in which other people can think. She sometimes gets passionate about her views, but she distrusts her passions. She takes notes with emotion, but aims to write with a regulated sobriety.

There are trade-offs, no matter what spot on the continuum you ultimately choose. The engaged writer enjoys a tight community and a powerful sense of commitment. The detached writer enjoys more freedom and objectivity. The engaged writer emphasizes loyalty, while the detached writer emphasizes honesty. At his worst, the engaged writer slips into rabid extremism and simple-minded brutalism. At her worst, the detached writer slips into a sanguine, pox-on-all-your-houses complacency and an unearned sense of superiority. The engaged writer might become predictable. The detached writer might become irrelevant, ignored at both ends.

These days most writers land on the engaged side of the continuum. Look at most think tanks. They used to look like detached quasi universities; now some are more like rapid response teams for their partisan masters. If you ever want to get a political appointment, you have to be engaged, working on political campaigns and serving the team.

But I would still urge you to slide over toward the detached side of the scale. First, there is the matter of mental hygiene. You may think you can become a political partisan without becoming rigid and stale, and we all know people who achieve this, but the risk is high.

Engaged writers gravitate toward topics where they can do the most damage to the other side. These are topics where the battle lines are clearly drawn, not topics where there is a great deal of uncertainty. Engaged writers develop a talent for muzzle velocity, not curiosity. Just as in life, our manners end up dictating our morals. So, in writing our prose, styles end up shaping our mentalities. If you write in a way that suggests combative certitude, you may gradually smother the inner chaos that will be the source of lifelong freshness and creativity.

Also, detached writers have more realistic goals. Detached writers generally understand that they are not going to succeed in telling people what to think. It is enough to prod people to think …

[ … Read the whole column here … ]