Authoritative Digitised Legislation

Introduction

The use of legislative material and, more importantly whether a court will accept it without question,Legislation is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.

Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.

Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:

(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—

(a)   To be a correct copy of that Act of Parliament, enactment, or legislation; and

(b)   To have been so printed or published.

The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.

Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:

(1) Subsection (2) applies to a document that purports—

(a)   to have been printed in the Gazette; or

(b)   to have been printed or published by authority of the New Zealand Government; or

(c)   to have been printed or published by the Government Printer; or

(d)   to have been printed or published by order of or under the authority of the House of Representatives.

(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.

The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:

1.    It is not for the court to ask whether or not the copy proffered is authoritative.

2.    It is for counsel to satisfy himself or herself that what is being proffered is authoritative.

That is all about to change.

Digitised Legislation

The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of the Legislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.

From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website (www.legislation.govt.nz) and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..

Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:

  •  every act and legislative instrument (LI) enacted or made since 2008;
  • every reprint (subsequent version) of those acts and LIs;
  • the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
  • the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).

Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.

Pre-Print

In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.

Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.

Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.

For example in the 14th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.

Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.

Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.

Introduction of Print and the Royal Printer.

I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.

Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.

On 5 December 1485, Peter Actors was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with

“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc. thereon and without rendering any accompt thereof.”

 Henry VII utilized print for propaganda purposes and was the first English monarch to do so  And he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.  It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.

The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated by the technology of print.

The importance of printing and its status continued to be recognised by the Crown and the office of King’s Printer, which was not an honorary one, became a tool of Government.  The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”

The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.

The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicised, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.

One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.

The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.

An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.

The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.”  There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.

The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material –  although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.

 Print vs Manuscript

Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.

In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’  In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.

This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.

Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.

The Digital Paradigm

Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.

This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:

 “When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”

The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.

As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium

“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens.  But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment.  One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future.  Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers.  Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”

But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.

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The Chiefest and Greatest of Calamities

Smaug is what we of Othello’s trade call an area weapon: precise location of the target is not required, nor is fastidious marksmanship necessary for good terminal effect.

 “The Individuated Hobbit – Jung, Tolkien, and the Archetypes of Middle-Earth” by Timothy O’Neill (Houghton Mifflin 1979)

I wrote a year ago in anticipation of the release of “The Hobbit: An Unexpected Journey” and in that piece addressed the nature of Smaug the Dragon. I took the opportunity on Friday 13 December to have a look at “The Hobbit: The Desolation of Smaug” It was a wonderful rendering of a collection of various elements that appear primarily in “The Hobbit” but also in the Appendices to “The Lord of the Rings” and in “Unfinished Tales”.

I have to hand it to Peter Jackson that he and his team seemed to have dreamed the same dream as I have when it comes to rendering the dwelling of the Elves and the musical liet-motifs that accompany them. Thranduil’s realm was beautifully created and the King himself was as mercurial and unpredictable as he appeared in the book – perhaps even more so. He seems to lack some of the ethereal beauty of the Eldar but after all – he is Sindar and a Wood Elf at that. But it is not of Mirkwood or the Elves or the Spiders that I write. Nor is it of Laketown ruled by the Master, marvellously overacted by Stephen Fry in much the same way as Barry Humphries went over the top with the Goblin King in “The Unexpected Journey”. In both cases they work splendidly.

The real centerpiece is the conversation with Smaug and the calamitous aftermath. But first things first. Smaug is pronounced “Smowg” as in “ow” and not “or”. I must confess to having thought in the past the pronunciation was Smorg   but then I was inconsistent because Sauron was always Sowron and never Soron. It is all made clear in the 5th Appendix to “The Lord of the Rings” and all disputes can be resolved with a quick reference to that part of the text. It brooks no argument and Jackson has it right.

Smaug

As to the dragon himself. In many respects the movie Smaug represents the archetype of the evil, malevolent, devious and malicious dragon. My own impression of dragons was shaped at an early age from a reading of Kenneth Graham’s “The Reluctant Dragon” and from Tolkien’s “Chrysophylax Dives” in “Farmer Giles of Ham”. Then along came “The Hobbit” and Smaug was one of the first big nasty dragons but within the context of a book for a younger audience not the sort of beast that would scare your socks off.

Then came the novella “Dragonrider” by Anne McCaffrey which won a Hugo and was later transformed into a novel which was the first of the wonderful and evocative “Dragonriders of Pern” series. A different sort of dragon altogether. Then came the dragons that were mentioned in Tolkien’s other writings – Ancalagon the Black and Scatha who appear by mention only and the frightful Glaurung from the various tellings of the tale of Turin Turambar. By the time we reach Glaurung we know that Tolkien understands his monsters and dragons in particular. Although Grendel and Grendel’s mother are not dragons they are monsters and Tolkien’s analysis of the monster motif in “Beowulf: The Monster and the Critics” makes it clear that the nature of the beast villain is well known to the writer.

But Jackson’s rendering of Smaug takes the evil dragon to a whole new level. I had the impression that there was a lot of Fafnir – the giant turned dragon and hoarder of the Rhinegold in Wagner’s “Der Ring des Nibelungen” – in Smaug but there were other features as well. We never saw Smaug in “An Unexpected Journey” but he is gradually, tantalisingly revealed throughout his interview with Bilbo in the vast expanse of the treasure cave where he dwells, concealed by mountains of his gold with which he will part not one piece. And Bilbo seeks the most unique piece of the dwarven treasure of all – the Arkenstone. Smaug understands this in short order strips Bilbo’s prevarications away. The Hobbit is a threat to the treasure and is an ally of the hated dwarves. Only by using the ring does Bilbo escape the jaws of the beast and even then Smaug with a dragon’s sense for anything golden knows that there is magic in the air. It is at this stage that Smaug is revealed in all his horrifying might – a creature not only of intelligence, Machiavellian cunning and subtlety but of terrifying and destructive power.

The voice of Smaug is Benedict Cumberbatch who does a magnificent job bringing light and shade to the creature, creating a nuanced character full of menace until he is fully revealed in the white heat of his wrath. We last see Smaug heading for Laketown and the movie ends.

Peter Jackson has redefined the dragon in art. Smaug takes many elements of dragons in myth, legend, literature and performance art and moulds them all together into an instantly recognisable and yet unique recasting of the evil monster.

As Bilbo is conducting his conversation with Smaug, the dwarves wait outside the back gate. The rumbling from deep within the mountain can be heard and the younger dwarves question what it may be. Balin son of Fundin, he who was later to go to Moria and meet his own nemesis in the form of the Balrog replies – “that, laddie, was a dragon”.

He was so right. Jackson’s rendering is unmistakably, magnificently, awfully a dragon – the chiefest and greatest of calamities.

Smaug 2

Note

For some general bakgorund information on Smaug see the Tolkien Gateway

For a piece on the history of dragons from the Satanic lizards of the Bible to the Jungian monsters in us all see this piece from The Guardian

The Quest as a Theme in Legend – The Search for the Perfect Key Lime Pie

This post is a sequel to the previous posts about the Courts Technology Conference 2013 in Baltimore in September and deals with the events after the Conference as we took a 1400 mile road-trip down the Eastern Seaboard of the United States. There is a unifying theme to the story which I explain at the beginning but there are other little side ways and by ways that needed explaining or describing so that this post was not simply a story about food. There is little if any law here other than law-based buildings that we visited on the way. There is no technology other than that I was using a Nikon D700 camera with a 28 – 300 mm f3.5 – 5.6 lens – a camera that I love almost as much as my film Nikon FE. All the photos are mine and if you want to see them in higher resolution click on the picture on the blog and you will get the full-sized shot. I hope you enjoy reading about our little adventure as much as we did doing it.

Introduction

The transition of experience to memory to legend and then ultimately to myth is an interesting one and probably explains many of the great stories that illuminate the human condition.  Once one enters the realm of myth one encounters a number of themes and qualities that are common within mythologies and mythological experience.  One of the most common of those is the quest.  I have written about the nature of the quest, drawing upon Joseph Campbell’s writings on the subject in my book “The Song of Middle Earth: JRR Tolkien’s Themes, Symbols and Myths” but in many respects what is to follow combines something that had achieved, within in our experience at least, legendary status and became associated with a quest.

There is a back story, and the back story involves the experience which developed into the memory and at least began to come close to a legend.

In 2007 the National centre for State Courts hosted a conference in Tampa, Florida.  Travel from New Zealand across the Pacific to the West Coast of the United States and then across the North American continent to Florida is a long one and for a three day conference can be quite tiring, especially if one has to turn around and do the return trip after the conference.  So we thought we would add a little holiday on and timing made that holiday precede our attendance to the conference.  We decided to do something of a road trip from a town that we had always wanted to see and our travels would terminate in Tampa Florida.  We flew from Auckland to Los Angeles, overnighted in LA and then flew across the continent to Charlotte, North Carolina where we changed planes for an hour long flight to Savannah Georgia.  That was a memorable flight for the comedy routine that passed for a pre-flight safety check – “if this flight should become a cruise you will find your life-jacket……” I’m not going to write about Savannah at this stage – that will come later.  But one of the things we did was to do the 20 minute drive from the historic district of Savannah.out to Tybee Island. On our way to Tybee just before we crossed the Wilmington River on Wilmington Island (that part of the Savannah River Estuary is peppered with islands and small rivers marshes swamps and low country) – we saw a restaurant nestled in the trees and decided that we would stop there for dinner on the way back.  Tybee Island featured in what Savannah people refer to as “the book” (Midnight in the Garden of Good and Evil) and was the holiday place for the lawyer Sonny Seiler in that book.

On our way back from Tybee we pulled into the restaurant known as Uncle Bubba’s Oyster House  The Oyster House itself has a back story associated with a lady famous for her Southern cuisine known as Paula Deen but that’s another story.  We had an excellent meal at Uncle Bubba’s – which, as its name suggest specialises, in seafood – and for dessert chose Key Lime Pie.  Now I had read about Key Lime Pie but until this day in September of 2007 had never tasted it.  Uncle Bubba’s Key Lime Pie was astonishingly good.  It was melt in the mouth delicious and after we had finished and as we were leaving I spoke with the Maitre d’ and asked it would be at all possible for him to give me the recipe for this most excellent desert that we had experienced.  We were told that that was a house secret and that under no circumstances would he disclose the recipe, but if we were to buy a cookbook which was conveniently to hand we might just find a recipe in it for Key Lime Pie that bore a startling resemblance to that which we had earlier consumed.  We left with the book and a slightly lighter wallet and tried to recreate Uncle Bubba’s Key Lime Pie upon our return home.  Suffice to say that although we got close, Uncle Bubba’s Key Lime Pie occupied the position of Key Lime Pie perfection in our experience for, as we travelled south through Georgia into Florida down to Key West and back up to Tampa, we sampled a few Key Lime Pies but none of them matched up to that which we had experienced at Uncle Bubba’s Oyster House.

2013

Fast forward to 2013.   Once again the National Centre for State Courts is holding a conference about Court Technology and this time it is in Baltimore, Maryland.  Once again we decide to do a road trip only this one would be far more extensive than that of 2007 or subsequent ones which we had undertaken on other excursions to the United States.  On this occasion our travels would take us from Baltimore south ultimately to Key West at the very extremity of the Florida Keys.

Let’s start with Baltimore. We arrived on a direct flight from Los Angeles and picked up a rental car at the airport. The drive into Baltimore was easy and some of the streets were familiar. I had been to a Courts Technology Conference there in August 2001 and not a lot had changed. We settled in to our hotel and met a number of friends and colleagues for dinner at a seafood restaurant named Dalesio’s. The restaurant is situated near the Inner Harbour in a part of town known as Little Italy. A room had been booked and a menu prepared of house specials. We were well looked after, fine cuisine, wonderful company and excellent food. I try to sample local delicacies when I can and the chance to address a plate of mussels monte bianco followed by a main (Americans refer to mains as “entrees”) of crab cakes was one not to be missed. The crab cakes were very large and particularly delicious – quite unlike anything that I have had before. The dessert menu did not include Key Lime Pie but I had a creamy fruit cheesecake that was a delight. I have always preferred my cheesecakes to have a slight tang to them – lemon, lime or even peach – but this one was a berry cake that was quite divine.

I have already written about the Conference and won’t talk about that here. Rather, let’s focus on the recreation.

We had three other meals in Baltimore. One evening we dined at Bubba Gumps Shrimp Co, situated on the edge of the Inner Harbour  This restaurant is a “must-do” on our list of eateries and has been the case for a number of years. We even found a Bubba Gump on the Peak in Hong Kong and stopped for a bit. As the name suggests, shrimp is a speciality. Shrimp New Orleans and Cajun Shrimp are hard to pass up, and Shrimpers Delight is for the really hungry. The other thing is that Bubba Gumps do a mean Key Lime Pie, and so the quest began. A slice of well-presented Key Lime Pie arrived and was consumed with delight. Closing the eyes to focus upon the sense of taste, I found a nice crumbly crust, a lovely limey tang and a smooth and creamy consistency to the filling. A great start!

On the other side of the Inner Harbour is a converted power station which houses an excellent two level Barnes and Noble bookshop along with a Hard Rock Cafe.

Hard Rock Cafe - Powerstation - Baltimore
Hard Rock Cafe – Powerstation – Baltimore
Hard Rock Baltimore by Night
Hard Rock Baltimore by Night

The iconic guitar is attached to one of the power station chimneys. I look upon Hard Rock food as road food, although having said that, their Fajitas are consistently good. Although the menu on the website does not feature it, there was Key Lime Pie available. It was very similar to that served at Bubba Gumps the night before and was very tasty, but at the same time hard to differentiate.

On the way to the Hard Rock Cafe we stopped and looked at the menu for Phillips Seafood Restaurant  and on our last night in Baltimore decided to sample some of the local seafood (again).

Phillips Key Lime Pie
Phillips Key Lime Pie

I had the Broiled Chesapeake Seafood Platter – a veritable feast of different goodies including crab cake, shrimp, scallops, crab-stuffed flounder & fresh catch. And on to dessert. Key Lime Pie was on the menu and so the decision was easy. Out it came, beautifully presented and delight to the taste. This would have to have been the creamiest, smoothest Key Lime Pie that I have had and I made the comment that it could well rival Uncle Bubba’s epitome. It was a heavenly Key Lime Pie with a subtlety that I have not encountered elsewhere. I reckoned that it would be hard to beat, but to be fair, one should not come to a conclusion before all the evidence is in. We had a number of places to go, and a number of restaurants to sample. Suffice to say, the Phillips’ offering was quite remarkable.

One notable place in Baltimore – one out of many – deserves mention. A short distance away from the Inner Harbour is the Holocaust Memorial Park – a simple monument but a powerful one. The Joseph Sheppard Holocaust Sculpture depicts the horror of the Holocaust by portraying emaciated bodies of the victims’ bodies contorted in a ball of flame. The base of the sculpture bears the quote from George Santayana:

Those who do not remember the past are destined to repeat it.

At the centre of the park is a large concrete triangle. The form represents the shape of the badge that the holocaust victims were required to wear. Two yellow triangles, one lying over the other, identified an individual as a Jew. The Holocaust Sculpture stands at the apex of the triangle. A raised triangular memorial plaque stands just behind the sculpture.

Lamp posts representative of rail stations in the 1940s line the plaza. At the end of the plaza are two massive, cantilevered concrete blocks, each 80 feet long and 19 feet high that symbolize railway boxcars. There are steel wedges, at each end, that imply locomotive cowcatchers. The metal grates, in the center, represent the boxcar sides.

Words of Holocaust survivor and author Primo Levi, from his autobiography Survival in Auschwitz, are inscribed on the sides of the concrete blocks.

It is a powerful and shocking monument all the more so for its simplicity in representing the not just the madness of the Nazi Final Solution but of genocide in general. I find it difficult to understand that, emerging from the Holocaust, there should still be those who would seek to inflict genocide upon any group or race of people and upon the inhabitants of Israel in particular. Have we not learned? Or are we doomed to live Santayana’s words.

On To Virginia

We left Baltimore on a sunny Friday heading to Monticello, Virginia for a visit at Jefferson’s house and then down to Williamsburg for two days to take in that wonderful historic town and its outdoor colonial museum.  It was a fascinating experience. We saw recreations of some of the important pre-Revolutionary and Revolutionary events, all well played and in the language of the time. Seditious people in eighteenth century costume strolled about muttering about the evils of the King and the need for true liberty. It allowed you to become immersed in the atmosphere of a town at the time when the world was beginning to get turned upside down.

Williamsburg Courthouse
Williamsburg Courthouse

It is a very beautiful town that has two aspects to it. The first is as a tourist destination with Colonial Williamsburg as the focal point. It must be understood, however, that many of the buildings that are there now are recreations of what was there before. Much of the historic district has been rebuilt. One can only praise Rockefeller for his vision, for he was part of the drive and money behind the Colonial Williamsburg that we now see. On the other hand some of the building are survivors. The Courthouse is one and was a sitting court until some years ago. We attended a “mock sitting” of the Court as it was before the Revolution. Charges such as failing to attend Church were dealt with. More serious crime was dealt with at the Court adjacent to the Legislative building, but it was interesting that the records of the Court formed the basis for the re-enactment.

Williamsburg Courthouse - Interior
Williamsburg Courthouse – Interior

The connection between Williamsburg and Monticello is more than just two stops on the itinerary. I have discussed an earlier visit to Monticello and did not expect that I would have another chance to visit, and it was a joy to return and to once again tour the interior of the house and walk the ground, this time with a companion. There is a certain tranquility at Monticello – something in the air – and it is not difficult to understand why Jefferson built there nor why he loved it so much. To tred the ground trodden by Jefferson  is a privilege.

Williamsburg, the old capital of Virginia, was where Jefferson was educated and where his early ideas were formed. He attended the College of William and Mary, although the law school did not exist at that time. Jefferson studied law under the tutelage of George Wythe – more like what we would recognise as an articled clerk. I don’t know if the road we travelled followed the early road from Williamsburg to Monticello – I’d like to think it did – but we were undertaking a journey that Jefferson would have done many times.

Fox and Grape
Fox and Grape

We had decided to stay in Bed and Breakfast accommodation rather than hotels. We have found that the travelling is far more pleasant, the accommodation more varied and we get to meet interesting people, particularly at breakfast.

We went to an interesting American style restaurant, the Second Street Bistro a couple of blocks away from the “Fox and Grape”, the excellent B & B at which we stayed.

The Bistro offered some interesting varieties of classic American meals, many of which are not present on the website. Specials and local delicacies usually take precedence in my choices and for dessert Key Lime Pie was on offer and swiftly chosen. This was a chilled version of the dessert and was very good. A generous serving of dessert, especially one as filling as Key Lime Pie is always a challenge. This offering was good but not as notable as the pie that we had at Phillips.

From Virginia to North Carolina

From Williamsburg our journeys took us to Outer Banks in North Carolina, an interesting drive and as we headed south and got close to the coast  the wind sprung up and the clouds rolled in – a sombre sky.   We passed by Kitty Hawk where there is a large complex dedicated to the Wright Brothers and their first flight but we stopped a little south of Kitty Hawk at a place named Nags Head where we stayed at a bed and breakfast set back a bit from the beach. By the time that we arrived the weather looked quite threatening and evening was approaching. There was a scent of rain in the air, and First Colony Inn where we were staying offered a cozy atmosphere and a warm room. With the window slightly open – something one cannot often do in accommodation in the US because it interferes with air-conditioning – we could hear the faint whistle of the wind and the sea pounding upon the shore – the wild Atlantic whipped up by wind

We had been recommended a restaurant in Nags Head known as Owens’ Outer Beach Restaurant which has been running for as long as I have been alive.  It is still owned and operated by the founding family and when we pulled up we noticed that the carpark was quite large and quite full.  We wondered whether we would get a table because the building itself, at least from the outside, seemed rather small.  As it turns out it must have been designed by the same person who conceived Dr Who’s Tardis because inside was certainly more extensive than was apparent from the exterior.   The place was done out in a nautical sailing and fishing decor which was perfectly charming.  The atmosphere was cozy, warm and inviting – a welcoming place to shelter from the cold wind and the expected rain which was driving in from the sea.

The food was terrific, the service excellent and the general ambiance was just grand. I chose a Hatteras Combination – local shrimp, sea scallops and jumbo lump crabmeat, broiled with lemon herb butter with Seabreeze potatoes The choice was a hard one given that all the seafood specials and coastal comforts sounded delectable.  Given the strength of the wind that was blowing outside the place had a certain warmth and cosiness that was most welcoming.  And of course Key Lime Pie.

Now let me put one thing straight. I have not encountered, nor did we in any of our experiences on this trip, a bad Key Lime Pie.  The difficulty lies in defining excellence.  Owen’s Key Lime Pie was very good.  It was creamy, satisfied all the taste requirements, was well presented and, as if the case in almost every American restaurant to which you will go, a large serving.

Sunrise over the Atlantic - Nags Head, North Carolina
Sunrise over the Atlantic – Nags Head, North Carolina

The next morning I braved a stiff breeze to go down to the beach and see the sunrise. For some reason on visits to the East Coast I have managed to see some dramatic sunrises over the seemingly endless ocean horizon and this day was no exception. Conditions were not perfect for photography. The wind created its own problems and there were occasional burst of spray off the ocean, but achievement in the face of adversity is always sweeter than success without a challenge. On my return to the First Colony – a hot breakfast anxiously anticipated – I was able to see some of the unusual – well unusual to me – architecture of some of the beach houses at this part of the Outer Banks. Tall houses with ample balconies and some with balconies at the end of staircases that snaked all the way up to the roof. I wondered if there were some building code that moderated the style of dwelling permitted on the Banks, but although there were elements of standardisation, there were also individualistic elements that seemed to argue against a fully standardised solution.

Our next stop after Nags Head was Wilmington North Carolina and this involved a drive back onto the mainland from the Outer Banks – a destination that I would recommend and I wish we had had more time to explore further South down the Banks and to take some of the ferries  back to the mainland and between the islands – and instead of taking the interstates we choose some of less well travelled paths through the state of North Carolina.

From Nags Head we crossed a bridge to Roanoke Island famed as the site of Walter Raleigh’s lost colony.  It’s a local joke when people know you are travelling that road to say don’t get lost on Roanoke but we managed to stay on the road and travelled south into rural North Carolina.  It was beautiful country and somehow or another the radio in the car managed to fasten onto a country music station and the music seemed just right for the travelling that we were doing.    We passed fields of all sorts of different crops including cotton and we were somewhat surprised to see how small the plants were.

Some of our journey took us through wetlands and wilderness areas. We were surprised to see a sign cautioning us to watch out for bears crossing and this heightened curiossity to the point where we actively kept an eye out for bears in the hope of seeing one (or more) and capturing it (them) on camera. But it was not to be.

We ended up in Wilmington and stayed at a very gracious bed and breakfast known as the Taylor House some 7 blocks from the waterfront.

Confederate Monument - Wilmington
Confederate Monument – Wilmington

Once again we were in the historic district and some of the buildings houses and monuments were astonishingly beautiful.  All of the statutes that we saw commemorated North Carolina’s part on the Confederate side in the War between the States.  And I got the distinct impression that there was a certain glory and romance associated with that part of history even although the Confederacy lost.

We had been recommended a restaurant near the waterfront called Circa 1922.   The place looked like a converted warehouse and apparently derived its name from a piano which had a brass plate on it reading Circa 1922 and the owner of the restaurant thought that that name was as good as any for his establishment.

New Zealand restaurants could learn a lot from American attitudes towards service and customer care.  Indeed the New Zealand service industry in general could learn a lot from the American service industry which we found in all of our travels was universally helpful, friendly, obliging and Circa 1922 was no different.

I decided to try the Paella that was on the menu, especially since it had some local seafood in it, and it was not a disappointment. Rather than being presented in a pan, as paella often appears in restaurants, this was done on a plate and was marvellous. And Key Lime Pie was on the “Confections” menu. This dish was well presented  – a crumbly crust, creamy consistency, good limey taste with a sweetness that took the edge off the spicy paella that we had had for a main. The consistency was something that made this pie stand out. Although it was not the same as we had at Phillips it had a certain je ne sais croix about it that made this offering quite delightful. Perhaps it was the combination of sweet\tart after the paella. Difficult to say.

Bellamy Mansion - Wilmington North Carolina
Bellamy Mansion – Wilmington North Carolina

There was one particular building that was very impressive and that was the Bellamy Mansion, just a few blocks away from Taylor House. This astonishing building contained a number of surprises. The first was that, nothwithstanding the beautiful facade, the tall pillars and the iconic “Southern Mansion” style, the main fabric of the building was wood. I guess that the normal expectation of these gracious homes is that they be built of a more enduring material such as stone or brick. But wood seems to be the style. We noticed this with a number of the large mansions that we saw as we travelled through the South. A disturbing thing about the beautiful Bellamy Mansion is the manner of its construction. Our informant had no hesitation announcing that slave labour was used to build the house. I was unable to ascertain whether or not this was skilled labour or the “fetch and carry” type of work accompanying a large construction. Jefferson had skilled tradesmen among his slaves at Monticello – blacksmiths, joiners, carpenters and the like – so I can only assume that slaves were trained for skilled as well as unskilled work.

Wilmington is a County seat and so it was not surprising that we should see large civic buildings and a truly magnificent Courthouse as we continued our exploratory walk. And, as one would expect there had to be lawyers. We were surprised that there

Hanover County Courthouse - Wilmington, North Carolina
Hanover County Courthouse – Wilmington, North Carolina

should be so many law offices. Many of them sat next to one another as we walked the main street down to the river. But these law firms were not situated in office blocks but in gracious residential buildings that had been converted for the purpose. These buildings were presented in a very gracious style – elegant, good quality, conservative, solid, secure – the sort of style that a law firm would want to project. I don’t think that Atticus Finch would have occupied such an accommodation. These places had redolence of leather chairs, brandy, cigars and soft spoken southern  lawyers in seersucker suits.

Bail Bondsman's Vehicle - Wilmington, North Carolina
Bail Bondsman’s Vehicle – Wilmington, North Carolina

The Courthouse was very impressive, situated on a corner, a contrast to the neighbouring white buildings, being constructed or red brick. Next to the Courthouse was an impressive Judicial Annexe, although I can’t be sure if it housed Judges’ Chambers and Administration or Courts and because it was late afternoon, the place was closed to the public. For a moment I imagined that it was the former – large suites of Chambers with room for law clerks, books, comfortable furniture, up-to-the minute computer and research equipment was well as shelves lined with leather-bound law reports. We can but dream of things as they may or ought to be.

Associated with County administration. lawyers, law offices, civic structures and the puff and paraphenalia of the bureaucratic world are a number of other things, one of which we don’t see in New Zealand but which caught the eye. Across the road from the Courthouse and a short distance down the street we saw a bail bondsman’s office. This was intriguing to start with because of the way in which it was presented. This was not a buisness that was discreet, nor was it in any way ashamed of what it did. Rather it proudly announced its purpose – to get accused persons out of custody. The business identified those who wrorked for it and had a van with photos of the staff on it. If you have a look at the photo and the graphic on the back of the van you can see that the idea of keeping people at liberty is something to which they are dedicated. All American Bail Bonding is very up front about their mission and yes – they are on the Web.

On to Charleston

We left Wilmington and headed in to South Carolina. A pleasant drive took us to Charleston, another historic city and the site of the first shots that were fired in the War between the States. We had booked a room at a B&B named The King George IV Inn . The house was built in the 1790’s and has a style of architecture that is repeated in many houses in Charleston. Instead of running parallel to the street, the long, large front porch, repeated on the higher stories, runs at right angles. The House is named the “Peter Freneau House”, after a prominent Charleston journalist and co-owner of the Charleston City Gazette. Freneau was also a merchant, shipowner, and Jeffersonian politician. He lived in the house for many years. Located in the heart of the Historic Shopping and Dining District it is a one minute walk to King Street shopping and restaurants and a five minute walk to the Historic Market.

We were lucky enough to have the B&B equivalent of a suite in that we had a lounge attached to the bedroom which gave us some extra space and a chance to sit and relax.

Charleston has a rich and long history. It is often hard to imagine the difficulties and privations that early settlers underwent to establish what was a rich and thriving port and what is the beautiful city it is today. It was founded in 1670 and within 20 years was the fifth largest city in North America. It was a port for the plantation based economy of the South and with the invention of the cotton gin in 1793 which revolutionised cotton production, and cotton rapidly became South Carolina’s primary export crop.

Charleston Courthouse
Charleston Courthouse

Charleston has a number of beautiful buildings and one of the most astounding is the Charleston County Courthouse, built between 1790 and 1792 in the Neo-classical style. It is still in use and

Charleston Courthouse - The Grand Courtroom
Charleston Courthouse – The Grand Courtroom

is open to the public. The Grand Courtroom wasn’t being used when we visited, nor was the wonderful law library. The Courtroom is very well laid out and furnished in what seems to be nineteenth century style. It had all that essence of a Southern styule courtroom, even to the lovely chairs in the public gallery. Standing there I could almost hear the rustle of fans as observers kept themselves cool in the sultry climate. The library reeks of “old club and cigars” and is a grand room, lined, as one would expect, with law books. The atmosphere is scholarly and dignified.

Charleston Courthouse - Law Library
Charleston Courthouse – Law Library
The Interface Between Southern Cuisine and Domestic Violence
The Interface Between Southern Cuisine and Domestic Violence
Charleston Market
Charleston Market

The Charleston Market is another old building that has a great history to it and functions as that with a great number of interesting stalls and fascinating food items. We were fascinated with the variety and names of the various hot sauces that were available including one with the intriguing name “Slap ya Mama” which seemed to suggest an interface between southern cuisine and domestic violence. In fact it is a brand of Cajun cooking products from Louisiana.

Charleston - Sauces and Spices
Charleston – Sauces and Spices

Another curiosity – well to our eyes at least – was the presence of something associated with horses and carriages. This elegant form of transportation is in Williamsburg, Wilmington, Charleston, Savannah and Fort Augustine. They convey tourists at a leisurely pace and the driver indicates point of interest. What was different in Charleston was the presence of a truck with the livery of a company named Green Horse. This company is incorporated as Equine Sanitation LLC and the vehicle drives the route taken by the carriages and cleans up any horse droppings that may have been left. We didn’t see this company or anything like it in any of the other towns that we visited. Of course, from a sanitary point of view, such a business is very necessary, although I doubt it, or a company like it, would have been operating in eighteenth century Charleston.

Yet there is one matter that cannot be avoided as one travels through the Southern states and that is the blot of slavery. It is easy to be critical from the distance of over a century and a half and as an historian it is wrong to offer moral judgments from such a distance. It is a sad fact that Wilmington, along with other towns and States in the South resisted school integration long after the decision in Brown v Board of Education. The path to equality envisioned by Thomas Jefferson in the Declaration of Independence (and he himself was violently conflicted being a slave owner, albeit a benevolent one) has been a long one and its travelling is not yet complete. Perhaps the starkest reminder of the backs upon which Charleston and its associated economy was built is the Old Slave Mart Museum.

Old Slave Mart Museum - Charleston, South Carolina
Old Slave Mart Museum – Charleston, South Carolina

Possibly the only known building used as a slave auction gallery in South Carolina still in existence, the Old Slave Mart was once part of a complex of buildings known as Ryan’s Mart that occupied the land between Chalmers and Queen Streets. The complex consisted of a yard enclosed by a brick wall and contained three additional buildings: a four-story brick building partially containing a “barracoon,” or slave jail, a kitchen, and a “dead house,” or morgue. Slave auctions there ended in November 1863. The museum recounts the story of Charleston’s role in this inter-state slave trade by focusing on the history of the building itself  and site and the slave sales that occurred there. Standing outside the building was a daunting experience. I have never been to Auschwitz but those fearful gates are an iconic symbol of horror and evil, knowing what happened to those who passed through them. It was a sobering moment, similar to that experienced at the Holocaust Memorial Park in Baltimore. At the Old Slave Mart one is similarly confronted with another symbol of man’s inhumanity to man, and I later reflected upon this dark commerce when I saw the African American Monument on the Riverwalk in Savannah. On the plinth of the statue is an inscription by the poet, Maya Angelou which graphically summarises the first appalling and horrible days of slavery for millions of Africans who ended up in America.

“We were stolen, sold and bought together from the African continent. We got on the slave ships together. We lay back to belly in the holds of the slave ships in each others excrement and urine together, sometimes died together, and our lifeless bodies thrown overboard together. Today, we are standing up together, with faith and even some joy.”

Charleston Cobble
Charleston Cobble

Yet despite this dark part of Charleston’s past, the historic district is truly amazing and it is a very “walkable” city, although, having said that there are a number of cobbled streets in Charleston, and these are serious cobbles. The surface is very uneven indeed, and the cobbles quite large. If you have ankle or knee problems these streets are to be avoided. Yet the expedition is worth the effort if all is well. The architecture and ambience of Charleston is quite unique. Curiously enough our perambulations meant that we could check out the available eating places and on both our evenings we strayed from the path of American cooking, feasting on one night on Greek food at Manny’s Mediterranean on George St and at Leyla’s Fine Lebanese Cuisine on King Street. Neither place offered Key Lime Pie, nor did we expect them to do so. We enjoy Middle Eastern cuisine and both restaurants were very good although quite different in approach. Manny’s was a more casual bar-cafe style of eatery whereas Leyla’s was a restaurant. One of the qualities that we enjoyed at Leyla’s, apart from the food which was excellent and the servings particularly generous, was the warmth of the greeting we received from the owner and the close and careful attention that we received from the staff throughout the evening. It was only after we left that we became aware that it was a new addition to the Charleston restaurant scene, having been open a couple of weeks.

Return to Savannah

From Charleston we had a short drive to return to Savannah, Georgia.  Historic Savannah would have to be one of the most beautiful towns if not the most beautiful town that I have ever seen. The older districts have been lovingly preserved as the result of the efforts of a number of private citizens who, in 1953 were outraged when the old market building was demolished and who mobilised to retain the gracious buildings in the historic and Victoria districts of Savannah – a large number of blocks which ran back from the Savannah River.

Many of the houses – as was the case in Wilmington – are antebellum including the Confederate House, a bed and breakfast on Drayton Street across from Forsyth Park where we stayed in 2007 .   On this occasion we chose to stay in the Catherine Ward House on East Waldburg Street which opens out onto Drayton Street and is about a block and half south of the Confederate House. Savannah and the Victorian and historic districts are wonderful places to walk.  The ground is flat and when the town was laid out by General Oglethorpe in 1733 there was provision for squares and the grid pattern that characterising many American cities.  The streets are lined with tall trees with branches that reach across the carriageway creating an arch under which cars and pedestrians travel and Spanish moss – not a moss but in fact a herb – hangs from the trees creating a wonderful romantic archetypal southern atmosphere.  The houses are beautiful magnificently kept, varied and a feast for the eye.  Squares placed throughout the grid contain statutes where in some cases fountains providing an area for a stop on ones travels, for rest and reflection.  On the river bank are the old buildings that used to be the warehouses from whence the cotton silk and indigo were exported which made Savannah a very wealthy town.  During the War between the States Sherman made his march to the sea the people of Savannah became very concerned in the way in which he treated Atlanta. Early on December 21, 1864, Savannah authorities negotiated a peaceful surrender, and got together sufficient gold for Sherman to convey to President Lincoln thus saving the city from the torch. and Union troops marched into the city at dawn.

Grit and Corn Meal - River Street Sweets - Savannah, Georgia
Grit and Corn Meal – River Street Sweets – Savannah, Georgia
River Street Sweets - Savannah, Georgia
River Street Sweets – Savannah, Georgia

We renewed our acquaintance with Savannah.  It is a town in which I would have no hesitation in living.  Some of the property prices for homes in the historic district look quite reasonable even taking into account the exchange rate. The climate is wonderful and the pace is not frenetic at all.  On our first night in Savannah we ate by the river and the Key Lime Pie that we had at the Bayou Cafe was a good compliment to the southern food that we had had for a main.  Once again it was very good and did what desserts and especially sweet desserts are meant to do after a tangy main. The River and the shops and restaurants along the Riverwalk provides a wonderful focus for Savannah, given the importance of the river to its history. One shop that we found that was temptation and tantalisation de luxe was River Street Sweets which had a devil’s delight of candy, pralines, toffee apples and home made delights. One could smell the chocolate as one walked past. Impossible to avoid. There was even a candymaker plying his trade on a heavy marble bench top. Not only candy was for sale but grits and othe Southern delights.

Our walk back to Catherine Ward House took us up Duval Street and past Forsyth Park – a long park spanning a number of blocks and an especially beautiful and restful place. At the river end of the park is a semi-circular space that has been developed as a form of auditorium and it was here that the Savannah Jazz Festival was taking place over three days. This is a free Festival that lasts for three days. That being so, one would expect the place to be very crowded and perhaps even a little unpleasant. But it was not the case. The audience was very relaxed, sitting on the ground or on folding chairs. Vendors around the perimeter sold food and refreshment although I do not recall seeing any alcohol for sale. The audience was not crammed into a space and there was plenty of room to walk through the crowd and indeed up to the stage for photographs. It was, as they say, a cool scene. The Friday night was devoted to blues and as we approached we heard the strains of Crossroads, the best known version of which was performed by Cream and is on their Silver double album. The band turned out to be the E.G. Kight Band from Georgia.

E.G. Kight Band - Savannah Jazz Festival 2013
E.G. Kight Band – Savannah Jazz Festival 2013

One of the lovely things about travel is that you can get to hear and see musicians who may have a local profile but haven’t hit the New Zealand music scene. E.G. Kight and her band were solid with a good blues background but also with a fusion of country and rock that made for exciting listening and watching.

The next band and headline act for the evening was Watermelon Slim and the Workers. There was not a lot of fusion with this band. They were serious down in the delta and bayou blues with the sound reverberating with all the passion and feeling that the blues carries with it. Quite a different style from the Georgia Songbird, this music was raw and rough,grabbing the soul and twisting it. The set started with a raw harmonica piece leading in to “I’m a King Bee” a version of which can be found here. From there it was slide guitar which had a sound that travelled up the spine in a shivery kind of way. This version of “Hard Times” gives some of the flavour. All in all a great and unexpected close to the evening.

Watermelon Slim and the Workmen - Savannah Jazz Festival 2013
Watermelon Slim and the Workmen – Savannah Jazz Festival 2013

Revisiting the Legend

On the next day that we decided to revisit the legend. However, before leaving Savannah we paid a visit to the historic and well-known Bonaventure Cemetery with its fabulous monuments.

Bonaventure Cemetery - Savannah, Georgia
Bonaventure Cemetery – Savannah, Georgia

The cemetery was formerly the home of the “Bird Girl” a sculpture which features on the jacket of John Berendt’s book “Midnight in the Garden of Good and Evil. The Bird Girl went unnoticed for over 50 years. After the publication of the book, the sculpture was donated to Savannah’s Telfair Museum of Art to avoid disturbances by visitors to the cemetery. The cemetery has an unusual beauty to it. Well laid out, it was formerly a plantation. It was sold and became a privately operated cemetery until it was sold to the city in 1907 when it was given the name it now bears. It runs all the way down to the river but the walk, by whichever route one takes, is a gentle one with shady cool spots provided by large overhanging live-oak trees (Quercus virginiana)  which were remarked upon by John Muir in 1867 and the ever-present Spanish Moss. In fact, without the trees much of its charm would be lost. The variation of grave monuments is quite considerable and one is forced to wonder whether or not there has been a certain amount of competition been Savannahian families for the most lasting and extravagant sculpture. Curiously many of the graves bear a small bronze cross with the letters CSA upon it – the deceased is clearly a veteran of the Confederate Army – yet another piece of evidence that memories are long in the Southern States.

Tybee Island

The Beach at Tybee Island
The Beach at Tybee Island

Tybee Island Homes - Georgia

After an interesting few hours walking and photographing in the cemetery – and it is a beautiful location for photographs – we drove out to Tybee Island and spent the afternoon at the beach, the lighthouse and sat by the Atlantic Ocean enjoying the warmth and the breeze. Tybee Island is an interesting place, full of contrasts. At the southern end there is a pier and parking area and is clearly the place to visit if you want to go to the beach for a swim or entertainment. At the other end of the island is the lighthouse and an oldf military installation that is now a museum containing the history not only of Tybee Island but the surrounding area. But you can get to the beach over a wooden walkway. This end of the beach is quite different. Not a lot of entertainment here, this end of the island is for serious beachgoers. At the same time there are a number of beach houses that are very beautiful and stylish in their architecture. They bear a faint resemblance to the style of some of the Outer Banks holiday homes by are a lot more formal in their presentation. The architecture seems to have been echoed in a development at Orewa north of Auckland  called Kensignton Park – but the echo is somewhat faint.

And So to Uncle Bubba’s Oyster House

We then headed down the island expressway to turn off at Bryanwood Road to arrive at Uncle Bubba’s.  The place hadn’t changed.  The welcome was as warm as it ever had been.   The location was wonderful.  The estuary and the reeds glowed in the golden late afternoon sun – very peaceful and relaxing.

Oysters - Uncle Bubba's Oyster House
Oysters – Uncle Bubba’s Oyster House

I decided to try some of the local oysters – I expected something the size of an oyster that we have in New Zealand and was astonished at what I received.  These shell fish were as big as a fist if not bigger and half a dozen of them were a meal in themselves.  It’s interesting to note that oyster shells were in fact used as building material in Savannah and when I found this out prior to our visit to Uncle Bubbas i considered it must have taken a huge number of oysters, thinking of the size of the shells that we are used to here in New Zealand.  Having seen the shells upon which these oysters were presented I can now understand how they could be used especially since they were found in such abundance when the colony was founded.

And then on to Uncle Bubba’s Key Lime Pie.

Key Lime Pie - Uncle Bubba's Oyster House
Key Lime Pie – Uncle Bubba’s Oyster House

It was wonderfully presented and not a lot seemed to have changed, the serving size.  The serving size was as generous as ever and the taste and consistency were as recalled but there was a jenesais croix about the experience which, in the light of former Key Lime Pies that we had consumed seemed to suggest that Uncle Bubba’s Key Lime Pie didn’t occupy the legendry heavenly status to which it had earlier been assigned.  In fact I would go so far to say that the Key Lime Pie at Phillips Seafood restaurant in Baltimore had edged Uncle Bubba’s Key Lime Pie off its perch.  So here we had a problem.  What happens when a legend turns out to have feet of clay – when perhaps memory has inflated reality.  Is this what happens with legends and myths?  Are they nothing more than idealistic dreams based upon a less than solid reality?  Our decision about Uncle Bubba’s Key Lime Pie was not a disappointment.  It merely meant that our quest had not ended but in fact had to continue.

South to Florida

The next leg of our journey took us from Savannah Georgia to Fort Augustine in Florida.  This is another town full of history and redolent with the past.  It was a Spanish settlement established in 1565.  It is the oldest continuously occupied European established settlement in port and the continental United States and was the capital of Spanish Florida for 200 years.  It has a wonderful Spanish castle – the Castillo de San Marcos which is now a national monument built in the 1600s.

Castillo de San Marcos - St. Augustine, Florida
Castillo de San Marcos – St. Augustine, Florida

There is a very attractive if somewhat commercialised historic district with very narrow streets.  We stayed at a bed and breakfast named the Inn on Charlotte which was extremely welcoming and very comfortable  and dined at a nearby restaurant called Harry’s Seafood Restaurant Bar and Grille which once again had Key Lime Pie on the menu.  Harry’s is an interesting place that has an outdoor dining area as well as an indoor one and, like Owens, managed to accommodate more people than its size would suggest.  After a wonderful main course of Crawfish Etouffee we opted, predictably, for the Key Lime Pie for dessert and I have got to say that this was a gem.  Now whether or not I was still recovering from the end of the Uncle Bubba legend or whether this was truly a work of Key Lime Pie art I know not.  I have already mentioned the Key Lime Pie at Phillips restaurant in Baltimore but the one that we had at Harry’s far and away better than anything that we had had anywhere else in our travels.  The crust was crumbly the consistency was smooth the taste was superb.  The limes were there but what happened when it hit the mouth was just a taste delight and the melt in the mouth experience was unlike anything that we had ever had before.  Harry’s Seafood Bar and Grille had replaced Uncle Bubba’s Key Lime Pie in the legendry Key Lime Pie competition.

Gale South Beach
Gale South Beach

On to Miami

The 3 ½ hour drive from St Augustine took us to Miami and if you have every thought that Auckland has got a spaghetti junction, the Auckland experience is simplicity itself being compared with the nightmare network of roads, over passes, under passes, freeways, turn pikes, interstates and the like that infest Miami.  To make things worse, there were road works which meant that exits had been closed off which made our GPS directions go haywire but we actually resolved that problem which was something that was going to be a common one as we drove around the Miami area.

We stayed at a Hotel known as the Gale South Beach which had been renovated and re-opened in December of 2012.  This was a lovely building in the middle of the art deco district of Miami Beach and the renovations had been done tastefully and beautifully.  Although the rooms in the hotel were very small, the appointments style and decoration were truly marvellous.

We found out we were surprised at the number of renovations that were taking place within the area.  Buildings were being gutted and extensive works were being undertaken.  We were told that in the art deco district, the outer shell of the building must remain and must be decorated in the original style.  What happens inside the building is up to the owner but the outside fabric must be maintained.  Given some of the amazing art deco architecture in the area this heritage preservation programme is commendable and indeed similar preservation projects in Savannah, Charleston, Wilmington, towns which we had visited were a credit to the preservation of heritage and historic buildings.

Our purpose for being in Miami however was not to sit on the beach although that would have been pleasant in the temperatures and weather that was prevailing at the time but to shop at the enormous shopping malls in the area.  Sawgrass Mills, a 35 minute drive from Miami Beach, is one of the biggest shopping malls in the United States and comprises factory outlets and discount bargains in a wonderful setting beautifully laid out and a pleasure to visit.

CSI Miami
CSI Miami

But shopping did not prevent us from taking a look at Miami Beach. It is a spectacular location, decorated with differrent coloured umbrellas placed along the shore by the hotels that front onto the beach. Little huts house beach boys who rent out recliners and space under umbrellas – priority to hotel guests of course. Although the beach is free space it is almost as if there is some prescriptive right exercised by the hotals to a measure of space on the sand. As we came back from the beach I was startled to see life imitate art. A crime scene investigating team was working in the are and their van was present. I searched for other members of CSI Miami but was unable to find anyone – no sign of flame haired David Caruso. But the van was evidence that CSI operates in the area.

The Gale South Beach, apart from being restored and renovated in a beautiful and careful way, had another advantage and that was a pool. However, the hotel pool was not on ground level, as

Collins Ave by Night - Maimi Beach South
Collins Ave by Night – Maimi Beach South

most are, but was situated on the roof, five floors above the street level. Apart from being a very relaxing location that, like the rest of the hotel, was immaculately presented, it also afforded a different perspective to the hustle and bustle that was Collins Ave and South Miami Beach. This was especially so at night, and one had amazing views down Collins Ave and further afield to Miami itself on the other side of the waterways.

To the Home of Key Limes – The Florida Keys and Key West

Our travels took us from Miami back to Key West where we stayed at a lovely bed and breakfast on Whitehead Street known as the Coco Plum Inn, just down the road from Hemingways House.  Key West is, to put it mildly, different.

It is a community that revels in the unorthodox, welcomes artists and creative people along with those who favour alternative lifestyles has some 18,000 permanent residences.  It has a certain rough and edgy quality to it.

Key West Bikers
Key West Bikers

Hens and roosters stalk the streets untroubled by the presence of humanity and it is difficult to determine whether or not they are protected by law or by custom but they have been there for a long time going back to the cock fighting days of the Spanish settlement in Key West and it is as the sign on the southern most point says only 90 miles from Cuba.   The water is luke warm and wonderful for swimming.  Pelicans sit on rocky outcroppings and you can see the weather changes that take place in the gulf and south in the Caribbean.  In fact we could see the beginnings of tropical storm Karen as she began to develop in the Caribbean and the outer fringes created a dark wall of cloud on our second evening at Key West.

Tropical Storm Karen - Key West Florida
Tropical Storm Karen – Key West Florida

I wonder if Hemingway would still recognise Key West. The rough edges around the place would probably be familiar as would the melding of cultures although, given Hemingway’s constant self-portrayal as an example of masculinity I wonder how he would go with the gay culture that is present in Key West or the cross-dressers that stand outside the strip clubs. But the house is there where Hemingway lived for a period in the post-war years and the waters of the Gulf and the Caribbean welcomed his boat “Pilar” the subject of the immensely readabe and evocative book “Hemingway’s Boat” by Paul Hendrickson. Sloppy Joes is still there too, famous not only as the bar where Hemingway drank, but also as the place where Martha Gellhorn met him – or introduced herself – and which was the subject of a moderately good movie starring Clive Own as Hemingway and Nicole Kidman as Martha Gellhorn. An article about the movie and the nature of their relationship can be found here.

Street Life - Key West
Street Life – Key West
Hemingway House - Key West
Hemingway House – Key West

Love him or loathe him, there can be no doubt that Hemingway is one of the greats of twentieth century literature. I could never understand why we didn’t study him at school. He had been awared the Nobel for Literature and most of his work was accessible to secondary school readers as a result of the economy of his prose. I confess a great love for his work. I enjoyed “The Old Man and the Sea” and many of his short stories as well as his posthumously published “A Movable Feast” covering the Paris years. So a pilgrimage to the house on Whitehead St – a short distance from our B & B – and a visit to Sloppy Joes had to be made and with a certain satisfaction and a sense of completeness.

Sloppy Joes - Key West
Sloppy Joes – Key West

We went to a restaurant in Key West known as Square One.    This restaurant describes itself as new American table and describes itself as America’s melting pot with traditional techniques including ethnic twists on old standbys.  For a main course I had the fish of the day which was a local fish known as hog fish served with a crushed pecan crust.  I like to try the local delicacies and I was not disappointed with this one.  The crushed pecan crust is something with which I shall experiment in the future but Square One presented us with something of a problem because in fact it had two Key Lime Pies on offer.  One was pie with a chocolate and berry filling and the other was a traditional Key Lime Pie with a meringue topping.  This is a baked Key Lime Pie rather than a chilled one and what happens is that the pie is baked and then chilled rather than chilled from the start.  There is a subtle difference between the baked Key Lime Pie and the chilled one and there is nothing wrong with the meringue topping – indeed that has been part of the traditional Key Lime Pie experience although it is more usual with baked ones rather than chilled.  This was the first baked Key Lime Pie that we had had and first one with a meringue topping and it was truly beautiful.   Indeed I have no hesitation in awarding Square One the best baked Key Lime Pie that we had and not just because it was the only one but because it was very, very good indeed.  This was the last Key Lime Pie that we had on our journey and its probably fitting that it should be on the Florida keys where the dessert originated.

Key Lime Pie - Square One
Key Lime Pie – Square One

Where does the legend end then.  As I have said Square One must take the award for the best baked Key Lime Pie and certainly Harry’s of St Augustine would have provided the best chilled Key Lime Pie closely followed by Phillips of Baltimore and then I would say by Uncle Bubba’s of Savannah and Owens of Nags Head North Carolina.

This wasn’t the end of our travel although it was the end of the Key Lime Pie quest.  You might say why restrict yourself to one dessert?  Why not try others.  My answer to that is you’ve never tasted a good Key Lime Pie if you want to think that way.

Return to the West Coast

And so we retraced our route from Key West up to Miami and caught a plane from Miami back to Los Angeles.  We overnighted in Los Angeles and our flight back to New Zealand didn’t leave until 11.30pm.  We had a day and, on a earlier occasion having visited the Getty Museum on such a day decided to take in the Getty Villa at Malibu.  The Getty Villa houses a collection of antiquities primarily from the Greek and Roman Mediterranean cultures.  It is a beautiful museum, purpose built based upon a roman villa although having said that it would quite unlike any Roman villa that might have been built in the late Republican or Empire period.  It really does require more than a day to do it justice and if, like me, you have studied classics you would revel in the experience of the Getty Villa.

Armband - Cyrus Exhibition - Getty Villa
Armband – Cyrus Exhibition – Getty Villa

On the occasion of our visit there was an exhibition of Persian and Median antiquities centered around the Cyrus cylinder – a cylindrical piece that recounted the deeds and acts of Cyrus. Rather like the Res Gestae Divi Augusti it is a paean of self-praise and justification by a conqueror who needed to leave a lasting record and the presence of the sylinder testifies to the success of that objective. I was amused to see it described as an equivalent to the Universal Declaration of Human Rights (although that was by the former Shah of Iran) which in my view was a laughable comparison given the nature of the man and his ruthless ferocity. I have heard of revisionist history but that would have to take the Key Lime Pie. However, there were some wonderful pieces on display in a truly glorious setting. The odd misdescription was outweighed by the quality of the exhibition

But before we returned the car and went back to our hotel to go to the airport we decided to have an early dinner and went from sublime t o the ridiculous which is something you can do in five minutes in the United States and we drove to the Santa Monica Pier  and parked the car and drank in the archetypal California beach scene.  The pier swarmed with people, amusements and restaurants but we had a destination that in fact bought us full circle to the first meal that we had in Baltimore.  We decided to dine at Bubba Gumps Shrimp Co restaurant on Santa Monica Pier having had our first evening meal in Baltimore at a similar restaurant on the Baltimore inner harbour.

Shrimpers Heaven - Bubba Gumps - Santa Monica Pier
Shrimpers Heaven – Bubba Gumps – Santa Monica Pier

I had a Shrimper’s Heaven – a collection of different prepared shrimp presented in cones which was truly wonderful.

But we decided against Bubba Gump’s Key Lime Pie.  It wasn’t because the quest had been achieved or that we had found the perfect Key Lime Pie on the east coast or that we were seeking to re-establish another legend or anything like that.    The reason was far less prosaic and far more pragmatic.  We were running out of time in the parking area where we had left the car and didn’t want it towed away.

Afternoon Sun - LAX California
Afternoon Sun – LAX California

Technology and the Courts – CTC 2013 – Baltimore Day 3 – Looking Ahead

I had the great honour to join Justice Robert Torres from Guam, Judge Dory Reiling from the Netherlands and Judge Martin Gonzales from Colorado to talk about Bench and Chambers 2023 on the last days of CTC2013 (19 September 2013). The discussion came at the issue from a number of angles. Robert spoke not just about IT but also about developments in neuropsychology and the impact that this may have upon evidence giving. Dory came at the issue from the perspective of technology as a facilitator, and how it can enhance justice and access to justice. Martin considered the issue from the perspective of users of court services in all their many and varied roles. My contribution was speculative based upon the impact of IT upon justice institutions using the properties analysis that I have been developing in earlier posts. My presentation may be found here. The session page may be found here

The other session that I attended was hosted by Jim McMillan of NCSC and was a wrap-up of ideas that had been developed over the Conference. The first point was that technology had to be appropriate to the job that had to be done and had to be within a context of the work required. Importantly, and I have always been an advocate of this, Judges need to get in the forefront of the technological revolution and change must be Judge-led in that it mjust be the Judges who define the tools and the goals of Courts technology use, rather than being told by technocrats to get used to whatever system is imposed.

One idea that was put forward was a development of my suggestion in the E-Discovery session that electronic documents are dynamic. The speaker suggested that they were like Schrodingers Cat in that the document may occupy a different reality depending upon what stage it had reached. Quantum mechanics in the development of a judicial decision was an interesting concept and may  be worth some thought.

One interesting point that was made in the discussion addressed automatic redaction software which may provide an answer to the problems of case reporting where there is sensitive information or parties may not be able to be identified for legal reasons.

It was recognised that perhaps the most immediate issue that needs to be addressed is that of E-Discovery – described as the freight train heading down the track. One of the recognised features is that Courts cannot carry out the E-Discovery process. But is was also recognised, as Daniel Garrie and I emphasised, that the Courts must direct the E-Discovery process by creative use of the conference process, the use of checklists and careful judicial monitoring. Resources are limited, even for clients with deep pockets and, carrying the freight train metaphor forward, the judge must be the train driver.

Jim’s session developed these and a number of other ideas in a good interactive exchange. Valuable and though-provoking.

And so the Conference came to a close. I have never been disappointed with a Courts Technology Conference, and I find there is valuable material to take away, both from a personal and from a teaching perspective. The next CTC is in Minneapolis. DVWP, I will be there.

Technology and the Courts – CTC 2013 – Baltimore Day 2 – Judging E-Discovery Disputes

This is a paper that I prepared to provide some background for a presentation that I shared with Daniel Garrie at Courts Technology Conference 2013 in Baltimore on Wednesday 18 September 2013.

It has been the main focus of my attention during Day 2 of CTC 2013 although I have spent a fascinating morning checking out some of the software solutions demonstrated by vendors in the very large and impressive exhibitors hall. Most of the solutions deal with evidence recording and presentation, AVL systems and case management systems. What I would consider to be trial management solutions for judges seem to be absent which is something of a surprise. There was nothing on show about e-discovery although to be fair, that is of more interest to lawyers than court administrators and judges.

The paper considers aspects of E-Discovery from a judicial perspective. It argues that in the quest to resolve E-Discovery disputes between parties requires an informed and pro-active approach by judges. It suggests that the first objective should be to try and avoid a disputed E-Discovery hearing, utilising proper case management techniques based not only on the requirements of the law but an understanding of how modern technology may be applied to achieve rule-based goals. But overall, judicial involvement at whatever stage in the discovery process involves aspects of judging disputes.

The approach of this paper is largely a generic one and draws on the E-Discovery rules in England, the United States and New Zealand. When one examines these rules it is clear that some common themes become apparent. It is within the context of these themes that the discussion will take place, although from time to time examples from specific jurisdictions will be given. For example, England and New Zealand use a form of menu for counsel to assist them in approaching their discovery obligations. In England this takes the form of a questionnaire. In New Zealand the checklist is incorporated into the High Court Rules. Regardless of the name applied or where it may be located, the common theme is that of a menu approach that will serve as a foundation for an E-Discovery inquiry.

The discussion will first consider the nature of digital information and why it is that E-Discovery poses a paradigmatic difference from what could be termed “traditional” discovery. I then consider some of the ways in which “traditional” discovery is challenged by new information systems and adopts the suggestion that, from a judicial perspective, a holistic approach to the processes that lie behind E-Discovery must be adopted, starting with the obligation by organisations and businesses to have a proper Electronically Stored Information (ESI) policy and the need for a Court to be aware of that when it comes to considering issues such as information destruction. I then move to a consideration of document review and discuss the need for a new mindset on the part of lawyers and judges based on the need for consultation and co-operation between the parties and a recognition that E-Discovery must be based upon what is reasonable and proportional to the case.

I then consider the obligations of the parties within the context of this mindset and then move to an examination of the process, using the New Zealand discovery checklist as an example of the menu based approach to discovery process and obligations.

I then move to discuss the approaches to E-Discovery using technology and discuss the need for proper education in the use and abilities of technology in discovery both on the part of lawyers and the judiciary. I argue for active judicial involvement and discuss the rationale for this approach. Once again the themes of reasonableness and proportionality underpin judicial activity. I argue that judicial activity should not be restricted to the courtroom and in the context of deciding a particular case should be present throughout the entire process. Creative and effective use of E-Discovery case conferences is as important as the resolution of disputes in the courtroom. With proper case conferencing, any “in-court” discovery disputes should be of limited and focussed scope.

I then move to consider the E-Discovery process and give some examples of how judicial involvement may take place within the context of considering document retention policies, examining issues surrounding document custodians and issues surrounding keyword searching within the area of Early Case Assessment. Examples of the use of technology within these stages of the examination will be considered. I close the consideration of how judges get involved with a discussion of some of the matters that may form an agenda for a case management conference.

The preparation of this paper has been greatly aided by my co-presenter Daniel Garrie, a Senior Managing Partner at Law & Forensics, an e-Discovery, cyber security, and electronic forensic consulting firm with offices nationwide. Mr. Garrie is also General Counsel of Pulse Advisory, a venture Development firm.

Mr. Garrie has served as an Electronically Stored Information Liaison, Neutral or  Expert for the L.A. Superior Courts, 2nd Circuit, 3rd Circuit, 7th Circuit, New York Supreme Court, and Delaware Supreme Court. In 2009, the Daily Journal recognized Mr. Garrie as a “Rising Star,” and in 2011 featured Mr. Garrie as a Special Master and thought leader in E-Discovery. In addition, due to his outstanding reputation in the emerging industry of E-Discovery and computer forensics, Mr. Garrie was one of a handful of individuals appointed to the E-Discovery Special Master Pilot Program for the U.S. District Court of Western Pennsylvania  out of a national pool of candidates.

Mr. Garrie is on the editorial board of the Journal of Legal Technology and Risk Management, Journal of Law & Cyber Warfare, and Beijing Law Review.  He has published over 90 articles spanning many topics. His articles have been featured in the University of San Diego Law Review, ABA International Law Journal and Suffolk Law Review. Mr. Garrie also authored the text book E-discovery and Dispute Resolution published by Thomson Reuters in the Summer of 2013 2nd Edition and Software and the Law, fall of 2013.

Mr. Garrie is admitted to practice law in Washington, New York, and New Jersey.

I am also indebted to not inconsiderable assistance from Andrew King of E-Discovery Litigation Solutions, a litigation support firm, specialising in E-Discovery. Andrew very kindly read an earlier draft  of this paper and I am very grateful to him for his suggestions. I must also acknowledge the helpful suggestions made by Chris Dale of the E-Disclosure Information Project. Chris took time out from his very busy schedule to make some very helpful comments about the judicial stance to e-discovery, and I am grateful to him for sharing his expertise.

Technology and the Courts – CTC2013 in Baltimore – Day 1

Every two years the National Center for State Courts runs a Courts Technology Conference. These are enormous gatherings, bringing together people involved in all aspects of justice delivery both from the US and internationally.

This year the Conference is being held in Baltimore and the first day has been envigorating and exciting. The day got started with an exciting keynote by Alec Ross, formerly with Hilary Clinton when she was Secretary of State. Some interesting observations came out of this session. One example involved the use of social media whilst State Dept representatives were on a mission in Syria. One member of the delegation sent a flippant tweet involving a frappacino – nothing remarkable but the news media picked up on it and there was a lot of criticism which lasted for a news cycle but resulted in embarrassment for the delegation. The upshot? Ross used this as an example of treating mistakes as misdemeanours rather than felonies. Was this a career ending “offence”. Of course not. In fact Ross said that Hilary Clinton’s response was that if you don’t take fire you are bombing the wrong target. Worth thinking about when mistakes are made and there is a possibility for overreaction. I guess in these days of social media we may all have our “frappacino” moments.

There are a number of streams at CTC2013. My primary interest has been in the Judicial stream but not exclusively. In the first session I attended, Judge Martin Gonzales and Judge Dory Reiling talked about technology turn offs. Rather than this being a hate session about technology and the courts it was more off a cautionary  discussion. Judge Gonzales emphasised the importance of ensuring that litigants did not become aspects of data. The Court process is a human process where Judges must engage personally with litigants and Judge Gonzales gave some salutary examples. So yes, technology can be a tool, but it should not take over.

Judge Reiling described ways in which technology can be applied in the litigation process as a facilitatory tool towards achieving an outcome be it by way of settlement or judicial decision. Using a matrix she was able to demonstrate where technological interventions may take place. One interesting development that she noted was a system used by the English Court system where individuals may file claims for debt online – essentially a tool for self-represented litigants.

That segued nicely into the next session I went to which was about the ways in which technology may assist represented litigants file and progress their claims. The presenters identified SRL needs and then suggested ways in which technology may meet these needs. The basic model is for Courts to have an access portal for SRLs remembering that access must be effective in that those with disabilities need to be catered for, that legal language be avoided, that procedures are simply explained,that there’ve effective help facilities provided including on line advice. Given the increase in SRIs especially with the cuts that have been made to legal aid there must be ways in which SRIs can have meaningful access to the Court system.

At the moment I am listening to a discussion about social media. Moore of a general discussion about social media rather than specific applications within the justice system. It is an interesting day, but CTC days always are.

The IT Country Justice. 17 September 2013.

The Law of Unintended Consequences

Every year between March and June I teach Law and Information Technology two evenings a week at Auckland University Law School. When I was asked to take on the class in 2000 after the departure of Mark Perry from the faculty, I thought that it would be about  five years before other courses absorbed most of the issues that seemed to be “new”. Issues of Internet Governance would become part of Public Law, Internet Jurisdiction would fold into Conflict of Laws, Computer Crimes would become part of the Criminal Law paper, whether the postal rule applies to email contract formation would become part of contract, Internet Defamation would fall into Tort or Media Law and so on.

But no….I was wrong, and I am pleased to say that the course continues. It continues to develop. In 2000, Napster was going strong. Now we have the graduated response rules to address file sharing. Facebook and Twitter hadn’t been invented. Google wasn’t around – other search engines like Altavista, Dogpile and Hotbot were the places to go to find stuff. So in many respects the course changes as new technologies, apps and protocols come on stream and raise questions that involve or impact upon legal principles. The teaching year ends in June with examination marking, but teaching doesn’t end there.

One of the other aspects of my relationship with the Law Faculty is the supervision of dissertations and this involves one on one contact with a student and the chance to help ideas develop and critique them as the dissertation takes shape. There have been all sorts of topics. One of the early ones was whether US contributory copyright infringement formed part of New Zealand law. The conclusion was that it didn’t and following from that Napster should have located its servers in Aotearoa instead of San Jose, California. Recently I had the pleasure of watching ideas about the imposition of a consumption tax on on-line goods (in Second Life or World of Warcraft) develop – that was very interesting and reminded me of one of the underlying themes in Neal Stephenson’s Reamde.

A third aspect of teaching is the chance to watch one’s students fly. There have been occasions when former students have appeared in my Court, as counsel of course  – always punctual – they remembered the first lecture! In June and August I had the enormous honour of sharing a stage with two former students who were presenting on aspects of Technology Law for the New Zealand Law Society. I salute them all.

In the movie Dances With Wolves the Lakota, Kicking Bird, would express joy with the phrase “my heart leaps to see you” and although its is not clear whether or not he had read Wordsworth’s Rainbow it is a sentiment that I share on occasion, although at my age one has to be careful that the heart doesn’t leap too high or it might not come down! But there are occasions when my heart leaps – often in association with achievements of my students or former students and this week has been one of them.

Three of my students from class this year (two ladies and one man) are front of camera on a video called “Defined Lines” and another of my students filmed the clip. It is a parody originally performed at the Law School Revue – a fertile breeding ground for humour, satire, edgy skits and some really clever performances. In fact when one considers that Law School is designed to teach one to think like a lawyer (in some circles this is called brain washing but never mind) it is clear that there are some serious areas of free thinking and creativity alive and well in the minds of law students. Long may that continue. But then, don’t forget that it is often said of litigators that they are frustrated actors who are constantly on their feet before an audience.

“Defined Lines” as I said is a parody. It is also rapidly becoming something of a feminist anthem, given that, as at the time of writing this piece, it had nearly 1.5 million hits on You Tube – and it has been up only a week. It is sassy, a tad raunchy, slightly edgy but a whole lot of fun, and I get the sense that everyone involved – and I mean everyone – really enjoyed themselves.

But along with 1.5 million hits comes a bit of a problem. It isn’t enough for a video to go viral but there are other unintended consequences – like the media gets interested. So far the story of “Defined Lines” has featured on New Zealand TV and has been mentioned in other countries. There has even been legal commentary on the copyright implications from Rick Shera (@lawgeeknz). The story has spread virally among news media and blogs and @LawRevueGirls already have quite a following on Twitter. And I understand that the requests for interviews and commentary continue. We  talked about the viral nature of content as a unique property enabled by the Internet in class, and I think that the message has come home with a vengeance. But the deeper message that they put out is an important one and I am willing to bet that @LawRevueGirls didn’t expect that they would get quite the audience that they now have.

So my heart leaps for them, and it is a great joy to see them fly. You really go, @LawRevueGirls.

But that ain’t all. The Law Revue produced another neat piece of video parody of Snap Chat called Smack That. You have to listen very carefully to the lyrics because they tumble out like a waterfall, but this too is a very clever piece of work. So wonderful to see such creativity. What exciting times we live in.