'Robes on Tight Ropes: The Judicialisation of Politics in Nigeria'

This account of judicialised politics in the Nigerian transition experience examines the regulation of the judiciary of the political space, through the resolution of intergovernmental contestations in a dysfunctional federation. It analyses the judicialisation of elite power disputes which have resonance for due process and the rule of law in particular and governance in general. A study of the role of the judiciary in stabilising the country, itself a pivot in the West Africa region in particular and Africa in general, is important. This is especially in view of its classification as a ‘weak state,’ despite its enormous human and natural resources. The analyses here suggest the Supreme Court has taken a strategic position in the task of democratic institutional building and the reinstitution of the rule of law in the country. This strategic measure has received the acclaim of the public. However, the account also discloses that the judiciary, in the course of its numerous interventions, has been drawn into overly political disputes that overreach its jurisprudential preferences. Of even more significance, it demonstrates that the judiciary is itself still challenged by institutional dysfunctions constituting part of the legacies of the authoritarian era. The situation leads back to the need for closer scrutiny of the judicial function in transitional societies.

So mechanical or routine: The not original in Feist

The United States Supreme Court case of 1991, Feist Publications, Inc. v. Rural Tel. Service Co., continues to be highly significant for property in data and databases, but remains poorly understood. The approach taken in this article contrasts with previous studies. It focuses upon the “not original” rather than the original. The delineation of the absence of a modicum of creativity in selection, coordination, and arrangement of data as a component of the not original forms a pivotal point in the Supreme Court decision. The author also aims at elucidation rather than critique, using close textual exegesis of the Supreme Court decision. The results of the exegesis are translated into a more formal logical form to enhance clarity and rigor.


The insufficiently creative is initially characterized as “so mechanical or routine.” Mechanical and routine are understood in their ordinary discourse senses, as a conjunction or as connected by AND, and as the central clause. Subsequent clauses amplify the senses of mechanical and routine without disturbing their conjunction.


The delineation of the absence of a modicum of creativity can be correlated with classic conceptions of computability. The insufficiently creative can then be understood as a routine selection, coordination, or arrangement produced by an automatic mechanical procedure or algorithm. An understanding of a modicum of creativity and of copyright law is also indicated.


The value of the exegesis and interpretation is identified as its final simplicity, clarity, comprehensiveness, and potential practical utility.

The absence of creativity in Feist and the computational process

The decision of the U.S. Supreme Court in 1991 in Feist Publications, Inc. v. Rural Tel. Service Co. affirmed originality as a constitutional requirement for copyright. Originality has a specific sense and is constituted by a minimal degree of creativity and independent creation. The not original is the more developed concept within the decision. It includes the absence of a minimal degree of creativity as a major constituent. Different levels of absence of creativity also are distinguished, from the extreme absence of creativity to insufficient creativity. There is a gestalt effect of analogy between the delineation of the not original and the concept of computability. More specific correlations can be found within the extreme absence of creativity. "[S]o mechanical" in the decision can be correlated with an automatic mechanical procedure and clauses with a historical resonance with understandings of computability as what would naturally be regarded as computable. The routine within the extreme absence of creativity can be regarded as the product of a computational process. The concern of this article is with rigorously establishing an understanding of the extreme absence of creativity, primarily through the correlations with aspects of computability. The understanding established is consistent with the other elements of the not original. It also revealed as testable under real-world conditions. The possibilities for understanding insufficient creativity, a minimal degree of creativity, and originality, from the understanding developed of the extreme absence of creativity, are indicated. 

Multiculturalism, freedom of religion, equality, and the British constitution: The JFS case considered

In the JFS case, the Supreme Court of the United Kingdom held that the admissions policy of a Jewish faith school constituted unlawful racial discrimination because it used the Orthodox Jewish interpretation of who is Jewish as a criterion for determining admission to the school. A detailed discussion of the case is located in the context of two broader debates in Britain, which are characterized as constitutional in character or, at least, as possessing constitutional properties. The first is the debate concerning the treatment of minority groups, multiculturalism, and the changing perceptions in public policy of the role of race and religion in national life. It is suggested that this debate has become imbued with strong elements of what has been termed “post-multiculturalism”. The second debate is broader still, and pertains to shifting approaches to “constitutionalism” in Britain. It is suggested that, with the arrival of the European Convention on Human Rights and EU law, the U.K. has seen a shift from a pragmatic approach to constitutional thinking, in which legislative compromise played a key part, to the recognition of certain quasi-constitutional principles, allowing the judiciary greatly to expand its role in protecting individual rights while requiring the judges, at the same time, to articulate a principled basis for doing so. In both these debates, the principle of equality plays an important role. The JFS case is an important illustration of some of the implications of these developments.

Two Views of ‘Subordination’: the Personal Scope of Employment Discrimination Law in Jivraj v Hashwani

In Jivraj v Hashwani, the Supreme Court considered what requirements are necessary for a relationship to be considered as an employment relationship for the purposes of determining the scope of domestic employment discrimination law. The Court held that an element of subordination was necessary for the relationship to be considered employment under a contract personally to do work. This article discusses what the Court in Jivraj meant by this requirement, contrasting two differing views of subordination. It examines some implications of the decision for the relationship between employment law and anti-discrimination law, and for recent debates on the scope of employment law more generally.

Creativity for Feist

This paper develops an understanding of creativity to meet the requirements of the decision of the Supreme Court of the United States in Feist v. Rural (1991). The inclusion of creativity in originality, in a minimal degree of creativity, and in a creative spark below the level required for originality, is first established. Conditions for creativity are simultaneously derived. Clauses negatively implying creativity are then identified and considered.

The clauses which imply creativity can be extensively correlated with conceptions of computability. The negative of creativity is then understood as an automatic mechanical or computational procedure or a so routine process which results in a highly routine product. Conversely, creativity invariantly involves a not mechanical procedure. The not mechanical is then populated by meaning, in accord with accepted distinctions, drawing on a range of discourses. Meaning is understood as a different level of analysis to the syntactic or mechanical and also as involving direct human engagement with meaning. As direct engagement with meaning, it can be connected to classic concepts of creativity, through the association of dissimilars. Creativity is finally understood as not mechanical human activity above a certain level of routinicity.

Creativity is then integrated with a minimal degree of creativity and with originality. The level of creativity required for a minimal degree is identified as intellectual. The combination of an intellectual level with a sufficient amount of creativity can be read from the exchange values connected with the product of creative activity. Humanly created bibliographic records and indexes are then possible correlates to or constituents of a minimal degree of creativity. A four stage discriminatory process for determining originality is then specified. Finally, the strength and value of the argument are considered.

Finally, the strength and value of the argument are considered.

Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

Analogies to semantic and syntactic mental labour in the Feist decision

The Supreme Court of the United States in Feist v. Rural (Feist, 1991) specified that compilations or databases, and other works, must have a minimal degree of creativity to be copyrightable. The significance and global diffusion of the decision is only matched by the difficulties it has posed for interpretation. The judgment does not specify what is to be understood by creativity, although it does give a full account of the negative of creativity, as ‘so mechanical or routine as to require no creativity whatsoever’ (Feist, 1991, p.362). The negative of creativity as highly mechanical has particularly diffused globally.

A recent interpretation has correlated ‘so mechanical’ (Feist, 1991) with an automatic mechanical procedure or computational process, using a rigorous exegesis fully to correlate the two uses of mechanical. The negative of creativity is then understood as an automatic computation and as a highly routine process. Creativity is itself is conversely understood as non-computational activity, above a certain level of routinicity (Warner, 2013).

The distinction between the negative of creativity and creativity is strongly analogous to an independently developed distinction between forms of mental labour, between semantic and syntactic labour. Semantic labour is understood as human labour motivated by considerations of meaning and syntactic labour as concerned solely with patterns. Semantic labour is distinctively human while syntactic labour can be directly humanly conducted or delegated to machine, as an automatic computational process (Warner, 2005; 2010, pp.33-41).

The value of the analogy is to greatly increase the intersubjective scope of the distinction between semantic and syntactic mental labour. The global diffusion of the standard for extreme absence of copyrightability embodied in the judgment also indicates the possibility that the distinction fully captures the current transformation in the distribution of mental labour, where syntactic tasks which were previously humanly performed are now increasingly conducted by machine.

The paper has substantive and methodological relevance to the conference themes. Substantively, it is concerned with human creativity, with rationality as not reducible to computation, and has relevance to the language myth, through its indirect endorsement of a non-computable or not mechanical semantics. These themes are supported by the underlying idea of technology as a human construction. Methodologically, it is rooted in the humanities and conducts critical thinking through exegesis and empirically tested theoretical development

References

Feist. (1991). Feist Publications, Inc. v. Rural Tel. Service Co., Inc. 499 U.S. 340.

Warner, J. (2005). Labor in information systems. Annual Review of Information Science and Technology. 39, 2005, pp.551-573.

Warner, J. (2010). Human Information Retrieval (History and Foundations of Information Science Series). Cambridge, MA: MIT Press.

Warner, J. (2013). Creativity for Feist. Journal of the American Society for Information Science and Technology. 64, 6, 2013, pp.1173-1192.

Transnational Culture Wars

The well-known ‘culture wars’ clash in the United States between civil society actors has now gone transnational. Political science scholarship has long detailed how liberal human rights non-governmental organizations NGOs engage in extensive transnational activity in support of their ideals. More recently, US conservative groups (including faith-based NGOs) have begun to emulate these strategies, promoting their convictions by engaging in transnational advocacy. NGOs thus face off against each other politically across the globe. Less well known is the extent to which these culture wars are conducted in courts, using conflicting interpretations of human rights law. Many of the same protagonists, particularly NGOs that find themselves against each other in US courts, now find new litigation opportunities abroad in which to fight their battles. These developments, and their implications, are the focus of this article. In particular, the extent to which US faith-based NGOs have leveraged the experience gained transnationally to use international and foreign jurisprudence in interventions before the US Supreme Court is assessed.

Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

A journey through Feist.

The book gives an authoritative account of the decision of the Supreme Court of the United States in Feist v. Rural 1991, which required databases to have a minimal degree of creativity to be copyrightable. The decision left creativity undefined, although it did extensively characterize the antithesis of creativity, and the decision has defied interpretation since its publication.

The book gives a detailed exegesis of the decision and correlates the antithesis to creativity with classic conceptions of computability. Creativity is then understood as non-computable human activity, above a certain level of routinicity.

Impact of Referral Protocols on the Dental Management of Patients Undergoing Treatment for Head and Neck Oncology in Northern Ireland

Objective: To evaluate the handling, by a group of practice-based researchers, of a recently introduced bulk fill resin-based composite restorative material, Filtek Bulk Fill Restorative (3M ESPE).

Methods: The twelve selected evaluators were sent explanatory letters, a pack of the material under investigation to use for 8 weeks, and a questionnaire.

Results: The evaluators rated the ease of use of the bulk fill restorative the same as the previously used posterior composite material. The provision of one shade only for evaluation may have compromised the score for aesthetic quality. No post-operative sensitivity was reported.

Conclusions: The bulk fill material was well received as indicated by the high number of evaluators who would both purchase the material and recommend it to colleagues.

Clinical relevance: A recently introduced bulk fill restorative material achieved a rating for handling which was similar to the evaluators’ previously used resin composite, although there were some concerns regarding the translucency of the material.

Es teatro vuestra oración: Santa Teresa’s performed confession in Juan Mayorga’s La lengua en pedazos

Juan Mayorga’s La Lengua en Pedazos (2010) strikes at the heart of the compositional circumstances of St Teresa's Libro de la Vida– staging, and arguably heightening the origins of her rhetorical strategies, the sense of awareness of readership and potential censure we encounter within the Libro de la Vida. His inquisitor refuses to be complicit in the tacit agreement that the word spoken in the theatrical space can conjure new realities –insistent on underscoring the textual origin of the visions painfully and partially offered up for his and our scrutiny. I will suggest that the persistent undertow towards a meta-commentary on the unmaking and remaking of the autobiographical text creates an unresolved tension between Teresa’s eloquent ability to take the spectator to a place beyond language, and our awareness that we are in the presence of a consummate performer, the textual source for the script itself produced with a supreme awareness of audience scrutiny. The play reflects ongoing lines of inquiry in our evolving understanding of the cultural production of Teresa and other holy women of the Early Modern period.

Contracts for the Sale of Land: Understanding the Impecuniosity Defence

Where either the seller or buyer of landed property fails to complete a contract to sell land the non-breaching party has a right to seek specific performance of the contract. This remedy would compel the party in default to perform the contract on pain of being held in contempt of court if the court's order is not obeyed. The defaulting party would not be able to satisfy its obligations under the law by paying a sum of money as damages for breach of contract. This paper considers the impecuniosity defence to specific performance as recognised by courts in Northern Ireland, the Republic of Ireland, Australia and New Zealand. Where the buyer demonstrates that he or she simply cannot raise the funds to buy the property specific performance will not be decreed and the court will make an award of damages for breach of contract measured by the difference between the contract price and the market price of the property at the time of default. The paper considers the nature and parameters of this defence and how it differs (if at all) from the alternative defence of extreme hardship. The paper addresses the question of whether it might be better to move to a position where sellers of land in all cases no longer enjoy a presumption of specific performance but have to demonstrate that the alternative remedy of damages is clearly inadequate. If this should be so the paper goes on to consider whether abolition of the presumption in favour of specific performance for sellers should lead to abolition of the presumption of specific performance for buyers, as is the position in Canada following the Supreme Court's decision in Semelhago v Paramadevan [1996] 2 SCR 415.