Pain Is Love — City Jackdaw

I woke this morning to the news that Debbie Reynolds had died, just one day after Carrie Fisher. The strain must have been just too much for the aged star. “She’s now with Carrie and we’re all heartbroken,” said her son, Todd Fisher. “She said, ‘I want to be with Carrie’, and then she was gone.”

Debbie wanting to be with her daughter is a nice thought, but what a time their family must be going through. On hearing the news, the lyrics of Ja Rule came to mind:

If pain is truly love,

for my family I die.

via Pain Is Love — City Jackdaw

Juiced Justice

When we get to the end of a year, the Court process typically gets more busy. A lot of movement occurs to get everything done within the time available before the looming finish line and the traditional end of year break that lawyers have (usually the only break a litigator might see in the course of a year). Yet still there will be work to be done with emergency calls and requests for assistance with bail over the Christmas/New Year court shut down.

Each year, colleagues share their collective sense that this year is worse than it has ever been before. The demands on their time, the need to meet deadlines, the rigidity of the legal system, the lack of holiday spirit and the general sense that everything is all a bit-too-much.

This year, there is something different. A conversation yesterday with a colleague revealed that in addition to those usual complaints, 2016 has bought an increasingly “agitated” bench. Not necessarily a bench behaving badly (though there has been plenty of attention given in recent years about judges not being above bullying and inappropriate behaviour on the bench). Rather, the sense is that judicial officers have become sort of “angsty” or disruptive or plain hostile. Not because the case required it, but seemingly because of a default position adopted throughout the state. It’s not merely one colleague saying as much – there have been many.

So I thought I would do a little study of my own. Nothing scientific of course, there’s no time for that sort of thing at this time of the year and in any event, the law has no place for lawyers grumbling about judges. It’s kind of “looked-down” upon. One must uphold the majesty of the law of course. Though that doesn’t mean the majesty of judges, it means the law. But I digress.

Since the start of November 2016, I have conversed with 6 colleagues who run busy litigation practices throughout the state who have expressed their disquiet about the growing sense of judicial angst. We all have opinions on the causes – because we’re lawyers. Some point to a sense that the judiciary feels under attack from the public or politics – especially in light of the disgraceful loss of Justice Latham from the Independent Commission Against Corruption. Some opinions point to the increasing appointment of a narrow selection of people from the profession to be judges (consider for example how many judicial appointments are former Crown Prosecutors compared to the ratio of Crown Prosecutors to lawyers in the state of NSW). Other opinions point to the desire to protect the bar and barristers at all costs and leave any blame or attribution for inconvenience on the shoulders of solicitors – easy prey because it’s not like they fight back (though that is definitely a myth).

Whatever the reasons, there is angst. Some judges have become tetchy. Irritable. Annoyed. Others appear to have given up. Some have become left seemingly high and dry with insufficient courts and insufficient resources to get trials underway in a timely manner.

But it’s almost the end of the court term for 2016 and in a year that’s been awful, let’s just agree to adopt the Christmas spirit and maybe everyone get along in the new year. Alternatively, we could just wait and see how the Judicial Commission stats look after enough solicitors have had enough of court room bullying and harassment. But that doesn’t seem a particularly majestic possibility.

Aaron Kernaghan.

The Slide

33cd7a413e2d410baeb2cff5f435b76e_18As liberals excoriate themselves over their loss to Donald Trump, the hunt for answers will invariably lead toward the well-trodden path of looking outward for blame and inward for responsibility. The process will be marked by identifying those conservatives who supported the notionally-indefensible while hand-ringing and self-deprecating over their own missed opportunity to carry the liberal message effectively to voters.

But that process will miss its mark – as badly as the liberal cause did when putting up Clinton for election. It is a process that is as redolent with patronisation as is the very quest itself to place Clinton in the White House. The liberals didn’t fail to sell their message, it’s that they didn’t have a message to peddle. The electorate didn’t fail to engage with Clinton, it’s that she wasn’t engaged with them. The American voting population didn’t sell-out on the liberal ideology and promise of America – it sold-out on them. And all of that was put in motion many years before now.

The failure of the media to identify and call out for what it was, the nefarious “WMD” argument of the Bush era lead, inexorably toward the civil war within the media that has resulted in two polarised wings: the “conventional media” vs “social media” or whatever the latter calls itself from time-to-time. Those two camps are now as polarised as the political parties that they are notionally attached to.

Saying as much doesn’t take into account the fact that any traversal of social media (particularly Twitter) reveals a significant amount of liberal, left or otherwise social-leaning commentary. Yet those people are the opposition in the non-conventional media war. They are the people calling out the turkey arguments and nong-headed misguided, ill-informed treatises of the right wing. Or so they hope to be. Yet where is their help and support in liberal circuits? It takes the form of like-pages and landing pages designed to have you say “#I’mWithHer” or other trivialities that are as polarising in their statement as they are useless as a policy argument.

The fact is that the media civil war – in which it turned in on itself from a place of great regret that it failed to hold a government to account – has lead to the disempowerment of the media to have a valid contribution within an electorate. Those that thought of the fourth estate as the bastion for reasoned and principled argument forgot that to be a protagonist in such a discourse, you must have credit in the minds of the audience – otherwise you’re just an erstwhile antagonist. Antagonists can easily be dispensed with as “elites”, “entitled”, or “egoist” – all words that point to not only the lack of credit of the liberal media but also the nascent hatred by conservative media of those that engage with their core statements.

Therein lies the greatest problem moving forward – conservatives did not shy away from the WMD misnomer or lie, they doubled-down on it. In doing so, the most awful truth was revealed – “post-truth” isn’t a word that refers to the obvious tendency of Trump to lie. It reveals that the world we live in is now one in which arguing for truth and holding lies to account, will not amount to anything meaningful in the town square. Unfortunately for us all, that’s how guillotines get built – because you can fix problems by chopping off heads. Or threatening, cajoling or otherwise bullying the elites.

Aaron Kernaghan

It took just one juror for the Walter Scott murder case to be declared a mistrial — Quartz

The racially-charged murder trial of former North Charleston police officer Michael Slager was declared a mistrial today. The jury failed to come to a conclusion, due to a single juror who refused to consider a “guilty” verdict. Slager was charged with fatally shooting an unarmed black man named Walter Scott in South Carolina last year.…

via It took just one juror for the Walter Scott murder case to be declared a mistrial — Quartz

Future Prospects

Is it possible that the future of Australia would involve increased crowd support rather than “conventional” funding means? If so what will that mean for the industry as a whole and the definition of the term professionalism in the arts.

It seems that the term has a future of being defined by reference to the body of work amassed by the individual practitioner  of arts rather than by reference to the source of income that the practitioner has.

It also seems likely that any crowd supported  art efforts will be marked by an increase in the number of group activities. Even a half hearted scan of crowdsourcing opportunities reveals that in almost every sector such activities are characterised by being by or for groups, usually medium to large groups, of practitioners.

The emphasis then will be up on people working collaboratively to secure both hey source of support for their work as well as validation as professional arts practitioners.  In those circumstances the power and forgiveness of union amongst at practitioners will increase and the need to treat those unions as a valuable re-sauce for the furtherance of arts will be far more than ever before.

Against those future prospects will be arrayed the conventional practices of the industry.  Those practices include a preference for dealing with those who are represented by agents or through intermediaries and the utilisation of conventional legal structures and constructs that determine how relationships are to be conducted both now, in the future and in the event of a breakdown.  The understandable preference (no doubt, arising from long established practice and all of the benefits of experience attached to their two) for conventional or even stereotypical approach is to practising in the professional arts community will continue to be the effective regulator of arts professionalism in Australia. The ability of practitioners to engage with those regimes that wish to continue to maintain the status quo will be limited by their access to that collective experience and education and training that will seek to pursue  validation of the emerging industrial norms.

The upshot of all of this is to consider that what happened in the music industry with the invention of home studio recording and access  to desktop publishing will become a template for arts practitioners going forward.  Whether or not this will see a retreat into the confines of their homes, studies or bedrooms remains to be seen. What impact that has on the informed and experienced authorial voice of those practitioners is anyone’s guess.

Aaron Kernaghan