Evolution of Contract Law

Enjoyed an invaluable workshop on contract law and drafting this morning, facilitated by Marion Smith, a barrister at 39 Essex Street.

Challenging for 8am on a Thursday, but a very worthwhile 90 minute canter through a factual scenario and the law on pre-contract negotiations, implied terms, entire agreement clauses and rectification by interpretation and for unilateral mistake. There were great notes on these aspects, as well as termination and the ethics of drafting.

Marion's top-tip on where to find open legal discussion about drafting contracts: AdamsDrafting - now on the blog roll.

The Weakness Of Postive Thinking

As an avowed pragmatist, I've been savouring Barbara Ehrenreich's Smile or Die, about the tyranny of positive thinking.

Barbara traces the rise of 'positive thinking' out of the misery of Calvinist soul-searching amongst people deemed non-productive by that religious movement, through 'christian science' to popular psychology and self-help books, to academic psychology and, finally, to major corporations, banks and other institutions, where critical thinkers tend to be ritually sacrificed as having a "negative attitude". Barbara patiently explains why "positive thinking" will not of itself produce a desired outcome, and how it has proved positively harmful to suppress critical thought and to avoid addressing genuine doubt and 'negative' sentiment. She also helpfully points out that 'positive' does not equate to 'good', and 'negative' does not equate to 'bad'.

All of which will seem trite to anyone who hasn't seen Up in the Air, or been subjected to the ramblings of a 'success coach' or 'motivational speaker', like Tony Robbins, or had a colleague earnestly suggest you read "Who Moved My Cheese".

Of course it's helpful to approach life positively. Committing to a particular goal is certainly enormously helpful - if not critical - to achieving it. But it is not determinative of the outcome. Similarly, to imagine or envisage a successful performance in a given scenario will contribute to your confidence when the time for performance arrives, and that should help you perform better. But that's only one factor that contributes to your performance, not the 'cause' of your success.

Otherwise, the world would be governed by repressive dictatorships that command optimism. And Kim Jong-il really would be able to control the weather with his mood.

Instead, we do our best to figure out and cope with all the variables likely to significantly affect a scenario, including all the 'bad things' that might happen, as well as the fact that the world is random and heavily influenced by surprise events, or "Black Swans". Approaching that process proactively and positively is also clearly going to be helpful but, again, not of itself determinative of success.

Ultimately, Barbara questions the effect of positive thinking on 'happiness', and it's easy to see that adherence to positive thinking does not end well - the inevitable result of suppressing and repressing all 'negative' news, thoughts and emotions. Barbara cites the Lehman Brothers top brass, Dick Fuld and Joe Gregory, who may have made plenty of money eschewing analysis and 'going with their guts', but eventually the blew the bank. Joe Stalin, too, was big on 'optimism' and a little hard on 'defeatist' critics and others who didn't 'get with the programme', and doubtless Kim Jong-il constantly curses the 'naysayers' for the under-performance of his 'optimistic' regime.

And let's not forget, among the long list of victims, all the angry and confused positive-thinkers out there who hot-desked, travelled incessantly, ignored their friends and family, slept with their Blackberries and generally drank the corporate Kool-Aid, only to discover they were surplus to requirements.

I hope they don't get fooled again.

Here's Jon Stewart's interview with Barbara on the Daily Show.

Dirty Tricks and Politics

I'm bemused by the Coulson saga. It's sunk so low that even the feeble Press Complaints Commission has been goaded into "re-examining" allegations of phone-hacking on Coulson's watch as tabloid editor.

And of course the spinners are on.

Matthew d'Ancona says Coulson is only a target because it's a way for "Cameron's enemies" to damage the Coalition, and Cameron will back his communications chief because he values Coulson's "tabloid street-smarts" and "sharp" intellect. He adds:

"Coulson resigned. Although insisting that he had no direct knowledge of the phone-hacking, he did the right thing in 2007, which was to take responsibility for what had happened on his watch at the News of the World, and to quit. Fair enough. But his antagonists seem to be forging a new and frankly preposterous politico-legal doctrine of executive responsibility: namely, that a man should not only lose the job he holds at the time of the wrongdoing, but all subsequent jobs. On this sinister basis, one strike and you are out – forever."

Ah, but this is the stuff of moral panic, not reasoned argument on the central issue. It suggests the saga turns on the side issue of Coulson's personal plight, rather than who is fit to be the Prime Minister's communications chief in an era of alleged political reform. It casts Coulson as an honourable man (albeit one with "tabloid street-smarts") who risks losing his job twice over the same affair because of some petty playground drama amongst politicians, rather than because his background as a tabloid editor seems at odds with an alleged desire by the Coalition to clean up politics.

If we want governments and MPs to continue wallowing in a culture of rip-offs, leaks and political smear campaigns, then it would seem that Coulson's "tabloid street-smarts" and lack of direct knowledge about the activities of his staff and contractors may come in handy. Even if we do not, I guess there's still an argument (somewhat less convincing) that Coulson's skills and experience will enable him to 'turn gamekeeper' and at least pre-empt dirty tricks, if not help clean up politics altogether. But, in that case, can he be trusted not to do a little 'poaching'?

At any rate, Sir Christopher Meyers makes an excellent point that MPs are the last people on earth who should sit in judgment over journalists' alleged use of dirty tricks. Because, ultimately, they're all in it together.

So, it's really down to the voters, and whether Wavy Dave can trust that Coulson won't deliver the kind of culture that ended up doing for Gordo.

Barcelona and "The Hand of God"

Barcelona is a fabulous city, but prone to vice. A steady procession of excellent bars, restaurants, nightclubs, after-clubs and after-after-clubs tends to reduce one's hotel room to little more than a luggage-store and bathroom. Yet to reach many of these venues one has to brave back-streets cluttered with pleading prostitutes, and pick-pockets of the most amazing skill (the pick-pockets, I mean, not the prostitutes - I am unaware of whether or not the prostitutes possess any skill that one might qualify as amazing, or indeed any skill at all).

In the early hours of Saturday morning, one particular denizen offered to demonstrate for me the footballing prowess of Diego Maradona, which involved using his knee to juggle the wallet out of my front jeans pocket into his waiting hand. Fortuitously, one of my quicker-thinking drinking companions reached out to remove the wallet from 'The Hand' - a feat that perhaps Diego himself would have admired, and one that was celebrated for a good many hours afterwards.

At the suggestion of a local colleague, four of us deliberately headed into the infamous "Maradona's" turf on the way to a club in the early hours, and soon the man himself approached. My three companions dropped back and spread out to leave me one-on-one with the maestro, who hailed me by asking "You like football? You like Maradona?" over and over as he got closer. My wallet was in my right hand jeans pocket, where I'd been sure I could keep it safe. "Maradona" began hopping on his right foot as he approached, bouncing an imaginary football on the raised left knee until he was in front of me. Still bouncing, he put his right hand on my left shoulder, steadying himself and putting me back on my heels at the same time. Suddenly I sensed that his bouncing left knee had made contact with my wallet in my right pocket. I looked down just as it popped out, but being off-balance I couldn't get my hand down to stop it. I was powerless!

It was then that my colleagues pounced. One grabbed the wallet, while another shoved "Maradona" away, and there was a scuffle behind me as one of the maestro's confederates who'd crept up behind me was shunted aside by a third pal. The gang then melted away, leaving us to celebrate, all four of us bouncing along the street shouting, "You like football? You like Maradona?" over and over...

The following night on another drinking companion was pick-pocketed in a crowd, though sadly no one was 'on-hand' to save his wallet.

So, you have been warned. Leave your wallet secured in your hotel room. Some cash and a single credit card should be sufficiently concealable to see you through the night.

Preacher Plans Twin Towers of Babel

Controversial pasta (surely "Pastor", ed.), Terry Jones - the man who put "mental" in "fundamentalist christian" - landed in New York City last night, still hoping to meet the local imam with plans for a downtown religious centre.

Jones left his Dove World headquarters near Gainsville FL in an armchair powered by nine thousand white doves, rather than a jet owned by a leading news manufacturer, as rumoured earlier. But he never did reach the imam.

Something Happened Along the Way

"Downtown New York was bigger than I thought," a rueful Pr Jones admitted to Sky News reporters who are desperate to hype this non-story. "I became confused about the meeting location."

Indeed, downtown New York City is renowned for planning laws that nestle "gentlemen's clubs" amongst giant testaments to fear and greed. So Jones could be forgiven for mistaking the New York Dolls Gentlemen's Club for the site of the religious centre, as both lie within a few blocks of the former site of the famed "Twin Towers". Many gentlemen have similarly lost their way.

Meeting Will Go Ahead Today

News editors now hope the bogus meeting between the religious leaders will take place today. Apparently Pr Jones will present his own plans for the religious centre - a development proposal he has dubbed the "Twin Towers of Babel".

"The towers will have their tops in the heavens...lest we be scattered abroad upon the face of the Earth," Jones explained.

The local imam could not be reached for comment, sensible man, while a spokesman for the New York City planning office expressed doubts about the proposed height of the towers. "We've approached the Man in the Moon with a view to discussing how we share airspace, but he hasn't yet returned our calls."