When a judge changes their mind

One can imagine that it must be very difficult for a party who believes they have succeeded with their case to find that success snatched away from them at the last moment. However, sometimes judges change their mind about decisions they have to make.

As its name suggests, this is what happened in the High Court case H v T (Judicial Change of Mind), which concerned an appeal by a husband against a financial remedies order. The final hearing in the case took place in May last year, but the judgment has only recently been published on the Bailii website.

For the purpose of this post I don’t need to go into too much detail regarding the facts of the case, or the financial remedies order. The parties were married for sixteen years, and have three children. Divorce proceedings took place in 2016, and the wife made a financial remedies application. That application was heard by His Honour Judge O’Dwyer, who awarded the wife some 68% of the capital assets.

The husband appealed. The appeal was heard by Mr Justice MacDonald in the High Court. He explained the ground of appeal, which was that:

“The learned Judge was wrong when he failed to make adequate capital provision for the husband when he awarded the wife at least 68% of the capital assets in circumstances where (1) the wife could re-house at a level the learned Judge found was appropriate without making any, or any significant, departure from equality; and/or (2) the husband was also ordered to pay considerable child maintenance and school fees.”

After hearing the appeal Mr Justice MacDonald circulated a draft judgment to the parties’ lawyers, which indicated that he intended to allow the appeal to the extent of varying the lump sum order made by Judge O’Dwyer, as he considered that Judge O’Dwyer’s award had exceeded the wife’s identified housing need.

It is important to explain here that a judge’s decision in a case is not final until their judgment is handed down. Sending out a draft judgment is not the same as handing it down. The purpose of sending out a draft is to give the lawyers the opportunity to check the judgment, and suggest any corrections or amendments. Normally, the suggestions will relate to relatively minor issues, such as typographical errors, rather than the decision itself. The judge will then consider those suggestions, and make any appropriate corrections or amendments to the draft, before handing down the judgment.

In this case the wife’s counsel, upon receiving the draft, invited Mr Justice MacDonald to reconsider the conclusions expressed in his draft judgment, given “what she contended was a significant material omission in the figures that underpinned those conclusions.” Specifically, he had failed to take into account purchase costs when looking at the wife’s housing need. Whilst not mentioning them specifically, Judge O’Dwyer had taken purchase costs into account, as the wife’s counsel explained, and thus his award provided for the wife’s identified housing need exactly.

This was accepted by Mr Justice MacDonald, who therefore changed his mind, and decided to dismiss the husband’s appeal. He had this to say about the change of mind:

“Whilst I had not formally handed down judgment, and, accordingly, … there was nothing to prevent this change of mind following careful reconsideration … I am conscious that judicial tergiversation [i.e. change of mind] is, rightly, not encouraged. Not least in this case because the husband will have considered himself successful by reference to the draft, only for the court to reach the opposite conclusion in the judgment handed down. Against this however, … a judge must have the courage and intellectual honesty to admit and correct an error or omission and, … in doing so is honouring his or her judicial oath. In the circumstances, whilst, as I can attest, it is an uncomfortable exercise for the judge, particularly where the error or omission acts to change the decision handed down in draft, and is disappointing for the litigant who believed they had been successful, a judge is duty bound to correct his or her omission or error. To do otherwise would not be just.”

I’m sure that the husband would have found the change of mind hard to accept, but obviously, judges can make mistakes just like anyone else, and those mistakes, once brought to light, must be corrected. Normally this will entail correction on appeal, but if the mistake is brought to light before a decision is handed down, then that decision must itself be changed.

You can read the full report of the case here.

The post When a judge changes their mind appeared first on Stowe Family Law.


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Author: John Bolch

InterPlay

Silhouettes of people dancing

Getting grown-ups back into their bodies

There’s an old joke that I’ve heard attributed, in one form or another, to numerous religious groups. It goes: “Why do Baptists (or Methodists, or Mennonites, or Jews, or whatever) prohibit premarital sex? Because it could lead to dancing.” The implication, obviously, is that the group’s taboo against dancing is so strong that it overshadows the moral principle that gave rise to it in the first place; dancing becomes not just a potential path to evil but an evil in and of itself. One of the theological views that sometimes motivates this position is that the body (or “flesh”) is inherently sinful or corrupt, and must be ruthlessly subjugated to the purer values of the spirit. This was certainly the view of the religious tradition in which I grew up. Any activity that even suggested carnal pleasure outside strictly delimited boundaries was an immoral concession to humanity’s fallen nature.

Although this sort of thinking may be an extreme example, it’s indicative of a broader and older cultural trend, which some people refer to as the “mind-body split.” Whether you trace this trend back to Cartesian dualism, the early days of Christianity, or some other source, it amounts to a belief that the body is somehow an ontologically separate entity from the mind (or “soul” or “spirit”). Perhaps the two are even in competition or conflict with each other. Even if, as adults, we recognize that by implicitly accepting this split we’ve become disintegrated and unbalanced, it’s difficult to reprogram ourselves to recover that sense of being a single, unified whole. A practice called InterPlay exists to encourage that process by helping people to rediscover and express one of their most basic, primal needs: play.

Play Time

Children, of course, have no trouble playing, and kids seem to engage in play with their whole beings—what InterPlayers refer to as “mindful presence.” That, in a nutshell, is what InterPlay seeks to restore to adults who have lost all sense of how easy it is to have fun. As we grow older, we tend to take ourselves more and more seriously. Although that is useful in some respects, InterPlay is a reminder that we never outgrow the need for play.

What does InterPlay mean by “play”? Not the things adults usually mean—sports, board games, gambling, and so on. In a sense, play can be anything that’s enjoyable, but some of the specific activities that make up InterPlay are deep breathing, telling stories, singing, stillness, hand movements, and yes, dancing—all done with a relaxed (and often goofy) attitude. InterPlayers realize that the people who most need to learn how to play sometimes have mental blocks about the very idea of dance, or perhaps even resistance to more basic notions like movement or touch. So their practices are carefully designed to put participants at ease and ensure that everyone feels safe as they learn gradually to “let go.” You may think you’re making a fool of yourself, but so is everyone else; the freedom for each person to be equally silly without judgments or comparisons is part of InterPlay’s basic philosophy.

InterPlayers learn to identify judgments they may have unconsciously made about themselves and release them. Since other participants are not judging you, you learn to silence your inner critic as well. So taking part in InterPlay activities is something like a cross between group therapy and improv comedy. InterPlay teaches participants to become more spontaneous and creative, to better handle stress, change, and uncertainty, and to be more effective collaborators.

Playground as Church

Although many InterPlayers become involved out of a desire to free themselves of certain religious baggage, the practice itself has no religious (or anti-religious) agenda. Instead, it espouses the viewpoint that spirituality is a subset of play, and that to the extent we can discover our true selves, we become better equipped to experience deeper levels of reality. Those who feel a spiritual path must be one of great seriousness and asceticism are challenged to think about spirituality in a more relaxed, light-hearted way.

InterPlay creators Cynthia Winton-Henry and Phil Porter met while attending seminary in Berkeley, California in the late 1970s. They have collaborated ever since. After developing the basic philosophy of InterPlay, they formed a nonprofit organization called Body Wisdom to provide a structure for teaching InterPlay and training other leaders. InterPlay groups have sprung up all over the world; the activities are also taught in such diverse settings as corporations, churches, hospitals, and prisons. Body Wisdom’s current headquarters, called InterPlayce, opened in downtown Oakland, California in 2004.

I have several friends who practice InterPlay, including one who’s a regional leader and was once on Body Wisdom’s board of directors. Although I myself am not an InterPlayer, I’ve noticed that simply by interacting with people who are, I’ve gotten sucked into the wonderful vortex of playfulness that they embody. And that’s exactly what InterPlay is all about: spreading the benign contagion of play.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on May 17, 2005.

Image credit: Pixabay


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Author: Joe Kissell

Habitual Residence v Residence: What is required and do we have clarity at last?

The family courts in England and Wales are renowned for being a popular destination for wealthy and warring international couples. So much so, that London has been dubbed the divorce capital of the world with people racing to file a petition in England so that our courts determine the financial split (if this can not be achieved amicably).

However, last week’s decision in the High Court case of Pierburg v Pierburg may, at last, bring clarification to a long-standing debate concerning how to establish whether the court has jurisdiction to deal with a divorce.

We asked Senior Partner, Julian Hawkhead, to join us on the blog to look at the case and the implications for international divorce cases.

Last week a decision of the High Court was handed down which may, at last, bring clarification to a long-standing debate concerning how to establish whether the court has jurisdiction to deal with a divorce.

As has been explained in previous articles in this blog, where there is more than one EU jurisdiction in which divorce proceedings could be commenced, the EU regulations apply.

In the case of Pierburg v Pierburg, the parties were both German nationals, they had resided since the early 2000s in Switzerland for tax reasons but had taken a rental property in London, mainly because their son had been educated here. When the marriage broke down, the wife in or around July / August 2017 moved into the London property. Her time spent between London and Switzerland was carefully counted by the husband, indeed as were all her movements between the two countries, and her visits back to Germany to see her parents from 2015 onwards.

In January 2018, the wife issued proceedings in England on the alternative bases of (a) having been domiciled in England and resident here for 6 months or (b) having been resident in England for 12 months. The reason for the alternative pleading being the fact that they had held the tenancy of the London property as a rental property for many years prior and that she had regularly spent time in England. A month later, in February 2018, the husband issued in Germany. The German court quickly adjourned the German divorce proceedings until the legitimacy of the English proceedings had been determined as the English proceedings had been issued first.

What is clearly at stake here is a financial benefit. When the parties married in Germany back in 1985 they entered into a separation of assets marital regime in which the wife would also not be entitled to any maintenance provision. The English court, however, would be very likely not to regard such a financial prohibition as fair and would award her substantial maintenance whether in the form of regular payments or more likely a capitalised maintenance sum to provide for her lifelong needs. The husband was resisting England having jurisdiction to prevent this and to limit her financial entitlement by a stricter approach as would be adopted in German.

The case involved substantial assets and high powered people. The husband had made his fortune in the German automotive industry. They lived in a Chateau in French-speaking Switzerland (it was a feature of the husband’s case that the wife had never settled into Switzerland and had not attempted to learn or speak French), the son of the parties was educated at a boarding school in England and they had taken a house in London. The wife called upon the Countess of Chichester and the Chief Executive of the Prince’s Foundation as witnesses of her move to and connections with England.

What is the law concerning jurisdiction?

Article 3 of Council Regulations (EC) no 2201/2003  says that jurisdiction in relation to a divorce shall lie with the courts of the EU member state in various scenarios. I won’t go through them in detail here but they can be found in previous blogs here.

The relevant ones for the purpose of this case were:-

The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made;

or

The applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and…in the case of the United Kingdom and Ireland, has his or her “domicile” there.

As mentioned above, the wife sought to rely on pleading both these reasons scenarios in her divorce petition.

The debate that has been ongoing since 2007, in which there were two decisions concerning the basis for establishing jurisdiction through the habitual residence. In the case of Marinos the then Mr Justice Munby took a very literal interpretation of the words habitual residence and residence. He decided that to establish “habitual residence” one needed to be only resident, or living in a jurisdiction for the requisite period of time. This meant that if a person issued a petition on say 1 September 2017, they only needed to have lived for periods of time for the twelve months prior to that time if they couldn’t also evidence domicile there or six months if they could. It is possible to have more than one residence.

Habitual residence, however, has a much stricter definition and a person can only have one habitual residence so that in this case if the habitual residence was the determining factor the wife was either habitually resident in Switzerland or in England.

In the case of Munro, Mr Justice Bennett took an alternative interpretation of the Council regulations namely that to establish habitual residence you had to have been habitually resident and not merely resident in a country for the requisite period of time.

Is this just semantics, lawyers just playing with words? Not at all as the importance is very different and is key to the six and twelve-month timescales to enable a person to establish jurisdiction.

When the regulations first came into effect an explanatory note was produced by Dr Algeria Borras in what is known as the Borras report. The problem has arisen that when this explanatory note was translated into different languages, the word habitual was left out in the English and coincidentally the German translations.

The husband’s legal team, however, showed to the court how in the French, Dutch, Italian, Spanish and Portuguese versions,  by way of example,  the need for the habitual residence was clear. In the English version of that report, it merely says “he or she must have resided there for at least six months”. Therefore supporting the Marinos interpretation of the regulations. However, in this recent case, Mr Justice Moor preferred the husband’s arguments and took a wider view of how the EU regulations had been interpreted around Europe. His attention was brought to the fact that in Finland, Latvia and Sweden, for example, the word “habitual” was not used at all.

Considering all the circumstances of the case Mr Justice Moor came down firmly in favour of the Munro interpretation: namely that to establish habitual residence a person needs to have been habitually resident and not merely resident in a country for the requisite period of time.

He recognised that this might be regarded as controversial as he was disagreeing with the opinions of only the then Mr Justice Munby who went on to become not only a Lord Justice but also the President of the Family Division but also the then Mr Justice Peter Jackson who is now sitting as Lord Justice of Appeal. He points out however that they did not have the benefits of the convincing arguments that he had heard in his particular case.

What then ensued in the case was a forensic examination of the wife’s movements between England and Switzerland from the time she said she was resident in England namely from July 2017 onwards. The reason being that the Judge had to determine three questions:

  1. When did the wife become habitually resident in England and Wales?

  2. Did she become resident (rather than habitually resident) on a different date just in case the Judge’s interpretation of the Marinos / Munro debate was incorrect?

  3. Is she domiciled in England and Wales?

The Judge in reaching his decision draws the distinction between residing somewhere and visiting it. A person can reside in England and visit their own holiday home in another country. He also assessed the extent of her ongoing connections with Germany and in doing so reaches the conclusion that the wife had not changed her domicile to England by 12 January 2018 when she issued her divorce petition. In reviewing all the circumstances of the case the Judge found that the wife could not establish jurisdiction in England at the time she issued her petition and therefore the petition had to be struck out.

Ultimately this is a case motivated by money. The husband’s legal team freely admitted that it related to the financial remedies available to the wife if the divorce is progressed in England rather than Germany as in Germany, according to the marriage contract she would not be entitled to anything including maintenance.

It would, in English law be a travesty for her to receive nothing at all and Mr Justice Moor observes that if remains the case then she may be entitled to bring a claim for financial relief following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984 and he deliberately reserves any such application to himself.

It seems to me this is a stark warning to the husband to ensure that regardless of what the German law may provide he should consider making some acceptable level of financial provision to the wife to ensure fairness is achieved.

Conclusion

This case does bring further weight and clarity to the question of how to interpret habitual residence. Only last year I had a case where the parties had been residing in Spain for many years and then the wife unexpectedly came back to England and commenced divorce proceedings claiming that she was domiciled here and had been resident here for six months prior to issuing the petition. Fortunately, we were able to reach a financial settlement agreement which meant that the parties did not need to spend a significant amount of money arguing about jurisdiction.

The terms of our Brexit from Europe may, of course, put a completely different spin our these regulations and there is plenty of guidance issued looking at different scenarios. What seems likely at the moment is that we will not have a hard Brexit in which case overnight all these EU regulations will fall away and it is likely that we will continue to have a relationship with Europe in some shape or form in which these regulations are likely to continue to apply in some way yet to be finally determined.

In the meantime, what is of vital importance is timing. If there is a case of a possible jurisdiction race then it is essential you seek legal advice at the earliest opportunity from lawyers who specialise in a divorce involving international issues.

Get in touch 

If you require any further advice or information please contact Holly Lamb,  Head of International Family Law

 

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Author: Julian Hawkhead

Do we even need a ground for divorce?

As I’m sure anyone reading this blog is aware, last week the Government confirmed what we already knew, i.e. that it intends to introduce a system of no-fault divorce. The news (if it was actually news) that we are at last to get a no-fault divorce system (as long as nothing, in particular Brexit, gets in the way of the necessary legislation) is obviously most welcome, but has an opportunity to simplify and improve the divorce system even further been missed?

The Government’s proposal is, I would say, quite conservative (with a small ‘c’) when it comes to no-fault divorce systems, retaining a large part of our existing system. In particular, the Government intends to keep the present ground for divorce, i.e. that the marriage has irretrievably broken down. The rationale for this given by the Government in its consultation document was the rather negative: “The Government has seen no evidence that it would be effective to remove or replace the sole ground that the marriage has broken down irretrievably.” The Government also stated rather ‘lacklustrely’ that irretrievable breakdown had “proved effective in many other comparable jurisdictions”. Not a particularly ringing endorsement. Slightly more constructively the consultation response published last week informed us that irretrievable breakdown “was seen to provide a clear and logical threshold”. But just how logical is it, and do we need a ‘threshold’?

As I explained here recently, a ground for divorce is not actually required in some comparable jurisdictions. Spain, Sweden and Finland do not have a ground for divorce. If those countries can manage without it, why do we need it? Why not just have an application to dissolve the marriage? After all, if we will no longer need to prove that the marriage has irretrievably broken down, why do we even need to say it has broken down irretrievably? Why not just say “I want a divorce”? If the court cannot investigate and decide whether the marriage has, in its view, broken down irretrievably, relying solely upon the word of the petitioner, then irretrievable breakdown itself is pointless.

Logically, a ground is not required. It is an unnecessary extra step. If a party to a marriage says they want a divorce, then that, in reality, is the end of the matter. There is nothing that the law can do to change the fact. Yes, the law can, if it wishes, build in a delay to cover the (highly unlikely, from my quarter-century of experience as a family lawyer) possibility that the petitioner may change their mind. But if they don’t change their mind, then the irretrievable breakdown of the marriage is a fact. It goes without saying. A marriage to which one party no longer wishes to belong has irretrievably broken down. Requiring that party to say that “I want a divorce because my marriage has irretrievably broken down” is a superfluity. It is like saying “I need to eat because I am hungry”, or “I need to dry myself off because I am wet”. Yes, we know.

And if divorce is effectively going to be an administrative process anyway (and I am not against that), then putting in a legal ground of any sort is completely meaningless. The divorce is a purely tick-box exercise. Removing one of those boxes will make no difference at all.

So we have seen that the Government’s arguments in favour of retaining the irretrievable breakdown ground for divorce simply do not hold water. Other comparable jurisdictions seem to manage quite happily without it, and there is actually no logic in it. Nor is there any logic in suggesting that a ‘threshold’ is needed, when the system never tests to see whether that threshold has been met.

And then we need to look at things from the perspective of the respondent to the divorce. Under the new proposals, they will be told that their marriage has irretrievably broken down, but they will be given no opportunity to argue that assertion. They will not be given the right of anyone else against whom a court process has been initiated: to defend themselves. It will be a fait accompli. Not a very satisfactory situation, from a purely legal perspective. On the other hand, if they are simply faced with the fact that their spouse wants a divorce, then there is really nothing to defend – they can’t say “oh no you don’t!”

Doing away with fault in divorce is obviously a good thing for reducing unnecessary animosity and complexity, but it seems to me that retaining a ground for divorce keeps an unnecessary element of potential animosity and complexity within the system. A ground-less system of divorce would go the whole hog and make the divorce process as ‘neutral’, and therefore as ‘animosity-free’, as possible, as well as making it simpler.

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Author: John Bolch

Optical Painters’ Aids

An artist drawing with the aid of a camera obscura

A matter of perspective

Although I like to think of myself as a multitalented “Renaissance man” of sorts, I must admit that when it comes to drawing and painting, I have absolutely no ability. I’m truly pitiful at Pictionary, and I couldn’t paint my way out of a paper bag. Or so I’ve always thought. Based on what I’ve learned about the methods of some famous painters, I could probably produce some fantastic art from the inside of a very large paper bag, as long as it had a pinhole on one side and pretty bright light outside. All I’d have to do is trace the image projected by this primitive camera obscura. According to a controversial theory, this technique—or something very much like it—gave some world-renowned artists a little help as far back as 1420. Then again…maybe not. Getting to the bottom of this puzzle has been the consuming passion of quite a few artists, historians, and optical engineers.

Without a Trace

Tracing over a projected image is a straightforward notion, but if you’ve ever tried it (as I have) you probably discovered that getting good results is not as easy as it sounds. The easy part is getting the proportions right. But lots of things in any image lack well-defined borders, and trying to make sense of textures and the effects of light and shadow while tracing something is quite a complex undertaking. If, instead of tracing, I were painting, the challenge would become even greater, as I’d have to carefully match gradations in color—and as soon as I applied a dark paint to the light surface, the image in that area would virtually disappear. All that to say: projection or no projection, producing a convincingly realistic drawing or painting takes a lot of skill and practice. So if it turned out that one of the great masters from centuries ago really did pull this off, I’d be no less impressed by the final product—and more impressed by the artist’s cleverness.

We know that numerous artists nowadays, and over the past couple of centuries, have employed just such a technique; many of Andy Warhol’s best-known pieces, for instance, were done this way. Prior to the invention of photography, though, the only images that could be projected were live representations of the real world. The technology to do this, the camera obscura, has been known for many centuries—possibly since as far back as the fifth century BCE. If a tiny hole is placed in the wall of a very dark room and the light outside is bright enough, an inverted image of the outside scene is projected onto the wall inside. But the image is usually fairly dim and fuzzy. Two important innovations in camera obscura design occurred in the 16th century: the addition of a lens (which made the image sharper) and a mirror (which could direct the image onto a horizontal surface rather than a wall). And there are a few scattered records from the mid-16th century of artists suggesting the use of a camera obscura as a drawing aid, though the earliest confirmed date of anyone actually doing so is 1603.

An Obscura Artist

It should therefore come as no surprise that an artist might have used such a technique in the 1660s, and that’s just what some people have claimed for more than 100 years about Dutch artist Johannes Vermeer (1632–75). These suggestions first surfaced when people began noticing that the proportions in Vermeer’s paintings didn’t match those of other works from the time, in which the subjects were typically painted at the size the artist perceived them to be. But in Vermeer’s works, objects and people closer to the foreground are larger than those in the background—seemingly in just the proportions that they would be in a photograph—or a tracing from a camera obscura image. Several other clues in the geometry and lighting suggested the same thing, but there was no evidence that Vermeer actually had (or even had heard of) a camera obscura. In addition, since the scenes in question were interiors, presumably any image created by a camera obscura would have been incredibly dim. So for many decades the debate continued.

Then in 2001, architect Philip Steadman described in his book Vermeer’s Camera detailed research into the geometry of several of Vermeer’s paintings—backed up with photos of painstakingly recreated miniatures of the rooms from the paintings. Steadman’s studies showed that given the dimensions of the room in each scene (which he carefully calculated) and the viewpoint and size of each painting, all are absolutely consistent with an image of the room being projected onto its back wall with a camera obscura. In other words, given not only the uncanny accuracy of the paintings but also the specifics of their perspective, Steadman felt it was nearly a mathematical certainty that Vermeer partitioned off a small corner in the back of this room as a camera obscura and painted over the image on a canvas that hung on the wall. (In at least some cases, X-ray evidence shows that although there was no underlying sketch, there was a monochrome image beneath the color paint; this makes sense considering the very dim conditions inside the camera obscura.)

Tim’s Vermeer

In 2013, the story took another big step. Inspired in part by Steadman’s work, an inventor named Tim Jenison set about to recreate one of Vermeer’s paintings. Jenison claimed no artistic talent, but he did know a few things about optics. So he devised a mechanism that would have been entirely possible using 17th-century technology: a combination of a camera obscura and a small mirror positioned at an angle above the canvas. Using this setup, along with a room designed to be an exact duplicate of the one in Vermeer’s “The Music Lesson” (including live models in period dress), Jenison spent seven months creating his own version of a Vermeer. The striking results strongly suggest that Vermeer used a similar setup himself. The entire project was documented in the film Tim’s Vermeer, directed by Teller and produced by Penn Jillette (of Penn & Teller).

Both Steadman’s book and Tim’s Vermeer met with a certain amount of controversy, not least because they seemingly suggest that Vermeer did not produce his works with artistic skill alone. (Oh, the horror to think that he might have supplemented his considerable artistic skill with technological skill!) But the evidence from both sources is pretty convincing—and, of course, it mainly confirms what a lot of people had suspected all along.

Mirror, Mirror

Shortly after Vermeer’s Camera was published, another book hit the shelves that made much broader (and more controversial) claims—and also influenced Tim Jenison’s work. Painter David Hockney, in his book Secret Knowledge, alleges that European artists used optical aids for painting as early as the beginning of the 15th century. But rather than using a camera obscura, Hockney believes these artists used a concave mirror to project an image onto the canvas; no documentary evidence exists simply because they all chose to keep it a carefully guarded trade secret. Among the many artists on Hockney’s list are Van Eyck, Caravaggio, and Lotto.

Hockney noticed that around the early 1400s, paintings began to show a much more natural representation of light and perspective—that, in some cases, they looked nearly photographic. He was convinced that the level of realism and accuracy they displayed was simply too great to have been done by eye, so he started looking for other explanations. As he went back through history, he noted the use of the camera obscura and other optical aids, and he suspected that the practice may have been much older. He formulated a series of theories about how various works of art over a period of several centuries may have been made by using optics of one kind or another.

Experts in the art world are still divided over Hockney’s claims. Because his theories are so wide-ranging, some of them are bound to be accurate to one extent or another. But many critics believe Hockney has gone too far, and a few have spent considerable effort rebutting his theories. David Stork, a physicist and art historian at Stanford University, has published numerous papers debunking various aspects of Hockney’s book. Stork found alternative explanations for many claims of optical aids, pointing out that none of the available evidence requires one to posit the use of optics in the oldest and most controversial works; there are other, simpler explanations. In addition, Stork finds it highly implausible that the artists could have discovered, created, and kept secret such advanced technology for so many years.

Having read lengthy articles about this debate until my eyes blurred, I feel I have enough information to reach my own conclusion. And that conclusion is: it doesn’t matter. What Hockney, Stork, and I agree on is that even if these legendary masters did use optics, that does not in any way constitute “cheating”; they would simply have been tools of the trade. In the end, I think the years invested in this intellectual exercise might have been more profitably spent painting.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on May 21, 2005.

Image credit: unknown illustrator [Public domain], via Wikimedia Commons


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Author: Joe Kissell

Take Control of Your Online Privacy

Take Control of Your Online Privacy cover

It seems like every few days I run across yet another news story about a privacy catastrophe of one kind or another. Maybe it’s a huge corporation that suffered some sort of data breach, revealing private data about millions of customers. Or slimy behavior by social media companies like Facebook and Twitter. Or the latest creepy attempts by advertisers to track people’s movements across the web without their permission. Or any of countless other examples of how using the internet puts your personal information—and perhaps even your physical safety—at risk.

Online privacy is a hot mess these days, and with few exceptions, the big tech companies are working against greater privacy protections, not for it. It’s enough to drive even tech experts (to say nothing of the rest of us) to despair. That’s why I wrote Take Control of Your Online Privacy—I felt the world needed an easy-to-read summary of what the threats are and how ordinary people can achieve a reasonable level of privacy online without abandoning all technology and heading off to live in a cave somewhere. This book tackles web browsing, email, digital payments, social media, file sharing, and numerous other types of online activity, showing users of any platform what they can do to protect their private data. The brand-new fourth edition, released last week, brings the book fully up to date with all the latest techniques, hardware, and software you can use to keep your personal data private. I hope you’ll find it helpful!

This book, like all Take Control titles, comes as an ebook, and you can download any combination of formats—PDF, EPUB, and/or Kindle’s Mobipocket format—so you can read it on pretty much any computer, smartphone, tablet, or ebook reader. The cover price is $14.99, but as an Interesting Thing of the Day reader, you can buy it this week for 30% off, or just $10.49.


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Author: Joe Kissell

Mate

Mate in a traditional gourd with a bombilla

The national beverage of Argentina

I’m a coffee person. I wouldn’t say I’m addicted to it, but I do certainly enjoy drinking it on a more or less daily basis. Sometimes two or three times a day. In fact, now that I think about it, I could use a cup right now. Excuse me. (Time passes.) Ah, that’s better. I do not drink coffee for my health, although I am aware of studies suggesting that coffee consumption in moderation may reduce the risk of colon cancer, kidney stones, heart disease, and even Parkinson’s Disease. But I certainly appreciate the caffeine, the aroma, and the soothing effect of a warm beverage sliding across my tongue and down my esophagus.

Many of my friends, however, are tea people. I have nothing against a nice cup of tea now and then, and of course tea ably fills that hot beverage need. But in terms of aroma and both psychological and physiological impact, tea just doesn’t do it for me. Once again, tea’s supposed health benefits—of which there are, I admit, far more than those of coffee—don’t quite tip the scales. Maybe I’d be 5% healthier if I switched from coffee to tea, but then, maybe I’d also be 10% grouchier.

A Drink to Die For

I am always, however, happy to try new and unusual hot beverages, especially if they are reputed to have health benefits, a strong aroma, and a flavor frequently referred to as an “acquired taste.” And even more so if the beverage must be prepared and served in a highly ritualized way using special, single-purpose gadgets. So on a trip to Argentina in 2004, I was enthusiastic about sampling mate, their national beverage—and acquiring the necessary paraphernalia to make it myself.

Now, keep in mind: back then, mate wasn’t really a thing in the United States. This was long before every supermarket, convenience store, and cafe in North America hopped on the yerba mate bandwagon, with all manner of hot and cold drinks based on this plant. But even if you’ve sampled something called mate, if you didn’t do it in Argentina, I’ll bet you didn’t do it the “right” way (as defined by Argentineans).

According to one survey, mate (pronounced “MAH-teh”—and not to be confused with the Spanish word maté, which means “I killed”) is regularly consumed by some 92% of Argentineans—and by similarly large numbers of people in Uruguay, Paraguay, and Brazil. Superficially it appears to be a kind of tea, but appearances are deceiving. The true story is much more complex.

For starters, there’s the nomenclature. The dried leaves that are brewed to make mate are known as yerba mate—the word yerba meaning “herb.” This is, however, a misnomer: the leaves come from an evergreen tree in the holly family, Ilex paraguariensis. The word mate itself comes from the Quechua word matí, which refers to a certain type of gourd (Lagenaria vulgaris) which, when dried and hollowed, is used as the serving vessel for the beverage. So depending on context, mate can mean the leaves, the container, or the infusion of the leaves in water. The latter sense appears to be the most common—and is thus at odds with the typical North American usage of “yerba mate” to refer to that infusion.

Details, Details, Details

Yerba mate plants must be carefully cultivated and their leaves harvested at just the right time. The leaves are briefly roasted to preserve their color and prevent spoilage, then dried thoroughly, coarsely ground, and left to age for nine months. Finally, they are crushed and packaged. One supermarket we visited in Patagonia had an entire aisle of mate—dozens of varieties, textures, blends, and package sizes. But even the highest-quality brands were inexpensive: a few dollars or so for a kilogram.

The gourds come in every conceivable shape, size, and color, usually with a three-legged metal base (to prevent tipping, since the bottom is convex), and often with a metal ring around the hole in the top, to reduce wear. Although actual gourds are most common, we also saw mate pots made out of clay, ceramic, metal, and even cows’ hooves and horns. Each gourd also requires a special accessory called a bombilla—basically a metal straw with a strainer at the bottom. Instead of filtering out the tiny leaf fragments when the beverage is brewed, drinkers use the bombilla to filter it as they sip.

To prepare mate, one must begin with a properly “cured” gourd—one that has been soaked or cleaned in one of several ways to remove the residual oils that could adversely affect the flavor. The gourd is then filled about two-thirds full of yerba mate leaves, shaken, and tipped at an angle. A small amount of hot water is poured into the empty side, and after a couple of minutes, the bombilla is inserted and a larger quantity of hot water added. Each of the numerous books and websites I read that described mate preparation had different instructions for the precise method of creating an ideal mate—and in fact, many people prefer to leave this immensely important and challenging task to a cebador, a local expert in mate preparation. Every source I consulted, however, was in agreement that unlike tea, mate must never be made with boiling water.

Mate has the somewhat bitter taste of tannins, much like tea. Because of the ratio of leaves to water, it is a very strong flavor. Some of my companions likened it to “grass,” “hay,” or “alfalfa.” I believe these descriptions were intended to be uncomplimentary. I felt about the taste the way I felt about coffee the first time: kind of bitter, not immediately appealing, but I’ll bet it could grow on me.

Drink Me

Mate is normally shared among several people. I read in two different books that each person customarily takes a sip or two from the bombilla, passes the mate to the next person, and the cycle continues. When the liquid gets low, more hot water is added. However, a reader from Buenos Aires informed me that the custom as he knows it is for each person to finish the amount of water in the gourd and pass it back to the cebador, who then refills it and passes it to the next person.

In any case, because such a large quantity of leaves is used, it takes a long time for a single dose of mate to lose its flavor. The people we observed drinking mate appeared to be unconcerned about sharing germs. Apparently in some situations individual, disposable bombillas are used—but more for convenience than hygiene. Our guide did tell us, though, that according to legend when companions share a mate, they will also share their dreams. I did not check to see what other members of our group dreamed about the night after we shared our first mate, but it makes a nice story in any case.

Purists drink their mate hot and unsweetened—just the way I like my coffee. But I read repeatedly that some segments of the population, such as women, children, and city dwellers (if you can believe such categories) prefer their mate cold and/or sweetened with sugar—and sometimes even prepared with milk. We observed locals drinking mate at all hours—in fact, pretty much constantly throughout the day—except with meals. The quantity typically ingested in a day puts my considerable coffee consumption to shame. In order to be assured of a ready supply of raw materials, some people carry around leather cases large enough to hold a gourd, a thermos full of hot water, and a large bag of yerba mate.

Mate is a mild stimulant—when brewed, it has about half as much caffeine as coffee. Some people believe that unlike coffee, mate’s stimulant effect disappears very quickly when you stop drinking, so it can be consumed safely at bedtime. Mate supposedly functions as a digestive aid, which seems reasonable enough; it’s also used as a laxative. Other health claims abound: mate is said to curb the appetite, boost immunity, combat the effects of aging, and even return gray hair to its original shade—among many other benefits. How many of these effects are genuine, I can’t say. But I suspect its health benefits handily beat those of coffee.

Argentineans who drink mate all day long take it very seriously—they must have just the right brand, prepared just the right way in just the right gourd. And of course, “just right” differs enormously from person to person. In this respect, the mate phenomenon is very much like the culture of coffee snobs in the United States. I did bring home my own mate kit, and in fact my gourd is pictured above. (Needless to say, all the supplies to make your own mate are readily available online.) Whether I ever trade my coffee fanaticism for mate remains to be seen, but if I suddenly seem younger and healthier, you’ll know why.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on January 29, 2005.


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Author: Joe Kissell

Geocaching

A geocache

Adventures with GPS and hiking boots

Hark back with me to a time, long ago, when human beings outnumbered GPS receivers. I know, it’s weird to think about, right? But at this moment I have a GPS receiver built into my smartphone and another built into my smartwatch, and at a rough tally, the total number of such devices in my house right now is eight. Once a specialized, expensive gadget for outdoorsy types with plenty of disposable income, they’re now so common we barely think about them. Every time you ask your car or your phone for directions, you just assume that its GPS circuitry will know where you are and be able to tell you how to get exactly where you want to go.

But back in 2003, when even someone with as much of an interest in gadgets as me couldn’t come up with a good reason to buy a GPS receiver, I was tickled to read an article about a new activity just for those relatively few people with the right hardware. Combining recreation, exercise, high-tech gizmos, and a bit of detective work, geocaching was, at the time, the latest geek rage.

I’m In It for the Cache

Geocaching became possible in 2000, when the U.S. government eliminated a policy called Selective Availability that artificially reduced the accuracy of GPS measurements by non-military folk to a radius of about 100 meters. Once much more precision was possible for civilians, interesting new applications emerged, one of which was a modern version of a treasure hunt. The idea behind geocaching is extremely simple: hide some stuff (the cache), take note of its coordinates using your GPS receiver, publish those coordinates on the web, and invite other people to come find it (using their own GPS equipment as a guide). Nowadays it’s even simpler, as you can just download a smartphone app that’ll display details about all nearby caches on an interactive map.

The cache is usually a watertight container holding a logbook (for finders to record their names and when they located it) and any other random trinkets the owner wishes to include. Usually a cache contains nothing of tangible value; the reward is in the discovery itself, though you might get a small souvenir for your efforts. Finders often leave a memento of their own for the next geocacher who comes upon that site; in more advanced versions of the sport, a cache might contain clues that lead to yet another cache, or an object that’s intended to be relocated to the next cache the person discovers.

Hide and Seek

If your smartphone or any other GPS receiver can indicate your exact position, it may seem as though there’s not much sport—just walk to those coordinates, pick up the box, and you’re done, right? But it’s quite a bit more involved than that. For one thing, GPS receivers still have some margin of error—you may need to search an area with a radius of up to 10 meters. For another, geocaching coordinates generally do not include altitude. A cache could be hidden on the side of a mountain, underwater, in a tree, under a rock, or somewhere inside a public building, all of which would make for a very interesting search. More importantly, knowing where something is doesn’t imply you know how to get to it; the most creative and challenging cache locations are those that require considerable planning, skill, and physical effort to reach.

Geocaching went from a clever idea to an international craze within just a few years. Now, although the newness and exclusivity have worn off, there are approximately eleventy bazillion caches hidden around the world, including dozens within walking distance of my house. There are caches I’ve walked by for years, and would never have known about were it not for the fact that they show up in an app on my phone. And that’s what I find so nifty about geocaching: it’s a way to discover another dimension of your own neighborhood, as you find treasures hidden (almost) in plain sight.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on September 13, 2003, and again in a slightly revised form on January 11, 2005.

Image credit: Pixabay


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Author: Joe Kissell

My Recent Frugal and Extremely Frugal Accomplishments

Hi there everyone! I am so excited to share this post with you, about some frugal and extremely frugal things I did lately! I used to do this on a regular basis, and then my life got super busy and it felt like I didn’t even have time to breathe, let alone do anything particularly frugal… But fortunately I’ve managed to breathe a little again, and because of that, I’ve managed to do these


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Author: Penniless Parenting