Irish Law Forum

Trinity Law Student Colloquium

noreply@blogger.com (Sandeep Gopalan) — Mon, 23 Jan 2012 11:54:00 +0000

The fourth annual Law Student Colloquium will be held in Trinity College Dublin on Saturday February 4, 2012. It will be followed by the first annual Brian Lenihan memorial address to be held in the GMB. The address is in recognition of Mr Lenihan's substantial contribution to public life, his longstanding relationship with the law school as student, scholar and lecturer, and his tragic recent death. Judge Bryan McMahon will be speaking under the title of "Judging." Former AG Paul Gallagher will chair. The event will be followed by a wine reception The email address for those wishing to get in contact is law.student.colloquium@gmail.com and further information can be found at http://www.tcd.ie/Law/studentcolloquium/.

I was on a panel at this event a couple of years ago and found the student papers to be of good quality. It is certainly worthy of support.

Patricia Quinn and Undue Influence

noreply@blogger.com (Sandeep Gopalan) — Fri, 16 Dec 2011 12:55:00 +0000

The Irish Times is reporting that the Commercial Court has just issued judgment rejecting Patricia Quinn's plea that she did not have to repay her loan eur.3 million loan to Anglo Irish Bank (now Irish Bank Resolution Corporation) because of undue influence. Justice Peter Kelly, correctly, ruled that "[t]he law since the middle of the 18th century allowed for no presumption of undue influence between a wife and husband, and there was also no actual evidence of undue influence by Mr Quinn over Mrs Quinn, such as bullying behaviour."

This is a relatively straightforward case and it is surprising that an undue influence argument was even advanced. The law has moved on considerably beyond patronising views about a married woman's contractual powers. It is necessary to show that the woman is under the dominion of her husband in order to succeed. In other words, a lot more than the mere fact of marriage is necessary for an undue influence presumption to arise. Further, even if dominion is shown, it is not the end of the inquiry. If the woman exercised independent judgement the transaction would stand. Quinn's claim seems to have been based on authority along the lines of Midland Bank v. Cornish, where there was clear evidence of the bank taking advantage of the wife. But there is no evidence of unfair advantage here and it beggars belief for a woman who serves as a director on a number of corporate boards, and who must be assumed to be reasonably sophisticated, to make such a claim.

In sum, Justice Kelly got it absolutely right and it would be hard to see this judgment being overturned on appeal - at least on undue influence grounds.

Does Ireland Need a Referendum to Ratify EU Budget Rules?

noreply@blogger.com (Sandeep Gopalan) — Mon, 12 Dec 2011 11:32:00 +0000

There has been some debate following the release of the summit statement by the EU Heads of State on the 9th of December about the need for a referendum in Ireland to adopt the new rules. Minister Lucinda Creighton has been quoted as putting the odds of a referendum at "50-50" (no explanation as to how she got to those precise numbers). Tanaiste Eamon Gilmore stated in parliament last week that a referendum would be held "if needed." Today's Irish Times reports that the government is seeking legal advice on the issue and that it would take several months to arrive at a determination about the need for a referendum. The article also quotes one source stating a "hunch" that a referendum would be required.

I am not persuaded about the legal need for a referendum at this stage. The executive branch possesses exclusive competence to enter into international agreements in many consitutional democracies. Ireland is no different. The primary check on the abuse of this power is through the usual political process. But the Irish Supreme Court in Crotty v. An Taoiseach (1987) ruled that the "powers [to enter into international treaties etc] must be exercised in subordination to the applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints." Justice Walsh - one of the three judges in the majority - wrote further that "[i]f it is ... desired to qualify, curtail or inhibit the existing sovereign power to formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action."

One can argue, with some justification, that the judges in the majority are reaching too far into an area that is within the exclusive competence of the executive branch. Courts are not well placed to second guess executive decisions in the foreign relations area and it is preferable for judges to abstain from judicial review unless constitutional rights are clearly violated.

Still, even with this decision, it is not necessarily the case that a referendum is legally required in order to adopt the new EU rules. The judges in the majority seem to have limited the need for a referendum where there is a clear qualification, curtailment or inhibition of Irish sovereignty. It is perfectly sensible to argue that existing EU rules already occupy the field sought to be covered by the new rules and that there is no new curtailment of sovereignty. Rather, the new rules merely seek to operationalize the existing grant of sovereign power in favor of EU institutions by setting in place verifiable mechanisms with consequent sanctions for breach of treaty commitments. Under this view, a referendum is not necessary as there is no new transfer of sovereignty. In addition, one can argue that sovereignty in this area has also been transferred to the EU/IMF as part of the bailout agreement and nothing new is being done pursuant to the summit.

In conclusion, it is not clear that there is a legal necessity at this stage for a referendum in Ireland. The question will turn on the precise wording of the new treaty and it may be possible to draft it in a way that avoids the need for a referendum.

"International companies will shy away from doing business in Ireland"

noreply@blogger.com (Sandeep Gopalan) — Tue, 06 Dec 2011 10:40:00 +0000

More ink is spilled by politicos in the legal profession on the meme that the independence of the profession will be destroyed if the Legal Services Regulation Bill 2011 is passed. Today's newspapers contain claims that "cross border trade would suffer and international companies will shy away from doing business in Ireland if the legal profession was under government control." The paragraph above that quote suggests that Ireland will become like China if the Bill is passed. The obvious difficulty with that analogy - China continues to attract enviable levels of foreign investment - seems to have escaped notice.
The Independent's report also contains the laughable claim that there could be litigation in the European Court of Justice and the European Court of Human Rights over provisions in the Bill.

Shatter's "Arrogance" and The Eight Former AGs

noreply@blogger.com (Sandeep Gopalan) — Tue, 01 Nov 2011 09:00:00 +0000

Much has been written about Alan Shatter's dismissal of the eight AGs' opposition to the constitutional referendum proposals on cutting judicial pay and Oireachtas inquiries ("nonsense" and "simply wrong"). These pieces - mostly attacking the Minister (e.g. The Independent: "Alan Shatter, the star of the 'No' campaign, whose arrogance contributed to the defeat of the Oireachtas Inquiries referendum ...") - imply that the intervention by the AGs is owed some deference. That is, their status confers more weight to their views than those expressed by others. Some have even made references to the fact that Mr. Shatter is a "family law solicitor" setting it up as a marker of contrast to the AGs - as if that puts him at a disadvantage in the expertise stakes and therefore entitles their opinions to greater weight.

I am a bit bemused by this deference and by the severe condemnation of the Minister for labelling the former AGs' views as "nonsense." Why should the opinions of a group of eight former AGs be given any more weight than lay opinion? Note that I am not referring to the substance of the arguments advanced by the AGs at this time. My question is limited to whether their status as former AGs entitles their opinions to superior weight. This question might be posed in respect of the privilege granted to most kinds of expert opinion. However, there is a key difference here: expert privilege is usually earned in some form - e.g., a Ph.D. or some credential that is the product of sustained activity in a technical discipline. The AGs are in a slightly different position - they were appointed politically, and earned expertise of the same sort cannot be automatically assumed.

Setting aside this problem and assuming that they are experts, are their opinions entitled to any deference by virtue of status? It would be a mistake to grant anyone such deference. Experts can also be wrong. If the opinions of putative experts are taken at face value, with sole reliance upon their status, there is inadequate examination of the substantive arguments. Expertise becomes a device to chill debate by insulating opinions from scrutiny. It denies the same privileges to non-experts and seeks to denigrate and ultimately to exclude. We also erroneously substitute examination of the substantive arguments for a superficial evaluation of the purported expertise. To be sure, expertise might be rationally privileged when the issue is one of technical complexity and where the average person is unable to arrive at a sound decision following reasonable effort. However, the questions submitted by the referenda only involve political choices - not technical issues - and are not of a level of complexity that is beyond the average voter. The trend in modern societies is for elites to seek to transform simple political choices into complex technical arguments to exert disproportionate influence over the democratic process and advance their interests. Coevally, we might be seeing the substitution of deference in Ireland in favour of experts and away from institutions traditionally accorded such privilege - such as the Church. Whatever the reason, such deference is antithetical to a republic founded on equality, serves to promote herd-like behaviour, stymies robust debate, and fosters error.

It is a pity that the media blithely deferred to the opinions of the eight former AGs. Their opinions should be examined for substance - except that there is not much of it beyond urging rejection of the proposals upon pleas about independence etc. One assumes that the average voter was able to see this and did not place much importance to the AGs' views. Even if their views had any influence, it is likely that just as many - if not more - voters chose to vote against their advice, as did in favour, thereby not affecting the net result. This conclusion - admittedly, impressionistic and not empirically sound - is supported by the many hostile letters published in the major newspapers following the AGs' intervention. It is also consistent with the massive majority in favour of cutting judicial pay despite the AGs opposing the proposal. Equally, the defeat of the Oireachtas inquiries proposal might not have been influenced by their letter; rather it was probably becaused the government did not do enough to explain the issue to the public.

In any event, the defeat of the inquiries proposal is not a big deal. It was always going to be a poor mechanism for getting to the root of the banking crisis - one of the justifications offered by the government for adopting it. As I've argued before, here, here and here, an independent commission would be better suited to that task. For other types of matters of public importance, the Abbeylara case does not prevent Parliament from conducting inquiries, as I've argued here. This referendum was entirely unnecessary and the government need not have followed the ultra-conservative legal advice that canvassed for spending public money in this way.

Eoin Daly on Judges' Pay Referendum

noreply@blogger.com (Sandeep Gopalan) — Mon, 24 Oct 2011 09:29:00 +0000

Eoin Daly (DCU) has a nice piece in the Irish Times today cutting through a lot of the drivel advanced against the pay-cut referendum:
It is normal, in a republic, to expect that the general and equal applicability of legislation should be the norm ...
Popular vigilance, along with law, plays a role in the perpetuation of our democratic constitutional system. This is overlooked by lawyers’ cliched charge of “populism”, which itself betrays a culture of elitist ambivalence to the world of politics.

[The judiciary's] use of an official forum to comment on the merits of a referendum proposal represented an unprecedented invasion of a sphere which under our constitutional system, is reserved to the people and their elected representatives alone though the amendment process. The judiciary has no power or no democratic right to intervene in this process, but worse, the content of the intervention itself was ill-judged because it potentially undermined the public perception of judges as impartial and motivated by the rule of law rather than self-interest.

Judges are normally loath to intervene in questions they perceive as “political”, which made it so unfortunate that the lone amendment on which they officially commented was that which directly affected their personal interests. Yet this extraordinary intervention provoked hardly any reproach in legal and academic circles.

Worth reading in full.

Irish Times Op-ed on Judges' Pay Referendum

noreply@blogger.com (Sandeep Gopalan) — Tue, 18 Oct 2011 10:00:00 +0000

The latest salvo against the referendum in the Irish Times today claims that adopting the proposed amendment would "deliver[] a blow to Irish democracy."

I am a bit bemused. The point of a referendum is to give the public a chance to participate directly using the power of the ballot. Does that not promote democracy?

Reflections on the Legal Services Regulation Bill 2011

noreply@blogger.com (Sandeep Gopalan) — Fri, 14 Oct 2011 09:44:00 +0000

The Legal Services Regulation Bill 2011, has been greeted with predictable opposition by those representing the profession. Below are some of my thoughts on their arguments.
1. The Bill erodes the independence of the legal profession
This argument assumes that the legal profession is somehow independent and operates on some lofty claim. The truth is that no jurisdiction that I am aware of has guaranteed absolute independence to the profession and freed it from all regulation. There are a variety of models of regulation across the world but none of them are designed to guarantee absolute independence or to create a position of special privilege for lawyers.

The idea of independence is to ensure that lawyers are able to dispense legal advice to clients free of pressure from the state, to protect the rule of law, to protect against retaliation for pursuing claims against the state, and to support the administration of justice. These objectives are guided by the need for a system that serves the public interest. While different countries have adopted a range of regulatory models for the profession, in no country has the supervisory function been free of state interference. Many jurisdictions have vested this power in the courts - which are also an organ of the state. Judges are appointed by the government in these jurisdictions and vesting supervisory power in their hands has not compromised independence in any meaningful way. Yet some continue to make tall claims - the Independent claims today that "Minister ... will directly appoint seven of the 11 members ...[t]his undermines not just the independence of the legal profession, but undermines access to justice itself. The new regime of direct control of the legal profession is unparalleled anywhere in Western Europe."

The government appoints judges. Does anyone seriously believe that Ireland does not have an independent judiciary or a legal system based on the rule of law? Irish judges are widely applauded for their independence and excellence and to jump to the conclusion that appointment by the Minister "undermines access to justice" is rather silly.

The Bill expressly mandates independence: section 9(3) says that the Authority "shall be independent in the performance of its functions." Further section 9(4)(e) requires it to "encourag[e] an independent, strong and effective legal profession," and 9(5)(a)(1) states that legal professionals shall "act with independence and integrity." They are also required to "comply with duties rightfully owed to the court." In addition, other provisions contain detailed rules designed to ensure independence. Section 11 - containing bars on serving as a member of the Authority if elected to Parliament, section 14 - disclosure of conflicts of interest, etc are examples.

2. The Bill gives too much power to the Minister
This ultimately depends on practice and it is perfectly possible that the minister will defer to the views of the Authority. It is also misleading to suggest that the profession has been shut out of the appointments process - 4 out of the 11 members of the Authority shall be nominated by them. 6 out of the 16 members of the disciplinary tribunal shall be nominated by them. This is quite a lot of power to the profession. There are however some areas for concern. For e.g. the strategic plans have to be approved by the minister and there might be some pressure on the codes of practice. These could be improved through further clarifications.

3. The disciplinary process is flawed
The Bill provides a detailed set of rules on lawyer discipline. This is not at odds with what is prevalent in other jurisdictions. It is typical to have non-lawyers on disciplinary hearing panels, although the requirement for the majority to be comprised of lay persons poses challenges of expertise. The decision of the Disciplinary Tribunal can be appealed to the High Court.

4. The Bill will make legal services more costly
There is no evidence to support this assertion. Indeed many of the reforms are expressly geared at removing structural barriers to competition and costs ought to come down. It would have been preferable for the Bill to merge the professions now rather than waiting for a report and wasting two years. The justifications offered for the duality of the professions are weak and there is nothing new to be gained from another report. Allowing direct access to barristers, permitting them to take up regular employment and to provide legal advice to their employer, permission to form firms, etc., should all work to drive down costs.
I have some concerns about the requirement for annual statements from accountants; this seems unnecessary and costly. I am also not persuaded about the need for mandatory indemnity insurance. A disclosure based regime would have been a superior alternative because it would facilitate contractual choice and keep costs down. I am also not persuaded about the need to create a new profession of conveyancer.

In conclusion, there is much to like in the Bill and it is a step in the right direction. The profession should see it as an opportunity to improve access to justice, provide better service to clients at lower cost and to regain public trust.

Trinity Provost Prendergast's Speech on Irish Higher Education

noreply@blogger.com (Sandeep Gopalan) — Tue, 20 Sep 2011 09:46:00 +0000

Provost Prendergast deserves a lot of credit for speaking the truth. On the introduction of fees, he said, “We have no right to mortgage future generations by dodging this issue. They will not thank us. And we have no right to prevent those who want a quality education from paying for it if they can afford to do so. The reality is that if the best students can’t get a top quality higher education here, they will go abroad for it and they would be right to do so.”

Even more important are his remarks on autonomy: "We need to release some of the constraints acting on higher education. To compete globally, I need to have flexibility and decision-making powers, the same flexibility that other presidents of leading universities can count on, particularly with regard to hiring and promotions.
At the moment I need to get permission for what I do.”

Prof. Prendergast is right: we cannot have a higher education system that is treated like a regular state bureaucracy and expect it to compete with good international universities.

Change in Wording on Proposed Amendment on Judges' Pay Cut?

noreply@blogger.com (Sandeep Gopalan) — Fri, 16 Sep 2011 13:00:00 +0000

The Independent reports that senior judges have managed to secure a "crucial change" to the draft proposed amendment ensuring that this pay cut is a one-off and that future cuts must be "proportionate". The article seems to be implying that there has to be parity between pay cuts imposed on other public servants and those imposed in the future on judges. This change in language was reportedly procured based on legal advice from an "eminent senior counsel."

Much expense and time could have been saved by relying instead upon the same advice offered on this not-so-eminent blog in a post on July 27, 2011.

Latest Irish Times Op-ed on Judges' Pay Referendum

noreply@blogger.com (Sandeep Gopalan) — Fri, 16 Sep 2011 08:06:00 +0000

More ink continues to be spilled on the judges' pay referendum, mostly rehashing arguments (sans any acknowledgement) made on this blog and by other bloggers like Paul MacMahon and Fiona deLondras, but with differing amounts of spin. Today's piece, by Estelle Feldman, correctly notes that the proposed amendment is badly drafted and is susceptible to misinterpretation. However, I am not too sure about her claim that a pay cut could be imposed on just one judge. The very use of the word "judges" in the amendment ought to militate against such a reading. Her point about selective pay cuts for a judge or judges who rule against the government in a lawsuit is not supported and does not follow from the argument about not defining "class." A selective, punitive pay cut would probably be illegal and no sensible government would take such a big legal risk. Setting aside the legality of a pay cut for just one judge or a targeted group of judges, the severe political cost likely to be incurred by any politician brave enough to go in that direction makes such a threat highly unlikely. Moreover, there is no evidence of such a practice being employed in any comparable jurisdiction. So, this argument is a distraction from the real issue about poor drafting.

The curious thing in the entire debate is that both sides seem to be beating about the bush rather than offering their strongest arguments. If, as the government claims, the purpose of the pay cut is to make Irish judges share in the pain, and to eliminate preferential treatment, why draft the amendment with undefined classes and no assurance of parity in the amount of any pay cut across the public sector? Why not offer a simple amendment imposing the same reductions in pay as are imposed by law on all public servants? This would defang all arguments about judicial independence being compromised etc. The government is lucky that it is not losing the messaging battle as a consequence of its strange drafting strategy - opinion poll evidence seems to indicate strong public support for the pay cut. Consider the other side: why this leap into judicial independence, when the easier case is that the amendment is terribly drafted, confusing, likely to yield unintended outcomes, etc? It will take a miracle to convince the Irish voter that judicial independence would be compromised by the adoption of the amendment. Opponents of the amendment might have better luck arguing that judges are not overpaid, that pay has to reflect expertise and opportunity costs in order to retain and attract the best candidates for judicial office. They might point to recent proposals for pay hikes in jurisdictions like New York to support that point. But one suspects that this is a hard case to make because Irish judges are not poorly paid. They are probably paid just about right and that is a difficult point to sell. Hence the distraction about judicial independence.

Some of my older posts on the pay referendum are here, here, here, here, here, here, here and here.

Doctoral Teaching Scholarship in Law at NUI Maynooth

noreply@blogger.com (Sandeep Gopalan) — Wed, 24 Aug 2011 10:34:00 +0000

We are doing a second round of funding for this scholarship. It offer a generous eur. 16,000 in addition to full fees. Candidates must have a 1st class degree. Closing date is September 7, 2011. Feel free to contact me for details.

Irish Times: "Legal System Provides No Guarantee of Justice"

noreply@blogger.com (Sandeep Gopalan) — Mon, 22 Aug 2011 10:10:00 +0000

The newspaper has an opinion piece today that applies a broad tar brush to the legal system, with some wild claims. If the point is that the system needs reform - which one can readily accept - it has been undermined by some pretty bizarre argumentation. A detailed rebuttal would be too long for a blog post so I'll focus on just a few points. The piece starts off with an attack on legislative drafting followed by the assertion that many laws survive constitutional scrutiny only because people cannot afford to challenge them. This is a tall claim given the deference granted by the courts to the legislative branch in constitutional challenges. Moreover, the connection between poor drafting - I doubt if lawyers in any jurisdiction have ever come across the perfectly drafted law - and constitutionality is not substantiated. There is also no evidence offered for the success rate of constitutional challenges, when people can "afford" to bring them. If this is indeed high, it might support the point that the legal system is doing its job. One does not doubt the need for good drafting but it is overstated in this context.

Then the piece attacks "lenient sentences" awarded by the courts and claims that the community has been "demoralised" as a result. The author claims that those released early are committing violent acts and victims of serious crime are "so badly treated." Where is the data for recidivism for violent crimes to support this claim? One study between 2001-2004 found that recidivism in Ireland was highest for property crimes. Sex crimes - which typically atract the highest amount of popular outrage - had much lower recidivism rates. Popular opinion is typically in favour of draconian sentences but what is the evidence that Irish judges typically impose lenient sentences for violent crimes? Lenient compared to UK judges? US judges? One would have expected some evidence to support these sorts of claims, but once again all we get is a bald assertion. Jail is extremely expensive and the evidence indicates that Irish prisons are overcrowded. If violent criminals are indeed being treated leniently, evidence must be collected and resources ought to be directed at remedying the problem. Knee-jerk statements unsupported by evidence are not very helpful.

Next is an attack on wigs and gowns - valid. And an attack on the DPP's lack of accountability. These are sound criticisms but again there is no real substance beyond two statements buried in the middle of the piece.

The piece also shows inefficiencies in the civil justice system caused by the separation between Solicitors and Barristers with a putative client "Shiela." There is little doubt that the separation of the profession imposes unnecessary transaction costs and is inefficient. That point could have been made more effectively without the examples provided in the piece. Many of those examples - tardiness by barristers taking silk, etc - do not do much for the argument as they only speak to individual instances of lack of professionalism.

In conclusion, yet another opportunity to make the case for reforming the legal system goes to waste.

Reforming the Legal Profession: "You're not going to argue with a doctor when your pants are down around your ankles"

noreply@blogger.com (Sandeep Gopalan) — Sun, 14 Aug 2011 13:42:00 +0000

The Minister for Enterprise, Mr Richard Bruton, has been taking some bold steps since he assumed office. In that vein, he continues to take aim at the legal profession, which he believes is acting like a cartel. Some of his recent views, via an article in the Irish Independent: ... Ireland's competitiveness was being damaged by a legal "cartel", but he noted that while "people were not going into a room" together to set up prices, "custom and practice had grown up in a manner that was very comfortable" for our over-paid lawyers.

He added that the current "pricing relationship" involving the hiring of senior counsel, junior counsel and solicitors had "no place" in a modern, competitive economy.

Mr Bruton also reiterated a recent warning to the legal profession that there would have to be fundamental structural changes in how they operated if we were to create "a competitive market structure".

Unlike other industries such as supermarkets, "simply asking people to shop around is not realistic" because seeing a barrister is "like visiting a hospital consultant.

I doubt if the analogy between doctors and barristers works. At the highest level - where fees are in the millions - the clients are typically very commercially sophisticated, and possess the ability to choose between lawyers. To be sure, the small size of this jurisdiction might constrain choice somewhat, but I don't think there is much need for paternalistic intervention at the top level. The problem is more at the bottom level where routine legal work is over-priced. Drafting documents, arguing small claims etc ought to be less expensive, reflecting the level of expertise, time, and skill involved. This is where the ordinary consumer finds himself at a difficulty when he needs legal services. The legal profession in most jurisdictions has been unwilling to tackle this problem. Predictably, other providers have jumped into the market - as in the U.S. - and are offering cheaper services for drafting wills, leases etc. It is only a matter of time before similar services become more widely prevalent.

I wonder if Mr Bruton will go whole hog and strike at the separation between Barristers and Solicitors. Intuitively, removing this artificial and archaic divide ought to have some effect on the cost of legal services, while enhancing consumer choice and competition. It would also be helpful if the government were to modernise the court system - for e.g. by providing electronic public access to filings, requiring written arguments which are publicly accessible, etc - while it is tackling the legal profession.

Evidence in Criminal Cases: DNA Testing in 2 Minutes

noreply@blogger.com (Sandeep Gopalan) — Fri, 12 Aug 2011 12:58:00 +0000

Here's a nice two-minute video from the Innocence Project showing how DNA testing works:

UCLA Law Gets $10 Million Gift, Some Other Law Schools Get Sued

noreply@blogger.com (Sandeep Gopalan) — Thu, 11 Aug 2011 10:48:00 +0000

In a perfect illustration of the winner-takes-all model prevalent in the US, UCLA Law School received a $10 million gift - the largest single gift in its history - to set up the "Lowell Milken Institute for Business Law and Policy, which UCLA officials said was the result of a three-year effort by law school leaders and Milken to create business and law initiatives that focus on innovative research, problem-solving and hands-on skills training."

This is truly impressive in a very tough climate for university endowments.

On the other end of the spectrum, two class action suits have been filed against Thomas M. Cooley Law School (Michigan) and New York Law School (not NYU Law School). The plaintiffs are graduates of these law schools. They are suing for "$250 million from Cooley and $200 million from NYLS in tuition refunds, as well as other damages and reformed employment statistic reporting practices.

Both lawsuits state that the plaintiffs seek “to remedy a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.”"

A similar suit was filed against Thomas Jefferson Law School (San Diego).

Can't Pay Fines in Ireland? Don't Worry, There's No Space in Jail

noreply@blogger.com (Sandeep Gopalan) — Wed, 10 Aug 2011 17:04:00 +0000

Law abiding citizens ought to be outraged by reports about a significant number of offenders refusing to pay fines and facing no adverse consequences for such disregard for their legal obligations. What's worse, to escape scrutiny, the system is resorting to skullduggery to conceal the true numbers of those turned away from jail for not paying their fines by not characterising them as being on "temporary release". These individuals are being equated - wrongly - with those who have served their jail terms.

As the Irish Times reports, "a “front-door mechanism” was created last year. The system ensures that most fine defaulters arriving at the gates of a jail are turned away because there is no room for them inside.

Their fines are expunged on the spot because they are technically regarded as having served a short prison term in lieu of their fine."

Why should people pay fines if there are no consequences for not paying them? To be sure, many will pay out of a sense of legal or moral obligation. But many pay fines only because of fear of other secondary sanctions for refusal to pay. If these sanctions fail to bite, such individuals will ignore the primary sanction. To add insult to injury, reports indicate that these fines are expunged. This makes no sense. Why not retain them on the records as unpaid debts that could be garnished from wages etc when possible?

The reason provided for turning defaulters away from jail - lack of space - is not a justification for absolving them of all punishment. Why not impose community service orders if there is no space in jail? Or other sanctions like taking away driving licences (if the fines were for automobile related offences)? There are plenty of punishment avenues other than incarceration and the state ought to explore them in these instances.

Turning a blind eye to those who refuse to honour their legal obligations only sends the wrong signal to society and ultimately undermines respect for the rule of law. One can only expect more disregard for legal rules if this policy continues.

Police Using Flickr to Nab London Rioters; Facebook Next?

noreply@blogger.com (Sandeep Gopalan) — Tue, 09 Aug 2011 20:27:00 +0000

What about Google's Goggles? Remember the scary technology that would allow users to take a photo of a person's face and get personal information about him/her? This raised questions about privacy rights and the company is supposedly still attempting to resolve these issues before roll out. One can readily see the problems posed by an app that allows any person to take one's photo in a public place and get every bit of information available about one online. But do similar problems arise if Scotland Yard were to use this technology to identify the thugs involved in rioting and looting in London? London has a massive network of surveillance cameras and it might be possible to get images of many of those engaging in violence and looting. An opinion poll would probably show widespread public support for such policing.

London police is reportedly using Flickr to help identify the perpetrators; they have "posted a set of photos on Flickr showing people they believed to be participants in the riots. ... the images are primarily from the Croydon and West Norwood neighborhoods in south London, although the site says that more will be posted soon. With the initiative, called Operation Withern, the police are asking the public to identify anyone they recognize from photographs captured by CCTV surveillance cameras in areas where stores were looted."

What about Facebook tagging? I wonder how many of these thugs have Facebook accounts and whether they will be tagged after these images are published.

Dog in the Witness Box to Aid Rape Victim: Unfair to the Accused?

noreply@blogger.com (Sandeep Gopalan) — Tue, 09 Aug 2011 18:58:00 +0000

Does the presence of a comfort dog in the witness box during testimony sway the jury? Can a cute dog trigger feelings of sympathy and make the witness more credible? Is the presence of the dog a violation of the accused's right to a fair trial? These questions are being raised in New York following a trial of a father for raping his teenaged daughter. The father was convicted and sentenced to 25 years in jail. He is appealing. From the NY Times:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

Prosecutors here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Idaho, Indiana and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.

Some comfort dogs have supposedly appeared in over 50 trials. While it is true that the dog is only doing what it is trained to do - offer comfort when the witness shows signs of stress - it is possible that juries may be swayed. This is quite a complicated issue and the appeals court decision ought to make for interesting reading.

All-nighters at Law Firms

noreply@blogger.com (Sandeep Gopalan) — Tue, 09 Aug 2011 14:41:00 +0000

The Guardian has a piece about all nighters at London law firms with a photo of a Japanese capsule hotel - supposedly similar to emergency sleeping arrangements at some firms. A quote from the article:

"One Sunday morning as I was eating breakfast I got a call from my boss asking me to come in immediately. I worked that day until 1am, then went home for some sleep. I was back in at 7am on Monday, working through until 6am on Tuesday. At that point I got three hours' sleep at the office, before starting work again at midday and continuing right through until 7am on Wednesday – when, thank God, the deal closed."

This looks like pretty pedestrian stuff. I remember tougher days from my stint on Wall Street. While many thrive on this sort of machismo, I would be surprised if repeated all-nighters didn't impose a significant cost in the form of reduced quality.

Table Showing Impact on Judges' Pay if Referendum is Adopted

noreply@blogger.com (Sandeep Gopalan) — Fri, 05 Aug 2011 13:43:00 +0000

Here's a table showing the impact of the proposed pay cut for judges, if the referendum is passed:

Source: Dept. of Justice website.

Greeks Taking Money from Banks to Store in Garages: No End to EU Crisis

noreply@blogger.com (Sandeep Gopalan) — Wed, 03 Aug 2011 15:50:00 +0000

As I've argued before, EU leaders have shown very little evidence that they are capable of taking the bold steps necessary to contain the crisis. Italy and Spain's continuing troubles show that markets have no faith in these band-aid measures and that they next crisis is not too far off. A recent article in the Guardian about a silent bank run in Greece is scary:

In May alone, almost €5bn (£4.4bn) was pulled out of Greek deposits, as part of what analysts describe as a "silent bank run". This version is also disorderly and jittery, just not as obvious. Customers do not form long queues outside branches, they simply squirrel out as much as they can.

One senior investment banker [said]: "People are scared that the government doesn't know what the fuck it's doing." He tells a story about an acquaintance who took out €30,000, wrapped it in a bag and stashed it in his garage. "The bag had previously had some food inside," he says. "So it attracted rats, who ate the notes."

These sorts of stories remind one of the Great Depression and it is incredible to read about it happening so close to home in this day and age.

Italian Burqa Ban: Prejudice Masquerading as Paternalism?

noreply@blogger.com (Sandeep Gopalan) — Wed, 03 Aug 2011 15:27:00 +0000

News reports indicate that Italy may adopt a ban on burqas, following the lead of other European states like Belgium. Those who violate the ban face fines of up to Eur. 300, whereas those who coerce women to wear burqas could be fined as much as eur. 30,000 and be jailed for 12 months. As in those instances, the ban's proponents cloak their case in the garments of concern for the poor women who are forced to wear the burqa, blissfully unaware of the hypocrisy of their position. For example, the New York Times quotes Barbara Saltamartini of the Freedom Party - no irony there - as saying that the ban "will put an end to the suffering of many women who are often forced to wear the burqa or niqab, which annihilates their dignity and gets in the way of integration."

I am sure that some of these people mean well but how on earth do they claim moral superiority when all they are doing is substituting one coercive act (the burqa ban) for another coercive act (forcing women to wear the burqa)? For my critique of the bans, see here. Previous blog posts are here, here, and here.

Ronaldo and Footballers as European Central Bank Collateral

noreply@blogger.com (Sandeep Gopalan) — Tue, 02 Aug 2011 18:37:00 +0000

Financial News reports that Bankia, the Spanish Bank, is offering Ronaldo and Kaka as collateral to the ECB for some financing. Ronaldo was supposedly acquired from Manchester United for GBP 80 million whereas Kaka was purchased for eur. 65 million.

The ECB has been accepting all sorts of junk as collateral lately but they might draw the line at Sepp Blatter and Irish footballers. Perhaps rugby players? Although seizing those muscular rugby chaps and taking physical custody in the event of default might be beyond the abilities of ECB personnel!

New Details on Bin Laden Killing: "No One Wanted Detainees"

noreply@blogger.com (Sandeep Gopalan) — Mon, 01 Aug 2011 16:39:00 +0000

From a riveting article in The New Yorker on the raid that resulted in Bin Laden's Killing:

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

My article in the WSJ on the legality of the killing is here. These new details might raise some questions about whether a surrender option truly existed.