Lex Ferenda

The Right Honourable, Deputy Governor General, Privy Councillor (not to mention Chief Justice of Canada) Beverly McLachlin will give a lecture in the School of Law, Trinity College Dublin next month (information here). The topic is “Human Rights Protection in Canada” and all are welcome, but please take the time to email the School if you wish to attend. The event takes place on Tuesday week (May 6th) and I’m not going to be around, so please enjoy it on my behalf…

It promises to be a very interesting talk. For extra credit, you could prepare by reading some of Chief Justice McLachlin’s opinions (helpfully collated on Wikipedia here). We already had a former Supreme Court of Canada judge visiting us this year (Louise Arbour, UN High Commissioner for Human Rights). The questions at that event were excellent - and some of Arbour’s comments rightfully made the news the following day. I’m not sure if the Irish media has a huge awareness of who Chief Justice McLachlin is, but she and her Court are well worth looking at, even while all the ‘North American’ focus is on Hillary vs Barack episode 29480. (And I can’t end this post without another plug for The Court, Osgoode Hall’s Supreme Court blog.

Ofcom (the UK communications regulator) is carrying out a review of public service broadcasting. In connection with the review, they have taken the wrapping off a blog, the Ofcom PSB Review Blog, which is an interesting way to add some spice to the familiar ‘public consultation’ ballet. Just a few posts so far, although they even used SlideShare to embed a presentation, which is a nice touch. I’m involved in a review process at Trinity College (the Statutes Review Working Party), and although the webpages are on the local page (meaning I can’t link to them), we’ve been trying to do something similar with that consultation, putting relatively informal updates on a blog. We haven’t been bombarded with comments, one might say, but it’s a useful way to engage with a different part of the audience. The (still unpublished) Broadcasting Bill in Ireland was the subject of an e-consultation which had similar objectives.

Another particularly helpful element that Ofcom and others are including in their consultations is a feed for the blog, of course (it comes by default in virtually all blogging software). Indeed, if you are a consultation-junkie, you should look at the beta service from TellThemWhatYouThink - they have a feed of all UK government and agency consultations which is pretty cool.

With thanks to slaw.ca for the heads-up, I’m delighted to see that the Osgoode Hall Review of Law and Policy has now appeared (here). It is a “new, online legal journal created and managed by students at Osgoode Hall Law School at York University in Toronto, Canada” (where I spent a happy year far too long ago) and sets itself the target of having a quick turnaround. The journal will include student articles (like this nice administrative law casenote by current Osgoode student Chris Piggott) as well as contributions from more established scholars (for example, a version of Prof. David Vaver’s lecture on IP, delivered at the School last year, is included in the first edition of the journal). While Osgoode of course already publishes the more formal Osgoode Hall Law Journal, the new review joins a growing club of online, flexible publications. Welcome welcome.

According to the New York Times, a case is being brought in Hawaii against CERN and various US agencies over the Large Hadron Collider and the chance that it might, um, destroy the earth.

I remember doing a school project on the LHC about ten years ago. I can’t recall whether this particular scenario was on my list of bullet points then, although I doubt it. Anyway, let’s keep an eye on this case and see how it turns out (if they even get past the various preliminary matters re: jurisdiction). I presume it’s strict scrutiny when it comes to the future of the planet? I hope that Kozinski gets to play with this one. As it’s federal court in Hawaii, the case will (if by some miracle it survives) go to the 9th Circuit Court of Appeals, which the unstoppable Judge K is chief of. Given his adventures with the ‘movie titles’ case, US v Sfufy Enterprises (explained here), who knows what fun could happen?

I attended a session on ‘theory’ as I was one of the speakers! I don’t perceive my work as particularly theoretical but it was a very interesting session and I”m glad that I ended up there. My paper, Expression 2.0: from known unknowns to unknown knowns, will be posted on the BILETA website and I’ll link it then; here are my slides (PDF). I spoke about the control of expression by social networking and web 2.0 hosts and also by internet service providers, particularly through terms of use. In the second part of the paper, I looked at different approaches to freedom of expression, freedom of communication, and the relationship between human rights and private parties.

Next up was Hayley Hooper, who talked about new technologies and the enduring role of constitutional rights. Recent trends promote ‘liberal legalism’ and a particular, marketised approach of supranational constitutional development.

1. Model of legal constitutionalism; not a purely structural theory : outlined by Alan Tomkins - separate to politics, in the courtroom, control of government, etc. While they sound reasonable, argued that they are normatively undesirable. There is a need to look at supranational entities as they have more constitutional power and control over citizens. We haven’t moved beyond inherent bias in constitutions, despite what some may say. The bias that Hayley suggests in the EU context is market-based, e.g. the four (economic) freedoms. The judiciary are suitable for this model; dealing with socio-economic rights is difficult.

2. UK and the development of judicial review. Until Malone v Metropolitan Police (telephone tapping), couldn’t make human rights claim at that time (no legal or equitable claim), everything is permitted unless it is forbidden. But the judiciary became much more activist in ‘discovering’ constitutional rights in the common law … but the record isn’t consistent, the EHCR incorporation hasn’t reinforced this trend. Pro-Life Alliance as an example, due deference applied. So despite the upsurge, the judiciary have a particular mindset, they won’t go into the more controversial areas.

3. Juristocracy. Recent developments in the UK show a trend towards this. Judicial, economic and political elites have converging/confluent interests, which is on the back of neo-liberal technological progress. What are the consequences? US situation is interesting, especially in the political debate re: Roe v Wade. The Government’s ideas reinforce the juristocracy trend; the 1997 election generated it and it’s been ongoing since then.

The discussion touched on Dworkin, Gearty, alternative approaches to judging and decision-making, the role of ‘governance’. And I enjoyed it a lot.

Finally, Martina Gillen (Oxford Brookes) spoke about developing a ‘Sociology of Law 2.0′. Our identity has always been ‘defined’ in a way by technology - even from the definition of homo sapiens. In Durkheim’s original classification, he focused on divisions of labour etc; but buried in it is a differentiation on the use of technology; the elephant in the living room. It’s shaping what’s happening but theoretically it’s poor. Our tendancy to want ‘legal certainty’ has given us a mechanical/scientific mindset. We’re (we as lawyers) viewing technology as something we should be ‘attracted’ to and we want the analogy to apply to law.

We focus on ‘nodes’ but what are we missing? There’s also the proliferation of economic control and interests. “Just because it’s new, does that make it significant”. And Martina also mentioned the ‘cult of the shiny’ which is something I could rant about but won’t…

What would the new features be? public sphere; multiple jurisdictions; inter-sections.

We then saw a very useful diagram about security models (I haven’t got the technological ability to reproduce it but I’ll link to it when published), arguing to focus on what the user is actually doing! It seems trite but it’s a key feature that has been ignored. We need to move beyond categories and consider normative change. Finally, Martina outlined a research method proposal, based on proxies, to study *what* people are doing on the Internet and *why*. The conclusion, then, is that we need to use the technology to get data.

I enjoyed this article by Jeffrey Rosen in this weekend’s New York Times on the US Supreme Court and ‘business’ cases. Well, I didn’t really enjoy some of the conclusions, but the writing is good

Anyway, today’s exciting legal news is that the same court has accepted Fox v FCC (a challenge to the FCC’s new policy towards ‘fleeting’ expletives*), an appeal by the FCC (petition here) from the 2nd Circuit Court of Appeal’s finding that the new policy violated US administrative law (’arbitrary and capricious’ under the Administrative Procedures Act). They’re arguing that the 2nd Circuit’s decision is inconsistent with FCC v Pacificaand with standards of review under administrative law. Susan Crawford and Scotusblog and Slate’s new law blog, Convictions, all have more.

* Most famously, Bono, who said (and I quote): This is really, really fucking brilliant. Really, really great. Who will be saying that at the end of the case? Headline writers, start your engines.

Finally, tomorrow is the day for oral argument in DC v Heller, trying to figure out what the Second Amendment (the right to short-sleeved shirts) means. Marc Liberman at Language Log has a good post from an interesting perspective and Above the Law has a bit of fun with it.

Raise a glass (or the Legal Antiquarian’s Lawyer Stein) to the Irish! Happy St. Patrick’s Day from Dublin and from the legal blogosphere and welcome to this week’s Blawg Review, back at Lex Ferenda after a not-too-unsuccessful tryout for the team in Blawg Review #128. Of course it’s not just the week or month of that most famous of Welshmen, Patrick; the Ides of March are commemorated by What About Clients? and David Giacalone at f/k/a. St. Patrick’s Day is a public holiday in Ireland and in Northern Ireland; Life at Work (in New Zealand) weighs in with some amusing observations on holidays from work.

In Chicago (where, as you may know, the river runs green; no need to notify Patrick S. O’Donnell, who posted wonderful bibliographies on bioethics and on environmental and ecological worldviews at his new home on Ratio Juris, it’s perfectly environmentally safe), it seems that as reported by Rob La Gatta the American Bar Association’s “Beer for Bloggers” was displaced by the crowds of St. Patrick’s Day revellers. Well, they did hold the event in Kitty O’Shea’s…so this was fairly inevitable. But did the bloggers turn green? (More from the Common Scold). The show that they were all attending/drinking at was the ABA Techshow, which sounds like it was a great event; Technolawyer, next week’s Blawg Review host, has the full story.

St. Patrick’s Day, of course, is also a religious occasion (technically taking place on March 15th this year, causing some confusion; explained by Terahertz and Diamond Geezer and - ahem - the Home Brewing Blog). Catholic voices across Ireland and the world spent much of this week digesting the news that the Vatican has updated its list of mortal sins. The Law Librarian Blog has more, and Above The Law talks about Sins 2.0. Continuing with the religion-and-the-world theme, Paul Secunda at Concurring Opinions writes about religion in the workplace in a readable and intelligent summary of his recent paper on the topic.

St. Patrick is also the patron saint of engineers. His intervention might be necessary to assist poor Chis Avenir, an engineering student at Ryerson University in Toronto who found himself in a spot of bother for organising a Facebook study group. The certainly-Irish-Canadian Peter Ryan has all the details. Elsewhere in the diaspora, Ann Bartow at Feminist Law Professors reports on green bagels, green beer and a 5K green run. Other interesting posts there this week included a report on a conference on Working From The World Up, which sounds very interesting (more on this from Ann Althouse . Catherine O’Rourke from the University of Ulster (at the northern tip of this fair island) spoke at the conference on the topic of ‘International Feminism’.

The Irish blawgosphere is on the small side. Still, what we lack in quantity we try to make up in quality. Some particularly good pieces from the last week come from barrister Fergus O’Rourke (not a blogger or blawger) on insurance advice, Edward McGarr on discovery and, keeping it in the family, Simon McGarr (at tuppenceworth.ie) on the government Minister with responsibility for the ‘information society’ not liking bloggers all that much.

Irish techie eyes are not smiling, though, at the news that the major record labels are seeking a court order to compel ISPs to implement a particular filtering system to prevent ‘illegal downloading’. The Digital Rights Ireland blog has the full story and Jim Carroll has more. Another Irish case sparking interest across the globe is Goodfellas v Irish News, reported by Eoin O’Dell here (also discussed at Blurred Keys, The Fatalist, Salut! and the Illinois Business Law Journal; special points for the Simpsons reference in that last one) . Eoin also has a series of posts on the abolition of criminal libel and the progress of the Defamation Bill at his blog, cearta.ie.

Kevin O’Keefe wonders what the impact of law blogging is on the market profile of firms-with-blogs. Certainly, Irish firms like Matheson Ormsby Prentice, which this month celebrated being the only Irish law firm in the Irish ‘Top 50 companies to work for‘ list, might take notice. But the downside of large firms is discussed in this WAC post. And blogging lawyers must have seen their hearts skip a beat (and not in the good way) at the news that the formerly anonymous Patent Troll Tracker is being sued for defamation. Though, the clueless lawmaker of the week is in Kansas, and Eugene Volokh dismisses with ease an attempt to ban anonymous online speech. An extremely thoughtful overview of both Patent Troll Tracker and more general issues is provided by David (O’)Donoghue at Chicago IP Litigation.

Intrepid blogger of the week is Anne Reed, who found out all about the jury system in Japan. Could Anne possibly be Irish?? The endangered species that is the redhead (insert joke here if you must) is even celebrated in an Irish documentary airing this weekend.

Now, the big news out there is that Eliot Spitzer is governor of New York no more. And where to start? There’s some concern about the use of photos from MySpace; Balkinization imagines a future Supreme Court decision on this topic, Eric Turkewitz makes a connection with medical-legal issues, Scott Greenfield wonders what next, and some commenters have even been talking about the money. The wonderful ‘recovering lawyer’ and comedian Madeleine Begun Kane even commemorated the events with a limerick! And what if he seeks forgiveness?

So it seems unlikely that Spitzer will be marching (at least in an official capacity!) in this year’s St. Patrick’s Day Parade in New York City (his resignation is effective as of noon on March 17th). Such parades have of course given legal scholars a great case to write about, being of course Hurley v Irish-American GLB Group of Boston. Anyway, it does seem that Senator Hillary Clinton will be busy, and the people in New York will be led by sports commentator Tommy Smyth. In Ireland, we’ll be watching these New Yorkers, but also following journalist Shane Hegarty’s Spotter’s Guide. Irish politicians tend to head to anywhere but Ireland on St. Patrick’s Day (illustrated by Martyn Turner here; other famous Irish globetrotters may interest Blawg Review’s famous editor), but while they are away Damien Mulley will make hay with their disclosure statements (more here)

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

I will post some separate, lengthy comments about the Defamation Bill (which is - finally - passing through the Seanad today) later on or over the course of the week. However, something quite remarkable - and unexpected - happened in today’s proceedings. That is the question of the offences in Ireland of criminal libel, seditious libel and obscene libel.

The Defamation Bill, as drafted, and through Committee Stage in the Seanad, would have abolished these three (relatively obscure) offences, and replaced them with a new offence of the publication of gravely harmful statements. That would have been good, but not enough, as there would still have been a significant cirminal offence of the statute books. However, in an amendment (nos. 51 and 53) introduced by the Minister for Justice at this stage (only published this week), and debated quite speedily in the House, the sections relating to the new offence were removed; he argued that he was not convinced that it was appropriate to introduce a new criminal offence that would have such an impact on freedom of expression.

So on the topic of criminal offences, all that remains in the Bill is the abolition of the three offences (the full Defamation Bill 1961, which developed some of the offences in terms of penalties and procedures, is to be repealed in full anyway). The Minister did point out, though, that the ‘constitutional offences’ of article 40.6.1 (”the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law“), would still have to be dealt with, and that part of the 1961 Act might have to live on in order to provide for the sanctions for the constitutional offences. It was a short enough debate - Alex White (Labour) agreed with the Minister and Joe O’Toole (Ind) said that this would make Ireland a leader on this issue and would enhance the standing of the Minister in criticising criminal libel laws in more repressive states.

The context for the original proposal was the report of the Legal Advisory Group on Defamation of 2003, where they said (at para 59) that they

… endors(ed) the recommendations of the Law Reform Commission concerning the desirability of abolishing the common law offences of blasphemous libel, obscene libel and seditious libel. This is in a context where the Group has formed the view that matters such as blasphemy, sedition and indecency should not be dealt with in the context of a defamation statute even if they should be criminalised in their own terms in another statutory vehicle. (PDF)

but proposed the ‘publication of a gravely harmful statement’ offence (paras 60-61) while abolishing criminal libel. Earlier, as they said, the Law Reform Commission had also recommended abolishing the offences of seditious libel and obscene libel and maintaining but reforming ‘the common law offence of defamatory libel’, with a series of alternatives being set out regarding blasphemous libel. The LAG also mentioned, as you see, blasphemous libel (for abolition), although the Bill doesn’t points to this specifically in the repeal of common law (though repealing the Act of 1961, I think, would do some of this in practice anyway). The Bill, as it emerges from committee later tonight, will without further amendment provide for

• the repeal of the 1961 Act including Part 2 dealing with various criminal offences
• the explicit repeal of “the common law offences of criminal libel, seditious libel and obscene libel”
• no provisions on a new offence of the publication of gravely harmful statements
• no specific mention of blasphemy or blasphemous libel other than the repeal of s 13 (as part of the general repeal) of the 1961 Act (though I think that might mean that, especially in conjunction with the Constitution, blasphemous libel - or blasphemy, indeed - would continue to exist - but see note below on the definition of criminal libel)

And that, I believe, is good news.

(Additional notes on blasphemous libel after the jump)

Read more »

Regular readers and casual visitors alike might be interested in this - I’ll be hosting the wonderful Blawg Review next Monday (17th March - you can guess why!). The Blawg Review covers blogs about law, and all submissions are welcome, but blogs/posts with a specific connection with Ireland or topics that one would associate with this fair island (try not to have them all about alcohol, mmmkay?), would be particularly useful. My Blawg Review #128 of last October was great fun to put together, and I’m hoping for loads of interesting submission for the second attempt.

To submit a post of your own, or an interesting post that you’ve seen, please follow the submission guidelines here. Follow the link and use the online submission or email the specified address and I’ll receive it immediately.

Correction: February 19, 2008
An article in some editions on Monday about a New York City Transit employee’s deft use of the semicolon in a public service placard was less deft in its punctuation of the title of a book by Lynne Truss, who called the placard a “lovely example” of proper punctuation. The title of the book is “Eats, Shoots & Leaves” — not “Eats Shoots & Leaves.” (The subtitle of Ms. Truss’s book is “The Zero Tolerance Approach to Punctuation.”)

Link, with thanks to Language Log.

I can’t believe they actually made a mistake like this. I laughed out loud (or LOLed; I don’t think I ROFLed because it’s covered with books). It must have been a very clever joke on the part of a creative sub-editor. Perhaps it was an odd tribute to Louis Menard, who infamously put the boot in in a New Yorker article. The article opened with these classic words:

The first punctuation mistake in “Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation”, by Lynne Truss, a British writer, appears in the dedication, where a nonrestrictive clause is not preceded by a comma. It is a wild ride downhill from there.

You can guess where it went from there.

While we’re talking about the New York Times, though, I just have to mention this. As you’ve probably heard or read or seen or divined, the New York Times ran a story about John McCain and a lobbyist and the connection between them. I was much more interested, though, in the response from The New Republic (TNR), which is a detailed slab of meta-media, an analysis of how and why the Times ran the article…published less than 24 hours after the article it is commenting on was uploaded to the Times’ website! Clearly, the magazine (TNR) has been following this for some time - but it’s still an illustration of something, I just haven’t figured out what. For what it’s worth, I found the piece in TNR (or ‘the TNR’ - shades of The The?) more interesting than the Times article itself. The TNR article also has a cameo from Bob Bennett, who has a life-as-a-lawyer book called In The Ring coming out. Must keep an eye out for that.