On the eternal question of what constitutes plagiarism, via Critical Mass, a post that speaks for itself:

Welcome to the desert of the real

I know you ask yourself constantly: “What does plagiarism look like in the age of simulacrum?” Now we know:

In 2007, after several high-profile plagiarism scandals, Southern Illinois University released a 17-page report on how to deal with the issue. The report includes a lengthy definition of plagiarism, explaining exactly what does and does not merit the dreaded “p” word.

One problem: That definition appears to have been plagiarized.

The 139-word definition used in the report is nearly identical to the definition adopted by Indiana University in 2005. …

… Now if I were a clever postmodernist, I would have just posted Margaret Soltan’s analogous post here in lieu of my own. But I’m not that clever …

Read more here.

Bonus links: A cheat, moi? That’s unfair (Times Higher; hat tip Ninth Level Ireland) | Can law students get away with plagiarism? | The Morality of Plagiarism | Plagiarism is Plagiarism or Why Readily Available Online Information Changes Nothing | What do you do about plagiarism | What do you do about plagiarism | Students turn to web plagiarism | Study shows ‘plagiarism epidemic’.

In a previous post, I looked at the restrictions on publishing jury deliberations. Now comes the news that, in the UK, the Attorney-General has been given the go-ahead to prosecute The Times:

The Attorney-General has been given permission to bring contempt of court proceedings against the publishers of The Times and the foreman of a jury alleged to have revealed “secrets of the jury room”.

The foreman’s anonymous criticism of the conviction of a childminder for the manslaughter of a baby in her care was reported in a Times article in 2007. At the High Court, Baroness Scotland of Asthal, QC, was given leave to bring proceedings against Times Newspapers Ltd and the foreman. The newspaper had not been informed of the hearing.

Lord Justice Maurice Kay said: “We don’t think this is the very gravest case of jury indiscretion – nevertheless we grant permission.”

One question which I assume will arise – as Joseph Jaconelli suggested in (1990) 10 Legal Studies 91 and in chapter 7 of Open Justice: A critique of the Public Trial (OUP, 2002) – will be as to the extent to which freedom of expression, on the part both of the juror and of the media, trenches upon the traditional absolute secrecy of the jury room. We shall have to watch this space.

The most recent New York University Law Review (vol 83, number 6, December 2008) has two wonderful pieces about the Law of Contract, one relating to the old chestnut of efficient breach (a doctrine that has taken root in US law, but not elsewhere in the common law world), the other relating to the theoretical structure of the law’s approach to the subject.


Barry E. Adler Efficient Breach Theory Through the Looking Glass (pdf); here’s the abstract:

A party in breach of contract cannot sue the victim of breach to recover what would have been the victim’s loss on the contract. The doctrinal rationale is simple: A violator should not benefit from his violation. This rationale does not, however, provide an economic justification for the rule. Indeed, efficient breach theory is founded on the proposition that a breach of contract need not be met with reproach. Yet the prospect of recovery by the party in breach—that is, the prospect of negative damages—has received scant attention in the contracts literature. Close analysis reveals potential costs to disallowance of negative damages, particularly where a party with private information about the benefits of termination also has an incentive to continue under the contract. These costs can arise both ex post, at the time of a performance-or-termination decision, and ex ante, in anticipation of that decision. Nevertheless, allowance of negative damages could impose its own costs, where background information would create an incentive to repudiate a contract before either party could gather more information, for example. Ex ante contractual provisions, such as liquidated-damages or specific-performance clauses, permit parties some latitude to balance the costs of disallowance and allowance of negative damages, albeit imperfectly. Common law limitations on the mitigation duty may be seen as a mechanism to approach this balance in the absence of an explicit contractual solution.

Gregory Klass Three Pictures of Contract: Duty, Power, and Compound Rule (pdf); here’s the abstract:

There is a fundamental divide among theories of contract law between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law places duties on persons entering into agreements for consideration, whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing—a question that should lie at the center of contract theory.

This Article argues that legal powers have two characteristic features. First, there is an expectation that actors will satisfy the rules with the purpose of achieving the associated legal consequences. Second, the legal rules are designed to facilitate such uses. A law might exhibit these features in either of two ways, which define two types of legal powers. Many laws that create legal powers employ conditions of legal validity, such as legal formalities, designed to guarantee the actor’s legal purpose. The presence of such validity conditions is strong evidence that the law’s sole function is to create a legal power, and I suggest reserving the term “power conferring” for such laws. Other laws anticipate and enable their purposive use without conditioning an act’s legal consequences on the actor’s legal purpose. The structure of such laws suggests that they function both to create powers and to impose duties. I coin the term “compound rule” for laws that satisfy this description and argue that the contract law we have is a compound rule. The dual function of compound rules provides empirical support for pluralist justifications of contract law. An example of such a theory can be found in Joseph Raz’s comments on the relationship between contract law and voluntary obligations.

Via Ghosts in the machine, Slaw, Toby Stephens, and the BBC (update: see also here), I am reminded that today, January 28, is Data Privacy Data (about which I have blogged in previous years). There is an extensive Council of Europe site; there is an Irish page here; and both Intel and Google are stepping up to the plate. Isn’t it about time that the Office of the Data Protection Commissioner was upgraded into a fully fledged Office of Privacy Protection?

Bonus links: I’ve already mentioned the most recent privacy recommendations of the Australian Law Reform Commission on this blog; at around the same time, the British Columbia Law Institute issued a Report on the BC Privacy Act, and the New South Wales Law Reform Commission issued a Consultation Paper on NSW privacy legislation. Our own Law Reform Commission’s report on privacy dates from 1998, and is in need of updating and enactment.

From a European Court of Human Rights press release:

Orban v France (application no. 20985/05)

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights on account of the applicants’ conviction for, among other offences, publicly defending war crimes, following publication of the book Services Spéciaux Algérie 1955-1957 (“Special Services: Algeria 1955-1957”) …

The Court considered that the applicants’ conviction amounted to interference with their right to freedom of expression. The interference had been prescribed by French law and had pursued the legitimate aim of preventing disorder or crime. The Court stressed above all that it was not for it to rule on the constituent elements of the offence of publicly defending war crimes, its role being confined to ascertaining whether the applicants’ conviction on account of the publication of the book in question could be said to have been “necessary in a democratic society”.

On the question whether the interference had been “necessary in a democratic society”, the Court observed first of all that the authorities had had only a limited margin of appreciation, circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public’s right to receive them. Those principles also applied to the publication of books in so far as they concerned matters of public interest. … the Court reiterated that freedom of expression within the meaning of Article 10 was applicable not only to “information” or “ideas” regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed. Accordingly, penalising a publisher for having assisted in the dissemination of a witness account written by a third party concerning events which formed part of a country’s history would seriously hamper contribution to the discussion of matters of public interest and should not be envisaged without particularly good reason.

Full text is available here, in French; commentary is available here from Jurist.

From First Amendment Law Prof Blog:

Last week the [US Supreme] Court declined to review the Third Circuit’s most recent opinion finding the Child Online Protection Act (COPA) unconstitutional. The denial of review in Mukasey v. American Civil Liberties Union 534 F.3d 181 (3d. Cir. 2008) [pdf] effectively marks the demise of the statute which has made its way up and down in the federal courts for years. COPA’s provisions, which criminalized web transmissions that were “harmful to minors” and that were made for commercial purposes, were found unconstitutional by the Third Circuit in July because they were not narrowly tailored to advance the government’s compelling interest, failed to reflect available less speech restrictive mechanisms to protect children from the targeted web content, and were overbroad and vague. …

The denial of cert is recorded here; OUT-LAW has a good discussion here, and Jurist has a good one here.

This post is by way of an out-of-date footnote to the previous two. I never thought I’d see the day when I would willingly come to the defence of Michael O’Leary, CEO of Ryanair, but – never say never – it’s happened! O’Leary revels in his unpopularity, a result as much of his airline’s lack of frills as of his straight-talking defence of this policy. Even though I’ve been a victim of his airline’s policies, I am more than happy to assert and defend his right to talk straight, not only in defence of those policies, but also to debate the merits of his airline taking over another.

Last week, he and Dermot Mannion (the CEO of Aer Lingus, the airline in Ryanair’s sights) had been scheduled to engage in just such a debate on Prime Time, RTÉ’s flagship current affairs tv program, but the Irish Takeover Panel considered that it would constitute a breach of take over regulations, and the debate was cancelled. Nothing daunted, O’Leary sought to quash this ‘gag order’, and commenced judicial review proceedings. However, given the failure of the takeover, the court challenge was withdrawn. This is a pity. Let us assume that the Take Over Panel acted entirely within their powers under the Irish Takeover Panel Act, 1997 (also here). If so, can such a gagging order be a proportionate restriction upon the right to freedom of expression? We won’t have a court decision on the issue this time, but – guess what? – in my view, it would be hard to defend the order.

Since writing my previous post, I have read (hat tip: Ninth Level Ireland) a trenchant statement of the opposite view by Prof William Schabas, Director of the Irish Centre for Human Rights at NUI Galway. His argument is twofold. First, he refers to the EU Framework Decision on racism and xenophobia (pdf). Second, he argues that, whatever about that Decision, Ivring should not as a matter of principle be granted a prestigious platform by the Lit & Deb. He illustrates this second point with a rhetorical flourish:

There are also cranks who believe that the earth is flat, but we don’t invite them to deliver seminars in the geography department.

And he concludes that

… any reasonable reading of the EU Framework Decision should lead to the conclusion that he cannot be welcome in Ireland, or at the University.

Read the rest of this entry »

Freedom of expression matters most where the expression in question is unpopular: if it it is to mean anything, it must mean “freedom for the thought that we hate” (US v Schwimmer 279 US 644, 655 (1929) Holmes J); it covers not only mainstream ideas which hardly need protection, but also those that “offend, shock or disturb the State or any sector of the population” (Handyside v United Kingdom 5493/72 [1976] ECHR 5 (7 December 1976) [49]). That is why this blog has defended the right to freedom of expression especially when it involves unpopular opinions or unpopular speakers.

There are no more unpopular ideas than the denial of the Holocaust, and there are no more unpopular speakers than David Irving. Even here, in my view, we should give speech a chance: the best way to ensure that we never forget the Holocaust is to debate it at every turn, not to suppress speech from Irving’s ilk. The Oxford Union got good headlines last year when it invited Irving to debate about freedom of expression. Now it seems that NUI, Galway’s Literary and Debating Society are about to repeat the trick. Read the rest of this entry »