Via Irish Election:

The question of when unjust enrichment can give rise to proprietary rather than personal remedies is a fraught one. Like Fermat’s Last Theorem, there may be a truly marvellous solution, but it is still elusive. Nevertheless, we are several steps closer to the proof, thanks to William Swadling’s very important article on (the weaknesses of) Policy arguments for proprietary restitution (2008) 28 (4) Legal Studies 506-530. Here’s the abstract:

Arguments are sometimes made attempting to justify proprietary awards to unjust enrichment claimants by reference to the ‘priority’ such awards supposedly give in the defendant’s insolvency. Those justifications are variously that unjust enrichment claimants do not take insolvency risks, that the defendant’s creditors would otherwise receive an underserved windfall, and that unjust enrichment claimants occupy a position analogous to secured creditors. This paper shows that such arguments are flawed. To award unjust enrichment claimants’ proprietary rights is not to give them priority in their defendant’s insolvency but to withdraw the right from the estate available for distribution to all the unsecured creditors, whatever their order of priority. Moreover, insolvency ‘priority’ is not the only consequence of such an award. Finally, when seen for what they are, viz arguments for the award of property rights, the justifications do not, for a number of reasons, stand up.

A sign of the times, from the front page of today’s Irish Times:

Law Society starts planning for unemployment among solicitors

CAROL COULTER, Legal Affairs Editor

THE LAW Society is seeking a “career development adviser” to help solicitors and trainee solicitors find careers outside law.

In an advertisement published in The Irish Times today, the society says this person will be a “key resource for solicitors who are facing unemployment, changed working arrangements or transition to another jurisdiction or career choice”. …

The full advertisement is here, from the Law Society website.

As Law firms’ profits contract, there are increasingly frequent stories of big US and UK law firms cutting partners and associates; and in Canada, the times, they are ‘a changing in the same way. From Slaw:

Great advice for lawyers who are (or might be) looking for a job

by Dan Pinnington on February 5th, 2009

Lawyers that have been laid off or are facing a potential layoff some time this year need to plan for a new future. If you or someone you know is facing a job search, Resolve to Manage Your Job Search by Kathleen Brady is a great article that contains a step by step guide to seeking new employment. …

Update: Solicitors A&L Goodbody seeking 45 voluntary redundancies

The European Convention on Human Rights (ECHR) was promulgated by the Council of Europe in 1950. The European Court of Human Rights was established under that Convention to enforce the rights protected by it, and it has recently handed down three very interesting judgments concerning Articles 6 (fair trial), 8 (privacy), and 10 (speech).

Article 6(1) provides that

… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

ECHR blog brings news of Application no 22330/05 Olujic v Croatia (05/02/2009), in which adverse public comments by three judges in advance of hearing a case against the applicant denied him a fair hearing within the meaning of Article 6. What makes the case all the more interesting is that Olujic had been President of the Supreme Court, the case concerned his dismissal from the bench for publicly fraternising with known criminals, the three judges had publicly and adversely commented about this after the allegations had been made, and one had been a rival candidate for the Presidency of the Court.

Article 8(1) provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

TJ and OUT-LAW bring news of Application no 1234/05 Reklos and Davourlis v Greece (11/12/2008) (in French; press release in English) in which the taking of photographs of a baby in a clinic without the parents’ consent constituted a breach of Article 8, even though the photographs had not been published. In classical conceptions, privacy is invaded as much by intrusion upon the private sphere (as the ECHR itself has already implied) as by publication of intimate details (as the ECHR has already held in the context of photographs). Photographs are thus potentially twice-damned: the taking of the photograph can itself constitute an intrusion, whilst its publication can amount to a further invasion of privacy.

Article 10(1) provides:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

ECHR blog and First Amendment Law Prof Blog bring news of Application no 31276/05 Women on Waves v Portugal (03/02/2009) (in French; press release in English) in which the use of a warship to block the entry of a ship to Portugal to prevent its crew from disseminating information about abortion was unanimously held to have infringed Article 10. From an Irish perspective, perhaps the most interesting aspect of the case was the Court’s repeated reliance upon and affirmation of its previous decision in Application no 14234/88 & 14235/88 Open Door and Dublin Well Woman v Ireland (29/10/1992) [1992] ECHR 68 which had also found that a ban on abortion information infringed Article 10. More than that, these case involve prior restraints upon speech, and although the ECHR – unlike the Supreme Court of the US – has not announced a presumption against prior restraints, it has held that because of the dangers inherent in them, they call for the most careful scrutiny on the part of the Court (a point which has been echoed by Fennelly J in the Irish Supreme Court). The ECHR did not make this point in in Women on Waves, but it demonstrates just how hard it will be for a prior restraint to escape condemnation on the basis of Article 10.

Are you a Law student, undergraduate or postgraduate? Would you like to present a short paper or give a presentation on a legal topic of your choice at a colloquium at TCD on Saturday 4 April 2009?

Individual presentations will last 10-15 minutes. Prospective participants may consider presenting a paper on a topic in which they are personally interested or have conducted research for an essay or article. Whatever the topic, and reflecting the title Rethinking Law, proposals should challenge existing law or current understandings of law. For further information, including how to submit an abstract, visit the website or send an email to the organisers as soon as possible.

This is a wonderful idea. I love the fact that it is entirely general, soliciting contributions on all aspects of the law. Moreover, whilst there are now are now lots of outlets for postgraduates, this colloquium – uniquely, and excitingly – also solicits submissions from undergraduates. Indeed, it actively welcomes their (your) participation on the day, whether by presenting papers or as members of the audience. So, what are you waiting for? Send that email now!

Update: the deadline for submission of abstracts has been extended to 5:00pm on 16 February 2009, so send that email now!

Inspired by the posts below, my game about law – for lawyers and non-lawyers alike – is the following question: can the readers of this blog provide non-US examples of misunderstood legal statements?

To begin, I offer the common misunderstanding about the basic words “legal” or “lawful” and “illegal” or “unlawful”. Lawyers know that there are many ways something can be “illegal” or “unlawful”, from constituting a tort to being liable to be quashed in judicial review proceedings to contravening the criminal law. On the other hand, it is common for lay people to go assume that if something is unlawful it must necessarily be contrary to the criminal law.

Here are the inspirations:

Misunderstood legal quotations

OK, Dear Readers: Let’s play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement. …

Picked up on Volokh: Famous Misunderstood Legal Quotations and Statements

So, any other examples?

It’s an unjust enrichment case from your M&S. For those who have a taste for this kind of thing, this morning brings momentous news. The teacakes litigation is over! Eventually! After more than 13 years! See Marks and Spencer plc (Appellants) v Her Majesty’s Commissioners of Customs and Excise (Respondents) [2009] UKHL 8 (4 February 2009) (also here). The matter had been referred to the ECJ twice, and had returned to the House of Lords after the second reference (earlier stages are: CA, ECJ, CA, HL here and here, ECJ). Lord Walker of Gestingthorpe concluded his speech as follows:

The Court of Justice’s answers to the third and fifth questions did therefore raise the possibility of further issues having to be decided by the national court. But the Commissioners have, after thirteen years of litigation, decided that they do not wish to pursue these matters. The House can therefore dispose of the matter by allowing the appeal from the order dated 21 October 2003 of the Court of Appeal, and inviting submissions as to costs (if necessary) within fourteen days.

Now, the only question is, what kind of teacake do I want with my morning coffee?!


Update: UK Drops ‘Unjust Enrichment’ Defence On VAT Reclaims:

The UK tax authority, HM Revenue and Customs, has announced that, in the light of a recent House of Lords judgment, it will no longer use the ‘unjust enrichment’ defence to argue against value-added tax claims by businesses. HMRC has arrived at this decision after the Lords ruled on February 4 that Marks and Spencer was entitled to a full refund of VAT paid in respect of teacakes sold over a twenty-year period. …

Jack Balkin, on his blog, has just posted a paper under the above title on SSRN. It is a very insightful consideration of some very important theoretical and practical issues. Here’s abstract:

In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. Moreover, the values of freedom of expression will become subsumed withing a larger set of concerns that I call knowledge and information policy. The essay uses debates over network neutrality and intermediary liability as examples of these trends.

Freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression. Properly designed, it gives people opportunities to create and build technologies and institutions that other people can use for communication and association. Hence policies that promote innovation and protect the freedom to create new technologies and applications are increasingly central to free speech values.

The great tension in twentieth century free speech theory was the increasing protection of the formal freedom to speak against the background of mass broadcast technologies that reserved practical freedom to a relative few. The tension in twenty-first century free speech theory is somewhat different: New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization – are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.