I’m very disappointed with the Literary and Debating Society of NUI Galway. Having wrapped themselves in the mantle of freedom of expression over their invitation to David Irving, they let the mantle slip last night. Having invited former Taoiseach (Prime Minister) Bertie Ahern to a public interview, the event had to be abandoned because of protests by students opposing the reintroduction of college fees (see Belfast Telegraph | GalwayNews.ie | Indymedia | Irish Times | Ninth Level Ireland | RTÉ here and here | YouTube (above left)). The Auditor of the Lit & Deb, Dan Colley, is reported to have said that he was “disappointed” at the turn of events, and concluded

This was a failure of freedom of speech.

No, Dan, this was a failure on the part of the Lit & Deb to protect the process of freedom of speech. Freedom of speech is not self-executing. Those who claim to support it have a duty to do so actively. It’s not enough to say free speech is important; it is necessary to be active in its defence and support. If a society such as the Lit & Deb invites controversial speakers, making a grab for the headlines, then that society must ensure that the controversial speakers actually have the opportunity to speak. Otherwise, the hecklers in a hostile audience will have a veto on the speakers. And the heckler’s veto is antithetical to freedom of speech. Hence, the US Supreme Court has rejected it as inconsistent with the freedom of expression guarantees in the First Amendment (see Feiner v New York 340 US 315 (1951); Hill v Colorado 530 US 703 (2000)).

The Lit & Deb should therefore have protected the process of freedom of speech last night by ensuring that Bertie Ahern’s interview went ahead. And they should take active steps to ensure that, having invited David Irving, he actually gets to speak. Anything else would be a failure of freedom of speech, and it would lie at the feet not of the hecklers but of the Lit & Deb.

Update (4 February 2009): from today’s Irish Times: College to investigate Ahern protest; Students to hold street protest over return of fees and cuts to assistance; Third-level capital programmes targeted in €56m cutback plan.

In no particular order, here a few posts which caught my eye recently which update issues on which I have blogged on this site.

I am Chicken (Hear Me Squawk…) updates Chicken Soup for the academic soul

The crossed purposes of legal education updates The Goals of a Law School Education

Students have been sold a lie (hat tip Ninth Level Ireland) updates Laptops in class

Dancing with a pole. That’s not pole-dancing, is it? updates Censoring Theatre in Britain and Ireland

Memories in cyberspace and Looking back to Apple’s future update two of the Three internet tropes

Client Fraud and the Lawyer, Madoff victims could reach 3m, say lawyers, New claim of €1.8m made against O’Brien and O’Brien ordered to repay €1.85m update More on Madoff, O’Brien, and Restitution

Wilders heads to Supreme Court updates Incitement

Friday fripperies (the source of the picture, above right) updates Harry Potter copyright update

Alarm sounded over wi-fi networks updates Just when are wardriving and piggybacking illegal?

A fifth of gay people tried suicide – study updates Ethical reporting of suicide [Further update here]

ICO urges organisations to promise to do better on privacy and Staggering absence of data protection officers, ‘DPO survey – the results’ (pdf) update Happy Data Privacy Day, 2009!

Reports of My Death are Exactly Right puts a rather different spin on Mark Twain’s exercise of the Privilege of the Grave

It’s Culture, Not Morality (hat tip: Ninth Level Ireland) updates Plagiarising ‘plagiarism’

And, by way of light relief, Courtoons hilariously updates Legal Citation.

Recently posted on SSRN, a very important paper by Colleen P. Murphy (of Roger Williams University School of Law) on “What is Specific About ‘Specific Restitution’?” (forthcoming Hastings Law Journal, Vol. 60, 2009). Here’s the abstract:

An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant’s unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant’s unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and “specific restitution.” This terminology obscures important concepts, such as that a plaintiff’s asset-based remedy might be for a fund of money or that recovery of an asset might not constitute “specific” relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing “specific” about specific restitution. This article situates the term specific restitution within the larger context of how the term “specific” is used in the law, and it examines how scholars and courts have used “specific restitution.” Finally, the article turns to the American Law Institute’s ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment. The article recommends that the Restatement dispense with the term “specific restitution” and rely on the more accurate term “asset-based restitution.”

Law reports from today’s Irish Times:

Data Commissioner’s prosecution can go ahead
Realm Communications Ltd v Data Protection Commissioner: High Court, Judgment was given by Mr Justice McCarthy on 9 January 2009 [2009] IEHC 1

The Data Protection Commissioner did not act unlawfully in issuing summonses against a company using text messages for marketing purposes (Realm) without the consent of the recipients, without having first sought to arrange an amicable resolution between the company and the complainants.


Suspended sentence for burglary not wrong in principle
DPP v de Paor and Zdanowski: Court of Criminal Appeal. Judgment was delivered by Mr Justice Hardiman on 19 December 2008 [2008] IECCA 137

An application by the Director of Public Prosecutions to review the suspended sentence of five years for robbery and false imprisonment imposed on Cuan de Paor – on the grounds that it was unduly lenient – was refused.


Coming to terms with greater role of expert is an edited version of Mrs Justice Fidelma Macken’s remarks at the recent launch of the Law Reform Commission’s Consultation Paper on expert evidence (pdf).


In short: US Supreme Court upholds immunity of prosecutors [the case is here]; EU Commission criticised; Seminar on construction law; Criminal law conference; Law Society complaints committee; New managing partner at Eversheds


Bonus links from today’s Times Online: Forcing out judges at 70 ‘threatens supreme court’ (the Irish judicial retirement age is also 70); The law lords who served their time (the longest-serving Irish judge was Christopher Palles, Chief Baron of the Exchequer for 42 years between 1874 and 1916).

The Oxford Standard for Citation Of Legal Authorities (OSCOLA) is fast establishing itself as the UK’s standard system of legal citation. It is at present undergoing revision, and the Editors welcome comments and suggestions by email before the end of the month.

It is important to disclose sources (not least to avoid charges of plagiarism), in as complete a fashion as will allow a reader to find the source easily. Systematic citation methods allow for accurate, comprehensive and consistent citation of references such as cases, statutes, books, articles, and so on; and, in the legal context, they will also provide valuable information about a case, such as when it was decided, the level of decision, and so on. There are many possible citation systems, of which Harvard maintains a very useful list of paper-based resources.

However, one citation system stands out, and this is one situation where you really can judge a book by its cover: the Standard System of American Legal Citation is universally called The Bluebook, because of the colour (or, I suppose, the color) of its cover (pictured right; see its wikipedia page). It was first published in 1926 (pdf); it is now in its eighteenth edition; and Peter Martin’s online Introduction to Basic Legal Citation (Cornell Legal Information Institute) is based on it. I’m not a fan: it is clumsy and overly pedantic, premised as it is on the formalist Langellian conceit that there can be a rule for every possible citation occasion. Worse than that, quite frankly, it simply looks ugly on the page. Hence, though it is the dominant US standard, I’m glad that even there it is not entirely without criticism or competition. In particular, there is the long-standing University of Chicago Manual of Legal Citation, which – maintaining the colo(u)r theme – is called the Maroon Book and on which theUniversity of Chicago Law Review has based its house-style; and the Association of Legal Writing Directors have produced a very accessible Citation Manual.

Outside the US, there are few examples of adoption of these standards. Instead, various jurisdictions have developed their own styles. For example, Australia has the Australian Guide to Legal Citation published by the Melbourne University Law Review Association. And the bilingual English-French Canadian Guide to Uniform Legal Citation (6th ed, Carswell, Toronto, 2006) has been produced by the McGill Law Journal (pdf summary here; html summary here).

However, most of these guides continue to be available in print, and for a price (though The Bluebook is also available online by subscription). On Slaw, Gary Rodrigues has argued that there should be free and open online access to the McGill Guide (an argument which could with profit be applied to the others as well):

A Modest Proposal – The McGill Guide

… Like the Bluebook, the McGill Guide has the potential to provide the “systematic method by which members of the legal profession communicate” to one another in Canada. What is needed to achieve this result? One key element is easy access which could be provided if the McGill Guide was made available to judges, lawyers and law students on all of the online services in the country including CANLII, SOQUIJ, and every commercial legal publisher. … The widespread use of a single style guide will help to ensure that legal citations and references are complete and useful. By making the McGill Guide available virtually everywhere, the likelihood is greater that it will be used by an increasing number of members of the legal profession, especially if its use is reinforced in training programs for judges and lawyers. …

There are some general online citation standards, such as The Columbia Guide to Online Style, some of which have been applied in the legal context (see, in particular, Rodrigues’s Electronic Citations and Case Citators – Collaborative Outsourcing).

Not only does OSCOLA provide an elegant, coherent and consistent system of citation, but its great benefit is that is openly, fully and freely available online. There is as yet no standard Irish system of legal citation – what might, perhaps, be called a Green Book – though the style guide used by Round Hall publishers may provide a potential starting point. As a consequence, OSCOLA is what I recommend to anyone who is desperate enough to ask for my advice about citation style. It is an excellent venture, well worth supporting. Check it out; and if you have any comments about it, get them to the editors before the end of the month!

Spirit Moves is a discussion programme on RTÉ Radio which explores ethical issues that arise from current news events. It is broadcast on RTÉ Radio 1 on Sunday evenings at 6:00pm; it is re-broadcast on RTÉ Choice (one of RTÉ’s Digital Radio Stations) on Monday afternoons at 4:00pm; and episodes -including this – are available to stream here. This evening’s programme discussed the ethical and legal issues that arise in the context of reporting suicide. The host was Tom McGurk, and the participants included Colum Kenny, Joan Freeman, Paul Drury, Tom Clonan, and Lisa O’Carroll.

Suicide is a serious and tragic social issue, on which several indefatigable organisations do sterling work. In particular, reporting it has been the subject of a conference (pdf) by the Irish Association of Suicidology, and of a report (pdf) by the National Office of Suicide Prevention. The American Association of Suicidology has developed a set of sensitive guidelines on the reporting of suicide; and Headline (blogged here) is doing something similar in Ireland.

The Press Council has recently published a very interesting Discussion Document (pdf) on the issue. As I’ve previously argued on this blog, the key point is that much of the reason for sensationalist media coverage (that sells papers or delivers audience share) is because we – the general public – buy the papers and listen to or watch the programmes. We can’t just blame the media for sensationalist reporting. If we – as readers, listeners or viewers – weren’t interested in the prurient details, then the media wouldn’t report them. These issues may interest the public, but it doesn’t follow that it is in the public interest to report them. This is especially true where people are thrust unwillingly by tragedy into the limelight. If the Press Council can navigate a clear course on this issue, it will certainly make a very important contribution to the development of appropriate ethical reporting standards in Ireland.

Via University of Louisville Law Faculty Blog:

Bonus link: In a similar vein, see Lawyer’s Humor, Circa 1875 from the Legal History Blog.

Anois teacht an Earraigh

le Antaine Ó Raifteirí (1784-1835) (source) (audio here)

Anois teacht an Earraigh beidh an lá dul chun síneadh,
Is tar eis na féil Bríde ardóidh mé mo sheol.
Ó chuir mé i mo cheann é ní stopfaidh me choíche
Go seasfaidh mé thíos i lár Chondae Mhaigh Eo.

I gClár Clainne Mhuiris a bhéas mé an chéad oíche,
Is i mBalla taobh thíos de ‘thosós mé ag ól,
Go Coillte Mach rachad go ndéanfad cuairt mhíosa ann,
I bhfogas dhá mhíle do Bhéal an Áth’ Mhóir.

Fágaim le huacht é go n-éiríonn mo chroíse
Mar éiríos an ghaoth nó mar ’scaipeas an ceo
Nuair a smaoiním ar Cheara nó ar Ghaileang taobh thíos de
Ar Sceathach a’Mhíle nó ar phlánaí Mhaigh Eo.

Cill Aodáin an baile a bhfásann gach ní ann,
Tá sméara is sú craobh ann is meas ar gach sórt,
Is dá mbéinnse i mo sheasamh i gceartlár mo dhaoine
D’imeodh an aois díom is bheinn arís óg.