Tragic news:

Dr Gernot Biehler – An Appreciation

The Law School is very sad to announce the passing of our beloved friend and colleague, Dr Gernot Biehler, husband of Professor Hilary Delany, on Sunday 13th September. … We will always remember him with the greatest affection and respect.

A Memorial Service will be held at 5.15pm on Thursday 8 October 2009 in the College Chapel, Trinity College Dublin.

Update (26 September 2009): An obituary from the Irish Times: Versatile Trinity College law fellow who first came to Ireland as diplomat.

This time last year, I found myself explaining to concerned parents at the Higher Options Fair that law students’ small lecture load does not necessarily mean a small work load. Plus ça change. My colleagues have found themselves explaining much the same thing today at this year’s event. Briefly, law students should spend considerable amounts of time on independent reading, developing research skills (how to find what is relevant) and honing discernment and judgment (how to decide what to use of what is read) – these are all important practice skills which they learn in college.

In the US, the Socratic Method is widely used in Law Schools to teach these skills, and it is one of the driving dramatic forces in The Paper Chase, a book/movie/tv series on which I have already commented here and here. Its great character was John Houseman’s inconic Contracts Professor, Charles Kingsfield – the clip below is the first time we meet him in the tv series:

The case being discussed in the clip is Hawkins v McGee 84 N.H. 114, 146 A. 641 (Supreme Court of New Hampshire, 1929), and Kingsfield’s victim is James T Hart, the confused first year law student, played by Timothy Bottoms, who is the central character in the series. But even though the series is nominally about Hart, as Tim Zinnecker recently commented on The Faculty Lounge, Houseman’s Kingsfield steals the show in every scene in which he appears. Timothy Burke on Easily Distracted acknowledged that calling students up on the carpet in an imperious Professor Kingsfield fashion is a beautiful style of teaching when done well (though he preferred the approach of his high school English teacher, who taught with passion). Kingsfield’s literary creator, the author John Jay Osborn Jr, noted A Change in Professor Kingsfield–and His Creator: over the course of book/movie/tv series, he grew more complicated. Todd J. Zywicki on the Volokh Conspiracy posed the question Who Was the Basis for Professor Kingsfield?, and The Faculty Lounge adds a few more candidates to the list. Moreover, in a tribute to the character’s enduring appeal, Michael Vitiello has written a full law review piece about him: “Professor Kingsfield: The Most Misunderstood Character in Literature” 33 Hofstra Law Review 955 (2005) (pdf). Indeed, in what was no doubt an intentional reference, the 2002 movie The Socratic Method (imdb), about first year law students in a fictional California law school, features a Professor Houseman.

My continuing mission is to become like Kingsfield every day. I teach Contract. That’s a start.

Yesterday, one Irish politician called on another to make an apology to the Irish people. This would just be another forgettable eddy in a political coffee cup were it not for the fact that the demand was for a “fulsome” apology. Can this be right?

The Oxford English Dictionary (pictured left) in its entry (sub req’d) for “fulsome” lists six various obsolete usages (in which it simply means abundant or generous) and then gives the following modern definition of that word:

Of language, style, behaviour, etc.: Offensive to good taste; esp. offending from excess or want of measure or from being ‘over-done’. Now chiefly used in reference to gross or excessive flattery, over-demonstrative affection, or the like.

As a note to the definition of “fulsome” in the Compact Oxford English Dictionary Online (no sub req’d) makes clear:

Although the earliest sense of fulsome was ‘abundant’, this is now regarded by many as incorrect; the correct meaning today is said to be ‘excessively flattering’. This gives rise to ambiguity: the possibility that while for one speaker fulsome praise will be a genuine compliment, for others it will be interpreted as an insult.

Merriam-Webster Online (no sub req’d) says that the meaning of the word “fulsome” became a point of dispute when the largely positive meanings

thought to be obsolete in the 19th century, began to be revived in the 20th. The dispute was exacerbated by the fact that the large dictionaries of the first half of the century missed the beginnings of the revival. … [The positive sense] has not only been revived but has spread in its application and continues to do so. The chief danger for the user of fulsome is ambiguity. Unless the context is made very clear, the reader or hearer cannot be sure whether such an expression as “fulsome praise” is meant in [the positive or negative sense] …

This revival has certainly been missed by the OED. I suspect that this is because it is not so much a revival of an older meaning as a straightforward and recent error in supposing that “fulsome” is just a grander word for “full” and thus simply means copious. For that reason most style guides that address the issue deprecate the positive usage.

I can’t imagine that Irish politicians are demanding insincere apologies of each other; I also doubt that they are knowingly in the vanguard of an incipient revival of the older positive usages; I rather suspect that – with some knowledgeable exceptions – they have fallen into the common error of using “fulsome” as a fancy word for “full”. However, in this mistake, they are in good company. In Canada earlier this year, as reported by the Globe and Mail, a lawyer grilling former Prime Minister Brian Mulroney over bribery allegations

suggested that he had not been “fulsome” in his responses. Rather than questioning what the lawyer meant by this adjective, Mulroney just denied whatever the accusation was. “I am being fulsome, and truthful,” …

Indeed, in the New York Times last year, William Safire took President Obama to task for using “fulsome” in this way and for other similar solecisms. His advice is, as always, worth following:

Never use a word sure to sow confusion.

Volokh concurs. When it comes to “fulsome”, then, to avoid common error and unnecessary confusion, we should just say no. If those who have been guilty of its sloppy use (or even of its fulsome misuse) wish to apologise for this mistake, there is only one question: will the apology be fulsome?

The letters’ page of the Irish Times as often features well-crafted prose and well-argued cases as it does pithily funny remarks and occasionally insane arguments. In any event, a letter often serves either to remind me of an article I had not properly considered, or to bring to my attention a piece I had simply overlooked at the time. There is a letter in today’s Irish Times which serves the latter function, referring to a piece last week which I had missed:

‘Libel tourism’ and free speech

Madam, – As the only American author who stood up to Khalid bin Mahfouz’s campaign to silence American writers and publishers, I would like to note that the Saudi billionaire did not win his many libel lawsuits in the UK on merit, as your newspaper strongly suggests (World News, September 8th). He won because in addition to his unlimited financial resources, he used the plaintiff-friendly British libel laws to intimidate most into submission.

Mr Mahfouz frequently used archaic British libel laws that allow “libel tourism,” as a weapon to silence American publishers and writers in print and on the internet. His passing does not end the threat of libel tourism.

British libel laws dating back to 1849 continue to stifle Americans’ constitutional right to free expression.

Your article didn’t mention that in May 2008 New York State was the first to pass the Libel Terrorism Protection Act, protecting New Yorkers from libel tourists like Mr Mahfouz. Illinois and Florida passed similar laws and in California the governor is about to sign the anti-libel tourism law.

Moreover, as a direct result of Mr Mahfouz’s libel tourism, the bi-partisan Free Speech Protection Act 2009 is now pending in Congress. This bill would protect Americans’ free speech rights from foreign libel judgments that do not provide protection similar to our Constitution, and allow for damages to deter libel tourists.

Rachel Ehrenfeld, PhD (Author of Funding Evil: How Terrorism is Financed and How to Stop It)
Director, American Center for Democracy,
West 56th Street,
New York,
US.

Bonus links: First, Rossa McMahon has also noticed and commented on Ehrenfeld’s letter. Second, at Index on Censorship, Ehrenfeld has a much longer piece making similar points.

Techdirt points to an article in Washington Monthly which raises the possibility of College for $99 a Month. The theme of the piece is that the next generation of online education could be great for students, but catastrophic for universities. As if we didn’t have enough to worry about.

From Techdirt:

Next Up For Disruption? College

… The article in Washington Monthly discusses a company called StraighterLine, which offers online college classes, but it totally disrupts the traditional business model of university learning. While the classic model is that you pay per class (or per semester as a fully matriculated student), StraighterLine has a simple model: you pay $99/month and get an all-you-can-eat offering. You go at your own pace — so if you have lots of time (and can complete the work) you can take multiple classes in that month. In the opening story of the article, a woman completes four full classes in just two months — for a grand total of $200. Taking those same classes at either local universities or online would have cost thousands, and would have taken much longer to complete. And, it’s not as if the StraighterLine courses skimp either. According to the article (and it would be great to hear from anyone who’s tried it to see if this is true), they use the same materials found in many college courses.

Techdirt goes on to note that the article compares this to the rise of Craigslist, and highlights

… how similar the newspaper business and the University business are. It notes that freshman lectures are “higher education’s equivalent of the classified section” in that they’re insanely profitable and subsidize many other areas of the business.

Now, there are many differences between the US university experience and the position in Ireland – undergraduate teaching is basically a zero sum game here rather than a cash cow. Moreover, just as with newspapers, universities fulfill other functions and have other revenue streams. In the case of newspapers losing classified advertising to sites like Craigslist, there are still great quantities of commercial advertising (if slightly less in these recessionary times), newspapers still have the cover price, and they are experimenting with charges for premium content online (even if they are still learning how to cope with the web). In the case of universities, there will still be a need for real-world face-to-face interaction in lectures and tutorials, the StraighterLine model doesn’t seem suited to graduate, clinical or laboratory work, and universities have research-based revenue streams. Moreover, undergraduates come to college for the life experience as well as to earn their degrees. Nevertheless, if the StraighterLine model takes off in the US, then – sooner or later – some version of it will follow here. Small post-leaving schools and private colleges will probably feel the pinch first, but that does not mean that it won’t have an impact on universities too. It will be just one more thing for us to worry about, unless we beat them to the punch, and start offering some version of the idea first.

From the ever-wonderful Piled Higher and Deeper (PhD), a graduate student comic strip:

I’ve just discovered the wonderful new(ish) blog Human Rights in Ireland, a group blog about – well, the clue is in the name – human rights issues in Ireland and Irish scholarship about human rights more generally. With apologies for the nkotb title, I can say without fear of contradiction that there’s lots of great stuff there; one piece in particular caught my eye, by Fiona de Londras (pictured above left):

Terrorist Propaganda or Political Speech?

In Ireland we are quite accustomed to our freedom of expression being significantly limited where that freedom is abused. This results from the express limitations in both Bunreacht na hÉireann (the Irish Constitution) and Article 10 of the European Convention on Human Rights. International law also prohibits propaganda to war as our colleague Michael Kearney has explained and examined in detail in his book The Prohibition of Propaganda for War in International Law (2007, OUP). In the United States, however, the constitutional protection of free speech (First Amendment), while not absolute, is certainly broader than is the case in Ireland or indeed under the ECHR. This makes the appeal argument by counsel for Al Hamza Ahmad Suliman al Bahlul—the only person currently in Guantánamo Bay to have been convicted of an offence relating to the ‘War on Terrorism’—all the more interesting. …

If you want to know more about the Irish position on this issue, I’ve blogged about it briefly in a post on Terrorism and Speech as well as in my more general posts on Sedition. If you want to know more about the argument that counsel for al Bahlul is making, read all about it in the remainder of Fiona’s post. Welcome to the Blawg O’Sphere, Human Rights in Ireland – I am certain that you will rapidly establish yourself as the pre-eminent online forum for discussion of human rights issues in Ireland and abroad. Go n-éirí go brea leis an dea-obair!

Professor Sir Alec Jeffreys, the scientist behind DNA fingerprinting, in a BBC interview to mark the 25th anniversary of that discovery, has spoken of the importance of allowing academics freedom to research. He said that academics should be able to pursue “unfettered, fundamental, curiosity-driven” research of the kind which led to his discovery. It is an important defence not only of academic freedom but also of traditional research methodology in the face of increasingly dirigiste institutional, sectoral and national research strategies.

Equally important – though more newsworthy – is his call, in the same interview, for a change to the UK’s law governing DNA databases. In that interview, he said that “innocent people do not belong on that database”, and he renewed his calls for the UK government to change the law governing the UK’s DNA databases – particularly the practice of keeping the DNA profiles of thousands of people who have neither been charged nor convicted.

In S and Marper v UK 30562/04 [2008] ECHR 1581 (4 December 2008), the applicants complained that their fingerprints, cellular samples and DNA profiles had been retained by the police, pursuant to section 64 (1A) of the Police and Criminal Evidence Act 1984, notwithstanding that proceedings against them had ended with an acquittal or had been discontinued. The European Court of Human Rights upheld their complaints:

125. … the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

The UK government’s response, after consultation, was to say that, whilst the underlying samples would be destroyed, the DNA profiles derived from them would continue to be stored on the database. In an interview with the Guardian last April, Prof Jeffreys said he was left “almost speechless” by reports of this response. Moreover, in an extraordinary move, police have subsequently been instructed to ignore the ECHR decision until these new guidelines could come into force next year. Inevitably, there have been objections that this response will also be found wanting in the ECHR.

I am sure the Department of Justice is watching this issue very closely, given that they published a scheme for a Criminal Justice (Forensic Sampling and Evidence) Bill in 2007, which also provides for the storing of samples from suspects in a database. Marper has probably taken the wind out of the sails of the detail of that proposal, but whatever the UK government successfully gets away with in the ECHR will provide a map to the Department as it continues its work on that Bill.