Month: September 2010

No sooner had I published yesterday’s post on student challenges to degree classification, and examiners’ academic freedom, than Afua Hirsh blogged that it’s not just law students who are learning how to sue. Against the background of the QUB case which I discussed in that post, she gave many other examples of cases in which students sued their universities because they had performed poorly in their degrees. (Indeed, yet another may be brewing here). In many of the cases Afua discusses, the students were successful in their claims. But probably the most important case she discusses concerned a Belgian DPhil student who claimed £3m from Oxford University for failing his thesis. George Van Mellaert complained about the examiners and about the university’s procedures. Unlike many of the other cases to which Afua referred, this case did not have a happy outcome for the student. As she said:

The court was less impressed with this claim, stating that “the claimant’s thesis is a matter of academic judgment with which it would be inappropriate for the court to interfere”.

Almost as soon as I had finished reading her article, I received an email from Martin George, with the full text of the decision in George van Mellaert v Oxford University [2006] EWHC 1565 (QB) (29 June 2006). I’m very grateful to him for having done so, and I in turn make it available here (pdf) (more…)

Some time ago, I blogged about the question of whether a low mark is a breach of contract. A little while ago, in a gallimaufry (omnibus) post, I briefly returned to this issue. The context was a US case, Keefe v New York Law School (17 November 2009) [update: 25 Misc 3d 1228(A) (2009) aff’d 71 AD3d 569 (2010)], but now it seems that the issue has arisen rather closer to home. Yesterday’s Irish Times tells the story:

Graduate takes university to court over degree results

A Queen’s University [Belfast] graduate yesterday launched a High Court challenge to his degree classification. In one of the first cases of its kind, Andrew Croskery has brought judicial review proceedings over his lower second-class honours classification.

Mr Croskery, from Co Down, claims if he had received better supervision he would have instead obtained an upper second-class in his electrical engineering degree.

Read more here.

There is similar coverage on the BBC and UTV; in the Belfast Telegraph, Cherwell, the Guardian (also here, on the Human Rights in Ireland blog), and the Mirror; and commentary on the Cantakerous, Gullibility, and Learning Architecture blogs. Update: Slugger O’Toole’s post has the QUB regulations at issue.

The New York and Belfast cases raise two important issues. First, at private law, when can there be a contract between a student and a university, and as a matter of policy will the courts get involved in purely academic matters to determine whether the contract has been breached? Gullibility argues strongly that the metaphor of students as customers is misleading, and that Andrew Croskery’s case should be dismissed.

Second, universities in the UK – and, for that matter, Ireland – have more of a public flavour than US colleges normally have, the question arises as to whether they are subject to judicial review, and if so, whether the courts will as a matter of policy accord significant deference to purely academic matters.

Whether at public law or at private law, a judicial policy of declining to get involved in purely academic decisions respects the academic freedom of the university and the examiners to make academic decisions. Provided that the appropriate procedures have been followed, the courts are very slow to go behind substantive academic decisions. The classic US cases are Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) and University of Michigan v Ewing 474 US 214 (1985); (and see eg Douglas Rush “Through the Looking Glass: Judicial Deference to Academic Decision Makers …” bepress esp Part III). An extremely strong version of this judicial deference can be discerned in the Irish High Court in Quinn v Honourable Society of King’s Inns [2004] IEHC 220 (15 June 2004) in which Smyth J declined to give the applicant leave to challenge an exam grade. The reports do not make clear whether counsel for QUB referred to this case, though he did argue that the judicial review application should be dismissed as the court was not the proper forum for the challenge. Mr Justice Treacy adjourned the application and will give his decision on the application for leave to commence judicial review proceedings next month.

I await judgment with great interest, and some trepidation. Doubtless I will blog about it when it is handed down. Now, in the meantime, perhaps I had better reconsider my marking techniques!

Derek H Kiernan-Johnson has just put his paper “Telling Through Type: Typography and Narrative in Legal Briefs” on SSRN (hat tip Law & Humanities Blog). He notes that Chief Judge Frank Easterbrook has (pdf) deprecated

bad typography, home-brewed by lawyers just because word-processing software allows you to bypass professional printers. Unfortunately, … [lawyers] have not gone to printers’ school. Desktop publishing does not imply a license to use ugly or inappropriate type and formatting — and I assure you that Times New Roman is utterly inappropriate for long documents despite the fact that it is the default in some word-processing programs. It is designed for narrow columns in newspapers, not for briefs.

In my post Typography for Lawyers, I briefly referred to the website of the same name maintained by Matthew Butterick (interviewed here; reviewed here) as a remedy for these ills. Indeed, Dan Michaluk on Slaw expressed his preference for Helvetica the movie as well as the modern, minimalistic and neutral font.

In Kiernan-Johnson’s view, however, typography has the potential to go very much further: the

shapes, the spacing, of letters and of words can reinforce, compliment, and independently create narrative meaning. Or, intentionally or unintentionally, it can cut against it. It can do its work honestly and ethically, or inappropriately and subversively.

I wonder whether the font on this website reinforces or undercuts my posts. Answers in the comments please (but not in Times New Roman).

In Sanoma Uitgevers BV v The Netherlands Application no 38224/03 (14 September 2010) (Inforrm’s Blog | Index on Censorship Free Speech Blog | JuraBlogs), the Grand Chamber of the European Court of Human Rights (ECHR) has held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. This is an important standard, and the actions of the Dutch authorities failed to meet it. An order to disclose journalistic material was made by a public prosecutor, whom the Court considered to be a party rather than impartial, so that there was no independent assessment as to whether the interest of a criminal investigation overrode the public interest in the protection of journalistic sources. As a consequence, the Court unanimously held that there was a violation of Article 10 of the European Convention on Human Rights.

The case concerned illegal car races being investigated by the Dutch magazine Autoweek, published by Sanoma Uitgevers BV. The journalists took photographs and made notes, but edited the published photographs to guarantee the anonymity of the participants in the race. The participants in the illegal race were suspects in other serious crimes, and the public prosecutor took the view that the need to identify them justified a summons ordering the production of the CD-ROM on which the original photographs were stored. The Third Section of the ECHR held that this did not infringe Art 10 (a decision which I criticised at the time). On appeal, the Grand Chamber has now made amende honorable.
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Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s another hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while, including: unjust enrichment, research integrity, breach of contract, slavery, good samaritans, and privacy.
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According to a press release on the Press Council website:

Press Council announces appointment of two new independent Council members

The Chairman of the Press Council, Dáithí O’Ceallaigh … announced the appointment of two new members of the Press Council of Ireland, who will serve for a three-year term. The new members are Professor Áine Hyland, Emeritus Professor of Education at University College, Cork, and Mr Éamonn Mac Aodha, Chief Executive of the Irish Human Rights Commission.

They replace two retiring members of the Council, former District Justice Mary Kotsonouris, and Mr Peter O’Mahony, former CEO of the Irish Refugee Council. The appointments were made, on the basis of applications from members of the public, by an independent Appointments Committee, which was chaired by the outgoing Chairman, Professor Thomas Mitchell.

Announcing the new appointments, Mr.O’Ceallaigh said “I am delighted to welcome Professor Hyland and Mr Mac Aodha to the Press Council. They bring a wealth of experience in the public service to the Council.

Professor Áine Hyland, pictured left, is a world-renowned educationalist. She was Professor of Education and Vice-President of UCC, is a member of the European Universities Association Institutional Evaluation Team, and is Chair of the International Advisory Board of the (National Academy for the Integration of Research and Teaching and Learning (NAIRTL). Mr Éamonn Mac Aodha, Chief Executive of the IHRC, has over twenty years public service in various roles; he was Director of the Human Rights Unit of the Department of Foreign Affairs from 2004 – 2007. They have a tough job ahead of them, and I wish them all the best of luck.

As regular readers of this blog will know, the right to freedom of expression – broadly interpreted – is one of my main areas of research and teaching. Many of my favourite internet resources relating to free speech can be seen in my blogroll and the list of badges in the sidebars on the right. Via Kate Sutherland on Twitter, I see that Kurt Hopkins has a great post on ReadWriteWeb about his Top 10 Online Free Speech Resources. In particular, he listed institutional resources which are accessible to anyone, provide original news or analysis, and are frequently updated. It’s a great idea; indeed, it’s such a good idea,

I’m going to copy it, and – without overlapping Kurt’s choices – list another top 10 online free speech resources below the jump (in broadly alphabetical order): (more…)

This is how Fennelly J began his judgment for the Supreme Court in Central Applications Office v Minister for Community Rural and Galeltacht Affairs [2010] IESC 32 (13 May 2010). The Court granted a declaration that respondent Minister did not have the power under the Official Languages Act, 2003 (also here) to designate the applicant as a public body subject to obligations imposed by the Act concerning the conduct of its affairs in both official languages. The CAO today publishes its second round of offers of third level places for the forthcoming academic year, and in the inauspicious technical landscape of a Supreme Court appeal, Fennelly J provided an excellent primer on the operations of the Central Applications Office (the CAO; logo, above left):

is a company limited by guarantee and is a non-profit body. It was formed in 1976 and is based in Galway. … The State has no responsibility for its operation. The members of the CAO are the third-level institutions which it serves. Prior to the establishment of the CAO in 1976, there was no centralised system for processing applications from students seeking admission to third level. … The universities … decided to form a single body to process applications. The CAO now has 44 participant Higher Education Institutions …

The process by which the CAO matches applications (from students) and offers (from institutions) is as follows. Each student makes a single application to the CAO early in the year. The student specifies, in order of preference, the preferred colleges and courses of study. Each institution decides on the number of places it will offer in each category and informs the CAO. The CAO relates the student’s application with [that student’s] Leaving Certificate results. It then makes an offer to the student on a form described as “offer notice” which specifies the course being offered and the institution offering it. It invites the student to return a part of the form specifying acceptance. …

This is a far more elegant explanation than the one I essayed in an earlier post, in which I went on to explain that grades of the last-admitted candidate to a course can be regarded as the cut-off for qualification for entry to that course, and that these grades can be expressed as a function of points in a range from 0 to 600. In that earlier post, I set out the points levels for entry into various law courses on the basis of the CAO’s first round of offers.

Each year, not all of the CAO’s offers are accepted, with the result that some courses have vacancies. The third level institutions notify the CAO of the vacancies, and it issues a further round of offers. Where the points of the last-admitted candidate on this round are lower than those of the last-admitted candidate in the first round, the CAO also publishes the revised points cut-off. This year, the second round of offers of places was made today, and the points requirements for some law courses were revised accordingly. (Of course, some of these offers will not be accepted, and the third level institutions and the CAO will continue to make further offers as necessary to fill their courses).

In the table below (after the jump), I set out the final points requirements for law degrees in the various third level institutions. The first number, in bold font, is the final points requirement. Where the points were revised in round 2, the points for round 1 are then set out in regular font, prefaced by “R1:”. Finally, for the sake of completeness, where the course was offered last year, the final points for 2009 are set out in italics in parentheses. (more…)