Month: October 2010

For the day that’s in it:

Finally, given Eileen Battersby’s piece in yesterday’s Irish Times about a house she was warned against buying, and eventually moved out of due to unexplained events, eerie happenings, and things that went bang in the night, see last year’s slightly more serious post: Have you bought a haunted house? Who you gonna call?

First, to my posts on grading and marking, I must add a wonderful post by not that kind of doctor applying the Elisabeth Kübler-Ross model of five stages of grief – denial, anger, bargaining, depression, acceptance – to the process of grading papers! Wonderful (h/t efdel).

Second, in another grading and marking story, this time by way of comparison with my posts on Andrew Croskery‘s case against QUB, consider the case of a student who sued the University of Pennsylvania for awarding him a degree from their engineering college rather than Wharton School of Business: his misrepresentation and unjust enrichment claims failed.

Third, in one of my posts on the Croskery litigation, I analysed a similar recent case in the Ontario Court of Appeal: Jaffer v York University 2010 ONCA 654 (7 October 2010). There’s an interesting post on the case on the Canadian blog, The Court, This Student Isn’t Just a Number:

(1) Universities: Now, Not-So-Independent Centres of Learning
Perhaps the most interesting and relevant aspect of this case concerns the Court’s finding that academic disputes grounded in contract or tort can be heard by the Superior Court of Justice in Ontario. Karakatsanis JA overturned the motion judge’s finding that academic disputes on the basis of a very recent decision not available to the motion judge, Gauthier v Saint-Germain 2010 ONCA 309.

Gauthier establishes that in cases where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even when a dispute is academic in nature and arises from the academic activities of the university. While the University argued Gauthier was wrongly decided, Karakatsanis JA clearly addressed and disposed of this line of reasoning, finding that past decisions upholding the dismissal of claims relating to academic matters were done under r. 21.01(1) as the pleadings did not disclose a reasonable cause of action based upon tort, contract or negligence, not on the basis the court lacked jurisdiction.

Karakatsanis JA emphasized though, that the court’s jurisdiction will only extend to academic disputes with causes of action in tort or contract. For internal academic decisions not grounded in a civil cause of action, judicial review remains the appropriate remedy. However, the court will (and does) have jurisdiction to hear claims with a basis in tort or contract – the scholastic nature of the dispute is irrelevant.

In my opinion, I agree that this is the correct outcome. Establishing this guideline will only allow those claims with more substance than a single student’s biased belief or personal grudge to be heard. We must remember that students agree to be subject to their institution’s discretion in resolving academic matters upon enrolling, and only substantiated academic issues should be brought before the Superior Court.

Finally, for those who have reached this far, a cartoon from PhD Comics about the realities of weekend marking (click on the image for a bigger version):

Some time ago, I mused that Irish universities seeking the freedom to set their own fees might decide to “de-nationalise” and “go private” by means of a Unilateral Declaration of Independence, but I concluded then that it would never happen. Some time later, the old adage “never say never” proved itself once again, as I noted that the rector of Imperial College London suggested that Imperial, Oxford, Cambridge, the LSE and UCL should go private and form an independent US-style Ivy League. Earlier this year, Ferdinand von Prondzynski also speculated about this issue on his blog. Last week, things moved from speculation closer to reality: the Sunday Telegraph reported that Cambridge University is beginning to consider going private for precisely that reason, and the the Guardian yesterday reported that the LSE is doing likewise, amid fears a rise in tuition fees will not be enough to allow them to do what they already do let alone to compete with elite US universities. Of course, there are less drastic solutions, but the abolition of teaching grants for the humanities in the UK following the Browne Report might be the spur to this course of action:

Andrew Oswald, an economist and professor of behavioural science at Warwick Business School, says … “I certainly expect to see a number of large private universities of the kind that can rival the best on the east coast of America in my lifetime,” …. While he suggests Oxbridge could be reluctant to jump first, he expects it to happen among institutions near the top of the league tables. …

Nick Barr, professor of public economics at the London School of Economics, sees little danger in greater private provision, so long as it is tightly regulated, with institutions forced not only to meet robust quality assurance standards, but to be fully transparent and accountable, in return for their students receiving public loans – something on which much private sector provision depends.

In this context, as James Vernon points out in a provocative blogpost lamenting the impending end of the public university in England, Buckingham University, once the only for-profit private in the entire UK, may well become the model. Indeed, it may well become the model for Irish universities too. A report in this weekend’s Sunday Business Post suggested that the long awaited Hunt Report on a new national strategy for third-level education will be published soon, and it will recommend that universities should be directed for the first time to spend their funds on set education and research targets:

The proposals would see third-level institutions being forced to sign up to agreed targets in the areas of research, access to education, teaching standards, the retention of students and the rate of course completion, according to well placed sources.

Third-level colleges will retain their existing autonomy to allocate resources to achieve these targets. However, under the plans being considered, if the universities fail to achieve these targets, a ‘‘beefed-up’’ HEA will be authorised to intervene and insist that colleges redirect spending if necessary to meet agreed objectives.

This kind of suggestion might just be the spur for some Irish universities to investigate going private too. But even if they do, it won’t all be plain sailing. Another story in the same edition of the Sunday Business Post reports that almost €7 million have been invested in the loss-making educational company Independent Colleges. It is a recent entry into the growing market for private Irish third level colleges, and it is backed by media group Independent News & Media (INM):

It emerged in court that the company’s revenue is off target by €350,000 this year, and that it will have to make a further cash call on shareholders of up to €1.7 million.

Food for thought here, as universities in the UK and Ireland face into difficult decisions and an uncertain future. Perhaps someone should look into cultivating ivy on college buildings?

From Hal’s Progressive Rock Blog, the poster for the San Francisco International Pop Festival-October 26, 1968 (FLAC):

From the consistently wonderful MacLeod Cartoons, a cartoon called ‘University Strategic Planning‘:

I was on the radio station 4FM this evening, talking about the defamation action currently being taken by politician Michael Lowry against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. The comments concerned the travails of Lowry and businessman Denis O’Brien with the Moriarty Tribunal (which is enquiring into payments to politicians). At the time, O’Brien threatened to sue Smyth (but not TV3 or the Irish Independent), and now Lowry done precisely that (Irish Independent | Irish Times | RTÉ).

On 4FM this evening, Tom McGurk was particularly concerned with the tactic of suing the journalist but not the news organization, and the question of whether the journalist in such a case would have an indemnity. That indemnity would be a matter for the contract between the journalist and employer, and if there is no contract or it does not provide for an indemnity, then it will be up to the employer to decide whether to indemnify or not.

Suing Smyth but not TV3 or the Irish Independent does not seem quite so extraordinary in this case, since Lowry does not want damages, but only a declaratory order pursuant to section 28(1) of the Defamation Act, 2009 (also here) that the comments are false and defamatory. The court can make the order if the comments are defamatory and the respondent has no defence, provided that the applicant requested an apology and the respondent failed or refused to accede to that request. Here, Lowry said he took the case after Smyth had failed to publish a correction and an apology for “highly offensive and defamatory statements”.

In this week’s proceedings, Lowry has sought summary judgment for that declaratory order pursuant to section 34(1), which the court can grant if it finds that the comments were indeed defamatory and that the defendant has no defence that is reasonably likely to succeed. Counsel for for Smyth said the application was unwarranted, that Smyth wanted to meet the application head on and wanted to file a detailed affidavit.

Presumably, therefore, Smyth intends to plead either the defence of fair and reasonable publication (pursuant to section 26) or possibly the defence of honest opinion (what used to be called fair comment) (pursuant to section 20). The defence of fair and reasonable publication is the Irish statutory equivalent of a defence developed by the courts in other jurisdictions to increase the ambit of permissible criticism about politicians and political matters; and there has also been a trend to apply the defence of honest opinion quite generously. Yesterday’s application was adjourned by consent until November 22, but these defences are sufficiently credible in my view that when the matter returns to court, Deery P is very likely to strike out Lowry’s application for summary judgment.

This is very interesting, as it seems to be the second concerning the operation of the Defamation Act (the first was heard before Judge Matthews earlier this week) and it raises some of the very important reforms implemented by the Act (the summary procedure; the declaratory order; the defence of fair and reasonable publication). It therefore bears close watching as it develops. But it does raise the question why Lowry didn’t bring his complaint to the Press Council. The late Tony Gregory seems to be the only politician who has availed of this avenue of redress (Press Council Annual Report 2008 (pdf) p25), and it would have afforded Lowry the same damages-free vindication of his reputation, and it wouldn’t have raised the same concerns about suing Smyth but not the tv station or newspapers involved.

It is a bad advert for Irish politics that RTÉ (Ireland’s national public broadcaster) has had to decline to broadcast a radio advertisement for the short film Defend The Pension from the Older & Bolder campaign (above, via Vimeo; see also here, via YouTube). Older & Bolder is an alliance of non-governmental organisations that champions the rights of all older people, and seeks to combat ageism. Defend The Pension is directed by award-winning director Ken Wardrop, who directed the wonderful His & Hers; and it shows a number of old age pensioners standing in the pouring rain explaining why the State pension is important to them and should not be cut.

Section 41(3) of the Broadcasting Act, 2009 (also here) provides

A broadcaster shall not broadcast an advertisement which is directed towards a political end …

According to today’s Irish Times, Peter Feeney, Head of Broadcast Compliance at RTÉ, said that this section forbids all broadcasters from carrying advertisements towards political ends, and that RTÉ has no discretion in this matter. He also said that RTÉ’s copy clearance committee decided the advertisement breached the Act because it directed listeners to a video and website that sought to influence the Government in the formation of December’s budget.

Defend The Pension is powerful, poignant, and arresting; it is exactly the kind of thing that section 41(3) is designed to prevent; and, as Peter Feeney says, RTÉ has no choice in this. The predecessor of this section withstood constitutional challenge in Colgan v IRTC [2000] 2 IR 490, [1999] 1 ILRM 22, [1998] IEHC 117 (20 July 1998), though whether it would survive a challenge in the European Court of Human Rights (ECHR) is questionable. More than that, however, this episode demonstrates just what a tawdry provision the political advertising ban actually is. It is what one would expect from a political establishment scared of criticism. It is not appropriate to a mature democracy. And it is shameful that a radio advertisement for Defend The Pension cannot be broadcast.

One of my favourite reads online is the journal First Monday, one of the first openly accessible, peer–reviewed journals on the Internet, solely devoted to the Internet. The name of the journal was chosen, First Monday, based on its frequency, as issues appear on the first Monday of every month. In this month’s issue (Volume 15, Number 10 – 4 October 2010), there is an excellent article on the new media in the humanities by Oya Y Rieger:

Framing digital humanities: The role of new media in humanities scholarship

The phrase “digital humanities” refers to a range of new media applications that converge at the intersection of technology and humanities scholarship. It is an evolving notion and conveys the role of information technologies in humanities scholarship. Based on a qualitative case study approach, this paper interprets the concept by eliciting the diverse perspectives — which nevertheless express several discernible themes — of a group of humanities scholars. It synthesizes the wide range of opinions and assumptions about information and communication technologies (ICTs) held by these humanists by using Bijker’s (1995) notion of a technological frame. The digital humanities domain is interpreted through three lenses: digital media as facilitator of scholarly communication; digital media as a platform for creative expression and artistic endeavors; and, digital media as context for critical studies of digital culture. The article concludes that, while technologies are being positioned as driving forces behind academic innovation, it is more important than ever to understand the cultural, social, and political implications of new media and how they are perceived and used by humanities scholars.