I spent a lot of today at the Law Student Colloquium which I mentioned in my previous post; and it was a great deal of fun. The day culminated with the First Annual Brian Lenihan Memorial Address, delivered by former academic and retired judge Bryan McMahon (above left), on the topic of

    Judging.

He told us that a judge has a front row seat in the theatre of life; and, in his characteristically erudite and witty speech (citing all the great legal philosophers, including Groucho Marx, Maurice Chevalier, and Joe Duffy), he gave a wonderful review of the dramas, comedies and tragedies that have played out in his courtrooms. It was, he said, all very different from the jurisprudence of judging with which he was concerned as an academic, and yet he brought all his academic rigour to bear on the analysis of his twelve years on the bench, during which he said he sat in every county in Ireland.

The heart of his discourse was a discussion of judicial attributes. The essential traits include courtesy, patience, knowledge of the law, the ability to listen, the ability to make a decision, and the ability to give reasons for those decisions. Judges, he said, are paid not necessarily to be right but to make decisions. He went straight from practice to the bench without formal judicial training, but he said he received lots of good informal advice from his colleagues. The best, he said, was never to be rushed into a decision. It is the essence of judging to make decisions, and they have to be made with due care and proper speed, but, even so, they must not be rushed. I think that this is sound advice for life, not just for judging. Desirable judicial traits, he said, include wisdom, confidence, humour, and a good knowledge of the law (his emphasis; and he included jurisprudence in his enumeration).

He reminded us that, in every case, there are two sides, so judges’ decisions are never inevitable: there are at least two competing arguments, and often many possible alternative solutions. He welcomed the development of written decisions in High Court cases, but whilst he saw them as extremely helpful, he said that judges have to be careful not to let such submissions narrow their focus to just those two presented solutions.

He also reminded us that judges face different challenges in distinct kinds of case and in disparate areas of law. He gave three examples. First, the kind of discretion which a judge in a civil case has in determining a remedy such as a level of damages is very different from the kind of discretion which a judge in a criminal case has in determining a custodial sentence. Indeed, he said that he found criminal sentencing a profound responsibility and a matter of great difficulty. Second, he said that the judge’s role in jury trials is very different from non-jury trials. In such cases, the judge must be vigilant to maintain integrity of the jury – an onerous and increasingly difficult responsibility – and the judge must charge the jury properly. Third, he said that the skills of judging in family cases are different again. The procedure is often more relaxed, and there are a great many lay litigants. Here, the task of the judge is not one of attributing blame or focusing on the past. Instead, the judge must be mediator, educator persuader and broker as well as decision-maker. The relevant legislation provides a wide range of discretion, which allows the judge to look to both parties and children, and to look to future.

He concluded by calling into question the declaratory theory of judicial decision-making (which says that judges don’t make law, merely find and apply it). He said that judges make law all the time when making decisions on novel points and ambiguities. In open areas, judges are susceptible to three kinds influences. First, there environmental prejudices, reflecting a judge’s environment and background – these are inevitable, and for that reason ought not to be seen as problematic. Second, there are personal prejudices – these are unworthy, and judges seek to put them aside. Third, there are matters of personal intuition and emotion. Intuition, he said, is simply a sort-circuit application of experience. A judge, he said, neither cannot nor should not deny his or her true self, but rather must be self-aware.

He had said at the start of his presentation that subjectivity is not necessarily a bad perspective, and by his conclusion he had not only proved this, he had gone much further and demonstrated that it is a necessary perspective for good judicial decision-making. He argued that the story is everything and everything is a story; and he told us many good stories tonight. He argued that the power of narrative can be compelling; his narrative certainly was. He concluded that literature is unparallelled in providing insight into and experience of the full range of the human condition, and certainly provided a great insight into the full range of a judge’s decision-making.

It was a fitting tribute to Brian Lenihan, and it was an excellent conclusion to a wonderful day.

The fourth annual Law Student Colloquium will take place in the Graduates’ Memorial Building (map) and the Law School (map) Trinity College Dublin, on Saturday 4 February 2012.

The Colloquium is organised by law students for law students; it has been an enormous success over the past three years; and it has been made possible by the kind sponsorship of Allen & Overy and William Fry. For all enquiries please contact the organisers by email.

The centrepiece of the Colloquium will be the First Annual Brian Lenihan Memorial Address, which will take place at 6pm in the Graduates’ Memorial Building that evening. The Address has been organized by the Colloquium committee in order to mark Mr Lenihan’s substantial contribution to Irish public life, his longstanding connection to the Law School as a student, scholar, and lecturer, and his recent tragic death. It is envisaged that this will be the keynote event of the Colloquium from this year on.

This year’s Address is to be delivered by Judge Bryan McMahon, recently retired from the Irish High Court. The title of the address is ‘Judging‘ and in it Judge McMahon will discuss the craft of judging as well as the role of the judge in a modern democracy, and share with his audience insights accumulated during a varied career as an academic, practitioner, and judge. The event will be chaired by the former Attorney General of Ireland, Mr Paul Gallagher SC.

If you wish to attend, please contact the organisers by email.

In DW Griffith’s silent-era powerful – if flawed – classic movie, Intolerance (1916) (IMDB | wikipedia), the contemporary story of a poor young woman, separated by the intolerant prejudice of social reformers from her husband and baby, is interwoven with tales of intolerance from ancient Babylon, New Testament Judea, and Reformation France. These fables vividly warn of the dangers of intolerance. Two stories in today’s media demonstrate that intolerance of intolerance is simply intolerance, and is all the more dangerous for that.

UCC society withdraws Nick Griffin invite to ‘free speech’ debate

… In a statement this afternoon, the UCC Government and Politics Society said it had withdrawn the invitation as a result of submissions from University staff and Gardaí, who had outlined a “potential threat to the safety and welfare of our students and the general public”.

As with the earlier TCD debacle, this is as inevitable as it is dismaying.

French Senate passes bill outlawing genocide denial

… France’s upper house of parliament approved a bill on Monday that would make it a criminal offence to deny genocide, legislation that has caused tension between Paris and Ankara. The bill, which was approved by the lower house in December, has triggered outrage in Turkey as it would include the 1915 mass killing of Armenians in Ottoman Turkey.

As with earlier attempts to legislate truth, this is profoundly misguided.

We must not meet intolerance with intolerance. We must persuade others to avoid the intolerant; but we must not ban the intolerant; because, if we do, we become as bad as they are.

Bonus links, from the Irish Times (24 January 2012): UCC invitation to BNP leader pulled; Turkish fury likely over French bill on Armenian genocide; and Shatter opens Holocaust exhibition.

Two very different stories in the media over the last few days have coalesced in my mind over the weekend. The first story is the announcement by the President of seven appointments to the Council of State. The second is the debate in the US about the recusal of Supreme Court Justices from forthcoming challenges to health care legislation.

The Council of State is established by Article 31 of the Constitution, and its primary role is “to aid and counsel the President”. The first meeting was convened by President Douglas Hyde on 8 January 1940, and a large painting of the event (pictured above left) by Simon Coleman hangs in Áras an Uachtaráin, in a reception room now called the Council of State Room. At the end of last week, the recently-elected President Michael D Higgins announced the appointment of Michael Farrell, Deirdre Heenan, Catherine McGuinness, Ruairí McKiernan, Sally Mulready, Gearóid Ó Tuathaigh, and Gerard Quinn to the Council.

Among the specific functions ascribed to the Council by the Constitution, Article 26.1.1 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court to determine whether the Bill is constitutional or not. This power is by far the most common reason why Presidents have summoned the Council. For example, the first meeting was called so that the Council could advise the President on whether to refer the Offences against the State (Amendment) Bill, 1940 to the Supreme Court. The President decided to do so; the Court upheld the constitutionality of the Bill; and it was duly enacted as the Offences Against the State (Amendment) Act, 1940. Indeed, there were reports over the weekend that Government ministers have discussed the possibility of President Higgins referring legislation concerning an EU fiscal treaty to the Supreme Court.

The President’s appointments to the Council made me think again about the procedures under Article 26. Since Article 31.2 provides that the Chief Justice is an ex officio member of the Council of State, this means that the Chief Justice is a member of the body which advises the President as to whether a Bill should be referred to the Supreme Court. However, as Article 34.4.2 provides that the Chief Justice is the President of the Supreme Court (and thus head of the judiciary), it is natural that the Chief Justice would sit on any reference to the Supreme Court pursuant to Article 26. Indeed, there have been 15 such references to date; and, not only did the Chief Justice of the time sit in all 15 references, he gave the judgment of the Court in every case! The question which has arisen in my mind is whether it is appropriate for the Chief Justice to participate in both stages of this process. The Constitution plainly allows for this, and it has happened in every case so far, but my question is whether this practice should continue. Read the rest of this entry »

The combination of sections 24 and 35 of the Copyright and Related Rights Act, 2000 (also here; implementing EU Directives) means that copyright in a literary work expires from the first of January, 70 years after the death of the author (and it is the same for artistic works). For this reason, 1 January is Public Domain Day in the EU (and other life-plus-70-years jurisdictions), if not in the US (see: Communia | CSPD | Dag Blog | Everybody’s Libraries | ex Africa semper aliquid novi Africa | Excess Copyright | Fair Duty | Michael Geist | Mike Linksvayer | Public Domain Day | Public Domain Manifesto | Public Domain Review | Techdirt here and here | The Atlantic Wire | Wikipedia).

Since James Joyce died on 13 January 1941, it means that he is among the many famous authors whose published works fall into the public domain today (1709 Blog | BBC | Irish Times here and here | Linda Scales | RTÉ | TheJournal.ie | The Verge).

I visited the National Wax Museum today, and, among the many photographs I took were the image of Joyce above left (click on the image for a larger size), and this sentence (presumably a facsimile of Joyce’s handwriting, quoting from a letter he wrote to one of the early French translators of Ulysses):

The note says:

I’ve put in so many enigmas and puzzles, that it will keep the professors arguing for centuries over what I meant, and that’s the only way of ensuring one’s immortality.

James Joyce

Happy Public Domain Day and Happy New Year!

Updates: (1) I’ve added some links above; my favourite is the link to the 1709 Blog, which is the first of a series – during each of the twelve days of Christmas, that blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a “life plus 70 years” copyright term.

(2) There’s a great poster by Derecho a LEER, via Sarolta, and another by the Center for the Study of the Public Domain.

(3) Bonus link via Sinéad Gleeson on twitter (@sineadgleeson): 1929 recording of James Joyce reading from Finnegan’s Wake on YouTube.

Further update: two interesting Joyce commentaries: (i) Gordon Bowker, author of a biography of Joyce: An end to bad heir days: The posthumous power of the literary estate; and (ii) Mark O’Connell Has James Joyce Been Set Free?.

This is one of Stu’s Views wonderful law & lawyer cartoons.

Bonus 1: Have a look at the Christmas contract letters (the link is to the first of a funny series), between Bizzles LLP, representing Mr Timothy Taylor (referred to in the agreement as “Little Timmy”), of the one part, and Donner, Blitzen and Rudolf LLP, representing the Santa Claus Group, of the other part, concerning an agreement between for the delivery of Christmas presents.

Bonus 2: The Law & Humanities blog has collected a few other seasonal claims including Santa. Enjoy! And merry Christmas.

Now, now; less of your cynicism about members of the Oireachtas (Irish Parliament) never working (or only working six or fifteen hours a week). The Ceann Comhairle (the Speaker of the lower house of the Irish Parliament) today launched A Brief Guide to How Your Parliament Works to explain how Dáil Éireann (the lower house of Parliament), Seanad Éireann (the soon-to-be-abolished upper house) and the Oireachtas (Parliament) Committees work. The guide has been awarded the Plain English Mark by the National Adult Literacy Agency for its accessibility, and if anyone reads it, the guide will certainly make the workings of the Dáil and Seanad more accessible (update: here’s an Irish Times report of the launch). It’s all of a piece with the slow move towards modernity on the part of a sclerotic Oireachtas. The venerable Oireachtas Report (whose late night tv slot was a time when only drunks and insomniacs are awake) has been supplemented by online broadcast of Oireachtas proceedings and – this week – by a dedicated Oireachtas TV channel on an Irish cable tv service.

The Ceann Comhairle gave an interview about this to the John Murray Show on RTÉ Radio 1, and the hoary old chestnut of proper attire for members of the Dáil and Seanad inevitably came up. But it was not the most news-worthy example of the issue this week. The BBC reported yesterday that, in the UK, Mike Weatherley (Conservative MP for Hove and Portslade) failed in his attempt to get the permission of the Speaker of the House of Commons to fulfill his pledge to his constituents to wear his Iron Maiden T-shirt in the House of Commons (at least he didn’t try to wear a Sex Pistols T-shirt to court). In his maiden speech, he had said:

… I perhaps bring something new to the House in the form of my huge passion for rock and heavy metal. A few years ago I rashly pledged that I would be the first Member to wear an Iron Maiden T-shirt in the Chamber, so, Mr Deputy Speaker, I may be in touch soon to see how I can deliver that promise without breaking too many rules. …

Whatever about Maiden promises in maiden speeches, it’s a pity that we won’t get to see the following image on BBC Parliament any time soon:

It would certainly have brightened up the viewing for any drunks and insomniacs who had happened upon the broadcast!

From last Friday’s Irish Times (with added links):

Review aims to open up new digital creative space

The Copyright Review Committee is trying to take on board as many viewpoints as possible, writes Karlin Lillington.

… Several successive governments have highlighted digital businesses as an area for major growth in the economy. It’s a sector heavily wooed by IDA Ireland, and also promoted by Enterprise Ireland. But for years, this sector has been critical of Irish copyright law … However, from big multinationals such as Google on down to small indigenous start-ups and individual content creators such as musicians and artists, digital innovators think there’s plenty of room for improvement and argue that this would not only unleash greater national creativity, but would also help drive expansion in the economy. New industries would see Ireland as a good legal environment in which to do business, they say. …

The submissions reflect the interests and concerns of the whole panoply of players across many digital industries … There are submissions from the rights holders, who were concerned to protect copyright; from the intermediaries – the people like Google who are the gateways to the internet – and from the users, the SMEs and entrepreneurs and those trying to do interesting, creative things and who want to consider new business methods, new businesses, and new applications. … The aim of the committee is to look at all of those interests and try to encourage digital innovation. …