Eoin – Page 31 – Cearta.ie

The process of judicial appointments and the eligibility of academics

Posted on 18 May, 20166 December, 2016 by Eoin

As has been widely reported, a new Judicial Appointments Commission for appointing judges forms a key element of the Programme for Government, to reduce political influence in the judicial appointments process. The new Commission will have an independent chair selected by the Public Appointments Service and approved by an Oireachtas committee, though the final decision on judicial appointments will remain with the Government. Reflecting the commitment in the Confidence and Supply Arrangement for a Fine Gael-Led Government entered into between Fine Gael and Fianna Fáil that the Government will “establish a Judicial Appointments Commission to identify the most suitable candidates for judicial office”, the Programme for a Partnership Government provides (Chapter 16, section 6, at page 152) (pdf):

We will introduce legislation to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission. The new structure will include a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and a lay majority including independent people with specialist qualifications.

We will reform the judicial appointments process to ensure it is transparent, fair and credible. We will reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted by the Judicial Appointments Commission for any vacancy.

…

In the inugural Arthur Browne lecture, Prof Gráinne de Búrca says that EU anti-discrimination law is not really in decline

Posted on 17 May, 201618 May, 2016 by Eoin

Arthur Browne KC MP (1756-1805) (pictured left; see wikipedia | DNB) was a Regius Professor of Law in Trinity College Dublin, and a leading Irish lawyer and politician, at the end of the eighteenth century:

Browne was one of the most distinguished academic lawyers to teach in Trinity College, Dublin, perhaps the ablest. His writings are still worth reading; and not merely for their historic interest. His life reveals a lawyer of wide culture and compassion, who tried in the turmoil and cruelty of eighteenth century Ireland to reconcile opposition to popular violence and an attachment to the established state and church with opposition to arbitrary state power. His views on legal education and on many aspects of the law were enlightened for the time. Browne deserves a place in the history of Irish law, and not merely as the last Irish Prime Serjeant.

[Paul O’Higgins “Arthur Browne (1756-1805):
An Irish Civilian” (1969) 20 NILQ 255, 270].

The Irish jurist Arthur Browne was one the most gifted legal scholars of eighteenth-century Ireland; he was also an educator, an advocate, and a parliamentarian. Born in America of Irish parentage, Browne studied at Trinity College, Dublin, eventually becoming professor of civil law and publishing works on civil, admiralty, and ecclesiastical law at the turn of the nineteenth century.

…

After a challenge to ObamaCare, will there be Restitution to the Executive in the US?

Posted on 12 May, 201613 May, 2016 by Eoin

In US House of Representatives v Burwell (pdf), US District Judge Rosemary M Collyer has today upheld the challenge of the House of Representatives to a portion of the Patient Protection and Affordable Care Act (ObamaCare), ruling that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low and moderate income consumers. There is no mention in the judgment about the recovery of the unauthorised reimbursements, but the case plainly raises that question, which I have been discussing in a series of posts (I, II, III, IV, V, & V(a)) on this blog. There is another post to come in the series, and an addendum – but the implications on Burwell are too big to postpone.

The judge set up the issue in this way:

This case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds.

…

Workplace surveillance, conditions of employment, and privacy

Posted on 12 May, 20168 June, 2016 by Eoin

The Hawthorne effect is alive and well, and living in the interstices between private law and privacy law. In particular, I recently saw the following clause in a contract (the names have been changed to protect the innocent, the guilty, bystanders, and anyone else involved ):

WORKPLACE SURVEILLANCE
The employer’s workplaces are subject to overt workplace surveillance. You agree that you consent to this surveillance which is primarily to ensure the safety and security of the employer’s workplaces and the appropriate use of the employer’s resources. The overt surveillance is in the form of computer, internet usage and camera surveillance and is of an ongoing and continuous nature, in accordance with the employer’s relevant policies as amended from time to time.

This surveillance is carried out by all means available to the employer, which may include accessing your email account; accessing your files; accessing your computer or other electronic devices and recording internet usage by you including remote access internet usage and accessing those records.

The Citizens Information website has a lot of information on the legitimate scope of surveillance in the workplace, and the Data Protection Commissioner has issued Guidance Notes on the Monitoring of Staff, which emphasises that

monitoring, including employees’ email or internet usage, surveillance by camera, video cameras or location data must comply with the transparency requirements of data protection law.

…

Information fiduciaries, trending topics, and digital gerrymandering – notes on gatekeepers, intermediaries and corporate social responsibility

Posted on 11 May, 20168 September, 2016 by Eoin

Gerrymander vote, elements via https://pixabay.com/en/ballot-election-vote-1294935/ and http://www.dailykos.com/story/2013/2/13/1185175/-Three-Different-Universes-of-Redistricting-Massachusetts-Plus-Revisiting-the-Original-Gerrymander In the kind of serendipitous conjunction characteristic of intersecting internet feeds, I came across three related stories almost simultaneously. First, from Silicon Republic:

Facebook denies political bias in hullabaloo over trending topics

Facebook has been forced to deny claims that it employed contractors to manipulate and suppress stories in trending topics of interest to Conservatives in the US.

If there is a problem here, and if there is a legal solution to this problem, then that’s where the second and third stories come in. Via Steve Hedley‘s Private Law Theory blog, I read about Jack Balkin‘s article “Information Fiduciaries and the First Amendment” 49 UC Davis Law Review 1183 (2016) (UCDLR pdf | SSRN preprint | Balkinization blog post):

… online service providers and cloud companies who collect, analyze, use, sell, and distribute personal information should be seen as information fiduciaries toward their customers and end-users. Because of their special power over others and their special relationships to others, information fiduciaries have special duties to act in ways that do not harm the interests of the people whose information they collect, analyze, use, sell, and distribute. These duties place them in a different position from other businesses and people who obtain and use digital information.

…

Is EU Anti-Discrimination Law in Decline? asks Prof Gráinne de Búrca

Posted on 9 May, 201612 May, 2016 by Eoin

Professor Gráinne de Búrca (pictured above left) will deliver the first annual lecture in memory of Arthur Browne (pictured above right) next Friday 13 May 2016, at midday, in the Davis Lecture Theatre, Room 2043 Arts Building (map here) on the topic

Is EU Anti-Discrimination Law in Decline?

Professor Gráinne de Búrca (pictured above left) is the Florence Ellinwood Allen Professor of Law in New York University School of Law, Faculty Director of the Hauser Global Law School, and Director of the Jean Monnet Center for International and Regional Economic Law & Justice. Prior to joining NYU in 2011, she held tenured posts as professor at Harvard Law School, Fordham Law School, and at the European University Institute in Florence. Before that, she was Fellow of Somerville College and lecturer in law at Oxford University from 1990-1998. She was deputy director of the Center for European and Comparative law at Oxford University, and co-director of the Academy of European Law at the EUI in Florence.

Arthur Browne (1756-1805) (pictured above right) was a leading Irish lawyer, academic, and politician, at the end of the eighteenth century. He was devoted to civil liberties, to the reform of Parliament, and to the relief of Roman Catholics from legal oppressions.…

Restitution to the Executive and the recovery of unauthorised State payments – V(a) – A footnote on overpaid gardaí

Posted on 8 May, 201611 May, 2016 by Eoin

From today’s Sunday Independent comes a story by Maeve Sheehan which has many echoes of an earlier story that Department of Agriculture overpayments of €70m in EU grants to farmers would not be recovered. The earlier story prompted my current series of posts (I, II, III, IV, & V) on the recovery of unauthorised State payments. Today’s story goes right to the heart of the issues I have been discussing in that series. It based on a report to the Garda Commissioner in relation to financial control released to the Sunday Independent under freedom of information legislation last week, which found that Gardaí received overpayments totalling more than €1m in pensions and salaries, and that some of these overpayments will have to be written off at the expense of the taxpayer:

Embarrassing gaffe as gardai were ‘overpaid by more than €1.1m’

… The Garda’s internal audit unit put overpayments of salaries and pensions at €1,139,014 at the end of 2014, €184,000 more than in 2013, according to a report obtained by the Sunday Independent. Less than half of the gardai who were overpaid had plans in place to repay it. The force’s internal audit unit concluded: “It is likely that write-off of some of this debt will be required but every effort is being made to recoup as much of this amount as possible.”

…

Restitution to the Executive and the recovery of unauthorised State payments – V – unauthorised State payments must be recovered?

Posted on 6 May, 201612 August, 2016 by Eoin

Last month, officials at the Illinois Department of Revenue said that there had been overpayments since 2014 totalling US$168 million to some 6,500 districts across Illinois. The Department says that it’s sensitive to the impact recovering the funds will have on the districts, and it will therefore allow them to repay the money slowly. But repay it they must, unless legislation forgives the debts. It is a stark example of the issues which I have been discussing on this blog in a series of posts on the principles underlying restitution claims made by the Executive. The series was prompted by media reports that the taxpayer has been hit with a €70m bill for overpaid farmers. In my first post in the series, I established the principle associated with Auckland Harbour Board v R [1924] AC 318; [1923] UKPC 92, [1923] NZPC 3 (18 December 1923) [Auckland] and Attorney General v Great Southern and Western Railway Company of Ireland [1925] AC 754 (HL) [GSWR]. This principle has two limbs: first, State payments must be authorised (this is the authorisation limb of the principle, which I discussed in my second and third posts); and second, unauthorised State payments can be recovered if they can be identified (this is the restitution limb of the principle, which I discussed in my fourth post).…