I’ve written about this report twice already. The first occasion was when a committee chaired by Ms Justice Susan Denham of the Supreme Court was established to consider the necessity for a new Irish Court of Appeal (this was in part a response to an article on the point which Judge Denham had written the previous year in the [2006] 1 Judicial Institute Studies Journal 1 (pdf)). The second occasion when the Government received the committee’s report. In the most recent installment of this slow-moving story, the report was published last week – only three months after it was submitted to government – and to generally favourable reviews in the media (see Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ). Read the rest of this entry »

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Some time ago, in a similarly titled post, I discussed the establishment of a committee chaired by Ms Justice Susan Denham of the Supreme Court which was to consider the necessity for a possible new Court of Appeal. I thought it a good idea then, and still do now. According to Carol Coulter in today’s Irish Times, the Government has just received the committee’s report:

Logjam in Supreme Court appeals not serving justice

ANALYSIS: Too few judges hearing appeals and a recent proliferation of lay litigants means judgment delays of years, writes Carol Coulter

… the need for a Court of Civil Appeal to hear most appeals from the High Court, leaving the Supreme Court to deal with constitutional cases and those involving fundamental points of law, … arises from the increasing volume of cases going to the Supreme Court, resulting in lengthy delays. There can be up to three years’ delay in a case appealed from the High Court getting a hearing in the Supreme Court. Read the rest of this entry »

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Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.

For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security.

Thomas Jefferson

In 1972, the Supreme Court of the United States decided Roe v Wade 410 US 113 (1973) (Findlaw | Justicia | Oyez | wikipedia), which held the Due Process Clause of the Fourteenth Amendment to the US Constitution protects the (penumbral) right to privacy, including a woman’s qualified right to terminate her pregnancy. It was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. The Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has subsequently given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

In 2008, the Supreme Court of the United States decided US v Heller 554 US __ (2008) (official pdf | Findlaw report) (Balkinization | Mike O’Shea on Concurring Opinions | NRA | Posner | ScotusWiki | Volokh | Wikipedia), which held that the Second Amendment to the US Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. As with Roe, it, too, was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. Again, the Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has already given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

But there is one obvious difference between the two cases: whereas Roe stands as the highpoint of liberal judicial activism and reflects a then quite dominant liberal political perspective, Heller stands as a similar highpoint of conservative judicial activism and reflects a now very marked conservative political perspective.

These similarities and differences raise some important questions. For example, Roe became a rallying-point for legal, social and political opposition (update: backlash) to judicial and political liberalism; will Heller become a similar rallying-point for legal, social and political opposition to judicial and political conservatism? Moreover, views on the correctness of Roe have become a litmus test for Republican nominees to the Court; will Heller similarly become a litmus test for Democratic nominees to the Court?

Finally, if (and when?) there is a majority on the Court to reverse Roe, will they do it? Or will they baulk at such a naked exercise of judicial-political power? Or are there other judicial/political considerations afoot? Or will they realise that to overrule Roe simply because they disagree with its political underpinning would be to eviscerate the doctrine of precedent? If they do overrule Roe, then every decision of the Court is up for grabs, even the case that overrules Roe, and yes, even Heller!

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Now that An Taoiseach (the Prime Minister) has put us out of our misery and finally called the long-awaited general election, all Bills currently pending will fall with the outgoing Dáil (Lower House). Of those of particular interest to this blog, this means that the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) and the Privacy Bill, 2006 (Department of Justice | Oireachtas (pdf)) now both fall too, and their fate will have to await the pleasure of the incoming government in the next Dáil.

The fate of the Defamation Bill, in particular, raises an interesting question for the press industry. The Bill provided for the recognition of a Press Council; the press industry has advanced with the establishment of an Office of the Press Ombudsman and the Press Council of Ireland in parallel with the passage of the Bill through the Houses of the Oireachtas (Parliament); and they will now have to decide whether to continue with this process now that the Bill has fallen. They could of course keep their powder dry until after the election, in the hope that the incoming government revives the Bill, and then press on with the formation of the Ombudsman and Council. But it would be a better indication of their bona fides in this matter if they carried on regardless, and established the Press Council before the next Dáil sits. Indeed, having done so, it would then give them the credibility to call for the Defamation Bill to be revived by the incoming government!

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This message is by way of catching up with two important developments this week, and thanking those fellow bloggers who brought them to my attention.

First up, political advertising. Read the rest of this entry »

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This is a call to arms; or at least, a call for legislation which would radically recast EU copyright law.

Intellectual property law and policy are all about innovation, both encouraging it and protecting its fruits. But these are potentially opposing, perhaps even incompatible, goals: if we reward one innovator with a monopoly over the fruits of the innovation, prohibiting others’ use of those fruits, then we risk preventing the next round of innovation. The challenge to law-makers is to strike the an appropriate balance between reward and innovation, by pitching the length of the monopoly at the right level, both in the breadth of its coverage and the length of its term, beyond which others might also use it.

The story of copyright provides a good example of this dilemma. Read the rest of this entry »

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Last night, MGM movies showed the 1984 movie Teachers, about a lawyer who sued her high school for graduating an illiterate pupil. It starred JoBeth Williams as the lawyer; Nick Nolte as the idealistic but frustrated and jaded ageing hippie teacher; and Judd Hirsch as the pragmatic head teacher just trying to get through with the pupils he’s got (for a more recent, also iconic, role, see here (Daithí)). A fine supporting cast included Ralph Macchio (’wax on, wax off‘) as the tough kid Nolte was trying to reach; Laura Dern as the kid Nolte helps to have an abortion after another teacher gets her pregnant; and Morgan Freeman (with an extraordinary hairstyle almost as much a member of the cast in its own right as Kevin Costner’s in Robin Hood. Prince of Thieves) as the school’s lawyer. There is a perceptive review here. Among the many Hollywood-sardonicisms in the script, the large, underfunded high school is named for John F Kennedy; and the illiterate graduate (whom we never meet) is called John Calvin(!). The case settled (JoBeth Williams’ boss, William Hill (in the key scene, he is world-weary, wearing a waistcoat, and sitting behind a desk – for all the world as he would appear in TV’s Law & Order) did the deal, much against her wishes). When the school board tried to fire Nolte for his role in Dern’s abortion, he uttered the line in the title; and a Dead Poet’s Society-style show of support from his pupils emboldened him to resist the school’s efforts to sack him.

Its themes have since become a little clichéd (not least its tagline: “They fall asleep in class. Throw ink on each other. Never come in Mondays. And they’re just the teachers”). Read the rest of this entry »

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Filibuster: (noun) an action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures.

The word originates in words of piracy, such as the French ‘flibustier’, the Spanish ‘filibustero’ and the Dutch ‘vrijbuiter’, all etymologically equivalent to ‘freebooter’. The 1939 movie ‘Mr. Smith Goes to Washington‘, directed by Frank Capra (nominated for two oscars for this movie), stars Jimmy Stewart, in his patented role of a young naif, this time oscar-nominated as a newly elected Junior Senator Jefferson Smith. The climax of the movie is a filibuster staged by Mr Smith in the Senate so that there would be enough time to expose the corruption of his mentor, Senator Joseph Harrison Paine, played by the also oscar-nominated Claude Rains.

I have already commented on the slow progress of the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) and the number of red herrings in the debate, and concluded that it had become increasinlgy unlikely that the Bill would be enacted before the election. Now, from yesterday’s Order of Business in the Seanad (html | pdf to follow | Irish Times report (sub req’d)), a cynical explanation: a filibuster! Read the rest of this entry »

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