Category: Law

Bentham and judicial retirement

Jeremy Bentham auto-icon, via UCLJeremy Bentham (1748-1832) (left) was a utilitarian philosopher, whose radical ideas on education inspired those who founded University College London. Nowadays, the Bentham Association (formerly the Bentham Club) is the Alumni Association for UCL’s lawyers, and it annually hosts a Presidential Address from an invited senior lawyer. This year’s address was given by Lord Pannick QC on the topic:

“Better that a horse should have a voice in that House [of Lords], than that a judge should” (Jeremy Bentham).

Replacing the Law Lords by a Supreme Court

It broadly concerned the implications of the removal of the final court of appeal from parliament, and can be heard online here. It covers a wide range of very interesting material, and is very well worth listening to. There’s no text yet online, but one aspect of it appears in Pannick’s column in today’s Times, taking the field on an issue I’ve looked at already on this blog (here and here); some extracts:

Seventy is far too early for a supreme court judge to retire . . .

… The argument for a retirement age of 75 for all supreme court justices is very simple. Those appointed are the cream of the judiciary. They inevitably take time to rise to the top, normally after serving for several years in the High Court and then in the Court of Appeal. It seems an awful shame to throw out judicial resources of such quality after a short stay in the supreme court when they are still fresh in mind and body and well short of their sell-by date.

… One can sympathise with the comments of Lord Bridge of Harwich in his final case in the Appellate Committee in 1995 when he expressed his annoyance at “the statutory presumption of judicial incompetence at the age of 75”. Lord Bridge, still at the peak of his considerable intellectual powers, went off to study for a mathematics degree.

… The appropriate balance between innovation and experience (or, if you prefer, between immaturity and senility) is, I think, a retirement age of 70 for judges of the High Court and the Court of Appeal. But for the supreme court, given the length of time that it will take for judges to arrive at such legal heights, a retirement age of 75 is more appropriate. Lords Reid, Wilberforce and Bingham of Cornhill, whose intellectual force, constitutional perspective, and good sense adorned the Appellate Committee of the House of Lords over the past 40 years, did much of their best work after 70. It would be a great detriment to the legal system if their successors were prematurely retired to a life as arbitrators.

On this one, I’m with Pannick, but I’m not sure Bentham would have approved: he didn’t trust judges much.

Update: joining Pannick’s column in the Times Online is the following related news story:

Judges fail in Tribunal bid to extend working lives beyond 70

Two judges fighting to work beyond the age of 70 have lost their case, the Tribunals Service has said. … The decision coincides with a move by legal peers to enable Britain’s top judges – those appointed to the new Supreme Court in the autumn – to stay on until the age of 75. …

I’ve blogged about the judges’ age discrimination challenge already; what I find most interesting is the throwaway line in the article that legal peers are lining up to support a retirement age of 75.

Cowengate: Pictures at an exhibition

Ravel‘s orchestration of Mussorgksy‘s Pictures at an Exhibition, performed by the Philharmonia Orchestra conducted by Esa-Pekka Salonen at the BBC Proms in August 2006

This post is an addendum to Cowengate and Freedom of Expression (above). In the original version of that post, I had a paragraph of links to other coverage. Like Topsy, that paragraph growed and growed, so I’ve taken the list of links out of that post and put them here.

Mandatory retirement, again

Case Dismissed. I've just reached my retirement age, via ToonpoolsIn my last post, I mentioned that the question of the compatibility of mandatory retirement ages with EU law was pending before the European Court of Justice (ECJ). The Court has now handed down its decision, upholding the principle of mandatory retirement ages, but requiring them to be justified on a high standard of proof.

The case, C-388/07 R (on the application of The Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform, was a reference from the High Court (Queen’s Bench Division, Administrative Court), for a preliminary ruling concerning the interpretation of Council Directive 2000/78/EC (pdf) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p16), which had been transposed in the UK by the Employment Equality (Age) Regulations 2006 (SI No 1031 of 2006). The Directive and the Regulations provided for a general principle of non-discrimination on the grounds of age. However, they allowed for exceptions that are objectively and reasonably justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary (see, eg, Article 6(1) of the Directive). On this basis, Regulation 30(2) allowed for a derogation from that general principle in the context of compulsory retirement at 65. Age Concern (the UK’s equivalent of Age Action) challenged that derogation on the grounds that the derogation did not meet the requirements of Article 6(1), but the ECJ rejected that challenge: (more…)

Is compulsory judicial retirement constitutional? or judicious?

Old Lawyers, via carbolic smoke ball site.The issue of compulsory retirement is not an uncommon one, but it arises today in an uncommon context. From today’s Times Online,

Judges take on Ministry of Justice over age discrimination

Two judges this week have launched a discrimination claim against the Ministry of Justice over being forced to retire at 70. … The claim is only the latest of several challenges by judges or lawyers over compulsory retirement. …

An earlier Times Online article reported that senior UK judges are pressing for a change in the law to allow the most senior members of their profession to remain in their posts beyond the age of 70.

This all recalls for me the words of Lord Bridge of Harwich in Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344, [1995] UKHL 8 (29 June 1995):

My Lords, since the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75, this is the last time I shall speak judicially in your Lordships’ House. I am happy that the occasion is one when I can agree with your Lordships still in the prime of judicial life who demonstrate so convincingly that common sense and the common law here go hand in hand.


The original Brandeis brief

Image of Louis D Brandeis, via OyezLouis D Brandeis (left), as lawyer, and as judge of the US Supreme Court, championed such unpopular causes as freedom of speech, privacy and worker protection. Arising from his belief that law is a device to shape social, economic, and political affairs, one of his enduring legacies is what has become known as the Brandeis Brief: a legal argument which relies not only on legal argument but also on analysis of empirical data. It was first deployed by Brandeis in Muller v Oregon 208 US 412 (1908), where he marshalled statistics from medical and sociological journals which demonstrated overwork was inimical to the workers’ health to support his argument that legislation limiting hours for female laundry workers was constitutional. The Law School of the University of Louisville is named for Brandeis, and I learn from Dan Ernst on Legal History Blog that Louisville have now made the original Brandeis Brief available online.

Signs of the Times?

'Boys from the Black Stuff' DVD cover, via Amazon.A sign of the times, from the front page of today’s Irish Times:

Law Society starts planning for unemployment among solicitors

CAROL COULTER, Legal Affairs Editor

THE LAW Society is seeking a “career development adviser” to help solicitors and trainee solicitors find careers outside law.

In an advertisement published in The Irish Times today, the society says this person will be a “key resource for solicitors who are facing unemployment, changed working arrangements or transition to another jurisdiction or career choice”. …

The full advertisement is here, from the Law Society website.

As Law firms’ profits contract, there are increasingly frequent stories of big US and UK law firms cutting partners and associates; and in Canada, the times, they are ‘a changing in the same way. From Slaw:

Great advice for lawyers who are (or might be) looking for a job

by Dan Pinnington on February 5th, 2009

Lawyers that have been laid off or are facing a potential layoff some time this year need to plan for a new future. If you or someone you know is facing a job search, Resolve to Manage Your Job Search by Kathleen Brady is a great article that contains a step by step guide to seeking new employment. …

Update: Solicitors A&L Goodbody seeking 45 voluntary redundancies

Game about law

'Honest Lawyer' image via the Carbolic Smoke Ball side.Inspired by the posts below, my game about law – for lawyers and non-lawyers alike – is the following question: can the readers of this blog provide non-US examples of misunderstood legal statements?

To begin, I offer the common misunderstanding about the basic words “legal” or “lawful” and “illegal” or “unlawful”. Lawyers know that there are many ways something can be “illegal” or “unlawful”, from constituting a tort to being liable to be quashed in judicial review proceedings to contravening the criminal law. On the other hand, it is common for lay people to go assume that if something is unlawful it must necessarily be contrary to the criminal law.

Here are the inspirations:

Misunderstood legal quotations

OK, Dear Readers: Let’s play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement. …

Picked up on Volokh: Famous Misunderstood Legal Quotations and Statements

So, any other examples?

Legal Citation

University of Oxford Crest, via the Law Faculty website.The Oxford Standard for Citation Of Legal Authorities (OSCOLA) is fast establishing itself as the UK’s standard system of legal citation. It is at present undergoing revision, and the Editors welcome comments and suggestions by email before the end of the month.

It is important to disclose sources (not least to avoid charges of plagiarism), in as complete a fashion as will allow a reader to find the source easily. Systematic citation methods allow for accurate, comprehensive and consistent citation of references such as cases, statutes, books, articles, and so on; and, in the legal context, they will also provide valuable information about a case, such as when it was decided, the level of decision, and so on. There are many possible citation systems, of which Harvard maintains a very useful list of paper-based resources.

Cover of the 18th edition of the Bluebook, via its website.However, one citation system stands out, and this is one situation where you really can judge a book by its cover: the Standard System of American Legal Citation is universally called The Bluebook, because of the colour (or, I suppose, the color) of its cover (pictured right; see its wikipedia page). It was first published in 1926 (pdf); it is now in its eighteenth edition; and Peter Martin’s online Introduction to Basic Legal Citation (Cornell Legal Information Institute) is based on it. I’m not a fan: it is clumsy and overly pedantic, premised as it is on the formalist Langellian conceit that there can be a rule for every possible citation occasion. Worse than that, quite frankly, it simply looks ugly on the page. Hence, though it is the dominant US standard, I’m glad that even there it is not entirely without criticism or competition. In particular, there is the long-standing University of Chicago Manual of Legal Citation, which – maintaining the colo(u)r theme – is called the Maroon Book and on which theUniversity of Chicago Law Review has based its house-style; and the Association of Legal Writing Directors have produced a very accessible Citation Manual.

Outside the US, there are few examples of adoption of these standards. Instead, various jurisdictions have developed their own styles. For example, Australia has the Australian Guide to Legal Citation published by the Melbourne University Law Review Association. And the bilingual English-French Canadian Guide to Uniform Legal Citation (6th ed, Carswell, Toronto, 2006) has been produced by the McGill Law Journal (pdf summary here; html summary here).

However, most of these guides continue to be available in print, and for a price (though The Bluebook is also available online by subscription). On Slaw, Gary Rodrigues has argued that there should be free and open online access to the McGill Guide (an argument which could with profit be applied to the others as well):

A Modest Proposal – The McGill Guide

… Like the Bluebook, the McGill Guide has the potential to provide the “systematic method by which members of the legal profession communicate” to one another in Canada. What is needed to achieve this result? One key element is easy access which could be provided if the McGill Guide was made available to judges, lawyers and law students on all of the online services in the country including CANLII, SOQUIJ, and every commercial legal publisher. … The widespread use of a single style guide will help to ensure that legal citations and references are complete and useful. By making the McGill Guide available virtually everywhere, the likelihood is greater that it will be used by an increasing number of members of the legal profession, especially if its use is reinforced in training programs for judges and lawyers. …

There are some general online citation standards, such as The Columbia Guide to Online Style, some of which have been applied in the legal context (see, in particular, Rodrigues’s Electronic Citations and Case Citators – Collaborative Outsourcing).

Not only does OSCOLA provide an elegant, coherent and consistent system of citation, but its great benefit is that is openly, fully and freely available online. There is as yet no standard Irish system of legal citation – what might, perhaps, be called a Green Book – though the style guide used by Round Hall publishers may provide a potential starting point. As a consequence, OSCOLA is what I recommend to anyone who is desperate enough to ask for my advice about citation style. It is an excellent venture, well worth supporting. Check it out; and if you have any comments about it, get them to the editors before the end of the month!