Category: Uncategorized

Hecklers must not have a veto

I’m very disappointed with the Literary and Debating Society of NUI Galway. Having wrapped themselves in the mantle of freedom of expression over their invitation to David Irving, they let the mantle slip last night. Having invited former Taoiseach (Prime Minister) Bertie Ahern to a public interview, the event had to be abandoned because of protests by students opposing the reintroduction of college fees (see Belfast Telegraph | GalwayNews.ie | Indymedia | Irish Times | Ninth Level Ireland | RTÉ here and here | YouTube (above left)). The Auditor of the Lit & Deb, Dan Colley, is reported to have said that he was “disappointed” at the turn of events, and concluded

This was a failure of freedom of speech.

No, Dan, this was a failure on the part of the Lit & Deb to protect the process of freedom of speech. Freedom of speech is not self-executing. Those who claim to support it have a duty to do so actively. It’s not enough to say free speech is important; it is necessary to be active in its defence and support. If a society such as the Lit & Deb invites controversial speakers, making a grab for the headlines, then that society must ensure that the controversial speakers actually have the opportunity to speak. Otherwise, the hecklers in a hostile audience will have a veto on the speakers. And the heckler’s veto is antithetical to freedom of speech. Hence, the US Supreme Court has rejected it as inconsistent with the freedom of expression guarantees in the First Amendment (see Feiner v New York 340 US 315 (1951); Hill v Colorado 530 US 703 (2000)).

The Lit & Deb should therefore have protected the process of freedom of speech last night by ensuring that Bertie Ahern’s interview went ahead. And they should take active steps to ensure that, having invited David Irving, he actually gets to speak. Anything else would be a failure of freedom of speech, and it would lie at the feet not of the hecklers but of the Lit & Deb.

Update (4 February 2009): from today’s Irish Times: College to investigate Ahern protest; Students to hold street protest over return of fees and cuts to assistance; Third-level capital programmes targeted in €56m cutback plan.

Specific Restitution

Roger Williams University School of Law logo, via their websiteRecently posted on SSRN, a very important paper by Colleen P. Murphy (of Roger Williams University School of Law) on “What is Specific About ‘Specific Restitution’?” (forthcoming Hastings Law Journal, Vol. 60, 2009). Here’s the abstract:

An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant’s unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant’s unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and “specific restitution.” This terminology obscures important concepts, such as that a plaintiff’s asset-based remedy might be for a fund of money or that recovery of an asset might not constitute “specific” relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing “specific” about specific restitution. This article situates the term specific restitution within the larger context of how the term “specific” is used in the law, and it examines how scholars and courts have used “specific restitution.” Finally, the article turns to the American Law Institute’s ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment. The article recommends that the Restatement dispense with the term “specific restitution” and rely on the more accurate term “asset-based restitution.”

Non-religious advertising

The British Humanist Association (BHA) ran an entertaining advertising campaign on London buses last year, and it has just announced that it will run the campaign nationwide. The campaign is built around the slogan:

BHA advert, via their site.


However, religious groups – including Christian Voicecomplained to the Advertising Standards Authority, arguing that the bus campaign broke the advertising code on the grounds of substantiation and truthfulness. The Guardian (hat tip: Media Law Prof Blog) picks up the story:

ASA clears Atheist Bus Campaign ads

… The advertising watchdog has ruled that a controversial atheist ad campaign, which sparked the ire of Christian groups for proclaiming “There is probably no God”, did not break its code …

See also: AFP | BBC | Index on Censorship | Telegraph | TimesOnline. From the ASA statement:

Atheist bus ad campaign is not in breach of the Advertising Code

… The ASA Council concluded that the ad was an expression of the advertiser’s opinion and that the claims in it were not capable of objective substantiation. Although the ASA acknowledges that the content of the ad would be at odds with the beliefs of many, it concluded that it was unlikely to mislead or to cause serious or widespread offence.

The Christian Voice response is here. The best response I have found is on Nick Spencer‘s Theos blog on the Telegraph website, returning to a fray he had joined when the advertisements were first posted on London buses.

Back on the (atheist) buses

[The ASA’s decision] is terribly long-sighted and rather disappointing. Who would not have relished the sight of the ASA adjudicating on whether or not God probably exists? It could have been the Scopes Trial of the 21st century, calling the world’s leading philosophers, theologians, historians, artists, anthropologists, physicists, biologists, and psychologists to testify, not to mention the legion of ordinary men and women who claim to have had a spiritual experience or two.

The ASA offices in High Holborn would have turned into a media circus, as thousands of correspondents from every country on God’s (“Discuss.”) earth arrived to witness the judgment of this panel of sages. At last the issue would have been decided, probably.

Black Swans and The Tragedy of the Commons

Black swan, via wikipediaHow should universities promote research and, if necessary, afford it legal protection by means of intellectual property rights? Two considerations of that question have recently swum across my desktop.

First there is a new article by Michael Madison “The University as Constructed Cultural Commons” (SSRN) applying Michael Madison, Brett Frischmann and Katherine Strandburg “Constructing Commons in the Cultural Environment” (SSRN) to the university environment (hat tips: University of Pittsburgh School of Law Faculty Blog here and here). (more…)

Teaching Passions in Universities

THE cover, via their website.In a sparkling cover story in this week’s Times Higher Education (cover left), Tom Palaima tells of the passion that drove him to teach Classics and how it is at odds with the “educational shopping mall’ vision of officialdom. His experience has universal relevance, as Irish public policy on state-funded higher education is “learning” from the US practice, rather than recognising it for the mistake it is, as cogently argued by Palaima (article | pdf | html) (more…)

Is the Internet turning contract law on its head?

Contract image.According to Richard Warner, in “Turned on its Head?: Norms, Freedom, and Acceptable Terms in Internet Contracting”, a paper recently made available on SSRN and BePress, many commentators contend that it is, though in his view it is not. The issue is basically very simple: either the current law of contract is capable of regulating internet contracts because they are after all still contracts, or the current law of contract is not capable of regulating internet contracts because the internet is too different from its current reach that it cannot cover internet contracts. It depends on whether you stress the “internet” element, or the “contract” element. I stress “contract”, and take the view that the current law can easily accommodate internet contracts, for the simplistic reason that a contract is still a contract. (more…)

Do Law Firms have Friends?

Law firm masthead, via their site.From a piece by Mitch Kowalski in the FP’s Legal Post:

First major law firm to have Facebook page

I don't know why Canadian firms don't hire me to do their marketing and recruitment. Here is yet another good idea that is being ignored by Canadian firms. NYC firm Curtis, Mallet-Prevost,Cole & Mosle LLP has its own Facebook page for summer student info and hiring. Just another idea to throw out there….

More coverage:
Larry Bodine Law Marketing Blog “[A partner at the firm said:] We are pleased to be capitalizing on the popularity of the most widely used social networking site. As a firm, we recognized the power of this format of communication and the wide use being made of it by future lawyers”.
The ABA Journal Law News Now “The page promotes the 178-year-old firm with historical information and the benefits of starting a career in New York”.
The AmLaw Dailty and Law.com “[The firm] hopes the Facebook page–different from an actual profile, through which Facebook members build a network of “friends”–will increase interactivity between members of the firm and effectively tell the “Curtis Mallet story”.
The National Law Journal “The firm believes that the launch is the first of its kind for an AmLaw 200 firm”.
Robert Ambrogi’s LawSites “This is one of those innovations that makes you wonder why no one thought of it sooner”.

Ambrogi is absolutely right. I don’t much like Facebook myself, but many of my students do, and it makes perfect sense to me that the law firms seeking to hire them should go where they go. So, whatever about New York or Canada, what of Ireland? How about it, Arthur Cox, McCann Fitzgerald, A&L Goodbody, Matheson Ormsby Prentice, William Fry, et al?

Golden moments?

The Campaign For Nuclear Disarmament (CND) is 50 this year, and its famous symbol is 50 today (hat tip: Opinio Juris; BBC):

CND badges, via the CND site.

The images (from left to right) are the first ceramic CND badge, an early tin badge, and the current badge.

The symbol was

designed in 1958 by Gerald Holtom, a professional artist and graduate of the Royal College of Arts. He presented his early designs to the Peace News office in North London and, significantly, to the Direct Action Committee Against Nuclear War, one of the groups that helped to set up CND. The symbol was first seen in public during the 1958 Aldermaston march and from that moment onwards became identified with CND and its objective of nuclear disarmament.

Ironically the symbol itself is a mix of the military semaphore signals N – representing nuclear – and D – representing disarmament (semaphore alphabet). However, Holtom, a conscientious objector during the Second World War, subverted this use of semaphores by placing the D over the N, the “upside down logoâ€? signifying his anti-military principles.

This can be clearly seen in the following graphics:

CND symbol, via wikipedia.Semaphore D for CND logo, via wikipedia.Semaphore D for CND logo, via wikipedia.

The CND peace symbol will doubtless understand if I say that I am sorry that it is just as relevant today on its golden anniversary as it was in when it was first adopted in 1958!