cearta.ie – Page 76 – the Irish for rights

In the internet era, most Supreme Courts worth their salt have attracted high quality dedicated and independent commentary from the blawgosphere. The market leader is probably SCOTUSblog – which, as its name suggests, is a blog about the Supreme Court of the United States – but I also like the charm of Court Artist as well. The Supreme Court of Canada has The Court; the Court of Justice of the European Union has ECJblog; the European Court of Human Rights has Strasbourg Observers; and, right from the off, the UK’s new(ish) Supreme Court has had UKSC blog. Now, the Irish Supreme Court has taken its place amongst this premier league of courts of final appeal.

Paul MacMahon has just started Ex Tempore. He hopes that Ex Tempore will provide a resource for lawyers, academics, law students, and anyone seeking to understand what the Irish Supreme Court does and how it does it. The site provides weekly previews of upcoming cases, keeps watch on relevant High Court developments, and offers commentary on the Court’s decisions. More broadly, Ex Tempore explores the Court’s history, its place in the Irish system of government, and its relationships with other courts.…

The Yale Law Journal Online – Remedies On and Off Contract

2 February, 2011

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| General

Remedies On and Off Contract –

Written by Richard R.W. Brooks & Alexander Stremitzer,

[View as PDF]

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120 Yale L.J. 690 (2011).

Liberal allowance of rescission followed by restitution has, for centuries, unsettled legal authorities who fear it as a threat to commercial order or other normative values. Responding to these fears, authorities have limited the ease with which rescission may be elected. Their responses, however, are often excessive and based on misunderstandings of the remedy’s effects. Rescission, followed by restitution, may in fact promote contracting by allowing parties to create efficient incentives. Concern about the stability of contracting is not entirely unfounded, but the problem is not primarily due to the ease of rescission following breach; rather, the problem concerns the remedy that follows rescission. This Article presents an argument for liberal rescission followed by limited ensuing remedies. Modern reforms and proposals seem to embrace the opposite route, restricting access to rescission while, at times, allowing for generous ensuing remedies. These reforms and proposals, we show, are the real threat to contractual stability.

via yalelawjournal.org

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Today in law and literature

1 February, 2011

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In Ireland, the first day of February is the feast day of St Bridget, and it is traditionally regarded as the first day of Spring. For the day that’s in it, here’s an image of St Bridget’s Cross:

According to the font of all wisdom and knowledge, Wikipedia, on this day in

1552 – Edward Coke, English jurist and Member of Parliament, was born (d. 1634).
1709 – Alexander Selkirk is rescued after being shipwrecked on a desert island, inspiring the book Robinson Crusoe by Daniel Defoe.
1790 – In New York City, the Supreme Court of the United States convenes for the first time.
1851 – Mary Shelley, English author, died (b. 1797)
1865 – President Abraham Lincoln signs the Thirteenth Amendment to the United States Constitution, abolishing slavery and involuntary servitude, though it was was not ratified by the states until later; as a consequence, today is National Freedom Day in the United States.
1884 – The first volume (A to Ant) of the Oxford English Dictionary is published.
1904 – S. J. Perelman, American humorist, was born (d. 1979)
1976 – Werner Heisenberg, German physicist, Nobel Prize Laureate (b. 1901) and George Whipple, American scientist, Nobel Prize Laureate (b.

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Academic freedom and tenure: some further thoughts (Donncha Kavanagh) « University Blog

1 February, 2011

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| Academic Freedom, General, Tenure

…The state then, as argued by Kant in 1798, has a duty to protect academic freedom in order to enhance if not ensure the rule of reason in public life, while the university has commensurate duty to counter the excesses of the state and its desires.

… neither should one be in thrall to academic freedom, or use it to simply buttress selfish desires for permanent employment and security. In this regard, I think academic freedom should not always be bundled together with the concept of ‘permanency’ (which varies in meaning depending on context). …

… If academic freedom is a meaningful privilege that comes with real responsibilities, it must have an elitist dimension, which means that there needs to be a robust process to determine who is accorded this freedom (qua responsibility). …

via universitydiary.wordpress.com

See also Stephen Mennell and Paddy Healy Defending academic freedom (Letter, Irish Times, 1 February 2011):

the debate on academic freedom … concerns the freedom of the academic expert to speak the truth in the public interest. That freedom is underpinned by the right to tenure in the Universities Act (1997).

Ferdinand von Prondzynski Lack of trust is the biggest threat to our academic freedom
(column, Irish Times, 1 February 2011):

If we are serious about exploiting the smart economy, we need to build up understanding between our academics and the public.

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The empty chair and the moratorium: broacasters’ duties of fairness – I

1 February, 201114 September, 2020

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| advertising, Broadcasting Authority of Ireland, Election 2011, Freedom of Expression, Irish Society

During the course of the next month or so, we are going to hear a lot about the duty of broadcasters to be balanced, fair, objective, and impartial, in current affairs matters. In fact, TV3 have twice now sought to determine exactly what that duty means. First, earlier this month, TV3 queried whether this duty requires a moratorium on political coverage the day prior to polling and on election day. Then, last Thursday night, on Tonight with Vincent Browne, Browne suggested that if Fine Gael leader Enda Kenny did not accept TV3’s invitation to participate in an election debate with other party leaders, TV3 would go ahead with the debate with an empty chair where Kenny should have been; and Browne simply rebuffed Fine Gael’s Alan Shatter’s objection that the empty chair would breach TV3’s duty of impartiality. Given how supine Irish broadcasters have been in the past about the scope and limitations of this duty, I’m delighted to see TV3 take such a robust interpretation, and I look forward to further examples during the general election. In the meantime, in this post, I want to look at the fairness issues raised by the moratorium; in a future post I will look at those raised by the empty chair.…

Source of contention | Media Law Journal

1 February, 2011

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| General, Journalists' sources

When – if ever – should journalists be forced to disclose their confidential sources?

It’s been a hot issue lately. The Crown applied to court for an order requiring TV3 to provide identifying information of the Waiouru Army Medals thief after John Campbell’s anonymised TV interview with him. The Serious Fraud Office compelled the National Business Review to turn over notes and tapes made during its scoop on South Canterbury Finance. The government had to fend off accusations that its new Search and Surveillance Bill did not properly protect journalists’ confidential sources. …

The Evidence Act [a href=”http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393681.html”here] provisions are fairly new, and got their first run in the Campbell case (which doesn’t seem to be available online). TV3 argued that if they were ordered to turn over information identifying their interviewee, then their sources would “dry up”. The Crown asked me to give evidence about whether that was true. What hard evidence is there of this “chilling effect” on confidential sources?

My evidence is here … [and the] cases, reports and articles I’ve drawn on are listed at the end.

I found the exercise fascinating. It quickly became obvious there is no hard evidence. If sources don’t come forward, we don’t find out, and we can’t know why they didn’t.

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Sarah Ludington: The Dogs that Did Not Bark: Academic Freedom, Tenure, and the Silence of the Legal Academy During World War II

1 February, 2011

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| Academic Freedom, General, Tenure

During World War II, the legal academy was virtually uncritical of the government’s conduct of the war, despite some obvious domestic abuses of civil rights, such as the internment of Japanese-Americans. This silence has largely been ignored in the literature about the history of legal education. This Article argues that there are many strands of causation for this silence. On an obvious level, World War II was a popular war fought against a fascist threat, and left-leaning academics generally supported the war. On a less obvious level, law school enrollment plummeted during the war, and the numbers of full-time law professors dropped by half. Of those professors “laid off” during the war, many took employment in government agencies and thus effectively silenced themselves. Finally, the American Association of Law Schools had only adopted a strong position on academic freedom and tenure in 1940. The commitment to academic freedom and tenure was insecure in many institutions and was only weakened by the severe economic strain of the war. To illustrate the effect of these larger forces, this Article tells the stories of five professors who criticized domestic policy during the war and the institutional consequences of their dissent. Of those professors, only one – a tenured professor at New York University – was fired during the war.

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