Irish Law School Rankings 2012 - By Entering Student Credentials

Since we are in rankings season, below is a ranking of law schools in Ireland based on the entering credentials of the 2012 class. This is obviously only one measure of how good a law school is, but I think it is an important measure because student quality (to the extent that CAO points are a measure of quality) has a direct bearing on the educational experience. It might also have some predictive value for the quality of lawyers a law school produces, their ability to get jobs upon graduation, and ultimately success in the profession.

The table below lists the ranking for the main law degrees offered by all the law schools in Ireland:

Ranking		Law School			CAO Points
1		Trinity College Dublin			525
2		University College Dublin			495
3		NUI Maynooth			475
=		University College Cork			475
5		Dublin City University			410
6		NUI Galway			405
=		Limerick			405
8		Dublin Institute of Technology			350
9		IT Carlow			305
=		Griffith College			305
11		Waterford IT			295
12		Dublin Business School			230

It is my sense that while there would be movement between the top 4 if other factors like research, employment prospects, average income, peer reputation, etc., are included, there seems to be an emerging divide between these schools and the others. It remains to be seen if this two tier system survives the serious challenges facing Irish higher education.

The table below ranks the law and business programs offered by all the law schools in Ireland:

Ranking		Law School		CAO Points
1		Trinity College Dublin		565
2		University College Dublin		495
3		NUI Maynooth		460
4		Dublin Institute of Technology		400
5		IT Carlow		315
6		Athlone Institute of Technology		270
7		Griffith College		250
8		Dublin Business School		235

I have not provided a ranking for the smaller "law and X" programs offered by some law schools because the trend seems to be against such fragmented degrees.

Women and the Law Conference

Our inaugural women and the law conference will be held today. All are welcome to attend. CPD credit is available.

Reflections on the Legal Services Regulation Bill 2011

The Legal Services Regulation Bill 2011, has been greeted with predictable opposition by those representing the profession. Below are some of my thoughts on their arguments.
1. The Bill erodes the independence of the legal profession
This argument assumes that the legal profession is somehow independent and operates on some lofty claim. The truth is that no jurisdiction that I am aware of has guaranteed absolute independence to the profession and freed it from all regulation. There are a variety of models of regulation across the world but none of them are designed to guarantee absolute independence or to create a position of special privilege for lawyers.

The idea of independence is to ensure that lawyers are able to dispense legal advice to clients free of pressure from the state, to protect the rule of law, to protect against retaliation for pursuing claims against the state, and to support the administration of justice. These objectives are guided by the need for a system that serves the public interest. While different countries have adopted a range of regulatory models for the profession, in no country has the supervisory function been free of state interference. Many jurisdictions have vested this power in the courts - which are also an organ of the state. Judges are appointed by the government in these jurisdictions and vesting supervisory power in their hands has not compromised independence in any meaningful way. Yet some continue to make tall claims - the Independent claims today that "Minister ... will directly appoint seven of the 11 members ...[t]his undermines not just the independence of the legal profession, but undermines access to justice itself. The new regime of direct control of the legal profession is unparalleled anywhere in Western Europe."

The government appoints judges. Does anyone seriously believe that Ireland does not have an independent judiciary or a legal system based on the rule of law? Irish judges are widely applauded for their independence and excellence and to jump to the conclusion that appointment by the Minister "undermines access to justice" is rather silly.

The Bill expressly mandates independence: section 9(3) says that the Authority "shall be independent in the performance of its functions." Further section 9(4)(e) requires it to "encourag[e] an independent, strong and effective legal profession," and 9(5)(a)(1) states that legal professionals shall "act with independence and integrity."  They are also required to "comply with duties rightfully owed to the court." In addition, other provisions contain detailed rules designed to ensure independence. Section 11 - containing bars on serving as a member of the Authority if elected to Parliament, section 14 - disclosure of conflicts of interest, etc are examples.

2. The Bill gives too much power to the Minister
This ultimately depends on practice and it is perfectly possible that the minister will defer to the views of the Authority. It is also misleading to suggest that the profession has been shut out of the appointments process - 4 out of the 11 members of the Authority shall be nominated by them. 6 out of the 16 members of the disciplinary tribunal shall be nominated by them. This is quite a lot of power to the profession. There are however some areas for concern. For e.g. the strategic plans have to be approved by the minister and there might be some pressure on the codes of practice. These could be improved through further clarifications.

3. The disciplinary process is flawed
The Bill provides a detailed set of rules on lawyer discipline. This is not at odds with what is prevalent in other jurisdictions. It is typical to have non-lawyers on disciplinary hearing panels, although the requirement for the majority to be comprised of lay persons poses challenges of expertise. The decision of the Disciplinary Tribunal can be appealed to the High Court.

4. The Bill will make legal services more costly
There is no evidence to support this assertion. Indeed many of the reforms are expressly geared at removing structural barriers to competition and costs ought to come down. It would have been preferable for the Bill to merge the professions now rather than waiting for a report and wasting two years. The justifications offered for the duality of the professions are weak and there is nothing new to be gained from another report. Allowing direct access to barristers, permitting them to take up regular employment and to provide legal advice to their employer, permission to form firms, etc., should all work to drive down costs.
I have some concerns about the requirement for annual statements from accountants; this seems unnecessary and costly. I am also not persuaded about the need for mandatory indemnity insurance. A disclosure based regime would have been a superior alternative because it would facilitate contractual choice and keep costs down. I am also not persuaded about the need to create a new profession of conveyancer.

In conclusion, there is much to like in the Bill and it is a step in the right direction. The profession should see it as an opportunity to improve access to justice, provide better service to clients at lower cost and to regain public trust.

Doctoral Teaching Scholarship in Law at NUI Maynooth

We are doing a second round of funding for this scholarship. It offer a generous eur. 16,000 in addition to full fees. Candidates must have a 1st class degree. Closing date is September 7, 2011. Feel free to contact me for details.

Irish Times: "Legal System Provides No Guarantee of Justice"

The newspaper has an opinion piece today that applies a broad tar brush to the legal system, with some wild claims. If the point is that the system needs reform - which one can readily accept - it has been undermined by some pretty bizarre argumentation. A detailed rebuttal would be too long for a blog post so I'll focus on just a few points. The piece starts off with an attack on legislative drafting followed by the assertion that many laws survive constitutional scrutiny only because people cannot afford to challenge them. This is a tall claim given the deference granted by the courts to the legislative branch in constitutional challenges. Moreover, the connection between poor drafting - I doubt if lawyers in any jurisdiction have ever come across the perfectly drafted law - and constitutionality is not substantiated. There is also no evidence offered for the success rate of constitutional challenges, when people can "afford" to bring them. If this is indeed high, it might support the point that the legal system is doing its job. One does not doubt the need for good drafting but it is overstated in this context.

Then the piece attacks "lenient sentences" awarded by the courts and claims that the community has been "demoralised" as a result. The author claims that those released early are committing violent acts and victims of serious crime are "so badly treated." Where is the data for recidivism for violent crimes to support this claim? One study between 2001-2004 found that recidivism in Ireland was highest for property crimes. Sex crimes - which typically atract the highest amount of popular outrage - had much lower recidivism rates. Popular opinion is typically in favour of draconian sentences but what is the evidence that Irish judges typically impose lenient sentences for violent crimes? Lenient compared to UK judges? US judges? One would have expected some evidence to support these sorts of claims, but once again all we get is a bald assertion. Jail is extremely expensive and the evidence indicates that Irish prisons are overcrowded. If violent criminals are indeed being treated leniently, evidence must be collected and resources ought to be directed at remedying the problem. Knee-jerk statements unsupported by evidence are not very helpful.

Next is an attack on wigs and gowns - valid. And an attack on the DPP's lack of accountability. These are sound criticisms but again there is no real substance beyond two statements buried in the middle of the piece. 

The piece also shows inefficiencies in the civil justice system caused by the separation between Solicitors and Barristers with a putative client "Shiela." There is little doubt that the separation of the profession imposes unnecessary transaction costs and is inefficient. That point could have been made more effectively without the examples provided in the piece. Many of those examples - tardiness by barristers taking silk, etc - do not do much for the argument as they only speak to individual instances of lack of professionalism.

In conclusion, yet another opportunity to make the case for reforming the legal system goes to waste.

Reforming the Legal Profession: "You're not going to argue with a doctor when your pants are down around your ankles"

The Minister for Enterprise, Mr Richard Bruton, has been taking some bold steps since he assumed office. In that vein, he continues to take aim at the legal profession, which he believes is acting like a cartel. Some of his recent views, via an article in the Irish Independent: ... Ireland's competitiveness was being damaged by a legal "cartel", but he noted that while "people were not going into a room" together to set up prices, "custom and practice had grown up in a manner that was very comfortable" for our over-paid lawyers.

He added that the current "pricing relationship" involving the hiring of senior counsel, junior counsel and solicitors had "no place" in a modern, competitive economy.

Mr Bruton also reiterated a recent warning to the legal profession that there would have to be fundamental structural changes in how they operated if we were to create "a competitive market structure".

Unlike other industries such as supermarkets, "simply asking people to shop around is not realistic" because seeing a barrister is "like visiting a hospital consultant.

I doubt if the analogy between doctors and barristers works. At the highest level - where fees are in the millions - the clients are typically very commercially sophisticated, and possess the ability to choose between lawyers. To be sure, the small size of this jurisdiction might constrain choice somewhat, but I don't think there is much need for paternalistic intervention at the top level. The problem is more at the bottom level where routine legal work is over-priced. Drafting documents, arguing small claims etc ought to be less expensive, reflecting the level of expertise, time, and skill involved. This is where the ordinary consumer finds himself at a difficulty when he needs legal services. The legal profession in most jurisdictions has been unwilling to tackle this problem. Predictably, other providers have jumped into the market - as in the U.S. - and are offering cheaper services for drafting wills, leases etc. It is only a matter of time before similar services become more widely prevalent.

I wonder if Mr Bruton will go whole hog and strike at the separation between Barristers and Solicitors. Intuitively, removing this artificial and archaic divide ought to have some effect on the cost of legal services, while enhancing consumer choice and competition. It would also be helpful if the government were to modernise the court system - for e.g. by providing electronic public access to filings, requiring written arguments which are publicly accessible, etc - while it is tackling the legal profession.

UCLA Law Gets $10 Million Gift, Some Other Law Schools Get Sued

In a perfect illustration of the winner-takes-all model prevalent in the US, UCLA Law School received a $10 million gift - the largest single gift in its history - to set up the "Lowell Milken Institute for Business Law and Policy, which UCLA officials said was the result of a three-year effort by law school leaders and Milken to create business and law initiatives that focus on innovative research, problem-solving and hands-on skills training."

This is truly impressive in a very tough climate for university endowments.

On the other end of the spectrum, two class action suits have been filed against Thomas M. Cooley Law School (Michigan) and New York Law School (not NYU Law School). The plaintiffs are graduates of these law schools. They are suing for "$250 million from Cooley and $200 million from NYLS in tuition refunds, as well as other damages and reformed employment statistic reporting practices.

Both lawsuits state that the plaintiffs seek “to remedy a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.”"

A similar suit was filed against Thomas Jefferson Law School (San Diego).

What Domino's is for Pizzas, "LawyerUp" is for Lawyers

Many claim that there is an oversupply problem for lawyers in Ireland. Others argue that legal services are too expensive and that those really needing legal help are unable to afford it. Yet no one is claiming that these problems are bedeviling the pizza market in Ireland. Conversely, I recall reading that Dominos experienced dramatic growth in Ireland over the last couple of years despite the dreadful financial climate. Irishmen and women have plenty of choice when it comes to pizza at competitive rates whether they want to dine in or take away. In sum, the pizza market is the very picture of good financial health.

Is there a lesson in this for lawyers? Yes, according to a new company in the U.S. called LawyerUp which promises to provide a lawyer within 15 minutes. As reported by the New York Times, "[t]he service’s personal plan, aimed at young people, costs $4.95 a month. Those who do not have a subscription can pay a flat fee of $100 for the first call, which the company calls its “pay-in-a-pinch plan.” For all clients, an operator checks contact information and processes the lawyer’s initial fee of $250 on a credit card for the first hour of service." And what's even better, lawyers do not have to pay anything to be on the company's list. There's even an app on Android for this service.

One wonders if Irish lawyers will take innovation to these lengths. And if Irish professional ethics rules permit these sorts of practices. Whatever the case, few things beat the joys of 15-minute pizza, but I am less convinced about the merits of a 15-minute lawyer.

Justice Denham on Judges' Pay Cuts, New Court of Appeal

The new Chief Justice, Susan Denham, has issued a statement revealing her views on a number of pressing issues. On the proposed referendum to cut pay: “Judge[s] are not, nor have they ever been, opposed to playing their part in sharing the financial pain required of everyone in this difficult time, [w]hile we can be thankful that our children and grandchildren are not going off to war, and that famine is not stalking the land, we are in the midst of a financial storm which has shaken families throughout the country, and imposed enormous stresses upon individuals, families and communities.” Note the choice of words - not opposed, rather than support.

She voiced her support for a court of appeal: “With the growth in the number and complexity of cases coming before the Supreme Court and the Court of Criminal Appeal, the State would be well served by a Court of Appeal; and we need to develop a 21st century infrastructure for the judiciary of Ireland.” It would be huge step in the right direction if the new chief prioritises all aspects of a 21st century court infrastructure while setting up a court of appeal. Requiring written briefs before oral arguments, electronic access to these briefs for the public, getting rid of the costumes ...

On judicial restraint: "In a world of instant communication and commentary the concept of silence may seem unusual, but it is an inherent part of our democratic tripartite system of government. Indeed, in these difficult times the need for an institution of independence and thoughtfulness, with an obligation to maintain the rule of law, is greater than ever,"

She also supported the establishment of a judicial council. It promises to be an interesting tenure.

Walmart to Offer Pro Bono

I blogged yesterday about some claims about pro bono at the Irish bar. This news item about Walmart's laudable initiative offers an interesting model for Ireland, where the government has expressed a strong desire to lower costs in medical cases:
... lawyers at Wal-Mart Stores, Inc., start providing pro bono help to kids on Medicaid next month. It will mark the debut of the first formal pro bono program at the global retailer and the first time that a corporate law department has taken the lead role in a medical-legal partnership (MLP).

Gearhart's [the company's General Counsel]  is hoping to expand Wal-Mart's MLP work nationwide. "Wal-Mart wants to be the catalyst for a network of attorneys who can be part of medical-legal partnerships with children's hospitals across the country," he says.

And Gearhart has another goal: to get a thousand lawyers involved in the network. That means Wal-Mart can't do it alone. "I'd love for any other companies to join in with us, whether a supplier or competitor," he says. "This is not an exclusive Wal-Mart program. We want to set an example for other companies."

Sanitation Dept Employees Earn More than Judges - in New York

I blogged previously about complaints from New York state judges about inadequate pay. Now the NYT has an article about the work of the Judicial Compensation Commission - set up last year to deal with the issue. The commission has been receiving submissions from various parties about appropriate pay levels for judges. Amongst these is one from "a coalition of 12 judges’ organizations put[ing] forth 50 facts justifying a big raise, including salaries in New York City’s Sanitation Department: 50 employees in the department earn more than almost all New York judges and nearly as much as the state’s chief judge, Jonathan Lippman."

The current salary for judges is at about $136,000 - lower than Irish levels. The article notes criticism for any increase in pay given the state of New York's economy, echoing similar concerns about affordability in Ireland, although the attempt here is to cut pay, not to increase it.

Partnerships for Barristers

An opinion piece in the Irish Times argues that the abolition of the current sole trader system at the Bar would "damage rather than improve both the public interest and consumer choice."
There is virtually no evidence offered for that claim. One would have thought that the efficiencies of scale offered by the law firm model would offer better returns. In any case, I doubt anyone wants to do away with sole practitioners - the objective of the reform is to allow for the creation of firms of barristers. Those who cannot find jobs in firms or prefer to practice on their own could do so.
The author also claims that the current system offers learning, efficiency and network benefits for younger barristers. A poll of barristers who have enrolled in the last 7-10 years might yield interesting results on these supposed benefits. It would also provide valuable evidence for the reform agenda.

I am also a bit bemused about this claim: "In the alternative scenario there will be a consequent squeezing out of the role of the individual independent barrister in advancing the public interest through taking unpopular pro bono or financially unrewarding cases."
Based on anecdotal evidence, it was my understanding that there is very little pro bono work done in Ireland. Far from squeezing out pro bono, the law firm model in the US has actually managed to contribute more to that cause than any other jurisdiction I am aware of.

The legal profession is in flux in many jurisdictions and the days of bar councils controlling entry into the profession and the vehicles for delivery of legal services appear to be numbered. In any case, the opinion piece is an early salvo in the debate on reform here and one hopes that the profession is serious in its objectives of reducing cost, promoting competition and advancing consumer welfare.

In the Courtroom: Expert Witnesses on Feces + Dictionary on "Shit"

I've blogged previously about expert witnesses testimony - especially the views of some Irish judges about economists as experts - and came across this really funny post about a recent Iowa Court of Appeals decision about the need for expert testimony to establish whether something is feces. The case concerned an attack on a correctional officer by a prison inmate with a brown substance followed by him yelling, "I got you with shit." The inmate challenged his conviction claiming that the state had not adduced expert evidence to substantiate the charge of assault with feces.

The court did "not believe the identification of feces falls solely within the domain of expert testimony." According to the judge, "[i]f it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces."
The judgment is also noteworthy for its use of the dictionary for a definition of the word "shit." The judge elucidates on the "versaitility of the word 'shit'" with some humour (see footnote on page 7, internal citations omitted):
"Shit" is defined as excrement. Webster‟s Third New Int‟l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise. For examples, see State v. Vance,  ("He is going to find the shit . . . ."); Estate of Harris v. Papa John’s Pizza,  ("[S]hould be on his „shit list‟ . . . ."); Civil Service Commission of Coralville v. Johnson,   ("You ain‟t going to be shit."); Wilson v. IBP, Inc.,  ("[T]his guy‟s full of shit."); Marks v. Estate of Hartgerink,  ("It takes a lot of guts and shit . . . ."); State v. Anderson,  ("[W]hat‟s this not guilty shit."); Knox v. Municipal Court of City of Des Moines,  ("You are still a Fascist and your swastika (indicating) Heil Harrison, Heil Harrison and all that shit."); Graves v. O’Hara,  ("We have f**king shit to haul . . . ."); State v. Shortridge, ("Holy shit, let‟s get out of here . . . ."); Peck v. Employment Appeal Board,  ("[A]sking what „shit jobs‟ were available."); State v. Findling,  ("I mean this is really big shit here."); Wiysel v. William Penn College, ("[H]is words were so much „sanctimonious shit.‟"); and Blong v. Snyder,  ("[They] told him the pieces he had run were all „shit.‟"). The remarkable versatility of the word "shit" is also demonstrated in George Carlin‟s "Filthy Words," a verbatim transcript of which is set forth in full in the appendix to the United States Supreme Court‟s opinion F.C.C. v. Pacifica Foundation.

My previous posts on dictionaries in the court are here and here. Paul MacMahon's views on dictionaries here.

Elite Academic Credentials = Top Jobs

CNN has an article based on a new study by a professor at Northwestern showing the chokehold of those with elite academic credentials on elite jobs at Wall Street banks, law firms, and management consultancies: "elite professional service employers" rely more on academic pedigree than any other factor. For recruiters, it's prestige that counts, rather than "content" like grades, courses, internships, or other actual performance. That's because if you got into a "super-elite" school -- which essentially means Harvard, Yale, Princeton, Wharton (University of Pennsylvania), and Stanford -- you must be smart. Plus, time spent at those bastions in turn will make you "polished" and attractive to corporate clients. It is, according to Rivera, a largely self-perpetuating hiring process that prizes efficiency: Why spend effort looking for "that one needle in the haystack" at a "safety school" like the University of Michigan or, heavens forfend, Bowling Green, when the run-of-the-mill Yalie's still a prince. Even "second-tier" Ivies like Brown, according to Rivera, are suspect for the top firms.

This conforms with my own experience. Legal academia, at least in the US, is also very focussed on elite credentials. This does not happen as much in the UK probably because there isn't a large enough supply of candidates with elite credentials for jobs in law schools. Anecdotally, many candidates with doctoral degrees from Oxford and Cambridge - which have small cohorts in any case - seem to seek jobs in law firms, international organizations, etc.

Irish Times Op-ed on Judicial Independence

An opinion piece in the Irish Times (unlike the typical Irish Times op-ed this one actually advances some opinions!) today claims that the chief justice must be elected by the other judges of the Supreme Court to "honour the principle of judicial independence perfectly. If ... such a closed system is too cosy, the choice could be made by a committee consisting of judges, lawyers and respected laymen along the lines of the Judicial Appointments Advisory Board that now screens appointments from the profession to the bench."

Maybe. But what is the evidence that the present system is compromising independence? The example offered by the author - Liam Hamilton's appointment after the beef tribunal's mandate was concluded - is not necessarily a reason to take the appointment power away from the government. It offers a good argument against employing sitting judges in tribunals where the government might be a party. Such appointments need to be predicated on an embargo against the judge being promoted or appointed to another position upon retirement to avoid suspicion. Otherwise suspicions about quid pro quo deals are hard to dispel.
To be sure, the current system might benefit a judge particularly adept at obtaining political support but I haven't seen any evidence that it has compromised independence or quality or that the alternative method would offer superior results.

The author also writes that "judicial independence requires that the decision on promotions from the High Court should be removed from government to an independent body ... in line with what happens in England and Northern Ireland," and makes a plea for "a more general reconsideration of the implications of the constitutional guarantee of judicial independence reviewing the system of judicial appointments, the tenure and accountability of judges, guarantees of their impartiality and how their remuneration as well as the overall funding of the courts should be decided."

Again, maybe. It would help if there was some evidence that the current system is broken. Are judges of the High Court and Supreme Court not "independent" because they are appointed by the government? Is there evidence that they rule in favour of the government at a rate suggesting bias? Is there evidence that bad judges have been promoted? Is there evidence that "less-independent" judges write poor judgments or are otherwise poor performers? Finally, while independence is important, accountability and transparency are at least of equal importannce when one talks about judicial reform.

One more strike against elected judges?

I blogged recently about John Waters' suggestion that Irish judges be elected by the public. In that post I pointed to evidence showing that an elected system yields judges who behave more like politicians than professional adjudicators. Now here's some more evidence via an article about Alabama judges - who are elected - via the NYT:
Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence. ... more than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative... The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas.
...
Overrides are more common in election years.

“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system.
The full article is available here. It shows a clear divide between Alabama and two other states - Florida and Delaware - where judges are appointed. The desire to be seen as tough on criminals surely has to be one explanation for this contrast. Note that this is in Alabama - no one would accuse its jurors of being liberals or softies!

Minister Shatter on Judges' Memo

I've blogged previously about the judges' memo and the reported conflict between the Minister and the courts service. The Irish Times contains some interesting quotes from the Minister today seeking to allay concerns that the judiciary is being targeted:
“I think it’s regrettable that the matter is on the website, but to some extent it’s a side issue," he said. “I think it’s very unfortunate that an unnecessary controversy has arisen over the commitment in the programme for government to hold a constitutional referendum to deal with the issue of judicial pay, and essentially to facilitate applying to the judiciary in a manner that’s constitutionally appropriate and protects their independence the same public sector wage decreases that have impacted right across everyone who is in receipt of public pay.”

“There can be never any question of the judiciary being as a group or individually targeted for pay reduction,” Mr Shatter said.
“The Government believes this is hugely important to ensure that public respect for the judiciary is maintained and there isn’t a public perception that they’re immune from the financial and economic cataclysm that has hit the State and has affected so many people.”

Perhaps this whole controversy could have been avoided by better communication and drafting of the text. If it were to be tightly drafted to allow for pay reductions only in emergent circumstances when the pay cut was imposed across the board to all public servants, the judges' fears would be allayed. They have repeatedly asserted that they are not opposed to a pay cut.

Gallup Poll on Confidence in Criminal Justice System (US)

Since we've been discussing judicial pay and related issues, this new Gallup poll on confidence in the criminal justice system might be of interest. Surprisingly, Americans' confidence in the criminal justice system was on par with that for newspapers! Out of 16 institutions surveyed, both came in at no. 9, well below institutions like the military, small business and the police.

 

Chief Justice Roberts on Legal Scholarship

The American Constitution Society's blog quotes the Chief: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

The C-Span video is here.
 
The Chief's views are not new. Legal scholarship has moved away considerably from doctrinal case-crunching and the primary audience that law professors write for is other academics. To be sure, some legal academics do write case reviews and other valuable doctrinal material. This is especially the case in jurisdictions like Ireland, where legal scholarship is still evolving. But the implicit assumption in Justice Roberts' view - that legal scholarship has to be "relevant" to legal practice - runs counter to the objectives of contemporary legal academia.

Conflict between Minister and Judges over Publication of Memo on Pay

There is allegedly a conflict brewing between Mr. Shatter and the courts service over the latter's decision to post a memorandum prepared by judges in response to the proposed referendum over pay. The minister is reported to be upset about its publication on the courts website.
I must admit that it is a bit unusual for judges to publish such a document on the courts' website. However, given the kinds of shots being taken against them by politicians in the media and their reluctance to engage in unseemly public spats, publication of the memorandum sets out their position in public in a dignified manner. And, it allows both sides of the debate to engage with principled arguments rather than rhetoric.

Some key points from the memo (my comments are in blue):

• ... judges of the High Court and Supreme Court are effectively debarred by the Rules of the Bar Council from returning to legal practice following resignation or retirement. If ... the constitutional principle that there be no reduction in judicial remuneration is altered, then the basis for the permanent abandonment by a judge of the practice of his profession is undermined. ... no one would be prepared to give up the right to practice a profession permanently if they did not have the assurance of fixity of salary and tenure of office. There are good reasons for debarring a judge from practicing before an equal or lower court. But does this mean that a former judge is permanently abandoning the profession? Much legal work has nothing to do with the courts. Former judges could join law firms and get paid a lot of money? They could become arbitrators and mediators. Or legal academics. Or practice in a proximate foreign jurisdiction? So, to say that there is a permanent abandonment of the profession is a bit of a stretch.
• Why, then, should this rule [against earning other income] be maintained in such circumstances if the quid pro quo - no reduction in pay - is being abandoned? Many continental judges (including, for example, judges of the Court of Justice and the German Constitutional Court) hold offices of emolument for example as Professors in universities. I've posted on this subject before. There are veryt strict rules in the US and other jurisdictions on the earning of outside income. It cannot exceed 10% of the total remuneration and can only come from certain sources that do not pose conflicts of interest. So, this point must not be overstated because even if we adopt the US rule and allow 10% outside income it will not make that much of a difference when the pay cut is much larger.
• Could, for example, a judge who engaged in part-time arbitration work continue to hear arbitration cases in his or her judicial capacity? Absolutely not, this would not be allowed in the US, and I doubt it would be in most jurisdictions.
• ... the language [of the proposed text] is extremely loose. It would provide no limitation on the circumstances in which a reduction should be made; the government’s view of the "public interest" (as reflected in the legislation enacted by the Oireachtas) would suffice. There is no method of calculating the reduction identified. The only figure by reference to which such a reduction should be effected is contained in a phrase of very broad potential application, namely, "in the public interest". Good point, the text is unnecessarily loose and overbroad.
• ... the bodies which are to be charged with deciding the reduction, both as to whether it is required and by reference to what comparator such reduction should be calculated, are the other branches of government, i.e., the Executive and Legislative branches. Isn't that the whole point behind the separation of powers? These organs are given the task of setting pay in similar legal systems.
• There would be furthermore nothing to stop the Oireachtas enacting legislation cutting the pay of any other office holder(s) and applying that particular pay cut to the judiciary. There is nothing in the suggested wording of the proposed amendment to prevent a series of "tactical" cuts being applied to different classes of public servants, but each of whom can be applied to the judiciary. I've blogged about this before. The wording in the proposed draft is capable of mischief and needs to be improved. It must rule out pay cuts unless there are emergent circumstances and unless all public servants are being hit with a similar cut.
• The principles of judicial independence require that any decision regarding judicial remuneration and the reduction in judicial pay must be taken by an independent body. Not necessary under traditional separation of powers doctrine.
• A finding by a reputable international court or observations by an international organisation that these fundamental guarantees of constitutional independence had been - even unwittingly - compromised, were the suggested wording for the amendment to be adopted, would have huge reputational implications for Ireland and for confidence in our legal system. Doubtful. Besides, who cares?
• That confidence [independence of judiciary] is not only a bulwark of the Constitution’s freedoms which we as citizens enjoy in a free society, but is an essential bedrock of economic confidence on which our recovery from the ordeal to which the State is at present subject is completely premised. Bit of a stretch.

In conclusion, the memo is strongest when it sticks to critiquing the drafting of the text and it is weakened by several unnecessary arguments [like economic confidence, international reputation etc] that are not supported by any evidence. Will the government improve the wording of the draft and end this unseemly controversy?