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.

Evidence in Criminal Cases: DNA Testing in 2 Minutes

Here's a nice two-minute video from the Innocence Project showing how DNA testing works:

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).

Can't Pay Fines in Ireland? Don't Worry, There's No Space in Jail

Law abiding citizens ought to be outraged by reports about a significant number of offenders refusing to pay fines and facing no adverse consequences for such disregard for their legal obligations. What's worse, to escape scrutiny, the system is resorting to skullduggery to conceal the true numbers of those turned away from jail for not paying their fines by not characterising them as being on "temporary release". These individuals are being equated - wrongly - with those who have served their jail terms.

As the Irish Times reports, "a “front-door mechanism” was created last year. The system ensures that most fine defaulters arriving at the gates of a jail are turned away because there is no room for them inside.

Their fines are expunged on the spot because they are technically regarded as having served a short prison term in lieu of their fine."

Why should people pay fines if there are no consequences for not paying them? To be sure, many will pay out of a sense of legal or moral obligation. But many pay fines only because of fear of other secondary sanctions for refusal to pay. If these sanctions fail to bite, such individuals will ignore the primary sanction. To add insult to injury, reports indicate that these fines are expunged. This makes no sense. Why not retain them on the records as unpaid debts that could be garnished from wages etc when possible?

The reason provided for turning defaulters away from jail - lack of space - is not a justification for absolving them of all punishment. Why not impose community service orders if there is no space in jail? Or other sanctions like taking away driving licences (if the fines were for automobile related offences)? There are plenty of punishment avenues other than incarceration and the state ought to explore them in these instances.

Turning a blind eye to those who refuse to honour their legal obligations only sends the wrong signal to society and ultimately undermines respect for the rule of law. One can only expect more disregard for legal rules if this policy continues.

Police Using Flickr to Nab London Rioters; Facebook Next?

What about Google's Goggles? Remember the scary technology that would allow users to take a photo of a person's face and get personal information about him/her? This raised questions about privacy rights and the company is supposedly still attempting to resolve these issues before roll out. One can readily see the problems posed by an app that allows any person to take one's photo in a public place and get every bit of information available about one online. But do similar problems arise if Scotland Yard were to use this technology to identify the thugs involved in rioting and looting in London? London has a massive network of surveillance cameras and it might be possible to get images of many of those engaging in violence and looting. An opinion poll would probably show widespread public support for such policing.

London police is reportedly using Flickr to help identify the perpetrators; they have "posted a set of photos on Flickr showing people they believed to be participants in the riots. ... the images are primarily from the Croydon and West Norwood neighborhoods in south London, although the site says that more will be posted soon. With the initiative, called Operation Withern, the police are asking the public to identify anyone they recognize from photographs captured by CCTV surveillance cameras in areas where stores were looted."

What about Facebook tagging? I wonder how many of these thugs have Facebook accounts and whether they will be tagged after these images are published.

Dog in the Witness Box to Aid Rape Victim: Unfair to the Accused?

Does the presence of a comfort dog in the witness box during testimony sway the jury? Can a cute dog trigger feelings of sympathy and make the witness more credible? Is the presence of the dog a violation of the accused's right to a fair trial? These questions are being raised in New York following a trial of a father for raping his teenaged daughter. The father was convicted and sentenced to 25 years in jail. He is appealing. From the NY Times:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in. 

Prosecutors here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Idaho, Indiana and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.

Some comfort dogs have supposedly appeared in over 50 trials. While it is true that the dog is only doing what it is trained to do - offer comfort when the witness shows signs of stress - it is possible that juries may be swayed. This is quite a complicated issue and the appeals court decision ought to make for interesting reading.

All-nighters at Law Firms

The Guardian has a piece about all nighters at London law firms with a photo of a Japanese capsule hotel - supposedly similar to emergency sleeping arrangements at some firms. A quote from the article:

"One Sunday morning as I was eating breakfast I got a call from my boss asking me to come in immediately. I worked that day until 1am, then went home for some sleep. I was back in at 7am on Monday, working through until 6am on Tuesday. At that point I got three hours' sleep at the office, before starting work again at midday and continuing right through until 7am on Wednesday – when, thank God, the deal closed."

This looks like pretty pedestrian stuff. I remember tougher days from my stint on Wall Street. While many thrive on this sort of machismo, I would be surprised if repeated all-nighters didn't impose a significant cost in the form of reduced quality.

Table Showing Impact on Judges' Pay if Referendum is Adopted

Here's a table showing the impact of the proposed pay cut for judges, if the referendum is passed:

Source: Dept. of Justice website.

Greeks Taking Money from Banks to Store in Garages: No End to EU Crisis

As I've argued before, EU leaders have shown very little evidence that they are capable of taking the bold steps necessary to contain the crisis. Italy and Spain's continuing troubles show that markets have no faith in these band-aid measures and that they next crisis is not too far off. A recent article in the Guardian about a silent bank run in Greece is scary:

In May alone, almost €5bn (£4.4bn) was pulled out of Greek deposits, as part of what analysts describe as a "silent bank run". This version is also disorderly and jittery, just not as obvious. Customers do not form long queues outside branches, they simply squirrel out as much as they can.

One senior investment banker [said]: "People are scared that the government doesn't know what the fuck it's doing." He tells a story about an acquaintance who took out €30,000, wrapped it in a bag and stashed it in his garage. "The bag had previously had some food inside," he says. "So it attracted rats, who ate the notes."

These sorts of stories remind one of the Great Depression and it is incredible to read about it happening so close to home in this day and age.

Italian Burqa Ban: Prejudice Masquerading as Paternalism?

News reports indicate that Italy may adopt a ban on burqas, following the lead of other European states like Belgium. Those who violate the ban face fines of up to Eur. 300, whereas those who coerce women to wear burqas could be fined as much as eur. 30,000 and be jailed for 12 months. As in those instances, the ban's proponents cloak their case in the garments of concern for the poor women who are forced to wear the burqa, blissfully unaware of the hypocrisy of their position. For example, the New York Times quotes Barbara Saltamartini of the Freedom Party - no irony there - as saying that the ban "will put an end to the suffering of many women who are often forced to wear the burqa or niqab, which annihilates their dignity and gets in the way of integration."

I am sure that some of these people mean well but how on earth do they claim moral superiority when all they are doing is substituting one coercive act (the burqa ban) for another coercive act (forcing women to wear the burqa)? For my critique of the bans, see here. Previous blog posts are here, here, and here.

Ronaldo and Footballers as European Central Bank Collateral

Financial News reports that Bankia, the Spanish Bank, is offering Ronaldo and Kaka as collateral to the ECB for some financing. Ronaldo was supposedly acquired from Manchester United for GBP 80 million whereas Kaka was purchased for eur. 65 million.

The ECB has been accepting all sorts of junk as collateral lately but they might draw the line at Sepp Blatter and Irish footballers. Perhaps rugby players? Although seizing those muscular rugby chaps and taking physical custody in the event of default might be beyond the abilities of ECB personnel!

New Details on Bin Laden Killing: "No One Wanted Detainees"

From a riveting article in The New Yorker on the raid that resulted in Bin Laden's Killing:

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

My article in the WSJ on the legality of the killing is here. These new details might raise some questions about whether a surrender option truly existed.

US Cities Compares to Countries: Ireland Ranks Above Minneapolis and Detroit

From an interesting report comparing GDP of countries against gross metropolitan product of the large cities in the US ($$s in billions):

Rank Country or Metro Area 2010

1 United States 14,660.4

2 China 5,877.2

3 Japan 5,462.6

4 Germany 3,297.7

5 France 2,554.5

6 United Kingdom 2,241.9

7 Brazil 2,088.0

8 Italy 2,046.9

9 India 1,607.6

10 Canada 1,574.1

11 Russia 1,479.3

12 Spain 1,405.4

13 New York-Northern New Jersey-Long Island, NY-NJ-PA 1,282.6

14 Australia 1,232.5

15 Mexico 1,040.1

 

Ireland ranks 56th on the list, below NY, LA, Chicago, Washington DC, Houston, Dallas, Philadelphia, San Francisco, Boston, Atlanta, Miami, and Seattle, and just above Minneapolis and Detroit. Here's a map showing how some countries compare, via the Atlantic:

 

Thoughts on Shatter's Views on Multiculturalism, More Powers for Human Rights Body

Minister Shatter made some interesting remarks at the release of the report of the Irish Human Rights Commission: “I reject the notion of parallel societies and belief that integration and not multiculturalism is the approach we have to take,” he said. “It is imperative that we encourage immigrants to be part of mainstream Irish society and not to perceive themselves as outsiders living apart from it.”

This is indeed a welcome statement from the minister, coming as it does in the aftermath of the Norwegian killings and the debate about multiculturalism. As I've argued previously, it is not multiculturalism that has failed but a lazy policy of appeasement of the most extreme elements within minority populations in European states. In the spirit of facilitating integration, the minister could take a highly visible, symbolic decision to terminate the ridiculous registration system for immigrants at the Garda offices near Pearse street. Such a system does not exist in the UK and the US, singles out immigrants as conspicuous outsiders, imposes an unnecessary financial burden in the form of fees, wastes an entire day of productive work - which many immigrants may not be able to afford, and produces benefits that are not immediately discernible. There are plenty of other less burdensome alternatives if the objective is for the State to keep tabs on immigrants. An electronic filing system can be easily created and integrated with the visa issuing offices.

Minister Shatter also spoke about enhancing the powers of the human rights commission: “We are reviewing the architecture of our human rights infrastructure to ensure that resources are used efficiently ... It is my intention to facilitate the commission playing an enhanced role.”

Among the reforms to be brought in under a new statute would be having the commission report to the Oireachtas Committee on Justice, Equality, Defence and Women's Rights, he said.

In principle, this is also to be welcomed. But before committing additional resources, the appointment process has to be reviewed as any commission is only as good as its members. Secondly, there has to be clarity about its mission: is it a policy body or a more executive agency? From the talk about allowing the commission to bring lawsuits etc, it seems that some are intending a more executive function. This will require a different model of staffing and resourcing than one for a policy making and monitoring agency.

More at the Irish Times website.

Crime and Punishment in re Breivik: What about Vengeance?

How much jail time can Anders Breivik expect to get under Norwegian law? This is an obvious question for most people in the aftermath of the horrific killings in Norway. The answer: a maximum of 21 years.

Does this punishment fit the crime? Is Norwegian justice too soft? For those used to the U.S. justice system, the maximum jail term of 21 years for such a horrific act seems incredibly low. Even Bernie Madoff who did not kill anyone got a longer sentence. As did Jeffrey Skilling of Enron, who also did not kill a single person. Norwegians are also raising questions about the adequacy of such low sentences for such crimes as this USA Today article reports: Anti-Breivik Facebook groups have appeared such as Anders Behring Breivik Haters and Hang Anders Behring Breivik. One group asked members to vote on whether Norway should reintroduce capital punishment, abolished for civilian crimes in 1902 and banned completely in 1988 ... 71,000 of 97,000 members replied no.

A New York Times op-ed contrasts the Norwegian situation with U.S. style justice and makes the case for vengeance, implying that Norway's legal system ignores this basic human instinct: "... how different is revenge from justice, really? Every legal system, however dispassionate and procedural, must still pass the gut test of seeming morally just; and revenge must always be just and proportionate. That is what the biblical phrase “eye for an eye” means. Justice requires that no less than an eye can be taken in retaliation for a lost eye, but no more than an eye either."

I am not too sure about the need to incorporate vengeance into the sentencing system. For starters vengeful feelings are extremely variable (across time, religion, gender, ethnicity, socialization etc) and even accommodating the vengeful feelings of those at the mid-point of the spectrum could take us to a pre-modern system that might prove extremely barbaric.

But is the 21 year prison term too low on other grounds? The deterrence argument that is mentioned in the USA Today article by a Norwegian lawyer is pretty weak. But what about incapacitation as a justification for punishment? Breivik is young and the only way to ensure that he does not pose a further threat to society is to keep him permanently behind bars? 21 years might not be enough.