Tuesday, December 18, 2007

Armed Conflicts and the Environment



Lawyers and social scientists alike have for a number of years agreed that environmental conditions and scarcity of natural resources have the potential to act as a catalyst for armed conflicts. Such assertions have strengthened the normative link between environmental law and the law governing armed conflicts on a general level. This linking is already recognised, in general, in the area of international law of armed conflicts, which, inter alia, lays down that the methods and means of warfare are not limited; and in particular in the international law of armed conflicts which provides for the protection of the environment during hostilities such as Articles 35(3) and 55 of the 1977 Additional Protocol I to the 1949 Geneva convention.

In addition to this “environmental-armed-conflict-law”, considering the state of the environment as a cause of armed conflict has gathered consensus among policy-makers, diplomats and academics. This was most recently recognised when Al Gore, together with the IPCC, was awarded this year’s Nobel Peace Prize Similarly, conflicts like the one taking place in the Dafur region of Sudan is cited alongside the conflict in Somalia as examples of cases where scarcity of natural resources has lead to conflicts.

However, such claims have been questioned in a recent study carried out at the Norwegian University of Science and Technology in Trondheim (NTNU). The researches at NTNU argue that countries where natural resources are most heavily exploited are often the ones most likely to enjoy peace. They base their examination of exploitation of natural resources on the Ecological Footprint (EF) at country level and compare this to data on armed conflicts. Thus, an increase in the EF of a given country will often mean that the country is equally likely to be more peaceful, according to the NTNU team. In this light, the findings might not appear all that surprising. After all, the EF is a measure of consumption. Therefore, it is not surprising that countries with high consumption – the developed countries – are more likely to experience peace. On this account, the study would appear to confirm what most would consider common knowledge; namely that armed conflicts mainly occur in less-developed countries or countries in economic transition. The same countries that have lower EFs.

On a general level, it would thus appear that one can say little as to whether exploitation of natural resources lead to armed conflicts in light if the research. The case might be that it does so in certain areas and do not in others. There certainly seem to be a case for linking exploitation of natural resources to human rights violation in certain countries. However, the NTNU authors rightly point out that developed countries should fine it in their own interest to promote peace through the transfer of aid and technology to less-developed countries. Something that the developed world could perhaps have emphasised stronger at last week’s Bali negotiations and ought to keep in mind in their work towards the next climate summit in Copenhagen in 2009.

You can read about the NTNU study here from Science Daily and in its full length in Population & Environment Vol. 28, No. 6, pp.337-353 (available through Springerlink).

Sunday, December 16, 2007

The Scottish Government and its (lack of) Adherence to European Environmental Law


In light of Gerd’s excellent post on the Trump saga, today’s news from the Sunday Herald on the number of alleged breaches of European environmental law by the Scottish Government, does perhaps, not appear surprising. The article in the Sunday Herald is unfortunately the only information I have been able to obtain on the matter but here is, nevertheless, a short account of the story.

It is alleged that over the last six years the Scottish Government (former Scottish Executive) has been facing infraction proceedings for more than 60 specific breaches of European Community law relating to the environment. This number is in sharp contrast to the 32 breaches that the Scottish Government had admitted to be facing, in 2005, when asked to reveal the figures under then recently passed Freedom of Information legislation. The latest number of breaches only saw light after the Freedom of Information Commissioner (Kevin Dunion, who previously happened to head Friends of the Earth Scotland), ordered the Scottish Government to release the information. The breaches relate to a series of different areas of environmental law from waste, nature conservation and over fishing to control of sewage and lack of control over ozone depleting substances. In short, a full range of the EC’s environmental law pallet.

Although the breaches stem from the reign of the previous Labour administration, the onus is now on the current SNP government to make sure that this lack implementation, if not disregard, is changed. Thus, stronger commitments from the SNP to the environment are certainly welcomed. However, First Minister Salmond’s handling of the Trump application does not inspire confidence. At the same time, it is worth keeping in mind that many of the recent improvements of environmental law that have without doubt taken place in Scotland in general over the last decade, owe much to European law and less to Scottish benevolence towards the environment.

SNP – Scottish National Planning?

Scotland, the home of golf and an incredible number of golf courses is debating about yet another course. Donald Trump, the American multimillionaire applied for permission to establish a new ‘world class’ golf development complete with two championship golf courses and 1500 homes. Yet, rather than being grateful and hailing the millions of dollars potentially coming into Scotland, the nation is split into two camps. The crux is multi-layered – the golf course itself would impinge on one of the major conservation areas in the Northeast of Scotland; the residential development provides places for 1500 people without providing all the facilities and amenities that one would need in life – no shops, no medical surgery – a small town with just residences. The fear therefore is that it is only for the American super-rich and traffic in the area would significantly improve. Oh, by the way, it appears that one farmer has not agreed to sell his lands right in the middle of the prospective golf course, so there might just be another problem. On the plus side, though, many people hope for Trump’s millions to boost the local economy and industry, the creation of new jobs and the entrenchment of Scotland’s place on the global golf atlas. Emotions are running high and Scotland’s Northeast is polarised. But where is the legal aspect? Coming up, right here, stay tuned.
As if this controversy was not enough, a procedural dispute is added by the Scottish ‘Government’
[1]. Aberdeenshire Council, the competent planning authority, decided to decide on the planning application in its Infrastructure Services Committee (ISC). The application got rejected by the narrowest majorities possible – the casting vote of Committee chairman Councillor Martin Ford. The next day Finance Secretary John Swinney called the application in because of the national importance of the development.[2] The Scottish ‘Government’ obtains the right to call in applications from section 46(1) the Town and Country Planning (Scotland) Act 1997[3]. Yet, this is supposed to happen before the decision on the application. The Secretary of State can require any application ‘to be referred to him instead of being dealt with by planning authorities.’[4] And it makes sense at that stage, as there may be planning decisions that affect more than just a region so that all consequences can only be fully assessed on an higher level. However, the decision was taken by the planning authorities. Why exactly did the ‘Government’ call the application in before the decision was taken? The project and its importance have by no means be secret. Did the ‘Government’ assume the ‘right’ decision would be taken anyway due to the SNP majority in the Council? After the planning decision, the applicant has the right to appeal the decision or re-submit the application.[5] Notably, the Trump Organisation decided to do neither.[6] The existence of an appeal procedure to the Secretary of State (Section 47 Planning Act 1997) re-enforces the view that the ‘calling in’ of an application is not supposed to ‘correct’ a lawful application refusal. There are two ways for a Secretary of State to correct a lawful planning decision. The applicant can appeal against a rejection of an application or an attachment of conditions, section 47 Planning Act 1997. In contrast, sections 65, 68 Planning Act 1997 provide a procedure for the Secretary of State to amend a granted planning permission on its own initiative, where he considers this ‘expedient’. None of these procedures is applicable here. The Trump Organisation did not appeal and the application was refused.
The SNP later claimed that the ‘application’ was called in when there was still a question whether or not the Committee’s decision was final. As lawyers we might be inclined to accept that there can be doubts about the correct interpretation of any rule, even though it kind of makes the competent Minister (and its office staff) of the Scottish ‘Government’ appear as if he (they) would not know the planning procedures very well, highlighting the two (legal and non-legal) meanings of the term ‘competence’. Yet, even granted such doubts, it has been established since then that Committee’s decision was, indeed, final.
[7] So, how can the Scottish ‘Government’ possibly attempt to base any decision on such doubts? By law the decision was final from the time it was taken. Doubts about that cannot affect its legal status. Thus there was no application any more for the ‘Government’ to call in. The original application had been rejected. The procedure was closed.[8]
Curiously, this happened after Alex Salmon, First Minister of Scotland, met Donald Trump in a five-star hotel in Scotland.[9] The Scottish ‘Government’ claims there was no connection whatsoever between the two events. Salmon, and subsequently the SNP, later argued he was entitled and even bound to do so as constituency Member of the Scottish Parliament.[10] The matter concerned his constituency and he had previously met the opposing farmer and ‘Sustainable Aberdeenshire’, a local group opposing the project, too.[11] Why exactly he drove to the meeting in his First Ministerial car and why the meeting took place well outside his constituency[12] remains open so far. (Note in contrast that the meeting with ‘Sustainable Aberdeenshire’ had to be in his constituency office and appears to have been difficult to arrange. [13])

Epilogue:
Two weeks after his casting vote on the matter, the Committee’s chairman got sacked from that position.
[14] Aberdeenshire Council voted him out 26 to 10 with 29 abstentions.[15] This might be yet another evidence for the controversy of the decision and prove that the majority of the Council was unhappy with the substance of the decision. However, it also leaves a feeling of unease, because he appears to have been sacked for doing his job, not to mention the shadows it casts over the integrity of the planning system.[16] As Councillor he was democratically entrusted by his constituency with making decisions on their behalf. So he did. The Council considered him trustworthy enough to chair the Committee. So he did. This potentially included a casting vote. Such he gave. His decision in its substance may not have been to everyone’s liking. Yet, he did exactly what he was elected for – by the people and their representatives. The assessment of the sacking depends on the nature of the Chairman’s position. Should the Chairman base his or her decision on what he or she believes is the Council majority or rather on what he or she personally believes to be the right decision on the specific matter for the applicant and the people? The unease about the sacking stems from his making a difficult decision on behalf of the people – as was his job – but getting the Council majorities in a highly controversial matter wrong.
There may well be a reason to reconsider the planning system and leave such controversial and important decisions to the full Council, so as to enable a wider representational basis.
[17] However, at the same time the Council should re-assure the people of the Northeast what the planning process is for. The leader of the SNP group on Aberdeenshire Council, Joanna Strathdee, said that the confidence in the planning process would need to be restored. Interestingly, she talked about the business’ and wider community’s confidence whilst at the same time attempting to show to the world that ‘North East Scotland really is open for business and serious about inward investment.[18] Should we wonder at this point whether ‘Sustainable Aberdeenshire’ and the ‘Royal Society for the Protection of Birds’ representing local people and environmentalists and opponents of the project are not within the wider community? Is the planning process in the Northeast of Scotland only supposed to help business?[19] The Trump incident makes it appear as if it was open to financial pressure or even ‘blackmail’, in which you can buy your planning permission if only your bid is high enough. Can politics trump a due planning process? What is the view of the Scottish National Party?
After all this, can the Scottish ‘Government’ still reject the project? Politically, they would lose the rest of their credibility. Yet, if they grant planning permission, there should great opportunities for specialists in planning law. It should be possible to prove a lack of objectivity in the planning process of this case.
It appears that the Scottish ‘Government’ has not served its people very well here.



[1] To explain the quotation marks for the non-Scottish reader, devolution only knows a Scottish ‘Executive’. The Scottish National Party, SNP, however, decided to re-brand the ‘Executive’ into ‘Government’. Thus, London refers to an ‘Executive’, Edinburgh to a ‘Government’.
[2] http://www.aberdeenshire.gov.uk/news/release.asp?newsID=599
[3] Hereinafter referred to as Planning Act 1997.
[4] Section 46 (1) Planning Act 1997, emphasis added.
[5] http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[6] Cf. the statements in http://news.bbc.co.uk/1/low/scotland/north_east/7127760.stm and http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[7] http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[8] Therefore, (SNP) Council Leader Anne Robertson’s comment, "If the decision of Ministers to call this application in keeps it alive, then we welcome this intervention." (http://www.aberdeenshire.gov.uk/news/release.asp?newsID=599) is inherently wrong. Legally, the was nothing that could have been kept alive. Instead, the ‘calling in’ would have to be seen as
a reanimation attempt.
[9] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[10] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm and http://news.bbc.co.uk/1/low/scotland/north_east/7142344.stm
[11] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[12] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[13] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[14] http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[15] Three Councillors were not present for the vote. Cf. www.aberdeenshire.gov.uk/news/release.asp?newsID=601, http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[16] In this regard, I would very much agree with the concerns voiced by Councillor Ford. Cf. http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[17] Cf. http://www.aberdeenshire.gov.uk/news/release.asp?newsID=601 and http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[18] http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm (emphasis added).
[19] Joanna Strathdee, SNP leader Aberdeenshire Council, considered Councillor Ford’s position as Committee chairman as untenable because of his decision.

Wednesday, December 12, 2007

The International Transport Workers' Federation and The Finnish Seamen's Union

Yesterday the ECJ delivered yet another judgment in one of the most fascinating areas of European law – the intersection and conflict between social policy and European internal market laws. The judgment in the matter C-438/05 The International Transport Workers' Federation and The Finnish Seamen's Union is a preliminary ruling in a reference from the Court of Appeal (Civil Division) (England and Wales).

The case concerns a Finnish shipping company (Viking Line) that decided to reflag its ship to Estonia in order to benefit from lower wage costs. The International Transport Workers’ Federation took collective action on behalf of the Finnish seamen in order to dissuade Viking Line from effecting the proposed changes. Viking Line felt aggrieved by the action because it was of the view that it breached the company’s freedom of establishment per Article 43 ECT.


The EU Observer reports that the case ‘was closely followed across the EU as it appeared to encapsulate much of the debate on whether cheaper labour from eastern European member states - who joined the EU in 2004 - would undermine the higher labour protection of other member states, particularly in Scandinavian countries...Trade unions billed the case as one where the EU's internal market rules were pitted against social rights.’


The ECJ held inter alia that, although the right to strike is a fundamental right, the exercise of that right may be subject to restrictions. Those restrictions include the prohibition of collective action that is aimed at inducing an enterprise to enter a collective agreement that would preclude it from exercising its freedom of establishment. Another important aspect of this judgment is the emphasis that an undertaking may rely on Article 43 ECT as against a trade union. It will be left to Court of Appeal to apply the interpretative guidelines to the facts of the case.


To my mind, this is yet another example of the ECJ emphasising the free market ideal over social rights. Notwithstanding broader concerns, I must admit that I do think that the Court got it right on this occasion. The alternative would have denied workers in new Member States of some of the benefits of the internal market. Yet as part of the wider conflict between socially protective norms and the establishment of the internal market, there will certainly be many who feel that the EU is indirectly dismantling rights that the European polity has struggled to establish over the centuries.

Sunday, December 09, 2007

Will Don Quixote Have to Learn to Fly?



In Cervantes’ classic novel from the early 1600’s, Don Quixote de la Mancha bravely, but rather foolishly, sets out to fight windmills, which he mistakes for being the giants that any decent knight must fight. Although the encounter leaves Don Quixote battered, it now looks as if he will have to learn some new skills to keep up the fight.

According to today’s New York Times, flying wind turbines might be a thing of the future. Although this might seem a bit far fetched, it has certain advantages. For instance, the wind blows constantly and steadily in the altitude of 10.000 feet and some estimates suggest that the flying turbines at that altitude will be able to generate energy at a very competitive price per kilowatt, compared to conventional methods of on-the-ground production. The NY Times reports that the turbines have the potential to prove particularly useful in rural areas and, so far, interest has been registered from a number of developing countries. However, some problems remain. One such is the issue of maintenance – aircrafts require a lot of it and problems of actually operating the turbines will prove tricky as well. Nonetheless, any green method that has the potential to contribute to the lowering of emissions causing global warming deserves attention as well as a fair share of funding. In the meantime, we await response from the birdwatchers.

You can read the NY Times story here and an article on similar projects from the Economist here.



Science at the Circus

A report concerning ‘Wild Animals in Travelling Circuses’ concludes that there is no scientific evidence to support a ban on using wild animals in travelling circuses. The Working Group that composed the report was chaired by Aberdeen’s own Mike Radford, who must be a very brave man for having chaired a group that included staunch animal welfare activists, and circus owners whose livelihood depends on the status quo remaining unchanged.

The findings of the report go to the very heart of the debate concerning the precautionary principle. The report finds that the role of science (that is so often touted by environmentalists) must be limited in some cases. Indeed, it is right to say that legislative and administrative action is taken within certain bounds of rationality – in other words, there are certain questions where science can provide strong policy guidance, there are questions for which science can give an indication, and then there are questions where science provides no evidence whatsoever (read more here). According to Mr Radford’s report, the circus issue falls into one of the latter two categories:

"The overriding conclusion of this exercise is that our present state of knowledge about the welfare of non-domesticated animals used in circuses is such that we cannot look to scientific evidence for a steer in the development of policy; it is, ultimately, an entirely political decision. Once the relevant policy is decided upon, its implementation is essentially a question of politics and law; science, on this occasion, provides no relevant guidance as to the appropriate principle to be adopted."

The report was welcomed by industry. In contrast, Jan Creamer of the Animal Defenders International told the BBC that the study was an "utter waste of time and effort...We warned that Defra's insistence on only looking at scientific studies would result in too little evidence, because this is not a subject that has been of academic interest - so the studies are not there. However, there is a great deal of observational evidence including studies and video that indicates that animals in cages on the backs of lorries, constantly travelling in deprived and unstable environments, compromise animal welfare. What we need is a dose of common sense in this decision.”


So are environmentalists trying to have their cake and eat it? Can a ban be justified when we reasonably suspect, but simply do not know for sure, that harm is being done? While I have no doubt that science is of the utmost importance (see here), my view is that environmentalists are right to say that we cannot ask questions of science that cannot be answered. This is indeed a policy decision and the overriding political will, based on a reasonable and humane rationale, does seem to be opposed to wild animals being used in circuses.

Saturday, December 08, 2007

Europa - quo vadis?

I suppose that everybody takes something different from an academic presentation. A spin-off discussion from yesterday’s lecture and seminar by AG Sharpston concerned the functioning of the EC’s legal system. On this somewhat hazy Saturday morning, I’ve been thinking about how the legal system could be made both efficient and coherent. The following are some Saturday morning thoughts (which means that they might only make as much sense as Friday night was sober – you may be the judge of that).

It seems to me that the time has come for the Community to rethink its legal system completely. The legislative process is not entirely fit for purpose. A system of regulations and directives makes sense in the context of a Community whose competences are limited. However, Europe is fast-approaching a time when it will need to think in terms of Codes and Acts. Piecemeal legislation cannot be sustainable in the long-run.

To my mind, the debate regarding the possible adoption of a European Contract Code illustrates the inevitability of rethinking European law – we are faced with a choice between piecemeal legislation that is internally incoherent and that corrupts national laws of longstanding, or a codification of private law in a manner that has never before been performed. Neither option is risk-free, but it does seem that a thoughtful and calculated approach to codification would be preferable to the current practice (see the Principles of European Contract Law).

If we are to have European Codes and Acts, we will also need our courts to come up to speed. The ECJ cannot cope with a bigger volume of legislation if it does not become the apex of a more federal judicial system. We would need national courts to be complemented by European circuit courts, or we would need to allow national courts to adopt a truly European role, including the obligation to address new matters of interpretation. In any event the ECJ would then take on an appellate role, rather than a complementary role in reference procedures.

Any thoughts in the comments section would be much appreciated.

Thursday, December 06, 2007

But seriously, who is your daddy?

DIY sperm donation is a financially risky business. So says the Human Fertilisation and Embryology Authority after Andy Bathie was ordered to pay £400 per month in child support to his two biological offspring (see news reports here, here and here).

Andy donated sperm to a lesbian couple on the condition that he would not play any part in the parenting of the children. He explained that "These women wanted to be parents and take on the responsibilities that brings. I would never have agreed to this unless they had been a committed family. And now I can't afford to have children with my own wife - it's crippling me financially." The crux of Andy's problem is that he did not donate his sperm through a licensed fertility clinic. He is therefore not exempted from parental responsibility.


To add insult to injury, the non-biological mother bears no responsibility for the child’s maintenance. The House of Lords is presently discussing a Child Maintenance and Other Payments Bill that would give equal responsibility to the non-biological parent. However, as Natalie Gamble, a fertility law expert explained to The Guardian: "Currently a non-birth mother in this situation is not automatically recognised as the parent in law, so she is not financially responsible. If the law being proposed was to apply in Andy's case, his responsibility for the child would be passed to the non-birth mother."


Is Andy Bathie a victim of the law not keeping up with social developments, or is he simply a victim of his own folly? Is the law as its stands logical and social development flawed? There certainly is an argument on either side of this issue. My view is that the law has some catching up to do in societies where non-traditional families are accepted, and that both society and the law have some catching up to do where non-traditional families are not accepted. Any other views?

Wednesday, December 05, 2007

My Final Post

As many of you know, I was fortunate enough to be able to submit my thesis last week. Hopefully it will produce a good result with the examiners soon. And not a moment too soon as well. As it turns out we may not even be in Aberdeen for much longer, because you really don't know what will happen when you wake up on the morning.

I particularly want to thank two of our colleagues whom I've had the great pleasure to meet, Ole and Jernej, who really helped me a great deal through the whole PhD experience. I'm not sure I would have made it through without their support; and I look forward to reading great work from them in the years to come. Both are great colleagues, and I hope lifelong friends.

I no longer feel it's appropriate for me to continue posting here. I've enjoyed writing here, and I hope others have enjoyed reading it. Of course I'll be continuing my own blog. I wish everyone the best of luck here; I hope you all can maintain the level of informed debate and continue to foster intellectual honesty.

Saturday, December 01, 2007

AG Sharpston at the University of Aberdeen (Updated)


On Friday 07 December Ms Eleanor Sharpston, Advocate General of the European Court of Justice, will return to the University of Aberdeen for the second consecutive year.

She will deliver a lecture to LL.B. students in European Union Law (Institutions and Judicial System)’. The lecture will address ‘The role of the Advocate General’. All are welcome to attend.

Following her recent opinion delivered in Case C-212/06 Government of the French Community and Walloon Government v Flemish Government (the Belgique Francophone case), Ms Sharpston will also deliver a seminar to postgraduate students and members of staff to continue last year’s discussion regarding citizenship of the European Union. The title of the seminar is ‘Civis europeus – quo vadis?’


The programme is as follows:

12:00 ‘The role of the Advocate General’ (Regent Building, Lecture Theatre 12)
15:00 ‘Civis europeus – quo vadis?’ (KCF 22)

Ms Sharpston comes to the University at the invitation of the
School of Law and the Legal Research Society. We are thankful to the Law Society for their assistance in the organisation of this event.

Monday, November 26, 2007

Privilege and Power

There's an interesting apocryphal story told by journalist Bob Costas in Ken Burns' excellent documentary, Baseball. An Englishman and an American are having a conversation, and at some point it becomes an argument. The two resort to insults. The American says "screw the Queen". The Englishman says "Oh yeah, screw Babe Ruth".

The American thinks he can insult the Englishman by insulting a person who has done nothing to achieve her position other than the luck of birth. As Costas says, it has nothing to do with any personal qualities good, bad or otherwise. Who does the Englishman think embodies America? Some scruffy kid who came from the humblest of beginnings, hung out as a toddler behind his father's bar in Baltimore, a big badly flawed individual, who strides with great spirit and possibility.

I thought of that on reading a troubling story regarding the South Carolina State Supreme Court's decision to eliminate the results from one bar exam question, allowing several people to pass who otherwise would have failed. Who are the recipients of the revision? Two young women, one the daughter of State Representative Jim Harrison (R), chairman of the State House Judiciary Committee; and the other a daughter of State Circuit Court Judge, Kendall Burch.

Each state composes its own bar exam, and law students invest tremendous time (and money) during 7 years of higher education to take the exam. This includes 10 weeks immediately before the exam doing nothing but studying for the exam. It's a difficult test to be sure, but all it takes is discipline and some hard work. You learn the rules, and then you're a lawyer. It's not fun to fail, but you can take the test again as many times as it takes. Having passed the bar in the nearby state of Georgia two years ago, I find this story particularly troubling. I can guarantee, if I botched a section nobody would have helped me out and thrown a section out of the exam.

MoneyLaw is an interesting blog on legal academia in the US, which uses as an example the way major league baseball teams scout for talent in the minor leagues. One of the contributors there, and the Dean of Louisville Law School, Jim Chen makes a poignant criticism of the South Carolina Supreme Court's decision:

Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.

The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.

The emphasis is mine. Sadly I think no matter where you go power and pedigree have a way of trumping performance. Why aren't more South Carolinians speaking out? Jim Chen has some thoughts on that as well via conversations he's had with lawyers there:

  • "[In South Carolina,] retribution from the powers-that-be can be swift and brutal. That's not paranoia. It really is how things work here. There are no checks and balances, and if a megalomaniac rises to power, it's lights out."

  • "[Chief Justice] Jean Toal can have you electrocuted if you cross her."

  • And this gem from a commenter on FITS News for Now: “I’m embarrassed to be an attorney in South Carolina right now. . . . First it was the Court’s decision, now it’s the Bar Association bending over and taking it. No attorney is ever going to go on the record and say this, but the entire episode is disgusting, disgraceful and discouraging for everyone associated with this profession. Everyone knows so, everyone thinks so, but (the Justices) hold so much power no one dares to say anything, to say nothing of trying to hold them accountable for it.”
Troubling stuff. One wonders if pedigree outweighs performance at our august institution? Are we free to express our views?

Comments for this post have been closed, as it struck me they weren't particularly helpful.

Friday, November 23, 2007

New Convention on International Child Support Signed Today


“This Convention establishes a comprehensive system of cooperation among child support authorities, which we believe will result in more children receiving more support more quickly.” (USA delegation)


A new global Convention on the International Recovery of Child Support and other Forms of Family Maintenance has just been finalised under the auspices of the Hague Conference on Private International Law. Just after the adoption of the Final Act, the United Stated of America become the first signatory of the new Convention. The Convention aims to resolve the problems of unpaid or uncollectible child support. I posted a brief report about the work in progress on this Convention just a couple of weeks ago.

I had the opportunity to follow the negotiations since I worked as a recording secretary at the Diplomatic Session. I have the pleasure to report that the role played by Professor Beaumont gives the School of Law at the University of Aberdeen much to be proud of. Professor Beaumont was a Delegate of the United Kingdom, but more importantly he was a delegate who built bridges and sought compromises that made the success of the negotiations possible. He chaired a working party that accomplished important agreements late in the negotiations, and he was also a member of the Drafting Committee and several other working groups.

Delegates from 68 States, the European Community, and other organizations represented by, in total, 268 experts, attended the Diplomatic Session on the International Recovery of Child Support & other Forms of Family Maintenance from 5 November – 23 November 2007. 68 States and the European Community signed the Final Act of the Session in the presence of representatives from the Netherlands Ministry of Foreign Affairs, Ambassadors of Member States and other Diplomatic Representatives.

This was followed by the signing of the Convention by the United States of America. The example set by the USA is expected to be followed soon. The United States delegation stated the following:

The United States is delighted to sign the new Hague Convention on the International Recovery of Child Support, which we believe represents a major step forward in the development of a global system for enforcement of child support obligations in transnational cases. Every child deserves the support of both the child’s parents. And yet recovering child support when the child and one parent are in one country and the other parent is in another is difficult and often impossible. The legal and practical obstacles often mean that little or no support ever reaches the parent and child. Given the importance of this topic to U.S. families, and because the number of transnational cases will continue to increase, the United States has been an active participant in this negotiation. This new convention is necessary to modernize and improve the existing international system, which is outdated and does not meet the needs of an increasingly global world.

As stated in the Preamble of the new Convention, what is needed is a system which produces results, and is accessible, prompt, efficient, cost-effective, responsive and fair. The Convention is designed to achieve those goals. In particular, the Convention establishes a comprehensive system of cooperation among child support authorities, which we believe will result in more children receiving more support more quickly.

We are pleased to have signed the Convention, and we hope that other States, from every region of the world, will quickly join us. We look forward to working with other States and the Hague Conference on the important work of implementing this Convention in the United States and all around the world.

The official press release concluded that, together with the existing Hague Children’s Conventions, like International Child Abduction (1980), Inter-Country Adoption (1993), and International Child Protection (1996), the new Convention will now form part of the formidable arsenal of international instruments designed by the Hague Conference to give practical effect to the Rights of the Child.

Milkshakes and Hybrid Cars

Today’s NY Times has an interesting story on the perks and benefits many US law firms offer their employees in an attempt to keep them from leaving for other firms. Some of the perks include milkshakes (benevolently served by the happiness committee) and cold cash when you buy a hybrid car. Other firms offer money towards mortgages whereas others give their associates the choice of having a personal concierge to run errands for you. You can read the article here and figure out for yourself what the motives behind the largesse may be.

Tuesday, November 20, 2007

Private International Law in Africa to the Fore


Conflictoflaws.net reports upon the following article written by Richard Oppong: “Private International Law in Africa: Past, Present and Future” (2007) 55 AJCL 677-719. The abstract can be found here. I had the pleasure to listen to a presentation by Mr Oppong at the Journal of Private International Law Conference held in Birmingham in June. I must say that the development of Private International Law in Africa, and the necessity of a private international law revival for economic development, is a truly fascinating subject. Mr Oppong's article is published at a time when the Hague Conference on Private International Law is doing sterling work to promote the development of the legal discipline in Africa. Amongst several other initiatives, the Hague Conference recently organised a seminar for francophone African Judges, reported here. I hope to find the time to comment upon the importance of these developments more in future. Till then, I would strongly recommend Mr Oppong's article to anyone who has an interest in Private International Law and/or African legal systems.

Is Europe Turning Right?


Following recent elections in Denmark and Switzerland one would perhaps not be deemed far off the mark for thinking so. In Denmark, last week’s election meant that the centre-right government of Anders Fogh Rasmussen remains in power, although with a slightly smaller majority than before. In spite of his party loosing six seats in the Danish parliament, Fogh Rasmussen remains in power thanks to support from a strengthened Danish People’s Party – a populist far right anti-immigration party. In Switzerland, the far right Swiss People’s Party gained a record number of seats in the Swiss federal parliament and strengthened its position as the single biggest party in last month’s election. The Swiss People’s Party’s campaign, among other things, included a proposal prohibiting the building of minarets on mosques and a poster portraying three white sheep standing on the Swiss flag while kicking a black sheep off the flag. The results in Denmark and Switzerland follow general elections in Sweden and France, which, in 2006, saw the right-of-centre Frederik Reinfeldt becoming prime minister in Sweden (a country otherwise known for embodying moderate socialist policies) and, in 2007, Nikolas Sarkozy becoming president of France following a twelve-year reign of Jacques Chirac.

Although some of these results are no doubt more to do with national voters being unhappy with incumbent governments (for a number of reasons), as was the case in Sweden, rather than an actual change of ideological heart, the result in Switzerland, and to a lesser extent Denmark, do give cause for concern. In particular given the, at times, xenophobic, and other times outright racist, tone of the election campaign in Switzerland and the general political debate in Denmark. Notwithstanding the fact that governments come and go, and so do ideological sentiments among the electorate, perhaps comfort can be found in the forthcoming US presidential election where Bush’s and the Republicans’ time appear to be running out.

Monday, November 19, 2007

Real Politicians, Fake Photos



Real Politicians, Fake Photos

I have heard that appearances are deceptive but images can be deceptive too! I just came to know that Photoshop is quite popular with politicians now-a-days to create audience for their large public rally? I have to say it was a revelation for me that politicians can ridicule themselves in such a ludicrous manner. A couple of days ago I received an article written by Murtaza Shibli (Editor, Kashmir Affairs, London http://www.kashmiraffairs.org/) about this subject. I was interested in this topic because he mentioned among others Chief Minister of the Indian occupied Jammu and Kashmir; Ghulam Nabi Azad uses photo-editing software to manipulate crowds to show the world community how much public support he enjoys. (Photo attached)

In Kashmir from last 60 years people are claiming self-determination and are victimised by the State terrorism. The surrogate local government in Kashmir has to survive on political spin and therefore unethical methods of staying in power seem necessary, like photo-shopping the audience. These phantom impressions may not however conform to the inept statements they make. Mr Azad made a statement on 6th August 2006 that during his brief time in office only 2395 civilian deaths, 27 custodial killings and 15 disappearances were recorded as against his erstwhile government whose record was worse with 6024 civilian deaths, 67 custodial killings and 60 disappearances (published in Greater Kashmir Daily, 7th August 2006). The real figures are much higher by admission of his opposition colleague PDP President Ms Mufti but even these pointers speak of a clear declaration of guilt that Government of India cannot deny. The Minister may use euphemistic self-praise of reducing atrocities but misses the point that atrocities are committed by them in the first place despite that have a semblance to the pageantry of photographic crowds. Thanks to the media who exposed him recently.

Fozia Nazir Lone
Doctoral Candidate
University of Aberdeen
f.lone@abdn.ac.uk

Tuesday, November 13, 2007

Giving a Good Paper

Tenured Radical has some excellent advice on how to give a good paper presentation that I strongly recommend folks take a look at if they are going to be presenting any time soon. Linda Kerber has more good advice, and the Legal History Blog talks about how to incorporate all this into a legal presentation. Here are some excerpts.

First, Kerber observes:

Dorothy Kenyon, a great feminist and civil rights activist, who spent much of her time speaking in public, once observed that a public talk must “always seem to be improvised, but it must never be improvised.” If you want to hold your audience you must plan ahead, and plan very carefully.

Observe time limits scrupulously. The usual rule of thumb is that a typewritten page [old fashioned courier, 12 point type] holds 250 words. It should take a minimum of 2 minutes to say 250 words out loud. If you have 20 minutes to speak your paper, it can be no longer than 10-12 pages. Do not think you can cheat by fixing the font. Begin with a paper that is 10 pages long...

Generally it is not wise to improvise during the paper presentation. The better you know what you are going to say, the less dependent you will be on your written text, and the more your planned talk will give the impression of informality and improvisation. (See Kenyon Principle). The more you improvise during the formal paper, the greater the dangers of rambling and going off on tangents. Save your improvisatory energy for the question period, when you will need it.
I think that's great advice. In the past I've always tried to sketch the bare outlines and then improvise the rest. In hindsight I don't think that works best. Tenured Radical offers more advice:

Reading really fast to make up for the fact that your paper is too long is not an option. People just stop listening. It is perfectly fine -- and often useful -- if you find that you have no more to cut, to stop in the midst of the paper and gracefully summarize what you have cut, offering to address it in the question period (for which you have just left time.)

Display a sense of humor. Tell a funny story, say something amusing that happened during the research, or relate an odd misunderstanding that will get a laugh. Turn errors into an opportunity for a laugh. If you flub a word, or a sentence, rather than blushing, making a face that says "God, you must think I'm a dork," and rushing to correct yourself; pause, smile, and say -- if the error is some kind of Freudian slip -- "Well, wouldn't that be fun," or "Oh my goodness!" or "I'm sorry, I can't seem to read my own handwriting." But for Goddess's sake, don't encourage people to feel sorry for you.

Interact. This means catching the eye of people in the audience, and speaking directly to them. It means that if you don't go first on the panel, making a gracious connection to the speakers who have preceded you; or picking up on a theme of the keynote. It can mean thanking the people who invited you to campus (a must! and include the departmental secretary who made all the arrangements), or the person who put together the panel in the first place. It can also mean acknowledging people in the audience whose work will be referred to directly or indirectly in your paper, and it means acknowledging the expertise of others in the room when you make a brief reference to something in their line. For example, "I can't get into this point now, but of course this phenomenon has its origins in the Truman administration -- something the students of Professor Y who are in the room can probably speak to in the Q & A."

If there is any general principle that all of this falls into, I would say it is this: giving Good Paper relies on enhancing the comfort of everyone in the room, starting with yourself but not ending there; and conveying your research to people in ways they can understand and respond to. Having a good paper -- one that is intelligent and well-written, and conveys the new things about your work without couching them in a lot of unnecessary jargon or too much context that we are familiar with already -- is important. But presentation is also important, and it is a learned skill. Watch people who do it well and ask yourself why; ask those people questions about the choices they made; and, as the apocryphal New Yorker once advised about how to get Carnegie Hall, practice, practice, practice.

Practice is key, I agree. These are aimed at an American audience, but not a legal one. I'm not so sure if some of those self-deprecating tips would go over too well to an audience in the UK. In my experience giving talks here comports more to the standards of other social sciences (such as history, etc.) than legal academia in the States. Mary Dudziak higlights this kind of difference, in talking about the convention of reading from a prepared text or speaking extemporaneously:

This is often discipline-specific. Historians usually read papers, but that means delivering a written text, not a pedantic reading. A challenge for legal historians is that law schools and law conferences (e.g. AALS & Law and Society Assn.) are cross-disciplinary, so you have to expect that some folks will be less receptive to someone reading a paper. ...

At the transition from the beginning to the body of the talk, experienced speakers often say: "today I'm going to discuss (fill in one to three points from your work that you'll take up in your remarks)." This is helpful to your audience and gives them a roadmap for your talk. Setting up the talk well may allay concerns of non-historians that you are just storytelling with no analysis...

Especially for newer scholars, even if the convention at the school or conference is to speak extemporaneously, it is usually a good idea to have at least the narrative part of your paper written down for you to deliver. The crucial point is that it must be delivered especially well. For this, there's no substitute for practicing it over and over again, out loud, to whomever will listen, even if it is just your cat. When you do this, you'll find that -- often without trying -- you'll end up memorizing much of your paper, which will enable you to speak through it in a more polished way, with plenty of eye contact with your audience.

I usually practice with my dog. If he leaves the room I take it as a sign my delivery needs more work. I don't know if this particularly useful or helpful for folks, I think it will help me. I'm not sure what the state of the current core-skills class is, but this seems to be the kind of thing we should be getting help with. One of my frustrations with that program is it seems to work to get everybody at a minimum level, while not giving good advice on some of these other more advanced and perhaps more sought-after skills.

Monday, November 12, 2007

A New Convention on International Child Support




Approximately 100 States have gathered in the Hague to conclude a new Convention on the international recovery of maintenance obligations. The following are some extracts from the press release that was issued at the beginning of the Diplomatic Session:


"A new Convention…designed to respond to the needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair."
Unpaid child support – as well as support of other dependent family members – amounts to billions of Euros worldwide. When the person liable for support lives abroad, the difficulties of recovery are often insurmountable. At present, international procedures are typically slow, complicated, costly, and under-utilized. They are simply not serving the needs of the children and other family dependents who, in a mobile world in which multinational families are no longer exceptional, are increasing in number exponentially. The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is designed to respond to the often modest needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair.

The XXIst Diplomatic Session of the Hague Conference on Private International Law, to negotiate the new Convention on the International Recovery of Child Support and other Forms of Family Maintenance, began with an Opening Ceremony on Monday, 5 November 2007 at the Academy Building of the Peace Palace (The Hague) in the presence of the Dutch Minister of Foreign Affairs, Maxime Verhagen, and the Minister of Justice, Ernst Hirsch Ballin. The Diplomatic Session will conclude on Friday, 23 November 2007 at 11:00 a.m. with a Closing Ceremony and signing of the Final Act in the Academy Building of the Peace Palace in the presence of the Minister of Foreign Affairs, Mr. Maxime Verhagen, and the Diplomatic Representatives. Delegates from more than 100 states as well as non-governmental and intergovernmental organizations are invited to participate.

The Hague Conference is the worldwide intergovernmental organisation for cross-border co-operation in civil and commercial matters. It has 67 Members located on every continent. Furthermore, more than 125 States are Parties to one or more Hague Conventions. Please see the Hague Conference website for more information.

Sunday, November 11, 2007

Lest We Forget



Collective memory is a curious thing. Just weeks after rampant abuses of human rights were screened worldwide from Burma, it seems that the plight of the Burmese people has slipped out of the world's collective conscience. Le Monde reports today on the visit of the UN emissary on human rights to Burma. Perhaps it would be over optimistic to hope that this visit will have any immediate impact or ascertain the facts of the extent of abuse with any degree of certainty. However, it is commendable that the UN is using its good offices to ensure that the world does not forget the human toll of contemporary breaches of international law.

Wednesday, November 07, 2007

State Funerals and Mince Pies


The BBC News website today has a story on the most ludicrous laws in the UK. The story refers to laws supposedly prohibiting dying in the House of Parliament, the right for a pregnant woman to relieve herself anywhere she sees fit, and (my favourite) the prohibition of eating mince pies on Christmas Day. I can see the prohibiting of eating mince pies on Christmas Day causing a few problems in terms of enforcement. The story notes that many of the laws referred to may now be obsolete although they have never been repealed. Although these are just a few examples of strange UK laws, it would be surprising if even stranger ones would not exist elsewhere in the world.

Tuesday, November 06, 2007

Upcoming Presentations

Thursday November 8, at 17.00 in C28

"The Lex Situs Rule: A Poor Tool for Combating the Illicit Antiquities Trade" - Derek Fincham, in anticipation of the upcoming conference Location, Location, Location: the Role of Lex Situs in Modern Claims for the Return of Cultural Objects.


Application of the lex situs rule is nearly unanimous in multi-jurisdictional cases involving movables. It has the dual advantage of simplicity and certainty. If an object has been acquired in good faith, the acquisition will be protected even if the location of the object changes in the future. Courts have been hesitant to bypass the lex situs rule in the past. However the singular nature of art and antiquities compel a more careful analysis on the part of courts. A convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations involving cultural objects. Before we can construct a new legal framework, we must understand how vulnerable cultural objects are under the default private legal remedies.

Tuesday November 13, at 17.00 in C28
"The Enforceability of Electronic Contracts" - Enas Qutieshat

I will give a general view on the structure of my thesis, the purpose for choosing this subject and I will high light some points which I found that could challenge the contract law in its current shape, such as the use of electronic agents and the notion of will in contract formation. In addition, I am willing to give a brief distribution on the formation of electronic contracts and their validity.I hope to get some feedbacks from my colleagues on both the structure and content of my work.

Tuesday, October 30, 2007

Roundtable Discussion: Iran and the Right to Nuclear Energy


On Thursday 01 November at 5pm, the Society will hold its first roundtable discussion of this academic year in Taylor C28. The chosen topic is Iran and the Right to Nuclear Energy. The discussion will be moderated by Paula Herm and Ahmed Hassanein.

Details of the society's programme for the coming weeks and months will follow soon.

Sunday, October 28, 2007

The Prospects of Law


A law degree can lead to many different careers and job possibilities. These include traditional law areas such as litigation, advising and perhaps even teaching the law. In the US, however, it seems that law graduates have an additional option open to them; that of entering the race to become President of the United States. The New York Times has an interesting article on the legal backgrounds of both sides of the current contenders for the upcoming US presidency. The article describes how the three Democratic candidates - Hillary R. Clinton, Barrack Obama and John Edwards - are all law graduates and that the three Republican candidates - Rudolph W. Giuliani, Mitt Romney, and Fred Thomson - hold similar law degrees. In fact, Sen. John McCain is the only serious contender not holding a law degree. All of the six lawyers have, bar Romney, to some extent, used their law degrees either in private practice or as prosecutors. In addition, Obama and Clinton have utilized their degrees in academia. The article speculates in what ways the candidates respective careers are likely to influence a potential presidency. For what it is worth, the two Republican candidates have spend most of their time as prosecutors whereas the three Democrats have all gone to private practice. Although the fact that six out of the seven serious contenders for the US presidency are all lawyers by education says nothing of the quality of their legal skills nor chances of becoming a successful president, it is indicative of the multiple options available to the law graduate who plays his or her cards well.

Friday, October 12, 2007

Nobel Peace Prize Goes to Vice-President Gore



Former Vice-President Al Gore today won the Nobel Peace Prize for his movie An Inconvenient Truth. Gore’s movie, from 2006, is based on talks and slide shows that Gore toured extensively with after loosing the presidential election to George W. Bush in 2000. It describes the scientific data on, and portrays the effects of, global warming in an easy-to-understand manner. Earlier this year, Gore won an Academy Award for best documentary feature for his movie. Gore has won popular accolades for the film, although it has, at the same time, been criticized for portraying the science behind global warming as overly simplistic, and for exaggerating the facts and evidence. Gore shares this year’s prize with the Intergovernmental Panel on Climate Change (IPCC) – a UN body set up to assess the scientific evidence in relation to human-induced climate change.

The Nobel Committee cites Gore’s and the IPCC’s “efforts to build up and disseminate greater knowledge about man-made climate change,” as well as their endeavours to “lay the foundations for the measures that are needed to counteract such change,” as reasons for the award. The Committee further notes that “[I]ndications of changes in the earth's future climate must be treated with the utmost seriousness, and with the precautionary principle uppermost in our minds” and that climate changes “may induce large-scale migration and lead to greater competition for the earth's resources. Such changes will place particularly heavy burdens on the world's most vulnerable countries. There may be increased danger of violent conflicts and wars, within and between states.”

While the Committee is certainly right in that the effects of climate change, such as drought, flooding, and ensuing restrain on natural resources may indeed leave to conflicts, the choice of Gore as award winner is likely to be received with criticism. This, no doubt, will come from conservative circles in the US where opposition international binding targets aimed at cutting emission of CO2 gasses remains a prominent cause. In addition, the Committee is likely to be charged with choosing the winners for political rather than substantive reasons. Such criticism has persisted since the prize has been awarded to the likes of Yassar Arafat (1994), the UN (2001), Jimmy Carter (2002), and Mohamed ElBaradei (2005). Other winners include Nelson Mandela and Frederik de Klerk, Mother Theresa, and Henry Kissinger. Some of the criticism is arguably correct as Gore’s movie has, in some instances, been shown to twist the facts. In this light, the awarding of the prize to IPCC alongside Gore seems perhaps more apt. However, one reason behind awarding this year’s prize to Gore and the IPCC is to be found in the strong emphasis on the precautionary principle, which is prevalent in European policy and law-making when it comes to environmental regulation whereas the principle plays a minor role in the US. At the same time, little doubt can persist as to the effect that Gore has had on highlighting the significance and the importance of global warming. In times when even skeptical environmentalists concede that global warming is a problem, the fight against global warming deserves all the attention it can get. If the award of the Nobel Peace Prize to Al Gore and the IPCC can contribute to this, it is a much welcomed event.

Wednesday, October 10, 2007

Friday, October 05, 2007

Da Vinci and Art Theft in Scotland


As some of you might have heard already, the Leonardo da Vinci painting Madonna of the Yarnwinder was recovered yesterday by the Dumfries and Galloway Police after it was stolen from Drumlanrig Castle in Dumfriesshire four years ago.

The press has already written extensively about the recovery (see The Times and BBC) but nevertheless it warrants a bit of attention from the Legal Research Society. This is mainly down to our own Derek Fincham, who this morning appeared on the BBC radio programme Good Morning Scotland to give an interview on the significance of the recovery as well as to the general problem of art theft. Derek makes a number of good points, in particular with regard to the vulnerable situation of arts and antiquities stored in Scotland’s many country estates. Listen for yourself here: http://news.bbc.co.uk/player/nol/newsid_7020000/newsid_7029600/7029610.stm?bw=bb&mp=wm&news=1.

As a little side note, it is worth mentioning that four persons were arrested in connection with the recovery; two of which were lawyers.

Read more about the recovery on Derek’s own blog on http://illicit-cultural-property.blogspot.com/

Wednesday, September 26, 2007

Two lectures at University of Edinburgh

Judge Mirjam Škrk, Vice-President of the Constitutional Court of Slovenia will deliver two lectures at School of Law, University of Edinburgh on 11 and 12 October 2007. Here are more details on the lectures:

"A Constitutional Court in a New Member State", 5pm, Europa Institute, School of Law, University of Edinburgh, Old College, 11 October 2007 Venue TBC

"The Agreement on Succession to the Former SFRY: Some International and Internal Legal Implications", 12 October 2007, School of Law, University of Edinburgh, L05, 6-8pm.

Monday, September 24, 2007

Escaping the Law


A couple of factors have put me in a contemplative mood this morning. The first is an outstanding article by Alec Scott, Exile on Bay Street, which details the life of lawyers in big North American law firms. Second, we arrived in Aberdeen two years ago today. In that time I've had a difficult time answering a common question. Why Aberdeen?

I wanted to escape, just like Scott did. His account focuses on Toronto, but surely echoes the experience of any lawyer in any large law firm in any large North American city.
Here’s what you won’t read in the glossy law school brochures, what many practising lawyers know, but deny: the practice of law has become a lousy way to make a living; it breaks all but the highest spirits. The profession can no longer lay claim to being a calling; it has become a soul-destroying business. The big downtown Toronto firms, which used to draw some of the country’s best and brightest, continue to draw its brightest, but no longer hold on to its best. The cynics flourish, while the ideal­ists lag, jump ship or, unable to beat the cynics, join their ranks.
Unfortunately I think that may be exactly right. The billable hour system has taken hold because it allows these large firms to make extraordinary sums of money.

Being a lawyer in 2007 means being a slave to the billable-hour system. Most downtown firms have actual or de facto billable targets for associates ranging from 1,800 to 2,000 hours per year. Not, seemingly, too high a bar, but usually you have to work three hours to produce two hours of billings. “Not long ago, billable at these levels would have been thought unbearable,” wrote Notre Dame law school associate professor Patrick Schlitz in a much discussed Vanderbilt Law Review article published in 1999. Before the billable-hour system became common, companies and individuals with ongoing legal issues would pay a retainer annually to firms for their counsel. Others without regular legal problems would be billed roughly on the thickness of their files—as good a measure as any of the quantity of work put in.

In most big firms now, partner salaries are linked to the number of hours they and associates assigned to their files log. And thus, partners have a financial incentive to drive their associates to bill long hours. A modest proportion of the profits earned is returned to the young lawyer. In blunt terms, what we’re talking about is a pyramid scheme.

Lawyers divorce, commit suicide (or think about it) and suffer from depression at unusually high rates. The legal profession “is one of the most unhappy and unhealthy on the face of the earth,” Schlitz wrote. Some 15 per cent of lawyers in a Washington-based survey were full-blown alcoholics. Over half the lawyers surveyed in a California poll said if they had to do it over again, they wouldn’t go into law. Forty per cent of North Carolina lawyers would never recommend that their children go into it.

Said one lawyer,

“If you want to be a success downtown,” New Father carps, “then go to U of T, take all the corporate law courses, work your ass off, go to Oslers, work your ass off again, and 20 years from now you can look around and say, ‘I have more money than God.’ But let me ask you something: what’s in your photo album?”
The indicators of success as a PhD student are much different than for those who took this path. Shifting gears was difficult for me. It took me a year to be comfortable doing my own thing, and learning to ignore bad advice and silly people. I decided to go in a different direction, but I couldn't do it without the support of Joni who saw how unhappy I would be working like many of my former classmates are now.

Without question all of this appears gloomy, and I do admit I could think of happier matters. In writing this I've been pulled this way and that by conflicting impulses. It's a personal post, which perhaps should not be inflicted on others.

I consider many folks here great colleagues, and I'm fortunate to count many of them as friends. There are others for whom I've had to reserve an empty smile and little else. But even on my worst day as a PhD student when the weather and Aberdonians are doing their worst, it makes for a much better life than the soul-crushing plight of many of my law school classmates. Law teaching is a loophole in life. I don't think many here realize how lucky they are to live in Europe, and in some cases to get paid to think and write about whatever they find interesting.