Pursuing legal studies? Read these books before making a decision.

Must Read for Prospective Law Students. (Equally Relevant for Law Students and Recent Graduates)

The legal education is one of the popular choices on the undergraduate level students in recent years. The increasing number of students, law school and changing perspective towards the legal studies clearly indicates that going to law school is the thing now. There are various factors that have an influence in making any decision relating to an academic pursuit. Through this write-up, I am bringing into discussion the few books that might be helpful for the prospective students and freshmen to better understand legal studies and expand their thinking beyond the textbook and conventional lectures, obviously.

The listed readings are where we can start, it does not follow any hierarchy, and the list is based on my personal opinion. The listed readings are equally relevant to anyone who enjoys a good book and is not an exclusive read for someone in the legal fraternity.

i)                             On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and unethical Profession by Patrick J. Schiltz

This is a journal article publicly available in  http://faculty.law.miami.edu/mcoombs/Schlitz.htm

This article is in the top of the list because of the subject matter and its relevance. This is a plain, simple and short article which discusses the discontent in the legal profession and offer bits of advice to overcome it. The article is divided into three parts which discuss the wellbeing of the lawyers, the Poor Health and Unhappiness of Lawyers, the Ethics of Lawyers, and being a Happy, Healthy, and Ethical Lawyer respectively.

The article is very well written and offers invaluable insights for anyone in and planning to get into the legal profession. 

ii)                          Tomorrow's Lawyers: An Introduction to Your Future by Richard Susskind

This book is not easily available in Nepal but is a must-read for law students, graduates and essentially everyone in the legal fraternity. This book explains how the legal profession is changing and how can that changes be adopted by legal professionals. This book explains what a future lawyer can expect in form of opportunities and challenges.

The simplest way to explain the book, "The legal profession is changing in an unprecedented way. Fellow young lawyers, want to time travel and see what FUTURE is going to look like? Do read this amazing book."

More information and reviews about the book on:  https://www.goodreads.com/book/show/16673373-tomorrow-s-lawyers?ac=1&from_search=true

iii)                       Letters to a Law Student by Nicholas Mcbride

This book can help a law student from day one to graduation and beyond. This book comprises a series of letter to an imaginary law student, Alex. The books gives very practice advice on various issues of legal education including but not limited to how to study law, how to write legal essays/dissertation, and how to revise for exams.

The book includes chapters very relevant to those considering studying law and those doing a law degree. The book will help you do better in law school as it teaches various skills required to succeed in law school. This book undoubtedly is the best book that gives orientation on legal education. It also is must have book throughout law school. This book can teach you what you exactly need to know about legal education in your early days.

More information and reviews about the book on:  https://www.goodreads.com/book/show/2139878.Letters_to_a_Law_Student?ac=1&from_search=true

iv)                       What About Law? Studying Law at University by Catherine Barnard, Janet O'Sullivan, and Graham Virgo

To get into a law school is a huge career decision. This book offers insight on if you really want to make that decision for yourself or your child. This book authored by those having long experience in teaching law gives the best advice and insight to prospective law students.

This book also provides an introduction to the main subjects taught in the law degree. This book is can be considered as a trailer of a law degree or a must read before pursuing a law degree. The book will also be very hand for parents and those seeking to understand the legal education in general. The book also has made a brief analysis of significant cases for prospective students to have a taste of it.

This book obviously helps a prospective student to decide if or not to enroll in a law degree.

More information and reviews about the book on:  

https://www.goodreads.com/book/show/2908633-what-about-law?ac=1&from_search=true

v)                          The Fountainhead by Ayn Rand

Yes, the book is about an architect and revolves around the peripheral issues. This is a 700+ page novel which vividly shows how being different and authentic in a profession where compliance with conventional standards is an easy way to flourish. The books reflect on difficulties of being honest, dedicated and unconventional in a particular profession. The courtroom, case and presentation of the case before the jury by the lead character Howard Roark is fascinating. The adaptation of the book into a movie came in 1949.

And to the prospective law students, if you think the book is too bulky and complicated, maybe you need to revisit your career options.  The book offers the challenges faced in a profession when you are not a mainstream follower.

More information and reviews about the book on:  https://www.goodreads.com/book/show/2122.The_Fountainhead?ac=1&from_search=true

vi)                       Freakonomics: A Rogue Economist Explores the Hidden Side of Everything by Steven D. Levitt, Stephen J. Dubner

This book has the capacity to redefine the way we view the world. The cause and effect relationship might be lot different than what common mind can comprehend. The book sets the new height to reasoning and shows how fragile and false conventional wisdom might be. Upon answering each question, the book leaves you in awe!!! The beauty of reasoning beyond conventional wisdom is the essence reflected in the book.

This book helps in developing the critical thinking approach and tells us not to rely on comfortable conventional wisdom. This lesson is a much-needed lesson for prospective law student and practicing lawyers.

More information and reviews about the book on:  

https://www.goodreads.com/book/show/1202.Freakonomics?ac=1&from_search=true

vii)                    Just Mercy: A Story of Justice and Redemption by Bryan Stevenson

Yes, finally a book about a lawyer, and No, it is not "To Kill a Mocking Bird." This book offers a true story of a real-life Atticus Finch. The story simultaneously shows have huge difference can a lawyer make, and how frustrating it can be at times. The book is move along with the story of Bryan Stevenson (one of the most brilliant and influential lawyers of our time), from law school to the unparallel feat of legal reform in the US through litigation.

If you wish to have a career in the pro-bono area and human rights area or something close this books offers how it looks likes in real. The book will reshape your understanding of criminal justice system in the US and gives you an answer to a basic question i.e. As a lawyer who to do you look up to?

More information and reviews about the book on:  

https://www.goodreads.com/book/show/20342617-just-mercy?ac=1&from_search=true

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viii)                 Outliers: The Story of Success by Malcolm Gladwell

You wish to become the best and the brightest, the book tells you how. The book examines how success is attained and how good become great. This book provokes the thought process and challenges the conventional wisdom. The answer to simple questions may actually resemble a pattern and know which might be in your favor. 

The inclusion of the story of Joe Flom, the last living named partner of one of the most prestigious law firms in New York, “Skadden, Arps” makes the book more interesting for prospective students and lawyers. This is the book you cannot afford to miss. The book will expand your thinking to a new horizon.

More information and reviews about the book on:  

https://www.goodreads.com/book/show/3228917-outliers?ac=1&from_search=true

In closing, these reads will help you understand important things regarding the career choices you are making and about to make. There can be better books which might not have been listed but these books are where we can start with. These books can help you understand your decision in a better way and provide you information to make an informed choice.

Happy Reading!!!

A humble submission to the Supreme Court of Nepal: Please leave activism to activists

‘The end cannot justify the means, for the simple and obvious reason that the means employed determine the nature of the ends produced.’ Aldous Huxley

A clarification in the beginning: The opinion expressed in the matter does not intent to undermine judicial integrity and competence.

The context

On 2nd October 2016, the Supreme Court of Nepal organized a “National Programme on Violence Against Women”. The chief guest of the program was Rt. Honourable President of Nepal and list of guests/participants included Rt. Honourable Prime minister, Rt. Honourable Chief Justice, Supreme Court Justices, head of security agencies, and other dignitaries.

The content of the program among others included a special address by the ‘acid incident’ victims Sangita Magar and Seema Basnet and felicitation of the victims of violence against women. The programme also included a play portraying violence perpetrated by state security officials against women.

The concerns

As reported by the media, Rt. Honourable President Ms Bidya Bhandari has expressed concerns over the content of the program and same has been communicated to Rt. Honourable Chief Justice. Inspector General of Police Upendra Kant Aryal left the program before closing as he concluded that the play tarnished the image of Nepal Police and it was demoralizing for the security institution. Further, justices of the Supreme Court also expressed their dissatisfaction towards the inclusion of the speech of victims’ address (whose case is sub judice in the Court) and content of the program in light of integrity of the Honourable Supreme Court.

Further, President of Nepal Bar Association, Sher Bahadur KC has commented that Supreme Court organizing program under the management of I/NGOs in presence of victims of sub judice case is dishonourable. He also stated that Nepal Bar Association will communicate its concerns in the matter before the court.

Did the Apex Court get it wrong?

Judiciary is the branch of government which administers justice according to law. The courts apply the law, and settle disputes and punish those in conflict with the law all in accordance with the prevailing law. The judiciary applies the law to factual situations and provides a just resolution for the parties as well as for society.  Article 128 of the Constitution of Nepal recognizes Supreme Court as the apex judicial court/judicial institution.

The Supreme Court is recognized as a court of record. The administration of justice and interpretation of the laws is among the basic functions prescribed to and expected from the Supreme Court. The Supreme Court may inspect, supervise and give necessary directives to it and to courts, specialized courts or other judicial bodies under its jurisdiction, in matters relating to the judicial administration or management.  The customary practice and constitutional prescription envision the role of the Supreme Court in judicial administration and judicial management.

Activities of the Court reflecting a form of ‘activism’ does not fall under its mandate and is actively discouraged. The Courts have an essential role that has been guided by the various statutes and regulations related to the court, including Constitution of Nepal 2015, Administration of Justice Act, 1991, Supreme Court Act, 1991, Supreme Court Regulations, 1992, Appellate Court Regulations, 1991 and District Court Regulations, 1994 and none the legislative arrangements includes activism as role of judiciary. The Supreme Court of Nepal organizing a programme in an activist institution fashion is not something that is expected from the apex court of the country.

Further, the Supreme Court organizing the program with the financial assistance of I/NGOs reflect another concern. Adequate funding of the judiciary is a key element in ensuring and safeguarding the independence of the judiciary and judges because it determines the conditions in which the courts and judges perform their functions.

The funneling of external funding in the substantive programme of the Supreme Court is not desirable as similar instances of external funding in the court in different countries have resulted in allegations against court’s integrity.  The adequate funding for the activities of the court must be derived from government. The apex court using I/NGOs’ funds to organize a programme doesn’t reflect the judicial best practice. If the budget of the judiciary is inadequate, this needs to be addressed as a prime concern of judiciary’s financial independence.

When a case is sub judice, reference to the case which might influence the outcome may be open to contempt of court charges. Participation of the victims in a sub judice case in the programme organized by the Supreme Court for special address even in good faith is not a considerate act. Felicitating the victim of violence against women by the Supreme Court does reflect that nature of programme conducted by the court as an activist programme. The involvement of the Supreme Court in felicitating victims, providing space for victims to share their stories, inviting victims of sub judice case as guest speakers, and showcasing play portraying the use of violence by state security officials appears inappropriate.

The voices of victims must be heard and their struggle and stories must be brought forward but this function can and shall be carried out by I/NGOs working in the area. Had the programme been organized by an activist organization in presence of appropriate audience, it would have been appreciable. This is exactly the nature of programme I/NGOs should design and conduct among the general public, academicians, advocates, representatives of NGOs, and other stakeholders. The fact that the Supreme Court was the organizer of the programme and the audience were justices makes the program inappropriate irrespective of all the other aspects of the programme.

Humble submission

In Nepal, various organizations are working on various human rights issues including violence against women. The past experience has shown that they are competent in their activism in various forms. These organizations should be trusted by the Supreme Court in conducting activism for change. Activism programmes are important and significant in their own ways but aren’t within the scope of the judiciary.

The Honourable Court shall concern itself with justice administration and management. The core of judiciary’s role has been and shall be imparting justice. The Supreme Court of Nepal shall perform its role as envisioned in the constitution, as apex judicial institution and the guardian of the constitution. Activities of the Supreme Court marking national programme, if necessary, shall be academic and research-based rather than activism-oriented. Activities of the Supreme Court shall aim at strengthening the integrity of judiciary and capacity building of the Justices.

The program resembling I/NGOs activism shall be discouraged within the judiciary.

___________

Initially published in lokaantar.com on 9th October 2016. 

Link: http://lokaantar.com/en/articles/humble-submission-supreme-court-nepal-please-leave-activism-activists/ 

Question of Jurisdiction, Competence, and Procedural fairness: CIAA's Investigation Against Social Science Baha and ASD

“Outraged by the allegations!!! How can nation’s prominent academic institution do this?” was my initial reaction to the allegation of financial irregularities by Social Science Baha and Alliance for Social Dialogue. However, considering the issues in broader context, I realized that we should be offended by the act of Commission for the Investigation of Abuse of Authority (CIAA).

It is an irrefutable fact that corruption/financial irregularities are zero-tolerance offenses. Anyone culpable in such offense shall bear the legal liability as per applicable laws.  However, the investigation, prosecution, and adjudication of the charges against corruption must be carried in accordance with existing legal provisions. The notion of ‘rule of law’, ‘procedural fairness’, and ‘jurisdictional competence’ cannot be undermined while pursuing charges of abuse of authority, corruption or financial misappropriation.

The concept of rule of law is well recognized universal value which requires that the government, its officials, and agents, as well as individuals and private entities, are accountable under the laws applied evenly by competent, ethical, and independent representatives. The adherence to rule of law requires conformity with the prescribed laws and its scope. Thus, any act by the government and its officials not in conformity with the legal prescription defeats the foundation of ‘rule of law’.

The notion of procedural fairness concerns with the procedures used by a those in authority rather than the actual outcome reached. The fair and proper procedure while making a decision is a prerequisite irrespective of the expected outcome. Any action undertaken without complying with a fair procedure is unjust and does not yield fair and correct outcome. Further, the procedural fairness requirement is basic in case of an investigation. The investigation undermining the procedural fairness fails the legality test. The government and any institutions exercising authority must follow the procedural fairness while doing so. 

In a democratic country, all State apparatus are provided with authority and responsibility which are clearly defined by applicable laws. The authority to exercise such power is limited to the mandate of the state apparatus. The exercise of authority beyond the provided scope is considered as a violation of jurisdictional competence. All state organ must limit the exercise of authority within the substantive scope envisioned in the legislative arrangement. The State apparatus are bound to limit themselves with the sphere of activity over which the legal authority is entitled. The exercise of jurisdiction over issue or subject beyond entitled by law amounts to the violation of jurisdictional competence. The overriding of jurisdictional competence not only merely illegal, it also undermines the notion of division of power and authority in a democratic system.

The CIAA is an apex constitutional body established to curb corruption in the country. The constitution of Nepal has empowered CIAA to investigate and probe cases against the persons holding any public office and their associates who are indulged in the abuse of authority by way of corruption. The CIAA has a clear constitutional mandate with a well-defined scope and jurisdictional competence. The overstepping of jurisdiction by CIAA defeats the constitutional provision and challenges the sanctity of rule of law. The constitutional body performing its duties and responsibilities must abide by the governing laws. The above-discussed concepts of ‘rule of law’, ‘procedural fairness’ and ‘jurisdictional competence’ is applicable to CIAA. The institution with the constitutional mandate is expected to abide by the founding values of justice.

The recent instance of CIAA alleging Social Science Baha and Alliance for Social dialogue (ASD) for financial irregularities upon its investigation has raised some serious questions. This instance has stirred the jurisdictional competence of CIAA, followed by the requirement of procedural fairness, and adherence to rule of law. So has CIAA violated these norms in the matter concerning the investigation of Social Science Baha and ASD?

The CIAA is empowered to investigate and probe cases against persons holding any public office and their associates who are indulged in the abuse of authority. As per the constitutional arrangement, CIAA is not authorized to investigate private or non-government institutions. It is clear that attempt by CIAA to investigate private or non-governmental institutions is beyond its mandate and amounts to overstepping its jurisdictional competence. Both Social Science Baha and ASD being a non-governmental institution does not fall within its jurisdictional scope.

Furthermore, it has been alleged that CIAA selectively used details contained in documents furnished by the Social Science Baha and ASD and has released the charges through a well versed public statement with the aim to defame the institutions. The nature of CIAA probe is inconsistent with the norm of procedural fairness. The investigation subject for CIAA must have been those abusing power in Social Welfare Council (SWC). Under the social welfare council Act, SWC is responsible for the promotion, facilitation, co-ordination, monitoring and evaluation of the activities of the non-governmental social organizations in Nepal.

The CIAA hold jurisdiction and mandate to investigate those exercising authority in SWC if required. Such investigation would have ultimately disclosed the issue of irregularities in NGOs if any. This approach would have been procedurally fair and would have covered the issue of irregularities in a generic manner. However, the press statement of CIAA reflects Social Science Baha and ASD as a primary culprit in the allegation rather than the SWC officials. This approach obviously raises eyebrows on the ulterior motive of CIAA in the investigation.

The approach of investigation and overstepping of the jurisdiction of CIAA in large defeats the notion of rule of law. If the constitutional organ responsible for the investigation of abuse of authority itself undermines the jurisdictional competence and procedural fairness requirement, this is outrageous in a democratic society.

The issue of accountability of NGOs is an important concern and legislative measure has envisioned to ensure the accountability. In this context, it is uncalled for any State institution to overstep its jurisdiction and play ‘Robin-hood’. The least we expect from the State institution is adherence to rule of law, procedural fairness, respect to its jurisdiction, and mandate. It is important that State does ensure accountability from different actors and it is equally important that such is attained by proper means.

The leadership of CIAA and its activities have been subjected to widespread public scrutiny in recent times. There have been instances of ‘fast-till-hunger protest’ with demand for the impeachment of the head of the CIAA with allegations of abuse of authority (ongoing presently as well). There also has been raising allegations that the activities of the CIAA are being directed by personal bias and ulterior motives. The controversy involving the constitutional body entrusted to mitigate abuse of authority is very unfortunate and ultimately weakens the public's trust over the institution.

 In this pretext, CIAA’s newborn interest in investigating institution beyond its jurisdiction certainly raises questions beyond the legality of the action. Any personal bias and ulterior motive should not cloud the judgment of those in the position to exercise power as it tends to undermine the basic norms of legality, rule of law, institutional mandate, natural justice and good governance. The institution like CIAA with constitutional mandate among all must reflect the values entrusted upon it.

In closing, the CIAA’s investigation of alleged irregularities by Social Science Baha and ASD is beyond its jurisdictional competence and mandate. This also violates the norm of procedural fairness and undermines the notion of rule of law.  The CIAA shall apologize for overstepping its jurisdiction and guarantee non-repetition such actions in future. 

We must understand what ‘Aldous Huxley’ understood long before — 'The end cannot justify the means, for the simple and obvious reason that the means employed determine the nature of the ends produced.'

__________

P.S. Initially published on barunghimire.com.np which no longer exisits due to technical reasons.