Articles

Children, Violence, Community and the Physical Environment: Foreword to the Special Issue

Kevin Lalor — Tue, 26 Mar 2013 09:50:37 PDT

Criminalizing Corporate Killing: the Irish Approach

Bruce Carolan — Thu, 08 Nov 2012 03:55:20 PST

The debate on criminal corporate liability in the United States might benefit from a comparative perspective: How have other countries treated the criminal liability of corporate entities? This benefit might be enhanced by focusing on a country with a similar legal heritage to the United States—a country with a common law legal system inherited from the British. And, it would help if that country were concurrently examining the issue of criminal corporate liability. Interesting questions might include: What issues dominate the debate? How are issues of punishment, reparations, and rehabilitation handled? Is a legislative approach contemplated? The purpose of this Article is to offer one such alternate perspective, the Irish perspective.

The Innocence Rights of Sentenced Offenders

Mary O. Rogan — Thu, 31 May 2012 04:20:25 PDT

Civil orders which take effect after a person has been released from a sentence of imprisonment have become more common features of Irish law. Despite representing a major departure from the principle that when a person has served a sentence the state has no further „call‟ on that person, such orders have received limited attention. This article examines some of these new orders, in particular section 26 and section 26A of the Criminal Justice Act 2007. It argues that these orders should be of concern, suggesting that they are likely to act as barriers to reintegration of ex-prisoners, represent a „failure model‟ of criminal justice and have the potential to undermine the presumption of innocence of those released from prison.

Air Passenger Rights:a New Departure in European Aviation Law

Niall Neligan — Mon, 21 Mar 2011 10:11:47 PDT

The purpose of this article is to critically evaluate the legal and economic implications of the framework for passenger rights under Regulation 261/2004 in light of the recent decision of the Court of Justice in International Air Transport Association v The Department of Transport . This article will examine in detail the Regulation,
outlining the major provisions contained within, the legal challenge brought by the International Air Transport Association (“IATA”) and the European Low Fares Association (“ELFA”) and the impact
it will have on passenger rights in the European Union. Furthermore, the article will conclude by examining how national enforcement bodies will attempt to implement the provisions of the Regulation and the likely difficulties that may be encountered where “extraordinary circumstances” arise.

Jurisdictions and Causes of Action: Commercial Considerations in Dealing with Bullying, Stress and Harassment Cases-Part II

Niall Neligan — Mon, 21 Mar 2011 10:11:45 PDT

In the concluding part of this two part article, the author will
examine how the courts have developed rules for dealing with
tortious claims for psychiatric injuries arising out of bullying, stress
and harassment cases. The article will examine whether it is
desirable to consolidate and codify employment rights law in order
to provide clarity to prospective litigants. Finally, the author will
argue that if codification is required, then this will necessitate a
change in the nature of present jurisdictions for bringing claims
involving bullying, stress and harassment in the workplace.

Jurisdictions and Causes of Action in Bullying, Stress and Harassment Cases Part 1

Niall Neligan — Mon, 21 Mar 2011 10:11:44 PDT

This is the first of a two part article in which the author will critically evaluate the different causes of action and myriad of jurisdictions for bringing a claim in the inter-related fields of bullying, stress and harassment in the workplace from a commercial law perspective. The author will define and trace the separate headings under which the law governing bullying, stress and harassment has evolved. In the second part of the article (which will
appear in the next edition of the journal), the author will examine recent developments in tortious claims for psychiatric injuries arising from bullying, stress and harassment cases, and raise the question whether it would be more appropriate to streamline and codify this area of law in order to provide greater clarity to potential litigants and employers.

Yes or No Minister: The Importance of the Politician-Senior Civil Servant Dyad in Irish Prison Policy

Mary Rogan — Fri, 11 Mar 2011 08:21:19 PST

Irish prison policy is notable for the absence of an ideological agenda driving its direction and content. This article examines the impact of the relationship between Minister for Justice, the member of Cabinet responsible for the criminal justice system and prisons in Ireland, and the most senior civil servant within that Department, in the creation of this policy landscape. The Minister-Secretary General dyad in the area of Irish prison policy during the early 1960s is explored in order to assess the importance of this relationship in the formation of prison policy. This period was one of the few in Irish penal history when momentum to change the prison system was evident. The article draws on emerging scholarship on policy analysis within criminology. It suggests that engagement with the policy-making process can provide meaningful data to explain the nature of criminal justice policy.

The Supremacy of EC Law in Ireland

Elaine Fahey — Fri, 11 Mar 2011 08:21:18 PST

US Supreme Court Confronts 'Right to Die'

Bruce Carolan — Fri, 11 Mar 2011 06:37:22 PST

This article covers the US Supreme Court's decisions regarding physician-assisted suicide for a UK audience.

An Army of Lovers?: Queering the Ministry of Defense Report of the Homosexual Policy Assessment Team

Bruce Carolan — Fri, 11 Mar 2011 06:29:52 PST

Certain queer theorists argue that gay men and lesbians are banned from military service in certain countries not due to a fear of otherness. Instead, they are prohibited from serving precisely because of a fear that the opposite might be true -- that introducing openly gay people into a 'homosocial' environment might destabilize accepted notions of sexuality among members of the service who presently constitute themselves as heterosexual. This article explores that idea in the context of the Report of the Homosexual Policy Assessment Team established to defend exclusion of openly gay people from military service in the United Kingdom. The Report justified the continued exclusion of openly gay service members (a ban subsequently dropped), by arguing that this would provoke a hostile, violent reaction from non-homosexual military personnel, undermining 'unit cohesion.' By subjecting the Report to what Janet Halley describes as an aggressive, unsympathetic reading, this article reveals a hidden rationale. The hidden rationale is that categories of sexual identity are inherently unstable and that acceptance of openly-acknowledged homosexual conduct could cause an increase is homosexual activity or acknowledgement of homosexual or bisexual desires among personnel previously regarded as heterosexual. The article argues that this hidden rationale of the authors of the military report ironically intersects with beliefs of so-called 'queer theorists,' who refuse to accept notions of fixed and unchanging categories of sexuality. The UK military may share a belief that categories of sexual identity are not inherent, but rather malleable and indeterminate.

Rights of Sexual Minorities In Ireland and Europe: Rhetoric Versus Reality

Bruce Carolan — Fri, 11 Mar 2011 05:59:59 PST

Superficially, Irish and European Community law proclaim the rights of sexual minorities - particularly in web sites and printed information designed for public consumption. The reality is different. This article identifies a gap between the public pronouncements on the rights of sexual minorities under Irish and EC law. It employs a hypothetical fact situation to suggest that existing legal protections are anemic, and argues that the potential failure of affected groups to identify these deficiencies (due to contradictory claims in public information campaigns) could endanger efforts to effect progressive change.

Beware of Lawyers Bearing Ggifts: a Critical Evaluation of the Report of WG II to the European Convention on Incorporation of the EU Charter of Fundamental Rights and accession to the European Convention of Human Rights.

Stephen Carruthers — Fri, 11 Mar 2011 05:50:14 PST

This article undertakes a critical analysis of the fundamental rights provisions of the draft Treaty establishing a Constitution for Europe as presented to the President of the European Council in Rome on 18 July 2003, and in particular the Articles in Parts I and II of the draft Constitution incorporating proposals made in the final Report of Working Group II on “Incorporation of the Charter/Accession to the ECHR”.

The Search for Coherence in the Use of Foreign Court Judgements by the Supreme Court of Ireland

Bruce Carolan — Fri, 11 Mar 2011 05:03:24 PST

The reference to foreign court judgments by the US Supreme Courts - particularly in cases involving the US Constitution - has sparked controversy. This controversy flared in Lawrence v. Texas, where Justice Scalia criticized Justice Kennedy for reference to judgments by the European Court of Human Rights in Justice Kennedy's majority opinion striking down the Texas sodomy statute. This article examines the issue from a different perspective: references to 'foreign' court judgments (including US Supreme Court opinions) by the Supreme Court of Ireland. The article examines the Irish Supreme Court's use of judgments from the European Court of Justice, the European Court of Human Rights and the US Supreme Court. The article argues that the Irish Supreme Court's attitude to reference to 'foreign' court judgments depends upon whether the Irish Court occupies a vertical or horizontal position with respect to the other court. Where the Irish Court's relationship is horizontal (meaning in essence that the other court cannot overrule or directly criticize the Irish Court), the Irish Court is less reluctant to refer to the foreign judgment. When the relationship is vertical (in the sense that the other court can criticize or overrule the Irish court), the Irish Court is more reluctant to refer to the foreign judgment. The article examines a number of Irish cases in support of this thesis. It concludes that because the relationship with the European Court of Human rights is vertical, the Irish Court is reluctant to refer to these cases in the Irish Court's opinion. On the other hand, because the relationship with the US Supreme Court is horizontal, the Irish Court shows less reluctance in citing US Supreme Court opinions.

Judicial Impediments to Legislating Equality for Same-Sex Couples in the European Union

Bruce Carolan — Fri, 11 Mar 2011 04:55:07 PST

In the United States, the state and federal courts often has been the first port of call for activists hoping to advance the cause of same-sex couples. State courts, in particular, have ruled on occasion that guarantees of equal rights or due process contained in state constitutions require recognition of same-sex marriage or civil unions. These court decisions, in turn, have sparked a legislative backlash. Legislators and voters have rejected these court decisions by amending state constitutions to limit the rights of same-sex couples. The European Union represents, in some ways, the mirror image of the United States experience. The EU 'legislators' - represented by the Council of Ministers and the European Parliament - have adopted 'progressive' legislation, including laws prohibiting discrimination based on sexual orientation. The European Court of Justice, however, has provided very narrow interpretations of the content of these 'equal rights' guarantees. In particular, the Court of Justice has ruled that discrimination against same-sex couples - in denial of employment rights available to opposite-sex unmarried couples, for example - does not constitute discrimination based on sexual orientation. This article traces the development of the EU position, and compares and contrasts it with similar developments in the US courts and legislatures.

The Amended Proposal for a Directive on Services in the Internal Market and its Potential Impact on the Irish Tourism Industry

Bruce Carolan — Fri, 11 Mar 2011 04:40:41 PST

The European Union Services Directive, Directive 2006/123, was very controversial. The popular press focused on that aspect of the Directive which would have allowed employers to comply with the 'home' regulations when offering services in an EU 'host' country. For example, a cleaning service could employ Polish workers to clean Irish offices and paid them according to Polish minimum wage laws. As a result of the controversy, this aspect of the Directive was dropped. The controversy deflected attention from the broader impact of the Services Directive. The Directive, as ultimately adopted, will require member states to conduct an 'audit' of all rules and national regulations impacting on cross-border provision of services. Some will have to be eliminated as a potential violation of the Directive (e.g., the requirement of a physical office in the host member state). Other regulations will have to be defended as necessary and proportionate to the pursuit of a legitimate aim. In addition, member states will have to streamline and simplify the procedures by which one obtains permission to provide services across borders into the host member state. This will require the establishment of a central facility through which all necessary information can be obtained. It must be possible to do this online. The Services Directive will have a major impact on the Irish tourism industry, one of the largest industries in Ireland. This industry is rife with protectionist rules and regulations, and lacks the transparency required under the Directive. This article examines this overlooked aspect of the impact of the Services Directive.

Extending the Reach of the State into the Post-Sentence Period: Section 26 of the Criminal Justice Act 2007

Mary Rogan — Fri, 11 Mar 2011 04:27:52 PST

The Criminal Justice Act 2007 heralded a plethora of changes to Irish criminal law and procedure. The law on sentencing was also affected by its provisions. The focus of this article is on section 26 of that Act which introduces a general power on a court to make an order while passing sentence which will take effect on the expiration of a sentence of imprisonment. Under section 26 a court can impose two such orders, the “monitoring” order and the “protection of persons” order. The author assesses the background to the introduction of these dispositions and the potential application and the implications of their operation. Comparisons with similar provisions already in use in Ireland and also in England and Wales are drawn and insights from theoretical literature on the concept of “punishment” are utilised to assess the nature of these new developments for Irish sentencing practice. The author argues that section 26 orders represent a further example of a growing phenomenon in Irish criminal justice; that of increasing reliance on dispositions taking effect after the expiration of a “primary” sentence. Finally, the author points to some potential policy and practical difficulties with the operation of the orders.

The Concept of the General Will in the Writings of Rousseau, Sièyes, and Robespierre

Stephen Carruthers — Fri, 11 Mar 2011 04:13:37 PST

This paper outlines the views on the General Will of Rousseau, as set out in The Social Contract, and compares them to the views developed by Sieyès in Qu'est-ce que le Tiers état? and by Robespierre, most notably in his speeches delivered during the ‘Reign of Terror’ from the establishment of the Committee of Public Safety on 6 April 1793 to his death on 28 July 1794

The Birth of the European Union: US and UK Roles in the Creation of a Unified European Community

Bruce Carolan — Thu, 10 Mar 2011 09:22:11 PST

The United States jealously guards its national sovereignty. This has been reflected in reluctance to participate fully in international agreements or organizations with a 'supranational' flavor, such as the International Criminal Court or the Kyoto Protocols. It is therefore surprising to find that the United States was one of the principal architects of the supranational characteristics of what has developed into the European Union. Specifically, the earliest stages of European integration, which is embodied in the European Coal and Steel Community Treaty, were heavily influenced by US insistence on creation of supranational institutions that could exert dominance over sovereign European governments. The United Kingdom, one of the leading European powers after the end of the Second World War, sought to undermine efforts to create a 'supranational' Europe. The UK feared that being part of a more deeply integrated Europe might undermine its 'special relationship' with the United States. Ironically, its stance in opposition to deeper European integration annoyed US authorities and damaged its relationship with the US. This paper traces the respective roles of the US and the UK in the creation of the European Coal and Steel Commmunity, and reveals a US role often overlooked in legal treatments of the early steps towards the modern European Union.

The Treaty of Lisbon and the Reformed Jurisdictional Powers of the European Court of Justice in the Field of Justice and Home Affairs.

Stephen Carruthers — Thu, 10 Mar 2011 08:44:27 PST

This Article analyses the jurisdictional powers of the Court of Justice of the European Union (CJEU) in respect of Justice and Home Affairs (JHA) measures both under pre-Lisbon Title VI TEU and post-Lisbon under Title V of Part Three TFEU. In Part one, it assesses the deficiencies of the pre-Lisbon system. In particular it analyses the negative consequences for legitimacy arising from the restrictions on justiciability in respect of pre-Lisbon JHA measures in light of case law of the CJEU and the European Court of Human Rights. In Part two, it outlines the genesis and substance of the reforms in the Treaty of Lisbon, including a summary of the transitional regime that will to apply to the jurisdiction of the CJEU over the pre-Lisbon acquis. In conclusion, the Article assesses the effectiveness of the Treaty of Lisbon jurisdictional reforms from the perspective of compliance with the rule of law.

The life of Mary Wollstonecroft and the Principles of Conduct Put Forward in "A Vindication of the Rights of Woman"

Stephen Carruthers — Thu, 10 Mar 2011 08:12:57 PST

This paper examines the life of Mary Wollstonecraft (1759-1797), the wife of the philosopher William Goodwin and mother of Mary Shelley author of Frankenstein, through the prism of the principles of conduct set out in A Vindication of the Rights of Woman that Mary Wollstonecraft wrote over the period 1790 to 1792. In particular the paper focuses on the role of reason, virtue, and knowledge developed in A Vindication in establishing principles of conduct and the extent to which Mary’s own conduct can be reconciled with the precepts she advocated.