Dublin University Law Journal (DULJ) Vol 38(1)

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Dublin University Law Journal (DULJ) Vol 38(1)

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A leading peer-reviewed legal journal.

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Editors: Dr David Prendergast, Dr Daithí Mac Síthigh | ISBN: 978-1-905536-79-5 |  ISSN: 0332-3250 | Currency: Two Issues Per Year  | Publication Date: 12 October 2015 | Price Per Issue: €129 | Dedicated Website www.dulj.ie 

About

The Dublin University Law Journal is published by Clarus Press on behalf of the School of Law, Trinity College, Dublin. It is a leading peer-reviewed legal journal, publishing authoritative, critical and scholarly analysis on a broad range of legal issues. It provides a forum for important legal academic debate on contemporary Irish law as well as developments from further afield in the common law world, in European and international law, and in legal theory. The journal publishes longer articles providing in-depth analysis of a wide range of legal issues, as well as shorter articles, comments and case-notes providing up-to-date analysis of recent developments and book reviews providing critical assessment of important legal publications. The Dublin University Law Journal thus provides accessible and balanced coverage of a wide spectrum of current and enduring issues in law and legal scholarship. 

The Dublin University Law Journal will now publish twice annually.

Volume 38, issue 1, 2015 contains the following:

Feature Articles

 

  • Frances E Moran Memorial Lecture 2015 Religion in a World Clamouring for Human Rights: A Devil’s Brew | Sir Terence Etherton
  • New Private Right of Action for Damages in Financial Services Litigation  | John Breslin SC and Elizabeth Corcoran BL
  • Ireland’s System for Disciplining and Removing Judges | Laura Cahillane
  • Organised Pseudo-legal Commercial Argument’ Litigation: Challenges for the Administration of Justice in Ireland |Garret Sammon
  • Arbitral Justice for Victims of Human Rights Violations | Sonja Heppner
  • The Irish Legislative Response to Genetic Discrimination—An Analysis of Part 4 of the Disability Act 2005: Time for Reform? | Aisling de Paor

Case Notes and Recent Developments

  • Education and the Equal Status Acts: Stokes v Christian Brothers High School Clonmel | Mel Cousin 
  • O’Keeffe v Ireland In Strasbourg: Punishing The Guilty?|Ronan Keane
  •  The Introduction of Smart Meters in Ireland: Privacy Implications and the Role of Privacy by Design | Maria Helen Murphy
  • When Do Clubs Die? | Ailbhe O’Neill
  • Parallel Proceedings in Employment Law: An Analysis Of The High Court Judgments in Cunningham and Culkin | Desmond Ryan

Book Reviews

  • Ireland’s District Court, Language, Immigration and Consequences for Justice
  • Prison Law
  • The Law School of University College Dublin: A History
  • Evidence (2nd ed)
  • Employment Law
  • A Philosophy of Criminal Attempts

Abstracts 

New Private Right of Action for Damages in Financial Services Litigation  | John Breslin SC and Elizabeth Corcoran BL 

The introduction of a new private right of action for damages in Irish financial
services litigation is arguably one of the most significant legislative developments in the wake of the financial crisis. Many of these developments have imposed robust and stringent measures on the financial services industry. The introduction of the right of action is no exception. It is available to all customers, consumers and non-consumers alike, and covers breaches of virtually every aspect of financial regulation. This article will explore the background to the new right of action, the comparable but more limited UK right of action, the likely operation of the cause of action and its exceptional scope, including some far-reaching but likely unforeseen consequences.

Ireland’s System for Disciplining and Removing Judges | Laura Cahillane

In Ireland, judges can only be removed as a result of ‘stated misbehaviour’
but the extent of this phrase is unclear, as is the process of actually removing the judge. Furthermore, Ireland has no formal process for lesser forms of judicial discipline. These oversights have exacerbated controversies of judicial behaviour. For example, during the Sheedy Affair, there was no formal mechanism for investigating or issuing sanctions as a result of the conduct of the judges and in the Curtin case, the difficulties involved in the attempt to remove the judge delayed the process to such an extent that the judge eventually retired on a full pension. A more recent episode involving an ‘improper approach’ by a judge into the case of another judge highlighted the lack of any proper procedures in this area. Given that this is an issue that impacts both judicial independence and public confidence in the judiciary to a significant degree, it is vital that a formal system for disciplining and removing judges is established in Ireland. In this context, this article examines the current system and analyses potential reforms to this.

***

Organised Pseudo-legal Commercial Argument’ Litigation: Challenges for the Administration of Justice in Ireland |Garret Sammon

‘Organised Pseudo-Legal Commercial Argument’ litigation is a subversive
form of litigation practised by some self-representing litigants which poses significant challenges for the administration of justice. This article discusses the increasing frequency with which such litigants are coming before the Irish courts. The procedural response taken to this phenomenon thus far has not been sufficient. There is an increasing need to develop a holistic response to this form of litigation. This response should include improved empirical data collection in relation to self-representing litigants, improved structures to assist self-representing litigants navigate the courts system and case management at an early stage of proceedings involving such litigants. There is also a need to clarify the McKenzie friend mechanism and develop sanctions for those who encourage this form of litigation. This article concludes that deeper engagement with the criticisms of the legal system raised by this form of litigation is necessary.

***

Arbitral Justice for Victims of Human Rights Violations | Sonja Heppner

Arbitration as a method of dispute resolution has evolved over time, most
recently into mass arbitration in the international investment dispute Abaclat v Argentine Republic. In acknowledgment of the reciprocity between arbitration and transitional justice mechanisms, this article examines the possibility of an arbitral mass reparations programme. The article draws from the experiences of the In re Estate of Marcos Human Rights Litigation and the United Nations Compensation Commission in dealing with a large number of claims arising from human rights violations and sets mass arbitration in contrast to domestic and internationalised methods of adjudicating upon reparations. The author suggests that mass arbitration not only offers benefits over domestic methods of adjudicating upon reparations, the Extraordinary Chambers in the Courts of
Cambodia and the International Criminal Court with its Trust Fund for Victims, but that it might also be a solution to the difficulty in creating a reparative justice mechanism that is context-specific in the diverse pool of transitional states.

***

The Irish Legislative Response to Genetic Discrimination—An Analysis of Part 4 of the Disability Act 2005: Time for Reform? | Aisling de Paor

Revolutionary genetic discoveries and technological advances have
introduced a new era of genetic exploration, and technological advances have facilitated the discovery of the genetic basis of a range of diseases and disabilities. Genetic testing is increasingly becoming more sophisticated, cheaper and therefore more accessible for both medical and non-medical purposes. In light of rapid advances in genetic science and technology, questions arise as to whether an appropriate framework exists to protect the interests of individuals, and to prevent the misuse of genetic information by interested third parties (such as employers and insurers), particularly privacy violations and discrimination. In consideration of emerging advances in science and technology and the corresponding ethical and legal issues that arise, the objective of this article is to highlight the Irish legislative response to the regulation of genetic information, and to evaluate the effectiveness of the legislative provisions in addressing concerns and protecting an individual’s rights. The focus of this discussion is on Part 4 of the Disability Act 2005, which addresses genetic testing and regulates the use of genetic information in Ireland. The article will explore the need for a stand-alone piece of legislation which is specifically tailored to these issues.

 

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