Dublin University Law Journal (DULJ) Vol 40(1)

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Dublin University Law Journal (DULJ) Vol 40(1)

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A leading peer-reviewed legal journal.

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Editors: Dr Patricia Brazil, Dr David Fennelly, Dr Daithí Mac Síthigh  |  ISSN: 0332-3250 | Currency: Two Issues Per Year  | Publication Date: December 2017 | Price Per Issue: €129 + VAT | 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 40, issue 1, 2017 contains the following:

Feature Articles

  • Governing Emissions Trading: Constructing Core Convergence Criteria for Linkage | Gerard Kelly
  • The Criminal Justice (Victims of Crime) Bill 2016: Special Measures for Victims who Give Evidence at Trial | Liz Heffernan,
  • Underexplored Corners: Inherent Executive Power in the Irish Constitutional Order | Conor Casey
  • Reforming Irish Copyright Law: The Question of Orphan Works | Kevin O’Sullivan
  • Compensation for Breach of the General Data Protection Regulation | Eoin O’Dell

Notes/Short Articles

  • Legal Education: A Reflective, Collaborative Approach to Peer Observation of Teaching | Liz Heffernan and David Kenny
  • Remission of Prison Sentences: Emerging Principles | Mary Rogan
  • A ‘Dialogue-Oriented Departure’ in Constitutional Remedies? The Implications of NHV v Minister for Justice for Inter-Branch Roles and Relationships | Eoin Carolan

Book Reviews

  • Comparative Privacy and Defamation Law
  • Refuge: Transforming a Broken Refugee System

Abstracts 

 

Governing Emissions Trading: Constructing Core Convergence Criteria for Linkage | Gerard Kelly

The emergence of emissions trading schemes has come to represent a central component of an increasingly fragmented climate governance landscape. Whilst market trading is far from uncontroversial as a climate policy tool, the presence and proliferation of emissions trading schemes raises new and challenging questions concerning the appropriate design of such schemes. The task of designing appropriate emissions trading architectures to avoid the development of conflicting norms, particularly where conflict could undermine the environmental integrity of such schemes, is now a fundamental consideration in climate governance research. This article engages with this concern by critically evaluating the concept of linkage before advancing a framework for assessing the compatibility of potential partner emissions trading schemes based on a series of core convergence criteria, the presence of which are considered a prerequisite to durable linkage. An incrementalist perspective is advanced which conceptualises linkage as a process, rather than a single one-time event. This article concludes that it is possible to construct a stable foundation for the implementation of linkages between emissions trading schemes based on core convergence criteria. This may provide a more fruitful pathway in view of the glacial progress of international negotiations to agree post-Kyoto binding commitments.

The Criminal Justice (Victims of Crime) Bill 2016: Special Measures for Victims who Give Evidence at Trial  | Liz Heffernan

The victim of a crime occupies an anomalous place in the common law adversarial trial. Although she has a substantial stake in the process and its outcome, she is neither a party to the proceedings nor generally entitled to legal representation. The victim is usually an important, if not indispensable, source of evidence at trial but she does not testify autonomously as of right. The entry into force of Directive 2012/29/EU establishing minimum standards on the rights, support, and protection of victims of crime raises questions about the compatibility of the traditional common law approach with an emerging European concept of victim participation. The Oireachtas is currently considering the proposed transposition of the Directive’s provisions on victim participation in the Criminal Justice (Victims of Crime) Bill 2016. If enacted, the Bill will extend special measures, such as testifying via video-link, to victims in a range of circumstances. This article analyses the proposed legislative text and considers the implications for the development of law and policy.

Underexplored Corners: Inherent Executive Power in the Irish Constitutional Order | Conor Casey

It has been suggested that it may be surprising to some that after 80 years one could claim that Bunreacht na hÉireann has some significant ‘under-explored corners’. It may be added to this claim that some under-explored corners are perhaps more surprising than others. Article 28.2 of the Constitution provides that `the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on authority of the Government`. However, as a matter of Irish law, the parameters of executive power in the domestic sphere is an area lacking detailed examination. This has led to an under-exploration of a key branch of State, indeed, the most powerful branch of the Irish State given that it is frequently perceived to dominate the legislature. This paper seeks to explore this corner of the Irish constitutional order, examining the rich history, precedents, and principles which constitute this fascinating, if rarely examined, aspect of our basic law.

 

Compensation for Breach of the General Data Protection Regulation | Eoin O’Dell

Article 82(1) of the General Data Protection Regulation (GDPR) provides that any “person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered”. As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages.

 After the introduction, the second part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and compares and contrasts the English version of Article 82(1) GDPR with the versions of that Article in the other official languages of the EU, and concludes that at least 5 of the versions of Article 82(1) GDPR are unnecessarily ambiguous, though the CJEU (eventually, if and when it is asked) is likely to afford it a consistent broad interpretation. However, the safest course of action at this stage is to provide expressly for a claim for compensation in national law. The third part of this article compares and contrasts the compensation provisions in the Irish government’s General Scheme of the Data Protection Bill 2017 with existing legislation and case-law in Ireland and the UK, and with incorporating legislation and Bills in other EU Member States, and concludes that the Heads of the Scheme do not give full effect to Article 82(1) GDPR. Amendments to the Scheme are therefore proposed.

To ensure that any person who has suffered such damage has an effective remedy pursuant to Article 47 CFR, Member States will have to provide, pursuant to Article 19 TEU, remedies sufficient to ensure effective legal protection in the fields of privacy and data protection. In particular, they will have to provide expressly for a claim for compensation, incorporating Article 82(1) GDPR into national law. Claims for compensation are an important part of the enforcement architecture of the GDPR. Private enforcement will help to discourage infringements of the rights of data subjects; it will make a significant contribution to the protection of privacy and data protection rights in the European Union; and it will help to ensure that the great promise of the GDPR is fully realised.

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