Dublin University Law Journal (DULJ) Vol 36

Dublin University Law Journal (DULJ) Vol 36


A leading peer-reviewed legal journal.

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Editors: Dr Oran Doyle, Dr David Prendergast, Dr Desmond Ryan| ISBN: 978-1-905536-61-0 |  ISSN: 0332-3250 | Currency: Annual  | Publication Date: 17th December 2013| Price: €149 | Dedicated Website www.dulj.ie 


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. 


Volume 36, 2013 contains the following (abstracts of each feature article is listed below contents):

Feature Articles

  • Irish Consumer Law: Asserting a Domestic Agenda | Mary Donnelly and Fidelma White
  • The Certificate of Registration and the Company Charge Register | Noel McGrath
  • Financial Provision on Relationship Breakdown in Ireland: A Constitutional Lacuna? | Lucy-Ann Buckley
  • Implementing Disability Rights in Education in Ireland: An Impossible Task? | Sarah Arduin
  • Why It’s Better to be Sorry than Safe: The Case for Apology Protection Legislation |Val Corbett
  • Reappraising the Constitutional Justification for Intentionalism and Literalism in Statutory Interpretation | Cathal Curran and Eoin Daly
  • The Proposed Common European Sales Law: A New Direction for European Contract Law? | Caterina Gardiner
  • Sanctions and Financial Regulation: A Meditation Upon ‘Natural Necessity’ | Shaun Elder
  • Polygamous Marriages and Potentially Polygamous Marriages in Irish Law: A Critical Reappraisal | Kieran Walsh
  • The EU Charter of Fundamental Rights and the Member States: An Originalist Analysis | Stephen Brittain

Case Notes and Recent Developments

  • Originalism Enabled?: The Role Of Historical Records In Constitutional Adjudication | Eoin Carolan
  • Recent Developments in the Right of the Person in Article 40:3: Fleming v Ireland and the Spectre of Unenumerated Rights | David Kenny
  • The Right to Appropriate the Family Home – A Proposal for Reform | Kathryn O’ Sullivan
  • Irish Digital Rights in Retrograde: The ‘Eircom Protocol’ and the Normative Framework of European Law | Kevin T O’Sullivan
  • State Responsibility and the Exploitation of the Oil for Food scheme: Republic of Iraq v ABB AG et al. (2013) | Susan Power

Book Reviews

  • Employment Equality Law
  • An Island’s Law: A Bibliographical Guide To Ireland’s Legal Past 
  • Methods Of Comparative Law 
  • The Role of Emotions in Criminal Law Defences: Duress, Necessity and Lesser Evils
  • Corruption Law 
  • European Union Law

See also contents for Volume 37 2014

Abstracts from Feature Articles

Irish Consumer Law: Asserting a Domestic Agenda | Mary Donnelly and Fidelma White

This article asserts the importance of developing a distinct Irish consumer law and argues that the matter of consumer protection cannot simply be ceded to Europe. In developing this argument, the article first identifies the hybrid common law and European origins of Irish consumer law. It then traces the development of consumer law in this jurisdiction and focuses on the reactivation of the national consumer protection agenda, both in Ireland and across the European Union, in the last decade. The article also argues that a necessary prerequisite in setting a domestic agenda is a comprehensive understanding of the nature and distinguishing features of the domestic consumer. Hence, the article undertakes a critical analysis of available data, indicating the ways in which Irish consumers understand and use consumer law, drawing on annual surveys commissioned by the National Consumer Agency, an extensive EU-wide Eurobarometer study on Consumer Empowerment and a focused Irish study conducted in Winter 2012.


The Certificate of Registration and the Company Charge Register | Noel McGrath

This article considers the certificate issued by the Registrar of Companies on the registration of a company charge. It argues that the existing understanding of the effect of that certificate is flawed and suggests an alternative interpretation of the underlying provisions of the Companies Acts, which respects the ordinary meaning of the words of the statute whilst at the same time better reflecting the purpose of the charge registration system.


Financial Provision on Relationship Breakdown in Ireland: A Constitutional Lacuna? | Lucy-Ann Buckley

This article analyses the constitutional basis for financial provision orders on the breakdown of marriage, civil partnership and cohabitation in Ireland. Although a clear constitutional foundation exists for financial provision on divorce, this does not apply to judicial separation or non-marital relationships. Accordingly, the constitutionality of financial orders in these contexts is questionable. This article examines the constitutional jurisprudence on the family, private property and equality as potential grounds for upholding redistributive mechanisms. It contends that appropriate provision for families in the relationship breakdown context is an important social policy objective that justifies the delimitation of constitutional proprietary interests, and that this is the only constitutional basis that offers equal potential for upholding financial provision measures in the marital, non-marital and same-sex contexts. Although recent case law has posited a new constitutional basis for financial orders on marital breakdown, the article contends that the reasoning adopted is both flawed and limited in application. Consequently, a considerable lacuna remains in Irish constitutional law.


Implementing Disability Rights in Education in Ireland: An Impossible Task? | Sarah Arduin

Over the past two decades, Ireland has seen an increased public interest in thinking about disability rights in education and in determining how Irish schools could deliver, in an inclusive environment, a quality education appropriate to the needs of every child, including children with learning difficulties and disabilities.  Nonetheless, despite the evidence of a shift in its policy and the signature of the UN Convention on the Rights of Persons with Disabilities, the Irish approach to disability rights in education remains far from satisfactory.

This article intends to understand the inappropriateness and inadequacy of the Irish approach to disability rights in education.  It intends to provide a comprehensive insight into the debate and into the challenges that remain to be overcome in order to transform the Irish approach, in line with international human rights law, into a human rights-based approach to disability rights in education; guaranteeing inclusive, equitable and quality education for all in a respectful learning environment.


Why It’s Better to be Sorry than Safe: The Case for Apology Protection Legislation |Val Corbett

Societal norms dictate that where one has wronged another, a genuine apology should be made by the wrongdoer to the victim. In such circumstances, wrongdoers are encouraged to acknowledge their wrongdoing, express remorse for its occurrence and promise such behaviour will not reoccur. In so doing, it is hoped that the relationship between the parties can be restored. The power of a genuine apology to repair relationships harmed by wrongdoing has long been recognised by sociologists and psychologists alike. Yet when such disputes enter the legal arena, the wrongdoer is positively discouraged from acknowledging any wrongdoing or apologising for his or her role in the commission of the wrong. While the adversarial system may promote the search for truth in litigation, it also has the effect of chilling expressions of apology. In a system where no quarter is asked or given, the opportunity to resolve some disputes earlier and less expensively is lost.

This article evaluates the role of apology as a method of facilitating the resolution of civil disputes. It examines the importance of apology to society and the positive impact the communication of a genuine apology can have on the concerns and interests of individual litigants. Despite these advantages, apologies are chronically under-used as a means of resolving disputes, partly because of the fear that an apology might be construed as an admission of guilt on the part of wrongdoer, thereby exposing him or her to liability. This article identifies and examines the underlying reasons for the under-use of apology in these cases and analyses whether these concerns are real or exaggerated. To promote the greater use of apology, other common law jurisdictions have introduced ‘apology protection’ legislation, which provides the giver of an apology with immunity relating to potential liability that might arise from it. This article examines such legislation and poses the question whether or not such an approach should be adopted in the Irish jurisdiction as the most appropriate method of encouraging the greater use of apology to resolve such disputes.


Reappraising the Constitutional Justification for Intentionalism and Literalism in Statutory Interpretation | Cathal Curran and Eoin Daly

It is widely assumed that a constitutional principle of legislative supremacy confines judges, in interpreting statutes, to the modest role of effectuating legislative intention. In this article, however, we argue that statutory meaning is inevitably determined by constitutional and normative desiderata, which are irreducible to legislative intention. Moreover, the prevailing account of statutory interpretation masks this by positing literal meaning as the default expression of legislative intent. The public values that inevitably inform statutory interpretation cannot be imputed to legislative intent. Constitutional principles cannot be conceived of solely as a ‘trump’ on legislative intent in ‘frontier’ cases where legislation is invalidated; they are also constitutive of statutory meaning across a much wider range of cases, independently of legislative intent. We argue that, since the principle of legislative supremacy is so strongly qualified in the Irish context, it cannot support a theory of intentionalism in statutory interpretation.


The Proposed Common European Sales Law: A New Direction for European Contract Law? | Caterina Gardiner

The European Commission’s proposal for a Regulation on a Common European Sales Law (CESL) envisages the establishment of a uniform sales law across Member States, not by requiring amendments to the pre-existing national contract law, but by creating within each Member State’s national law a second optional contract law regime for contracts covered by its scope. The European Commission’s use of an optional instrument appears to signal a move away from the difficult path of full harmonisation as a means of avoiding problems of fragmentation of national consumer contract laws. This article examines the provisions of the proposed optional instrument, assesses its prospects for success, and considers its potential impact on Irish businesses and consumers.


Sanctions and Financial Regulation: A Meditation Upon ‘Natural Necessity’ | Shaun Elder

The relationship between law and regulation and the markets where crises are endemic is complex. Market society is inherently criminogenic, necessitating deterrent sanction. Punishment is fundamental to criminal law and practice and is impacted by social, political and cultural trends. From historical origin both market and criminal law theory are underpinned by the conflict between individual self-interest and community interest as reflected in the social and political public interest. Issues in criminal practice and the markets assisted the rise of the ‘regulatory state’. Criminal law and regulation are a binary that police the financial market regulatory control domain. The interplay between criminal and administrative sanction is a crucial element in repression of illegal, and regulation of legal, markets. New transformational interplay approaches are called for.


Polygamous Marriages and Potentially Polygamous Marriages in Irish Law: A Critical Reappraisal | Kieran Walsh

The Irish courts have recently begun to engage with the challenges posed by polygamous and potentially polygamous marriages validly entered into abroad. Claims relating to the recognisability and validity of these marriages have arisen in contexts ranging from refugee law to family law, via the problematic doctrine of common law marriage. Essentially, the problem is reducible to two questions: What are the appropriate rules of private international law to be applied, and what is the interaction between private international law, public policy and the Constitution?

This article critically analyses these decisions in an attempt to disentangle the relevant legal principles, and to highlight the differences between actually and potentially polygamous marriages. It concludes that this latter category of marriages ought to be treated as significantly different from actually polygamous relationships, largely due to the harm often associated with actually polygamous marriages, harm that is recognised within international human rights law.


The EU Charter of Fundamental Rights and the Member States: An Originalist Analysis | Stephen Brittain

This article advocates the adoption of an originalist approach in the interpretation of Article 51 of the Charter of Fundamental Rights (CFR). The latter provides that the CFR shall apply to Member States ‘only when they are implementing Union law’. The first part of the article describes and critiques the teleological approach to interpretation of the European Court of Justice (ECJ). The second part considers the arguments in favour of and against the adoption of an originalist approach to interpretation, concluding that an originalist approach ought to be adopted in the interpretation of the CFR. Parts 3 to 5 of the article carry out an originalist analysis of Article 51 CFR, concluding that that article requires Member States to abide by the provisions of the CFR only when they are acting as agents of the EU. Part 6 considers how Article 51 CFR has been interpreted since its adoption, and concludes that the ECJ’s reading has been considerably broader than its wording allows. Part 7 accordingly argues that the Court’s interpretation of Article 51 CFR undermines certain crucial values, including the rule of law and democracy.


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