Dublin University Law Journal (DULJ)

Editors: Dr Oran Doyle, Dr David Prendergast, Dr Desmond Ryan | ISBN: 978-1-905536-71-9 |
ISSN: 0332-3250 | Currency: Annual | Published December 2014 | Price: €149



The Dublin University Law Journal Volume 37, 2014 contains the following (abstracts of each feature article is listed below contents):

Feature Articles

  • The Frances E Moran Distinguished Lecture Series:  ‘Do Hard Sums Make Bad Law: Mathematics in the Courts’ | Frank Clarke
  • Getting the Price Right: Could a reintroduction of temporary price controls solve the problem of increasing renewable energy in Ireland while simultaneously guaranteeing affordable electricity to domestic consumers? |  Eva Barrett
  • Grounding Constitutional Remedies in Reality: the Case for As-Applied Constitutional Challenges in Ireland | David Kenny
  • The Rule in Pinnel’s Case: The Case for Repeal, a Mistaken Preponderance and Finding Consideration in Debt Renegotiations | James Kane
  • What We Talk About When We Talk About Constitutional Identity: An Irish Enquiry |Julien Sterck
  • Judicially Enforceable Socio-Economic Rights in South Africa: Between Light and Shadow | Sandra Liebenberg
  • Judicial Capacity to Enforce Socio-Economic Rights | Gerry Whyte

Case Notes and Recent Developments

  • Family Law and the Corporate Veil: Accessing Company Assets on Marital Breakdown After Prest v Petrodel Resources Limited | Lucy Ann Buckley
  • Constitutional Equality after Fleming v Ireland | Ben Mitchell
  • Gross Negligence Manslaughter in Irish Law | David Prendergast

Book Reviews

  • From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage
  • Religion, Charity and Human Rights
  • Sexual Offences
  • Family Law
  • The Unfolding of American Labor Law: Judges, Workers and Public Policy Across Two Political Generations, 1790-1850
  • Immigration, Integration and the Law: The Intersection of Domestic, EU and International Legal Regimes
  • Defamation: Law and Practice 

Abstracts from Feature Articles

The Frances E Moran Distinguished Lecture Series:  ‘Do Hard Sums Make Bad Law: Mathematics in the Courts’ 
Frank Clarke

Getting the Price Right: Could a reintroduction of temporary price controls solve the problem of increasing renewable energy in Ireland while simultaneously guaranteeing affordable electricity to domestic consumers? Eva Barrett
Electricity prices in Ireland are rising. Worryingly, they are rising to the point where a general level of ‘affordability’ (as is required by EU law) can no longer be guaranteed to consumers. As is demonstrated in this article, this is largely due to the underlying cost of developing renewable energy. As electricity prices will most likely continue to rise and effective competition has not yet developed (to provide affordability/ naturally reduce prices) and is unlikely to take hold for some time or to address the problem of guaranteeing a general level of affordability, a case is made for the imposition of temporary price controls on the Irish domestic electricity market. In support of this proposition, two cases are examined in which the Court of Justice of the European Union (CJEU) accepted the application of price controls to markets with similar characteristics.
Grounding Constitutional Remedies in Reality: The Case for As-Applied Constitutional Challenges in Ireland
David Kenny
Constitutional challenges have to be grounded in reality, focusing on actual or apprehended application of laws rather than words alone. This is achieved by two sets of procedural rules in constitutional law: standing rules, deciding who can take constitutional challenges to laws and what arguments they can make; and remedial rules, deciding what the consequence of a finding of unconstitutionality will be. This article argues that though Irish courts have successful focused constitutional challenges on the application of law with standing rules, they have not done so in respect of remedies, which are far too sweeping, and stretch far beyond the particular unconstitutional applications that create constitutional problems. It suggests that constitutional challenges in Ireland should be radically overhauled, replacing the primary constitutional remedy of outright invalidity of laws with the invalidity of applications – as-applied constitutional challenges. These challenges, which are the core remedial tool of US constitutional law, are totally unknown to Irish law. The article suggests, however, that they are fully compatible with the text and structure of the Irish Constitution, and would bring about several positive changes in Irish constitutional law.
The Rule in Pinnel’s Case: The Case for Repeal, a Mistaken Preponderance and Finding Consideration in Debt Renegotiations
James Kane
The High Court case of Barge Inn v Quinn Hospitality has reiterated the position of the rule in Pinnel’s Case as a principle of Irish law. A perusal of policy factors shows that the rule is poor policy and should be repealed or reformed by the legislature. The article argues that Irish Courts were under a misapprehension as to the authoritative weight which the rule carried. The rule, as originally conceived, was expressly subordinate to the overall doctrine of consideration. Accordingly, it is argued that the law became eschewed, particularly in Re Selectmove, where the rule was applied to override a previously valid form of consideration in practical benefits. The thin distinction now drawn by the courts between arrangements for part-payment and all other arrangements, is difficult to justify. Courts should have a visceral understanding of the indicia of consideration, which should not vary from one transaction type to another. The author urges that the Williams-principle should be applied in cases of part payment. Several novel methods for evidencing practical benefits are advanced. Finally the author raises the prospect that time and effort spent in the context of renegotiating debts might in itself constitute sufficient consideration.

The Nation’s Own Genius: A European View of Irish Constitutional Identity
Julien Sterck
The notion of constitutional identity has gained an unprecedented importance in the European Union. The similarities between the traditional Irish case-law and recent national decisions referring to this notion, notably in France and in Germany, makes of Ireland a particularly interesting context to enquire into a notion that remains elusive. In light of the Irish experience of membership, the notion of constitutional identity finds its raison d’être in the sovereign will to participate in the process of European integration. Therefore, normative conflicts are dealt with as a conciliatory balance between sovereign expressions of equal value. The notion of constitutional identity results from the recognition of the ineluctable nature of the process of European integration. It is in relation with and in reaction to EU law that certain constitutional provisions gain an identity value. The European Union has become the otherness which is constitutive of any identity claims. The notion of constitutional identity thus departs from an essentialist understanding and corresponds to a specific interpretive practice designed to control the application of EU law. Constitutional identity is best understood as selfhood, i.e. as the ability for the Member States to define their own genius within the evolving process of European integration.
Judicially Enforceable Socio-Economic Rights in South Africa: Between Light and Shadow
Sandra Liebenberg
This article reviews and assesses the South African experience of enforcing socio-economic rights as justiciable constitutional rights. It considers the history and background to the inclusion of socio-economic rights in the Constitution as well as the reforms to legal culture which are required to enable the courts to play a meaningful role in the protection of these rights. The major jurisprudence on socio-economic rights and the models of review adopted by the Constitutional Court to enforce different facets of these rights are analysed. Thereafter the achievements and weaknesses of this jurisprudence are identified and evaluated. The article concludes by outlining three strategies that could assist a jurisdiction such as Ireland contemplating constitutional reform processes to strengthen the constitutional protection of socio-economic rights to benefit from the best features of the South African experience without replicating its shadow side.
‘Zones of Constitutionalisation’ and the Regulation of State Power: The Missing Social Dimension to the Irish Constitutional Order
Colm O’Cinneide
Constitutions steer and direct the exercise of state power in various ways. In so doing, they mark out a ‘zone of constitutionalisation’, within which substantive legal and/or political constraints are imposed upon the freedom of action otherwise generally enjoyed by the legislative and executive branches of governments. Different constitutional systems map out their zones of constitutionalisation in different ways: Anglo-American
states tend to adopt a narrower approach in this regard than do countries in other parts
of the democratic world. In particular, Anglo-American constitutional systems usually lack
a ‘social dimension’, ie they do not attempt to direct how the executive and legislative
branches of government go about giving effect to principles of social justice, in contrast
to the systems of many states in continental Europe and the Global South. The Irish constitutional
system has at best an attenuated social dimension, reflected in the hollowed-out
provisions of the Directive Principles set out in Article 45 of the 1937 Constitution: in this
respect, Ireland adheres closely to the standard Anglo-American constitutional template.
However, this lack of a social dimension leaves a gap in the framework of Irish constitutionalism,
as illustrated by a comparison with Germany and other jurisdictions. As a consequence, it is time that serious debate started as to how the Irish zone of constitutionalisation could be reconfigured so as to accommodate some recognition of the right of individuals to live in ‘material conditions consistent with human dignity’.
Judicial Capacity to Enforce Socio-Economic Rights
Gerry Whyte
The publication of the Constitutional Convention’s report in March 2014 calling for enhanced constitutional protection for economic, social and cultural (ESC) rights has arguably moved the debate on judicial enforcement of socio-economic rights in Ireland into a new phase. A likely counterargument to the Convention’s recommendations is that the judiciary lack the capacity to enforce such rights. However an examination of the approach taken by the South African judiciary to the enforcement of the socio-economic rights protected in the Constitution of the Republic of South Africa reveals points of similarity with past decisions of Irish judges relating to such rights. This suggests that it would be well within the capacity of the Irish judiciary to oversee the actions and omissions of the two other branches of government in relation to constitutionally protected socio-economic rights should the recommendation of the Constitutional Convention be acted on. 

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