Irish Judicial Studies Journal
- No. 3-22, December 2022
- No. 2-22, July 2022
- No. 1-22, January 2022
- No. 2-21, July 2021
- No. 1-21, January 2021
- No. 2-20, July 2020
- No. 1-20, January 2020
- No. 2-19, July 2019
- No. 1-19, January 2019
- No. 2-18, July 2018
- No. 1-18, January 2018
- No. 1-17, January 2017
- No. 2-10, July 2010
- No. 1-10, January 2010
- No. 2-9, July 2009
- No. 1-9, January 2009
- No. 2-8, July 2008
- No. 1-8, January 2008
- No. 2-7, July 2007
- No. 1-7, January 2007
- Situating Social Rights: Housing and Distributive Justice - Post TD
This article considers the impact of TD on housing rights in Ireland. While Ireland has signed up to multiple housing rights protections in the international human rights context, it has failed to implement them. TD ensures no constitutional intervention from the courts in this context. Despite generous Irish State funded social housing over the past century, access to shelter or housing is not treated as a rights issue.
- Distributing Collective Burdens and Benefits: O'Reilly, TD, and the Housing Crisis
This article considers the underexplored nexus between the debates about housing rights and the TD debate, and the question of the appropriateness of judicial intervention in the social and economic arena. It contends that the property rights decisions that make responses to the housing crisis problematic are in fact inconsistent with the division of labour between courts and elected branches of government suggested in TD, and explores possible resolutions to this inconsistency.
- TD v Minister for Education: Hard Case, Bad Law
This article considers TD v Minister for Education in contrast to the development of social rights protection in South Africa. It finds that South Africa developed powers similar to those exercised by Kelly J in TD incrementally. TD was a hard case, causing the possibility of incrementally developing social rights protection to be foreclosed upon. Had mandatory orders for other rights been litigated first, the possibility of social rights protection developing would be higher.
- Judicial Enforcement of Social Rights in a Comparative Perspective
This paper discusses the TD case, and its core holding about the justiciability of social rights, in comparative perspective. Canvassing the practice of courts in the US, Canada, Australia, New Zealand and South Africa, and the UK Supreme Court and the courts of Northern Ireland, it concludes that, despite the controversy surrounding the TD case’s outcome, it is very much in line with Ireland’s close comparator jurisdictions.
- Revisiting Old Ground - TD, Sinnott and the Dangers of Clinging Too Tightly to Separation of Powers Orthodoxy
This article seeks to reassess the TD and Sinnott cases in Irish constitutional law. It explores the context of these cases, and why they are regarded as important and closely linked in Irish constitutional discourse. It then analyses their reasoning to consider whether they withstand scrutiny after two decades. It concludes that the judgments painted with too broad a brush, reaching some questionable conclusions, drawing overly categorical distinctions between branches of government, and creating conceptual confusion.
- The TD Case and Approaches to the Separation of Powers in Ireland
The case of TD v Minister for Education is a great microcosmic example of the varying philosophies of the separation of powers and the role of the judge under the Constitution and for many years it set a very high standard for the review of executive power, but perhaps the wind is changing on these issues. This article will briefly consider the various perspectives given by the judges in the TD case on the separation of powers before moving on to a more recent example to assess whether the vision of formalism espoused by the TD judgment is now falling out of favour.
- Reading TD Down
This article argues that TD v Minister for Education was about something more specific than has been supposed in the academic literature. Rather than being about the justiciability of socio-economic rights in principle, or the separation of powers broadly, it was an appeal about whether a High Court judge had the jurisdiction to hand down the particular order. The order contained great policy detail and time-specificity. The article argues that the ruling in TD, when understood as such, can be readily justified as a matter of constitutional principle, and can also be reconciled with the much more considered analysis of judicial review of executive power in Elijah Burke v Minister for Education. It concludes that TD can be ‘read down’ in future, fading into its rightful place in the background of Irish constitutional law.
- I Would Do Anything for Rights - But I Won't Do That
For all its influence and renown, TD v Minister for Education is arguably an outlier among the many decisions of the Irish courts on the topic of rights enforcement against the executive. This paper illustrates this by reference to case law before TD, and discusses recent reaffirmation of this by the Supreme Court. It then considers various possible explanations for this outlier status, and suggests that the best explanation might be deep discomfort on the part of the judiciary with enforcement of economic and social rights. It concludes by noting that this discomfort could transcend constitutional text, so that even if further rights of this sort were inserted into the Constitution, the courts might refuse to strongly enforce them.
- TD v Minister for Education, Constitutional Culture, and Constitutional Dark Matter
This paper suggests that the true influence of the TD case is seen not in its formal legal significance but in its less obvious impact on Irish constitutional culture. Drawing on Tribe’s notion of landmark cases curving constitutional space, it suggests TD is a form of constitutional dark matter, warping the fabric constitutional law invisibly by entrenching a highly cautious judicial culture and a political culture that is less sensitive to rights infringements caused by policy failures.
- Should there be a co-ordination and review of court procedures with a view to promoting efficiency within a digital context?
- Children's Rights and End of Life Decision-Making: In the Matter of JJ
This article analyses the decision of the Supreme Court in In the Matter of JJ  IESC 1. The article observes that this case differs from previous end-of-life cases in that it countenances a mixture of acts and omissions leading to the death of the patient. It outlines the legal and ethical...
- Judges in Regulatory Space: Towards Responsive Regulation of Judicial Conduct
In formal terms, the regulation of judicial conduct in Ireland has been limited to a single formal procedure for removal of judges set down in the Constitution. However, the absence of formal rules and procedures has not left the regulatory space wholly empty. This article investigates the nature...
- Should Ireland prohibit the contemporaneous media reporting of juvenile trials?
Whenever serious crimes such as murder, manslaughter or rape are allegedly committed by children, they are heavily reported by the media. This occurred during the murder trial of Ana Kriégel, and may be observed again if children are ever tried in the Central Criminal Court. But what does the Ana...
- Catholicism and the Judiciary in Ireland, 1922-1960
This article examines evidence of judicial deference to Catholic norms during the period 1922-1960 based on a textual examination of court decisions and archival evidence of contact between Catholic clerics and judges. This article also examines legal judgments in the broader historical context of...
- Life imprisonment and the Parole Act 2019: Assessing the Potential Impact on Parole Decision-Making
This article examines the Parole Act 2019 and its likely impact on decision-making surrounding the release of life sentence prisoners in Ireland. The informal and political nature of the release process for life sentence prisoners has been the subject of considerable criticism. The Act will...
- Developments in Irish Sentencing Law
- Towards A Presumption Of Victimhood: Possibilities For Re-Balancing The Criminal Process
This article explores what changes might be possible to better accommodate victims within criminal trials. While the transplantation of foreign victim-oriented procedures is often posited, this requires a wider understanding of their intricacies. What may be possible? We here consider the advance...
- The Developmental Nature Of Children and a Proposal for a Specialised Irish Youth Justice System
This article provides an insight into one aspect of the Irish juvenile justice system, namely the developmental nature of children and young persons who appear before the courts. In doing so it observes current judicial practice, both from the perspective of judges, and through the lens of young...
- Our Herculean Judiciary?: Interpretivism and the Unenumerated Rights Doctrine
This paper examines the unenumerated rights doctrine through the prism of Dworkinian legal theory. It contends that an interpretivist attitude is evident in much of the essential judicial dicta, and further explores the extent to which judges in the unenumerated rights cases have exercised an...