Eoin – Page 108 – Cearta.ie

Contract as promise in Shakespeare’s Comedy of Errors

Posted on 4 December, 2009 by Eoin

From Christine Corcos on the Law and Humanities blog [with added links]:

Contract Law in the Comedy of Errors

Paul Raffield, University of Warwick School of Law, has published “The Comedy of Errors and the Meaning of Contract,” in Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (3 Law and Humanities (2009) [link]). Here is the abstract.

This article examines the theme of contract and its symbolic connotations of societas or fellowship, in the context of Shakespeare’s [link] The Comedy of Errors [link] and its performance on 28 December at the Gray’s Inn revels of Christmas 1594. Central to the argument is the extraordinary advancement of contract law in Elizabethan England, and in particular the significance of the promise to the status of binding bilateral agreements. In particular, the analysis considers the promotion of assumpsit [wikipedia] at the expense of actions for debt [especially after Slade’s Case (1602) 4 Co Rep 91a] in relation to a society (and a legal profession) whose mores were heavily influenced by humanist notions of the individual conscience, which simultaneously bound the subject of law into an ethical association with his fellow citizens and freed him (at least putatively) from the constraints of immutable, ancient law.

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Speech Art

Posted on 2 December, 20092 December, 2009 by Eoin

Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:

… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.

In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.

Mark Tushnet has written an excellent discussion of Bezanson’s book.…

Censor (n.)

Posted on 2 December, 20092 December, 2009 by Eoin

A censor is a man who knows more than he thinks you ought to.

Granville Hicks

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The last Irish case on criminal libel

Posted on 1 December, 20096 November, 2012 by Eoin

Yesterday’s Irish Times reminds me of an interesting High Court judgment handed down early in the Summer. It’s called Dennehy v Independent Star Ltd trading as The Irish Daily Star Newspaper [2009] IEHC 458 (28 May 2009) and it concerns an attempt to bring a prosecution for criminal libel. Section 8 of the Defamation Act, 1961 (also here) provides

No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

When the Defamation Act, 2009 (pdf) comes into effect in the new year, section 4 will repeal the 1961 Act and section 35 will abolish the common law crime of criminal or defamatory libel (the UK is soon to follow this lead). So, the Dennehy is likely to be last Irish case concerning this ancient crime. But the case also looks to the future, as one of the arguments made on behalf of the applicants was founded upon the European Convention of Human Rights, and the reasons why that argument failed are quite striking.…

Defamation and the Constitution

Posted on 30 November, 200931 July, 2016 by Eoin

“Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.

In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).

In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here).…

A judicial perspective on mobile phones

Posted on 29 November, 20099 December, 2009 by Eoin

By rmay (also here) on Toonpool:

Image: Defendant standing in front of a judge.
Caption: Judge: “… plus thirty days for not turning off your damn cell phone”.

Bonus link: Roy Keane‘s reaction to a reporter who doesn’t turn a ringing phone off.…

Esin Örücü on the Convergence of Legal Systems

Posted on 25 November, 200925 November, 2009 by Eoin

Prof Esin Örücü via the University of Glasgow website The Irish Society of Comparative Law (ISCL) was established in June 2008 to encourage the comparative study of law and legal systems in Ireland. They will host a very exciting event tomorrow evening, 26 November 2009, when Professor Esin Örücü (left) of the School of Law, University of Glasgow will speak on the topic:

A Comparatist’s Analysis of the Convergence of Legal Systems.

The lecture will be held in Room 11 of the School of Law, Trinity College Dublin (map) from 5:00pm to 6:30pm. Admission is free, and all are welcome. Queries about the event or the society may be directed to the Vice President or the Secretary.

Prof Örücü is Emeritus Professor of Comparative Law at both the University of Glasgow and Erasmus University in Rotterdam; she is a Member of the International Academy of Comparative Law; and she has been a towering figure in comparative legal scholarship for the last 30 years or more. Her recent book The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (Martinus Nijhoff, 2004) – delivering on its musical sub-title in chapters successively headed Overture, Intermezzo, Cadenza and Finale – is a beautifully composed and powerful meditation on the role and function of comparative law.…

Comparative law in the ECHR

Posted on 25 November, 200923 November, 2009 by Eoin

Via ECHR blog, news of an important article:

Article on ECtHR and Comparative Law

Monika Ambrus, a colleague within the Netherlands School of Human Rights Research, based at Erasmus University Rotterdam, has posted ‘Comparative Law Method in the Jurisprudence of the European Court of Human Rights in the Light of the Rule of Law’ on SSRN. The article has appeared in the Erasmus Law Review (vol. 2. No. 3, 2009). This is the abstract:

In several cases, comparative law exercises have been given excessive weight, which has given rise to conflicting interpretations in the case law of the European Court of Human Rights (ECtHR). This use of the comparative law method by the Court has been widely criticised. The critical voices have generally argued in terms of what is prohibited by the principle of the rule of law, which the Court itself is also bound to take into account, namely the arbitrary use of power. In the light of these criticisms, it is a challenging task to examine whether and to what extent the comparative law method complies with the principle of the rule of law, which is the aim of this paper. An analysis of several ECtHR cases demonstrates that in many respects the comparative exercises of the Court indeed do not comply with the requirements set by the formal conception of the rule of law.

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