Posts Tagged ‘ Law ’

Letter to Seán Gallagher

I‘ll admit outright, I’m not a Gallagher supporter. I believe him to be coasting by on his relatively clean image, a campaign which has nothing to do with the office he seeks and generally keeping his mouth shut. But given his climbing poll numbers, he must be taken seriously, which is why I emailed a few points to his campaign for clarification. I do not expect a response.

Hi,

I am just wondering about a few central issues with Seán’s mandate.

Ignoring the issue of whether or not even the government can actually create jobs in the private sector or merely create the conditions for the same, how does Seán plan to focus on job creation? If it is merely about creating the atmosphere and culture for jobs, there is little in the way oratory can impact on culture, given the slow changes that occur within it over time.

More so, the last constitutional group found “The cabinet, led by the Taoiseach, exercises the
executive power of the State, in accordance with the Constitution, and is accountable to the people through the people’s representatives in the Dáil. The President has no executive powers apart from some discretionary ones that make the President the guardian of the Constitution.” This is in line with the constitutional provisions set down in Articles 12-14. In exercising what is effectively the role of minister for trade and/or enterprise if he were to take an active role in job creation, he would be over-stepping the remit of his constitutional role.

Articles 28.1.2 and 28.4.2 go on further to assess the collective role of ministers in the delivery of government portfolios and in the first instance, how executive power can only be exercised by the government or under the authority of the same. Considering the government is unlikely to abolish the post of minister for enterprise and cede the power to Seán if he were to take office, he would essentially be exercising powers outside of the approval of the government and violating multiple constitutional provisions in the prosess, not just the accepted responsibility of the president.

As symbolic leader of the state, by focusing centrally on such a concern, there is also the potential for an ideological deficit, one not of social and intellectual discourse but one ignoring the issues that were created during the Celtic Tiger period that led to the collapse that followed. How can two such conflicting ideas of money/returning us to what most economists will admit was an anomalous period in Irish history, (especially given most of that money came not from individual enterprise but FDI) and the greed and individualism it brought be balanced against each other fairly and justly?

Many Thanks,
Charles O’Sullivan

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Intellectual Property Paper

The Conflict Between Free Content and a Creative Economy in the Internet Age

Introduction
The proliferation of the Internet has led to information and ideas being shared in a way never imagined before whilst leading to a battle between those who before had a monopoly on how their output was presented and shared with the public and a public that now expects free content from them and will no longer pay high premiums for the content remaining. Thus it comes down to how much copyright must be diluted to give the market what it demands as standard whilst protecting the commercial viability of the content as well as well as exploiting new mediums created by the Internet to access new revenue models. Unfortunately, the music industry in particular have done little to put forward a united front, sowing confusion amongst the public at large (not helped by a hugely varying international approach to copyright law), meaning file-sharing continues to be a viable alternative to paid content.

Full paper and citations

Section 205 – Minority Oppression

Groundbreaking or still defined by the “privilege of incorporation?”
Section 205 of the Principle Act has been largely influential in how it has wrestled
absolute control from the majority shareholders and directors to enable minority
shareholders to effect change where otherwise they would be incapable of doing so.
However this in itself is limited in its scope, largely by the rule in Foss v Harbottle and the
overarching ʻprivilege of incorporationʼ that gives rise to case law such as this and statutes.
Thus, although it has redressed the balance of rights given to shareholders, it is of little
effect in a body of law that appears to favour the legal over the natural person.

Section 205

Natural Law

So here’s another paper, working a bit better with this technology buzz…

The Objective Fallacy

“The natural law tradition is one that often reduced to concerning those contained within the
Christian religion and its contemporaries, but in fact encompasses the Ancient Greek and
Roman traditions up to and including the economic school of law and post-modern
assessments. As Mill wrote, “nature, natural and the group of words derived from them, or
allied to them in etymology… have become entangled in so many foreign associations,
mostly of a very powerful and tenacious character… which their original meaning will by no
means justify and which have made them one of the most copious sources of false taste,
false philosophy, false morality and even bad law”1, thus regardless of how correct it is,
natural law has, as one of its greatest weaknesses become tied to the idea of a
primogenitor set of values that are often too easy to criticize – Platoʼs illustration of the
Philosopher King and higher world of ideas, St. Thomas of Aquinasʼ belief in Godʼs laws of
morality, Richard Posnerʼs use of the free market as the driving force for law and Jean-
Paul Sartreʼs belief in the self, all create a central and immutable set of presumptions that
are far from infallible, all acting as objective moral and ethical standards based on the
philosopherʼs own subjective beliefs and the prevailing ideas of their time. As a result, in
removing all these different schools of thought from natural law (except the Catholic
tradition) is not only factually incorrect, but another of its most significant failings.
As each of these philosophers make fundamental rights (or the restriction of the same) key
to their studies, it is perhaps the most simple area with which to connect them, and in the
process, offering a look into the development of natural law beyond the simplistic views
offered by most scholars.”

The European Democratic Deficit

EU Assignment

Introduction
The European Union has developed in scope from being merely economic in intentions to encompass the political and foreign spheres of government yet, it is constantly assaulted for harbouring a deep-seated democratic deficit. The Lisbon Treaty, following on from the ill-fated European Constitutional Treaty, seeks to remedy this through broad reforms but manages to bring with it as many issues as it sought to repair. Issues such as the conflict between the elected European Parliament and the non-elect, the Commission.
These issues, are in some ways too confining also as they do not manage to fully legitimise this vast area of public law enough to overcome such deficiencies as the economic mindset of the court and the unstable validity of the Charter of Fundamental Rights.

Work, work, work…

Stuck doing work for college assignments learning about Posner selling babies and Marx’s perfectionism but I’ll be back soon enough.

What happened to rights?

So as I was getting ready this morning and flicked on the TV (in the interest of full disclosure, it was TV3’s Midday) to discover that they were talking about the CCTV cameras placed in the toilets of a Kildare secondary school and subsequent protest by students.
The full story is here but more than anything, I worry about the complete lack of any anger on the part of most people. Nora Owen, the former Minister for Justice stated when asked that she effectively saw no issue with the cameras as to the best of her knowledge, they would not be aimed at any area of the rooms that could violate privacy and that the only action on the part of the school that was somewhat reprehensible, was not seeking permission from parents. Well sadly Mrs. Owen, I think with such claims you just reminded me that you were one of those Ministers who wasn’t qualified to be in that position in the first place (She holds a degree in Industrial Chemistry).
Under Article 40.3.1 of the Irish Constitution, are the unenumerated rights, rights that have been discovered within others by the courts (more specifically Ryan v Attorney General was the first case to do so) and amongst these is the right to privacy created within Kennedy and Arnold (before this privacy only extended to marital privacy as in McGee) as “the nature of the right to privacy is such that it must ensure the dignity and freedom of the individual in a democratic society”. With the passing of the Lisbon Treaty, the European Charter on Human Rights is also fully incorporated in Irish law and the privacy right contained within it are binding against the State.

If the Data Protection Commissioner only has issues with the legality of the act, he really needs to go back and learn some basic law principles, because even if the handling of the video from the cameras is in a grey area, the installation of the cameras is not; if the school wants to prove their actions are constitutional, they’re going to need to prove that it’s a proportionate response, something I don’t think they can do. The problem is, if they say that the cameras will have a full view of the rooms in order to catch those bullying other students and vandalising school property, they’re going to have a tough time proving that the acts that they’re stopping are serious enough to warrant such a gross violation of privacy and likewise, if they are only pointed at certain areas of the rooms to minimize the intrusion, it will be difficult to argue the effectiveness of the cameras at all. More importantly, if we all think back to when we were teenagers, we would remember that if a teenager sets their mind to do something, they’ll do it, the cameras will more than likely just make them do it somewhere else on the grounds.

What irritates me most, is that so many people in this country only seem to protest or care about issues when it affects their wage package – a bill recriminalising blasphemy came into law without much, if any complaint from the general public but when the public sector have to take pay cuts, they’re out on the streets. When these kids have the balls to stand up and protest against something they believe in, that they know to be wrong, the general impression I’ve gotten is that they’re troublemakers, complaining about something that’s inevitable, they should just lie down and stop complaining.

Why should any criticise someone for standing up for what they believe in merely because it’s not tangible or currency? We need activism and protests because they remind us of why we shouldn’t stop caring about what’s going on around us, that there are slippery slopes where ‘one thing leads to another’ and suddenly we’re affected but just as we were complacent before, those remaining won’t help us.
I personally hope there are more of this kind of youth in future because ‘If our colleges and universities do not breed men who riot, who rebel, who attack life with all their youthful vision and vigor then there is something wrong with our colleges. The more riots that come on college campuses, the better the world for tomorrow.’ (Robert Kennedy)