The Roundtable
Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
 By Brónach Rafferty
Brónach Rafferty is a fourth-year law student at Trinity College in Dublin, Ireland. I have been thinking about my law degree lately. What is it that my professors are trying to teach me? What skills am I gaining? The ability to think critically, objectively? Or the ability not so much to think as to follow a system of rules that are already in place? Is there too much of a discrepancy between law as it is studied in an academic context and law in practice? Law is a strange discipline because it is often studied as a purely academic discipline, yet it is geared towards something much more vocational. In the same way that reading papers about psychological research doesn’t make one a psychologist, simply reading case after case, textbook after textbook doesn’t make one a lawyer. In my classes, however, am I learning and actively engaging in my legal education, or am I merely being taught and passively absorbing information? I now wonder if I am learning how to think like a lawyer, or rather just taking the law as it is right in front of me.
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 By Brónach Rafferty Brónach Rafferty is a fourth-year law student at Trinity College in Dublin, Ireland. “First I was a lovely wife, picturesque and pensive, showed no signs of inner life beyond the mildly inoffensive. Now I must assert myself, and break out if I can, which isn’t easy for a woman, written by a man.” These are the an idealized, lamentations from Rough Magic Theatre Company’s 1971 production of “The Train.” [1] Under Irish law, the Irish woman does indeed seem to be ‘written by a man’. The idea of the ‘Irish Mammy’ is held up as the epitome of all that is Irish. Good, kind and always willing to do the washing, she is reputedly what makes Irish society “great”, but it wasn’t long ago that the Irish Mammy couldn’t keep her job in the bank after she got married. She couldn’t refuse to have sex with her husband. Irish laws dictated that an Irish Mammy’s rape by her husband does not truly constitute rape. Above all other identities, however, the Irish Mammy is a woman who has long been neglected by history. In her paper “Feminism, Marxism, Method, and the State”, Catharine A. MacKinnon advances the idea that “the law sees and treats women the way men see and treat women...the state is male.” As a consequence, women are funneled into a very specific way of being female. [2] Here, I will examine the way in which the Irish Constitution perpetuates the female myth, the societal role it imposes upon women, and their damaging effects on both women and men.  By Brónach Rafferty
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland. In the aftermath of the deaths of both Justice Antonin Scalia of the U.S Supreme Court and Justice Adrian Hardiman of the Irish Supreme Court this year, there has been much discourse in both jurisdictions as to who should next be appointed to the judiciary. It is assumed that the next appointees to the court will have been practicing lawyers. However, is there not a case to be made for the legal academic as judge? As I have alluded to in my most recent article, for the most part, the judiciary consists of a rather type specific grouping of people: privately educated, white, and mostly male. [1] Lawyers have a certain experience with the law in practice. Subsequently, the lawyer-judge develops, over the course of his education and experience, an individualized working conception upon which he will subconsciously rely. [2] And herein, it could perhaps be argued, lies the issue with lawyer-judges: it is their ‘working’ knowledge of the law in practice that serves to influence rationale and precedent in decisions, and it is the individualistic aspect of such a working conception of law that underlines the subjectivity of this understanding of law as had by lawyer judges. Furthermore, that it is a conception relied upon ‘subconsciously’ illustrates the way in which lawyers become part of an established way of thinking, a particular community of thought whereby thought process and actions are carried out without much attention given to the finer points of law. Little independent analysis or thinking outside the box is encouraged.  By Brónach Rafferty
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland. I believe that reasonableness as it currently exists in law is a fallacy. ‘Fallacy’ is defined as a mistaken belief based on unsound arguments. Such ‘unsound arguments,’ which form the unstable foundations upon which uncertain beliefs as to what reasonableness is, are evident throughout both case law and legal literature. Reasonableness is invoked throughout as an answer to many things. However, there is little discussion given as to what is meant by reasonableness. From where does reasonableness come from, and what does it mean? Is this ‘reasonableness’ open to everyone, does everyone feel that it is open to them, that it grounds them? And if so, then why not have just one law: be reasonable? The law purports to exist as a means to regulate society. Therefore, if it is clear what the law requires, then why do we need reasonableness? In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1], Lord Green held that, for the court to decide what is meant by reasonableness, it must first decide what is a reasonable decision maker and what decision that reasonable decision maker would take. However, it is ‘the court’ which ultimately defines what is meant by reasonableness through their interpretation as to what the ‘reasonable man’ is. Reasonableness is held to be that which the court says it is, and what the court decrees to be reasonable is that which is reasonable. There is a fallacy in this circular logic which renders reasonableness vague and problematic.  By Brónach Rafferty
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland. The advent of the unenumerated rights doctrine in Ireland during the 1960s and 1970s could be said to align with a more modern version of Ireland, as envisioned by the Taoiseach from 1959 – 1965, Seán Lemass, who was seen as a progressive figure in Irish politics. Lemass “hoped that the court would become more like the US Supreme Court.” [1] As with the American system of law, the Irish Legal System was based upon its own Constitution. The ninth amendment of the American Constitution, however, acknowledged the existence of unenumerated rights The most than can thus be said is that the framers of the ninth amendment intended it as a declaration, should the need for it arise, that the people had other rights than those enumerated in the first eight amendments, and the federal Judiciary and the State legislatures could so use it if they had to do so. [2] |
