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Displaying Results 1 - 25 of 584 on page 1 of 24
Marked
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A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law
(2008)
Gopalan, Sandeep
A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law
(2008)
Gopalan, Sandeep
Abstract:
Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address the theoretical vacuum. Part I argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part II puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part III concludes that agreement design in transnational commercial law ...
http://eprints.nuim.ie/2436/
Marked
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The Creation of International Commercial Law: Sovereignty Felled?
(2004)
Gopalan, Sandeep
The Creation of International Commercial Law: Sovereignty Felled?
(2004)
Gopalan, Sandeep
Abstract:
The creation of international commercial law presents an interesting paradox for proponents of sovereignty in international law. Indeed, it could be argued that the creation of international commercial law is the vanishing point of sovereignty in that nation states are becoming increasingly less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the consequent need for international commercial law. The term "harmonization" will be used as a surrogate to discuss the creation of international commercial law, as it is the primary means by which international commercial law is created. This article seeks to chart this trend and show that nation states are being marginalized and will become significantly less relevant as more and more international legal instruments are created. In Part II, I paint the landscape against which th...
http://eprints.nuim.ie/2456/
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Alternative Sanctions and Social Norms in International Law: The Case of Abu Ghraib
(2007)
Gopalan, Sandeep
Alternative Sanctions and Social Norms in International Law: The Case of Abu Ghraib
(2007)
Gopalan, Sandeep
Abstract:
This Article examines the use of alternative sanctions in international law using the exemplar of the abuses at Abu Ghraib. It argues that social sanctions like shaming have a powerful role to play in enforcing international law norms. When properly deployed, shaming activity by the international community can serve to influence the offending state to take corrective action and fill the enforcement gap in international law. This is the lesson from Abu Ghraib. There is evidence that the abuses so vividly depicted in the now infamous photographs were not an aberration, but had occurred for a considerable time despite complaints. It took a shaming campaign for expressions of regret and corrective action to ensue. The campaign forced U.S. citizens to come to terms with the fact that their government was acting in violation of internalized international norms (againsttorture). The coincidence of international law norms with internalized domestic norms facilitated expeditious corrective a...
http://eprints.nuim.ie/1925/
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Matrimonial property and Irish law: a case for community.
(2002)
Buckley, Lucy Ann
Matrimonial property and Irish law: a case for community.
(2002)
Buckley, Lucy Ann
Abstract:
Family property is a primary area of contention in property law. If spouses only have rights in relation to property to which they can show legal or beneficial title, they may be left unprotected in the event of marital breakdown, despite what may be a lengthy and considerable contribution to family life. If spouses have automatic rights to one another's property, injustice may result where no contribution (financial or familial) has been made. Should the law provide for property redistribution, as opposed to maintenance? If a property interest is to be granted, how, and by whom, is such an interest to be quantified?
http://hdl.handle.net/10379/1765
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Diminished responsibility in Ireland: historical reflections on the doctrine and present-day analysis of the law
(2011)
Kennefick, Louise
Diminished responsibility in Ireland: historical reflections on the doctrine and present-day analysis of the law
(2011)
Kennefick, Louise
Abstract:
Since its genesis, criticism of the doctrine of diminished responsibility has been extensive, both in respect of its underlying principles and practical effects. It has been called all sorts of names: “elliptical almost to the point of nonsense”,1 inaccurate2 and essentially illogical.3 Yet, in 2006, the Irish legislature deemed it appropriate to incorporate the partial defence into Irish law. To attempt to ascertain why, this paper reflects upon the development of the doctrine throughout the jurisdictions of the United Kingdom, and tracks its gradual progress to the republic under s. 6 of the Criminal Law (Insanity) Act 2006. With the doctrine now firmly enshrined in Irish law, the paper moves to consider the underlying rationale peculiar to s. 6, in addition to the early signs of its impact in practice. The first part of this paper charts chronologically the fluctuating nature and scope of the doctrine in the jurisdictions discussed, showing the malleable margins pertaining to the...
http://eprints.nuim.ie/2915/
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What the Doctor Ordered: Revisiting The Relationship Between Psychiatry and the Law in the UK and Ireland
(2008)
Kennefick, Louise
What the Doctor Ordered: Revisiting The Relationship Between Psychiatry and the Law in the UK and Ireland
(2008)
Kennefick, Louise
Abstract:
Following decades of protracted debate, the introduction of the Criminal Law (Insanity) Act 2006 (the ‘2006 Act’) has once again placed the turbulent relationship between psychiatry and the law under the legal microscope. The long anticipated arrival of the 2006 Act brought with it into Irish law new definitions of insanity 1 and fitness to be tried2 in addition to a new plea of diminished responsibility.3 The question of whether the accused was suffering from a ‘mental disorder’ at the time he executed the act (or at the time of trial in the case of fitness to be tried) is the primary focus of these sections of the 2006 Act. Defined as including mental illness, mental disability, dementia or any disease of the mind (apart from intoxication),4 ‘mental disorder’ presents itself as a medical or psychiatric term within a legislative setting. The prominent positioning of ‘mental disorder’, together with the retention of the term ‘insanity’, demonstrates that the basis of any discussion ...
http://eprints.nuim.ie/2916/
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Law and Justice in Community: the Significance of the Living Law
(2011)
DOYLE, ORAN JOSEPH
Law and Justice in Community: the Significance of the Living Law
(2011)
DOYLE, ORAN JOSEPH
Abstract:
Law and Justice in Community provides an account of law that privileges the role of custom, which the authors characterise as the living law. In this paper, I argue that the authors' account of law observes the same features as those observed by Hart in his Concept of Law. However, Hart viewed all law through the lens of state law, with the result that he did not identify the purpose of law. Conversely, Barden and Murphy view all law through the lens of the living law, with the result that they do not identify some of the most acute issues raised by pervasive state law. Ultimately, each account is helpful as a corrective to the other.
http://hdl.handle.net/2262/60550
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On the practicability of codifying English law, with a specimen code of the law of evidence
(1872)
Lawson, James A.
On the practicability of codifying English law, with a specimen code of the law of evidence
(1872)
Lawson, James A.
Abstract:
There is a very natural desire on the part of the public to have our laws simplified and condensed. It is a legal maxim that everyone is supposed to know the law, and every person is visited with the consequences of his ignorance, and yet those who have spent their lives in the study of it are often obliged to confess their ignorance; and if anyone desires to know what is the law applicable to a particular state of circumstances, he is generally obliged to search through many volumes, and read and consider many decided cases. The written law is to be found at large in the volumes of the statutes, and the unwritten law is not collected in any authoritative form, but is to be looked for amongst the numerous volumes of reports of cases commencing from the very earliest times, and coming down to the present day, and which at present increase at the rate of six or eight volumes yearly. Now the public rebel in feeling against this state of things, and ask why the law cannot be contained i...
http://hdl.handle.net/2262/5441
Marked
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The Law of Judgments and the jurisdiction of the sheriff in selling land, considered with reference to the complaints of the County Down people on the subject: (1) That the Law of Judgments operates unequally and harshly on leasehold interests and upon yearly tenancies, (2) That the jurisdiction of the sheriff in selling leasehold and yearly tenancies under the writ of “fieri facias” is burdensome and oppressive, (3) That the creditor who involves the tenant in the heaviest law costs can get an unjust priority over other creditors, (4) That the judgment creditor can in many cases confiscate the rights of the widowed mother and the younger brothers and sisters of the tenant, (5) That sales by “fieri facias” is a new procedure that has sprung out of the Land Act
(1875)
Hancock, W. Neilson
The Law of Judgments and the jurisdiction of the sheriff in selling land, considered with reference to the complaints of the County Down people on the subject: (1) That the Law of Judgments operates unequally and harshly on leasehold interests and upon yearly tenancies, (2) That the jurisdiction of the sheriff in selling leasehold and yearly tenancies under the writ of “fieri facias” is burdensome and oppressive, (3) That the creditor who involves the tenant in the heaviest law costs can get an unjust priority over other creditors, (4) That the judgment creditor can in many cases confiscate the rights of the widowed mother and the younger brothers and sisters of the tenant, (5) That sales by “fieri facias” is a new procedure that has sprung out of the Land Act
(1875)
Hancock, W. Neilson
Abstract:
The Law of Judgments and the jurisdiction of the sheriff in selling land, considered with reference to the complaints of the County Down people on the subject: (1) that the Law of Judgments operates unequally and harshly on leasehold interests and upon yearly tenancies, (2) That the jurisdiction of the sheriff in selling leasehold and yearly tenancies under the writ of “fieri facias” is burdensome and oppressive, (3) That the creditor who involves the tenant in the heaviest law costs can get an unjust priority over other creditors, (4) That the judgment creditor can in many cases confiscate the rights of the widowed mother and the younger brothers and sisters of the tenant, (5) That sales by “fieri facias” is a new procedure that has sprung out of the Land Act
http://hdl.handle.net/2262/5778
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Mark
Challenges in Applying Human Rights Law to Armed Conflict
(2005)
Lubell, Noam
Challenges in Applying Human Rights Law to Armed Conflict
(2005)
Lubell, Noam
Abstract:
The debates over the relationship between International Humanitarian Law and International Human Rights Law, have often focused on the question of whether human rights law continues to apply during armed conflict, and if so, on how these two bodies of law can complement each other. This article takes the continuing applicability of human rights law as an accepted and welcome starting point, and proceeds to lay out some of the challenges and obstacles encountered during the joint application of IHL and Human Rights Law, that still need to be addressed. These include extra-territorial applicability of human rights law; the mandate and expertise of human rights bodies; terminological and conceptual differences between the bodies of law; particular difficulties raised in non-international armed conflicts; and the question of economic, social and cultural rights during armed conflict.
http://hdl.handle.net/10379/1782
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Mark
Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges
(2011)
Flanagan, Brian; Ahern, Sinead
Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges
(2011)
Flanagan, Brian; Ahern, Sinead
Abstract:
This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin’s theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research
http://eprints.nuim.ie/2979/
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A comparison of the law of poor removals and chargeability in England, Scotland, and Ireland, with suggestions of a plan of assimilation, and a remedy for hardships now caused by removals.
(1871)
Hancock, W. Neilson
A comparison of the law of poor removals and chargeability in England, Scotland, and Ireland, with suggestions of a plan of assimilation, and a remedy for hardships now caused by removals.
(1871)
Hancock, W. Neilson
Abstract:
The law of poor removals had its origin in what was properly called the law of settlement. It is now a part of the law of chargeability of districts to support their own poor, and is in fact part of the machinery by which such chargeability is enforced. The ancient law of settlement which allowed people of humble rank to be removed to the place of their birth or settlement, for fear they might become a charge on the rates of the district they came to, was introduced into England and Wales in the reign of King Charles II, and its main provisions continued in force until 1795, and in one class of cases until 1834. The law of chargeability of districts to support their own poor has existed in Scotland since 1579; in England and Wales since 1596; and in Ireland since 1838. The difference of this law in different portions of the United Kingdom forms an important element of the present poor removal question.
http://hdl.handle.net/2262/5439
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Mark
Desirable ameliorations of the law
(1940)
Meredith, James C.
Desirable ameliorations of the law
(1940)
Meredith, James C.
Abstract:
Those that call for respect for the law simply because it is the law and not because it expresses the conscience and will of the people and is adequate for modern requirements will call in vain—at all events, in Ireland. Nothing so undermines respect for the law as indifference to its defects: nothing fosters respect for the law so much as enthusiasm and concern for its perfection. It is this conviction that has prompted me to enquire in what directions our law has become more or less out-of-date and stands most in need of improvement. What I have to say might, however, produce an unintended impression if my observations were confined to needed reforms and was to say nothing of the improvements effected in our law in recent years, of which the legislature and all law-respecting citizens have a right to be proud. I hope, therefore, to be pardoned, for devoting a few short remarks to that matter, so that meritorious achievements and shortcomings being viewed side by side, the latter m...
http://hdl.handle.net/2262/5179
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Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi
(2009)
Banda, Sibo
Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi
(2009)
Banda, Sibo
Abstract:
Competent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court’s authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.
http://eprints.nuim.ie/1892/
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"Proper provision" and "Property Division": Partnership in Irish matrimonial property law in the wake of T v. T.
(2004)
Buckley, Lucy Ann
"Proper provision" and "Property Division": Partnership in Irish matrimonial property law in the wake of T v. T.
(2004)
Buckley, Lucy Ann
Abstract:
The issue of how best to regulate matrimonial property is a vexed and recurring one in Irish law. This is not only due to the necessarily conflicting interests that must be resolved: how best to provide for spouses and children in a fair and just manner, out of (usually) quite limited resources, while respecting the rights of third parties such as new partners and creditors, is not easy to determine. Much of our answer depends on our approach to marriage itself, as how we view the marital relationship impacts directly on the system of property regulation we adopt. This may seem trite, yet the view Irish law takes of marriage, let alone of matrimonial property, is far from clear. Current law appears to demonstrate conflicting understandings and values at different stages of the marital relationship, leading to a complex and inconsistent approach to the issue of marital property. In particular, the apparently contradictory views of partnership or sharing principles within the marital ...
http://hdl.handle.net/10379/1763
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The need for a law of adoption
(1949)
McCabe, E. W.
The need for a law of adoption
(1949)
McCabe, E. W.
Abstract:
The practice of adoption is as old as history. It was known to the Babylonians and Greeks, and, coming closer to our own age, we can turn to the omniscient Shakespeare who, in Othello, puts into the lips of the Moor's father-in-law these words “I had rather to adopt a child than get it”. It is curious that such a long-founded process should only have been recognised by law during our generation and even then only in enlightened countries such as Canada, USA, England, Belgium, France and some others excluding, I regret to say, our own country. It is surprising how many of our fellow-citizens are ignorant of the absence of this law and synonymously how loosely the term “adoption” is used here. The fact that at present agreements are drawn up by solicitors to cover the transfer of children must tend to delude one, but in fact these agreements are completely invalid in law and can have merely psychological value. I shall, therefore, try to avoid using only the customary word “adopt...
http://hdl.handle.net/2262/3668
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On the substitution for the three-fold law of succession resting on the accidents of tenure, of a three-fold law for distinct classes of (1) landed gentry, (2) manufacturers, and (3) farmers, resting on the scientific basis of the observed usages of these different classes as to wills and settlements
(1879)
Hancock, W. Neilson
On the substitution for the three-fold law of succession resting on the accidents of tenure, of a three-fold law for distinct classes of (1) landed gentry, (2) manufacturers, and (3) farmers, resting on the scientific basis of the observed usages of these different classes as to wills and settlements
(1879)
Hancock, W. Neilson
Abstract:
In the discussions which have taken place on the law of successions in the United Kingdom, it has been commonly assumed that there is a simple issue involved, and the only change recommended or discussed is to extend the law of succession of property other than land, to the succession of landed property. In this way the true complication of the question is entirely overlooked, and few people are aware, or refer in their discussions, to the fact that there are in England three laws of succession to land, and that there was, so recently as 1836, three of succession to property other than land.
http://hdl.handle.net/2262/8407
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On the present state of the law of settlement and removal of paupers in Scotland
(1852)
Alison, William P.
On the present state of the law of settlement and removal of paupers in Scotland
(1852)
Alison, William P.
Abstract:
It is well known that the part of the Legal Provision of the Poor which regulates their settlement, i.e., the district of the country from which each family may claim relief, is at present widely different in the three great divisions of Her Majesty's dominions. In England, the statute law on the subject is so complex, that it has long ago been stated by Dr. Burn "to be the work of an age to ascertain the law regarding settlements"; but the practical result of this excessive complication, to a great proportion of the natives of the country—I believe particularly to agricultural labourers—has been nearly the same as if there had been no settlement but by birth. "It is nearly useless for a working man," says Mr. Eevans, long officially familiar with the English Poor-law, "to attempt to obtain work beyond the bounds of his parish." In Scotland, a settlement is acquired at present by five years' residence and independent industry in any one parish...
http://hdl.handle.net/2262/7960
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The Law of Property Act, 1922
(1923)
Molony, Thomas F., Sir
The Law of Property Act, 1922
(1923)
Molony, Thomas F., Sir
Abstract:
I propose to give you this afternoon a brief and very imperfect sketch of the changes made in the English Law of Real Property by the Law of Property Act, 1922. When I tell you that the Act traverses the whole field of real property law, contains 191 sections, 16 schedules, and occupies 311 pages of the public general statutes for the year, you will see how impossible it is for me, within the limits of this paper, to give anything like a full and accurate account of the many changes it makes in the law, and indeed I can only deal with the subject in the barest outline.
http://hdl.handle.net/2262/4329
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Land Law Reform: A Comparative Analysis of South Africa's Labour Tenancy Contract and Malawi's Tenant Worker's Contract
(2006)
Banda, Sibo
Land Law Reform: A Comparative Analysis of South Africa's Labour Tenancy Contract and Malawi's Tenant Worker's Contract
(2006)
Banda, Sibo
Abstract:
This article undertakes a comparative analysis of the South African labour tenancy contract and the Malawian tenant worker’s contract in the context of the land law reform programme instituted in both countries. Historically, both contracts represent mechanisms for access to otherwise inaccessible land. They have been devoid of proprietary rights and secure tenure. However, South Africa, through its land reform programme, has adopted a robust approach towards the infusion of proprietary rights and secure tenure into the labour tenancy contract. The South African approach adjusts ‘the relative positions’ of the farmland owner and the labour tenant, as it moves away from a permits- or personal-rights-based approach to a proprietary, in rem (real) rights approach to land access. Malawi’s land reform programme does not include similar provisions for the tenant worker’s contract. Malawi’s land law reform must undertake similar corrective and appropriate action.
http://eprints.nuim.ie/2148/
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Land law, property, housing and the environment.
(2009)
Kenna, Padraic
Land law, property, housing and the environment.
(2009)
Kenna, Padraic
Abstract:
This chapter considers the possible impact of the European Convention on Human Rights Act 2003 (ECHR Act) on Irish law in selected areas of land and property, planning, housing and environment law1 - areas associated with enormous recent wealth gain. The existing Irish constitutional provisions balancing the common good and private property rights, within the doctrine of proportionality and system of compensation, broadly reflect European Court of Human Rights (ECtHR) jurisprudence, although the widening Strasbourg definition of possessions may reveal limitations on the rights contained in the 1937 document. Articles 3 and 8 of the European Convention on Human Rights (ECHR), with their positive obligations on the state to act, create a new scenario, where recent judicial review cases are elaborating the nature and extent of the obligations involved. Planning and environmental law must also attune to the requirements for fair procedures arising from Articles 6 and 13 ECHR, while envi...
http://hdl.handle.net/10379/1742
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Improving fishery law enforcement in marine protected areas.
(2010)
Long, Ronán
Improving fishery law enforcement in marine protected areas.
(2010)
Long, Ronán
Abstract:
There are several international and European legal instruments which provide a legal basis for the establishments of marine protected areas (MPAs) for the purpose of improving fishery management in the marine environment. Nevertheless, the effectiveness of MPAs remains open to debate and considerable attention is now focussed at international and European levels on how to improve the enforcement of regulations in MPAs. In this context, there is little doubt but that monitoring, control and surveillance (MCS) are indispensable tools for improving law enforcement and compliance in such areas. Indeed, recent experience in the European Union suggests that the effectiveness of MCS ought to be a primary consideration when designated areas to be protected in the marine environment. Accordingly, the aim of this article is to focus on some of the difficulties that must be overcome in order to improve the effectiveness of MCS in MPAs. Particular emphasis is placed on the problems that stem fr...
http://hdl.handle.net/10379/1790
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The Eric fines of ancient Irish law
(1884)
Cherry, Richard R.
The Eric fines of ancient Irish law
(1884)
Cherry, Richard R.
Abstract:
It is strange how very little attention is devoted by Irishmen to the study of the ancient laws of their country. These have been translated from the original Gaelic after the life-long labour of such distinguished scholars as O'Donovan and O’Curry, and published at a moderate price; but nobody takes the trouble to read them. The late Professor Richey, whose loss is so deeply felt by all who are interested in the scientific study of law, has contributed instructive prefaces to the later volumes, pointing out their importance, both as the true source for the study of the early history of Ireland, and, from the point of view of general jurisprudence, as affording us the most complete archaic code of law in existence. Yet even his high authority has not been sufficient to create any interest in them.
http://hdl.handle.net/2262/8518
Marked
Mark
Suggested substitutes for the present Poor Law system
(1906)
Dawson, Charles
Suggested substitutes for the present Poor Law system
(1906)
Dawson, Charles
Abstract:
The continual complaints in Great Britain and Ireland of the inefficiency and extravagance of the Poor Law System, have been accentuated of late by the labour crisis and want of employment. Criticisms abound and commissions of inquiry have been started. I think the present system might, with great advantage, be replaced by the schemes which I shall submit. However, a brief inquiry into the origin and history of the Poor Law is necessary, before dealing with a remedy.
http://hdl.handle.net/2262/3671
Marked
Mark
Competition and merger law and practice in Ireland: 1953-2002
(2007)
Lyons, Patrick M.
Competition and merger law and practice in Ireland: 1953-2002
(2007)
Lyons, Patrick M.
Abstract:
"The year 2003 constituted an important milestone in the history of competition law in Ireland. It was fifty years since the first competition legislation was enacted – the Restrictive Trade Practices Act, 1953 – one of the first in the world. By an interesting coincidence, 2003 also marked the twenty-fifth anniversary of the introduction of merger control in Ireland under the Mergers, Take-Overs and Monopolies (Control) Act, 1978, again one of the world’s first examples of merger control. To mark the double occasion, Pat Massey, Moore McDowell and Paddy Lyons presented a joint paper to the Dublin Economics Workshop Annual Economic Policy Conference in Kenmare on 11 October 2003 – “Boston v Berlin. Fifty Years of Irish Antitrust”. The paper described Irish experience of competition policy in three stages – 1953 to 1978, from 1978 to 1991, and the period after 1991, and it offered some suggestions about possible changes in policy. The present author considered that it woul...
http://hdl.handle.net/2262/11978
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