Journal of the Bar of Ireland • Volume 13 • Issue 1 • February 2008 Inside this Issue Measuring Costs The US Influence on our Constitution Electronic Discovery Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 e-mail: [email protected] Cover Illustration: Brian Gallagher T: 497 3389 E: [email protected] W: www.bdgart.com Editor: Eilis Brennan BL Editorial Board: Donal O’Donnell SC, Chairman, Editorial Board Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Volume 13, Issue 1, February 2008, ISSN 1339-3426 Adele Murphy BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Contents Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh 2 James Joyce, Boss Croker, Oliver Wendell Holmes and the Jerry Carroll Influence of America on Irish Constitutional Law Consultant Editors: DONAL O’DONNELL SC Dermot Gleeson SC Patrick MacEntee SC Thomas McCann SC 8 News Eoghan Fitzsimons SC Pat Hanratty SC James O’Reilly SC 9 Electronic discovery – taming the beast Gerard Hogan SC RODERICK BOURKE The Bar Review is published by i Legal Update: Thomson Round Hall in association with The Bar Council of Ireland. A Guide to Legal Developments from 19th November 2007 to 1st February 2008 For all subscription queries contact: Thomson Round Hall 43 Fitzwilliam Place, Dublin 2 13 Measure for measure: The Jurisdiction to Measure Costs Telephone: + 353 1 662 5301 HUGH KENNEDY B.L. AND BRID O’FLAHERTY B.L. Fax: + 353 1 662 5302 Email: [email protected] web: www.roundhall.ie 17 Bioethics and The End of Life Subscriptions: January 2008 to December ANN POWER SC 2008—6 issues Annual Subscription: €195.00 23 The Renewal of a Summons For all advertising queries contact: YVONNE MOYNIHAN BL Tom Clark, Direct line: + 44 20 7393 7797 E-Mail: [email protected] Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a The Bar Review February 2008 supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. James Joyce, Boss Croker, Oliver Wendell Holmes and the Influence of America on Irish Constitutional Law DONAL O’DONNELL SC This paper was first delivered to a meeting of the Casement. In this painting, on one side of the court can be American Bar Association International section in the seen the Defendant’s team which included, although not Kings Inns, Dublin on 2nd October, 1997. sitting in the lawyers’ benches, an American lawyer Michael F. Doyle from Philadelphia, who was assisting the defence. The New York Times for June 1916 carried an extensive and Introduction sympathetic account of the trial.3 On 27 June, 1916, it described Mr. Doyle as acting in the case but being “the In his fascinating study on judicial reputation Judge Richard only lawyer not wearing a gown and wig” – a fact faithfully Posner observed that legal reputations are surprisingly short- recorded in the Lavery painting. term.1 Current and recent cases are much more readily cited Doyle has another connection with Irish Constitutional than earlier decisions by even well regarded judges. When Law. He was, apparently, responsible for saving the life of I began to study Constitutional Law, it was the orthodoxy Eamon de Valera in 1916 by establishing that de Valera was that Irish Constitutional Law was heavily influenced by the a U.S. citizen and the British were persuaded that de Valera, development of the United States Constitution. It did not a leader of the Rising, should not be executed for fear of occur to me or to anyone else to question this or to seek its inflaming U.S. opinion. As you may know, among his many source. It had been repeated so often in the previous ten to other achievements, Eamon de Valera went on to be the fifteen years that it was accepted as a given. principal drafter of the Irish Constitution of 1937.4 Nor was it surprising that this was so. Ireland was the On the other side of the court in Lavery’s painting can first common law country after the United States to have a be seen the imposing and impressive features of F.E. Smith full bodied Constitution protecting fundamental rights and QC and the then Attorney General and later Lord Birkenhead permitting judicial review. There have always been close ties who in due course negotiated the Anglo Irish Treaty. The between Ireland and the United States. It seemed perfectly night before the trial he invited his prosecution team to dinner natural that US Constitutional law would be an obvious port in his house and after offered to read his opening speech. of call when the new Irish state came to draft a Constitution. They listened respectfully (they probably had no choice) but In fact, it turns out that this orthodox view is in relative terms eventually suggested that while the speech was undoubtedly quite recent, and that the story is more complicated and at impressive, it did seem to touch on matters which might not least to me, more interesting than that. be capable of being proved in evidence. He replied that it was too late to change: the speech had already been telegraphed Legal Links Between Ireland and the U.S. to New York for publication in that day’s newspapers5. Another instance from early 20th Century was when That there were always close links between the United States the young James Joyce was seeking a publisher for Ulysses, and Ireland in legal issues is undoubtedly correct. There he turned to an Irish American lawyer, John Quinn, who are any number of instances. I remember, as a young boy had promoted the famous Armory show which introduced my father pointing out a small and unprepossessing shop Impressionist painting to the American public, and who in the town of Strabane, and telling me that the printer of agreed to have the book published in the United States. That the US Declaration of Independence had lived there. Later in turn, provoked some work for lawyers since the book was I discovered that John Dunlap had indeed left home at the age of ten and emigrated to Pennsylvania, and not only was 3 Special Cable to New York Times, “Casement On Trial For High the first printer of the Declaration of Independence but Treason”, http://query.nytimes.com/gst/abstract.html?res=9A0 also produced the first printing of the US Constitution.2 A 6E5D6113FE233A25754C2A9609C946796D6CF. 4 When Doyle returned to the US, he reported to President second example is on view in the Kings Inns. I refer to the Wilson’s Secretary Joesph Tumulty. Doyle also explained that he magnificent Sir John Lavery painting of the trial of Sir Roger had discovered Casement could demand a firing squad instead of a hanging. Tumulty who was a lawyer as well as a politician replied, “And did you charge him a fee for that Michael?” Time 1 Richard A. Posner, Cardozo: A Study In Judicial Reputation (University Magazine, April 15, 1940, http://www.time.com/time/magazine/ of Chicago Press, 1990). article/0,9171,789720-2,00.html. 2 See Cohen: “Irish Influences on Early-American Law”: Books 5 Travers Humphreys, Criminal Days: Recollections and Reflections of (2001) XXXVI Irish Jurist 199. Travers Humphreys (Hodder and Stoughton Limited, 1946). Page 2 Bar Review February 2008 initially banned after an obscenity trial in 1920. It was not added to the Committee and ultimately signed the draft of until 1933 and Judge Woolsey’s famous decision that it was the Constitution along with Mr. Douglas and Hugh Kennedy lawful to sell Ulysses in the US. which was accepted by the Government as the basis of the Constitution which was ultimately ratified. But there is no evidence that C.J. France was particularly familiar with or Inspiration from the U.S. Constitution indeed enamoured of the United States Constitution or had any significant input into the drafting of the Free State It does seem absolutely natural therefore that when the Constitution. new Irish Free State approached the task of drafting a new Constitution, that it would turn away from the British experience and seek inspiration from the obvious source of Hugh Kennedy and the Constitution the United States Constitution. Thus, Akenson and Fallin who wrote the first study of the drafting of the Free State In 1928 as it happens, Hugh Kennedy, by then the Chief Constitution,6 could state: Justice of the Irish Free State, addressed the semi-centennial meeting of the American Bar Association in Seattle on the The most familiar written Constitution was that of the “Character and Sources of the Constitution of the Irish Free State”.9 United States of America. The Committee possessed Hugh Kennedy is an interesting figure in Irish history. He an American lawyer, C.J. France, a guarantee that the was the first advisor to the Irish Free State government, and American structure would be understood. Further the first Attorney General and then the first Chief Justice Kevin O’Shiel had written a book on the framing of of the Irish Free State. He also had a very distinctive and the American Constitution.