Judicial consideration by the Judicial Committee of the Privy Council, and the United Kingdom Supreme Court, of the tort of malicious prosecution – historically confined to criminal prosecution and limited civil proceedings – demonstrates considerable confusion in Common Law systems over the roles of principle and policy in judicial reasoning. As judgements extending malicious prosecution to maliciously motivated civil claims demonstrate, the principles and policies underpinning malicious prosecution and abuse of process, and the relationship between these torts – regarded by judges and jurists as anomalous – remain unclear. Other common law jurisdictions are yet to positively affirm the revised malicious prosecution tort’s applicability to civil proceedings, and the few plaintiffs to plead the expanded tort to date have been unsuccessful. While the harms arising from maliciously brought civil proceedings understandably excite sympathy, this article contends that expanding malicious prosecution to civil claims via common law reform is a problematic solution resting on unsound jurisprudential foundations, which faces potentially insurmountable evidentiary barriers and necessitates further litigation. We suggest that a better alternative is to encourage greater use of the court’s existing inherent jurisdiction to award compensatory costs and propose introduction of punitive statutory costs powers, available in extreme cases, to deter litigants from initiating civil claims prompted by malice.
{"title":"Principle and Policy in Malicious Prosecution","authors":"Wendy Bonython, John Farrar","doi":"10.53300/001c.89729","DOIUrl":"https://doi.org/10.53300/001c.89729","url":null,"abstract":"Judicial consideration by the Judicial Committee of the Privy Council, and the United Kingdom Supreme Court, of the tort of malicious prosecution – historically confined to criminal prosecution and limited civil proceedings – demonstrates considerable confusion in Common Law systems over the roles of principle and policy in judicial reasoning. As judgements extending malicious prosecution to maliciously motivated civil claims demonstrate, the principles and policies underpinning malicious prosecution and abuse of process, and the relationship between these torts – regarded by judges and jurists as anomalous – remain unclear. Other common law jurisdictions are yet to positively affirm the revised malicious prosecution tort’s applicability to civil proceedings, and the few plaintiffs to plead the expanded tort to date have been unsuccessful. While the harms arising from maliciously brought civil proceedings understandably excite sympathy, this article contends that expanding malicious prosecution to civil claims via common law reform is a problematic solution resting on unsound jurisprudential foundations, which faces potentially insurmountable evidentiary barriers and necessitates further litigation. We suggest that a better alternative is to encourage greater use of the court’s existing inherent jurisdiction to award compensatory costs and propose introduction of punitive statutory costs powers, available in extreme cases, to deter litigants from initiating civil claims prompted by malice.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"19 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135935815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that the Australian Sex Discrimination Act 1984 (Cth) (‘ SDA ’), as Australia’s primary source of sex and gender-based protections, fails to protect people who menstruate from discrimination. As the SDA currently neglects to mention menstruation, people who menstruate cannot directly access remedies for menstrual discrimination. The harms of this are worsened by structural problems within the Australian approach to discrimination law, including in the formation of the comparator – as the experience of menstruation lacks a clear analogue. Similar issues regarding menstruation discrimination are present, and likely to become more prominent, in other jurisdictions in coming years. Combining existing menstrual justice scholarship with emerging legal discourse on menstrual discrimination, this article argues the SDA should incorporate new sections enshrining menstruation and menopause, including both perimenopause and post-menopause, as protected characteristics. These sections should be framed in gender neutral terms and focus on menstruation as a lived experience rather than a medical problem. Further, both menstruation and menopause should be added as categories for which ‘special measures’ can be made to address specific inequities related to menstruation. By advocating the merits of these reforms, this article aims to provide a policy model which addresses these issues and can be adapted to suit other jurisdictions.
{"title":"Stigma, Stigmata: Reforming the Sex Discrimination Act to Account for Menstruation as a Protected Characteristic","authors":"Liam A Holt","doi":"10.53300/001c.89084","DOIUrl":"https://doi.org/10.53300/001c.89084","url":null,"abstract":"This article argues that the Australian Sex Discrimination Act 1984 (Cth) (‘ SDA ’), as Australia’s primary source of sex and gender-based protections, fails to protect people who menstruate from discrimination. As the SDA currently neglects to mention menstruation, people who menstruate cannot directly access remedies for menstrual discrimination. The harms of this are worsened by structural problems within the Australian approach to discrimination law, including in the formation of the comparator – as the experience of menstruation lacks a clear analogue. Similar issues regarding menstruation discrimination are present, and likely to become more prominent, in other jurisdictions in coming years. Combining existing menstrual justice scholarship with emerging legal discourse on menstrual discrimination, this article argues the SDA should incorporate new sections enshrining menstruation and menopause, including both perimenopause and post-menopause, as protected characteristics. These sections should be framed in gender neutral terms and focus on menstruation as a lived experience rather than a medical problem. Further, both menstruation and menopause should be added as categories for which ‘special measures’ can be made to address specific inequities related to menstruation. By advocating the merits of these reforms, this article aims to provide a policy model which addresses these issues and can be adapted to suit other jurisdictions.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135944021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the creation of the Bank of England and other contemporary banks, the Scottish Darien Scheme and the South Sea Bubble. It considers the role of William Paterson, a progressive Scottish merchant and economist, in all of these and the negotiations over the Act of Union of England and Scotland. The article reflects on the use of legislation and royal charters, together with the idea of joint stock and negotiability. It seeks to untangle the complex relationships of the Darien Company and the South Sea Company to banking operations of the time. Although Paterson had a minor role in the South Sea company, it was based on some of his ideas but he opposed the ultimate scheme to take over the national debt in exchange for stock which followed the policies of his compatriot John Law for France. Law in his turn had been influenced by the Bank of England and the Darien Scheme fund raising. The Bubble Act 1720, responding to the panic caused by collapse of bubble companies, was passed a year after his death and impeded the development of company and banking law for over a century. What this history demonstrates is the difficulty in benefitting from innovation. How the idea of projection or promotion began as something which was thought of in dubious terms. Vested interests were keen to exploit innovation after they initially fought hard to resist it. Then speculative mania took over. The history also reflects a surprisingly high fiduciary duty on a director based on guild ideas before the modern concept developed. Notwithstanding this conflict of interest was practised by influential people often with impunity until it became a political issue when the results were draconian but not necessarily consistent in the absence of modern winding up laws and insolvent trading. A similar picture is illustrated by the experience of John Law in France with the Banque Royale and the Mississippi Company. Their writings represent some of the earliest theorising on economics, banking and international trade more than fifty years before Adam Smith’s Wealth of Nations. It was not simply a conspiracy of paper
本文考察了英格兰银行和其他当代银行的创建、苏格兰达里恩计划和南海泡沫。它考虑了进步的苏格兰商人和经济学家威廉·帕特森(William Paterson)在所有这些以及英格兰和苏格兰联合法案(Act of Union)谈判中的作用。本文对立法和皇家特许的运用进行了反思，并结合了股份制和流通性的思想。它试图理清达连公司和南海公司与当时银行业务之间的复杂关系。尽管帕特森在南海公司扮演了一个小角色，但这是基于他的一些想法，但他反对接管国债以换取股票的最终计划，这遵循了他的同胞约翰·劳在法国的政策。而劳则受到了英格兰银行和达里恩计划筹资的影响。1720年的《泡沫法案》(Bubble Act 1720)是为了应对泡沫公司倒闭引发的恐慌，在他去世一年后通过的，它阻碍了公司法和银行法的发展长达一个多世纪。这段历史表明，从创新中获益是困难的。投射或提升的概念是如何开始被认为是可疑的。既得利益集团在最初极力抵制创新之后，热衷于利用创新。然后，投机狂热取而代之。这段历史也反映了在现代概念发展之前，基于行会思想的董事负有令人惊讶的高度受托责任。尽管如此，有影响力的人经常不受惩罚地实施这种利益冲突，直到它成为一个政治问题，其结果是严厉的，但在缺乏现代清盘法和破产贸易的情况下不一定是一致的。约翰·劳在法国的皇家银行和密西西比公司的经历也说明了类似的情况。他们的著作代表了最早的经济学、银行业和国际贸易理论，比亚当•斯密的《国富论》早了50多年。这不仅仅是纸上的阴谋
{"title":"A Conspiracy of Paper? William Paterson and the Mysterious Origins of Banking and Company Law","authors":"J. Farrar","doi":"10.53300/001c.17401","DOIUrl":"https://doi.org/10.53300/001c.17401","url":null,"abstract":"This article examines the creation of the Bank of England and other contemporary banks, the Scottish Darien Scheme and the South Sea Bubble. It considers the role of William Paterson, a progressive Scottish merchant and economist, in all of these and the negotiations over the Act of Union of England and Scotland. The article reflects on the use of legislation and royal charters, together with the idea of joint stock and negotiability. It seeks to untangle the complex relationships of the Darien Company and the South Sea Company to banking operations of the time. Although Paterson had a minor role in the South Sea company, it was based on some of his ideas but he opposed the ultimate scheme to take over the national debt in exchange for stock which followed the policies of his compatriot John Law for France. Law in his turn had been influenced by the Bank of England and the Darien Scheme fund raising. The Bubble Act 1720, responding to the panic caused by collapse of bubble companies, was passed a year after his death and impeded the development of company and banking law for over a century. \u0000\u0000What this history demonstrates is the difficulty in benefitting from innovation. How the idea of projection or promotion began as something which was thought of in dubious terms. Vested interests were keen to exploit innovation after they initially fought hard to resist it. Then speculative mania took over. The history also reflects a surprisingly high fiduciary duty on a director based on guild ideas before the modern concept developed. Notwithstanding this conflict of interest was practised by influential people often with impunity until it became a political issue when the results were draconian but not necessarily consistent in the absence of modern winding up laws and insolvent trading. A similar picture is illustrated by the experience of John Law in France with the Banque Royale and the Mississippi Company. Their writings represent some of the earliest theorising on economics, banking and international trade more than fifty years before Adam Smith’s Wealth of Nations. It was not simply a conspiracy of paper","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129484005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Restraints of trade are aimed at limiting the capacity of employees to move from one job to another and taking important knowledge or techniques with them (to the detriment of the first employer). The current law focuses on the reasonableness of the clause at the time of its signing. A more detailed examination of the decisions made, by the employee, around the breach of such a clause suggests that this may not be the most effective approach. This assessment is made through a consideration of the motivators of the parties, the role of the legal tests, the risks relevant to their decisions and an examination of operation of the law itself. In short, if the goal of the regulation in this area is to limit the breach of restraints, then a focus on the decision of the employee to breach (or not) the clause may be more effective.
{"title":"Unpacking Post-Employment Restraint of Trade Decisions: The Motivators of the Key Players","authors":"Chris Dent","doi":"10.2139/SSRN.2678841","DOIUrl":"https://doi.org/10.2139/SSRN.2678841","url":null,"abstract":"Restraints of trade are aimed at limiting the capacity of employees to move from one job to another and taking important knowledge or techniques with them (to the detriment of the first employer). The current law focuses on the reasonableness of the clause at the time of its signing. A more detailed examination of the decisions made, by the employee, around the breach of such a clause suggests that this may not be the most effective approach. This assessment is made through a consideration of the motivators of the parties, the role of the legal tests, the risks relevant to their decisions and an examination of operation of the law itself. In short, if the goal of the regulation in this area is to limit the breach of restraints, then a focus on the decision of the employee to breach (or not) the clause may be more effective.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128007992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most Australian law academics will recall (many with horror) the journal ranking exercise that took place in 2008-2010. The aim then was to produce a journal ranking list with international scope and validity. Unsurprisingly, this grandiose result was not achieved and the process was abandoned in 2011 – but not before damage was done. The then Minister for Innovation, Industry, Science and Research (Senator Kim Carr) noted:"There is clear and consistent evidence that the rankings were being deployed inappropriately within some quarters of the sector, in ways that could produce harmful outcomes, and based on a poor understanding of the actual role of the rankings. One common example was the setting of targets for publication in A and A* journals by institutional research managers." The urge to rank – and to use ranking in the assessment of quality – remains strong in Australian law schools. There is a risk this discredited process will be given new impetus following the release of the latest Australian journal ranking list involving law; this time by the Australian Business Deans Council (ABDC). The ABDC describes itself as ‘the authoritative and collective voice of pro vice-chancellors, executive deans and heads of all 40 business faculties and schools in Australia’. Its list ranks 2,767 different journal titles, including selected law journals. The ranking method used involved, ‘public submissions, qualitative and quantitative data assessment, public exposure feedback and international expert consultation’. Rankings like these should be formally abandoned for at least three reasons. First, as the CALD/ERA process demonstrated, the ranking process is practically difficult. It is arbitrary and infected by subjective opinion. That leads to perverse outcomes for legal academics whose career advancement is tied to this uncertain standard. Secondly, the urge to rank is the product of a damaging misconception of the proper role of legal academics and the legal academy. The rankers appear to see law as another social science rather than a professional discipline. Thirdly, the rankings have in any event been rendered redundant by the recent decision to deregulate fees. In the brave new world, markets will provide surprisingly nuanced and rigorous measures of quality that cannot be captured in a crude ranking. We explore these reasons below.
{"title":"The ghost of rankings past - The lasting harmful impact of journal rankings, and what we should do instead","authors":"D. Svantesson, J. Corkery, B. McCabe","doi":"10.2139/SSRN.2467942","DOIUrl":"https://doi.org/10.2139/SSRN.2467942","url":null,"abstract":"Most Australian law academics will recall (many with horror) the journal ranking exercise that took place in 2008-2010. The aim then was to produce a journal ranking list with international scope and validity. Unsurprisingly, this grandiose result was not achieved and the process was abandoned in 2011 – but not before damage was done. The then Minister for Innovation, Industry, Science and Research (Senator Kim Carr) noted:\"There is clear and consistent evidence that the rankings were being deployed inappropriately within some quarters of the sector, in ways that could produce harmful outcomes, and based on a poor understanding of the actual role of the rankings. One common example was the setting of targets for publication in A and A* journals by institutional research managers.\" The urge to rank – and to use ranking in the assessment of quality – remains strong in Australian law schools. There is a risk this discredited process will be given new impetus following the release of the latest Australian journal ranking list involving law; this time by the Australian Business Deans Council (ABDC). The ABDC describes itself as ‘the authoritative and collective voice of pro vice-chancellors, executive deans and heads of all 40 business faculties and schools in Australia’. Its list ranks 2,767 different journal titles, including selected law journals. The ranking method used involved, ‘public submissions, qualitative and quantitative data assessment, public exposure feedback and international expert consultation’. Rankings like these should be formally abandoned for at least three reasons. First, as the CALD/ERA process demonstrated, the ranking process is practically difficult. It is arbitrary and infected by subjective opinion. That leads to perverse outcomes for legal academics whose career advancement is tied to this uncertain standard. Secondly, the urge to rank is the product of a damaging misconception of the proper role of legal academics and the legal academy. The rankers appear to see law as another social science rather than a professional discipline. Thirdly, the rankings have in any event been rendered redundant by the recent decision to deregulate fees. In the brave new world, markets will provide surprisingly nuanced and rigorous measures of quality that cannot be captured in a crude ranking. We explore these reasons below.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120859566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper considers what the notion or idea of 'human rights' best covers or encompasses. It gives some history and takes a position on this debate. It is a short paper with a clear point of view. My brief for this piece was to write on human rights. That left two main options. I could undertake a fairly specific black letter critique of bills of rights. I am a strong opponent of these instruments, in either their entrenched, constitutionalised form or in their statutory, enacted form. The former you see in Canada and the United States of America; the latter you see in New Zealand, the United Kingdom and in Victoria. In my view both forms are pernicious; both forms undermine democratic decision-making; both forms unduly enhance the point-of-application power of unelected judges on a host of issues that are in effect moral and political ones – ones over which judges (committees of ex-lawyers as Jeremy Waldron continually reminds us) have no greater expertise, no superior moral perspicacity, no better pipeline to God than the rest of us non-judges, otherwise known as voters. I could go through the problems with bills of rights in some detail if I were to choose this option. I have written fairly extensively along these lines.
{"title":"The Idea of Human Rights","authors":"James Allan","doi":"10.2139/SSRN.2456528","DOIUrl":"https://doi.org/10.2139/SSRN.2456528","url":null,"abstract":"This paper considers what the notion or idea of 'human rights' best covers or encompasses. It gives some history and takes a position on this debate. It is a short paper with a clear point of view. My brief for this piece was to write on human rights. That left two main options. I could undertake a fairly specific black letter critique of bills of rights. I am a strong opponent of these instruments, in either their entrenched, constitutionalised form or in their statutory, enacted form. The former you see in Canada and the United States of America; the latter you see in New Zealand, the United Kingdom and in Victoria. In my view both forms are pernicious; both forms undermine democratic decision-making; both forms unduly enhance the point-of-application power of unelected judges on a host of issues that are in effect moral and political ones – ones over which judges (committees of ex-lawyers as Jeremy Waldron continually reminds us) have no greater expertise, no superior moral perspicacity, no better pipeline to God than the rest of us non-judges, otherwise known as voters. I could go through the problems with bills of rights in some detail if I were to choose this option. I have written fairly extensively along these lines.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126491773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper sets out a standard structure used by writers of PhDs, law reform reports, action plans, and recommendations for change. The structure is represented by the acronym TCAGONARM. The letters represent chapters and cycles. Terminology and Topic description; Current situation; Alleged problems with the current situation; Goals of reform; Options for change and reform; Necessary steps to effect change; Recommended most appropriate option; Monitoring and Measuring changes.
{"title":"Writing Theses and Reports: An Acronym for Structure in the Wilderness: TCAGONARM","authors":"J. Wade","doi":"10.2139/SSRN.2407068","DOIUrl":"https://doi.org/10.2139/SSRN.2407068","url":null,"abstract":"This paper sets out a standard structure used by writers of PhDs, law reform reports, action plans, and recommendations for change. The structure is represented by the acronym TCAGONARM. The letters represent chapters and cycles. Terminology and Topic description; Current situation; Alleged problems with the current situation; Goals of reform; Options for change and reform; Necessary steps to effect change; Recommended most appropriate option; Monitoring and Measuring changes.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"147 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116368532","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the predictable hurdles faced by negotiators, mediators and litigators is when one of the negotiators states, or raises suspicions, that (s)he does not have authority to contract or settle. Rather they must first consult with influential outsiders or constituents.The types of outsiders are described, and a routine process is suggested to identify important constituents or "tribes"; then to normalize, reframe and turn this barrier into a standard problem solving question such as " How to manage the influential outsider?"Thirteen possible responses used by negotiators to such a question ( each with inevitable advantages and disadvantages) are systematised for mediators, negotiators and litigators to learn and thereby "add value" to any negotiation.
{"title":"Bargaining in the Shadow of the Tribe and Limited Authority to Settle","authors":"J. Wade","doi":"10.2139/SSRN.2408862","DOIUrl":"https://doi.org/10.2139/SSRN.2408862","url":null,"abstract":"One of the predictable hurdles faced by negotiators, mediators and litigators is when one of the negotiators states, or raises suspicions, that (s)he does not have authority to contract or settle. Rather they must first consult with influential outsiders or constituents.The types of outsiders are described, and a routine process is suggested to identify important constituents or \"tribes\"; then to normalize, reframe and turn this barrier into a standard problem solving question such as \" How to manage the influential outsider?\"Thirteen possible responses used by negotiators to such a question ( each with inevitable advantages and disadvantages) are systematised for mediators, negotiators and litigators to learn and thereby \"add value\" to any negotiation.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127399598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What is a risk analysis? Reasons why such a document is essential for any negotiator, or any disputant contemplating litigation. Reasons why such documents appear to be uncommon in many legal cultures. Examples of the use of risk analyses. Precedent forms to assist a client or lawyer to prepare a risk analysis.
{"title":"Systematic Risk Analysis for Negotiators and Litigators: How to Help Clients Make Better Decisions","authors":"J. Wade","doi":"10.2139/SSRN.2405727","DOIUrl":"https://doi.org/10.2139/SSRN.2405727","url":null,"abstract":"What is a risk analysis? Reasons why such a document is essential for any negotiator, or any disputant contemplating litigation. Reasons why such documents appear to be uncommon in many legal cultures. Examples of the use of risk analyses. Precedent forms to assist a client or lawyer to prepare a risk analysis.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124794625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the absence of a widespread political and legal consensus about the sources of legislative authority, the traditional Diceyan view of parliamentary sovereignty perhaps fails to adequately explain the political reality of New Zealand's undoubted political independence. A better explanation may be that the Crown, rather than Parliament, and in conjunction with the Treaty of Waitangi, is the source of an autochthonous constitutional order. This is grounded in symbolism and administrative practice, rather than technical rules of sovereignty or authority. Indeed, it was the flexible application of common law principles concerned with the prerogatives of the Crown, and the operation of constitutional conventions relating to responsible government, rather than the establishment of legislatures per se, that led to the development of independent states from colonies. Practical executive or political independence came before formal legislative and judicial independence. This general observation is as true for New Zealand as it is for the other 'old Dominions'. Legal changes tended to follow political changes, and this is seen especially in the considerable distortion which arose between the powers conferred upon the Governor-General by the letters patent constituting the office, and the powers actually exercised. Imperial constitutional law was developed not in the courts so much as in the opinions of the law officers of the Crown. It was the practice that evolved out of these opinions which eventually influenced the courts. They followed, but did not invent, doctrines such as that of colonial legislative territoriality. As a consequence of this process, constitutional writers tended to become distracted by abstract concepts such as the unity of the Crown. This was responsible for what Zines called 'decades of distorted reasoning, intellectual gymnastics and a blindness to reality'.
由于对立法权力的来源缺乏广泛的政治和法律共识，传统的迪塞式议会主权观可能无法充分解释新西兰毫无疑问的政治独立的政治现实。一个更好的解释可能是，与《怀唐伊条约》(Treaty of Waitangi)一起，是本土宪法秩序的来源，而不是议会。这是基于象征主义和行政实践，而不是主权或权威的技术规则。事实上，正是灵活地适用与国王特权有关的普通法原则，以及实施与负责任政府有关的宪法公约，而不是建立立法机构本身，导致了从殖民地发展成独立国家。实际的行政或政治独立先于正式的立法和司法独立。这个普遍的观察结果对新西兰和其他“旧自治领”一样适用。法律的变化往往伴随着政治的变化，这一点尤其体现在构成总督职位的专利函赋予总督的权力与实际行使的权力之间产生的相当大的扭曲中。帝国宪法与其说是在法庭上制定的，不如说是在王室法律官员的意见中制定的。正是这些观点演变而来的实践最终影响了法院。他们遵循，但没有发明，诸如殖民地立法领土的学说。这一过程的结果是，立宪者倾向于被一些抽象的概念分散注意力，比如王权统一。这就是Zines所说的“几十年来扭曲的推理、智力体操和对现实的盲目”的原因。
{"title":"The Control of Advice to the Crown and the Development of Executive Independence in New Zealand","authors":"N. Cox","doi":"10.2139/SSRN.420743","DOIUrl":"https://doi.org/10.2139/SSRN.420743","url":null,"abstract":"In the absence of a widespread political and legal consensus about the sources of legislative authority, the traditional Diceyan view of parliamentary sovereignty perhaps fails to adequately explain the political reality of New Zealand's undoubted political independence. A better explanation may be that the Crown, rather than Parliament, and in conjunction with the Treaty of Waitangi, is the source of an autochthonous constitutional order. This is grounded in symbolism and administrative practice, rather than technical rules of sovereignty or authority. Indeed, it was the flexible application of common law principles concerned with the prerogatives of the Crown, and the operation of constitutional conventions relating to responsible government, rather than the establishment of legislatures per se, that led to the development of independent states from colonies. Practical executive or political independence came before formal legislative and judicial independence. This general observation is as true for New Zealand as it is for the other 'old Dominions'. Legal changes tended to follow political changes, and this is seen especially in the considerable distortion which arose between the powers conferred upon the Governor-General by the letters patent constituting the office, and the powers actually exercised. Imperial constitutional law was developed not in the courts so much as in the opinions of the law officers of the Crown. It was the practice that evolved out of these opinions which eventually influenced the courts. They followed, but did not invent, doctrines such as that of colonial legislative territoriality. As a consequence of this process, constitutional writers tended to become distracted by abstract concepts such as the unity of the Crown. This was responsible for what Zines called 'decades of distorted reasoning, intellectual gymnastics and a blindness to reality'.","PeriodicalId":165934,"journal":{"name":"The Bond Law Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126779802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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