Every public service function attracts fiduciary accountability. The public/private distinction does not imply any variation in the application of the conventional proscription on opportunism. I have explained that elsewhere. Here I situate my analysis by contrasting the views that other writers recently have advanced. The approach usually employed by those commentators is to consider whether it is tenable or useful to extend ‘private’ fiduciary accountability to the ‘public’ sphere. The difficulty with several of the contributions is that they assert distorted conceptions of the conventional regulation. I will explain the main analytical departures in each case. I conclude that none of the contributions transcend the conventional formulation.
{"title":"Contesting Public Service Fiduciary Accountability","authors":"Robert Flannigan","doi":"10.2139/SSRN.3008800","DOIUrl":"https://doi.org/10.2139/SSRN.3008800","url":null,"abstract":"Every public service function attracts fiduciary accountability. The public/private distinction does not imply any variation in the application of the conventional proscription on opportunism. I have explained that elsewhere. Here I situate my analysis by contrasting the views that other writers recently have advanced. The approach usually employed by those commentators is to consider whether it is tenable or useful to extend ‘private’ fiduciary accountability to the ‘public’ sphere. The difficulty with several of the contributions is that they assert distorted conceptions of the conventional regulation. I will explain the main analytical departures in each case. I conclude that none of the contributions transcend the conventional formulation.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"59 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2017-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77212753","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 central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.
{"title":"The Importance of 'The Gap'","authors":"Emily L. Sherwin","doi":"10.2139/SSRN.2817808","DOIUrl":"https://doi.org/10.2139/SSRN.2817808","url":null,"abstract":"One of the central dilemmas of law is what Larry Alexander has called \"the gap:\" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"21 1","pages":"47"},"PeriodicalIF":0.0,"publicationDate":"2016-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86308508","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}
Those of us who work in a university law school in the developed common law world are expected to publish, to teach and to some extent or other to serve on law school and university committees. There may also be an expectation that members of law faculties will on occasion perform a community service-type role and give public talks or draft reports to government enquiries or write for newspapers or anything along those lines.
{"title":"Collegiality in the Law School","authors":"James Allan","doi":"10.2139/SSRN.2562747","DOIUrl":"https://doi.org/10.2139/SSRN.2562747","url":null,"abstract":"Those of us who work in a university law school in the developed common law world are expected to publish, to teach and to some extent or other to serve on law school and university committees. There may also be an expectation that members of law faculties will on occasion perform a community service-type role and give public talks or draft reports to government enquiries or write for newspapers or anything along those lines.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"116 1","pages":"391-396"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88238265","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 (written from an English perspective) explores two relatively overlooked dimensions of the defence of ‘responsible publication on a matter of public interest’ which was recognised by the House of Lords in the 1999 case of Reynolds v Times Newspapers and then put in a statutory form — using obfuscating language — by the Defamation Act 2013 (UK): namely, its origins and its significance in terms of tort theory. On the first point, the roots of the idea of responsible publication, in the sense that there should exist reasonable ground to believe the defamatory matter to be true, are traced into Australian law all the way down to Macintosh v Dun in 1906 and the Defamation (Amendment) Act 1909 of New South Wales. Concerning the second, the emphasis is put on the taking over of large swathes of defamation by what is essentially a negligence standard, historically alien to a cause of action that was entirely controlled by malice (and its rebuttal). Beyond the tort of defamation, this represents a milestone in terms of the unification of the standard of liability across the divide between patrimonial rights and personality rights.
{"title":"‘A Man Must Take Care Not to Defame his Neighbour’: The Origins and Significance of the Defence of Responsible Publication","authors":"E. Descheemaeker","doi":"10.2139/SSRN.2217139","DOIUrl":"https://doi.org/10.2139/SSRN.2217139","url":null,"abstract":"This article (written from an English perspective) explores two relatively overlooked dimensions of the defence of ‘responsible publication on a matter of public interest’ which was recognised by the House of Lords in the 1999 case of Reynolds v Times Newspapers and then put in a statutory form — using obfuscating language — by the Defamation Act 2013 (UK): namely, its origins and its significance in terms of tort theory. On the first point, the roots of the idea of responsible publication, in the sense that there should exist reasonable ground to believe the defamatory matter to be true, are traced into Australian law all the way down to Macintosh v Dun in 1906 and the Defamation (Amendment) Act 1909 of New South Wales. Concerning the second, the emphasis is put on the taking over of large swathes of defamation by what is essentially a negligence standard, historically alien to a cause of action that was entirely controlled by malice (and its rebuttal). Beyond the tort of defamation, this represents a milestone in terms of the unification of the standard of liability across the divide between patrimonial rights and personality rights.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"3 1","pages":"239-264"},"PeriodicalIF":0.0,"publicationDate":"2013-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90109828","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}
I revisit the question of the nature of implications and the proper methodology for identifying them. Debate about the legal foundations of the implied freedom of political speech may for practical purposes be otiose, but my interests have always been theoretical as well as practical. The study of implications can illuminate the nature of constitutional interpretation in general, both as it is actually practiced, and as an aspect of the ideals of constitutionalism and the rule of law.
{"title":"Constitutional Implications Revisited","authors":"J. Goldsworthy","doi":"10.2139/SSRN.2142263","DOIUrl":"https://doi.org/10.2139/SSRN.2142263","url":null,"abstract":"I revisit the question of the nature of implications and the proper methodology for identifying them. Debate about the legal foundations of the implied freedom of political speech may for practical purposes be otiose, but my interests have always been theoretical as well as practical. The study of implications can illuminate the nature of constitutional interpretation in general, both as it is actually practiced, and as an aspect of the ideals of constitutionalism and the rule of law.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"29 1","pages":"9-34"},"PeriodicalIF":0.0,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81311765","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}
Pub Date : 2010-09-22DOI: 10.1017/9781108363242.003
A. Hutchinson
In this short essay, I want to explain what is the ‘business’ that I think that I am in as an academic or, more grandly, as an intellectual. In particular, I will explore and explain what the implications of these intellectual commitments are for the fraught and misunderstood relationship between the academic and judicial (and, by implication, the professional) sectors of the legal community. In order to do this, I will first of all introduce an important distinction between the two different types of intellectual role – a traditional one and a critical one – that polarize law schools; this duality is far from original or unfamiliar. Then, I will take the recent confirmation process of Elena Kagan in her appointment to the United States Supreme Court to illustrate the political characteristics and institutional context which give rise to and sustain the pervasive acceptance by most law professors of their role as traditional intellectuals. Lastly, I will look at how this continuing nexus between judges and law professors affects academics in the way that they go about doing their intellectual business. Throughout the essay, I will emphasise that ‘law is politics’ and that there is no site of political innocence or independence that academics or judges can inhabit in meeting their professional roles and responsibilities.
{"title":"Doing the Business: Judges, Academics, and Intellectuals","authors":"A. Hutchinson","doi":"10.1017/9781108363242.003","DOIUrl":"https://doi.org/10.1017/9781108363242.003","url":null,"abstract":"In this short essay, I want to explain what is the ‘business’ that I think that I am in as an academic or, more grandly, as an intellectual. In particular, I will explore and explain what the implications of these intellectual commitments are for the fraught and misunderstood relationship between the academic and judicial (and, by implication, the professional) sectors of the legal community. In order to do this, I will first of all introduce an important distinction between the two different types of intellectual role – a traditional one and a critical one – that polarize law schools; this duality is far from original or unfamiliar. Then, I will take the recent confirmation process of Elena Kagan in her appointment to the United States Supreme Court to illustrate the political characteristics and institutional context which give rise to and sustain the pervasive acceptance by most law professors of their role as traditional intellectuals. Lastly, I will look at how this continuing nexus between judges and law professors affects academics in the way that they go about doing their intellectual business. Throughout the essay, I will emphasise that ‘law is politics’ and that there is no site of political innocence or independence that academics or judges can inhabit in meeting their professional roles and responsibilities.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"31 1","pages":"133"},"PeriodicalIF":0.0,"publicationDate":"2010-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88633617","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}
Pub Date : 2007-07-01DOI: 10.5040/9781472560223.ch-017
M. Bryan
The claim to the return of specific property to a trust fund or to a fiduciary who must apply it towards the fulfilment of the purposes of the fiduciary relationship, such as a joint venture, is a claim to enforce a pre-existing equitable interest in property, is established, followed by a demonstration of dispute in Farah that relates to the enforcement of a subsisting equitable interest in property subject to the application of the doctrine of notice and the principles of title registration that apply to the facts of Farah is examined. It is argued that property rights be enforced as property rights alone and enforcement of property rights should not be dressed in the clothing of equitable doctrines which serve other purposes.
{"title":"Recipient Liability under the Torrens System: Some Category Errors","authors":"M. Bryan","doi":"10.5040/9781472560223.ch-017","DOIUrl":"https://doi.org/10.5040/9781472560223.ch-017","url":null,"abstract":"The claim to the return of specific property to a trust fund or to a fiduciary who must apply it towards the fulfilment of the purposes of the fiduciary relationship, such as a joint venture, is a claim to enforce a pre-existing equitable interest in property, is established, followed by a demonstration of dispute in Farah that relates to the enforcement of a subsisting equitable interest in property subject to the application of the doctrine of notice and the principles of title registration that apply to the facts of Farah is examined. It is argued that property rights be enforced as property rights alone and enforcement of property rights should not be dressed in the clothing of equitable doctrines which serve other purposes.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"47 1","pages":"83"},"PeriodicalIF":0.0,"publicationDate":"2007-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85210583","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}
The International Criminal Court is one of the great international institutions in mankind's history with the potential to reconfigure significant aspects of the international system with regard to criminal jurisdiction. But like the international penal institutions before it, the success of the ICC revolves around international cooperation. An institutional check on the ICC's power is that it will have to work through States. States Parties will be asked to arrest and surrender suspects, investigate and collect evidence, extend privileges and immunities to ICC officials, protect witnesses, enforce ICC orders for fines and forfeiture and, at times, prosecute those who have committed offences against the administration of justice. The ICC will rely heavily on the cooperation of States Parties individually and collectively for its success. This article provides an analysis of the ICC's international cooperation and judicial assistance regime as well as an insight into the approaches that States Parties have adopted in seeking to give effect to the letter and spirit of their obligations domestically.
{"title":"A Giant without Limbs: The International Criminal Court's State-centric Cooperation Regime","authors":"J. Maogoto","doi":"10.2139/ssrn.902804","DOIUrl":"https://doi.org/10.2139/ssrn.902804","url":null,"abstract":"The International Criminal Court is one of the great international institutions in mankind's history with the potential to reconfigure significant aspects of the international system with regard to criminal jurisdiction. But like the international penal institutions before it, the success of the ICC revolves around international cooperation. An institutional check on the ICC's power is that it will have to work through States. States Parties will be asked to arrest and surrender suspects, investigate and collect evidence, extend privileges and immunities to ICC officials, protect witnesses, enforce ICC orders for fines and forfeiture and, at times, prosecute those who have committed offences against the administration of justice. The ICC will rely heavily on the cooperation of States Parties individually and collectively for its success. This article provides an analysis of the ICC's international cooperation and judicial assistance regime as well as an insight into the approaches that States Parties have adopted in seeking to give effect to the letter and spirit of their obligations domestically.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"4 6 1","pages":"102-132"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78849609","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}
{"title":"McLibel: Burger culture on trial","authors":"F. Lloyd","doi":"10.5860/choice.35-5328","DOIUrl":"https://doi.org/10.5860/choice.35-5328","url":null,"abstract":"","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"15 1","pages":"340-344"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72803269","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}
Pub Date : 1995-01-01DOI: 10.5040/9781472559005.ch-003
A. Burrows
{"title":"Understanding the law of restitution: a map through the thicket","authors":"A. Burrows","doi":"10.5040/9781472559005.ch-003","DOIUrl":"https://doi.org/10.5040/9781472559005.ch-003","url":null,"abstract":"","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"44 1","pages":"149"},"PeriodicalIF":0.0,"publicationDate":"1995-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85545409","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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