St Hugh's College

Oxford, OX2 6LE


01865 274932 (office), 01865 274900 (college)


Joshua Getzler was appointed in 1993. In his modern legal research he is working on the duties of investment agents in financial markets, on the legal and economic structure of debt and equity securities, on the liability of entities in tort, contract and equity, and on theories of co-ownership and fiduciary duty. In his historical research he is working on the nature of fiduciary accountability in private and public relationships, including Crown liabilities, public finance, and private banking and investment; and more generally the evolution of property, trust, corporate and charitable forms, principally in the eighteenth and early nineteenth centuries. His doctoral monograph concerned the juristic and economic factors governing control of water resources in the historical common law. He is now embarking on a commissioned study of the inter-relationship of native title, trust and fiduciary accountability, and treaty law in relation to First Nations, with special reference to Upper Canada in the colonial and imperial periods. A long-term interest is the role of the lord chancellors and royal justices in law and politics before the Great Reform Act, from Macclesfield and King through to Hardwicke and Eldon.

Joshua's first degrees in law and history were taken at the Australian National University in Canberra, and his doctorate in Oxford, as a member of Balliol and Nuffield Colleges. He has taught and researched as a fellow at the Australian National University and the Hebrew University, and as a visiting professor at the University of Chicago, Columbia University, the University of Pennsylvania, and Tel Aviv University. He maintains links to Australia as Conjoint Professor of Law at the University of New South Wales and as an Overseas Fellow of the Australian Academy of Law. He serves on the editorial board of the Oxford Journal of Legal Studies and the Journal of Equity and is co-editor of the new OUP monograph series Oxford Legal History.


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  • J S Getzler, 'Avner Offer (1944-)' in Robert Cord (ed), The Palgrave Companion to Oxford Economics (Springer 2020) (forthcoming)
    Avner Offer’s work includes the history of property politics in England before the Great War; the impact of the international food economy on politics and strategy in Britain, the British Empire, and Germany before and during that War; analysis of the experience of affluence and its impact on social mores and well-being in the UK and USA since 1950; and a study of abstract economic theory and its influence on political ideologies and economic organisation in the West since the late 1960s. In his model building he sees motivation through the lens of a quest for self-esteem and approbation, and views institutions as devices to control and constrain commitment across time. Much of his work can be read as a defence of social democracy, and an analysis of how welfare can be destroyed by political and economic calculations inducing inequality and conflict.
  • J S Getzler, 'Historical Perspectives' in Andrew Gold, John Goldberg, Daniel Kelly, Emily Sherwin, and Henry Smith (eds), Oxford Handbook of New Private Law (Oxford University Press 2020) (forthcoming)
    This chapter considers how New Private Law can draw on the history of classical jurisprudence and, in particular, its roots in ancient Rome. This learning is valuable not merely to understand present-day doctrinal reasoning; it is valuable to know the deep intellectual history of that doctrine. Gaius’s legal taxonomy permeates the development of the common law as well as codified and non-codified civilian systems. The Romans thus invented the legal heuristics used by all lawyers today, including modernists who wish to adapt (or abolish) doctrinal reasoning. The values carried by doctrinal classicism have also been misunderstood by many modernists: it has not always been a conservative, limiting factor – the classical tradition can also liberate judges who seek to experiment with the law or engage in programs of reform. Indeed, the classical tradition is a powerful mechanism for state formation. This intellectual history has lessons for the development of NPL as a revival of doctrinal thinking within the context of American legal realism.
  • J S Getzler, 'Fiduciary Principles in English Common Law' in EJ Criddle, PB Miller, RH Sitkoff (ed), The Oxford Handbook of Fiduciary Law (Oxford University Press 2019)
    This chapter discusses fiduciary principles in the historical English common law. The term “fiduciary” today connotes high standards of loyalty and good faith in the performance of discrete obligations, the management of assets or the conduct of relationships, and the concept of fiduciary duty is often traced back to equitable notions of good conscience and undivided loyalty rooted in the moralistic approach of Chancery judges. However, a prior source of fiduciary standards lies in the common law doctrine of account. Legal accounting regulation began in the feudal age with Exchequer control of fees and services, rents and taxes. Feudal accounting was codified in the twelfth century to control the behavior of lords who stood as guardians for underage heirs, with particularly extensive duties being applied to guardians of wards in socage (or agricultural) tenure. Accounting systems were then extended to control management chains within manorial units embracing the lord’s farm agents of stewards, bailiffs, and reeves. The chapter then shows how the common law courts extended accounting and waste remedies to third parties through augmentation of disseisin actions to permit tracing and following procedures for entrusted assets. The prohibition of unauthorized profit-taking by fiduciaries or others in positions of influence or good faith and the use of an array of personal and proprietary remedies thus precedes the rise of the Court of Chancery by some three centuries. It is then shown how Chancery came to dominate fiduciary accounting procedures in modern times, building on an expansion of jurisdiction in the eighteenth century as the Chancellors struggled to repress managerial fraud in the private and public spheres. Today, following fusion of law and equity, we are seeing the assimilation of equitable remedies for breach of fiduciary duty with negligent liability for tortious harm, and the folding of the primary fiduciary duties into contract. Fiduciary accountability, born long ago within the early common law, is now being undermined by the blanket application of much simpler common law concepts.
    ISBN: 0190634103, 9780190634100
  • J S Getzler, 'Lord Tenterden's 1832 Prescription Act: Why Was it Passed, and Was it a Failure?' in JH Dondorp, DJ Ibbetson and EJH Schrage (eds), Prescription and Limitation (Duncker und Humblodt 2019)
    In this paper I defend the reviled 1832 Prescription Act, and rehabilitate the much-derided promoters of the legislation. I argue that the 1832 legislation was not simply an ill-conceived patchwork attempt to correct problems in the common law doctrines of prescription that ended up making a confused area of law worse, but was rather part of a wider reformist plan that largely succeeded. One has to see the purpose of the Act through the eyes of the protagonists at the time, and not apply modern preconceptions to the work of jurists and politicians legislating nearly two hundred years ago. The prize they sought was not just to reshape the immemorial right and modern grant models of acquisitive prescription, but to make a modern actio negatoria, a system of negative prescription allowing destruction of existing servitudes through non-use or desuetude, in order to clear a path to ready exemption of estates from tithe payments to the Anglican clergy (often absentees) or to lay impropriators or lessees who farmed the tithes as a species of rent. The existence of tithes as a rateable impost on agriculture, inconveniently and oppressively collected in kind, was one of the most controversial issues in politics at the time of the Great Reform Bill, and it was this controversy that drove the parliamentary debate over prescription.
    ISBN: 9783428556267
  • J S Getzler and Kristin van Zwieten, 'The Common Law and Finance' [2019] Lloyd's Maritime and Commercial Law Quarterly 543
    This essay introduces four papers originating as lectures delivered in Oxford as part of a special series for the academic year 2018/19, entitled "The common law and finance: perspectives from the bench". In the series, senior judges from four jurisdictions (Chief Justice Geoffrey Ma, Hong Kong; Justice James Edelman, Australia; Lord Michael Briggs, the UK; and Judge Frank Easterbrook, the US) were invited to reflect on the role of the common law judge in the regulation of commerce and finance. In this introduction, we explain the motivation for the series, provide a synopsis of the papers, highlight some common themes, and identify some areas that might usefully be the subject of further research.
    ISBN: 0306 2945
  • J S Getzler, 'Laying the axe to the root of the tree? Shielding a co-trustee from liability' in P Davies, S Douglas, and J Goudkamp (eds), Defences in Equity (Hart Publishing, Oxford 2018)
    The courts have long held that co-trustees are jointly and severally liable for breaches of trust. The breach must be shared or joint, or there must be a parallel coordinate breach by one trustee alongside the breach of another (as Lord Hardwicke’s famous speech in Charitable Corporation v Sutton (1742) indicates); there is no vicarious liability whereby the identical breach of one is ascribed to the other. But this distinction of the liability of co-trustees as contrasted with partners or mutual agents can blur in practice. The courts have explored this issue in dealing with the oft-argued defence – or answer to a claim in equity – that an “innocent” co-trustee should not be made liable where an active trustee who received and controlled assets and then lost them through an individual or several breach of trust. This paper explores the historical jurisprudence, and concludes that this area of co-trustee liability has now largely been dissolved into the general duty of care decreed by legislation.
    ISBN: 9781849467247
  • J S Getzler, 'Legal history as doctrinal history' in Markus Dubber and Christopher Tomlins (eds), Oxford Handbook of Legal History (Oxford University Press 2018)
    This chapter investigates the idea of doctrine as a focus of historical scholarship, asking how the doctrinal mentality arose, and how historical approaches to doctrine emerged strongly in both common-law and civilian or Romanistic legal cultures. It first defines the meaning of ‘doctrine’, and sets out a guiding thesis. It argues that an important dimension of doctrine is communication; and jurists become fascinated by the history of doctrine when social and political conditions necessitate an expansion or transfer of the legal system, with concomitant transfers of doctrinal thought. The chapter then traces the development of doctrinal history from Gaius to the common law tradition.
    ISBN: 9780198794356
  • J S Getzler, 'Magna Carta clauses 4 and 5 and the origins of accountability' in C Macmillan and C Smith (eds), Challenges to Authority and the Recognition of Rights: from Magna Carta to Modernity (Cambridge University Press 2018)
    It is mainly in the arena of constitutional law that Magna Carta of 1215 has operated as a live authority to be cited in court; but Magna Carta also has an interesting post-history as a progenitor of fiduciary principles in private law. Magna Carta gave the first legislative restatement of the nascent legal controls of stewardship by guardians and bailiffs, which led in turn to the evolution of modern doctrines for the control of accountable parties such as agents, bailees, executors, guardians, trustees, and directors. By reviewing the operation of Magna Carta in this area we may better be able to understand why accountability has mattered across our legal history, and thereby better grasp the problems and uncertainties faced by our law today. At the time of Magna Carta the line between public and private accountability was difficult or impossible to draw within a feudal system merging jurisdictions with estates. However, continuity across the field or public and private accountability may be found in the idea of due process – that decision-makers wielding power based on jurisdiction, status, or estate should do so in a manner measurable and controllable by law.
    ISBN: 9781108554336
  • J S Getzler and Alexandra Whelan, 'Common Law and the Constraint of Financial Markets: Credit Rating Agencies as a Test Case' in K Barker, K Fairweather and R Grantham (eds), Private Law in the 21st Century (Hart Publishing 2017)
    Can the law develop workable, litigable rules to measure the duty and standard of care owed by financial intermediaries to clients? In this chapter we examine the legal control of credit rating agencies, using this as a test case to demonstrate how financial intermediation poses a set of difficult problems for the common law tradition to solve. We discuss the origins and functions of rating agencies as information intermediaries, and show how the rating industry slid into pathology in the mid-2000s. We then outline recent developments in case law and statute grappling with rating agency liability, and show that it remains unclear whether increased or perhaps decreased liability would best serve the interests of a healthy financial sector.
    ISBN: 9781509908585
  • J S Getzler, 'Frederic William Maitland – Trust and Corporation' (2016) 35 University of Queensland Law Journal 171
    Maitland’s late essay ‘Trust and Corporation’ (1904-05) suggests how the institutions of private associational law fits into a wider scape of political and social evolution. This article explores the genesis, the arguments, and the influence of this seminal work of historical and comparative jurisprudence.
    ISBN: 0083-4041
  • J S Getzler, 'Interpretation, Evidence, and the Discovery of Contractual Intention' in S Degeling, J Edelman and J Goudkamp (eds), Contract in Commercial Law (Thomson 2016)
    A review of the current state of contract interpretation, looking at modern controversies through a lens of legal history concerning admissibility of evidence of intention in law and equity. The turmoil in judicial theories of contract interpretation today is in large part a struggle post-fusion to re-establish filters on the flow of admissible fact regarding intentionality. Courts have mistakenly focused on ascribing meaning to 'objective' and subjective' contractual intent when the real focus should be on deciding approved tests for admissible evidence of intent and the force of presumptions derived from admitted evidence. The troubled adjacent areas of rectification and implied terms have also suffered from the courts tending to ask the wrong substantive questions rather than the right adjectival ones.
    ISBN: 9780455237688
  • J S Getzler, 'Law, Self-Interest, and the Smithian Conscience' in M Del Mar and M Lobban (eds), Law in Theory and History: New Essays on a Neglected Dialogue (Hart Publishing 2016)
    This essay examines how law understands and engages with self-interest. After examining the turn to voluntarism and away from a jurisdiction of conscience in recent law and legal theory, it moves attention to intellectual history, and examines the work of Adam Smith in ethics, economics and jurisprudence, where a theory of conscience based on sympathy is used to explain self-interest and to provide the ground of an original ethical system. Evidence is then adduced that lawyers in Chancery in the decades immediately following Smith’s theorizing came to think in similar terms, perhaps directly influenced by Smith’s arguments.
    ISBN: 9781849467995
  • J S Getzler, 'Personality and Capacity: Lessons from Legal History' in T Bonyhady (ed), Finn's Law: An Australian Justice (Federation Press 2016)
    Paul Finn in his latter work moving from fiduciary law to public law posed some fundamental questions: How far is the practical everyday Crown person operating within its own legal system bound by the normal rules of the game that bind other legal persons? And does the Crown’s other life as sovereign shape its presence as a legal actor in the everyday legal system and give it special privileges and immunities? Finn’s historical work explored these questions in light of the liabilities of the colonial governments in 19th-century Australia. He argued that novel Crown liability regimes invented in Queensland and New South Wales in the middle of the 19th century offered a brave, if incomplete, set of solutions bridging the gap between government as sovereign and government as an actor in the normal life of the community. In this chapter I suggest that the solutions were left incomplete because liability questions were entwined with unresolved questions about the personality and capacities of the Crown as a corporate entity. Those questions were hard to resolve because legal personification is a difficult and contested area of jurisprudence, resting on distant precedents in Roman, canon and medieval common law that were bent to serve purposes unmoored from their origins.
    ISBN: 9781760020804
  • J S Getzler, 'Two Timing the Law' (2015) 163 University of Pennsylvania Law Review Online 355
    A response to Edward B. Rock, Corporate Law Doctrine and the Legacy of American Legal Realism, 163 U. Pa. L. Rev. ___ (2015). In this paper I suggest how English lawyers evade the realist embrace of policy by projecting law "inter-temporally" — that is, allowing the law to inhabit two successive times and allowing one time state to affect the other — in order to yield legal results and ultimately effect change in the legal system itself. I assess Edward Rock’s juxtaposition of the Delaware courts’ realist approach and the formalist techniques of leading English commercial judges when dealing with some of the more difficult areas of corporate doctrine.
    ISBN: 0041-9907
  • J S Getzler, 'Ascribing and Limiting Fiduciary Obligations: Understanding the Operation of Consent' in A S Gold and P B Miller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014)
    It is now a common observation that fiduciary duties typically arise from consent, express or implied, and regularly operate to prohibit certain behaviours in order to improve standards of positive conduct. These claims are each entirely valid, but consent is not a universal or complete explanations of the genesis of fiduciary duties, their content, and the proper remedies for breach. This essay makes a tentative start in applying the techniques of ascription and defeasibility to fiduciary law, arguing that consent plays a role in both creation and limitation of fiduciary obligations, but that consent interacts with an array of further mandatory and default terms to control entry into, variation and exemption, and exit from fiduciary relationships. The chapter surveys current law, and concludes that not “who is a fiduciary,” or “what is a fiduciary duty,” but “how are fiduciary duties changed” is now the compelling question.
    ISBN: 978-0-19-870172-9
  • J S Getzler, 'Citation and the authority of opinions in Roman and Jewish law: The snake oven revisited' in J Hallebeek, M Schermaier, R Fiori, E Metzger and J-P Coriat (eds), Inter cives necnon peregrinos: Essays in honour of Boudewijn Sirks (Vandenhoeck & Ruprecht unipress, Göttingen 2014)
    An historical study, in honour of Boudewijn Sirks on his retirement, of canons of citation and authority of legal arguments,drawing from ancient Jewish traditions of religious jurisprudence adjacent to late imperial Roman law principles of juridical authority. It begins with the notorious Lex Citandi, the "Law of Citations", also known as the "lex de responsis prudentium", found in the Theodosian Code 1.4.3,later to be replaced by the Justinianic rules of equality of argument. The main part of the paper then looks closely at majoritarian principles in halakhah or Jewish law as preserved in the classical Mishnaic and Talmudic texts. The contrast between the Roman and Jewish systems raises the question whether legal decision-making, involving the sifting and weighing of authorities, is itself a morally important act, or merely a machinery administered by technical experts, of limited spiritual virtue. This is a different problem to the content question — whether the law that binds subjects has any necessary connection to the moral purposes that we pursue in our private and public lives. The ancient jurisprudence suggests a regard for the moral content of the adjudicative process itself.
    ISBN: 13: 978-3847103028
  • J S Getzler, 'Financial Crisis and the Decline of Fiduciary Law' in C Morris and D Vines (eds), Capital Failure: Rebuilding Trust in Financial Services (Oxford University Press 2014)
    This chapter identifies the cutting back of fiduciary obligations by courts and legislatures as a possible contributory cause of the financial crisis that erupted in 2008. It argues that a restoration of classical fiduciary duties of loyalty and care to clients can help improve the health of the financial system and mitigate the next crises. During the "Great Moderation" asset managers used a permissive legal environment to take high fees but, by the time that the crisis had come, had moved their clients’ wealth into assets which crashed in value, whilst insulating themselves from liability for poor judgment and care in making such investments. The law needs to provide a satisfactory response to such behaviour, addressing the problems of uncertainty, asymmetric information and expertise, and conflicts of interest. These necessary additional duties would create something very similar to the fiduciary law we already have, but which we no longer use. This chapter describes the attenuation of modern fiduciary law over the past forty years, and suggests how the power of this body of law may freshly be deployed in the future.
    ISBN: 978-0-19-871222-0
  • J S Getzler, 'Faith, Trust, and Charity' in A Burrows, D Johnston, and R Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press 2013)
    Lord Rodger's last book examined constitutional issues arising from the Disruption of the Church of Scotland of 1843. This essay in honour of Lord Rodger looks at the Disruption anew through the lens of private law. It examines problems arising where a court is vested with jurisdiction over issues of religion by the regular operation of secular law as a source of private rights created at will by private actors. This is quite distinct from cases where religious practice collides with secular law created directly by coercive public command so as to bind all subjects. For example, where a group forms an association based on civil institutions of contract, co-ownership and trust in order to pursue a common religious life, then regular enforcement of those private-law agreements and shared property rights can give the courts a lever to decide matters of religion enshrined in the original constitution of the group. Thus if A and B vest property into common or entrusted ownership and agree that this will be used to support a certain form of religious practice, creed, and ritual, then A may sue B to force him by law not to vary the practice, creed, or ritual, as a matter of contract, property, or trust law. Successors may perpetually rely on the original agreements to enforce religious forms many generations later. And a religious form of life may be "double-entrenched" by making the original means of governance of the religious community a fundamental condition of the association and so immune to normal majoritarian vote. These issues were fought out in many great cases before and after the Disruption, and this jurisprudence forms a backdrop to Lord Rodger's important dissent in the Jewish Free School Case of 2009.
    ISBN: 978-0-19-967734-4
  • J S Getzler, 'Morice v Bishop of Durham (1805)' in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart Publishing 2012)
    Morice v Bishop of Durham (1804-5) is most definitely a leading case in the law of trusts. But it was not cited as authority for any 'beneficiary principle' or 'certainty of objects' rule in the general texts of trusts and equity until well toward the middle of the nineteenth century. Its real celebrity as a leading decision dates to the early and mid-twentieth century, as lawyers grappled with the challenge of amorphous beneficial objects in the new environments of family and corporate tax planning, corporate finance, pensions, and offshore jurisdictions. The urgent problems facing lawyers at the time of Morice were rather different, and harked back to two linked issues that had troubled the legal system since before the Reformation -- controlling the deathbed disherison of heirs, and restraining the putting of testamentary property into mortmain, that is perpetual or 'deadhand' control of property by ecclesiastical bodies or other corporations. This explains why Morice was early picked up by cases and texts on mortmain and charitable uses, and remained rather invisible in the key literatures on trusts. The beneficiary principle had to become controversial before it could be noticed properly as a foundational doctrine.
    ISBN: 9781849461542
  • J S Getzler, 'Assignment of Future Property and Preferences' in J Glister and P Ridge (eds), Fault Lines in Equity (Hart Publishing 2012)
    An investigation of a flashpoint in the judicial control of insolvency. I examine how the equitable law of future assignments, designed to enforce paid-for promises and uphold the interests of assignees, is in tension with another 'equitable' policy established by statute, namely the jurisdiction to prevent preferential assignments that tend to defraud creditors by blocking recourse against debtors' assets. The High Court of Australia has been particularly active in this area, issuing an important judgments from the early 20th century to the present day. This body of law demonstrates the intermingling of equity jurisprudence and statute.
    ISBN: 9781849462198
  • J S Getzler, 'Brian Simpson's Empiricism' (2012) 3 Transnational Legal Theory 127
    Brian Simpson's critique of Herbert Hart's The Concept of Law confronts abstract attempts to analyse law using the tools of linguistic philosophy with Simpson's preferred approach of dense historical narrative which strives to reconstruct the mentalities of past legal actors. Simpson's approach can be seen as a species of 'thick description' that ultimately shares much with the intellectual world of linguistic philosophy that he assails. Simpson's quarrel with Hart can thus be redrawn as a quarrel between two variant forms of British empiricism; Simpson's purposes are not so radically different to Hart's as he claims. The main difference is that Simpson relies on a shared (and often parodic) understanding with his audience of the nuances of common-law culture, whilst Hart is more interested in how linguistic usage common to contemporary lawyers can reveal general qualities of law. These are not rival enterprises.
  • J S Getzler and Paul Brand (eds), Judges and Judging in the History of the Common Law and Civil Law (Cambridge University Press 2012)
    This volume of essays by leading legal historians addresses significant topics in the complex history of judges and judging, with comparisons not only between British, American and Commonwealth experience, but also with the judiciary in civil-law countries.
    ISBN: 9781107018976
  • J S Getzler, '"As If". Accountability and Counterfactual Trust' (2011) 91 Boston University Law Review 931
    Law sustains trust in fiduciaries not primarily by ordering redress of losses caused by a falling below fiduciary standards, but rather by requiring that the fiduciary be induced to act as if those standards were met. Wherever possible, the fiduciary is estopped from acting in reliance on the breach, and instead is asked to cure the breach by positive performance of duty. As a fiduciary, you do not keep the illegal profit and proffer compensation for any ensuing loss; rather, you hold the profit for the beneficiary as you always should have done, with loss measures calculated to level any shortfall. This "as if" trusting, enforced by law, solves the conundrum that complete trust properly requires no enforcement, but is self-enforcing, or better, self-fulfilling. This thesis is explored and justified through an examination of the history of accountability and allied modern doctrines controlling fiduciaries who breach their trust.
    ISBN: 0006-8047
  • J S Getzler, 'Richard Epstein, Strict Liability, and the History of Torts' (2010) 3 Journal of Tort Law #3
    Epstein's strict liability model of tort law, first stated in 1973, relied on arguments derived from the history of the common law, starting with the late medieval period and extending into the nineteenth century. Since that seminal article was published, legal historical scholarship has deepened our understanding of earlier tort law and brought many new sources to bear, and it has also uncovered a pervasive if quiet Romanistic influence on doctrinal development. None of this new work overturns Epstein's historical intuitions, and his strict liability theory can continue to claim support in the practices of the older common law.
    ISBN: 1932-9148
  • J S Getzler, 'M. Grossberg and C. Tomlins, eds, The Cambridge History Of Law In America Vol iii: The Twentieth Century And After (1920-)' (2010) 14 Edinburgh Law Review 513 [Review]
  • J S Getzler, 'Plural Ownership, Funds, and the Aggregation of Wills' (2009) 10 Theoretical Inquiries in Law 241
    This Article suggests that common ownership, better described as, plural ownership to distinguish the phenomenon from semicommons, may usefully be analysed from a dual perspective. Plural ownership may simultaneously be seen as an aggregation of individualised rights, duties and intentions, and as giving rise to a real entity with a group mind and corporate rights and duties distinct from those of the individual owners. For the purposes of understanding this dualism, the most developed and interesting form of plural ownership is the trust fund with multiple controllers and beneficiaries, an ancient device that now serves as the bedrock of modern capitalism. The fund is here subjected to legal, historical and philosophical scrutiny to uncover how group personality is generated by plural ownership in the absence of formal legal incorporation.
    ISBN: 1565-1509
  • J S Getzler, 'Transplantation and Mutation in Anglo-American Trust Law' (2009) 10 Theoretical Inquiries in Law 355
    In the early nineteenth century, authoritative treatise writers such as Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trusts law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental doctrines of English trusts law, and by such genetic engineering mutated this body of law into a new breed. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trusts law. Irreducible settlor power over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations flowing from these basic doctrinal choices. The changes made to American trust doctrine leads to a paradox for the legal, social and economic historian, namely that republican America ended up with more a dynastic property law, more wedded to the dead hand and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. This paper explains how the English slowly came to commit to relatively free alienability of beneficial interests and the enhancement of beneficiary's powers over trust assets, and then charts how Americans abandoned these commitments. Some fresh interpretations are offered as to why these divergences occurred, rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market.
    ISBN: 1565-1509
  • J S Getzler, 'A. Letwin, The Last Political Law Lord: Lord Sumner (1859-1934)' (2009) 125 Law Quarterly Review 702 [Review]
  • J S Getzler, 'Company Law: English Common Law' in S N Katz (ed), The Oxford International Encyclopedia of Legal History (Oxford University Press 2009)
    ISBN: 9780195134056
  • J S Getzler, 'Easements' in S N Katz (ed), The Oxford International Encyclopedia of Legal History (Oxford University Press 2009)
    ISBN: 9780195134056
  • J S Getzler, 'Environment Law: English Common Law' in S N Katz (ed), The Oxford International Encyclopedia of Legal History (Oxford University Press 2009)
    ISBN: 9780195134056
  • J S Getzler, 'Fiduciary investment in the shadow of financial crisis: Was Lord Eldon right?' (2009) 3 Journal of Equity 219
    The structure of trust duties yielding a duty to invest with due care derives from the interaction of the power to manage trust assets as a fiduciary owner with a duty to do so with prudence and diligence. In earlier equity mediocre or failed investments were chargeable to trustees only where shown to involve wilful default, which meant choice of investments outside the range or risk profile of those approved by the law or expressly licensed by the settlor or beneficiary. Lord Eldon in the early nineteenth century entrenched the view that only assets with indestructible capital -- for trust funds, gilts and mortgages on a wide safety margin, and in the case of trusts of realty, further land purchase -- were fit targets for trust investment without special authorisation. With more sophisticated capital markets developing in the nineteenth century, parties regularly set up far wider trust powers of investment, and the legal standard shifted towards enforcing prudent investment processes rather than safe results, using a benchmark of common practice to fix the requisite standard of care. American law from the late 1970s shifted to a new default position mandating portfolio investment, once it had become clear that the great majority of professionally managed trusts typically authorised entry into the profitable if volatile stock market; Australian and English law and practice eventually followed. Meanwhile, government policy favouring funded welfare, as opposed to the pre- and post-war fiscal transfer and national insurance systems, led to massive growth of pension capital under trust management. Statutory and curial reforms allowed pension trustees, and then all trustees, to invest unrestrictedly in all asset classes as plenary owners including portfolio stock investment, provided that certain undemanding standards of care and propriety were met. Portfolio investment by trustees was designed to win the 'equity risk premium' for beneficiaries while avoiding the volatility of the capital markets, through bundling into mutual funds permitting index sampling of wide markets and hedging and risk-correlation of equities and bonds. The recent sharp fall in share values allied to the credit crunch and financial banking crisis starting in late 2007 have tested the portfolio theory to destruction. Whether the macroeconomic benefits of market allocation of pension trust capital through unrestricted private choice has delivered sufficient stable welfare to enough individuals is a question the law may be ill equipped to answer. But trust law does have resources to detect individual and collective pathologies in investment conduct and set standards that can direct parties into less destructive paths.
    ISBN: 1833-1237
  • J S Getzler, 'Quantum Meruit, Estoppel, and the Primacy of Contract' (2009) 125 Law Quarterly Review 196 [Case Note]
    The House of Lords and the High Court of Australia in separate decisions made within weeks of each other grappled with the correct use of equitable and restitutionary doctrines augmenting the operation of contract law in commercial relationships. The Lords sharply narrowed the doctrine of estoppel where a contract failed to materialize after heavy reliance by a putative joint venturer; but were permissive in allowing a limited quantum meruit remedy based on unjust enrichment. The High Court rejected any possibility of a leapfrogging claim to allow recovery of enrichment by a subcontractor, and the plurality in obiter comments threw doubt on the existence of an autonomous unjust enrichment principle in Australian law.
    ISBN: 0023-933X
  • J S Getzler, 'Denning, Alfred Thompson; Historical Research in Law; Keech v Sandford; Water Law' in P Cane and J Conaghan (eds), New Oxford Companion to Law (Oxford University Press 2008)
    ISBN: 13-978-0-19-929054
  • J S Getzler, 'Excluding fiduciary duties: the problem of investment banks' (2008) 124 Law Quarterly Review 15 [Case Note]
    Integrated investment banks trading in securities markets can end up acting against the interests of clients they advise in mergers and other deals. Typically the bank's retainer excludes fiduciary duties so as to allow the bank activities which otherwise would constitute conflicts of interest. In ASIC v Citigroup the Federal Court of Australia held that formal consent to such exclusions of duty sufficed, and that fully informed consent was not requisite. The problem of pervasive conflicts of interest in financial markets was identified, but the judge held that only a legislative solution would be legitimate.
    ISBN: 0023-933X
  • J S Getzler, 'ASIC v Citigroup: Bankers' conflict of interest and the contractual exclusion of fiduciary duties' (2007) 2 Journal of Equity 62
    An investment bank advising a client in a takeover bid may simultaneously engage in trading in the target company, and this carries a risk of driving up the target price. If, however, the bank forbears to trade, the market may take this as a confirmation that a takeover is being planned by the advisory wing of the bank, again affecting the target price. In ASIC v Citigroup, the bank had excluded all fiduciary duties towards its client, and so claimed there was no conflict of interest in the bank's proprietary trading in the target company ahead of the takeover operation. ASIC argued that in the run-up to execution of the retainer the bank had a preliminary fiduciary duty to seek fully informed consent to the broad exclusion of fiduciary duties, such that the client understood the risk that the bank might trade or otherwise act against the client's interests. The Federal Court ruled that formal consent sufficed where the parties were well-advised business actors, or alternatively that commercial actors implicitly consent to such risks. The decision identifies - but does not solve - the pervasive problem of conflicts of interest generated by the integrated investment banking model.
    ISBN: 1833-1237
  • J S Getzler, 'T. Frankel, Trust and Honesty: America's Business Culture at a Crossroad' (2007) 70 Modern Law Review 701 [Review]
  • J S Getzler, A History of Water Rights at Common Law (paperback) (Oxford University Press 2006)
    Paperback corrected edition of my monograph of 2004; see parallel entry.
    ISBN: 0-19-920760-7
  • J S Getzler and Jennifer Payne (eds), Company Charges: Spectrum and Beyond (Oxford University Press 2006)
    This volume draws together the views of some prominent figures in corporate law and finance regarding the law on fixed and floating charges. The focus for the book is the litigation in the case of Spectrum Plus, which culminated in a House of Lords judgment in June 2005 ([2005] UKHL 41).This decision has important commercial implications, not only for the parties in the case but also for the business community at large, including banks and other lenders, and practitioners in corporate finance and insolvency. The litigation also raises important juristic questions regarding the fixed/floating charge divide such as the theoretical basis for that divide, how the divide is determined, why it exists at all and whether it ought to be maintained as a coherent doctrine and a beneficial policy. The decision also has important ramifications in both security law and insolvency law and it provides a challenge to some of our most basic conceptions of freedom of contract and the assignability of rights and assets in law and equity.These issues, amongst others, are explored by the contributors to this book. The contributors include Gabriel Moss, who was one of the QCs involved in the Spectrum litigation, Sir Roy Goode, Michael Bridge, John Armour, Robert Stevens, Sarah Worthington, Julian Franks and Oren Sussman, Jenny Payne and Louise Gullifer, Philip Wood, Joshua Getzler, Look Chan Ho and Nicholas Frome.
    ISBN: 0-19-929993-5
  • J S Getzler, 'Inconsistent Fiduciary Duties and Implied Consent' (2006) 122 Law Quarterly Review 1 [Case Note]
    Describes the tightening of the application of the loyalty rules for fiduciaries such as solicitors, so as to prevent them serving two clients with inconsistent interests. Attempts to find an implied consent to limitation of the demanding sole interest duty of loyalty in the Court of Appeal are rejected in the House of Lords decision in Hilton v Barker Booth & Eastwood [2005] UKHL 8; [2005] 1 W.L.R.567.
    ISBN: 0023-933X
  • J S Getzler, Timothy Endicott and Edwin Peel (eds), Properties of Law: Essays in Honour of Jim Harris (Oxford University Press 2006)
    Essays on legal theory, property theory, precedent, and criminal law.The late Jim Harris' theory of the science of law, and his theoretical work on human rights and property, have been a challenge and stimulus to legal scholars for the past twenty-five years. This collection of essays, originally conceived as a festschrift and now offered to the memory of a greatly admired scholar, assesses Harris' contribution across many fields of law and legal philosophy. The chapters are written by some of the foremost specialists writing today, and reflect the wide range of Harris's work, and the depth of his influence on legal studies. They include contributions on topics as diverse as the nature of law and legal reasoning, rival theories of property rights and their impact on practical questions before the courts; the nature of precedent in legal argument; and the evolving concept of human rights and its place in legal discourse.
    ISBN: 0-19-929096-2
  • J S Getzler, 'Property, Personality, and Violence' in T Endicott, J Getzler, and E Peel (eds), Properties of Law: Essays in Honour of Jim Harris (Oxford University Press 2006)
    What are the conditions that justify the use of violence to defend property? If attacks on property can be compared to assault on the personality of the owner, then does this justify violence as a response to dignitary attack? Recent theoretical work on justification and excuse and property theory can lend insights.
    ISBN: 0-19-929096-2
  • J S Getzler, 'Rumford Market and the Genesis of Fiduciary Obligations' in A Burrows and A Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (OUP 2006)
    The seminal case of Keech v Sandford is analysed from three perspectives: the fiduciary theory of Peter Birks which sees fiduciaries as an offspring of trust custodianship; the historical intent of King LC, the author of the judgment, which was to prevent profit from office as a basic principle of public and legal mores; and the longer-term historical functions of fiduciary law. It is argued that trusts can be seen as an offspring of the fiduciary principle, and that the historical strength of the principle should speak against attempts by John Langbein and others in the US and UK to dilute that principle into one of acting in the best interests of beneficiaries.
    ISBN: 0-19-920655-4
  • J S Getzler, 'The Role of Security over Future and Circulating Capital: Evidence from the British Economy circa 1850-1920' in J Getzler and J Payne (eds), Company Charges: Spectrum and Beyond (OUP 2006)
    An analysis drawing on economic history to cast doubt on the orthodox view - expressed inter alia by Lord Scott in Spectrum - that floating charges were an essential innovation in late-19th century corporate finance, necessary to summon loan capital for enterprise and so counterbalance weaknesses in the equity market. An alternative thesis is offered that the floating charge was developed to maintain bank liquidity, and may have distorted entrepreneurial incentives.
    ISBN: 0-19-929993-5
  • J S Getzler, 'P. Cane and M. Tushnet, Oxford Handbook to Legal Studies' (2005) 121 Law Quarterly Review 513 [Review]
  • J S Getzler and Mike Macnair, 'The Firm as an Entity before the Companies Acts' in P Brand, K Costello and W N Osborough (eds), Adventures in the Law: Proceedings of the 16th British Legal History Conference, Dublin (2005)
    Shows how law, equity and ad hoc statute permitted forward and reverse asset partitioning in the two centuries before the Companies Acts, and thereby questions the orthodoxy regarding the rise of free incorporation.
    ISBN: 1-85182-936-9
  • J S Getzler, 'Use of Force in Protecting Property' (2005) 7 Theoretical Inquiries in Law 243
    Is an attack on property capable of being analogized as an assault, on the personality of the owner instead of on the body? The laws of burglary and property defence suggest that the historical answer is complicated; both theory of justification and excuse and property theory can lend insights.An expanded version of 'Property, Personality and Violence', appearing in "Properties of Law".
    ISBN: 1565-1509
  • J S Getzler, 'Am I My Beneficiary's Keeper? Fusion and Loss-Based Fiduciary Remedies' in S Degeling and J Edelman (eds), Equity in Commercial Law (Thomson (LBC), Sydney 2005)
    ISBN: 0455 222 088
  • J S Getzler, A History of Water Rights at Common Law (OUP 2004)
    Winner of Peter Birks Prize for Outstanding Legal Scholarship 2005, awarded by Society of Legal Scholars
    ISBN: 0198265816
  • J S Getzler, 'Chancery Reform and Law Reform' (2004) 22 Law and History Review 601
    Criticises Lobban's procedural vision of early 19th centiry law-equity fusion, and places the process within a context of substantive doctrine and wider law reform in England's commercialising economy.
    ISBN: 0738-2480
  • J S Getzler, 'Edward Sugden, Baron St. Leonards' in C Matthew and B Harrison (eds), The New Dictionary of National Biography (Oxford University Press, Oxford 2004)
  • J S Getzler, 'Forfeiture for Breach of a Time Condition' (2004) 120 Law Quarterly Review 203 [Case Note]
    Recent High Court, Privy Council and House of Lords authorites investigate when equitable doctrine will allow relief against confiscation of an estate contract where a purchaser exceeds a time condition. In Tanwar v Cauchi the High Court resolves a confused set of authorities and tilts towards strict enforcement of duties.
    ISBN: 0023-933X
  • J S Getzler, 'Sir Charles Crompton' in C Matthew and B Harrison (eds), The New Dictionary of National Biography (Oxford University Press, Oxford 2004)
  • J S Getzler, 'Sir Cresswell Cresswell' in C Matthew and B Harrison (eds), The New Dictionary of National Biography (Oxford University Press, Oxford 2004)
  • J S Getzler, 'Sir John Jervis' in C Matthew and B Harrison (eds), The New Dictionary of National Biography (Oxford University Press, Oxford 2004)
  • J S Getzler, 'G. Morgan and P. Rushton, Rogues, Thieves and the Rule of Law' (2003) 21 Law and History Review 223 [Review]
  • J S Getzler (ed), Rationalizing Property, Equity and Trusts - Essays in Honour of Edward Burn (Lexis-Nexis Butterworths 2003)
    In this festschrift, appellate judges, academic lawyers and practitioners have joined to celebrate Edward Burn's career as a searching writer and brilliant teacher. Essays volume cover topics including: the rationality of English land law; the reach of land registration; the nature of proprietary estoppel; the essential attributes of trusts and how they can be exported to Civilian systems; the nature of fiduciary liability; the relationship between restitution and equity; the duty of care in will drafting; form and substance in tax, lease and mortgage law; the relationship between English and Romanesque prescription theories; and the study of Roman law in Oxford.
    ISBN: 406964408
  • J S Getzler, 'Roman and English Prescription for Incorporeal Property' in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Lexis-Nexis Butterworths 2003)
    Analysis and criticism of prescription for incorporeal property and nature of land use titles, showing dense historical background to the House of Lords decision in Hunter v Canary Wharf and indicating future directions for simplifying law reform.
    ISBN: 406964408
  • J S Getzler, 'T. Blackshield and others, The Oxford Companion to the High Court of Australia' (2003) 120 Law Quarterly Review 526 [Review]
  • J S Getzler, 'Law, history and the social sciences: intellectual traditions of late 19th and early 20th century Europe' in A Lewis and M Lobban (eds), Law and History: Current Legal Issues (OUP 2003)
    ISBN: 0199264147
  • J S Getzler, 'Economics of Hate Speech, review of R.A. Posner, Frontiers of Legal Theory' (2002) Times Higher Education Supplement 28 [Review]
  • J S Getzler, 'Equity' in H M Kritzer (ed), Legal Systems of the World: A Political, Social and Cultural Encyclopaedia (ABC-Clio, Santa Barbara 2002)
    Analysis of theory and history of equity, in ancient law and modern common law.
    ISBN: 1576072312
  • J S Getzler, 'Legislative incursions into modern trusts doctrine in England: The Trustee Act 2000 and the Contracts (Rights of Third Parties) Act 1999' (2002) 2:1:#2 Global Jurist Topics 1
    English trust law is increasingly emulating contract. The relationship of trustee to beneficiaries is now modelled as a consensual relationship created by agreement rather than custody; and governed by standards and duties of care with tort-like features as opposed to traditional fiduciary controls. This movement, which has considerable support in the appellate judiciary, is accelerated by the recasting of trustee powers and duties in the Trustee Act 2000. Further contractualization might provoke a shift into third-party-beneficiary contract and agency models, a process that may be helped by the Contracts (Rights of Third Parties) Act 1999. The shift to contract-tort models may have gone too far in empowering trustees at the expense of entrustors, and on a broader level, in deregulating capital investment markets.
    ISBN: 535-167X
  • J S Getzler, 'M. Taggart, Private Property and Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply' (2002) 66 Modern Law Review 819 [Review]
  • J S Getzler, 'The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case (revised version)' in J W Cairns and G McLeod (eds), 'The Dearest Birth Right of the People of England': The Jury in the History of the Common Law (Hart Publishing, Oxford 2002)
  • J S Getzler, 'Duty of Care' in P Birks and A Pretto (eds), Breach of Trust (Hart Publishing 2002)
    ISBN: 1841131741
  • J S Getzler, 'K.M. Teeven, Promises on Prior Obligations at Common Law' (2001) 5 Edinburgh Law Review 108 [Review]
  • J S Getzler, 'Unclean Hands and the Doctrine of Jus Tertii' (2001) 117 Law Quarterly Review 565 [Case Note]
    The nature of titles to personal property as ranked rights to possession is analysed in relation to a case where the legal basis for police confiscation ended, so leaving a presumed thief with a superior title. The illegality or viciousness of the earlier possession was not a bar to title.
    ISBN: 0023-933X
  • J S Getzler, 'Equitable Compensation and the Regulation of Fiduciary Relationships' in P B H Birks and F D Rose (eds), Restitution and Equity Vol. 1: Resulting Trusts and Equitable Compensation (Mansfield Press/LLP, London 2000)
  • J S Getzler, 'G. Moffat and others, Trusts Law: Text and Materials (3rd edition)' (2000) 14 Trust Law International 183 [Review]
  • J S Getzler, 'P. Goodrich, Oedipus Lex: Psychoanalysis, History, Law' (2000) 21 Journal of Legal History 141 [Review]
  • J S Getzler, 'P. Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century' (2000) 63 Modern Law Review 788 [Review]
  • J S Getzler, 'The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case' in G R Rubin and K O'Donovan (eds), Human Rights and Legal History: Essays for Brian Simpson (Oxford University Press, Oxford 2000)
  • J S Getzler, 'Roman Ideas of Landownership' in S Bright and J Dewar (eds), Land Law: Themes and Perspectives (Oxford University Press, Oxford 1998)
  • J S Getzler, 'A.J. Oakley, ed., Trends in Contemporary Trust Law' (1997) Restitution Law Review 261 [Review]
  • J S Getzler, 'A.W.B. Simpson, Leading Cases in the Common Law' (1997) 18 Journal of Legal History 116 [Review]
  • J S Getzler, 'Is Pragmatism the End of Ideology?' (1997) 17 Oxford Journal of Legal Studies 525
  • J S Getzler, 'Judges and Hunters: Law and Economic Conflict in the English Countryside, 1800-60' in C Brooks and M Lobban (eds), Communities and Courts in Britain 1150-1900 (Hambledon Press, London 1997)
  • J S Getzler, 'Patterns of Fusion' in P B H Birks (ed), The Classification of Obligations (Oxford University Press, Oxford 1997)
  • J S Getzler, 'Theories of Property and Economic Development (revised and shortened version)' in J W Harris (ed), Property Problems: From Genes to Pension Funds (Kluwer, The Hague and London 1997)
  • J S Getzler, 'Professionals As Competing Monopolists' in P B H Birks (ed), Wrongs and Remedies in the Twenty-First Century (Oxford University Press, Oxford 1996)
  • J S Getzler, 'Theories of Property and Economic Development' (1996) 26 Journal of Interdisciplinary History 639
  • J S Getzler, 'G.R. Rubin, Private Property, Government Requisition and the Constitution 1914-1927' (1995) 20 Social History Society Bulletin 68 [Review]
  • J S Getzler, 'R.W. Kostal, Law and English Railway Capitalism 1825-1875' (1995) 111 Law Quarterly Review 696 [Review]
  • J S Getzler, 'A. Offer, Property and Politics 1870-1914 and J.S. Anderson, Lawyers and the Making of English Land Law' (1993) 109 Law Quarterly Review 684 [Review]

Research programmes

Research projects

Research Interests

Modern Legal History, Law and Economics, Obligations, Equity and Trusts, Property Theory, Law and Finance, Capital Markets

Options taught

Contract, Trusts, History of English Law, Advanced Property and Trusts, A Roman Introduction to Private Law

Research projects