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 relationships of public finance and private banking and investment, and the evolution of property, trust, corporate and charitable forms, in the eighteenth and early nineteenth centuries. He is also studying the role of the lord chancellors in law and politics before the Great Reform Act, from Macclesfield and King through to Hardwicke and Eldon. His 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 at the Australian National University, the Hebrew University, Tel Aviv University, the University of Chicago, and at the University of Pennsylvania as Bok Visiting International Professor of Law. 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.
- 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.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 Rocks 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: 0041-9907It 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: 978-0-19-870172-9An 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: 978-3847103028This 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: 978-0-19-871222-0Lord 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: 978-0-19-967734-4Morice 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: 9781849461542An 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: 9781849462198Brian 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.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: 9781107018976Law 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: 0006-8047Epstein'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: 1932-9148This 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: 1565-1509In 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: 1565-1509ISBN: 9780195134056ISBN: 9780195134056ISBN: 9780195134056The 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: 1833-1237The 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: 0023-933XISBN: 13-978-0-19-929054Integrated 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: 0023-933XAn 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: 1833-1237Paperback corrected edition of my monograph of 2004; see parallel entry.ISBN: 0-19-920760-7This 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 ( 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: 0-19-929993-5Describes 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  UKHL 8;  1 W.L.R.567.ISBN: 0023-933XEssays 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: 0-19-929096-2What 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: 0-19-929096-2The 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: 0-19-920655-4An 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: 0-19-929993-5Shows 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: 1-85182-936-9Is 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: 1565-1509ISBN: 0455 222 088Winner of Peter Birks Prize for Outstanding Legal Scholarship 2005, awarded by Society of Legal ScholarsISBN: 0198265816Criticises 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: 0738-2480Recent 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: 0023-933XIn 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: 406964408Analysis 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: 406964408ISBN: 0199264147Analysis of theory and history of equity, in ancient law and modern common law.ISBN: 1576072312English 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: 535-167XISBN: 1841131741The 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
Modern Legal History, Law and Economics, Obligations, Equity and Trusts, Property Theory, Law and Finance, Capital Markets
Options taughtContract, Trusts, History of English Law, Advanced Property and Trusts, A Roman Introduction to Private Law