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, on the tortious and contractual liability of entities, 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 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 most recently at the University of Pennsylvania as Bok Visiting International Professor of Law in 2012. He maintains links to Australia as Conjoint Professor of Law at the University of New South Wales. 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, 'Law and Self-Interest' in Maksymilian Del Mar and Michael Lobban (ed), Law, Theory and History: New Essays on a Neglected Dialogue (Hart Publishing 2015) (forthcoming)
    My purpose in this chapter is to stand back from the tumult of modern law and reflect upon how past thinkers, whether legally minded philosophers or theoretically inclined jurists, have understood the legal control of self-interest. I will concentrate on the long eighteenth century and in particular looking at Adam Smith’s models of individualism in morality, law, and political economy. I will look rather swiftly at adjacent models of self-interest, from Hobbes, Hegel and classical utilitarianism through to modern rights theory, economic analysis of law, and behavioural microeconomics. I will then return to Adam Smith’s theories of reflective morality and discover a strong family resemblance to English juristic theories of conscience that emerged in new forms in mid-eighteenth century England. All this leaves us with an interesting chicken and egg argument – who intellectually led whom? Or is it a case of independent discovery by theorists and lawyers? We may end up suspecting that famous theorists, who imagine themselves immune from the influence of practical men, have sometimes distilled their frenzy from the ideas of long-forgotten lawyers.
  • 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 Andrew S. Gold & Paul B. Miller (ed), 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 & J-P Coriat (ed), 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 Charles Morris & David Vines (ed), 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 (ed), 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 (ed), 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 (ed), 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 (ed), 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]



Research programmes

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