Articles |
The Judicial Process and How Judges Think?
E W Thomas* |
In his most recent book, How Judges Think (2008), Richard Posner holds that judicial reasoning is essentially pragmatic. The author of the present article notes that much of Posner’s thinking follows his own book, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005). Thus, Posner believes realism is basic to pragmatism. He accepts that the law is indeterminate and that the doctrine of precedent is intrinsically malleable. In the result, judicial reasoning is a creative activity and “the law” simply the material out of which judges fashion their decisions. As with the author, Posner is highly critical of the role of formalism (“legalism”) in impeding sound judicial reasoning. He embraces the importance of principles (“standards”). Posner also rejects any notion of a transcendental law, believing that judicial restraint is to be found, not in the text of the law, but in the external and internal constraints that are part of the judicial process. But while in general agreement with Posner’s thesis, the author is critical of certain aspects; he is puzzled by Posner’s exclusion of reasoning by analogy from the pragmatist’s armoury; he considers that Posner’s survey of the constraints on the judiciary is incomplete; he rejects Posner’s trenchant criticism of legal academics as overstated; and he is critical of the fact that, in a book purporting to be about how judges think, Posner omits any reference to justice.
*Retired Justice of the New Zealand Court of Appeal, former Acting Justice of the New Zealand Supreme Court, and Distinguished Visiting Fellow at the Law School at The University of Auckland. |
Heritage Lectures |
Closer Economic Relations — Closer Still and Closer?
JLR Davis |
May I first of all say how delighted I am to have been invited to give this lecture. I left Auckland — both the Law School and the city — at the end of 1959, and it is with considerable pleasure that I return as an alumnus to help celebrate 125 years of law teaching at Auckland University. But it is with considerable pride that I honour my father, Professor A G Davis, and his 23 years as Dean of this Faculty, from 1942 to 1964.
When the Dean asked me to give this lecture, he left it to me to choose a topic, but it did not take long to realize that the Australia/New Zealand Closer Economic Relations Trade Agreement (to give “the CER” its full title) was an obvious choice. Not only is this year the 25th anniversary of its coming into force, but also a discussion of some of its effects is a peculiarly appropriate topic for one who still travels on a New Zealand passport, but who has spent the last 40 years living in Australia...
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Comparativism in Constitutional Interpretation
Adrienne Stone |
Like most judges charged with the interpretation of constitutions, the judges of the High Court of Australia commonly refer to, analyse, and are sometimes
persuaded by, the analyses of courts in other countries that have decided similar questions. Recently, in Roach v Electoral Commissioner (“Roach”),1 the High Court of Australia considered a challenge to an amendment in 2006 to the Commonwealth Electoral Act 1918 (Cth) that extended the class of disenfranchised prisoners from any person serving a sentence of three years or longer2 to any person “who is serving a sentence of imprisonment”.
In the course of deciding that this law contravened the requirement of the Australian Constitution that members of Parliament be “directly chosen by the people”, the Judges in Roach referred in the course of their reasons to decisions of the Supreme Court of Canada and the European Court of Human Rights...
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1883 to 2008: Law and Legal Education Then and Now
KJ Keith |
Within the broad title of this talk, I have to be selective. I take some facts and figures from the four decades at the end of the 19th century and beginning of the 20th, from the late 1950s when I was a student here, and from recent decades. I will make some suggestions about how lawyers, including those teaching and researching in the universities, might best go about their tasks. A defence for my presumption is that, after all this time in interesting and challenging jobs in the law, I may have some ideas worth considering.
Plainly major changes have occurred over the 125 years: the population of New Zealand has increased eightfold; in the last century, lawyers fifteenfold and judges fourfold;1 university students and university budgets, I imagine, by rather more — your valuable newsletter, which turns up regularly in The Hague, tells me that the Auckland University College budget for 1895 was £3,920, including £2,800 for professors’ salaries and £50 for the library! And in that time, the changes in communications, technology, science, medicine, and ideology have also been immense...
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Reviews |
Contract Law
Andrew Beck |
The year has produced somewhat fewer than usual reported decisions on the law of contract. Probably the most significant development is the recognition by the New Zealand Court of Appeal of interest as a head of damages for breach of contract. The New Zealand Supreme Court has considered the law relating to unconscionability, although without shedding any great light on the principles.
As well as the availability of interest as damages for breach of contract, the New Zealand Court of Appeal has addressed issues arising in offers to compromise disputes, the steps necessary to guard against undue influence, the role of permanent injunctions and judicial review as contractual
remedies. The New Zealand High Court has addressed the question of the enforceability of contracts entered into by minors...
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Arbitration and Dispute Resolution
David A R Williams, QC, Amokura Kawharu |
Since the last review in 2006, the Arbitration Amendment Act 2007 (“the 2007 Act”) has implemented most of the recommendations of the New Zealand Law Commission (see Improving the Arbitration Act 1996, NZLC R83, 21 February 2003) and also introduced the new interim measures and preliminary orders regime proposed by the United Nations Committee on International Trade Law (“UNCITRAL”) in its Model Law on International Commercial Arbitration 1985 (as amended in 2006). The decisions of the English Court of Appeal and the House of Lords in Fiona Trust & Holding Corporation v Privalov [2007] 2 Lloyd’s Rep 267 (EWCA); [2007] 1 Lloyd’s Rep 254 (HL) represent the most important judicial development in recent years.
They contain both a welcome reassertion of the separability doctrine enshrined in Art 16 of Schedule 1 to the Arbitration Act 1996 (“the 1996 Act”) and confirmation of the general principles that arbitration clauses should be enforced where possible and that “one-stop” dispute resolution should be supported. The New Zealand Court of Appeal has introduced an appropriately restrictive test to be applied when special leave to appeal from the High Court to the Court of Appeal is sought in relation to questions of law arising out of an award. Finally, the growing importance for New Zealand of investment treaty arbitration has been underscored by the arbitration provisions of the New Zealand/China Free Trade Agreement 2008 (“the NZ/China FTA”). These matters will be the primary focus of this review but several New Zealand decisions on various arbitration topics will also be briefly noted...
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Evidence
Mahoney Richard |
We have now had over a year of experience with the Evidence Act 2006 (“the Act”). The cases are arriving in a steady stream as lawyers begin to explore how the Act can best serve their clients’ interests and judges attempt to lay the foundation for lasting interpretations of the new provisions.
Taking advantage of the freedom granted to a reviewer by this publication,
I propose to limit this review to judgments under the Act which have focused on issues raised by pre-trial statements. The most interesting cases under the Act have had something to do with this broad topic.
All statutory references in this review are to provisions of the Act, except where otherwise indicated...
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2009 Issues 
