Law

Project

Employment law—together with property law, contract law, and corporate law—is part of the legal foundations on which capitalist economies rest. The aim of this project is to inquire into the democratic profile of this law, focusing on the meaningful influence and control democratic processes have on its content. The project is part of a broader inquiry, mapping the forms and limits of democratic control over economic structures in liberal democracies.

In my recent paper, The Role of Democracy in Private Law, I have shown that the principles of the core subjects of private law—contract, tort, and property—are relatively immune from democratic influence. These principles, enshrined in the rules of the “general” fields, are controlled by members of the legal profession both outside and inside Parliament. Democratic activity in private law occurs at a lower level of abstraction, for example, in the context of consumer credit law.

The present project continues the inquiry, turning the spotlight on a specialised field that developed alongside the traditional fields of private law: employment law. The project’s focus is empirical and comparative. By going through the legislative history of key statutes in the field of employment law in several common law jurisdictions, it will evaluate the impact of processes of election, deliberation, and majoritarian voting on the content of employment law. The empirical findings will then inform a theoretical and normative reflection on the democratic and non-democratic foundations of contemporary capitalist systems.

The Summer Scholar will undertake research on the legislative history of employment law in several common law jurisdictions. The work will involve finding relevant legislative materials, analysing them according to provided metrics, and producing written reports on findings.

This is a unique opportunity for an able student to make a real contribution to an academic research project. Apart from learning about employment law, contract law, the legislative process, and democratic theory, the Summer Scholar will conduct substantive research, feeding into a project at the cutting edge of contemporary private law theory.

Project

This project aims to determine how the law on party liability (as set out in s 66 of the Crimes Act 1961) is being applied in practice in Aotearoa New Zealand today.

The summer scholar will conduct a sweep of the New Zealand case law and media data bases in order to compile a complete set of cases applying the doctrine of party liability in New Zealand in the last 15 years which have left a public record of some kind.

The aim is to analyse the demographics of defendants and repeating fact patterns in cases involving party liability, as well as the application and development of legal doctrines.

In addition, the summer scholar will conduct a comprehensive list of scholarship and public advocacy on the law on party liability in New Zealand, as well as jurisdictions with similar laws to ours (particularly, the UK, Australia and Canada) over the last 15 years.

The summer scholar will have the opportunity to develop their skills of legal research in relation to primary and secondary source materials. They will also have the opportunity to deepen their understanding of what is a difficult but exceptionally important means of attributing criminal liability in Aotearoa New Zealand.

Project

Ten years ago the University of Auckland Law School organised a conference to celebrate the 10th anniversary of the establishment of the New Zealand Supreme Court. The conference was very successful, as was the book of papers presented. Justice Sir John McGrath, on behalf of the Court, contributed a foreword in which he said, “This book itself will be seen as a milestone in the life of the Court.”

The 20th anniversary is fast approaching, and a second conference will be held in February 2024, hosted by the University of Auckland Law School and the Legal Research Foundation. Professor Janet McLean and myself have organised a stellar cast of 23 contributors. They will present their papers at the conference, and LexisNexis will publish the papers as a book.

This book will consider how the Supreme Court has been performing; the extent to which it has met its original objectives; and what trends and characteristics can be discerned from its second decade in existence. The first part of the book examines the Court as an institution. The second part addresses the jurisprudence of the court in the most important areas of New Zealand law. We have already produced a spreadsheet of the Supreme Court’s decisions from 2014 onwards, for the use of our contributors (and which they have found useful). The spreadsheet is complete up to 10 November 2022.

The Summer Scholar will assist with editing the papers and updating the spreadsheet. That will entail working on recent Supreme Court judgments and on papers produced by a group of senior academics, practitioners and judges. It is difficult to think of a project better calculated to improve the Summer Scholar’s understanding of the work and the role of the Supreme Court.

Project

The Summer Scholar will assist with the preparatory work for the second edition of a monograph on an account of profits. An account of profits is the principal remedy for breach of fiduciary duty and breach of obligations of confidence. The remedy is also available in respect of certain common law wrongs and has an important role in cases of intellectual property infringement.

The Summer Scholar will analyse a specialised area of law and gain an advanced understanding of the principles of equity and the remedy of an account of profits. They will undertake in-depth scholarly research and gain ongoing experience with advanced reference materials, including national and international databases.

The Summer Scholar will be expected to:

1. Check first edition of "Account of Profits" to assess its scope and emphasis
2. Prepare literature review of post-2013 material falling into the following categories: fiduciary relationships, allowances, duty of confidence, intellectual property interests and gain-based remedies for common law wrongs
3. Identify and summarise cases from England, Australia, New Zealand and Canada regarding the above topics. Identify the main facts of these cases, explain the principal arguments and the ratio of the decisions
4. Make recommendations as to incorporation of the above material in the second edition.

The Summer Scholar will be encouraged to discuss their research and exchange ideas with the supervisor on a regular basis.

Project

New Zealand and international audiences looking for a concise scholarly account of the principles of New Zealand Administrative Law currently look in vain. There are books to assist practitioners and others to locate relevant cases, construct arguments, and find all available avenues for advancing a cause; as well as a detailed textbook covering both constitutional and administrative law. What is missing is a concise scholarly treatise aimed at shaping readers’ thinking about and understanding of NZ Administrative Law. My book Principles of New Zealand Administrative Law will fill that gap.

The Summer Scholar will assist with as many of the chapters as possible, by completing the following tasks: read the chapter and provide comments; help with follow-up research tasks noted in the draft; carry out research into new case law and commentary since the draft date (find, read, summarise and suggest where and how to incorporate these); complete and check footnote referencing.

The Summer Scholar will need to have a good grasp of Public Law, and ideally will have studied Administrative Law.

The Summer Scholar will expand and improve their knowledge of Administrative Law principles, case law and commentary; gain experience in writing and proofreading; and gain experience in copy-editing.

Project

I am writing papers on the work of Māori and the Crown to address the Crown’s breaches of its guarantee under Te Tiriti o Waitangi 1840 (the Treaty of Waitangi 1840) to allow Māori to exercise tino rangatiratanga (the unqualified exercise of our chieftainship) over our mātauranga Māori (the body of knowledge originating from Māori ancestors, including the Māori worldview and cultural practices) and taonga (tangible and intangible treasures). The papers are already quite developed, but I require a Summer Scholar to find evidence to support arguments, corroborate and cite evidence already collected, and help to finalise analyses and discussions.

The Summer Scholar will be expected to:

1. Use supervisor-identified keywords to extract, chronologise and summarise relevant information obtained under the Official Information Act 1982 from Te Puni Kōkiri (the Ministry of Māori Development), Te Arawhiti (the Office for Māori Crown Relations), the Ministry for the Environment, the Department of Conservation, the Ministry of Business, Innovation and Employment, the Ministry of Foreign Affairs and Trade, and the Treasury
2. Help the supervisor to analyse that information through various theoretical lenses
3. Proofread and copy edit the supervisor’s papers as they develop
4. Reference in compliance with target journals’ Style Guides.

The Summer Scholar will:

1. Develop an understanding of issues related to the protection of traditional knowledge and traditional cultural expressions, and how Māori and the Crown are working to address those issues in Aotearoa New Zealand
2. Develop an understanding of the internal workings of government and how it frustrates Māori aspirations and constitutional transformation, including the resolution of Treaty issues
3. Develop research, analysis, writing, editing and referencing skills.
   

Project

In 2020, the Government’s response to COVID-19 involved a “high trust” $13 billion wage subsidy scheme.

The purpose of this research project is to analyse the operation of the wage subsidy scheme and suggest improvements to any such scheme in the future. This is because there are several reasons to suggest that the law related to the wage subsidy scheme could be improved. Firstly, there are now two lines of inconsistent case law in New Zealand as to whether employers were required to pay an employee their full wages or the minimum wage (regardless of Government support) during a COVID-19 lockdown. Secondly, employers who received the wage subsidy were able to require employees to take annual holidays during a COVID-19 lockdown in any event (and reduce their annual holidays liability). Thirdly, well publicised fraud arising from the operation of the wage subsidy scheme has given rise to both criminal as well as judicial review proceedings. Fourthly, there is room for an argument that other countries who expanded the definition of sick leave to include COVID-19 isolation periods as well as introduce targeted furlough schemes may have better balanced the obligations of employers with the need for Government support.

The Summer Scholar will be focused on providing a comprehensive literature survey of cases and legislative frameworks of the government financial support available in the United Kingdom, Canada, Australia, and the United States to support the publication of an article focusing on how New Zealand’s employment law can better accommodate Wage Subsidy Schemes.

The student that undertakes the summer scholarship will be provided with valuable guidance, advice, and mentorship, which in turn will foster personal and professional growth. Such research provides students with an opportunity to explore a specific topic in-depth, develop critical thinking and problem-solving skills. This experience will be invaluable for obtaining academic recognition to demonstrate a dedication to learning thereby enhancing a student's curriculum vitae and graduate profile.

Project

This Summer Scholarship project is part of a broader project which investigates the role international law might be playing in perpetuating the state of hyper-militarisation that we are currently witnessing in the world today. My overall hypothesis is that international law may be part of the problem of militarisation rather than part of any solution. That is, that far from being a benign force that provides the tools to respond to situations such as the War in Ukraine, the way in which international law ultimately rests on the availability of the exercise of military power by states might mean that international law inevitably perpetuates militarisation.

As part of the overall project, I will be exploring two movements which opposed militarisation historically, both of which have been neglected in international law scholarship: the early feminist peace movements (roughly from the late 19th century to the present day) and the early work of the non-aligned states and so-called “Third World” scholars (roughly from mid-1960s to around late 1970s). I posit that both movements re-imagined an international law that could have countered militarisation and that we have much to learn from their work and thinking, despite their ultimate demise.

My examination of these histories will be undertaken drawing on feminist and post-colonial perspectives and methodologies. Recent decades have seen profound developments and advances in these understandings and I will draw on that new thinking to pick up and perhaps renew the earlier schools of thought.

The Summer Scholar will be expected to undertake two tasks. The first will be to compile a full history of the two movements, including preparing full bibliographies on relevant issues, and systemically organising all primary sources. I will then work with the Scholar to identify some key themes/aspects of those histories. In the second phase of work, the Scholar will undertake full literature reviews on those themes, writing up summaries/overviews of key sources and events.

At a general level, the Scholar will benefit from engaging and collaborating with me as I develop and advance work on this research project and observe first-hand how research of this kind evolves and develops (that is, not always linear and pre-determined).

Specifically, they will learn to manage a large volume of data and scholarship, and so they will develop good data management practices.

Substantively, they will learn about the two case studies in question (feminist peace movement and the efforts of the early non-aligned movement).

In the literature review phase, they will learn about the theories underlying that practice (feminist and post-colonial).

They will develop their own writing skills by preparing summaries and synopses of the materials they are reading.