Law

Summer research projects available in the Auckland Law School for summer 2018–19. Applications are now closed.

Contemporary Aspects of Injunctive Relief

Supervisor

Professor Peter Devonshire (DDI 09 923 5638 Extn 85638)

Discipline

Law

Project code: LAW001

I have previously written on the juristic basis of injunctive relief. I would like to review the current status of interlocutory and permanent injunctions in order to identify contemporary issues surrounding this remedy. The purpose of this exercise is twofold: (i) to write an article on a contemporary aspect of modern injunctions for submission to a refereed law journal, and (ii) to assess the market for a monograph on a selected aspect of injunctions.

The Summer Scholar will: (i) conduct case law searches across the principal common law jurisdictions (UK, Australia, Canada and New Zealand) and produce a synthesis of key issues and emerging trends (ii) undertake a comprehensive literature review (articles and texts) encompassing domestic and international materials, and (iii) prepare summaries of this material and discuss the findings with the supervisor.

The Summer Scholar will gain specialised knowledge of a pivotal remedy in civil litigation. He/she will hone their research skills, utilising a variety of databases and traditional print materials. The Summer Scholar will work with the supervisor to develop an understanding of a niche aspect of injunctive relief. Immersion in this field will enable the Summer Scholar to gain a sophisticated understanding of this area of law. The process of reviewing and summarising case law and secondary materials will enhance his/her skills in analysing and succinctly presenting legal principles.

Tax and the Digital Economy

Supervisor

Professor Craig Elliffe (DDI 09 923 8990 Extn 88990)

Discipline

Law

Project code: LAW002

The OECD and the G 20 have been working on a range of tax challenges relating to base erosion and profit shifting (BEPS). In 2015 they presented an Action plan which had 15 areas of substantive change. Action 1 (tax challenges relating to digitalisation) was an area where there were substantial disagreements and no resultant plan. Digitalisation and the digital economy allows substantial multinationals (of the likes of Facebook and Google) to operate with an economic footprint in a country but with no resultant income tax liabilities. Following on from this absence of consensus a number of countries have begun to act unilaterally in an uncoordinated and diverse way. The Task Force on the Digital Economy has continued on in its work delivering an interim report in 2018 and planning to prepare a final report in 2020.
This research project involves gathering together materials and analysing;
• the digital economy problem from a tax perspective;
• the unilateral responses from various jurisdictions;
• the common features of these responses and the advantages and disadvantages of these various actions;
• an assessment of the different approaches.

The work the Summer Scholar(s) will be expected to carry out over the duration of the project:
Analyse and understand the tax implications of the current operations of MNE operators such as Facebook and Google. Collect information on the current response to date from international bodies such as the OECD and the EU. Collect information on the different country responses. Categorise the different country responses into broad groups. Analyse the advantages and disadvantages of the various responses before making an assessment.

The summer scholar will have an exposure to some interesting international tax issues in an area of great change and enormous importance to world economies and the future of international tax.

The Change of Position Defence to Unjust Enrichment

Supervisor

Rohan Havelock (DDI 09 923 8050 Extn 88020)

Discipline

Law

Project code: LAW003

The principle of unjust enrichment imposes strict liability on someone who has received a benefit from another, in circumstances where this was unjust (such as the transferor being mistaken). If the liability is satisfied, the transferee must make restitution of the value of the benefit. One of the chief defences to this liability is known as the defence of ‘change of position’. This applies where the transferee, in good faith, has irreversibly altered his or her position in reliance on the receipt (for example, by incurring an expense which he or she would not otherwise have incurred). The rationale for this defence is that the transferee should not be made ‘worse off’ as a result of the receipt. If satisfied, the defence may reduce or even extinguish liability.

In my view, the defence has been accepted as necessary/just without critical analysis of its compatibility with the strict liability in unjust enrichment – especially if that responds to a property interest of the transferor. Further, the defence does not seem to work on its own terms. For example, if I receive a payment of $1000 from you, in circumstances where you were mistaken as to whether you owed me this, if I then spend the money on a holiday which I would not otherwise have taken, I will be able to raise the defence. But this raises the question why I am entitled to assume that the money is mine to spend in the first place.

My research project will subject the change of position defence to critical analysis in two respects (1) its relationship with unjust enrichment and (2) whether it is logical/coherent on its own terms.

The Summer Scholar would primarily assist me in relation to the first objective of my project. In broad terms, this will be by:
• Performing case law searches across several jurisdictions (principally, the UK, Australia, NZ and possibly Canada).
• Performing searches for relevant academic literature (articles / texts).
• Categorising the relevant material according to topic and/or theme.
• Explaining and/or discussing findings with the researcher.
• Preparing concise summaries of the above for use by the researcher.

The proposed work will have the following benefits for the Summer Scholar:
• Expose the student to ‘higher-end’ research at the Faculty, and make him or her feel more integrated into the Faculty.
• Further the student’s knowledge and understanding of a subject which is conceptually challenging yet central to commercial law.
• Develop and refine the student’s case law database searching skills.
• Develop the student’s analysis, collation and writing skills.
• Improve the student’s general career opportunities.

The Law of Public Contract

Supervisor

Professor Janet McLean (DDI 09 923 9720 Extn 89720)

Discipline

Law

Project code: LAW004

This project is about the issues that make contracts between public entities and private persons a distinct category, and the ways in which public and private law respectively currently regulate such contracts.

The scholar would collect and analyse a range of primary materials (updating existing sources) including judicial review and human rights cases involving government contracting and public procurement, contract law cases involving fair dealing and constraining contractual discretion (after Braganza) in the UK, NZ and Australia (and possibly Canada).
S/he would locate and analyse against those external sources internal public law sources such as procurement guidelines, standard form contracts and Auditor-General’s reports.
S/he would access the relevant secondary literature.
Some writing and analysis will be required.

The scholar will be exposed to a wide range of research sources and have a chance to think critically about public and private approaches to a problem. This would be good preparation for work in the public, private or NGO sector.

The statutory regulation of special contracts: A Comparative Study

Supervisor

Dr Arie Rosen (DDI 09 923 6738 Extn 86738)

Discipline

Law

Project code: LAW005

This project is part of an ongoing research programme on the political dimension of the making of contract law in common law jurisdictions. Thus far, the research focused on legislative procedures in the United Kingdom and the United States in general contract law and in the field of commercial law. It found that legislation in these fields has special characteristics: it proceeds to the backdrop of consensus (rather than disagreement), it assigns a privileged role to the legal profession both inside and outside Parliament, and it is generally seen as “technical” and “a-political”.
The proposed research project takes the next step to examine the making of specialised fields of contracts, in which legislation is likely to take a different modality. The project will focus on two fields—credit and consumer protection—which are marked by dominance of interest groups and a vibrant political process. It will result in the characterisation of an alternative modality of contract law making, to be contrasted with the modality characteristic of legislating and codifying the rules of the commercial contract and general contract law doctrine.

The Research Scholar can expect to engage in three types of research. The first is a comparative study of legislative practices in Australia, Canada and New Zealand, focusing on legislation in the fields of credit contract and consumer protection. The second type of research includes use of secondary literature about these fields, their history and their animating principles. Lastly, the Scholar will be fully integrated into the analytical work involved in modelling and evaluating legislative processes.

The project would allow the Research Scholar to develop both research and analytical skills. The Scholar will gain proficiency in contract law theory and democratic theory, be exposed to comparable legal system, and will be closely involved in developing the written outputs through discussions with the supervisor and commenting on draft papers.

Contract Law in Australia and New Zealand: Legal Change in the Shadow of the Empire

Supervisor

Professor Warren Swain (DDI 09 923 1275 Extn 81275)

Discipline

Law

Project code: LAW006

The work here forms part of a much larger monograph. A proposal will be submitted to the Cambridge University Press, who published two of my other books, in early 2019. They have provisionally expressed interest in the project. The book is a comparative legal history of the law of contract in Australia and New Zealand. It is intended that it will draw out some wider lessons about the nature of legal change including the role of individual judges, legal culture, society and the place of statute. The backdrop of the book is the way that legal bonds between England and Australia and New Zealand weakened particularly since the Second World War. But the thesis is that the relationship was always more complex. The so called tyranny of distance ensured that Australia and New Zealand contract law had quite different features from that in England and was sometimes applied quite differently.

Looking through New Zealand law reports from the 19th Century onwards and providing a summary of all the key contract law cases.

Going through back copies of New Zealand journals and identifying important material. Many of the journals are only available in paper copies and therefore not easily searchable. The scholar would be expected to find material on the New Zealand legal system, contract law and the New Zealand legal profession.

Put together a bibliography of all relevant New Zealand legal literature from the nineteenth century. There is no equivalent work to Castle’s, Annotated Bibliography of Printed Materials on Australia Law 1788-1900 in New Zealand.

This would give a very able student an opportunity to engage in proper doctrinal legal historical research which would not otherwise be open to them. At the same time this would give the student an opportunity to learn a good deal about the history of the legal system of New Zealand.

Chapter on “Reasoning Processes” for Oxford Handbook of Comparative Administrative Law

Supervisor

Associate Professor Hanna Wilberg (DDI 09 923 4232 Extn 84232)

Discipline

Law

Project code: LAW007

I have agreed to contribute a chapter on “Reasoning Processes” to a new Oxford Handbook on Comparative Administrative Law edited by Peter Cane and others. The chapter is due in February 2019. It will appear in the part of the book devoted to the grounds of review: in terms of our law, it concerns the illegality grounds of improper purposes, irrelevant considerations and failure to take account of improper purposes.

My brief from the editors is to provide a critical survey of existing comparative law scholarship on this topic: a creative, challenging and forward-looking reviews of the current state of CAL scholarship. I am asked to identify gaps in our knowledge and to imagine fruitful research agendas. The choice of jurisdictions to cover is for me, but the editors are keen to include coverage of jurisdictions beyond the ‘usual suspects’, and in particular jurisdictions that have different types of governmental regimes. They are asking all contributors, in the spirit of the greatest comparativists, to sign up to the aspiration to be as eclectic and outward-looking as possible.

The summer scholar will:
• Locate as much comparative administrative law scholarship concerning as many different jurisdictions as possible. The resulting bibliography will be a useful resource in its own right, and we may make it available to other researchers online.
• Identify the parts that are relevant to my “reasoning processes” chapter.
• Write precis of those relevant materials.
• Help me design the framework and questions for my chapter: eg identify themes in this scholarship, gaps in its coverage, etc.
• Assist with drafting and finalising my chapter, eg commenting on drafts, proofreading, citation checking etc.

The scholar will practice skills of research, analysis, writing, and articulating arguments orally (in meetings with me). The scholar will gain substantive knowledge of Administrative Law generally, and of comparative law scholarship in this area in particular.