31 August 2016


The fascinating 'Legal Sets' by Jeremy N. Sheff proposes that
legal reasoning and analysis are best understood as being primarily concerned, not with rules or propositions, but with sets. The distinction is important to the work of lawyers, judges, and legal scholars, but is not currently well understood. This Article develops a formal model of the role of sets in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure of many so-called “hard cases,” and help organize the available options for resolving them according to their form. This set-theoretic model can also help to cut through ambiguities and clarify debates in other areas of legal theory—such as in the distinction between rules and standards, in the study of interpretation, and in the theory of precedent. Finally, it suggests that recurring substantive concerns in legal theory—particularly the problem of discretion—are actually emergent structural properties of a system that is composed of “sets all the way down.”
Sheff comments
The model developed in this paper will be useful to legal educators and law students, as a guide to the types of analytical moves that are part of “thinking like a lawyer.” And the tools of set theory are also of use to the practicing lawyer or judge—who must navigate and deploy the strategies discussed herein as part of the practice of their profession. But these insights may be intuitively grasped without resort to the formal architecture of symbolic logic. The key payoff of the set-theoretic model I will develop here engages legal theory, where heated substantive debates often leave important formal ambiguities unexamined. Not only can the set- theoretic model help cut through those ambiguities, it shows how some of these substantive debates are actually over inescapable structural features of law. 
The Article proceeds in four stages. Part I provides a brief overview of na├»ve set theory for those unfamiliar with it, introducing the terminology and concepts that will be deployed in the analysis that follows; those who feel comfortable with the concepts and notation systems of set theory and predicate logic may skim or skip this section. Parts II and III build the scaffolding of a set-theoretic model of law, and as I have warned they require some patience to see through. Part II demonstrates how the tools of set theory can be deployed to analyze the relationship between rules and cases, and to show how more complex legal doctrines build on set-theoretic concepts. Part III demonstrates more complex interactions of rules and cases, focusing on “hard cases” in which multiple applicable legal rules appear to contradict one another. This Part provides a more thorough description of the aforementioned strategies legal actors can use to negotiate such doctrinal conflicts at various levels of formal structure. Part IV discusses some implications and limitations of a set-theoretic understanding of legal doctrine, including its interaction with other aspects of legal theory. In particular, it shows how a set-theoretic understanding of legal practice cuts through ambiguities in the debate over the relative merits of rules and standards, in general jurisprudence and associated theories of interpretation, and in the theory of precedent.


'Lawyers’ professional liability: comparative perspectives' by Herbert M Kritzer in (2016) International Journal of the Legal Profession 1-17 comments
 Among the four mechanisms of discipline and regulation of legal professionals identified by David Wilkins, liability controls have received almost no attention from scholars who study legal professions. This paper presents a comparative analysis of what is known about lawyers’ professional liability drawing on reports concerning a group of 13 countries representing every continent. The discussion covers three topics: the frequency of LPL claims; the areas of practice that produce LPL claims; and insurance requirements and arrangements for compensating those who successfully bring an LPL claims. The analyses show that empirical information is available for only a small subset of the countries considered, but what is available shows very substantial variation in both the frequency of claims and the areas of practice producing those claims. Insurance requirements and arrangements also vary substantially, with LPL insurance being mandatory in only about half of the countries. 
Kritzer argues that
Legal professions are subject to regulation and discipline through a variety of mechanisms. Wilkins ('Who should regulate lawyers?' (1992) 105 Harvard Law Review, 799, 805) identified four such mechanisms: disciplinary controls by institutions such as the courts or the profession itself; institutional controls, meaning regulation by the venues before which legal professionals appear; legislative controls, meaning a legislatively-established administrative agency; and liability controls whereby those with grievances with a legal professional seek redress by initiating a claim which could ultimately be decided through litigation. This paper focuses on the fourth of these mechanisms: lawyers’ professional liability (LPL), a topic that has until recently received little attention from students of the legal profession. The central question addressed here is cross-national variation in certain aspects related to the role of LPL as a potential mechanism of regulation. Liability controls focus primarily on compensating clients for injuries they have received due to actions of their lawyers; in some circumstances lawyers can also be liable to non-clients, either third-party beneficiaries of the original client or adverse parties. While there may be some circumstances in which a disciplinary body can order a lawyer to provide compensation to a client who has been harmed, that route for compensation is not considered in what follows.
Liability controls of lawyers differ from the other methods of regulation by assigning a primary role to the client thereby prioritizing access to justice for the client. The other mechanisms are designed largely to prevent harm by establishing a set of norms and rules that provide direction for practitioners. Those other mechanisms do include sanctioning tools that can serve a deterrence function; in an extreme case they may protect consumers from errant lawyers by removing the lawyer’s authority to practice. However, mechanisms other than liability controls typically do not include a compensation as a primary function. Moreover, the threat of liability means that even where insurance is not required most lawyers, at least in the United States, carry professional liability insurance that serves as a guarantor of compensation when a lawyer is determined to be liable.
A comparative look at liability claims against legal professionals adds an important dimension to our understanding of how professions are regulated. As the subsequent sections show, the information available cross-nationally is limited in many ways. While legal provisions regarding the professional liability of legal professionals are relatively easy to determine, the processing of liability claims requires systematic data that are not currently available for most jurisdictions. This article shows the limits of the information that is available and provides an overview of what can be discerned.
After a brief discussion on methodology in the next section, I consider some of the problems of comparing lawyers’ professional liability across countries. Subsequent sections cover frequency of legal malpractice, the frequency of LPL claims, the areas of practice producing LPL claims, and issues related to LPL insurance.

29 August 2016

Tobacco Litigation

'Tobacco Litigation in International Courts' by Sergio Puig in (2016) 57 Harvard International Law Journal comments
 For years, tobacco interests have played an important role in developing international law. Recently, cooperation among nations concerned with the risks and health consequences of smoking tobacco has resulted in the adoption of international treaties, regional directives, and common administrative and regulatory practices. As a result, a wave of litigation before international courts and tribunals, including the European and Andean Courts of Justice, Investor-State Tribunals, and the World Trade Organization’s dispute settlement body, has led to novel legal questions.
This Article is the first to trace, survey, and recount the history of tobacco litigation before international courts and tribunals and to assess its contribution to international law. In particular, it pays new attention to recent efforts by tobacco interests to challenge compelled speech by exporting the far-reaching Free Speech Clause of the United States into international law, especially in the context of marketing controls, mandatory graphic warnings, and “plain packaging” labels.
This Article shows that, contrary to conventional wisdom, international courts and tribunals can play a central role in advancing and enhancing complex national, regional, and global regulations rather than eroding sovereign regulatory space. Complete deference to states’ policies, however, can also be risky as it may perpetuate the use of economic and political influence to distort the functioning of government. Hence, the history of international tobacco litigation reveals a more complex interrelationship between domestic institutions and international law than many scholars acknowledge.

Family Property

'Constitutional Law and the Limits of Discretion in Family Property Law' by Patrick Parkinson in (2016) 44(1) Federal Law Review 49-75 comments
 The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown.
Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making.
The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.

Sumptuary Law and OMGs in Queensland

The Queensland Premier in an exercise of 'tougher than you' has announced 'Bikies to be banned from “wearing colours” in public', an initiative of interest to criminologists and scholars of sumptuary law.

The media release states
Outlaw Motorcycle Gangs will be banned from wearing their colours in public anywhere in Queensland under the Palaszczuk Government’s tough new package of laws to better tackle serious organised crime.
The move will extend the current prohibition on wearing colours in licenced venues into all public places across the State.
Premier Annastacia Palaszczuk said Outlaw Motorcycle Gangs have been a very visible and intimidating part of organised crime.
“The days of brazen, menacing rides through our streets and cities in daunting gang colours are over,” Ms Palaszczuk said.
“Under Campbell Newman’s laws, gang colours were still permitted on our streets. Under my laws, they won’t be."
“The gangs can expect no let-up from police and prosecutors. I want more convictions not less, something we haven’t seen under the LNP laws."
“My Government’s new laws will give the police and our courts workable, enforceable laws to convict those involved in all forms of serious crime,” the Premier said.
Attorney-General and Minister for Justice Yvette D’Ath said the extension of the ban will target outlaw motorcycle gangs, without impacting legitimate, law-abiding motorcycle riders and clubs.
“The Taskforce Report on Organised Crime Legislation recommended the Government retain the provisions in the Liquor Act that ban the wearing of prohibited items such as OMCG colours in licenced venues,” Mrs D’Ath said.
“The Government is adopting that recommendation but taking it further, because we recognise the fear and intimidation caused by colours, wherever they are worn."
“They can also intimidate victims or witnesses to crimes, who may fear the consequences if they come forward."
“That intimidation goes directly to the behaviour of OMCGs that is rightfully a concern to the Queensland public and Queensland Police."
“We want to ensure the safety of our community, and are committed to giving law enforcement agencies the tools they need to make that happen.”
It is intended the offence will carry escalating penalties including imprisonment, and police will be empowered to confiscate banned items on the spot.
The Palaszczuk Government’s commitment to tackling organised crime in all its forms means the provisions that will prevent outlaw motorcycle gang clubhouses reopening can also be used to shut down premises such as call centres being used for boiler room fraud rackets.
Police Minister Bill Byrne said the new laws will also retain additional mandatory penalties as an inducement for offenders to cooperate with police.
“Our crackdown on serious organised crime will be all-encompassing,” Mr Byrne said.
“That’s why police have been involved through the development of this new regime."
“Key stakeholders have had also had input into the Commission of Inquiry into the Criminal Organisations Act and the Taskforce on Organised Crime Legislation.”
The new package will be introduced to Parliament in the next fortnight to allow consultation on the specific provisions of the draft legislation. The Government will work toward the passage of the laws through the Parliament by the end of this year.