20

th
March 2014 Thursday 8:00pm
Question 4: Is anti-discrimination law private law or public law? Does it ft neatly into either category?
Your answer should include analysis of ederal and Queensland anti-discrimination statutes
Introduction to !nti-Discrimination in "rief# !ims $ %cope of &esearch 'aper
Defnition of 'rivate (aw# %cope# )*amples
Defnition of 'ublic (aw# %cope# )*amples
+verlaps $ ,ey Distinctions "etween 'rivate (aw and 'ublic (aw
Anti-Discrimination
o In what areas are they private law
o In what areas are they public law
o -an they be segregated or must they necessarily overlap
What should be in a research proposal?
./ 0he core 1or overarching2 legal issue to be investigated
a 3hat is the single 4uestion you have to decide5 the core legal issue
6/ 0he theoretical and7or practical signifcance of the pro8ect
a %ignifcance could be wholly theoretical or practical or a mi*ture of both
b 'ractical: If what you are doing is advising on a client matter or writing an opinion about a dispute
concerning particular parties then practical signifcance will tend to dominate because the
ultimate destination at which you want to arrive is an answer to the 4uestion is how much
damages5 who has to pay?
i/ 0he answer given as to who has to pay damages the answer you give may have a broader
theoretical signifcance in the sense that it is a novel situation in which we are developing
the law to some e*tent5 answering the legal 4uestion which has not been answered
before/ 0here may be a practical signifcance to the parties involved and theoretical
signifcance in terms of conse4uences to development of law
c +ther topics the emphasis may be more theoretical5 what sorts of arguments are relevant in a
particular conte*t/ 3e are not dealing with a particular client problem or dispute but more
abstract level about how a particular area of law operates and wor9s5 what considerations are
relevant to argumentation in that area of law/
i/ Decide to what e*tent the signifcance of your pro8ect is practical or theoretical/ In a few
sentences tell him about that/
:/ !n e*planation of the methodology 1including the evaluative framewor92 to be used
a Identifying the problem
i. What is wrong with the law relating to constructive trusts as presently conceived?
ii/ 0here are a number of di;erent situations in which the law says there is a constructive
trust/ It is di<cult to fnd a single normative rationale5 e*planation which binds all of those
situations together/ 0hat concept has no single normative rationale/
iii/ 3hen we say something is a constructive trust5 the law construes there to be a trust5
nobody intended for there to be a trust but the law says that there is/ 3e are saying that
there is a trust or even pretending there is a trust in order to attach some of the
conse4uences of trust issues/ 0here isn=t a trust but the way that we do 8ustice is
attaching some of the conse4uences of trust issues to a party/ 0here isn=t any single thing
regarding conse4uences5 it is an aggregate of things5 not one single thing and if we loo9
at the cases about constructive trust we fnd that the function of constructive trust is
di;erent in di;erent situations5 sometimes the constructive trust attaches the proprietary
conse4uences of trusteeship/
1. 3here we say the vendor of land under a contract of sale of land was a
constructive trustee for purchaser5 the vendor can deal with land only by
transferring title of land to the purchaser/
2. 3here fduciary receives a bribe or renews a lease held in its own capacity then
the function of constructive trust is to bring about disgorgement of the beneft
that has been received/
iv/ ! person who isn=t a trustee are personally liable as if they were a trustee5 a di;erent sort
of trust conse4uence/
v/ 0easing out the variations of this category of constructive trusts
!i What my pro"ect is about# the theoretical si$ni%cance o& my pro"ect is that it
attempts to sub di!ide constructi!e trusts into a number o& smaller cate$ories
or come up 'ith other labels 'hich are more usable 'hich tell us 'hat is $oin$
on rather than "ust ha!in$ this list o& thin$s in 'hich the la' reco$nises a
constructi!e trust
b (egal &esearch >ethodologies
0he basic dichotomy is between research that is doctrinal5 the internal view and the
research which is socio-legal which is the e*ternal view/
i/ Doctrinal research or internal view is research which is about what the law is5 legal
doctrine5 focusing on what is the law5 what is the content of the law/ 3ithin that broad
category of doctrinal research there are 6 more specifc methodology types/ 3e could be
using one or the other or a combination/
1. 'ositive: (oo9ing at the legal materials5 authoritative legal materials/ You are
trying to fnd all cases on this or all statutes on this and seeing what they say then
that is positive descriptive or e*pository/ You may be able to fnd a clear answer to
your 4uestion/ 0hat would not typically be the case/
2. 0he cases within which we found a potential answer to the 4uestion is materially
di;erent to our case/ If we have got at least that 4uestion then we need to do
interpretative legal theory/
a/ In so far as the problem we have is not directly answered by materials
authoritatively5 we have to wor9 out what are the boundaries of the
relevant concepts do they capture today=s case5 is today=s case di;erent
in material way to the previous case law? 3hat is a material di;erence?
3hat sort of di;erences matter?
b/ !re you all satisfed that only 3einrib5 -ane and ?agan are engaged in
interpretative legal theory because ultimately they are concerned with
what the law is5 what is the content of the law but in doing so they are
engaged in a deep consideration of what concepts what arguments
matter with law and 8ustifying the content of the law/ 0hey are concerned
with the 8ustifcatory structure/
c/ +nce we e*amine the "usti%catory structure that underlies the
authoritative legal materials5 we can ta9e that body of 9nowledge and
answer novel 4uestions/ It can be an abstract e*ercise or confned to a
particular legal problem5 a dispute between parties which is slightly
di;erent to is anything that has gone before/ orming theories about the
underlying logic of the law/
d/ 0hat is not the linear process5 it is more triangular/ 3e loo9 at the practice
of the legal system with which we are concerned and engage in an
e*ercise in interpretation/ %tart with practice and theorise about the
meaning of the practice5 loo9 at pervasive elements5 underlying
8ustifcatory structure/ 0hat re@ection upon meaning of the practice
informs us as to the possible options A the systematics A in ta9ing the
practice forward5 in applying the practice to novel cases5 bringing novel
cases within the practice5 ma9ing the solution in the novel case coherent
in the practice/ 3e have a perpetual feedbac9 loop/
i/ 3e may never get a complete understanding of the practice but
we have a constant feedbac9 loop where we are always improving
upon the practice
(u$$estion: )er&orm some combination o& positi!e doctrinal research and
interpretati!e le$al theory# precise balance may be di*erent but all topics
re+uire some combination bet'een the positi!e and interpretati!e
ii/ %ocio-(egal 1)*ternal2 research is loo9ing at law from the outside/ %ome people from
outside the legal academy study law using the socio-legal methodology/
1. ?ypothesis there may be di;erences between responses to violence in di;erent
parts of -anada5 di;erent provinces or states or countries or in di;erent settings5
rural v urban5 spatial variation and o<cial 8ustice responses/ 3hat she see9s to do
in this pro8ect is to e*amine data on homicides in one -anadian province to see if
there is a di;erence to how they respond to the 9illing of women? Ta,in$ a
speci%c type o& case and collectin$ data in a particular -anadian
pro!ince.
a/ 0hat is empirical research because she wants to collect facts5 that might
feed into later pro8ects in which she evaluates and criticises what happens
in the real world but this is empirical in the sense that she is collecting
facts about the real world/
b/ )ven with empirical research we do not escape from theory/ You start with
the theory because your hypothesis about what might be so in the real
world informs what 4uestions you are going to as95 what data you are
going to loo9 for5 what facts are you going to en4uire/
2. B0op-down= theoretical7e*ternal 1policy-based2 criticism: You might have a basis in
which you ta9e from outside the law5 economics5 social 8ustice and criticise what
you found about what happens in the real world or courts of law on the basis of
those non-legal criteria5 that di;ers from interpretative legal theory 1all about
coherence of the system5 how do we ma9e sense of law as a system2 Cow we are
criticising from outside/
0wo other methodologies do not fall within the dichotomy/
iii/ -omparative
1. -omparative law notes there are di;erent legal systems and studies them to the
e*tent of how they are identical or di;erent/ ?ighlight structural regularities5
structural di;erences/ 0he point of comparative research is to tease out what is
universal and what is variable/ 3hat do all legal systems have in common and
how do they di;er from each other?
2. -omparative research has to be combined with something else e/g/ interpretative
legal theory or legal history in order to determine an answer to the 4uestion
iv/ (egal ?istory
1. 0his course is an e*ercise in interpretative legal theory5 loo9ing at the law from
within and trying to discern 8ustifcatory structure/ (egal history is loo9ing at the
same sub8ect matter but from a di;erent angle/ (egal historians5 are using
methods of historians to gain some insight into why things are the way they are5
how the law is developed/ 0hey might loo9 at a much wider range of material than
people do in doctrinal research/ 3ith legal history we might be loo9ing at letters
8udges wrote/ 3e are loo9ing at all sorts of materials that tell us something about
how things were at an earlier time and how things have developed to the way that
they are now/
2. 0here is a certain about of tension between legal historians and interpretative
legal theorists: ?istorians produce a messier picture of the law5 interpretative
legal theorists are concerned with order and structure/
.ou can loo, at the same thin$s# phenomenon &rom di*erent an$les and
di*erent methodolo$ies but discern 'hy are you loo,in$ throu$h this prism
c /0!aluati!e 1rame'or,
i/ ?ow do you decide what is right and what is wrong5 what is good and what is bad? %etting
up a basis of ma9ing decisions of what is a good answer and what is not/ -ategories in
law are useful and good if they correspond with a single normative idea/ If they do not
then that is a reason for pulling that category apart and sub-dividing it into something
more useful/
ii )rism throu$h 'hich 2 am $oin$ to analyse the la' o& constructi!e trust to
decide 'hat is a $ood 'ay o& understandin$ it !ersus a not so $ood 'ay o&
understandin$
iii/ Your evaluative framewor9 will follow from your methodology/ ?ow are you going to
decide what is good and bad5 right and wrong/
d &esearch Questions
i/ -ore Questions
1. 0al9 about what are the types of trusts conse4uences which are sought and
obtained in constructive trust cases/
2. !n e*ercise in positive e*pository research
ii/ %ubsidiary Questions
1. Dividing up your search tas9 into something more manageable/
2. !n e*ercise in interpretative legal theory5 trying to identify the types of in8ustice:
moving to a more abstract level5 what types of in8ustice are represented by those
situations/
2n doin$ your research proposal# the %nal part 'ill list a number o&
subsidiary +uestions and plan o& attac, &or your research: A 3ist
4/ 0he particular 1or subsidiary2 research 4uestions to be investigated i/e/ how is the core issue to be divided
into manageable pieces?
%ummary +utline
Identify what this pro8ect is about
3hat is signifcant about this5 why can we be bothered loo9ing for an answer in this 4uestion
! paragraph or a little about your methodology
o Cot a lot about what 3einrib5 -ane or Dagan said5 you might refer to them for purposes of
constructing an evaluative framewor9
(ist of 4uestions: 0he way you will divide your research
o 0hat list of subsidiary 4uestions may well provide you with a structure for your fnal paper/
o It may be as you do more research you fnd in fact it is better to structure your fnal paper in some
other way
o 0he list is a way into the research pro8ect to organise your research5 it may turn out to be a good
way of organising but it may not5 that is a decision you have to ma9e along the way
o !s you do research5 your ideas about the topic change and you calibrate your research 4uestions