James Edelman - Academia.edu (original) (raw)

Papers by James Edelman

University of Western Australia law review, 2015

This article, written for Peter Johnston, examines issues concerning property rights to our bodie... more This article, written for Peter Johnston, examines issues concerning property rights to our bodies and their products. The questions of principle involved in this area have attracted vast debate and discussion amongst lawyers for two millenia. The underlying questions of legal principle should not be complex. The principles established by the Romans give clear guidance for how these questions should be answered. The difficulty is that the context in which the questions are asked can involve hard policy choices. Legislative intervention still leaves questions about how these choices are to be resolved. University of Western Australia Law Review Volume 39(2) were in the same place. The conversation always moved rapidly to law. Peter was a true polymath. He read everything he could get his hands upon. If it was something written by a friend of his he would read every word. Some years after I was appointed to the Supreme Court of Western Australia, I said to Peter, only half-jokingly, that when I wrote a decision, I did it knowing that my reading audience was usually three people. The legal representatives of the two parties and him. The genesis of this article was a hearing I conducted late in the evening on Saturday 29 December 2012. Urgent orders were sought for extraction of sperm from a recently deceased man. With only a minute for reflection I made the orders. The next morning I recorded the immediate thoughts that had formed the reasons for my decision the previous night. There were many very difficult issues of legal principle involved in the question concerning property rights to human tissue. It was also clear that the details of the legislation dealing with some of the policy issues might not be fully understood. My brief reasons considered some of these points. 2 Very shortly after publication of this decision I met with Peter Johnston for coffee. He had read the decision from start to finish. He told me of some of the resonance that the case had with one that he heard when he sat on the Human Rights and Equal Opportunity Commission concerning a sex discrimination claim against Melbourne Hospital for refusing to supply in vitro fertilisation services to an unmarried woman. We spoke of the issue which was the foundation of the case: who owns our bodies and the products of our bodies. Peter gently chided me, as he always did, for my reference in the case to Roman law and Blackstone. He did so with a twinkle in his eye. He knew, and I knew, that this was the part of the judgment which he had enjoyed the most. This article builds upon that discussion we had many months ago about who owns our bodies and their products. The thoughts which flowed from our discussion were presented in a preliminary way at a conference at the University of Western Australia. It is a great sadness for me to know that I will not receive the usual email from Peter within days of publication online, pointing out, in a gentle mocking tone, the aspects of legal history that he so loved and then moving to the hard questions of underlying policy. But with Peter in the forefront of my mind, I begin this article with the foundation of these questions two millennia ago.

Law Quarterly Review, 2015

One of the opening sentences of Professor Tolhurst's The Assignment of Contractual Rights say... more One of the opening sentences of Professor Tolhurst's The Assignment of Contractual Rights says that assignments of contractual rights 'involve a transfer of a contractual right from the owner (assignor) to the transferee (assignee)'. This is also a consistent theme throughout The Law of Assignment by Marcus Smith QC. It is a theme of J G Starke's treatise on Assignments of Choses in Action in Australia. There are also many judicial decisions which characterise the assignment of contractual rights as involving a transfer of the rights or acquisition of the rights. And even the very word 'assignment' connotes a transfer of rights. These ideas, by very distinguished authors and judges, represent a view which is now very widely held about equitable assignment. But this was not always the case. An earlier conception of equitable assignment stands in contrast with this modern view, with quite different consequences.

It is a pleasure to be invited to speak today at this conference and seminar on fiduciaries. I ha... more It is a pleasure to be invited to speak today at this conference and seminar on fiduciaries. I have had the great benefit of discussing, usually debating, many issues in this area with Lionel over the last decade and with Matthew, generally in print, over the last few years. And I am enthused by the prospect of reading Scott's recent doctorate on this subject. In the short time I have for the presentation of this paper I will only make a small number of points, leaving the detail of many of the matters in the written version of this paper for discussion this afternoon. The full paper will be available on the website of the Supreme Court of Western Australia.

Boston University Law Review, May 1, 2012

3 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the Universit... more 3 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong ...

European Review of Private Law Revue Europeenne De Droit Prive Europaische Zeitschrift Fur Privatrecht, 2006

Criminal Law Journal, 2005

Philosophical Foundations of Fiduciary Law, 2014

Even in the case of a solicitor-client relationship, long accepted as a status based fiduciary re... more Even in the case of a solicitor-client relationship, long accepted as a status based fiduciary relationship, the duty is not derived from status. As in all such cases, the duty is derived from what the solicitor undertakes, or is deemed to have undertaken, to do in the particular circumstances. 1 In some [exceptional] cases, it is simply not reasonable for a client to claim that it expected a law firm to owe it exclusive loyalty and to refrain from acting against it in unrelated matters ... [The Court will consider various factors] when determining whether there was a reasonable expectation that the law firm would not act against the client in unrelated matters. 2 Summary and essential concepts The focus of this conference is on fiduciaries. This paper addresses an important and difficult question at the heart of the law concerning fiduciaries. But the question is not confined to fiduciary law. It has repercussions throughout the law of obligations. The question is the role played by the status or office of a person in determining the obligation owed. One possible answer to this question forms part of a larger perspective which can reduce the tesserarian nature of fiduciary litigation. The New South Wales Court of Appeal makes an important point in the quotation at the start of this paper. This point is that a fiduciary's duty is not derived from status. A similar point is made in the second quotation above was made on 5 July 2013 by the Supreme Court of Canada. 3 But if fiduciary duty is not derived from status then this gives rise to a conundrum. Why do courts commonly speak of fiduciary relationships? Why do courts emphasise the duties that arise in relationships of a particular status? The answer which I will tentatively suggest is that status may play an important part of the background material by informing the duties which are undertaken by particular persons. In other words, where a duty arises because of a manifest, or objective, undertaking the status or office held by a person is an important circumstance in determining the scope of the duties which the officeholder reasonably undertook. This paper makes one assumption which is justified only briefly here. The assumption is that the existence of an undertaking, objectively manifested, is a  Justice of the Supreme Court of Western Australia. My thanks to Daniella Spencer-Laitt for research assistance. 1 Beach Petroleum v Kennedy (1999) 48 NSWLR 1, 188 (Spigelman CJ, and Sheller and Stein JJA). The only quibble which one might have with this quotation is that an objective undertaking does not involve a 'deeming' or any fiction. It is not a proxy for subjective thoughts.

Philosophical Foundations of the Law of Unjust Enrichment, 2009

Exploring Private Law, 2010

... 5 Attorney General v Blake [1998] Ch 439 CA at 453-455; Bolkiah (Prince Jefri) v KPMG (a firm... more ... 5 Attorney General v Blake [1998] Ch 439 CA at 453-455; Bolkiah (Prince Jefri) v KPMG (a firm) [1999] 2 AC 222 HL at 235. ... Trustee Co Ltd v Perpetual Trustee Co Ltd [1966] 2 NSWR 211 at 215; Federal Court of Australia in Commonwealth Bank of Australia v Smith (1991) 102 ...

Modern Law Review, 2005

It has become something of a commonplace to observe that the Anglo^American method of establishin... more It has become something of a commonplace to observe that the Anglo^American method of establishing facts in adjudication is distinctive.. . A few of [its 'native £owers'], most notably the hearsay rule, are regarded as so bizarre that they occupy one of the most forbidding corners of the entire Anglo^American legal structure. 1

University of Western Australia law review, 2015

This article, written for Peter Johnston, examines issues concerning property rights to our bodie... more This article, written for Peter Johnston, examines issues concerning property rights to our bodies and their products. The questions of principle involved in this area have attracted vast debate and discussion amongst lawyers for two millenia. The underlying questions of legal principle should not be complex. The principles established by the Romans give clear guidance for how these questions should be answered. The difficulty is that the context in which the questions are asked can involve hard policy choices. Legislative intervention still leaves questions about how these choices are to be resolved. University of Western Australia Law Review Volume 39(2) were in the same place. The conversation always moved rapidly to law. Peter was a true polymath. He read everything he could get his hands upon. If it was something written by a friend of his he would read every word. Some years after I was appointed to the Supreme Court of Western Australia, I said to Peter, only half-jokingly, that when I wrote a decision, I did it knowing that my reading audience was usually three people. The legal representatives of the two parties and him. The genesis of this article was a hearing I conducted late in the evening on Saturday 29 December 2012. Urgent orders were sought for extraction of sperm from a recently deceased man. With only a minute for reflection I made the orders. The next morning I recorded the immediate thoughts that had formed the reasons for my decision the previous night. There were many very difficult issues of legal principle involved in the question concerning property rights to human tissue. It was also clear that the details of the legislation dealing with some of the policy issues might not be fully understood. My brief reasons considered some of these points. 2 Very shortly after publication of this decision I met with Peter Johnston for coffee. He had read the decision from start to finish. He told me of some of the resonance that the case had with one that he heard when he sat on the Human Rights and Equal Opportunity Commission concerning a sex discrimination claim against Melbourne Hospital for refusing to supply in vitro fertilisation services to an unmarried woman. We spoke of the issue which was the foundation of the case: who owns our bodies and the products of our bodies. Peter gently chided me, as he always did, for my reference in the case to Roman law and Blackstone. He did so with a twinkle in his eye. He knew, and I knew, that this was the part of the judgment which he had enjoyed the most. This article builds upon that discussion we had many months ago about who owns our bodies and their products. The thoughts which flowed from our discussion were presented in a preliminary way at a conference at the University of Western Australia. It is a great sadness for me to know that I will not receive the usual email from Peter within days of publication online, pointing out, in a gentle mocking tone, the aspects of legal history that he so loved and then moving to the hard questions of underlying policy. But with Peter in the forefront of my mind, I begin this article with the foundation of these questions two millennia ago.

Law Quarterly Review, 2015

One of the opening sentences of Professor Tolhurst's The Assignment of Contractual Rights say... more One of the opening sentences of Professor Tolhurst's The Assignment of Contractual Rights says that assignments of contractual rights 'involve a transfer of a contractual right from the owner (assignor) to the transferee (assignee)'. This is also a consistent theme throughout The Law of Assignment by Marcus Smith QC. It is a theme of J G Starke's treatise on Assignments of Choses in Action in Australia. There are also many judicial decisions which characterise the assignment of contractual rights as involving a transfer of the rights or acquisition of the rights. And even the very word 'assignment' connotes a transfer of rights. These ideas, by very distinguished authors and judges, represent a view which is now very widely held about equitable assignment. But this was not always the case. An earlier conception of equitable assignment stands in contrast with this modern view, with quite different consequences.

It is a pleasure to be invited to speak today at this conference and seminar on fiduciaries. I ha... more It is a pleasure to be invited to speak today at this conference and seminar on fiduciaries. I have had the great benefit of discussing, usually debating, many issues in this area with Lionel over the last decade and with Matthew, generally in print, over the last few years. And I am enthused by the prospect of reading Scott's recent doctorate on this subject. In the short time I have for the presentation of this paper I will only make a small number of points, leaving the detail of many of the matters in the written version of this paper for discussion this afternoon. The full paper will be available on the website of the Supreme Court of Western Australia.

Boston University Law Review, May 1, 2012

3 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the Universit... more 3 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong ...

European Review of Private Law Revue Europeenne De Droit Prive Europaische Zeitschrift Fur Privatrecht, 2006

Criminal Law Journal, 2005

Philosophical Foundations of Fiduciary Law, 2014

Even in the case of a solicitor-client relationship, long accepted as a status based fiduciary re... more Even in the case of a solicitor-client relationship, long accepted as a status based fiduciary relationship, the duty is not derived from status. As in all such cases, the duty is derived from what the solicitor undertakes, or is deemed to have undertaken, to do in the particular circumstances. 1 In some [exceptional] cases, it is simply not reasonable for a client to claim that it expected a law firm to owe it exclusive loyalty and to refrain from acting against it in unrelated matters ... [The Court will consider various factors] when determining whether there was a reasonable expectation that the law firm would not act against the client in unrelated matters. 2 Summary and essential concepts The focus of this conference is on fiduciaries. This paper addresses an important and difficult question at the heart of the law concerning fiduciaries. But the question is not confined to fiduciary law. It has repercussions throughout the law of obligations. The question is the role played by the status or office of a person in determining the obligation owed. One possible answer to this question forms part of a larger perspective which can reduce the tesserarian nature of fiduciary litigation. The New South Wales Court of Appeal makes an important point in the quotation at the start of this paper. This point is that a fiduciary's duty is not derived from status. A similar point is made in the second quotation above was made on 5 July 2013 by the Supreme Court of Canada. 3 But if fiduciary duty is not derived from status then this gives rise to a conundrum. Why do courts commonly speak of fiduciary relationships? Why do courts emphasise the duties that arise in relationships of a particular status? The answer which I will tentatively suggest is that status may play an important part of the background material by informing the duties which are undertaken by particular persons. In other words, where a duty arises because of a manifest, or objective, undertaking the status or office held by a person is an important circumstance in determining the scope of the duties which the officeholder reasonably undertook. This paper makes one assumption which is justified only briefly here. The assumption is that the existence of an undertaking, objectively manifested, is a  Justice of the Supreme Court of Western Australia. My thanks to Daniella Spencer-Laitt for research assistance. 1 Beach Petroleum v Kennedy (1999) 48 NSWLR 1, 188 (Spigelman CJ, and Sheller and Stein JJA). The only quibble which one might have with this quotation is that an objective undertaking does not involve a 'deeming' or any fiction. It is not a proxy for subjective thoughts.

Philosophical Foundations of the Law of Unjust Enrichment, 2009

Exploring Private Law, 2010

... 5 Attorney General v Blake [1998] Ch 439 CA at 453-455; Bolkiah (Prince Jefri) v KPMG (a firm... more ... 5 Attorney General v Blake [1998] Ch 439 CA at 453-455; Bolkiah (Prince Jefri) v KPMG (a firm) [1999] 2 AC 222 HL at 235. ... Trustee Co Ltd v Perpetual Trustee Co Ltd [1966] 2 NSWR 211 at 215; Federal Court of Australia in Commonwealth Bank of Australia v Smith (1991) 102 ...

Modern Law Review, 2005

It has become something of a commonplace to observe that the Anglo^American method of establishin... more It has become something of a commonplace to observe that the Anglo^American method of establishing facts in adjudication is distinctive.. . A few of [its 'native £owers'], most notably the hearsay rule, are regarded as so bizarre that they occupy one of the most forbidding corners of the entire Anglo^American legal structure. 1