remedies assignment (the fusion fallacy) (1 Viewer)

[scarecrow_of_oz]

how's it going there mj and iwr? have u guys started looking/researching/thinking about it yet?

it's driving me up the wall - keep changing my mind how i want to structure it. i'm arguing that the ff has some good points to make, but its extreme form amounts to absurdity.

grr... trying to work out how to incorporate the hardcore fusionists into it - there aren't too many, maybe maitland/diplock not really sure how to work that.

what electives are u guys doing??

 

[iwannarock]

i was just about to make a thread like this.

i'm in the library atm and i just looked for articles in that agis plus text database.

only found one..........but its really good. it'll come up when you just search fusion fallacy.

i have no idea what or how i'm gonna write.

i'll get back to you on that on april the 9th. probably at about 8pm.

and i'm only doing remedies and trade prac this semester.

as you've probably noted...........i'm a two subject bandit.

 

[scarecrow_of_oz]

hey! trade prac buddy! when's ur tute??

i found that tilbury one i'm a fan of it too - i'd photocopy MGL while u're there it's in the reserve section with the law books.

i'm so sick of this damn assignment - i know what i want to say i just can't seem to put it into words... damn incoherency. maybe i should have a breather from it, try to appproach it from a new angle or whatever. beats sitting here writing crap i know i'm going to delete half an hour later *vomit*

 

[MaryJane]

Hate this essay with a passion. And it doesnt help that all my tutor has said is "the question is, 'are you pro or anti-fusion'". Hello?! Some more structure would be great!

So I've just kinda got a structure down where I go through a bit of the history, but the majority of it is case law, and I'm focusing on remedial fusion. I like a few quotes from Maitland, but I'm not fitting them in anywhere - I almost just want to tack them on the bottom in bullet-point

 

[Cyan_phoeniX]

Can someone please explain what this fusion theory is exactly? Doesn't seem to be a googable thing :/

 

[iwannarock]

hey! trade prac buddy! when's ur tute??

i found that tilbury one i'm a fan of it too - i'd photocopy MGL while u're there it's in the reserve section with the law books.

thursday 2pm-4pm.

remedies is 11-1 tuesday........used to be 9-11 friday but i changed because on tuesday i can get a lift home with a friend.....and plus i like to go out thursdays so early friday mornings would have been a killer.

yeah i have to get my hands on that book.

i remember using an article that just meagher wrote for the first fiduciary question in prop.

i may try and find that article again and see if its of any use.......because hes all anti fusion if i remember and has some nice arguments i can try and rebut.

 

[MaryJane]

Can someone please explain what this fusion theory is exactly? Doesn't seem to be a googable thing :/

Ah Jamie, I knew it: you love law!

The fusion fallacy is this. Historically, equity and common law were seen as separate, mainly because equity was developed to 'fill in the gaps' of the common law. As such, they have developed specific remedies/actions etc to the other side (think unconscionable conduct in equity; a preoccupation with conscience). There are two sides to this (very boring) debate:

Anti-fusionists who argue that common law and equity never were, and still are not, fused. They are distinct 'streams' of law, that run side-by-side but never mingle (to paraphrase a very famous quote).

Pro-fusionists argue that CL and equity are fused in modern legal systems. While they were developed separately, they have the same aim, and their remedies and actions essentially do the same thing, just under different labels (think 'agent' and 'trustee').

It seems all common law countries (except Australia, because of our lovely conservative bench) have adopted the pro-fusion approach. They let plaintiff's recover equitable remedies for common law actions, and vice versa. But, in Australia, we have been very pedantic about the whole thing, and are determined to keep them separate.

... So thats a very basic breakdown of the Fusion Fallacy. Thrilling, huh?

 

[iwannarock]

Ah Jamie, I knew it: you love law!

The fusion fallacy is this. Historically, equity and common law were seen as separate, mainly because equity was developed to 'fill in the gaps' of the common law. As such, they have developed specific remedies/actions etc to the other side (think unconscionable conduct in equity; a preoccupation with conscience). There are two sides to this (very boring) debate:

Anti-fusionists who argue that common law and equity never were, and still are not, fused. They are distinct 'streams' of law, that run side-by-side but never mingle (to paraphrase a very famous quote).

Pro-fusionists argue that CL and equity are fused in modern legal systems. While they were developed separately, they have the same aim, and their remedies and actions essentially do the same thing, just under different labels (think 'agent' and 'trustee').

It seems all common law countries (except Australia, because of our lovely conservative bench) have adopted the pro-fusion approach. They let plaintiff's recover equitable remedies for common law actions, and vice versa. But, in Australia, we have been very pedantic about the whole thing, and are determined to keep them separate.

... So thats a very basic breakdown of the Fusion Fallacy. Thrilling, huh?

i can see Cyan Pheonix upon reading that thinking "yes its march 29th......i can still drop the law subjects"

 

[scarecrow_of_oz]

do u do law cyan??

grr pro or anti fusion. just don't think it's that simple!! are u 'for or against' there mj?

i'm against wholesale fusion (cause that's just exploding with problems) but then again i don't think equity and claw should be forever banished to their respective bedrooms just cause their parents don't like the thought of them sleeping together (and in fact i think they've been fooling around on the sly with each other for centuries anyway) i reckon the fusion fallacy adherents have a point, but the whole fusion fallacy thing's come to represent an artificial barrier to legal development constructed where there was none before - i kind of support the idea of exemplary damages in equity (think the whole 'equity and penalty are strangers' thing's a load of crap) and why not test the existence (though not the quality) of a duty of care by reference to fiduciary relations?

I guess i'm on board with the fusion fallacy idea, but in terms of examples i just don't buy it. anyway that's what i reckon, but i'm having a heck of a time structuring the damn thing without serious messiness - any suggestions? originally i was going to do it under the headings 'direct fusion' and 'indirect fusion,' though i'm not so keen on that now since i'd like to group the hardcore fusionists and the anti-fusion fallacy guys together

 

[MaryJane]

I love your analogy; its like a whole romeo and juliet romance!

I'm pro-fusion. I agree that the anti-fusionists have a point historically, but it just cant be supported this day in age. The law is there for one simple reason: to remedy a wrong. And thats what both CL and equity aim to do, so just combine them!!

I have a (vague and quite crappy) structure, and its the same way I do every essay: in chronological order (or as close to as possible). I have headings of Early Fusion, Judicature Act, and Fusion in Aust, Canada and NZ. And so, with early fusion I talk about their creation (but only very briefly), and then Judicature Act goes through the traditional anti-fusion arguments. And then the last section is just case law and juxtaposing the different jurisdictions. The last bit is the easiest once you have your hands on the quotes.

My internal structure (as in within each section) is like yours, with the direct and indirect stuff explored as it is relevant to that area, so I think definitely leave that in.

 

[Cyan_phoeniX]

i can see Cyan Pheonix upon reading that thinking "yes its march 29th......i can still drop the law subjects"

hahaha. nah, i don't do law. But the topic sounds pretty philosophical, which is pretty groovy.

It sounds like it would be a hard thing to answer. I'd probably say that Equity and Common Law are not totally fused in reality (in any country). Equity is a more moral thingy - fairness and doing whats right. The law is there for the real purpose of shutting everyone up. Often the law may go under the disguise of doing 'whats right and fair' because usually people like that stuff and that leads to everyone shutting up and no yucky revolutions (so they are fused in that case?).

Ultimately, though, I have no idea what I am talking about.
Can I get a HD for effort?

 

[scarecrow_of_oz]

sure - and a shiny star.

i've decided to insert a nice historical section in the beginning of mine - i.e. prejudicature law and equity - though it's a bit concerning given that it's highly descriptive (it looks at how the common law originated, how equity originated, what roles they were designed to play). they've got over that whole 'refer to ur argument every paragraph' thing by now haven't they? i'm then going to go into the judicature act, say what it does, then talk about direct fusion (which is a load of crap) before i go into the 'fusion fallacy.' it flows nicely, but might be a bit descriptive (not sure if they just want a bunch of arguments rather than background to set up the case). what do u guys reckon?

it's tricky, cause i agree with the fusion fallacy to an extent (would have to, the person marking mine sure as heck does) but then i think once it goes past a certain point it kind of clouds the issue. so i guess i'm anti-fusionist, but also anti-fusion-fallacy if that makes sense... kind of what mason's getting at i guess.

 

[Cyan_phoeniX]

I don't get why its called a 'fallacy'? :/ If something is a fallacy then its wrong or misguided, but there seems to be points on either side of the debate? (i.e. it can't be called a fallacy if its a debate with good viewpoints either side).

 

[scarecrow_of_oz]

well the fallacy thing's an opinion, firstly, and meagher et al are known for their colourful language

the fallacy thing no one can really argue with is the intention of the judicature act - the comments surrounding its introduction make it pretty unambiguous that it was meant to be procedural only

but the idea mj and i are challenging is the suggestion that substantive fusion can't occur under the resulting procedural fusion - clearly it can, and has, though the legitimacy of such developments are in question.

mj what have u found on pre-judicature fusion? all i've got there is a reference to 'friendly overtures' by which i'm guessing they mean precedent by analogy and some recognition of equity in common law courts (keith mason)

 

[MaryJane]

Not a whole lot on pre-jud stuff, like you I have a little history lesson (in one sentence!). I have a few quotes from random people saying that common law and equity were always designed to be under the one title of 'law', but nothing hard-and-fast. I've more just tried to make anti-fusionists look like history-lovers, especially in the beginning arguments. That section is kinda breezed over, just to show that I have thought about it...

This is crap

 

[scarecrow_of_oz]

vomit

my essay is such a cluttered mess i feel like setting it on fire and then pissing on the ashes.

perhaps we should just drop out and run off to mexico? care to join me?

 

[iwannarock]

vomit

my essay is such a cluttered mess i feel like setting it on fire and then pissing on the ashes.

perhaps we should just drop out and run off to mexico? care to join me?

can we stop off at jamaica on the way?

i wanna go somewhere where the only fusion fallacy is whether rum should mix with coke.

 

[scarecrow_of_oz]

no fallacy there. definately up for a stopover in jamaica, mon. we can test fusion of various other substances there too. then onto mexico for some more research.

 

[scarecrow_of_oz]

hey mj do u have any nice colourful 'clanking chains' of the ghosts of history type references that i could borrow? there was this great quote i had condemning the law/equity distinction as an impediment to development but i can't seem to find it anywhere.

i've got denning's atkin's quote about 'the ghosts of the past clanking their mediaeval chains' but i think that's more to do with the old forms of action than the law/equity divide?

if u're looking for a strong article on getting rid of unnessary distinctions (and on fusion developments the law has already witnessed) check out Burrows (2002) We Do This At Common Law But That In Equity. Oxford Journal of Legal Studies 22 if you haven't already it's quite good

 

[scarecrow_of_oz]

don't worry i found what i was looking for - denning in high trees

am going much better now... have written 1000 words that don't completely inspire me to set them aflame and know where i'm going with the rest of it. how are u two plodding along?