By Elise Bant, Matthew Harding
Exploring deepest legislations provides a set of essays, by way of major students from the world over, on deepest legislation doctrines, treatments, and techniques. The overarching function of the gathering, encouraged via contemporary debate, is to rejoice and illustrate the contribution that either 'top-down' and 'bottom-up' equipment of reasoning make to the advance of personal legislation. With that goal in brain, the participants to the gathering discover a variety of subject matters of present curiosity: judicial ways to 'top-down' and 'bottom-up' tools; instructing trusts legislation; the security of privateness in inner most legislation; the advance of the legislation of unjust enrichment; the non-public legislations results of robbery; equity's jurisdiction to alleviate opposed to forfeiture; the character of fiduciary relationships and duties; the tasks of trustees; repayment and disgorgement treatments; partial rescission; the function of unconscionability in proprietary estoppel; and the character of registered identify to land.
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Extra info for Exploring Private Law
12 Burrows regards all three cases as rightly decided, but he is critical of the reasoning of the Court in each of the cases, especially on questions of judicial method in private law. Starting with Roxborough, Burrows argues that Gummow J’s criticism in that case of unjust enrichment scholarship as characterized by top-down reasoning was unfounded, pointing out that unjust enrichment scholarship displays a clear bottom-up pedigree. Burrows also looks at Gummow J’s use of the concept of unconscionability in Roxborough, arguing that it may itself reveal top-down reasoning.
Part II opens with three contributions that might just as easily have been placed in Part I, considering broad questions 14 15 17 Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109. 111, 123. 16 124. In the essays by Tony Duggan and James Edelman. 8 Bant and Harding from a comparative perspective. These essays are good examples of the problem of easy classification that we alluded to at the beginning of this Introduction. And indeed the same is true of the contribution that closes Part II, which tackles a notoriously difficult question at the interface of property, civil wrongs, and unjust enrichment.
However, what Duggan approaches from a functionalist perspective, Edelman approaches using tools of doctrinal analysis. The lesson of the third essay on fiduciaries in Part III is simple: context is everything. Richard Nolan and Matthew Conaglen begin by drawing a distinction between requirements that apply to fiduciaries and only to fiduciaries – the conflicts rules – and requirements that apply to fiduciaries and non-fiduciaries alike but whose content varies depending on whether or not the person to whom they apply has given a fiduciary undertaking.