Law

Project

Registered trade marks are statutorily declared to be property in New Zealand’s Trade Marks Act 2002. Such legislation enables property rights in a trademark to be acquired (and enforced) via the act of registration, and without use. This is the same in other British Commonwealth countries, such as Australia, Singapore and the United Kingdom.

By contrast — and despite the shared origins of trade mark law — in the United States, there is general reticence to view trade marks as property or property “in the usual sense”. Trade mark law’s function is more commonly viewed as protecting consumers from confusion. This view is buttressed by United States trade mark law’s focus on use in commerce as the foundation for acquiring trade mark rights, and by various rules that place limits on transactions involving trade marks.

Role

This project seeks to analyse the historical development of United States legal attitudes to, and treatment of, trade marks as property from a comparative perspective. In so doing, the project seeks to better understand differing conceptions of trade marks as a species of property and how these conceptions can affect trade mark doctrine in the United States and in British Commonwealth countries.

The Summer Scholar will be expected to:
• Find and analyse primary and secondary legal sources related to the nineteenth-century property theory of trade marks in the United States;
• Find and analyse primary and secondary legal sources related to the shift away from the property theory of trade marks towards a consumer protection theory of trade marks;
• Find and analyse primary and secondary sources that relate to the Trademark Act of 1905 and the subsequent Lanham Trademarks Act 1946 and analyse how these registration statutes affected the conception of trade marks as property;
• Find and analyse primary and secondary sources related to later developments in the United States, such as the Trademark Law Revision Act of 1988 (which permitted intent-to-use applications); and
• Explain and discuss their findings with the researcher.

Ideal student and skills learned

This research project will suit a Summer Scholar who has studied intellectual property law and who has an interest in trade mark law. The Summer Scholar will:
• Deepen their knowledge of trade mark law
• Develop their research skills by utilising a variety of legal databases
• Develop their legal analysis skills by reviewing, synthesising and analysing case law and secondary materials
• Begin to develop an understanding of a comparative legal methodology and the benefits such a methodology can bring to understanding a particular area of law
• Enhance their writing skills and oral communication skills.

Project

The research project aims to create a global constitutional compendium collating outlines of different constitutional orders and how they relate to, respect (or not) Indigenous rights. The project will look at constitutions from countries in Latin America, the Pacific, North America, Asia, Africa and Northern Europe, assess the history and current states of their constitutions, the histories of Indigenous resistance to colonial imposition, and Indigenous movements for recognition of rights within the constitution – and draw insights that can be useful as learnings for Aotearoa New Zealand constitutional developments.

The research will contribute to the Rutherford Discovery research project led by Prof. Claire Charters over the course of 2021-2025 supported by Research Fellow Erin Matariki Carr.

The Summer Scholar will be expected to:
1. Examine constitutions from selected jurisdictions, or region
2. Gather and review materials already gathered about those chosen jurisdictions (this may include assisting in interviews and transcribing interviews with relevant experts)
3. Assist in the analysis and drafting of 10-page summaries of each jurisdiction
4. Contribute ideas and insights to the overall learnings we could gather from the research undertaken for the benefit of Aotearoa constitutional arrangements

Benefits for the Scholar include:
1. Experience working on a unique globally focussed research project in a collaborative way
2. Insights into international constitutional arrangements, traditions, developments and arrangements
3. Insights into international Indigenous rights and the various ways they are recognised and provided for
4. Upskilling in analysis of different constitutional orders and their potential application or influence on the Aotearoa New Zealand constitution

Project

Senior New Zealand (and previously English) judges, while recognising the deficiencies of the New Zealand general anti-avoidance rule statute, have developed some remarkable tax jurisprudence through a series of landmark decisions.

Sir William Young, for example, has commented extra-judicially that the application of the GAAR “sits extremely awkwardly in the highly prescriptive legislative context provided by the Income Tax Act. Orthodox statutory interpretation principles provide, at best, only limited assistance.”

Sir William suggests that applying the GAAR is always particular to its factual context and “thus involves application as much as interpretation”. Despite these reservations, it is clear that some form of purposive interpretation is being advocated in the tandem approach to interpreting the GAAR by the New Zealand Supreme Court in Ben Nevis. The New Zealand Courts, apparently consistent with the Privy Council, have evolved a test based on economic substance to examine the factual economic and commercial features of an impugned tax avoidance transaction. Such an economic substance test is controversial in other countries tax avoidance jurisprudence, although Canada is adopting it as part of its reform to their statutory general anti-avoidance provision.

Role

This project looks at the statutory interpretation of New Zealand and other selected countries' general anti-avoidance rules. The intention is to undertake a comparative legal study with a clear eye on the approach to interpreting these most unusual statutory provisions.

The project will involve drawing together, first, some overarching materials on statutory interpretation with a particular focus on types of purposive interpretation and the role of a general anti-avoidance rule. Secondly, a review of the Supreme Court’s approach in countries with general anti-avoidance (or anti-abuse) rules, such as the United Kingdom, Canada, Australia, India, the United States, and others. These materials will be analysed to advance a comparative legal evaluation of selected jurisdictions' processes, elements, and variations in tax avoidance jurisprudence.

The Summer Scholar will dive deeply into this exciting and legally complex area of tax law. They can examine a unique part of the Income Tax Act with significant academic and intellectual benefits.

Ideal student

This will interest students wishing to specialise in tax practice, litigation, or commercial advisory work.

Project

In his book Progress and Poverty, published in 1879, Henry George proposed that land should be taxed so heavily as to deprive the owner of the whole of its value. This theory, nowadays generally regarded as extreme, won the support of numerous politicians, economists and other public figures around the world, and various governments attempted to put it into practice.

One such was the New Zealand Government, which introduced an annual graduated land tax in 1891. The maximum rate of tax was initially less than one per cent of the value of the land, a much lower rate than George recommended. But by degrees the rates of tax were cranked up, and by 1917 the maximum rate reached 6.75 per cent. Assuming, as the Government assumed, that land generally produces a return of five percent per year, taxing it at 6.75 per cent per year amounted to taxing the rental value at a rate of more than 100 per cent.

But as the years went by, the rates at which the graduated land tax was charged were reduced again; and in 1931 it was abolished. The story of this tax is worth telling, because it is revealing of the politics of taxation in a settler colony in the late 19th and early 20th centuries, and instructive as to the merits of George’s theory.

Role

This project will comprise essentially a legislative history, explaining the legislation and its effects by reference to its economic, political and social contexts. The project will therefore entail a study of the numerous tax statutes enacted in New Zealand from 1878 to 1931, and of the primary and secondary economic, political and social materials relevant to explaining them. The Summer Scholar will assist in identifying and analysing these materials.

Skills learned

The Summer Scholar will develop:
• Their ability to conduct legal and historical research
• Their knowledge and understanding of (a) tax law, (b) tax policy, and (c) New Zealand’s legal, economic, political and social history in the period from 1878 to 1931

Project

LexisNexis New Zealand Ltd (commissioning editor: Jd Nodder) has requested that I act as General Editor and contributing author for a second edition of a textbook 'Climate Change Law and Policy in New Zealand'. I was a contributing author to the first edition of this book (Alastair Cameron (ed), Climate Change Law and Policy in New Zealand (LexisNexis NZ, 2011)), contributing three chapters: ‘International Framework’, ‘New Zealand Climate Change Regulation’ and ‘Adaptation to climate change in New Zealand’.

Since 2011, there have been very significant developments in New Zealand climate change Law and policy, and a new edition of the book is well overdue.

A comprehensive and authoritative text on climate change law would be expected to be used widely by New Zealand academics and policymakers. As with the first edition of the text, in addition to chapters that I would author, there would be contributions from leading New Zealand climate change law and policy experts.

Role

The duties and activities of the Summer Scholar would include the following:

• Primary and secondary research (including caselaw, academic commentary, reports by international organisations and domestic government authorities) relevant to the chapters for which I will be responsible: chapter 2 'International Framework', chapter 7 'New Zealand Emissions Trading scheme' and chapter 9 'Adaptation to Climate Change in New Zealand';
• Liaison with other contributing authors under my supervision; general administrative assistance, including maintenance and updating of project databases.

Benefits to student

Involvement in the project would provide a valuable opportunity for the Summer Scholar to develop research skills and enhance doctrinal and theoretical understanding of a significant and growing area of domestic and international law. As well as developing research skills, the Scholar will learn and enhance their skills in using collaborative research databases (including those based on the is Zotero/Juris-M platform) and gain insight into the process of research and production of an academic text.

The Scholar would receive credit for their input to the relevant chapters and the book which will enhance their CVs and future academic and professional career opportunities.

Project

This project is a collaboration between Professor Mark Henaghan and Associate Professor Hanna Wilberg. The project team will include two summer scholars – the Summer Scholar for LAW006 will be supervised by Associate Professor Hanna Wilberg.

The ultimate objective is to improve legal scrutiny of decisions on social welfare benefits by the Ministry of Social Development (MSD). The main avenue for legal scrutiny is the Social Security Appeals Authority (SSAA): challenges to MSD decisions very rarely reach the High Court. The SSAA is therefore the only body that can regularly identify and address problematic practices by MSD or erroneous interpretations of the legislation. Yet SSAA decisions have limited impact outside of the particular case, because awareness of them is very low.

Role

While many decisions are published online, what is needed is a law reporting system like the one for courts. A system that selects decisions of general significance, and then publishes those along with summaries and keywords to allow readers to quickly identify decisions on any particular issue.

External funding will be sought for the main project of creating and maintaining a law reporting system for the SSAA. When such funding has been secured, the summer scholars will have the opportunity to apply for ongoing law reporting roles.

The Pilot project this summer will do two things. First, prepare reports on as many as possible of the existing unreported SSAA decisions. That will lay the groundwork for the main project, and will enable an assessment of the scale of that project (e.g. what proportion of decisions call for reporting). Second, explore options for the platform to use for publishing the reports.

The summer scholar will join the team including the project leaders (Mark Henaghan and Hanna Wilberg) and the other summer scholar. The scholar will be involved in both of the main aspects of the pilot project, and in addition will also contribute to the report on the pilot:
a) Read SSAA decisions on challenges to MSD decisions on social welfare benefit; select decisions of general significance; prepare those decisions for reporting by writing summaries and keywords (headnotes). The two summer scholars will peer review each other’s work on this, and the work will be supervised by the project leaders. The reports completed during the summer pilot will initially be published on a provisional platform.

b) Investigate options for the platform to use for publishing the reports on a permanent basis. The objective is to ensure maximum accessibility while avoiding exorbitant cost.

c) Help draft the report on the pilot project that will be used in the application for external funding.

The scholar may also contribute to an academic article reporting on this project.

Skills learned

The Summer Scholar will:
• Acquire a good working knowledge of social security law. This law has a vital impact on a significant proportion of New Zealanders (those who are supported by social security benefits and superannuation). Yet very few lawyers are able to assist those people with legal advice and advocacy because the vast majority know nothing about this law. You will be in a position to contribute to filling that gap.
• Hone your legal research and writing skills.
• Have your work published.
• Contribute to the development of the law in this area.
• Develop project management skills through the work investigating publication platforms.
• Develop your collaboration skills through providing constructive peer feedback on the other scholar’s reporting, and through collaborating on the work investigating possible publication platforms.
• Gain experience with academic funding applications.

Ideal student

Please note that:
• Preference may be given to applicants with prior knowledge of social security law or administrative law. Please provide details if you have such knowledge (either having taken the relevant course at law school, or from other sources).
• The scholar should have a strong interest in access to justice and social justice, and be motivated to make a contribution to these.

Project

This project is a collaboration between Professor Mark Henaghan and Associate Professor Hanna Wilberg. The project team will include two summer scholars – the Summer Scholar for LAW007 will be supervised by Associate Professor Mark Henaghan.

The ultimate objective is to improve legal scrutiny of decisions on social welfare benefits by the Ministry of Social Development (MSD). The main avenue for legal scrutiny is the Social Security Appeals Authority (SSAA): challenges to MSD decisions very rarely reach the High Court. The SSAA is therefore the only body that can regularly identify and address problematic practices by MSD or erroneous interpretations of the legislation. Yet SSAA decisions have limited impact outside of the particular case, because awareness of them is very low.

Role

While many decisions are published online, what is needed is a law reporting system like the one for courts. A system that selects decisions of general significance, and then publishes those along with summaries and keywords to allow readers to quickly identify decisions on any particular issue.

External funding will be sought for the main project of creating and maintaining a law reporting system for the SSAA. When such funding has been secured, the summer scholars will have the opportunity to apply for ongoing law reporting roles.

The Pilot project this summer will do two things. First, prepare reports on as many as possible of the existing unreported SSAA decisions. That will lay the groundwork for the main project, and will enable an assessment of the scale of that project (e.g. what proportion of decisions call for reporting). Second, explore options for the platform to use for publishing the reports.

The summer scholar will join the team including the project leaders (Mark Henaghan and Hanna Wilberg) and the other summer scholar. The scholar will be involved in both of the main aspects of the pilot project, and in addition will also contribute to the report on the pilot:
a) Read SSAA decisions on challenges to MSD decisions on social welfare benefit; select decisions of general significance; prepare those decisions for reporting by writing summaries and keywords (headnotes). The two summer scholars will peer review each other’s work on this, and the work will be supervised by the project leaders. The reports completed during the summer pilot will initially be published on a provisional platform.

b) Investigate options for the platform to use for publishing the reports on a permanent basis. The objective is to ensure maximum accessibility while avoiding exorbitant cost.

c) Help draft the report on the pilot project that will be used in the application for external funding.

The scholar may also contribute to an academic article reporting on this project.

Skills learned

The Summer Scholar will:
• Acquire a good working knowledge of social security law. This law has a vital impact on a significant proportion of New Zealanders (those who are supported by social security benefits and superannuation). Yet very few lawyers are able to assist those people with legal advice and advocacy because the vast majority know nothing about this law. You will be in a position to contribute to filling that gap.
• Hone your legal research and writing skills.
• Have your work published.
• Contribute to the development of the law in this area.
• Develop project management skills through the work investigating publication platforms.
• Develop your collaboration skills through providing constructive peer feedback on the other scholar’s reporting, and through collaborating on the work investigating possible publication platforms.
• Gain experience with academic funding applications.

Ideal student

Please note that:
• Preference may be given to applicants with prior knowledge of social security law or administrative law. Please provide details if you have such knowledge (either having taken the relevant course at law school, or from other sources).
• The scholar should have a strong interest in access to justice and social justice, and be motivated to make a contribution to these.

Project

The Summer Scholar will assist with the preparatory work for the second edition of a monograph on an account of profits. An account of profits is the principal remedy for breach of fiduciary duty and breach of obligations of confidence. The remedy is also available in respect of certain common law wrongs and has an important role in cases of intellectual property infringement.

Role

The Summer Scholar will analyse a specialised area of law and gain an advanced understanding of the principles of equity and the remedy of an account of profits. They will undertake in-depth scholarly research and gain ongoing experience with advanced reference materials, including national and international databases.

The Summer Scholar will be expected to:

(1.) Prepare a literature review of post-2013 material falling into the following categories: (i) intellectual property infringement; (ii) gain-based remedies for common law wrongs, and; (iii) account of profits and the law of contract.
(2.) Identify articles, texts and conference papers. Summarise the principal arguments. Cross-reference citations. Analyse relevance and significance of this material in relation to the content of the first edition.
(3.) Identify and summarise cases from England, Australia, New Zealand and Canada regarding the above topics. Identify the main facts of these cases, explain the principal arguments and the ratio of the decisions.
(4.) Make recommendations as to incorporation of the above material in the second edition.

The Summer Scholar will be encouraged to discuss their research and exchange ideas with the supervisor on a regular basis.