Exemplary Damages in Equity: A Law and Economics Perspective

In Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, the NewSouth Wales Court of Appeal held that exemplary (or punitive)damages are not available for breach of fiduciary duty or otherequitable obligation. The decision runs counter to authoritiesin Canada, New Zealand and some U.S. states. Punitive (exemplary)damages is a hotly debated topic in the United States and ithas attracted considerable interest among law and economicsscholars, particularly in the tort litigation context. Thisarticle analyzes the Digital Pulse case from a law and economicsperspective. Polinsky and Shavell (among others) argue thatthe function of punitive damages is to achieve optimal deterrencein cases where the probability that the plaintiff will discoverand successfully litigate the defendant’s wrongdoing isless than 1. Given the high costs of monitoring fiduciary behaviour,it might be tempting to conclude that exemplary damages shouldbe routinely awarded for breach of fiduciary obligation. Thearticle explains why this view is wrong. On the other hand,given the availability of gains-based remedies (the accountof profits and the like) for breach of fiduciary obligation,it might be tempting to conclude that exemplary damages arenever justified in fiduciary cases. The article explains whythis view is wrong too. The main conclusions are that: (1) exemplarydamages should be available for breach of fiduciary duty andthe like, but not as a matter of course; and (2) exemplary damageswere probably not warranted in Digital Pulse itself.     

ROCK‐PAPER‐SCISSORS: PLAYING THE ODDS WITH THE LAW OF CHILD RELOCATION

This article offers for inspection the proposition that the adversarial evidence‐based litigation process is unsuitable for resolving custody cases in general and relocation cases in particular. It analyzes the leading cases from New York, Massachusetts, California, England, Canada, and Australia. It reaches a conclusion that no jurisdiction has devised a legal standard or formula that enables a judge to predict the future best interest of a child if that child is allowed to relocate with one parent away from the other. For this reason, the court has a duty to offer as sophisticated and friendly a settlement process and atmosphere as possible. However, knowing that judges will still be required to resolve these difficult cases because they often seem impervious to settlement, the article offers thirty‐six factors that a court should consider in all move‐away cases. By relying on each of these factors that is relevant to the case, the parents will have an understanding of why the decision was made the way it was and it will also allow for effective appellate review.     

Antisocial personality disorder comorbid with borderline pathology and psychopathy is associated with severe violence in a forensic sample

Background: Evidence suggests the relationship between personality disorder (PD) and violence in offenders might be clarified by considering sub-groups of PD offenders defined by patterns of PD comorbidity. Aim: to identify patterns of PD comorbidity associated with severe violence, defined by its severity, quantity and age of onset (Violence Index: VI) in a forensic sample of 100 PD offenders. Methods: Correlations were first computed between VI and a range of personality and criminological variables; next, patients with antisocial/borderline comorbidity were compared with other PD patients; finally, regression analysis was conducted to identify unique predictors of VI. Results: The antisocial deviance factor of psychopathy and antisocial/borderline comorbidity were each significantly and independently associated with severe violence. Patients showing both a high psychopathy score and antisocial/borderline comorbidity had a significantly greater VI than those without these characteristics. Conclusion: PD patients with high psychopathy co-occurring with borderline and antisocial PDs show a criminal profile characterised by a high degree of serious violence.     

Pursuing Ideology with Statecraft

Utilizing a web-based simulation Statecraft, we explore the relative influence of ideology (realism and idealism) on student behavior and learning. By placing students into ideologically cohesive groups, we are able to demonstrate the effect of their ideology on the goals they pursue and identify the constraints imposed on the system by the behavior of groups as well.     

Touching stones to cross the river: Evolving telecommunication policy priorities in contemporary China

This article, drawing on fieldwork in China, charts the ascendancy of Lian Tong (China Unicom), the first competitor to the incumbent Ministry of Posts and Telecommunications. Commencing with an historical overview of Chinese telecommunications, it suggests that Lian Tong's formation has been contingent upon support from key constituencies within China's political elite. The company's emergence mirrors technological trends and user pressure evident globally. It embodies the drive towards market liberalisation now evident within the Peoples’ Republic. While the Chinese policy community is sensible of the need to make haste slowly toward the goal of telecommunications competition — ‘touching stones to cross the river’ in the contemporary aphorism — the success of this ‘policy experiment’ depends both on the subtleties of Chinese politics and the construction of bold new regulatory frameworks. Lian Tong's genesis is symbolic of developments in the telecommunications sector, and maybe also more generally in the Chinese economy.     

‘Whether you are gay or straight,I don’t like to see effeminate dancing’: effeminophobia in performance-level ballroom dance

This article discusses recent responses to performances of same-sex male ballroom dancing in order to consider the subtle difference which can exist between homophobia and effeminophobia. Given that the world of performance-level ballroom dancing is a gay-friendly environment, in which many participants are openly gay identified, this article will argue that a discourse of effeminophobia, rather than homophobia, underpins the world of performance-level ballroom dance. Performance-level ballroom dance is often read as camp not only because it represents exaggerated gender roles but because its official technique requires that the male dancer synthesise codes of masculinity and femininity in his dancing. What protects the gender-dissident male ballroom dancer from being read as effeminate is that he is paired with a female body performing excessive femininity. Without the foil of the hyper-feminine female partner, the same-sex couple draws attention to the fact that the male ballroom dancer is not dancing as a man but in accordance with ballroom’s queer construction of masculinity. Given that performance-level dance has struggled for so many years to be viewed as masculine sport, practitioners may, quite understandably, be anxious about any representation which suggests that ballroom dance may be an effeminate activity.