James Predergast and the Treaty of Waitangi: Judicial Attitudes to the Treaty During the Latter Half of the Nineteenth Century

Chief Justice James Prendergast has largely been demonised over the last two decades as a result of his famous decision in the Wi Parata v The Bishop of Wellington case in 1877. In that decision, he notably stated that the apparent cession of sovereignty in the Treaty of Waitangi was "a simple nullity". This statement has effectively taken on a life of its own, and is still cited – with polarising effect – in the current debate on the place of the Treaty in modern New Zealand society.  The author argues, however, that the debate and commentary on the case has largely omitted to consider Prendergast as a man of his times and background and as an important part of a small legal community. The part that others had to play in the Wi Parata case is often not mentioned, for example. This article seeks to redress the balance somewhat. In doing so, it does not underestimate the devastating effect which the decision had in supporting the alienation of Maori land. However it emphasises that Prendergast's view represented the orthodoxy of the time, and for some considerable time thereafter, and that his main fault was that he failed to rise above the prejudices of the settler society in which he lived.&nbsp

Foreword: Recovering the Common Good

The first "Recovering the Common Good" Conference was held in Wellington in October 2012. In this Foreword, special editor Dr Morris speaks of the meaning and importance of the topic, and of the conference papers that have been included in this Review

Devils Down Under: Perceptions of Lawyers' Ethics in New Zealand Fiction

Sophisticated fictional portrayals of lawyers facing ethical dilemmas can provide important insights into the nature of legal ethics and morality in the New Zealand legal profession. These insights can assist the legal community in addressing complex issues surrounding professional regulation. This article reveals legal characters who act contrary to legal ethics but with moral justifications and characters who act ethically but in a way that laypeople may view as amoral or immoral. While the depictions of lawyers are generally negative, a close analysis reveals that this is partly a result of confusion over what Dare has termed the standard conception of a lawyer's role. Fewer insights can be gained from superficial characterisations. While much has been written on this topic in other jurisdictions, more light can be shed on New Zealand's ethical landscape through the study of New Zealand's fictional texts. This article exposes a rich resource for the legal community because as Economides and O'Leary have argued in relation to legal ethics, stories matter. This dictum should apply to works of non-fiction and fiction.&nbsp

To Promote or Not to Promote? The Role of the Judiciary in the New Zealand Commercial Mediation Market

Judicial promotion of mediation has been identified as an important way to encourage and increase the amount of commercial mediation in New Zealand. This latest contribution to the New Zealand Commercial Mediation Study (NZCMS) explores the views of District and High Court judges in relation to the use of mediation in their courts. Comparisons are made with earlier NZCMS studies, including the controversial issue of mandatory mediation. While the judiciary is well placed to increase the amount of commercial mediation in New Zealand, this paper concludes that it is unlikely that this potential will be realised under the current civil procedure settings. District and High Court judges possess a good understanding of mediation and its benefits but also prioritise party autonomy in choosing whether to undertake mediation or not

Bench v Bar: Contempt of Court and the New Zealand Legal Profession in Gillon v MacDonald (1878)

Gillon v MacDonald (1878) was the climax of a feud that caused division in, and undermined the reputation of, the early New Zealand legal profession. Gillon features one of the most controversial episodes of contempt of court by a barrister in colonial legal history. The nature of the New Zealand legal profession, and in particular the relationship between bench and bar, is exposed through the case, its prologue and its aftermath.  The complex saga occurred over several years and involved all three branches of government.  Its causes are open to debate, but this article argues that personal and professional rivalry lies at the heart of the saga, and in particular, an obsessive vendetta on the part of George Elliot Barton.  The events described in this article had far reaching consequences including possibly influencing New Zealand’s most infamous legal decision, Wi Parata v Bishop of Wellington (1877)

"Salmond's Bench": The New Zealand Supreme Court Judiciary 1920-1924

John Salmond dominated the New Zealand legal environment during the early twentieth century. Salmond performed many roles in the New Zealand legal system. This article focuses on his final legal role, as a Supreme Court judge, and looks at the nature of the Supreme Court Bench from 1920 to 1924. Some of New Zealand's greatest legal names sat with Salmond during this time. Twentieth century New Zealand legal history is a relatively unexplored area and requires more attention from historians. This article provides the basis for possible future work on the Supreme Court Bench during the early 1920s. In discussing the nature of "Salmond's Bench" the backgrounds of the different Supreme Court justices are explored. Following this, selected cases are analysed revealing distinctive factors relating to how this group of judges worked together and the nature of their judgments. Particular attention is paid to the divisions on the Bench regarding the crucial social issue of divorce. Viewing the decisions made by Salmond's Bench in the context of the political and social backgrounds of the judges and the historical background of this period provides a vital third dimension to the judgments. Salmond's distinctive approach to judicial decision-making becomes clearer when directly compared with the approaches of his judicial peers

The Greatest Legal Movie of All Time: Proclaiming the Real Winner

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. It was not ranked in the top twenty-five. It was not included in the twenty-five honorable mentions so that it would rank in the top fifty. I would wager that it was not even considered by the panel as a candidate for inclusion as a “legal” movie. In this article, I discuss the movie that should have been ranked first. I compare my choice with the experts’ choice, describing similarities and differences between the two movies. In To Kill a Mockingbird, an African American man is wrongfully accused of raping a white woman. Despite the best efforts of his attorney, he is convicted of that crime. Prejudice prevails over justice. In the movie I have chosen, another victim of prejudice is able to succeed due to the best efforts of his attorney. Justice prevails over prejudice. That difference convinces me that the movie I have selected is truly the greatest legal movie of all time

Pursuing Justice for the Mentally Disabled

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision “proved” that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient’s doctor and should trump any patients’ rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept–or are coerced into accepting–medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future