From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech

This Article addresses, against the backdrop of possible legislative reforms in Australia, the tension between the desire to eliminate racial defamation and the need to protect freedom of speech. In an historical overview, Mr. Partlett notes an increasing sensitivity to racial issues in Australia in the face of an assumed but nebulously stated value of free speech. Mr. Partlett analyzes theoretical and legal approaches to free speech from Commonwealth and United States perspectives, and analysis of recent legal and social developments in civil rights in the United States makes this Article relevant for both Commonwealth and United States reformers in this area of the law. He concludes that the interest served by free speech is the individual\u27s interest of autonomy. Thus, the aim to promote individual autonomy, accompanied by a presumption favoring free speech and a healthy suspicion of government, legitimates cautious governmental regulation of speech. Government action in this area is best expressed through government\u27s role as a speaker on moral matters and through the institutional competence of the courts. Mr. Partlett then analyzes the recommendations of the Australian Human Rights Commission to amend Australia\u27s 1975 Racial Discrimination Act and finds that its attempts to outlaw racial defamation and incitement to racial hatred neglect the value of free speech. Mr. Partlett proposes two alternatives for achieving a more comfortable balance--alternatives through which government may symbolically condemn incidents of racial defamation yet give sufficient ambit to the exercise of free speech

Foreword: David Fischer, The Fox(a)

It is my great pleasure to pen a few words in honor of my friend and fellow laborer in the torts vineyard, Professor David Fischer. Professor Fischer has been an intellectual force in the modem development of tort law. He has made us think hard about the implications of tort rules. He is in the intellectual tradition of a splitter, and not a lumper, in his scholarship., Most of scholarship in modem tort law falls into the lumper camp. It is scholarship that looks at tort rules as encapsulating wider models that serve certain instrumental ends, or as part of a non-consequential system of norms; for example, law and economics has taken tort rules to reflect a system of rules that serve efficiency. Others view the rules as part of a system of private law that instantiates corrective justice. Contrary rules are diminished and common themes emphasized. Even when discussing discrete aspects of tort law, most modem scholars are lumpers in applying broad theoretical frameworks to fit those aspects. The most talked of aspect has been the duty concept in negligence. While the debate can be traced to the Palsgraf case, it has been given new life by the scholarship of Keating, Goldberg and Zipursky. The issue that separates these scholars derives from their views about the function of tort liability. David Fischer is a splitter. He takes present or evolving doctrines and puts them under a powerful analytical microscope for examination. In so doing, he reveals differences, internal flaws, paradoxes and problems, and revels in the complexity. David Fischer, although not without strong views about the theoretical groundings of tort law, proposes no meta-theories. Instead, he does the hard work on the inside that, in the end, uncovers the problems and dilemmas for courts as they go about their business of ascribing responsibility for wrongful acts. He is the fox of tort law

The Common Law As Cricket

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other out. The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the West Indies a Caribbean passion possesses cricket. In Central America a Latin bravado inspires baseball.Much the same can be said of the common law. To the American,cricket and English law seem confined and stodgy. Baseball and American law to the Englishman seem overwrought and brazen. A book to bridge our knowledge gap in sports has not been written. Fortunately,however, Professors Patrick S. Atiyah and Robert S. Summers have written a book that should cure us of our legal ignorance and do much to lead us to a deeper understanding of the common law. The common law is our heritage but the way it is employed differs in each country. English courts would not dare, as their American cousins have, judicially to create strict liability for defective products or to replace the defense of contributory negligence with comparative fault. These tasks are legislative. The role of the courts and their relationship with other lawmaking organs differ distinctly. This difference is a product of history, political philosophy, and culture.Professors Atiyah and Summers in Form and Substance in Anglo-American Law masterfully describe the differences in English and American law. But this work is no blind taxonomy of differences; their description is designed to validate a theory of the law. In this book comparative law informs legal theory. It is a significant contribution to modern jurisprudence