[BLML] Flushed with success [SEC=UNOFFICIAL]

Richard HILLS richard.hills at immi.gov.au
Fri Feb 15 04:29:10 CET 2013


Introduction, first two sentences:

The Laws are designed to define correct procedure and to provide an
adequate remedy when there is a departure from correct procedure. They are
primarily designed not as punishment for irregularities but rather for the
rectification of situations where non-offenders may otherwise be damaged.

Eric Landau, May 2006:

>"Equity" and "fairness" are not the same thing. "Equity" means that an
>offender receives a punishment that, in some sense, "fits the crime";
>in our world that means compensating the "victims" for whatever damage
>they might have suffered. "Fairness" means that an offender receives
>the same punishment as would anyone else who committed the same
>offense; whether or not the punishment is also "equitable" isn't relevant.
>The goals of equity and fairness can and do conflict; in some cases it
>may be impossible to achieve both. Nigel's argument highlights the
>inconsistency with which we choose our goal law by law. For revokes,
>for example, we sacrifice equity for fairness;

Richard Hills, February 2013:

Yes and No.

Over decades successive Drafting Committees have tweaked the revoke
Laws to be more equitable towards the offending side, getting closer to the
Guiding Principle of "primarily designed not as punishment".

Eric Landau, May 2006:

>for claims, OTOH, where rulings depend on "the class of [the] player"
>making the claim, we sacrifice fairness for equity. Nigel would revise the
>laws to make them as "fair" as possible; Jeff Rubens has editorialized in
>favor of revising the laws to make them as "equitable" as possible.
>Whether we favor one or the other, or prefer to continue to "muddle
>down the middle", we should understand the difference.


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