Private Law in the 21st Century

by Kit Barker, Karen Fairweather, Ross Grantham

Overview

This book brings together a wide range of contributors from across the common law world to identify and debate the principal moral and systemic challenges facing private law in the remaining part of the twenty-first century. The various contributions identify serious problems relating to complexity and overload, threats to research and education, the law's unintelligibility, the unsatisfactory nature of the law reform process and a general lack of public engagement. They consider the respective future roles of statutes, codes, and judge-made law (in the form of both common law and equitable rules). They consider how best to organise the private law system internally, and how to co-ordinate it externally with other public and economic systems (human rights, regulation, insurance markets and social security frameworks). They address the challenges for private law presented by new forms of technology, and by modern demands for the protection of new and intangible forms of moral interest, such as interests in privacy, 'vindication' and 'personal choice'. They also engage with the critical contemporary debates about access to, and the privatisation of, civil justice. The work is designed as a source of inspiration and reference for private lawyers, as well as legislators, policy-makers and students.

Product Details

ISBN-13:	9781509908585
Publisher:	Bloomsbury Academic
Publication date:	01/26/2017
Series:	Hart Studies in Private Law , #19
Pages:	624
Product dimensions:	6.69(w) x 9.61(h) x 1.31(d)

About the Author

Kit Barker is Professor of Law, Karen Fairweather is Associate Lecturer in Law and Ross Grantham is Professor of Law, all at the TC Beirne School of Law, The University of Queensland.

Table of Contents

Preface v

Acknowledgements vii

Table of Cases xiii

Table of Legislation xxxiii

Table of Contributors xliii

Part I Agendas and Predictions

1 Private Law as a Complex System: Agendas for the Twenty-First Century Kit Barker 3

2 Challenges for Private Law in the Twenty-First Century Andrew Burrows 29

3 Rationalising Tort Law for the Twenty-First Century Ken Oliphant 47

4 The Challenges of Private Law: A Research Agenda for an Autonomy-Based Private Law Hanoch Dagan 67

5 'The Steaming Lungs of a Pigeon': Predicting the Direction of Australian Contract Law in the Next 25 Years Warren Swain 89

Part II Legislation, Codification and the Role of the Common Law

6 Codification of Private Law: Scots Law at the Crossroads of Common and Civil law Martin A Hogg 107

7 Power Failure? The Distracting Effect of Legislation on Common Law Torts Wendy Bonython 131

8 Constructive Trusteeship: The Perils of Statutory Formulae Darryn Jensen 155

Part III Complex Systems and Interactions

9 Fusing the Equitable Function in Private Law Henry E Smith 173

10 Dealing with Complexity: Different Approaches to Explaining Accessory Liability Joachim Dietrich 197

11 The Challenges Presented by Fundamental Rights to Private Law Hugh Collins 213

12 The Limits of Technocracy: Private Law's Future in the Regulatory State TT Arvind Joanna Gray 237

13 Common Law and the Constraint of Financial Markets: Credit Rating Agencies as a Test Case Joshua Getzler Alexandra Whelan 257

14 Apologies as 'Canaries'-Tortious Liability in Negligence and Insurance in the Twenty-First Century Prue Vines 281

15 When Lump Sums Run Out: Disputes at the Borderlines of Tort Law, Injury Compensation and Social Security Genevieve Grant Kylie Burns Rosamund Harrington Prue Vines Elizabeth Kendall Annick Maujean 301

Part IV New Remedies, Technologies and Intangible Interests

16 'I'll Perform If and When You Do': Non-Performance and the Suspension of Contractual Duties Andrew Tettenborn 325

17 Vindicatory Damages James Edelman 343

18 Persuasive Technologies: From Loss of Privacy to Loss of Autonomy Eliza Mik 363

19 Snooping: How Should Damages be Assessed for Harmless Breaches of Privacy ? Erika Chamberlain 389

20 Compensating Injury to Autonomy: A Conceptual and Normative Analysis Tsachi Keren-Paz 411

21 Matter over Mind: Tort Law's Treatment of Emotional Injury Anne Schuurman Zoë Sinel 439

22 The Interaction Between Defamation and Privacy David Rolph 463

23 Making Amends by Apologising for Defamatory Publications: Developments in the Twenty-First Century Robyn Carroll Jeffrey Berryman 479

Part V Process Challenges and the Privatisation of Justice

24 Tort and Neo-liberalism Annette Morris 503

25 Reforming Australian Litigation Lawyers: Educational Impacts of Civil Procedural Laws and Judicial Activism Francesca Bartlett 527

26 Private Law in the Age of the 'Vanishing Trial' Carlo Vittorio Giabardo 547

Index 561