1ª Edición, Enero 2017
Bloomsbury / HART Publishing
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.
Part I: Agendas and Predictions
1. Private Law as a Complex System: Agendas for the Twenty-First Century
2. Challenges for Private Law in the Twenty-First Century
3. Rationalising Tort Law for the Twenty-First Century
4. The Challenges of Private Law: A Research Agenda for an Autonomy-Based Private Law
5. 'The Steaming Lungs of a Pigeon': Predicting the Direction of Australian Contract Law in the Next 25 Years
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
7. Power Failure? The Distracting Effect of Legislation on Common Law Torts
8. Constructive Trusteeship: The Perils of Statutory Formulae
Part III: Complex Systems and Interactions
9. Fusing the Equitable Function in Private Law
Henry E Smith
10. Dealing with Complexity: Different Approaches to Explaining Accessory Liability
11. The Challenges Presented by Fundamental Rights to Private Law
12. The Limits of Technocracy: Private Law's Future in the Regulatory State
TT Arvind and Joanna Gray
13. Common Law and the Constraint of Financial Markets: Credit Rating Agencies as a Test Case
Joshua Getzler and Alexandra Whelan
14. Apologies as 'Canaries'-Tortious Liability in Negligence and Insurance in the Twenty-First Century
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 and Annick Maujean
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
17. Vindicatory Damages
18. Persuasive Technologies: From Loss of Privacy to Loss of Autonomy
19. Snooping: How Should Damages be Assessed for Harmless Breaches of Privacy?
20. Compensating Injury to Autonomy: A Conceptual and Normative Analysis
21. Matter over Mind: Tort Law's Treatment of Emotional Injury
Anne Schuurman and Zoë Sinel
22. The Interaction Between Defamation and Privacy
23. Making Amends by Apologising for Defamatory Publications: Developments in the Twenty-First Century
Robyn Carroll and Jeffrey Berryman
Part V: Process Challenges and the Privatisation of Justice
24. Tort and Neo-liberalism
25. Reforming Australian Litigation Lawyers: Educational Impacts of Civil Procedural Laws and Judicial Activism
26. Private Law in the Age of the 'Vanishing Trial'
Carlo Vittorio Giabardo