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An examination of contemporary encounters between public law and private law from both theoretical and practical perspectives.
This collection contributes to a fundamentally important set of debates about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship. They explore the relationship between the pursuit of policy goals and the other influences that shape private law, such as the formal values of certainty, consistency and coherence and the need to do justice to the parties to particular disputes. The collection analyses the role that particular policy goals do and should play in particular private law doctrines, and contributes to debate about the relationship between community welfare goals and considerations of interpersonal morality arising from the interactions between individuals. The contributors are drawn from across the common law world and offer a diverse range of perspectives on the controversies under consideration.
In 2015, the United Nations formulated 17 ambitious goals towards transforming our world - the Sustainable Development Goals (SDG 2030). Their relation to public international law has been studied, but private law has received less attention in this context and private international law none at all. Yet development happens - not only through public action but also through private action, and such action is governed predominantly by private law and private international law. This book demonstrates an important, constructive role for private international law as an indispensable part of the global legal architecture needed to turn the SDGs into reality. Renowned and upcoming scholars from around the world analyse, for each of the 17 SDGs, what role private international law actually plays towards these goals and how private international law could, or should, be reformed to advance them. Together, the chapters in the book bring to the fore the hitherto lacking private side of transforming our world.
This collection contributes to a fundamentally important set of debates about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship. They explore the relationship between the pursuit of policy goals and the other influences that shape private law, such as the formal values of certainty, consistency and coherence and the need to do justice to the parties to particular disputes. The collection analyses the role that particular policy goals do and should play in particular private law doctrines, and contributes to debate about the relationship between community welfare goals and considerations of interpersonal morality arising from the interactions between individuals. The contributors are drawn from across the common law world and offer a diverse range of perspectives on the controversies under consideration.
Class action lawsuits--allowing one or a few plaintiffs to represent many who seek redress--have long been controversial. The current controversy, centered on lawsuits for money damages, is characterized by sharp disagreement among stakeholders about the kinds of suits being filed, whether plaintiffs' claims are meritorious, and whether resolutions to class actions are fair or socially desirable. Ultimately, these concerns lead many to wonder, Are class actions worth their costs to society and to business? Do they do more harm than good? To describe the landscape of current damage class action litigation, elucidate problems, and identify solutions, the RAND Institute for Civil Justice conducted a study using qualitative and quantitative research methods. The researchers concluded that the controversy over damage class actions has proven intractable because it implicates deeply held but sharply contested ideological views among stakeholders. Nevertheless, many of the political antagonists agree that class action practices merit improvement. The authors argue that both practices and outcomes could be substantially improved if more judges would supervise class action litigation more actively and scrutinize proposed settlements and fee awards more carefully. Educating and empowering judges to take more responsibility for case outcomes--and ensuring that they have the resources to do so--can help the civil justice system achieve a better balance between the public goals of class actions and the private interests that drive them.
"Revised edition with new preface first published 2012"--Title page verso.
In recent years a strand of thinking has developed in private law scholarship which has come to be known as 'rights' or 'rights-based' analysis. Rights analysis seeks to develop an understanding of private law obligations that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by other influences on private law, such as the pursuit of community welfare goals. Notions of rights are also assuming greater importance in private law in other respects. Human rights instruments are having an increasing influence on private law doctrines. And in the law of unjust enrichment, an important debate has recently begun on the relationship between restitution of rights and restitution of value. This collection is a significant contribution to debate about the role of rights in private law. It includes essays by leading private law scholars addressing fundamental questions about the role of rights in private law as a whole and within particular areas of private law. The collection includes contributions by advocates and critics of rights-based approaches and provides a thorough and balanced analysis of the relationship between rights and private law.
This publication aims at establishing a clear analysis of the nature and growth of the C-factor (C for constitutionalisation) in Germany, France, the UK and The Netherlands.
This timely book explores the relationship between private law and globalization. It examines the consequences of the fact that law making now takes place in a globalized world which increasingly leads to questions of accountability and legitimacy of the law making process. Within this work, European and South African scholars deal with the relationship between private law and globalization in fourteen innovative chapters, addressing inter alia globalization, democracy and accountability, harmonization versus decentralization, public law issues, corporate governance, procedural issues as well as human rights and the environment. This well-documented and original study will be a valuable resource for academics and legal practitioners as well as students. Specialists in private law, transnational law, international law and legal theory should also not be without this important book.
This book is a collection of papers that address a fundamental question: What is the role of civil justice and civil procedure in the various national traditions in the contemporary world? The book presents striking differences among a range of countries and legal traditions, but also points to common trends and open issues. It brings together prominent experts, professionals and scholars from both civil and common law jurisdictions. It represents all main legal traditions ranging from Europe (Germanic and Romanic countries, Scandinavia, ex-Socialist countries) and Russia to the Americas (North and South) and China (Mainland and Hong Kong). While addressing the main issue – the goals of civil justice – the book discusses the most topical concerns regarding the functioning and efficiency of national systems of civil justice. These include concerns such as finding the appropriate balance between accurate fact-finding and the right to a fair trial within a reasonable time, the processing of hard cases and the function of civil justice as a specific public service. In the mosaic of contrasts and oppositions special place is devoted to the continuing battle between the individualistic/liberal approach and the collectivist/paternalistic approach – the battle in which, seemingly, paternalistic tendencies regain momentum in a number of contemporary justice systems.