Kit Barker

Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are Right

This piece suggests and defends the development of a separate remedial agenda in unjust enrichment law, such that remedial principles are developed alongside those governing a plaintiffs restitutionary cause of action. It identifies a number of important remedial questions arising in unjust enrichment cases, explains why the development of general remedial principles is still at an embryonic stage and suggest a way in which the relationship between restitutionary rights and remedies can be understood in unjust enrichment law in a way that is constructive, coherent and illuminating.

Private Law: Key Encounters with Public Law

The relationship between private and public law and policy has long been the focus of critical attention, but recent years have seen the intensification of a significant number of ‘public’ pressures on private law. These have taken the form of the growing influences of statutory intervention, public regulation, corporate globalisation, class actions and constitutional and international human rights norms. Such developments increasingly call into question the capacity of private law to operate in isolation from public law, public institutions and public policy goals. They invite a critical re-examination of the ways in which private and public law and the values and aims underpinning these fields relate to each other. This piece provides a thematic overview and critical analysis of a number of contributions to an edited work carrying the same title. One of the conclusions it reaches is that the challenges that private law faces in its relationship with public law and public policy take the form of a complex set of co-ordination problems. These relate to (1) the co-ordination of the interests of (‘private’) individuals are with those of groups and society as a whole; (2) the relative use of legislative (‘public’) and judicial techniques within private law itself; (3) the co-ordination of public (state) and private (market) resources in the initiation, funding and settlement of private law claims; (4) the co-ordination of the private laws of one state with those of others in the context of globalised markets; (5) the co-ordination of systems of private law rules with ‘public’ (state-run) welfare systems, such as social security, ‘compensation’ and ‘reparation’ schemes, as well as with ‘market’ mechanisms for dealing with risk and harm, such as first and third party insurance systems; and (6) the co-ordination of private law rules with public law rules, such as human rights provisions, administrative law rules and criminal provisions. These multiple co-ordination problems present practical as well as ideological challenges and they can only be resolved through the collective efforts of judges, legislators and policy-makers acting in a closer, more reflexive and reflective relationship of co-operation.

Designing reparation: lessons from private law

1 Professor, UNSW Law. 2 Professor, TC Beirne School of Law, University of Queensland. 3 Australian Government, Defence Abuse Response Taskforce: Amended Terms of Reference (November 2015), www.defenceabusetaskforce.gov.au/Aboutus/Documents/Amended-Terms-of-Reference.pdf (‘DART Terms of Reference’). DART comprises reparations payments, restorative engagement and an extensive counselling program. 4 Set out in Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) (‘2015 Report’). 5 See generally S Degeling and K Barker, ‘Private Law and Grave Historical Injustice: The Role of the Common Law’ (2015) 41 Monash University Law Review 377–413. Designing Reparation: Lessons from Private Law

DRIFTING TOWARDS PROPORTIONATE LIABILITY: ETHICS AND PRAGMATICS

This article investigates an apparent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers. This shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is in no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.