Private law oils the wheels of society

By Legal Eagle

Since I’ve become an academic, I’ve become aware of an insidious belief. It is this: study of private law is just not sexy. I’m thinking here of contract, tort, restitution, property law and trusts. Such subjects are compulsory in undergraduate years, which never makes them look appealing. Equitable doctrines are probably the closest private law gets to “sexy”. But students still flock to international law and human rights subjects when they can make a choice. Perhaps I’m neurotic – but then I think of the fact that I am one of the very few people at my institution doing a PhD thesis in private law says something. I’ve been mulling over it for the last few weeks since I went to my private law conference…

Perhaps private law does not seem as important as other areas of law in the eyes of students. It doesn’t usually deal with life and death, incarceration, wars or international disputes. It doesn’t deal with the power of the State against the individual (unless the State is acting in its capacity as another individual). Importantly, perhaps, for those who want to “make a difference”, it doesn’t purport to save the world. Its principal role is simply to resolve disputes between private individuals.

However, I wish to rebut the above notions. I think private law is very important and interesting. It is an area of law which affects us all each and every day of our lives in a myriad of ways which we don’t even notice (unless things go wrong). It is the grease which oils the wheels of society. If the law of contract suddenly disappeared, we’d be lost, as we enter into multiple contracts every day (even that ticket you bought to get on the bus is a contract). If the law of property and tort no longer existed, someone would be able to come and drive your car away, and you would not be able to do anything about getting it back, even if you could use the criminal law to gaol that person.

Private law gives people important rights. Sometimes, it distresses me that some are prepared to run roughshod over those rights. I wrote a few weeks ago of the dispute my friends had with the builder of their new house. Through reading the contract, I was able to confirm their belief that the builder had no right to demand the money for the house before having done the various things he needed to do according to the contract (and indeed, as it transpired, the house hadn’t been properly completed, so it was lucky they resisted his demands). The thing that worries me is that I can perfectly well imagine a scenario where the home owners did not have a lawyer friend living around the corner or the confidence to stand up to bullying, and they would have been ripped off and left with an unfinished and unsatisfactory house.

During my years as a court clerk, I often witnessed firsthand how important private rights are to people. Many of the most difficult to handle cases involved litigants in person (ie, people who could not afford or did not want proper legal representation). The facts of the cases themselves were not often difficult. Indeed, they were often clear cut (eg, person defaulted on mortgage, bank attempted to repossess house, person resisted attempt to repossess). The difficulty came from the fact that often the litigant did not accept that the bank had a legal right to take their house if they defaulted on their loan. They came to court with extraordinary conspiracy theories involving the invalidity of the Constitution, Freemasons, references to the Magna Carta and the Bill of Rights. Woebetide any person (judge or otherwise) who attempted to disabuse them of their conspiracy theory. All I can conclude is that in some cases, taking away a person’s house or farm is something which goes so much to the core of their being that the attempt to take it makes them irrational and prone to use any excuse to resist repossession. My experience as a banking litigator acting for lenders has confirmed this impression tenfold. So private law rights can go to the core of a person’s identity, and losing those rights can affect a person very badly.

One of the things which created my disillusion with public international law was the realisation that many (if not all) countries totally ignore international law obligations when it is in their interests to do so. I cannot imagine anything more disheartening. Private law may “only” deal with private individuals, but at least the law with which I deal generally has an enforceable and real effect on society. I must confess that I find human rights law even more depressing than public international law: all these fine ideals, but so often the genocide has already been perpetrated or the political opponents have already been tortured, and the international community can’t do anything about it. Of course it’s an important area of study and interest: but personally, I couldn’t handle the potential for lack of practical impact.

I do think private law can “make a difference”, even though it might not seem like it at first. It doesn’t look flashy or exotic, but it is something that affects us all each and every day of our lives, whether we are aware of it or not. If doesn’t work properly, it can impinge on our indivdual rights with catastrophic effects. Bad private laws affect society generally in a negative way. It is also something which is enforceable and has practical ramifications for all in society. Therefore, I consider that the study, understanding and practice of private law is just as essential and exciting as any other area of the law, even if it doesn’t appear so at first. Hopefully my enthusiasm will convince a few of my students of this!

20 Comments

  1. Martin
    Posted August 4, 2008 at 9:51 pm | Permalink

    You’re absolutely correct, for most people, private law is much more important to their actual lives than international law or human rights law, but the big problem with private law is that it is completely unaffordable. As an example, my sister in law was parked at traffic light, the car behind was hit by a speeding moron, which then smashed into her rear, she then catapulted into the guy in front, who then went in to the back of the guy at the front. The person who caused it all, then drove off, but not before people got the number plate.

    Police visit the owner of the car, who claims it was rented out at that time to someone and he doesn’t know who they were. Police do nothing more. Person who ran into her back has no insurance. She only has 3rd party property, so she is covered for the damage she did, she is a minimum wage 18 year old at the time. Car is only worth $2,000 dollars.

    So, basically private law is useless to her, the costs of trying to do anything legally far outweigh the possible benefits, and I think this is a very common situation, private law is important for all the reasons you state, but it is just not accessible in the great majority of situations for the general run of the population.

    Now if you can do something about that, that would be a great addition to private law.

  2. saint
    Posted August 5, 2008 at 5:35 am | Permalink

    It’s refreshing to find a lawyer with your attitude L.E., although like Martin, I wish the law was more “accessibile”.

    I have my doubts about human rights law for the reasons you present but also because I think, most people don’t understand the foundations of human rights, nor share its foundational values. Sometimes humans rights lawyers actively act against human rights IMHO. I sometimes wish I had enough time, background and ability to challenge some of them!

  3. pete m
    Posted August 5, 2008 at 7:22 am | Permalink

    Martin:

    1. your sisterinlaw could have had full insurance;

    2. you blame the law for the situation caused as a result of police inaction – what the …

    3. small claims tribunals are cheap and their decisions can be registered in court as a real judgment and pursued.

    4. what were her repair costs? Even as a wreck, she’d get a few hundred.

    5. she may have a claim on the vehicle behind her – if that 1 is insured, then no need for Court action.

    Lastly, I agree justice can be expensive, but it is usually only so because there are people out there who are arseholes, and all the laws and perfect justice system will never change that.

    Re LE’s point, I deal in private law every day, and couldn’t give a fig about those trendy laws the students seem to think will change the world. When they graduate and learn that jobs in those trendy laws are about 5% of the market, I think they too will learn to appreciate our very important private laws.

    Tort law is also underestimated in the effect it has had on society (and I mean positive here!!). When my little girl plays on the plastic slide with hidden bolts at the park, I can’t help but think of the old metal slides we played on as kids, and the story of a pub which placed rubber tires and bricks at the base of 1 slide, only for the inevitable to happen. We thankfully have moved a long way from there, without stopping kids having fun.

  4. Martin
    Posted August 5, 2008 at 1:47 pm | Permalink

    Legal Eagle,

    at the time she looked into Legal Aid and looked for other options, there didn’t seem to be any at the time.

    The cost of law really is the major issue for private law in my opinion. I think you can find endless cases where people don’t pursue completely valid claims just because of the cost.

    Another friend was completely ripped off by another business person for $12,000. Legal advice which cost him about $2,000 was to try threatening legal action and if that didn’t work then to give up, as 1) there was a chance he would lose and 2) even if he won, he wouldn’t be awarded costs, so that would chew up most of the $12,000. So even when you can afford to go to a lawyer, it still probably won’t be worth it. Fortunately the threat worked to the extent that he ended up getting about half his money.

    Another pair of friends got in to a domestic argument with a person who lived in their block of flats. It cost thes several thousand in legal fees, as he kept taking them to the Magistrate’s Court. he just happened to be a lawyer, so he could run the case for himself in his own time for free.

    Back when I was very young and had just got my license, I accidentally backed into a women’s car as I was leaving a parking spot. A minor bingle, she got quotes, I decided not to use my insurance and just pay it. I go around to her house and give her the cheque. She is astonished and over the top grateful, I don’t understand why, I damaged her car, I was in the wrong. turns out, some other idiot had wiped out her other car, and she and her husband had been going through the courts trying to get him to pay up, winning at every point, but he just kept evading paying up. You could tell how relieved she was that I just paid up.

    I know other stories, go out and ask any random person, people get into civil situations where they are in the right but the cost of the law is such that it is impossible or not worth pursuing those rights. This is not a good situation for a democratic society to be in.

  5. Martin
    Posted August 5, 2008 at 2:14 pm | Permalink

    Pete

    >1. your sisterinlaw could have had full insurance;

    As I said, 18 year old in a minimum wage job, needed car for work, did the right thing and got 3rd party property, couldn’t possibly afford full insurance. As well this is blame the victim thinking, if you had done something to mitigate the problem, then the fact that I did something bad to you wouldn’t have happened. That is not justice and not defensible in my mind as a policy. We must have compulsory full insurance, just in case someone might be an idiot.

    >2. you blame the law for the situation caused as a result of police inaction – what the …

    Police investigated, decided that it was not a criminal matter or that there wasn’t enough evidence to sustain a criminal proceeding. It’s not the job of the police to enforce/investigate civil cases. Now whether that was a good idea or not, who knows, maybe there wasn’t enough evidence, maybe he wasn’t lying, my sister-in-law was in no position to tell, neither are you. Regardless, she was left with the situation that her only recourse was to use private law, an option that was basically inaccessible. Even if we accept that the police stuffed up, the fact that one part of the system is stuffed, does not excuse another part of the system from being f……ed up as you so eloquently put it.

    >3. small claims tribunals are cheap and their decisions can be registered in court as a real judgment and pursued.

    yes, and claims in Victoria in the Small Claims Tribunal are brought under the Fair Trading Act, and car accidents don’t fall under the Fair Trading Act, so not an option in this case.

    >4. what were her repair costs? Even as a wreck, she’d get a few hundred.

    And she should be happy that her $2,000 car got $200 or so from a wrecker. The car was a write-off, she didn’t have the extra $1800 top replace it. Relevance of this comment?

    5. she may have a claim on the vehicle behind her – if that 1 is insured, then no need for Court action.

    > She did have a claim as I said, but as I also said, he was uninsured, so only option is Court action.

    >Lastly, I agree justice can be expensive, but it is usually only so because there are people out there who are arseholes, and all the laws and perfect justice system will never change that.

    If you want to make the argument, that 3rd party property damage should be made compulsory in order to cover the inaccessibility of private law, I would be all for that, but you seem to be saying, it’s all her fault and it wasn’t too bad anyway. I can tell you for an 18 year old it was pretty traumatic and the fact that she bore all the loss in her situation, including having her insurance rating downgraded didn’t help at all. Surely you are not saying the system can’t be improved and we live in the best of all legal worlds?

    Why is law so expensive, well one of the reasons is that lawyers run a closed shop and we know that the closed shop is pretty lucrative. Law courses don’t need ENTERs of 99 to get in to just because all the really smart kids in the land have this deep and abiding love of the law and justice. Many of them don’t need you to tell them that trendy law is just 5% of the market, they are well and truly aware that the money is in commercial law. They are also aware that the law is one of the best routes to power in our society, as witnessed by the number of lawyers in Parliament.

    The law being a closed shop is not necessarily a bad thing, just like medicine clearly shouldn’t be an open shop. The legal profession needs to maintain certain standards, I would just question how tightly closed the doors are to the profession.

  6. pete m
    Posted August 5, 2008 at 2:33 pm | Permalink

    Martin

    The points I made were looking at alternatives, not an answer to all of the case or your whole point on access to justice.

    I have seen many people ripped off by someone not being insured, and consider full insurance as part of your rego to be a worthwhile initiative.

    The Vict tribunal could use some jurisdiction widening – write to your local member / Minister.

    Lawyers don’t run a closed shop re Court work. Anyone can appear in Court as a “next friend” for a party. The issue becomes if you want to charge for that work. Now lawyers have compulsory insurance (irony – see above) protecting consumers. If people could do appearances and charge without being lawyers, they would not necessarily be insured, and what would the quality of their representation be? Who would you turn to for complaints?

    I have been on the worng end of trying to clean up messes caused by people acting for themselves, or worse, having a bush lawyer act for them, to see how badly an untrained person can wreck a case.

    Re entry qualifications – law is actually pretty low compared to other professions, like dentistry, vet science and medicine, and I have had 2 pa’s, 1 of whom hadn’t even completed senior schooling, go through the system and become qualified lawyers. Given there are thousands upon thousnads of graduates each year, I just don’t see adding thousands more as solving this issue.

    Why is justice expensive?

    I just completed a 54 page affidavit with 467 pages of exhibits dealing with 1 legal dispute over a lease, which covered a period of 7 years of events, costing my client easily $20,000 in legal costs just to do this 1 document, but most importantly, to get it right. We went through dozens of re-drafts to the point I felt ill even perusing the final drafts for miscellaneous typos. Sadly although my client is in the right (yeah!), she has to spend this on legals to save her business from a pretty harsh landlord. We’ll get there in the end, but to present this case to Court and really home in on the gist of the case has required this effort.

    I have seen tribunals with all their informality make crazy decisions, while a judge taking proper evidence, considering the material and receiving legal submissions from both sides, usually gets it right.

    I don’t know the answer to making access to law affordable. I do know the often suggested tribunals rapidly become bogged down just like a normal Court.

  7. Nanu
    Posted August 5, 2008 at 2:58 pm | Permalink

    L.E. –

    Sounds like someone is try to convince themselves why they should be excited about their chosen subject! 🙂

    Nice post! I think it is sexy to a lot of people, why else are dumb programs like Judge Judy/ Peoples Court popular. Okay the world isn’t saved but the little guy has a chance. Unfortunately, due to its lack of immediate sex appeal, too many law students just do enough to get by and their future clients often suffer as a result.

  8. Jacques Chester
    Posted August 5, 2008 at 6:56 pm | Permalink

    I must have been the odd man out, then. I found contract, property, equity and trusts to be my favourites apart from constitutional law.

    If I could engage in some regulation strawman-bashing, I’d say that as a libertarian I find property and common contract to be beautiful and important things in and of themselves. Human rights law too often becomes statist in content and character.

  9. dover_beach
    Posted August 5, 2008 at 8:17 pm | Permalink

    LE, I’m not sure if you come across the legal theorist, Ernest Weinrib before, but you should read his book , The Idea of Private Law (1995). Few people have made private law so philosophically interesting. I understand he is also an expert on tort law.

    See also here:

    http://www.law.utoronto.ca/faculty_content.asp?itemPath=1/3/4/0/0&profile=59&cType=facMembers

  10. Martin
    Posted August 5, 2008 at 10:05 pm | Permalink

    Pete,

    fair enough, it didn’t really come across that way, but at the time when we looked in to what we could do, there didn’t seem to be any real alternatives for her, apart from spending more money on lawyers (which she didn’t have ) than the car was worth.

    In terms of ENTER scores, Law is way up there, nothing is higher than Law, a few courses like the ones you picked are similar. Here are the 2008 scores:

    Law La Trobe 98.20
    Law Monash 99.05
    Law Melbourne 99.45
    Dentistry Latrobe, 98.80
    Vet science Melbourne 98.95

    When you are talking an ENTER of 99, you are talking very high demand to get in to a degree, this is the real elite of our Y12 students. This tells you that there is a real demand for Law. Medicine is also lucrative in general and highly prestigious, dentistry year after year has the highest graduate salaries, vets do pretty well and there is that whole love of animals thing, note also that the number of places for dentistry and vet science is far smaller than the number of places for Law, so when you realise that an ENTER score is a purely supply/demand driven measure, that tells you something even more about Law. I’m not convinced that this is driven by students wanting to be Horace Rumpole and unconcerned about power, prestige and money . Though I guess the LA Law, Boston Legal, Law and Order etc stuff does impart some level of glamour to the profession.

    Never wanted to imply that Law should be an open profession, but maybe there should be lower levels of qualification with correspondingly lower levels of cost, though the idea of Lexicare has a certain appeal. I wouldn’t want to see open courts, but it’s not necessarily a choice between the current monopoly and allowing anyone to represent people in court. We could have legal technicians who are licensed to deal with smaller/less complex cases, who have the relevant insurance.

    If the only people who are allowed to charge to represent people in Court are lawyers, then by any practical definition that is a closed shop.

    I don’t underestimate how complex a job understanding the law is, your story about the document is just insane of course, though it sounds like you earned your $20,000. To me, however, it just goes to show how broken the system is, that such an effort is necessary. Of course I have no real idea how to fix it, surely someone in the legal profession has some idea, maybe it’s like democracy, the worst system except for all the others, I hope not.

  11. Martin
    Posted August 5, 2008 at 10:20 pm | Permalink

    Legal Eagle,

    just a bit before I got my car license, a friend managed to run into a Mercedes and do $25,000 worth of damage (back in the early eighties), so I never made the mistake of not having third party property insurance. I agree completely that it should be part of the registration, the same as third party personal insurance.

    I’m well aware that not all lawyers have the house in Toorak, holiday home at Portsea etc. as I understand it, it can be even quite difficult to get articles, but the chances of ending up rich or powerful are significantly greater for a student who does a law degree than pretty much any other degree. As well the risk in being a lawyer is pretty small, if you are very bright (which by definition lawyers are), hardworking (if you got a 99 ENTER, you are either hardworking or a genius), prepared to put in the energy and prepared to work in commercial law, you will at worst end up very well off and possibly rich and powerful. It’s not like going out and setting up a startup company, where you may end up rich or you may end up broke and the odds are on you going broke. Working your butt off to make you rich is true for every job (except Tattslotto winner) and there are lots of professions where just playing the game will not make you rich regardless of how hard you work. I guess what I’m trying to say that given a person of equal merit, you are more likely to do very well in law than in most, if not all, other professions.

  12. Posted August 6, 2008 at 5:46 am | Permalink

    The closed shop point is a fair one – and one Milton Friedman made years ago. I do think some access issues could be remedied by permitting contingency fees (as in the US) and allowing tax deductibility for private law pro-bono work. Part of the statist impulse to regulate everything comes about thanks to certain matters not being dealt with in appropriate fora (ie the courts), so the state steps in without anything resembling evidence on which it can reasonably act.

  13. Posted August 6, 2008 at 8:44 am | Permalink

    To comment on the original topic of the post: one of my property lecturers (a particularly smart guy, Robert Ellickson) told his property course students that if you wanted to save the world, or have a real impact on peoples’ lives, you should get interested in property law, because unjust property laws affected a lot more people than human rights law ever did. You may be right that it doesn’t seem sexy, but that’s often because it’s hard to see the bigger picture…

  14. dover_beach
    Posted August 6, 2008 at 12:24 pm | Permalink

    LE, you can tell I’m an infrequent visitor. Eagerly reading your post now.

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