Private Law: Inside and Out

^{Obligations XI convenors: Havard Law School’s Morgan and Helen Chu Dean and Professor of Law, John Goldberg;  Professor Andrew Robertson of MLS; and Harvard’s Fessenden Professor of Law Henry Smith.
Photography: Martha Stewart}

Melbourne Law School partnered with Harvard Law School this July to co-host Obligations XI, the Eleventh Biennial Conference on the Law of Obligations, as part of the Obligations Conference Series.

The Series, established at MLS in 2002 by Professor Andrew Robertson, brings together scholars and practitioners from across the common law world to discuss current issues in contract law, the law of torts, equity, unjust enrichment, and private law theory.

Obligations XI was co-convened by John Goldberg (Havard Law School’s Morgan and Helen Chu Dean and Professor of Law), Professor Robertson, and Henry Smith (Harvard’s Fessenden Professor of Law). It was the first conference in the series to be held in the United States. The four-day event featured more than 100 papers and presentations on the theme of ‘Private Law: Inside and Out’, which focused attention on the boundaries and relationships between private law and economics, private law and morality, and private law and public policy. Speakers included Melbourne Law School Professors Jeannie Paterson and Katy Barnett and Associate Professor Lisa Sarmas, along with legal scholars from the United Kingdom, Ireland, Canada, New Zealand, Hong Kong, Singapore, South Africa, Israel, Germany, Denmark, Chile and the United States.

Since 2022, MLS has co-hosted Obligations conferences around the world, including at the National University of Singapore, the University of Hong Kong and the Universities of Oxford and Cambridge. In 2023 the conference was held in Banff, Canada. A collection of papers from that conference was published on the theme of Private Law and the State.

At Obligations XI, one of the highlights was a panel in which judges from different common law countries reflected on the work of their courts in dealing with novel issues in private law. Panellists included The Honourable Justice Julie Ward, President of the New South Wales Court of Appeal, and Sir Stephen Kós, Justice of the New Zealand Supreme Court, along with Guido Calabresi, Judge of United States Court of Appeals for the Second Circuit, and Laura Stith of the Missouri Supreme Court.

A resounding success of the conference was also a discussion of Judge Guido Calabresi’s classic work of tort theory, The Costs of Accidents: A Legal and Economic Analysis. Calabresi’s book aimed to draw attention to the ‘public’ dimension of tort law in creating incentives to reduce accidents, alongside its ‘private’ dimension in doing justice in individual cases. A recording of the panel discussion is available on YouTube. The conference was originally scheduled to be held in July 2020, and would have coincided with the 50th anniversary of the publication of Calabresi’s landmark book had the COVID-19 pandemic not intervened. The organisers were delighted that Judge Calabresi — who at age 92 is still sitting as a Judge of the United States Court of Appeals — was able to attend and participate in the conference. Reflecting on the conference theme, Judge Calabresi observed that: ‘All law is both public and private, and it is nonsense not to think of it as both.’ He continued:

If you say that torts is private, then somebody has to talk about the sum of the accident costs and their avoidance, and what that does in the world. Similarly, when people say it’s only public, then somebody has to talk about what happens in an individual case when you have individual people before you.

In the closing session of the conference, Dean Goldberg and Professor Robertson offered some reflections on the conference, along with Dame Sarah Worthington (LLM 1990), Downing Professor Emeritus of the Laws of England at the University of Cambridge and Professor of Law at the LSE. Professor Robertson discussed some of the ways in which the inside/outside metaphor had been used at the conference to illuminate different issues in private law. He also discussed the unstable nature of the boundary between what lies inside and what lies outside private law. In her closing remarks, Dame Sarah observed that the Obligations conference series is ‘the best private law conference in the world’. She said that was significantly attributable to the fact that each conference theme makes participants think about the law in a different way:

I think lots of you, like me, will find that each time you’re made to do that, you think very, very profitably about your own work through a different framework and a different lens. So each time I’ve spoken at these conferences, that’s happened. And I can almost track on my cv the leaps in my thinking, my intellectual development, that’s been stimulated by these conferences. That’s special, and that’s unique.