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2017 NZ Law Foundation Distinguished Visiting Fellow, Professor Stephen Sm...

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GBLT1, Rear Courtyard, Old Government Buildings

55 Lambton Quay

Wellington, Wellington 6011

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2017 New Zealand Law Foundation Distinguished Visiting Fellow

Private Law Remedies: Foundations, Scope, and Structure

Professor Stephen Smith
Faculty of Law, McGill University

This presentation will discuss the main ideas in a draft manuscript of a book of the same title. The book seeks to establish the existence of, and provide the intellectual foundations for, a body of law that has been largely unacknowledged, ignored, or misunderstood in the western legal tradition. Focusing primarily on the common law tradition and, within that tradition, on rulings dealing with private law disputes, the book addresses three main questions: (1) what, if anything, is distinctive about remedies; (2) what is the relationship between remedial law and substantive law; and (3) what, if any, general principles underlie remedy law? The book’s answers are, first, remedies provide distinctive reasons for action, in particular they provide reasons different from those provided by either rules or sanctions. Second, the relationship between remedial and substantive law is poorly understood, impoverishing our understanding of both. In particular, the common assumption that remedies confirm or rubber-stamp substantive rights is mistaken. Third, remedial law contains general principles; indeed, nearly the entirety of remedial law (including the rules governing both ‘legal’ and ‘equitable’ remedies) is underpinned by general principles. Taken together, these answers provide the foundation for an understanding of remedies that takes the concept of a remedy seriously, that asks directly about the relationship between remedies and substantive rights, and that explains remedial law in terms of general principles, not historical categories.

Stephen Smith is James McGill Professor at the Faculty of Law, McGill University, where he teaches primarily in the fields of private law (common and civil law) and legal theory. A former clerk to the then Chief Justice of the Supreme Court of Canada, Brian Dickson, Professor Smith is a graduate of Queen’s University (BA), the University of Toronto (LLM), and the University of Oxford (DCL). Professor Smith was a Fellow in Law at St. Anne’s College, Oxford from 1991-98 and has been a visiting professor at the Universities of Texas, Tel Aviv, Aix-Marseille, Singapore, and Queensland. His research is mainly in the areas of private law and private law theory. He is the author of Contract Theory (2004, OUP) and co-author of Atiyah’s Introduction to the Law of Contract, 6th ed. (2005, OUP). Professor Smith was the recipient of a Killam Fellowship for 2009-2011; he is currently writing a book on private law remedies.

This lecture is made possible by the support of The New Zealand Law Foundation.

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GBLT1, Rear Courtyard, Old Government Buildings

55 Lambton Quay

Wellington, Wellington 6011

New Zealand

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