Category Archives: Remedies

Joanna Manning, ‘Does the Law on Compensation for Research-Related Injury in the UK, Australia, and New Zealand Meet Ethical Requirements?’

Abstract: Despite a consensus that society owes an ethical obligation to compensate for research-related injury, and that no-fault is the best ethical response, an assessment of the compensation arrangements in place in the UK, Australia and New Zealand shows that in general compensation arrangements fall below this ethical expectation. Most subjects rely on ex gratia […]

Brian Fitzpatrick, ‘Do Class Actions Deter Wrongdoing?’

Abstract: I and other scholars have long pointed to the deterrence virtue of the class action to justify its existence even when it was doubtful that it furthered its other purposes, such as compensation or litigation efficiency. In recent years, critics have argued that class actions may not offer even this virtue. Some argue that […]

Louis Kaplow, ‘Optimal Design of Private Litigation’

Abstract: This article translates and extends Becker (1968) from public law enforcement to private litigation by examining optimal legal system design in a model with private suits, signals of case strength, court error, and two types of primary behavior: harmful acts that may be deterred and benign acts that may be chilled. The instruments examined […]

Leon Anidjar, ‘Globalization of the Law of Specific Performance in Contracts: Israel as a Case Study’

Abstract: This article discusses the regulation of specific performance in the law of contract around the world, focusing on Israeli law. The relevant law of continental European and Anglo-American jurisdictions in general and the application thereof to contracts in particular are separate and distinct. It is generally believed that Anglo-American and continental legal systems have […]

Paula Giliker, ‘A Revolution in Vicarious Liability: Lister, the Catholic Child Welfare Society Case and Beyond’

Abstract: This paper examines developments in vicarious liability in England and Wales and the extent to which revelations of child sexual abuse have triggered fundamental changes to private law. Starting with Lister v Hesley Hall [2001] UKHL 22, it considers how the law has changed, but also critically appraises the development of a ‘modern theory […]

Abbe Gluck, ‘Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure’

Abstract: Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old-but-new procedural tool that significantly disrupts decades of worked-out doctrinal equilibria – and, now comprising a shocking 40% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism […]

Alex Kaiserman, ‘Partial Liability’

Abstract: In most cases, liability in tort law is all-or-nothing – a defendant is either fully liable or not at all liable for a claimant’s loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant’s loss only to the degree to […]

Catherine Piché, ‘The Value of Class Actions’

Abstract: In this paper, I will address the value of the class action procedure, both theoretically and empirically. It will attempt to clarify Canada’s supposed ‘littlest secret’, which is that while class actions represent a significant part of our court activities, they may not truly be compensating our citizens. We are witnessing a ‘wealth’ of […]

Andrew Higgins, ‘The Costs of Civil Justice and Who Pays?’

Abstract: This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court’s claim in Coventry v Lawrence (No 3) [2015] UKSC 50 that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in […]

James Henderson, ‘The Impropriety of Punitive Damages in Mass Torts’

Abstract: Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud […]