Category Archives: Remedies and Procedure

Mittlaender, Planck and Buskens, ‘Retaliation, Remedies, and Contracts’

ABSTRACT Contracts commit individuals to a future course of action and create feelings of entitlement on the parties. In a contractual gap, parties’ duties and rights are not univocal, and while promisors will often feel entitled to breach, promisees will feel entitled to receive the promised performance. This divergence leads to disputes, aggrievement, and retaliatory […]

‘Making Punitive Damages More Predictable’

Benjamin J McMichael and W Kip Viscusi, Taming Blockbuster Punitive Damages Awards, 2019 University of Illinois Law Review 171. As tort reform heated up in the United States late in the last century, so too did the debate over the appropriateness of punitive damages awards, especially where those damages were seen to be excessive. Complicating […]

‘What Lawyers Can Learn from Their Mistakes: An Empirical Examination of Legal Malpractice’

Herbert M Kritzer and Neil Vidmar, When Lawyers Screw Up: Improving Access to Justice for Legal Malpractice Victims (2018). All lawyers in private practice must recognize the possibility of opening a summons and seeing their names listed as defendants. Many private practitioners are more concerned about malpractice than professional discipline. The Preface to the Restatement […]

Dov Fox, ‘Redressing Future Losses’

ABSTRACT Prominent scholars argue that tort law redresses only those things that people had before they were wrongfully injured. This standard view holds that torts are just for harms to ‘the house that the potential plaintiff already lives in’, or the ‘work she already does’, or the ‘peace and quiet she has already found’. Torts […]

Call for Papers: ‘State Accountability under Private, Public, and International Law’: London School of Economics and Political Science, 9 November 2019

The accountability of states for unlawful actions they commit or wrongful losses they inflict presents theoretical and practical challenges. For instance, the applicability of certain doctrines is contested; the line between a wrongful or unlawful action, and a permitted one, can be blurry; and procedural hurdles can frustrate potential claims. This conference, which will be […]

Paul Strickland, ‘The Market For Torts: An Imperfect Alternative’

ABSTRACT This Note applies the theory of comparative institutional analysis to evaluate the trade-offs from permitting the assignability of personal injury tort claims and the sanctioning of markets in such claims. I assess the trade-offs for three aspects of the tort system: compensation for victims, deterrence of inefficient risk-taking, and judicial economy. I outline the […]

‘Section 9 Defamation Act 2013: a difficult burden for Claimants to discharge’

“The decision of Mr Justice Nicklin in Craig Wright v Roger Ver ([2019] EWHC 2094 (QB)) confirms the high hurdle that a claimant must overcome in a defamation case where section 9 of the Defamation Act 2013 applies. Where a defendant in a libel claim is not domiciled in the United Kingdom, another Member State […]

Bravo-Hurtado and Álvaro, ‘Explaining Difference in the Quantity of Cases Heard by Courts of Last Resort’

ABSTRACT While civil law courts of last resort – eg, cassation courts in France, Italy, and Chile – review up to 90% of appealed cases, common law courts of last resort – eg, supreme courts of the United States, United Kingdom, and Canada – hear as few as 1% of the same petitions. In this […]

Eldridge and Pilkington, ‘Before the High Court – Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd

ABSTRACT Should a claimant be entitled to maintain a claim for restitution in respect of work carried out under a contract that is subsequently discharged for breach or repudiation? Should the claimant instead be limited to a contractual claim for damages? If a claim for restitution is maintainable in these circumstances, should the contract price […]

Kit Barker, ‘Apportionment in Private Law: Nothing, All, or Something in Between?’

ABSTRACT In modern private law, there has been a clear trend in recent years away from ‘all or nothing’ solutions to questions of legal responsibility toward solutions which attempt to divide responsibility for harm between multiple parties. This shift is in some instances the product of more subtle intuitions about relative moral responsibility, but it […]