Category Archives: Remedies
Charlie Irvine, ‘The Proposed Apologies Act for Scotland: Good Intentions with Unforeseeable Consequences’
Abstract: This article considers Scotland’s proposed Apologies Act in the light of experience in other Common Law jurisdictions. A number of Common Law jurisdictions have passed Apologies Acts in the past 25 years, largely motivated by concerns about a ‘litigation explosion’. The idea seems to be that providing evidentiary protection to apologies will encourage their [...]
Steven Feldman, ‘Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer’
Abstract: Brooks and Stremitzer write that a limited rescission model is “excessive” and based on a “misunderstanding” of the economic effects of these remedies.Their key premise is that legal authorities have exaggerated the threat to contract stability and other normative values posed by liberal access to rescission. Therefore, the authors posit that rational parties from [...]
Depoorter and Tontrup, ‘How Law Frames Moral Intuitions: The Expressive Effect of Specific Performance’
Abstract: Some contract theorists favor specific performance as the appropriate remedy for contract breach. According to ethical theorists, specific performance reinforces the moral obligation that promises should be kept. Some economists argue that specific performance promotes efficient contract bargaining. This Article challenges this conventional wisdom, showing that moral evaluations and the willingness to bargain are [...]
Kit Barker, ‘Private and Public: The Mixed Meaning of Vindication in Torts and Private Law’
Abstract: This piece examines the meaning of vindication in private law and the relationship between this concept and the remedies which private law provides where rights are infringed. In contrast to some other approaches, it suggests that there is no single, institutional conception of what it means to vindicate rights in private law. Rather, it [...]
Jennifer Arlen, ‘Reality Check: How Malpractice Facts Changed Malpractice Liability Theory’
Abstract: Empirical legal studies has transformed economic analysis of malpractice liability. Until recently, economic analysis of malpractice liability has been based on the traditional model of accidents. This model supports the conclusion that malpractice liability may not be needed if health insurers, not physicians, bear treatment costs. Moreover, this analysis implies that even when liability [...]
Peter Jaffey, ‘Restitutionary Remedies in the Contractual Context’
Abstract: Contracting parties sometimes have a claim to recover money paid in advance, or for reasonable payment for work done under the contract, commonly described as restitutionary remedies. This claim arising out of a contract is nowadays generally regarded as a non-contractual, unjust enrichment claim governed by the modern law of unjust enrichment, by contrast [...]
Daphna Lewinsohn-Zamir, ‘Do the Right Thing: Indirect Remedies in Private Law’
Abstract: Private law provides diverse remedies for right violations: compensatory and punitive, monetary and non-monetary, self-help and court-awarded. The literature has discussed these (and other) classifications of remedies, yet it overlooked the important distinction between direct and indirect remedies. Some remedies directly order right-infringers to realize the desired outcome, while others bring it about indirectly, [...]
Georges Cavalier, ‘Punitive Damages and French International Public Policy’
Abstract: The purpose of this paper is to demonstrate that current French international public policy no longer condemns punitive damages by principle. French substantive law is discussed before being evaluated how it fits into comparative and international perspectives. Cavalier, Georges A. J., Punitive Damages and French International Public Policy (2011). Comparative Studies on Business Tort [...]
R Collins Kilgore, ‘Sneering at the Law: An Argument for Punitive Damages in Copyright’
Abstract: The Copyright Act limits statutory damages in a copyright action to one award for every work that a plaintiff can prove a defendant infringed. The maximum amount a plaintiff may recover for each work is $30,000, except in the case of willful infringement, for which that amount may be increased to a maximum of [...]
Eisenberg and Miller, ‘Damages versus Specific Performance: Lessons from Commercial Contracts’
Abstract: Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. The familiar rule is that courts will not award specific performance when damages provide adequate relief. Despite rich theoretical discussions of the relative merits of specific performance and damages as contract remedies, little is known about parties’ treatment [...]
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