Category Archives: Remedies and Procedure

Chandrasekher and Horton, ‘Empirically Investigating the Source of the Repeat Player Effect in Consumer Arbitration’

ABSTRACT Policymakers, courts, and scholars have long been interested in whether repeat players enjoy an advantage in forced arbitration. Sophisticated empirical studies of consumer and employment awards reveal that there is indeed a repeat player effect: even controlling for other factors, companies that arbitrate more than once boast higher win rates than one-shot firms. However, […]

Govind Persad, ‘Risk, Everyday Intuitions, and the Institutional Value of Tort Law’

ABSTRACT This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects […]

Phillip Morgan, ‘Judgment-Proofing Voluntary Sector Organisations from Liability in Tort’

ABSTRACT Voluntary sector organisations (VSOs) may use ordinary principles of law to protect themselves from tort liabilities by rendering themselves judgment-proof. There are two viable judgment-proofing systems available to VSOs: (1) charitable purpose trusts, and (2) group structures. Whilst these systems are not fool-proof, they offer significant protection from tort liabilities. However, judgment-proofing may come […]

Jessica Magaldi, ‘“10 Things I Hate About …” Contract Breaches’

ABSTRACT The critical incident stems from a contract dispute between actor Evan Rachel Wood and film producer 10 Things I Hate, LLC, concerning the film 10 Things I Hate About Life. The producer contended that Ms Wood was in breach of her Artist Services Agreement because she worked only 11 days instead of seven weeks. […]

Digon, Mehiz and Cole, ‘Judicial Interpretation of Standard Arbitration Clauses’

ABSTRACT Traditionally, courts exercised a balance between careful scrutiny of arbitration agreements and limited review of arbitral procedures and awards, thereby laying the foundation for the development of arbitration from a niche method of dispute resolution into one of the primary methods through which international commercial disputes are resolved. However, the growth of international commercial […]

Adler and Fromer, ‘Taking Intellectual Property into Their Own Hands’

ABSTRACT When we think about people seeking relief for infringement of their intellectual property rights under copyright and trademark laws, we typically assume they will operate within an overtly legal scheme. By contrast, creators of works that lie outside the subject matter, or at least outside the heartland, of intellectual property law often remedy copying […]

Lezelle Jacobs, ‘Legal Feminism and Insolvency Theory: A Woman’s Touch?’

ABSTRACT The impact of women’s lives and experiences on the law forms an essential part of the feminist legal movement. This article evaluates the existence of feminist ideologies in a hitherto unexplored area of the law, namely insolvency law and more specifically insolvency theory. Some main ideologies of the feminist movement are identified and contrasted […]

Easteal and Saunders, ‘Revisiting Vicarious Liability in Sexual Harassment Cases Heard Under the Sex Discrimination Act’

ABSTRACT This article considers recent trends in the judicial interpretation of workplace vicarious liability provisions with respect to sexual harassment matters under the Sex Discrimination Act 1984 (Cth) (SDA). In a study undertaken by the authors in 2008, we found that the Federal Court and Federal Magistrates Court appeared to be taking a ‘broad-brush’ approach […]

Mor and Pikkel, ‘Disability, Rights, and the Construction of Sexuality in Tort Claims’

ABSTRACT This study empirically investigates how courts define sexuality of disabled persons in the absence of a formal right to sexuality. The focus of the study is tort law, a field ungoverned by direct disability rights legislation, assuming that tort law is the law of disablement as it concerns the transformative process of becoming disabled. […]

O’Byrne and Schipani, ‘Personal Liability of Directors and Officers in Tort: Searching for Coherence and Accountability’

ABSTRACT The 21st century has been marred by corporate scandal after scandal, including financial fraud, pyramid schemes, international bribery, and decades of sexual harassment. This raises an important question regarding the role of corporate and tort law in controlling the behavior of corporate executives more broadly. It is clear that directors and officers should not […]