Category Archives: Remedies and Procedure

Orestis Sherman, ‘Orthodoxy reasserted: tempering the support for the remedial constructive trust’

Abstract The aim of this article is to reassert English law’s commitment to the institutional constructive trust, which is facing increased opposition. That opposition is partially due to the description of certain doctrines, namely the common intention constructive trust, proprietary estoppel, and equitable allowances, as manifestations of ‘discretionary remedialism’ far too loosely and a misunderstanding […]

Iain Field, ‘Contributory Negligence and the Rule of Avoidable Losses’

Abstract It is often claimed that the rules of contributory negligence apply to unreasonable claimant conduct that occurs prior to or contemporaneously with the defendant’s wrong, whereas the rule of avoidable losses (failure to mitigate) applies to unreasonable claimant conduct that occurs after the defendant’s wrong. Others argue that this distinction is normatively indefensible, since […]

Wannes Vandenbussche, ‘Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution’

Abstract This article addresses a way to support out-of-court dispute resolution which has not yet been considered in civil law systems: the introduction of apology legislation. Apology legislation encompasses a combination of statutory provisions that reduce or remove the adverse legal consequences of apologizing. The idea underpinning this device is to create a safe harbour […]

Katarzyna Kryla-Cudna, ‘Breach of Contract and Damages for Non-Pecuniary Loss’

Abstract The purpose of this article is to investigate whether non-pecuniary interests of the parties should be protected in contract law and what should be the scope of such protection. The article sheds light on the theoretical framework of contract remedies and claims that the compensability of non-pecuniary loss is necessary for an adequate protection […]

Michael Duff, ‘How the US Supreme Court Deemed the Workers’ Compensation Grand Bargain ‘Adequate’ Without Defining Adequacy’

Abstract During the second and third decades of the twentieth century, the US Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation […]

Bai, Mao and Tao, ‘Breach Inducement Activities and Performance of Breach Remedies’

Abstract This paper offers an explanation for why the courts generally prefer expectation damages instead of specific performance or liquidated damages. The paper takes into account the possibility of breach inducement activities – actions taken by one contracting party to make it more costly for the other party to perform the contract between them. The […]

Medical Litigation Conference, NUI Galway, Saturday 20th October, 9am-4.30pm

The School of Law NUI Galway and Dr Stephen Kearns, Consultant Orthopaedic Surgeon, Bon Secours Hospital, Galway, are delighted to host a one-day conference on medical negligence litigation at NUI Galway on Saturday 20th October, 2018. The conference is aimed at medical and legal practitioners and will address key issues in medical negligence … (more)

Nora Freeman Engstrom, ‘The Diminished Trial’

Abstract Civil trials, many have noted, are going the way of the dodo bird. Federal courts conducted half as many civil trials in 2016 as they did in 1962, even while disposing of over five times as many civil cases. A similar trend is apparent in the states. Of course, this trajectory has not escaped […]

Philip Devenish, ‘Enforcement in England and Wales of arbitral awards set aside in their country of origin’

Abstract In the decision of Nikolay Viktorovich Maximov v Open Joint Stock Company ‘Novolipetsky Metallurgichesky Kombinat’, the English High Court dismissed the claimant’s application to enforce a Russian arbitral award that had been set aside in Russia. The High Court held that in order to refuse recognition of the annulment decision, ‘[t]he decision of the […]

Avraham and Wickelgren, ‘Third Party Litigation Funding with Informative Signals: Equilibrium Characterization and the Effects of Admissibility’

Abstract Litigation funders provide non-recourse loans to plaintiffs who repay these loans if and only if they prevail. The loan’s interest rate reflects the funder’s information about the strength of the plaintiffs’s case. We analyze a monopoly and a two-firm Bertrand model. Bertrand competition does not eliminate funder profits or inefficiency. Making the funding contract […]