Category Archives: Remedies and Procedure

Jeff Berryman, ‘Non-Pecuniary Damages in Common Law Canadian Tort Law’

ABSTRACT It is now an uncontroversial proposition that the choice of remedy following a determination of infringement of a substantive right engages distinct principles associated with the law of remedies and it is for the court to match remedial function to underlying substantive right. The law of remedies can be divided into a number of […]

Rachel Leow, ‘Enforcing Unjust Enrichment Rights: The Recovery of Mistaken Payments in Practice’

ABSTRACT This article examines the recoverability of mistaken payments made by bank transfer in practice in Singapore. It is now clearly established under Singapore law that a mistaken payor has a claim in unjust enrichment to recover his mistaken payment. However, it is not so easy for the mistaken payor to enforce his rights. In […]

Google v CNIL: Advocate General agrees global “right to be forgotten” orders pose risk to freedom of expression’

“The Court of Justice of the European Union has published the Advocate General’s Opinion in Case C-507/17 Google Inc v Commission nationale de l’informatique et des libertes (CNIL). In his opinion, Advocate General Maciej Szpunar advised that de-referencing requests under the CJEU’s decision in Google Spain v Gonzales et al (the so-called ‘right to be […]

Carrie Menkel-Meadow, ‘Mediation 3.0: Merging The Old and The New’

ABSTRACT This is a published transcription of the 2017 Singapore Mediation Lecture delivered in Singapore (at Singapore Management University) in 2017. The lecture provides a brief overview of a world history of mediation (1.0-Ancient Mediation through the early arguments for ADR; Mediation 2.0-distortions of mediation-lite, no joint meeting mediation and mandatory mediation, spread of mediation […]

‘Damages for wrongful life refused’

ARB v IVF Hammersmith and Another [2018] Civ 2803 (17 December 2018). Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful […]

Halaby and Kelly, ‘Disgorgement of Profits as a California Breach of Contract Remedy: Intellectual Property and Other Guideposts’

ABSTRACT … Here, Patrick Kelly and I examine the history of, and limitations on, the new disgorgement-of-profits remedy for breach of contract under Restatement (Third) of Restitution and Unjust Enrichment §39. We suggest that up to the ‘cost of modification’ – the figure the breacher hypothetically would have had to pay to ‘buy out’ its […]

‘Civil Liability Act 2018 receives Royal Assent’

“The news that the Civil Liability Act 2018 received Royal Assent on 20th December 2018 may have passed many by due to the Christmas Holiday period. Now that it is an Act of Parliament it is perhaps sensible to look more carefully at the terms of the Act to assess what areas may give rise […]

Moghtaderi, Farmer and Black, ‘Damage Caps and Defensive Medicine: Reexamination with Patient‐Level Data’

ABSTRACT Physicians often claim that they practice ‘defensive medicine’, including ordering extra imaging and laboratory tests, due to fear of malpractice liability. Caps on noneconomic damages are the principal proposed remedy. Do these caps in fact reduce testing, overall health‐care spending, or both? We study the effects of ‘third‐wave’ damage caps, adopted in the 2000s, […]

‘In Support of Arbitration’

Pamela Bookman, The Arbitration-Litigation Paradox, Vanderbilt Law Review (forthcoming), available at SSRN. Arbitration and litigation are often treated as opposites. Arbitration in its idealized version is sleek, fast, and endlessly adaptable. Litigation is its foil: clunky, inexpert, and sometimes captured. As a consequence, being pro-arbitration and anti-litigation are assumed to go hand-in-hand. In The Arbitration-Litigation […]

‘A New Empirical Study of Contract Remedies’

“A basic distinction within the law of contractual remedies is between remedies aiming to compel promisors to perform the very thing they have undertaken to do – to deliver goods, to convey real property, to complete a construction project, to refrain from competing with the other party, and so forth – and between substitutionary monetary […]