Category Archives: Remedies and Procedure

Steven Feldman, ‘Actual Agreement, Shared Meaning Analysis, and the Invalidation of Boilerplate: A Response to Professors Kar and Radin’

ABSTRACT Analyzing a difficult subject that ‘pervades’ contract law and which is ‘vital’ to the national economy, scholars have produced scores of articles about the legal and societal aspects of boilerplate contract terms With their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane […]

Susan Saab Fortney, ‘Mandatory Legal Malpractice Insurance: Exposing Lawyers’ Blind Spots’

ABSTRACT As states consider the advisability of mandatory insurance, it is worth examining different positions in the debate on mandatory insurance and recent empirical research related to uninsured lawyers and legal malpractice litigation. To introduce the topic, Part I provides a historical note with information on the current status of requiring malpractice insurance for lawyers […]

‘Two by Billauer on Wrongful Life and Wrongful Birth’

“Barbara Pfeffer Billauer has posted two pieces on wrongful life to SSRN. The first is The Sperminator as a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts). The abstract provides …” (more) [TortsProf Blog, 7 March]

Caspar Bartscherert, ‘Two Steps Forward, One Step Back: One Step (Support) Ltd v Morris‐Garner and Another

ABSTRACT One Step is an important decision that deals with the circumstances in which a claimant may recover damages in contract on the so‐called Wrotham Park basis, valued as the amount that would hypothetically have been negotiated between willing parties to release the defendant from his obligation. This note argues that, although the Supreme Court […]

Wannes Vandenbussche, ‘Dealing with Evidentiary Deficiency in Tort Law’

ABSTRACT In continental-Europe, each party carries the burden of proof for those elements that constitute the basis of its claim. In tort law proceedings, this implies that an injured party must prove the factual elements underlying fault, damage and causation, whereas the alleged tortfeasor must demonstrate that he is not or only partly liable. Often, […]

The Civil Procedure Rules at 20: University of Oxford, 10 June 2019

The University of Oxford is hosting a conference to mark the 20th anniversary of the Civil Procedure Rules coming into force on Monday 10 June 2019. The conference will be held at Oxford’s Bonavero Institute of Human Rights and has been organised with the generous support of Herbert Smith Freehills … (more)

AWPLN: ‘First post for 2019: news and publications’

“We’ve been informed of the following publications by Australian female scholars in the area of private law from the end of December 2018 to the end of February 2019: Elise Bant, ‘Unravelling Fraud in the Wake of Hayward v Zurich Insurance’ (2019) Lloyd’s Maritime and Commercial Law Quarterly 91; Elise Bant, and Jeannie M Paterson, […]

David Foxton, ‘How useful is Lord Diplock’s distinction between primary and secondary obligations in contract?’

INTRODUCTION … This article revisits Lord Diplock’s distinction in its original contractual setting. It begins by considering the terms in which the distinction was formulated by Lord Diplock, and how that formulation evolved over time. It then seeks to test its utility for the ‘chambers of the practitioner’ by considering six challenging issues of contract […]

Katharina Möser, ‘Making Sense of the Numbers: The Shift from Nonconsensual to Consensual Debt Relief and the Construction of the Consumer Debtor’

ABSTRACT This article analyses trends in the number of individual insolvency proceedings in England and Wales, particularly a shift from non‐consensual debt relief to consensual Individual Voluntary Arrangements (IVAs) and, connected to that, an increased privatization of the process. Seeking to conceptualize IVA users, it builds on American scholarship linking the development of bankruptcy rates […]

‘Drowning in a Bucket: Nonrecourse Loans for Litigants’

Ronen Avraham and Anthony Sebok, An Empirical Investigation of Third Party Consumer Litigant Funding, 104 Cornell Law Review (forthcoming), available at SSRN. Contracting parties often suffer from information problems, lack of expertise, and limited cognitive abilities. They sometimes make decisions under stressful conditions. There are always others happy to exploit these phenomena to make extra […]