Category Archives: Remedies

Christian Burset, ‘The Rise of Modern Commercial Arbitration and the Limits of Private Ordering’

Abstract: Debates about arbitration often assume that it is or can be a purely private way to resolve disputes. This paper challenges that assumption by offering a new account of how and why truly extralegal commercial arbitration declined during the eighteenth century. It argues that the rise of the modern credit economy altered the possibilities […]

Alexandra Lahav, ‘Mass Tort Class Actions – Past, Present, and Future’

Abstract: The judicial experiment with mass tort class actions was an anemic one, albeit somewhat spectacular in a few cases that have captured the academic and professional imagination. This Essay explains that the reason mass tort class actions never thrived is that there is a disconnect between tort doctrine on the one hand, and tort […]

David Salmons, ‘Claims Against Third-Party Recipients Of Trust Property’

Abstract: This article argues that claims to recover trust property from third parties arise in response to a trustee’s duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of […]

O’Byrne, Philip and Fraser, ‘The Tortious Liability of Directors and Officers to Third Parties in Common Law Canada’

Abstract: The law regarding the tortious liability of corporate directors and officers to third parties remains conflicted. One line of authority, adopted in Alberta, provides that liability is rare in the context of torts committed in a corporate capacity, and it largely closes the door on liability for ordinary negligence. A competing line of authority, […]

Gupta and Khan, ‘Arbitration as Wealth Transfer’

Abstract: This Essay offers a fresh way to understand and talk about forced arbitration: as a wealth transfer. It argues that the rise and prevalence of forced arbitration clauses should be understood as both an outcome of and contributor to economic inequality, and that the national conversation about economic inequality should therefore include the debate […]

‘Save the date! Conference on the “Europeanness” of European Private International Law: 2-3 March 2018, Berlin’

“Over the course of the last decades the European legislature has adopted a total of 18 Regulations in the area of private international law (including civil procedure). The resulting substantial degree of legislative unification has been described as the first true Europeanisation of private international law and even as a kind of ‘European Choice of […]

Arielle Matza, ‘What’s the (Irreparable) Harm?: Incentivizing Creativity Through Preliminary Injunctions in Copyright Law’

Introduction: … Part I of this Note discusses the traditional four-factor test for preliminary injunctions, with an emphasis on the irreparable harm factor. It examines the evolution of this legal standard in both the Second and Ninth Circuits following eBay, using Garcia and Aereo as the leading cases. Part II highlights the differences between the […]

‘How Much is Your Injury Worth? First Tell Me Your Race and Gender’

Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No E570 (2017), available at SSRN. When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they […]

‘Lord chief justice urges enforceability of EU rulings in UK post-Brexit’

“Ministers must work faster to ensure that after Brexit UK and EU court judgments are mutually recognised and enforced, the lord chief justice has urged. In his final speech at the annual Mansion House dinner for judges, Lord Thomas of Cwmgiedd blasted government delays in negotiating a settlement to protect Britain’s £25.7bn a year legal […]

‘Punitive Damages in Action’

“One of the most controversial remedies in private law is that of punitive (or exemplary) damages. According to Ernest Weinrib, the remedy is ‘encased in controversy’. Punitive damages are extra-compensatory damages the aim of which is to punish the defendant for his wrongful conduct and to deter him and others from acting similarly in the […]