Category Archives: Remedies

Thomas McMahon, ‘The Horrors of Canada’s Tort Law System: The Indian Residential School Civil Cases’

Abstract: For 17 years, between 1988 and 2005, victims of the multitude of abuses at Indian Residential Schools tried to obtain justice through Canada’s civil court system. They were fought at every stage and with every litigation manoeuvre available to Canada and the churches. Their claims for loss of parental affection, language and culture were […]

Hafeez-Baig and English, ‘The Supreme Court rectifies a wrong turn in Canadian law’

Abstract: In Canada (Attorney General) v Fairmont Hotels Inc 2016 SCC 56 the Supreme Court of Canada corrected a wrong turn in the Canadian law of rectification, returning it to a position of harmony with the approach taken in English and Australian law. This note examines the case and explores the position adopted in two […]

‘Judicial Statistics, 2016: Issued defamation claims down by 17%, lowest recorded number in modern times’

“The most recent annual Judicial Statistics – those for 2016 – show a further small decline in the number of issued defamation claims. These are by down by 17% on 2015. In 2015 there were 112 issued defamation claims in London (where the large majority of claims are made) as opposed to 135 in 2015 […]

‘New legislation to introduce damages based agreements in Scotland’

“After years of discussion the Scottish Government has introduced legislation which will make major changes to the way litigation is funded, in a bid to support access to justice. The Scottish Government introduced the Civil Litigation (Expenses and Group Proceedings) Bill on 1 June. The legislation introduces a number of changes including increased funding options […]

Andrew Burrows, ‘A New Dawn for the Law of Illegality’

Abstract: English law on illegality in private law has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (thereby committing […]

Goudkamp and Plunkett, ‘Vicarious liability in Australia: on the move?’

Abstract: The recent decision of the High Court of Australia in Prince Alfred College v ADC is a landmark case in the law of vicarious liability. It is the first time in almost 14 years that the High Court has grappled in earnest with the second stage of the test for vicarious liability. This note […]

‘Studying Specific Performance’

Yonathan A Arbel, Contract Remedies in Action: Specific Performance, 118 West Virginia Law Review 100 (2015), available at SSRN. Parties that have a right to the very thing promised in a contract may opt not to have it delivered by the breaching party through specific performance. Even when the promised item is unique, the plaintiff […]

Juergen Backhaus, ‘Lawyers’ economics versus economic analysis of law: a critique of professor Posner’s “economic” approach to law by reference to a case concerning damages for loss of earning capacity’

Abstract: A methodological critique of the Chicago School of legal economic analysis, in particular Posner’s approach, is illustrated by an example characterizing Chicago-type ‘analysis of law’. Although the discussion of the example referred to may be interesting in its own right, its purpose here is to suggest a more general framework of criticism in order […]

Sabrina Safrin, ‘The C-Section Epidemic: What’s Tort Reform Got to Do with It?’

Abstract: Today one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean section epidemic and that tort reform, which caps physician liability, […]

Patrick Borchers, ‘How “International” Should a Third Conflicts Restatement Be in Tort and Contract?’

Introduction: The question on the floor, I take it, is whether in drafting the Third Conflicts Restatement special considerations (or perhaps even rules) should come into play in tort and contract conflicts cases in which the involved jurisdictions are not all states of the United States. This is a question that — in my view […]