Category Archives: Remedies and Procedure

‘No “German injunction gap” expedition in Abbott v Dexcom global diabetes battle, as Mr Justice Mellor expresses “some regret”’

“After the end of what English and Welsh litigators call the Trinity term (aka end of the term before the Court breaks for the summer holidays), Mr Justice Mellor was working overtime to deliver two decisions. The second of these decisions, Abbott v Dexcom [2021] EWHC 2246, concerned Abbott’s latest application to expedite a patent […]

Daniel Wilf-Townsend, ‘Assembly-Line Plaintiffs’

ABSTRACT Around the country, state courts are being flooded with the claims of massive repeat filers. These large corporate plaintiffs leverage economies of scale to bring tremendous quantities of low-value claims against largely unrepresented individual defendants. Using recently developed litigation-analytics tools, this article presents the first nationwide study of these ‘assembly-line plaintiffs’, examining millions of […]

Nino Monea, ‘Eviction Moratorium Litigation: What Courts Said, and What Courts Missed’

ABSTRACT In 2020, federal, state, and local governments imposed eviction moratoriums to prevent mass homelessness and limit the spread of COVID-19. Landlords responded to this unprecedented action by filing lawsuits around the country. This Article analyzes the litigation. It examines the claims of landlords, defenses raised by the government, and how courts dealt with each […]

Peter Cashman, ‘The Role of Judges in Managing Complex Civil Litigation’

ABSTRACT Delay and cost have bedevilled civil litigation in most if not all jurisdictions for some time. Such problems have been the subject of numerous inquiries by law reform bodies and judicial officers. A concern to ameliorate such problems has precipitated major changes to the judicial management of cases by various courts, aided by jurisprudence […]

David Rolph, ‘Liability for the Publication of Third Party Comments: Fairfax Media Publications Pty Ltd v Voller

ABSTRACT The liability of media outlets for third party comments posted on public Facebook pages raises difficult issues of basic principle for the tort of defamation. The appeal before the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller involves a reconsideration of basic principles of publication. The media outlets argue that […]

Duffy, Coleman and Nichol, ‘Mapping Changes in the Access to Civil Justice of Average Australians: An Analysis and Empirical Survey’

ABSTRACT The phrase ‘access to justice’ is growing more common in contemporary debates about the Australian civil justice system. This article examines the concept of access to civil justice, why it is important, and the obstacles to achieving it, before reporting the results of an empirical survey on changes in access to civil justice for […]

Jennifer Nadler, ‘Freedom From Things: A Defense Of The Disjunctive Obligation In Contract Law’

ABSTRACT This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another’s ownership of a […]

Shamir and Shamir, ‘Third-party funding in a sequential litigation process’

ABSTRACT Third party litigation financing (TPF) – for-profit, nonrecourse funding of litigation by a nonparty – is a new and rapidly developing industry. As a novel phenomenon that involves various normative concerns, TPF has sparked much debate and controversy among scholars and policy-makers, speculating about its potential effects on issues such as the volume of […]

Hui Jing, ‘Enforcing charitable trusts: a study on the English necessary interest rule’

ABSTRACT In England, Parliament introduced the ‘necessary interest rule’ through the enactment of section 115 of the Charities Act 2011 (England and Wales), allowing ‘any person interested’ in a charitable trust to initiate charity proceedings against defaulting trustees in their administration of charitable assets. Nevertheless, insufficient attention has been paid to this rule despite it […]

Jack Brett, ‘EU Law and Procedural Autonomy in International Commercial Arbitration’

ABSTRACT This article examines the impact of EU law in international commercial arbitration. EU law has become increasingly relevant in the world of commercial arbitration and while this may not at first seem to be a problem, this article argues that EU law has a distinctive nature which makes it fundamentally incompatible with the arbitral […]