Category Archives: Remedies and Procedure
Thomas Cotter, ‘Wrongfulness as Disproportionality: Toward a Law-and-Economics Approach to Wrongful Patent Assertion’
ABSTRACT Nations throughout the world employ a variety of legal doctrines, including antitrust law, unfair competition law, and the abuse of rights doctrine, among others, to impose consequences for what can be characterized as the wrongful enforcement or assertion of patent rights. The present essay – to be published in an edited volume of papers […]
Stephen Ware, ‘Contracting Away Constitutional Rights in the United States: Adhesive Consent (Blanket Assent) to Arbitration and other Agreements’
ABSTRACT Law in the United States provides a constitutional right to a jury trial not only in criminal cases but also in many civil cases. However, parties often unknowingly trade away their civil jury rights in so-called ‘adhesion’ contracts the form contracts businesses present on a take-it-or-leave-it basis to consumers, workers, and others who typically […]
Gilat Juli Bachar, ‘Just Tort Settlements’
ABSTRACT In the United States, most civil disputes settle, often under a cloak of secrecy. Recently, secret settlements – particularly those that conceal a matter of public interest – have come under intense public attention, spurring a wave of restrictive state and federal legislation. And yet, the attitudes of plaintiffs, such as aggrieved employees and […]
Paldor, Procaccia and Winter, ‘Preventing Class Action Sellouts’
ABSTRACT When class actions settle, the defendant and class counsel have a strong joint incentive to appropriate part of the class’s entitlement. The problem is long recognized, but neither existing mechanisms nor those suggested in the literature address it effectively. The current article proposes a market-based solution to the problem: Once a settlement is struck, […]
‘Properly distributing the burden of a debt, and the actual and presumed intentions of the parties: non-theories, theories and meta-theories of subrogation’
By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In an oft-repeated (if not always apt) metaphor, the person receiving the benefit of subrogation is said to stand in the shoes of the other as against the third party (eg, […]
‘Commercial Court claims fall to lowest number in decade’
The number of new claims issued in the Commercial Court last year fell to the lowest figure in over a decade, new research has revealed. It also highlighted the ‘dampening’ impact of the Supreme Court’s 2023 PACCAR decision, leading to a decline in new group actions … (more) [Neil Rose, Legal Futures, 10 January 2025]
Anatoliy Lytvynenko, ‘Recovery of Damages for Mental Anguish Relating to Death Grief: the Jurisprudence of Certain Common Law Jurisdictions’
ABSTRACT Courts in Common Law jurisdictions usually did not grant the recovery of damages for mental suffering unaccompanied with a physical injury or other wrong until the late 19th century. However, the given maxim changed when American courts allowed recovering damages for mental suffering in cases of improper delivery (or non-delivery) of telegraph messages, which […]
Alfred Chueh-Chin Yen, ‘The Evidentiary Use and Misuse of Forensic Musicology in Copyright Litigation’
ABSTRACT This Article examines the use of testimony from expert forensic musicologists in music copyright infringement cases. It concludes that courts presently misuse such testimony in ways that confuse juries and violate the Federal Rules of Evidence. This does not mean that forensic musicologists should not testify in music copyright cases. Musicologists have ample training […]
Roy Baharad, ‘The Uneasy Case for Copyright Disgorgement’
ABSTRACT Along with lost profits damages that are designed to put copyright owners in the position they would have occupied in the absence of infringement, copyright law entitles rightsholders to seek disgorgement of any additional profits elicited by infringers. The disgorgement remedy is designed to infuse principles of unjust enrichment into copyright doctrine, allowing owners […]
Higgins, Zuckerman and Nayer, ‘Facilitating access to justice for victims of mass harm’
ABSTRACT In this article, we propose a package of reforms that, at no additional cost to the taxpayer (and conceivably a cost saving), would facilitate better, cheaper and quicker access to justice for victims of mass harm – be consumers or sub-postmasters caught up in the Horizon IT scandal or the many other groups who […]