Author Archives:
Alexander Georgiou, ‘Making contract-breakers pay’
INTRODUCTION This paper explores a deceptively simple question: if one person contracts to pay another a sum of money upon the happening of a particular event, and the event occurs, under what circumstances will a court order the promisor to pay? The English lawyer’s traditional answer is: ‘It depends’. Specifically, the rules which determine whether […]
Waye, Chamberlain and Morabito, ‘How to address the regulation of third-party litigation funding of class actions?’
INTRODUCTION Class actions are controversial because they impose high transaction costs on class member remediation, and are often driven by overtly entrepreneurial lawyer and third-party litigation funder (TPLF) teams. There is a view that unless checked, these teams may advance interests that diverge from those of class members. Indeed, the potential for conflicts of interest […]
Clark Hobson, ‘Still No(,) More Bolam Please: McCulloch and others v Forth Valley Health Board’
ABSTRACT McCulloch v Forth Valley Health Board concerned an allegation of negligence, in failing to consider treating pericarditis with non-steroidal anti-inflammatory drugs as a reasonable alternative treatment and not discussing this option with the patient. Montgomery v Lanarkshire Health Board held that a medical professional must disclose to a patient material risks and any reasonable […]
Taylor and Taylor, ‘What’s Your Damage? Assessing the Harms of Sexual Harassment From the Perspective of the Victim and the Accused’
ABSTRACT This article begins with a simple question: why are the damages awarded to victims of sexual harassment so much lower than damages awarded for those defamed by false allegations of sexual harassment? This article undertakes a comparative analysis of the underlying rationales for awarding damages in the doctrines of sexual harassment and defamation, tracking […]
Daniel Harris, ‘Why the Ostensible Agency Tort Doctrine is Incoherent’
ABSTRACT One of the most perplexing areas of current tort law is the ostensible agency tort doctrine, which courts use to determine whether companies should be held liable for the negligence of their independent contractors. In most cases, liability under this doctrine requires proof the plaintiff detrimentally relied on a representation that the contractor was […]
‘Privacy Inserts’
As we become increasingly dependent on online services, we frequently ask, ‘Is this service/app safe, privacy-preserving, and secure?’ Unfortunately, for the average consumer, it is difficult to find definitive answers. Modern services generate, collect, share, and trade vast amounts of information as part of a complex digital ecosystem of third-party services and actors … (more) […]
Maurizio Lupoi, ‘Discretionary powers and ostensible discretionary trusts’
ABSTRACT A relationship of confidence was at the heart of trusts embodying discretionary powers until the end of the XIX century. Modern discretionary trusts are centred on powers of appointment in respect of beneficiaries who are only discretionary objects. Modern discretionary trusts are dubbed ‘ostensible’ discretionary trusts when the discretion held by the trustee is […]
Imran Smith, ‘From The Common Law Trespass to Squatter’s Right in Land: The Dynamics of Property Right in the Globalised World’
ABSTRACT This article engages the dynamism of property concept within the parameters of the socio-legal construct of modern societies and against the backdrop of user rights cognisable under domestic and international legal regimes. The social malaise of homelessness culminating in squatting has resulted generally in forced evictions in many jurisdictions in the developing third world, […]
Duffy and Lombard, ‘A Comparative Analysis of Litigation Funding in Insolvency Claims and in Class Actions’
ABSTRACT There is an extensive literature on third party litigation funding (‘TPLF’) of class actions and a separate literature on the longer-standing use of TPLF in claims by insolvency administrators such as liquidators and bankruptcy trustees. Despite this, there has been little comparative study of TPLF in the two species of litigation. This article seeks […]
‘Adding Insult to Injury’
Robert L Rabin, ‘Stand Alone Emotional Harm: Old Wine in New Bottles’, 73 DePaul Law Review 733 (2024). As an early-career beneficiary of Jotwell, I often use my annual platform to spotlight the work of emerging or underappreciated scholars. Robert Rabin is emphatically not a member of that group. Why, then, is Stand Alone Emotional […]