Category Archives: Remedies and Procedure
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 […]
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 […]
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 […]
‘Winner, Berkowitz, Snepp, Blake & Bissonette – stripping the profits of authors who breach national security pre-clearance agreements’
In an article in today’s Guardian, I read that the punishment of US whistleblower Reality Winner (pictured right) was not only a conviction and sentence to 63 months in prison, but also a prohibition that she ‘can never be paid for telling her life story – whether in a book or through the several movies […]
Jeevan Hariharan, ‘Economic Torts and Injured Feelings’
George v Cannell [2024] UKSC 19 is the first time in over a century that the UK apex court has substantively considered the economic tort of malicious falsehood. Sometimes known as injurious falsehood or slander of title, at common law this tort requires a falsehood, published maliciously which is calculated to produce, and does produce, […]
‘Copyright, the AI Act and extraterritoriality’
The interaction between the AI Act (Regulation 2024/1689) and the exceptions for text and data mining (TDM) in the CDSM Directive is one of the most important topics in EU copyright law today. One particularly controversial point of intersection is the AI Act’s attempt, through recital 106, to give extraterritorial effect to its copyright-related provisions. […]
‘Twitter’s New Liquidated Damages Clause’
We recently posted about Twitter’s venue clause in its latest Terms of Service (ToS), which went live on November 15th and can be found here. There is another aspect to the new ToS that has gained some notoriety. It is Twitter’s new liquidated damages provision, which provides as follows: ‘Liquidated Damages: Protecting our users’ data […]