Category Archives: Remedies and Procedure
‘The new Business and Property Division’
Good afternoon. I would like to thank the Chancery Bar Association, and your new Chair, Janet Bignell KC in particular, for facilitating this event. I wanted to speak to the Association about the new Division, for what I hope are fairly obvious reasons. The changes relate directly to your work and your clients will be […]
Bolderson and Kitchen, ‘Class action waivers: contracting out of class action litigation in England and Wales’
INTRODUCTION This article considers whether businesses can lawfully deploy class action waivers (CAWs) to mitigate exposure to class action litigation involving breaches of competition law in England and Wales. It concludes that, in certain circumstances, they likely can, though the area is ripe for dispute and gives rise to a number of intellectually complex and […]
Wayne Courtney, ‘Liability in contract for mental distress’
INTRODUCTION … The treatment of mental distress damages in contract evolved to its present state through a mix of judicial intuition and scepticism, without ever settling upon an organising theory. This article is concerned with the matter of liability – that is, defining the circumstances in which compensation can be awarded – and not the […]
Steel and Williams, ‘Constructing the no breach counterfactual: the preclusionary rule’
INTRODUCTION When compensation is claimed for breach of a private law duty, it is typically quantified by reference to a counterfactual in which the defendant did not commit the breach. The ‘preclusionary rule’, as we will call it, is relevant to the construction of this counterfactual. This rule sometimes prevents parties from populating the counterfactual […]
Adam Waldman, ‘Equitable Subrogation to Extinguished Property Interests’
ABSTRACT This article explores the equitable remedy of subrogation to extinguished property interests. First, it shows that the remedy does not seek to achieve a single purpose, but rather multiple purposes. Each such purpose is only aimed at protecting a claimant from competing interest-holders whose rights already exist at the time of the subrogation-justifying facts. […]
Robert Hickok, ‘The Litigation Calculus: A Cross-Disciplinary Framework for Optimizing Strategy in Federal Civil Litigation’
ABSTRACT Federal civil litigation is a sequential game of incomplete information, played inside the most completely specified rule structure in American law. This Article builds a unified, operational decision framework for bilateral, primarily monetary federal civil litigation from that observation. Its central prescription is that strategy is not a plan but a policy. At every […]
Paula Giliker, ‘Solving the “parent company problem”: should parent companies be held directly or vicariously liable for the torts of their subsidiaries?’
INTRODUCTION In Okpabi v Royal Dutch Shell plc, the UK Supreme Court examined a claim in the law of tort against the parent company of an overseas subsidiary. The case involved allegations of serious environmental pollution and damage caused by oil leaks in the Niger Delta from pipelines and associated infrastructure operated by the defendant’s […]
David Horton, ‘Probate Codes as Procedural Codes’
ABSTRACT In every state, a collection of statutes called the Probate Code is the main source of substantive inheritance law. However, Probate Codes also serve another purpose: if litigation arises in probate court, they operate as codes of civil procedure. And although probate procedures are arguably more important than ever – over the next two […]
‘What AI Chatbots Can Teach Us About Unmet Legal Needs’
Despite growing public discussion about its potential role in the justice system, we still know remarkably little about how ordinary people are already using generally available tools like ChatGPT when they encounter legal problems. In turn, we are overlooking what those interactions can tell us about our justice system itself. To understand this shift, researchers […]
Lazcano and Jaime, ‘Damage To Social Life as an Autonomous Loss in Contemporary Civil Liability’
ABSTRACT This article analyzes, from both a doctrinal and jurisprudential perspective, the category of harm to social life within contemporary civil liability. In contrast to the old, purely patrimonial paradigm, this research addresses the evolution of non-material damages, highlighting the autonomy of relational harm from traditional moral damages. While the latter compensates for internal affliction […]